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The Prosecutor of the International Criminal Court (ICC) gives a warning about the criminal classifications provided for in the context of transitional justice

The first alarm bell has been sounded from the ICC about the Legal Framework for Peace, the Transitional Justice formula which the Government is attempting to apply to the demobilization of the guerrillas.

In a four-page letter to the President of the Constitutional Court, dated 26th July the ICC prosecutor, goes through one of the key provisions of the Legal Framework: the possibility of suspending punishments for perpetrators of serious crimes under international law.

The Framework is an amendment to the Political Charter (the Constitution) - now under review by the Constitutional Court and requiring implementing legislation - which introduces mechanisms of Transitional Justice for the treatment of crimes committed by guerrilla members in the process of demobilization within the context of government accords (in other words, the negotiation with the FARC).

It contemplates the possibility of choosing some of the more emblematic crimes committed during the armed conflict and bringing before court and convicting those most responsible for such crimes. It then contemplates suspending the sentences or applying alternative punishments to the perpetrators.

The debate over whether it constitutes impunity to select certain crimes and discount others and whether the perpetrators should or should not go to prison has divided the country, confronting figures such as the Inspector General of the Nation, the Attorney General and human rights organizations with the government. Now the ICC is taking part in that debate.

"I have come to the conclusion - says the prosecutor Bensouda in her letter - that a conviction that is grossly or patently inadequate (...) would invalidate the authenticity of the national judicial process". This opinion - and, to be clear, this opinion is that of the prosecutor and not that of the ICC or the judges - poses a great challenge regarding the legal treatment of the guerrilla leaders in the event of a peace agreement.

The ICC has recognised, as the letter reaffirms, that Colombia has made a serious effort to bring to justice the crimes of the guerrillas which are within the competence of that court ( war crimes, crimes against humanity and genocide). However, as the prosecutor indicates: " The decision to suspend the punishment of imprisonment would suggest that the legal process proposed has the objective of removing the accused from any criminal responsibility."

The consequence is both apparent and serious: suspending punishment for the perpetrators of certain crimes could produce the intervention of the International Criminal Court in Colombia. The prosecutor clearly says as much: "The suspension of punishments would go against the objective and purpose of the Statute of Rome, given that it would, in practice, prevent the punishment of those who have committed the most serious crimes".

The ICC is a court of final appeal, that is, its jurisdiction is triggered if the prosecutor convinces its judges that a country has not applied justice in the face of serious violations of international law.

At the end of her letter, Bensouda modulates her opinion. She concludes that, in situations of Transitional Justice, if the perpetrators are being demobilised and disarmed, and if they give guarantees that they will not carry out further crimes, contribute to the truth and recognise their criminal responsibility, "These circumstances, in addition to the prohibition against participating in public life, might justify a reduction in punishment, provided that the initial conviction is proportionate to the seriousness of the crime."

Reduction but not total suspension, she affirms, stating that the latter is inadmissible for those crimes which have the status of imperative law, or in respect of which the State cannot avoid imposing sanctions (amongst jurists there exists a debate as to which crimes fall within this category).

In simple terms, the prosecutor of the highest international court for serious breaches of international law is telling the highest court in Colombia that a complete pardon of any sentence imposed for certain crimes and of its perpetrators could activate the jurisdiction of the ICC in respect of the country. And that a reduction in the sentence would only be admissible under the strictest conditions, including the prohibition against participation in political life.

But there is another letter to the Constitutional Court, dated 7th August, in which the prosecutor touches on another thorny issue: the selection of those most responsible for the most serious crimes. And what she says on this subject will not please the government or the defenders of the Legal Framework for Peace.

During a hearing called by the Constitutional Court a few weeks ago, and in public debate, these parties have argued for the need to select certain crimes and certain perpetrators (the "most responsible") maintaining that to try all the crimes and all the perpetrators would result in impunity, as the legal system does not have the resources. Various officials and experts pointed out, as an example, that the ICC and other international courts, such as those of the former Yugoslavia or that of Rwanda have made this type of selection.

In an express response to this argument, Prosecutor Bensouda asserts that one thing is how the ICC, as a jurisdiction of final appeal, proceeds, and quite another the internal obligations of States.

She emphasises that the procedural strategy of her office in selecting cases and those responsible "should not be interpreted as authority, precedent or directive for the purpose of interpreting the parameters of internal jurisdictional obligations" and she reminds the Colombian State of its obligation to try those responsible for international crimes and that such persons "should not go unpunished". A direct criticism of the arguments put forward by certain officials and organizations in defence of the Legal Framework.

These opinions will undoubtedly have profound implications on the discussion in the Constitutional Court concerning the Legal Framework for Peace. And they constitute an alarm bell for the government (and the Attorney General Eduardo Montealegre), who defend the selection and suspension of sentences as elements of Transitional Justice applicable to the members of FARC in the event of an agreement.

They will also be an alarm bell for the Havana Talks, and in particular for the FARC members. Whilst they refuse to accept imprisonment or to recognise their responsibility as perpetrators and continue to make all kinds of proposals for political participation, the messages from the prosecutor will serve to remind them how much global tolerance for international crimes has diminished since the days when conflicts ended with unconditional amnesties.

If the guerrillas are hoping not to serve prison sentences or that all of them will be allowed to participate in politics, the two letters from the ICC prosecutor will be an important warning against the same on behalf of international justice.

In the long term, there is another element which should be borne in mind. The ICC has opened a debate as to whether there is undue focus on Africa, given that all its caseload are connected to that continent, and there are pressures for it to initiate proceedings in respect of other regions. Colombia is one of the seven countries under "preliminary examination". With this debate and an African prosecutor (Bensouda is from Gambia), the temptation for the Court to choose cases from outside Africa is significant and "lapse" in the Legal Framework could make it more so.

Given all this, if the judges of the Constitutional Court have already shown that they are preparing their decision on the Legal Framework for Peace with particular care, the message from the ICC prosecutor is going to make them scrutinise it even more closely.

The letter of 26th July is not only a bomb for legal reasons. It includes a "detail" which could have particular implications. In it, the prosecutor states that the Colombian government requested an opinion on the delicate subject of punishments and that she wishes to advise the president of the Constitutional Court, as he discusses the Legal Framework, of the "advice" which has been offered to the government.

The "detail" is that the government told SEMANA that there was no consultation by the Colombian government with the Prosecutor's Office of the International Criminal Court. And nor had it received any "advice" from that Office.

[Source: Revista Semana, Bogota, 18Aug13]

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