Colombia: FIDH and CAJAR denounce impunity gap for international crimes committed by agents of the State

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© José Jans Carretero

Bogota, The Hague, Paris – On 24 November 2020, FIDH and CAJAR presented a report to the International Criminal Court (ICC) identifying blind spots of impunity for international crimes within the justice process in Colombia. This submission denounces in particular that the Colombian Attorney General’s Office has suspended investigations and judicial proceedings for all the cases that it deems to be related to the armed conflict. FIDH and CAJAR call upon the ICC Office of the Prosecutor to include these findings in their complementarity assessment in the framework of the ongoing preliminary examination into the situation in Colombia.

The FIDH-CAJAR report, titled “Colombia at Risk for Impunity: The Blind Spots in Transitional Justice and International Crimes under ICC Jurisdiction,” shows how victims of extrajudicial executions, sexual violence, and massacres perpetrated by agents of the State are currently in a legal limbo; the transitional justice mechanisms or the Special Jurisdiction for Peace (JEP - Jurisdicción Especial para la Paz) have not assumed jurisdiction, while the judicial authority in charge of the 
investigation, the Attorney General’s Office, refuses to take any step to advance these proceedings.

“If nothing is done, this limbo could last for years, needlessly causing further anguish for victims and their families and increasing chances that such atrocities remain unpunished,” said Reinaldo Villalba Vargas, of the Colectivo de Abogados José Alvear Restrepo (CAJAR).

Our monitoring has shown that this situation is the result of the restrictive interpretation of Article 79 (j) of the JEP’s Statutory Law, [1] which has become official policy with the issuance of Circular 003 of 3 October 2018, updated on 22 July 2019 by the Attorney General’s Office. This is contrary to the principle of harmonious collaboration between ordinary justice and 
transitional justice, since the JEP itself has made it clear that investigations and judicial proceedings cannot be suspended until this jurisdiction formally assumes its jurisdictional competence and announces the publication of the resolution of conclusions on such cases. [2]

FIDH and CAJAR’s report denounces furthermore that the Military and Police Criminal Justice (JPMP, for its acronym in Spanish) in charge of investigating alleged acts committed by State agents has not "acted [in a way that is] impartial, independent" in the words of the Colombian 
Supreme Court of Justice, nor has it contributed adequately to the cases opened before the JEP.

Two years after the Special Jurisdiction for Peace began functioning, there is no information that any report has been submitted by the JPMP to the JEP (as is its duty under Article 79 of the Procedural Law 1922 of 2018). JEP has drawn 
attention to the lack of collaboration by the JPMP in clarifying extrajudicial executions. For example, in Case 003, in which mass graves were found in the Dabeiba cemetery, the JEP noted that the JPMP was only aware of 10 cases involving such executions and that none of them had made significant progress in the prosecution of those responsible. Similarly, in Case 004 of the "Territorial Situation of Urabá" the JPMP has not provided the information requested by Transitional Justice. [3]

FIDH and CAJAR also express concerns about the House of 
Representatives’ Investigation and Accusations Committee, an entity 
that has not reported any substantive decision in its 22 years of 
existence, showing progress in only 1 of its 3,500 open processes. 
This is a worrisome situation, since the entity is in charge of 
advancing judicially in processes for serious crimes against high-level 
civil servants, who are not requested to appear before the 
transitional justice mechanisms precisely because the Constitutional Court 
decided to entrust these processes to the ordinary courts and 
judicial entities (Ruling C-674 of 2017). 

Finally, there is a lack of clarity in the proceedings and timely 
response by the JEP to victims who have requested the exclusion of 
combatant State agents who have appeared before the JEP for failing 
to comply with the conditionality regime. Evidence has been 
presented showing a lack of compliance with the obligations to provide 
truth and guarantees of non-repetition and the JEP has delayed its 
response to the victims’ requests. (See the cases of Mario Montoya 
Uribe within Case 003 at the JEP and the benefits granted to Freddy 
Francisco Espitia Espinosa, who was a sergeant in the National Army 
in the Infantry Battalion No. 39 Sumapaz, based in Fusagasugá; 
accused of the crimes of aggravated homicide as the perpetrator, for 
the death of Jorge Darío Hoyos Franco).

Since June 2004, the ICC Office of the Prosecutor (OTP) has been conducting a preliminary examination into alleged war crimes committed since 1 November 2009 and alleged crimes against humanity committed since 1 November 2002 in Colombia. The OTP’s preliminary examination into the situation in Colombia is currently in phase 3, focusing on admissibility, which means the Office examines if the complementarity and gravity criteria are met. In this framework, the OTP analyses if genuine investigations and prosecutions into the alleged international crimes are being conducted at the national level in the country of commission of the alleged crimes. This will determine if there is a reasonable basis to proceed with an investigation.

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