Paths to Prioritization in Colombia’s Justice System

The first panel of the international conference opened the discussion about the pertinence of a selection or prioritization strategy for the prosecutions of mass crimes in Colombia. Iván Orozco, professor of Los Andes University in Colombia, Dan Saxon, former member of the international Criminal Tribunal for the former Yugoslavia (ICTY), and Kai Ambos, professor of Gottinger University, Germany, presented their thoughts and experiences on the topic.

Iván Orozco reflected on the selection of cases in Colombia by pointing to the legacy of the Nuremberg tribunal, and how it influences the way in which prosecution of crimes against humanity is viewed in Colombia.

He said that Nuremburg’s judicial procedures presented an excessive separation between perpetrator and victim. “In understanding a dictatorship this separation is very powerful,” and it impacts transitional institutions. These challenges must be tackled politically.

Orozco stated the justice process in Colombia has highlighted the issue of state responsibility, such as in the case of the false positives and paramilitaries. “In today’s world, it is unsustainable that a state be liable under the premise that the state has a monopoly on the use of force, when its enemies hold the responsibility,” he affirmed.

He concluded his presentation by proposing a selectivity mechanism for Colombia. He said that, as negotiations are taking place, representatives of the church, political parties, human rights organizations, and security organisms, among others, should be able to be involved. The selected cases should reveal the systemic problems of the damaged military and security institutions in order to promote non-repetition.

Dan Saxon presented the selection criteria used by the ICTY in 2003, when the UN Security Council instructed ad-hoc tribunals to focus their efforts on the prosecution of top political leaders suspected to be the most responsible, and leave other cases in the hands of national tribunals.

Thus, the ICTY focused in two categories of suspects: local or main leaders of the countries where military or political and administrative structures participated in the perpetration of severe international crimes, and some key figures that were especially important in the criminal campaign: the “known authors.”

In his presentation, Kai Ambos focused on other selection criteria, such as the quality and scope of the facts, the representation of suspects, their military status, the most responsible, public interest in what has happened, the viability of the prosecution, the probation status, and the prosecutorial institutions’ capacity to investigate, among others.

According to him, no system, not even the most consolidated, can investigate all criminal acts committed, and “Colombia is no exception and needs a selection mechanism.” However, Colombia’s legislation is firm in its demand for investigation and prosecution of international crimes, which professor Kai Ambos emphasized earlier in the day.

He explained that the opportunity principle cannot be applied in the case of international crimes in Colombia, as the country should be able to apply this principle in cases where a demobilized paramilitary was part of the group, that is, for the crime of conspiracy. At the same time, Ambos asked “which member of a paramilitary group did not participate in international crimes?”

In his view, Colombia should be able to apply the opportunity principle in proceedings against 19,000 demobilized paramilitaries that were responsible only for belonging to the illegal armed group.

Photos by Camilo Aldana
Video by Mauricio Cardona