Command Responsibility and the Colombian Peace Process

Abstract

Since the beginning of the Colombian peace process, command responsibility has been a contentious topic. The importance of this mode of individual responsibility for the prosecution of grave crimes committed during the Colombian armed conflict cannot be overestimated. Its exact scope has not only far-reaching consequences for the possible criminal liability of the most responsible perpetrators but also symbolic importance with regard to the credibility and persuasive power of accountability within Colombia’s transitional justice process as a whole. Against this background, it is not surprising that the exact contours of the doctrine have been the object of fierce political and legal infighting. After a short introduction on the Colombian Peace Process and its Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP, infra I.), we will discuss the different codifications proposed (infra II). The ultimately agreed-upon definition deviates in some important respects from the international one (infra III) as developed by decades of case law and most authoritatively set out in Art. 28 Rome Statute of the International Criminal Court (hereinafter: ICC Statute), to which Colombia is a State party. This deviation may entail serious shortcomings in terms of the mentioned accountability of the most responsible and thus negatively impact Colombia’s anyway fragile peace process.