Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco join us again for this guest-post on the ICC and Colombia. Mariana is the Director of the Human Rights Program at Asuntos del Sur. Salvador is an LL.M. University of Ottawa, a human rights lawyer based in Lima, Peru. Enjoy!

FARC child soldiers (Photo: Resistance Studies)

Now that the International Criminal Court (ICC) has just rendered its first sentencing for Lubanga for the recruitment and use of child soldiers in the armed conflict in Uganda, it might be adequate to talk about Colombia, a situation that has been under the ICC radar since 2006.

Back then, the Office of the Prosecutor (OTP) declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against the allegedly most serious perpetrators, paramilitary leaders, politicians, guerrilla leaders and military personnel.”

Later, the OTP added it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. The Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute, and Colombia is classified as a “situation under analysis.”

The primary responsibility of investigating grave crimes remains under the jurisdiction of the Colombian tribunals and the Court considers the local judiciary capable and willing to carry out investigations of the crimes under the ICC’s jurisdiction. But, NGOs have reported that the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) continue to perpetrate grave abuses against civilian populations.

Child Soldiers and Landmines

HRW reported that Colombia is among 14 countries worldwide (beyond Central and West Africa) that use child soldiers. In the case of Colombia, the report adds that the FARC have recruited children as young as 7 and forced them into combat. They execute fighters who try to desert. There are no arrest warrants, no trials and no convictions for the recruiters.

Antipersonnel landmines and other banned weapons are still being used by the FARC and the ELN, HRW’s World Report states. They also note that 16 civilians were killed and 104 were injured by landmines and unexploded munitions between January and August 2011.

Gender Crimes

Furthermore, it is reported that gender violence has been employed as a weapon of war. Unfortunately, the international community has continually failed to prevent the widespread and systematic violence against women in the context of armed conflicts. Colombia is not an exception of this tragic rule.

The Constitutional Court, in a 2008 decision, recognized that sexual violence against women was “a habitual, extended, systematic and invisible practice in the context of the Colombian armed conflict … [perpetrated] by all illegal armed groups, and, in some isolated cases, by individual agents of the public security forces.”

Last year, a Symbolic Court Against Sexual Violence within the Colombian Armed Conflict met in Bogotá to deal with a range of cases related to sexual violence committed by armed groups in the internal Colombian conflict.

(Photo: AFP Photo / Raul Arboleda)

The Court was conceived as a place “aimed at making visible to the public the impact sexual violence has had in the context of armed conflict, especially emphasizing the rights of victims and the need to overcome the impunity that has characterized these crimes, and demand timely and effective attention by the state.” The Tribunal made some recommendations urging the Colombian state to uphold their international obligations regarding the prevention, investigation, prosecution and judgment of gender violence.

The Tribunal further reported that among the crimes committed by armed groups are: rape, enforced nudity, enforced contraception, sexual slavery, forced pregnancy and other gender crimes committed alongside crimes, such as killing, enforced disappearances, kidnapping and torture. The judges stated that there is systematic gender violence in the Colombian armed conflict and that gender crimes are used as a weapon of war by the public forces, by paramilitary groups and by the guerrillas, with the clear goal of “obtaining benefits in the developments of the hostilities.” Therefore, the Tribunal concluded, if the Colombian authorities do not take the necessary steps to investigate and prosecute those responsible for these types of crimes then the ICC should address them.

At the moment of writing, there has been no progress made in this regard and civil society organizations criticize the Colombian judiciary for not yet having addressed past and present gender violence correctly.

False Positives

Before leaving the ICC, Luis Moreno Ocampo told EFE that his office was analyzing information regarding the Colombian army murdering civilians and disguising the bodies as guerillas killed in combat to artificially inflate its enemy kill count – so called “false positives”. However, we should be clear: There are no false positives, only extrajudicial executions. The International Federation for Human Rights (FIDH) has called on the ICC to open an investigation on this topic ever since the scandal broke in 2008 – and they are asking for a full investigation since 2002, when Colombia ratified the Rome Statute.

In their recent report (produced together with the Coordinación Colombia Europa Estados Unidos), titled “Colombia: The war measured in litres of blood – “False-positives”, crimes against humanity: the impunity of the most responsible”, the organization notes that extrajudicial executions (or “false positives”) committed in Colombia constitute crimes against humanity, and that those who bear the greatest responsibility are not being investigated or prosecuted by the Colombian justice system.

Guns from the AUC paramilitary in Colombia (Photo: Jan Sochor)

Constitutional Reform for Justice: An absurd fostering of impunity

Over the past year, the current administration has filed a draft Constitutional amendment before Congress to reform the administration of justice. This complex project sought to speed up local judiciary proceedings, to protect the rights of victims and to provide a better service to the population.

The results? An “unconstitutional” constitutional reform that if enacted, (i) would have halted all criminal proceedings against members of Congress that are accused of having ties with paramilitary groups; (ii) conceded additional benefits/privileges that would have made impossible for the judiciary to investigate members of Congress and other government officials; and overall (iii) eliminated the checks-and-balance system of the Constitution.

When the final draft of the Constitutional amendment was approved by Congress last week, a political and legal crisis hit the country. It paralyzed everything else and the main question was if the President had the right to veto a Constitutional amendment. In the end, under a creative and systemic interpretation of the Constitution, the bill was sent back to Congress, which, feeling the overall pressure from every sector of national and international public opinion, struck down the reform.

What last week’s crisis made clear is that despite the evident commitment to justice by some Courts and the fact that there is an interesting legal framework that enables the local prosecution of international crimes, dubious political interests seek out alternatives to evade justice. This is something that the new Prosecutor should take into account next time the OTP publishes a report on preliminary examinations.

ICC action needed

Despite President Santos’ concern for human rights, things do not seem to settle for struggling Colombia. As Avocats Sans Frontieres reports, paramilitary successor groups continue to grow, maintain extensive ties with public security force members and local officials and commit widespread atrocities.

Colombia has been suffering an internal conflict for more than four decades now; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic. Populations continue to be forced to migrate and human rights activists are being threatened and/or attacked by armed actors.

What is necessary here is a clear and straight forward answer from the ICC.