The transitional justice body in Colombia, the Special Jurisdiction for Peace, or the JEP, found that between 2002 and 2008, the Colombian military murdered at least 6,402 civilians and passed them off as armed insurgents.[1] Being the birthplace of magical realism, it is haunting how the False Positive scandal seemingly belongs in a Gabriel García Márquez novel. Yet, this atrocity exists in our reality, and the Colombian people are still searching for justice in its wake.
In 2002, the Colombian military instituted an incentive system which rewarded soldiers for reporting higher kill counts during the armed conflict between the Colombian military, leftist guerrilla groups, and right-wing paramilitaries. This resulted in soldiers luring young, impoverished men into the countryside with promises of work, only to execute them and stage their bodies as insurgents to report as combat kills. After the 2016 Peace Accords ending the civil war, the Special Jurisdiction of Peace (JEP) was created to investigate, prosecute, and punish those responsible for human rights violations during the armed conflict.
However, to date no government official tied to the False Positive scandal has been indicted for their responsibility. This is partly due to the fact that one year after the 2016 Peace Agreement, the Colombian Constitutional Court decided in Ruling C-674 that only two groups of people can be prosecuted by the JEP for crimes related to the armed conflict: FARC and the Colombian military. Victims have criticized the Court’s ruling for protecting civilian actors from JEP jurisdiction, calling for the prosecution of government officials in power during the False Positive scandal. Specifically, they seek the prosecution of former President Álvaro Uribe, under whose administration the majority of False Positive deaths occurred, and his defense Minister, Juan Manuel Santos.[2] Álvaro Uribe was president from 2002 to 2010. He was known for his Democratic Security policy which promised more military intervention against the guerrillas. Juan Manuel Santos, who became the president of Colombia from 2010 to 2018, served as Minister of Defense under President Uribe from 2006 to 2009. This fact is especially paradoxical, considering that President Santos was awarded the Nobel Peace Prize in 2016 for his work on the Peace Accords.
The majority of scholarship on the False Positives scandal analyzes how the incentive structure created by the Colombian military led to the extrajudicial killings of civilians. Human Rights Watch published a report in 2015, titled On Their Watch : Evidence of Senior Army Officers’ Responsibility for False Positive Killings in Colombia. This report containedevidence of senior military and government officials failing to stop extrajudicial killings from occurring when they received evidence that their self-enforced incentive structure caused False Positive deaths.[3] In “The Perils of High-Powered Incentives: Evidence from Colombia’s False Positives” published in the American Economic Journal: Economic Policy, Daron Acemoglu, Leopoldo Fergusson, James Robinson, Dario Romero, and Juan F. Vargas studied the correlation between kill count incentives and the number of reported False Positive deaths, demonstrating a direct correlation between the number of extrajudicial killings and the implementation of the incentive structure. Justin Perry in “Can the Government Police Itself? Colombia’s False Positives Scandal and Its Lessons for Atrocity Prevention,” published in the SAIS Review of International Affairs, argues that the Sistema de Alertas Tempranas (SAT), established by the Colombian government in 2001 to flag human rights violations, failed to catch the False Positives scandal because it existed in the executive, and not judicial branch.[4] The alert system existed in the executive branch, which became problematic when it was the Colombian government, namely President Uribe’s office, that pressured the Colombian military to report higher combat kill counts.[5]
There is a gap in scholarship on the ties between civilian actors and culpability with the False Positive scandal. I aim to put scholarship on the False Positives scandal in conversation with theories of superior responsibility and international law. I will examine cases in which civilian actors have been prosecuted for the actions of their subordinates in the past to illuminate how superior responsibility has been applied in other contexts. I will also discuss how the Rome Statute, the governing treaty of the International Criminal Court, understands civilian responsibility. Additionally, President Uribe and President Santos are relevant case studies in understanding the challenges of prosecuting non-military perpetrators in post-conflict societies. These two officials are not the only ones implicated in the False Positives scandal. Nonetheless, I focus on them so that I can provide substantive evidence within the scope of this paper. Further, their positions as President and Minister of Defense allows for comparison with the prosecution of other high ranking government officials.
