If transitional justice cannot try businessmen or those in senior positions of responsibility, the International Criminal Court must.

23/03/2017
Press release
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FIDH (The International Federation of Human Rights) and its member organisations in Colombia, CAJAR (Collective of Lawyers – José Alvear Restrepo) and CPDH (The Permanent Committee for the Defence of Human Rights), express their concern about the changes made to the draft bill that regulates the SIVJRNR (The Integral System of Truth, Justice, Reparation and No Repetition), relating to the criteria for establishing responsibility in the chain of command and the participation of third-parties. The changes render these articles inoperative.

The last stage of ratification of the draft is imminent. The organisations hope that the House of Representatives will approve a bill that is in line with international law and that assures the rights of victims.

"If the Colombian State cannot guarantee the prosecution and sanctioning of the individuals who voluntarily financed armed groups, or of the highest perpetrators of crimes committed by armed groups - including the armed forces, the International Criminal Court must do so in accordance with the powers given by the Rome Statute."

FIDH, CAJAR, CPDH.

To achieve a just and lasting peace, it is essential to dismantle the paramilitaries. Therefore, we join the voices that reject the changes that eliminate the ability to try and sanction those third-parties who directly or indirectly finance paramilitary groups, as established in the draft bill passed by the Senate. The draft bill (transitional Article 16) establishes that the JEP (Special Jurisdiction for Peace) will only be able to try civilians whose participation was active or decisive in the committing of war crimes and crimes against humanity. This implies that only those who are shown to have a direct relationship between the financing and the specific crime itself will be sanctioned.

As such, it is not known what was agreed upon in point 32 of point 5 about justice in the Final Agreement between the Government and the FARC, regarding the recurring and alarming phenomenon of businessmen in the zones of conflict who -although aware of heinous crimes committed by armed groups – supported them for the sake of economic gain.

Equally disturbing are the limitations placed on the responsibility of the command (transitional Article 23), by establishing numerous concurrent conditions, and blurring what is established in Article 28 of the Rome Statute. The draft bill speaks of "effective control of the respective conduct", while the international standard speaks of "effective control of the forces in charge". For the ICC Prosecutor, "The question of whether a commander exercised effective command or control is simply answered by asking whether the superior had the material ability to prevent or punish crimes committed by his subordinates" [1] without it being necessary for other considerations for all cases.

Likewise, the Rome Statute does not require a complete knowledge of the crime committed, but rather that they "had known or should have known" - that is to say that superiors could be responsible if they “have information that would have warned them of the crimes, but also if they had not made use of the means available to them to become aware of the crimes " [2]. However, the draft bill only requires “current or up to date knowledge," but does not define what it means to be up to date.

These provisions, in addition to violating the rights of victims, are a clear obstacle to the real achievement of justice, peace and reconciliation in Colombia.

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