The ICC and the Colombian situation: “Keep focus, keep going”

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The International Criminal Court was created after a long negotiation process. According to the Preamble and core provisions of the ICC Statute, the ICC`s mandate focuses on ensuring, through the complementarity principle, that those most responsible for the most serious crimes of international concern are investigated and prosecuted.

The establishment of the International Criminal Law was prompted by ethical reasons. Those most responsible for the most egregious crimes of international concern deserve penal punishment. Legitimacy to apply (international) criminal law to lesser crimes is lost, if they go unpunished. Moreover, those who use power to carry out mass-scale, or systematic, violence against its own population, have no ethical standing to continue ruling over their societies.

The establishment of the International Criminal Court was also prompted by legal reasons. International criminal law provides for the criminal liability of those who engage in international crimes, particularly those most responsible. International criminal law also imposes a duty on States to investigate and prosecute such crimes. The International Criminal Court is a mechanism designed to ensure that such duties are effectively carried out by States, or otherwise by the ICC itself.

The ICC was established under the States Parties´ shared understanding that there cannot be long-lasting peace without the investigation and prosecution of those most responsible for the most egregious crimes of international concern. Had States Parties believed that the ICC could be an obstacle to long-lasting peace, the ICC would not have been established.

The experience in Colombia has shown that the combined action of the International Criminal Court, and the Inter-American Commission and Court of Human Rights, has prompted a number of investigations and prosecutions at the national level for atrocity crimes of (i) top level paramilitary and guerrilla commanders; and (ii) mid and low level elected political representatives, and servicemen of the military, the police and the intelligence agencies, as well as paramilitary and guerrilla members.

The ICC is therefore fulfilling, to a certain extent, its core mandate of ensuring that those most responsible for the most serious crimes of international concern do not go unpunished. This is an ongoing process which, as the ICC-OTP Report of 2 December 2014 highlights, is far from being completed.

The combined action of the International Criminal Court and the Inter-American Commission and Court of Human Rights, has not resulted, however, in a significant reduction of the level of violence and/or crime in Colombia. Whichever is the label for the violence that is taking place in Colombia, six major nation-wide criminal gangs (referred to as “BACRIM”), which appeared after the 2003-2005 paramilitary demobilization, are currently operating in Colombia. Two major guerrilla movements (FARC and ELN) continue also active. Colombian security forces have grown to the level of around 450.000 members, with a limited level of scrutiny for their operations.

In light of the economic, political and social situation in Colombia, only the adoption of economic, political and social measures of a structural nature, which are outside the means and mandate of the ICC, could bring about the reduction of such levels of violence. Even a full-fledge peace-process will have little impact, unless the economic, political and social problems that are at the roots of the violence will be comprehensively addressed.

The performance of the ICC on any situation should not be assessed on the basis of the level of success in triggering political support to take the type of economic, political and social measures referred to above. This might be a positive collateral consequence of the ICC activities. However, the ICC does not have the means to ensure its accomplishment, as it is not part of its core mandate.

Indeed, as soon as the ICC deviates from its core mandate, so as to move its focus from promoting investigations and prosecutions of those most responsible for atrocity crimes, to transitional justice issues (such as, debating the type of penalties which may be compatible with the ICC Statute), the ICC loses effectiveness.

As a consequence, in so far as the ethical and legal considerations that brought about the establishment of the ICC have not lost their validity, the following lesson can be learnt from the Colombian situation: “Keep focus, keep going”.

Photo: A view of Soacha, an impoverished suburb of Bogotá, Colombia. Secretary-General Ban Ki-moon visited the area and inaugurated a school funded by the UN Trust Fund for Human Security, 12 June 2011 (UN Photo/Evan Schneider)

Hector Olasolo

Prof. Dr. Héctor Olásolo holds the chair in International Law at the University of El Rosario (Colombia), and is the chairman of The Ibero-American Institute of the Hague for Peace, Human Rights and International Justice (“IIH”). His main research interests are International Criminal Law, International Humanitarian Law, and International Human Rights. He is the author of numerous publications in these areas, including the books entitled ‘Corte Penal Internacional: ‘The Triggering Procedure of the International Criminal Court’ (Brill Publishers, 2005), ‘Unlawful Attacks in Combat Situations’ (Brill Publishers, 2008), The Criminal Liability of Political and Military Leaders as Principals to International Crimes (Hart Publishers, 2009), ‘Essays on International Criminal Justice (Hart Publishers, 2012), and ‘Treaty on Modes of Liability in International Criminal Law’ (Tirant lo Blanch, 2013, in Spanish). He has served as Legal Officer in Chambers at the International Criminal Court (2004-2010). He has also served as a member of the Legal Advisory and Appeals Sections of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (1999-2002), and as Legal Advisor of the Spanish Delegation to the ICC Preparatory Commission.between 1999 and 2002. He held the chair in international criminal law at Utrecht University (2009-2012).

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