I argue that leaders in the Colombian government during the False Positives scandal, namely President Uribe and President Santos, bear responsibility under the Doctrine of Superior Responsibility for their failure to prevent or punish widespread extrajudicial executions. The JEP’s failure to prosecute non-civilian perpetrators reveals an implicit amnesty for civilian political figures in the Colombian transitional justice system. To highlight how the JEP has failed to prosecute third party civilians for their contribution to the False Positives scandal, I will begin by providing a brief history of the armed conflict in Colombia and the False Positives scandal. Then, I will discuss the Doctrine of Superior Responsibility— its principles, history, and jurisprudence in international law. Using Article 28 of the Rome Statute, I will demonstrate that Uribe and Santos are legally responsible for the actions of subordinate military officials. Then, I will explore what the failure to prosecute them means for transitional justice in Colombia, namely how the Court’s C-674 ruling fails to account for civilians who are a part of the military structure. Lastly, I will explore how international courts have failed to invoke Article 28 to prosecute civilian superiors.
Historical and Political Context
Colombia has a long history of internal armed conflict. Violence in Colombia began in the latter half of the 19th century between elites and farmers over land. A decade of violence, known asla Violencia, ensued in 1948 after the assasination of the anti-establishment Liberal Party presidential candidate, Jorge Gaitan.[6] The Liberal and Conservative parties agreed to end the violence in 1958, leaving 200,000 Colombians— primarily impoverished farmers— dead.[7] During la Violencia, peasant farmers began to organize and take up arms to defend their communities. This resulted in the rise of several guerrilla movements in the 1960s: the Revolutionary Armed Forces of Colombia (FARC), and the Army of National Liberations (ELN).[8] By 1991, almost all of the ELN was demobilized and involved in the creation of a new Colombian constitution. However, the FARC persisted until peace agreements were signed in 2016 to officially end the civil war.
Right-wing paramilitary groups began to form in the 1960s along with the leftist guerilla movements, but they gained significant strength and political power in the 1990s.[9] Many public officials, typically at the local government level, commended the actions of these militant groups, using them to carry out actions otherwise illegal for the Colombian military.[10] In 2002, Álvaro Uribe ran for President on the promise that he would sign peace agreements with the paramilitary groups. After his election, he instituted a policy of “Democratic Security” which mobilized resources to increase military action.[11] Backed by the United States, Uribe’s administration successfully used the Colombian military to regain control of several key areas of the country, forcing FARC onto the defensive. Uribe’s success in combatting FARC, and his demobilization of 30,000 paramilitaries during his first administration, led to his reelection in 2006.[12]
Nearly a decade later, the armed conflict officially ended on November 24, 2016, when FARC and the Colombian military signed peace agreements in Havana, Cuba.[13] Juan Manuel Santos, President Uribe’s Minister of Defense from 2006 to 2009, was awarded the Nobel Peace Prize in the same year for his work on the peace accords. In the end, the Truth Commission in Colombia estimated that over 450,000 homicides were committed by both state and non-state actors between 1985 and 2013. Paramilitary groups were named the main perpetrators of the violence, responsible for approximately 45% of deaths.[14] Guerrilla groups and state actors represented 27% and 12% of violence, respectively.[15]
The False Positives Scandal
Following his election in 2002, President Uribe increased the size of the military and “strengthened their incentives to fight the guerrillas.”[16] One such incentive included a policy which rewarded soldiers and officers for reporting higher kill counts from the ongoing conflict between the Colombian military, leftist guerilla groups, and right-wing paramilitaries. In response, the Colombian military created a reward system which paid soldiers specified amounts for the number of combat kills reported. Justin Perry cites a military document which outlines the system: “500,000 pesos for an enemy killed holding a pistol, 2,000,000 if they had a rifle, and 30,000,000 if six or more were killed at once.”[17] A document from the Seventh Division of the army states, “If a commander doesn’t report kills, there are 250 lieutenant colonels waiting in line,” alluding to the unspoken threat on military officials that if they fail to meet combat kill standards, they would be removed from their position.[18]
This immense pressure by the military to report high combat kills resulted in soldiers murdering civilians and falsely representing them as insurgents to meet the standards expected of them. Typically, soldiers lured young men from impoverished neighborhoods in and around the nation’s capital, Bogotá, with promises of work.[19] Once in the countryside, soldiers would execute the civilians and dress them in guerilla uniforms and stage their bodies with weapons to make them appear as leftist insurgents. It is estimated that between 2002 and 2008, 6,402 civilians were murdered by the Colombian military.[20]
In 2008, the False Positives scandal broke to the public when dozens of young men from Soacha, an impoverished neighborhood on the outskirts of Bogotá, were found in a mass grave in the north of the country.[21] Soon, more evidence of other False Positive deaths revealed a pattern of violence leading back to the military. To investigate further, Phillip Alston, the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions, traveled to Colombia in 2008 to investigate the scandal. In his report to the UN, Alston argued the “killings were influenced by state policy that instigated soldiers to commit crimes, but also found ‘no evidence to suggest that these killings were committed as part of an official policy or that they were ordered by senior Government officials.’ The Colombian state may not have directly ordered crimes to be committed, but it did enact a policy that predisposed agents of the state to commit crimes.”[22]
In 2006, President Uribe appointed Juan Manuel Santos as Minister of Defense, a position he held for the next three years. The False Positive killings had been occurring for several years before Santos took office.[23] However, when news of the extrajudicial killings came to his attention, he refused to take action to stop False Positive deaths for over a year. It would not be until the Soacha scandal broke, revealing the False Positive scandal to the public, that Santos’ confidence in the Colombian military began to shake. Although President Santos, acting as President Uribe’s Minister of Defense at the time, would eventually order an investigation in 2008 that led to one of the largest purges in the history of the Colombian Armed Forces, the years that he failed to act on credible testimony given to him raises alarm.
