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VI. International Legal Standards

Victims’ Rights to Truth, Justice, and Non-Repetition of Abuses

International law provides that victims of violations of international human rights and international humanitarian law have, among other rights, the rights to justice, truth, and to non-repetition of abuses.

The Right to Justice

International law requires states to investigate, prosecute, and sanction those who commit or order the commission of crimes against humanity and other grave international human rights and humanitarian law violations.⁴⁴⁰ The Inter-American Court of Human Rights has repeatedly stated that the right to justice is not fulfilled solely through the initiation of domestic criminal proceedings unless the state can guarantee, in a reasonable time, the rights of the presumed victims or their families by doing all that is necessary to uncover the truth and to sanction those responsible.⁴⁴¹

The International Covenant on Civil and Political Rights (ICCPR) establishes the right to an effective remedy for violations of rights protected there under.⁴⁴² As explained by the Human Rights Committee, the United Nations body of experts that monitors compliance with the ICCPR, under article 2(3) of the ICCPR a state has duties to investigate and bring to justice those responsible for violations of rights, and a state’s failure to investigate or to bring to justice those responsible can give rise to an ICCPR violation separate from violating the right to an effective remedy.⁴⁴³ The Committee adds that impunity, “a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations.”⁴⁴⁴ As a result, “where public officials or State agents have committed violations of the Covenant rights … the States Parties concerned may not relieve perpetrators from personal responsibility ….”⁴⁴⁵

The UN Updated Principles to Combat Impunity, which constitute authoritative guidelines representing prevailing trends in international law and practice, and reflect the best practice of states, describe the duties of states regarding the right to justice. They provide that “states shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly … by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.”⁴⁴⁶ The Principles note that these obligations apply even when the state’s objective is to foster peace or reconciliation.⁴⁴⁷ A state must not abuse procedural rules to avoid compliance with these duties.⁴⁴⁸

The right to justice also entails that states have an obligation to effectively sanction perpetrators of serious international human rights and humanitarian law violations. The Inter-American Court of Human Rights has repeatedly identified the state’s duty to sanction as a requirement without which the right to justice cannot be met.⁴⁴⁹ The UN’s Updated Principles to Combat Impunity also note that states should ensure that “those responsible for serious crimes under international law are prosecuted, tried and duly punished.”⁴⁵⁰

The right to justice also entails that sentencing for violations of international human rights and humanitarian law must be proportionate to the gravity of the crime. The Convention Against Torture notes that crimes under the convention should be “punishable by appropriate penalties which take into account their grave nature.”⁴⁵¹ Similarly, the Rome Statute of the International Criminal Court, whose jurisdiction includes cases involving crimes against humanity and to which Colombia is a state party, provides that in determining a sentence, the Court shall “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”⁴⁵² The statutes of other international and hybrid international-national criminal tribunals that prosecute serious crimes under international law, including crimes against humanity, have similar provisions.⁴⁵³

Imprisonment is the primary penalty meted out by international and hybrid criminal tribunals and article 77 of the Rome Statute of the International Criminal Court (Rome Statute) sets forth two possible penalties for those convicted of the most serious human rights violations: imprisonment of up to 30 years or life in prison.⁴⁵⁴ The ICC has yet to complete a trial. However, the practice at other tribunals shows that while sentences have been reduced on the basis of mitigating factors in consideration of “individual circumstances” of the convicted, such factors have not prevented long prison sentences of over 20 years from being imposed in several cases involving crimes against humanity.⁴⁵⁵

The Right to Truth

The Inter-American Court of Human Rights has held that victims have a right to truth, as part of the right to judicial protection in the American Convention on Human Rights.⁴⁵⁶ The IACHR has emphasized that the right to truth also requires that states not restrict the right through legislative or other measures, which would violate the American Convention.⁴⁵⁷

Similarly, the UN Updated Principles to Combat Impunity recognize an “inalienable” right to truth and the right to know of victims of human rights abuses.⁴⁵⁸ As international jurisprudence and state practice have affirmed, the right to know exists in both individual and collective dimensions, such that “societies affected by violence have, as a whole, the unwaivable right to know the truth of what happened as well as the reasons why and circumstances in which the aberrant crimes were committed, so as to prevent such acts from recurring.”⁴⁵⁹ These rights pertain to uncovering the truth about events related to the perpetration of heinous crimes, as well as about the massive or systematic violations that led to the perpetration of those crimes.⁴⁶⁰ To give effect to these rights, states must “take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary,” along with appropriate non-judicial processes to complement those of the judiciary.⁴⁶¹ The right to truth is also connected to victims’ right to guarantees of non-repetition of abuses, as “full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”⁴⁶²

Potential for Involvement of the International Criminal Court

Colombia ratified the Rome Statute on August 5, 2002, with a declaration that it would not accept the ICC’s jurisdiction over war crimes for seven years—until 2009. Accordingly, the International Criminal Court has jurisdiction over crimes against humanity and genocide committed in Colombia or by Colombian nationals since November 2002.⁴⁶³

Colombia’s paramilitary groups had not yet demobilized at the time the Rome Statute went into effect in Colombia, and there are multiple credible reports that they continued to engage in serious crimes, including crimes against humanity, after 2002.

