On Nov. 15, the International Criminal Court (ICC) gave Colombia a clear warning that the Court expects accountability at the senior level for serious crimes that fall under its jurisdiction, or else it may pursue a formal investigation. The warning came in the first interim examination report ever issued by the Court's Prosecutor Office. Colombia joined the ICC in November 2002 and is one of only eight countries formally under ICC examination. The others are Honduras, Afghanistan, Nigeria, Georgia, Guinea, North Korea and Mali.

The first step in ICC prosecution consists of determining whether crimes under the Court's jurisdiction have been committed in the examined country. The crimes are listed in the Rome Statute, namely genocide, crimes against humanity, war crimes, and aggression (invasion) against another country. Once that has been established, the next step is determining whether domestic courts are making a serious effort to hold the perpetrators accountable for those crimes.

Until now, the Court never shared the findings of its preliminary investigations. The decision to release the preliminary report on Colombia was made, in the Court's own words, "in recognition of the high level of public interest generated by this examination."

The ICC established that crimes under its jurisdiction have indeed been committed by the main armed groups in the Colombian armed conflict: the FARC and ELN guerrilla groups, the paramilitaries, and state agents. Colombia now joins only two other countries in the world (Guinea and Georgia) that the Court has moved to a second level of investigation.  

The Court took a serious look at extrajudicial killings committed by the Colombian armed forces and found that such killings of civilians, also known as "false positives," were part of a state policy, and not just isolated "bad apples," as the Colombian government has argued: "There is a reasonable basis to believe that the acts described above were committed pursuant to a policy adopted at least at the level of certain brigades within the armed forces, constituting the existence of a State or organizational policy to commit such crimes."

The Court identified eight army brigades where most of the false positives crimes occurred: Brigades 4, 7, 9, 14, 17 and 30, and Mobile Brigades 12 and 15. The United States assisted battalions or leadership in Brigades 7, 9, 14, and 30 and the 12th Mobile Brigade during the period when many "false positive" killings occurred.

Examining the 17th Brigade, the Court listed the San Jose de Apartadó Peace Community massacre of February 2005 among the extrajudicial killings examined and detailed in its report, noting that only one army officer, Capt. Guillermo Gordillo, has been convicted in the case.

Judicial proceedings that concluded in a conviction of 20 years were conducted against Captain Guillermo Armando Gordillo Sánchez for the killing of five peasants and three children on 21 February 2005. Captain Gordillo Sánchez confessed his participation in the killings and implicated General Fandiño who had become commander of the 17th Brigade in November 2005. General Hector Fandiño was called to make a statement in December 2010. Reportedly, investigations have subsequently been opened against General Fandiño and Colonel Néstor Duque, the previous commander, for the 2005 incident.

The level of accountability for those crimes was limited, the report finds: "With respect to commissioned officers of the armed forces, the Office has gathered information on 52 convictions rendered in regard to alleged false positives incidents with sentences between 24 months and 51 years of imprisonment. The convictions are against one colonel, three lieutenant colonels, eight majors, 16 captains and 24 lieutenants."

In the last paragraph of the report, the Court mades it clear that it expects much more from the Colombian state in demanding responsibility at top levels: "while numerous members of the armed forces have been investigated and disciplinary measures, criminal convictions and prison sentences issued, the proceedings have not focused on the responsibility of those at senior levels for the occurrence of such crimes." (Emphasis added).

The report includes a table listing convictions of Colombian military officers for all crimes under Court's jurisdiction (not just the "false positives"). It didn't include a single general, lieutenant general, major general or brigadier general (the four highest ranks in Colombian armed forces).

Susana Pimiento for Fellowship of Reconciliation, Nov. 29