Colombia is in the midst of historic peace talks. Many difficult challenges have been addressed, but a number of thorny issues are still on the table. A key point left to be settled is that of criminal accountability for the most serious crimes committed during the country's 50-year internal armed conflict.
How these crimes are dealt with is an important element of a peace settlement itself but also, more fundamentally, to the construction of a just and lasting peace.
Experiences of pursuing criminal accountability in countries such as Bosnia, Cambodia, East Timor, Lebanon, and Sierra Leone provide possible approaches and models for Colombian society to consider and draw on. In these countries, international judges and/or prosecutors worked together with nationals to bring the most serious violators of human rights to justice. These internationalized tribunals were intended to respond to two principal concerns: that the national authorities lacked the capacity to conduct fair prosecutions and trials and/or they lacked credibility, i.e., they were not sufficiently trusted by one side or the other to truly do justice.
The first option is, of course, to rely on the national judicial system. Indeed, this is the principle at the heart of the Rome Statute of the International Criminal Court (ICC), which holds that the ICC is intended only to complement national jurisdictions, not supersede them.
Colombia has many excellent legal professionals, including judges, prosecutors, and defense counsel. There does not appear to be a question of capacity, nor is there a need for capacity building in the sense confronted by other countries where internationalized tribunals have been established, as in, for example, Sierra Leone. The International Center for Transitional Justice and others have provided a great deal of technical assistance to Colombian judges, prosecutors, and other legal professionals. Gaps that may have existed have largely been addressed.
Thus, in the Colombian context, the key factor is the question of public trust and credibility: Is there sufficient confidence in the national court system to go forward with investigations and trials? It is hardly surprising that in societies that have experienced conflict and violence one of the parties is likely to mistrust the justice organs of the existing governing state or new authorities. Indeed, guerrillas may not trust the government they have fought and rebelled against.
At the same time, it is important to point out that the creation of an internationalized tribunal or chambers may at least indirectly undermine confidence in the national system. Obviously, the establishment of an internationalized court or tribunal sends a signal that the national system either lacks capacity and/or lacks the trust of a significant or important part of the society. This may well be a blow to the national system and perhaps an unfair mark on its reputation.
More fundamentally, in the case of Colombia, will the creation of such a specialized tribunal be acceptable under the Colombian constitution and under national law and what steps need to be taken to address these deficits? This requires a careful legal analysis to see what the Constitutional Court of Colombia would find acceptable under the Colombian Constitution.
As is well known, the ICC has had the Colombian situation under preliminary examination since 2004, but thus far it has not intervened. Given the steps the country is taking to investigate and prosecute serious crimes, Colombia does not necessarily need to have an internationalized process beyond its relationship with the court. The Rome Statute of the ICC establishes, at the heart of its mandate, that the primary responsibility for investigations and prosecutions for serious crimes rests with the state. Even in the case of the most serious crimes--war crimes, crimes against humanity, genocide--the Rome Statute acknowledges the national courts should be the ones to investigate and prosecute.
There are other approaches worthy of consideration that are less intrusive and stop short of an internationalized tribunal. For instance, the International Commission against Impunity in Guatemala was headed by an international prosecutor, however, cases were brought in the national courts.
Another way of addressing these issues is to create a team of specialized prosecutors and investigators on the national level, so that prosecutions could be ensured of the highest standards. Creative methods could be used in proposing and appointing members to such a specialized office.
With respect to internationalized courts, perhaps the most interesting example for Colombia is that of the Bosnia State Court, where international judges and prosecutors worked alongside national counterparts within the national court system, with international experts being phased out over time. This approach worked well in Bosnia and, if an internationalized tribunal is to be considered in Colombia, the Bosnia experience could prove to be of interest to Colombia.
Thus, there are a number of approaches that are worth of consideration as Colombia addresses the question of criminal justice, which is critically important both for the many victims of the conflict but also for Colombian society at large. At this historic juncture, there is a unique opportunity for Colombians to explore and consider the widest array of lessons learned in other countries on how to (and how not to) pursue accountability for serious crimes.