ICC Prosecutor Luis Moreno Ocampo has, from the start of the demobilization process and the negotiations over the Justice and Peace Law, expressed an interest in the process, sending a letter to the Colombian government in March 2005 requesting information about the draft law then being considered.⁴⁶⁴ The prosecutor has recently expressed an interest in the law’s implementation, as well as in the investigations of paramilitary accomplices in the political system, noting that his office is “monitoring the open proceedings against the paramilitary leaders, an issue that implicates members of Congress .… We’re analyzing the evolution of these cases and once we have completed the evaluation, we will make a pronouncement.”⁴⁶⁵ During a visit to Colombia last year he also stated, with regard to paramilitaries’ accomplices, that: “information has come up that implicates other people who are being investigated. These people could also have greater responsibility for the crimes, and so we are interested in them. We are watching how Colombia processes this type of case. We’re checking.”⁴⁶⁶

More recently, in June 2008, Moreno Ocampo sent another letter to the Colombian government inquiring about the accountability for paramilitaries’ accomplices as well as effect of the paramilitary leaders’ extraditions to the United States on accountability for human rights crimes. He asked specifically:

How will the trial of those most responsible for crimes under the jurisdiction of the ICC, including political leaders and members of Congress who are presumably linked to the demobilized groups be ensured? In particular, I would like to know if the investigations conducted so far point to the omission of conducts sanctioned by the Rome Statute and whether the extradition of the paramilitary leaders presents any obstacle to the efficient investigation of the aforementioned politicians.⁴⁶⁷

Moreno Ocampo paid another visit to Colombia in August 2008.⁴⁶⁸

The ICC could assert jurisdiction over crimes committed in Colombia by referral from the Colombian government or the U.N. Security Council; or if the ICC prosecutor uses his proprio motu powers, whereby he may act on his own initiative.⁴⁶⁹ Whether or not cases over paramilitaries’ and their accomplices’ crimes in Colombia would be admissible at the ICC depends on many factors, one of the most important of which is the adequacy of trials in Colombia for those crimes. The Rome Statute favors domestic prosecution of serious crimes where possible. At the same time, as Human Rights Watch has explained in past publications, the Rome Statute and international human rights standards require that such prosecutions meet substantial benchmarks.⁴⁷⁰

Of particular relevance to the case of Colombia is the requirement of credible, impartial, and independent investigations and prosecutions. Article 17 of the Rome Statute provides that a national alternative must involve a state genuinely able and willing to conduct investigations and prosecutions. Given that many of the individuals implicated in the current cases in Colombia are politically influential, law enforcement and judicial authorities must be scrupulously independent and impartial in conducting these investigations.

Accordingly, the national government must refrain from adopting laws and measures designed to shield persons responsible for serious crimes from accountability. Under the Rome Statute, unwillingness may include if investigation and prosecution is undertaken in a manner designed to shield the person from criminal responsibility, or conducted in a way that is inconsistent with intent to bring a person to justice.⁴⁷¹

In terms of substance, crimes against humanity are among the most serious crimes under international law. Colombian prosecution of such crimes should include charges that reflect these crimes’ gravity. The same charges and theories of criminal responsibility that would be used before the ICC should be used in Colombia. These include command responsibility, and other forms of participation in planning and execution of the crimes, including being part of by a group acting with a common purpose, which would be relevant to politicians, members of the military, financial backers, and other close collaborators of the paramilitaries. Considering different forms of responsibility is particularly important in order to establish culpability even where the defendant is not accused of directly committing the crimes with which he is charged.

Another benchmark of special relevance in Colombia is the requirement of penalties that reflect the gravity of the crime. Whether the reduced sentences of five to eight years provided for in the Justice and Peace Law satisfy this requirement is highly questionable, given that such sentences are substantially lower than the standard sentences for crimes against humanity in international tribunals—even after taking into consideration mitigating factors such as a defendant’s cooperation with prosecutors. The additional sentence reductions the Colombian government has provided for by decree (allowing defendants to count 18 months of the time they spent negotiating, outside of government control, as time served), aggravate the problem even further, resulting in the possibility that persons convicted of multiple crimes against humanity could end up with sentences of only three–and-a-half years.

Given the seriousness of the crimes at issue, imprisonment should be the principal penalty for conviction. As previously noted, the ICC’s primary penalties include either imprisonment for a specified number of years up to 30 years or life imprisonment when justified by the extreme gravity of the crime and individual circumstances. Imprisonment is also the primary penalty of other international and hybrid criminal tribunals, and life imprisonment or the death penalty tends to be the primary penalty for even a single act of murder in domestic justice systems around the world.⁴⁷² Government decrees that would permit paramilitary leaders or their accomplices to serve reduced sentences on “agricultural colonies,” in military bases, or under house arrest, would also put in question whether Colombia’s prosecution is an adequate alternative to ICC prosecution.