Despite this evidence and President Santos’ own admittance that he knew about and failed to prevent False Positive deaths for years, he has never been investigated nor prosecuted for his involvement in the False Positive scandal. Many families of the victims express dissatisfaction with the Colombian transitional justice system for their failure to prosecute a high ranking government official for their complicity in the killings. Vanessa Buschschlüter for the BBC reported in 2023 that after the President at the time, Gustavo Petro, officially apologized to the victims’ families for the False Positives scandal on behalf of the Colombian government, the families were still unsatisfied because no government or military leaders in power during the scandal released a statement admitting guilt and asking for forgiveness. Buschschlüter reported that victims’ families specifically called for President Uribe and President Santos to publicly acknowledge their involvement. Florinda Hernández, whose son Elkin was killed in 2008, said “It should have been Juan Manuel Santos who should have been present to show his face and ask us for forgiveness.”[24] Jackelin Castillo, the leader of the group representing the mothers of False Positives victims, said that “our fight does not end here, we will continue to search for the real culprits, those who gave the order to commit these crimes.”[25]
This begs the question: why have President Uribe or President Santos never been prosecuted for their involvement in the False Positives scandal? Examining the precedent of prosecuting government officials in international law and how the judicial system in Colombia operates uncovers a disturbing loophole of how non-military state actors can evade justice for crimes they bear responsibility for.
Defining the Doctrine of Superior Responsibility
Superior responsibility is a legal doctrine that holds superiors accountable for the actions of their subordinates.[26] In Command Responsibility and its Applicability to Civilian Superiors, Maria Nybondas defines superior responsibility as the “basis for criminal responsibility where the superior did not physically commit or give an order to commit a crime, but where he omitted to stop the commission of any such crime, or where he did not take the necessary steps to punish the offenders.”[27] The first reference to superior responsibility in modern international law is in Article I of the Hague Regulations. Created by Hague Convention IV of 1907, Article I outlines the “laws, rights, and duties of war” that apply to armies and volunteer corps if they fulfil the condition of being “commanded by a person responsible for his subordinates.”[28] While this provision reflects the idea of responsible command, it does not explicitly outline the responsibility a superior has for the criminal acts committed by subordinates.
Post-WWII jurisprudence, without a comprehensive definition of superior responsibility, does not have a cohesive pattern of prosecuting superiors for the actions of their subordinates. Nyboda argues that post-WWII courts relied mainly on domestic law, as well as “general principles of law or even morality.”[29] The Geneva Conventions, adopted in 1949, also did not explicitly mention superior responsibility or outline crimes of omission.
Explicit treaty codification of superior responsibility would not come until 1977, with the Additional Protocols added onto the Geneva Convention. Article 86, titled “Failure to Act,” and Article 87, titled “Duty of Commanders,” outlined the necessary conditions for a superior to be held responsible for the actions of subordinates. Article 86 states that a superior can be held responsible for the crimes of their subordinate if “they knew, or had information which should have enabled them to conclude in the circumstances at the time” that the subordinate was committing or planning to commit such a crime.[30] Article 87 states that superiors have a duty to “control, to prevent and, where necessary, to suppress and report” any breaches of the Geneva Convention.[31]
However, the most comprehensive provision in the history of the Doctrine of Superior Responsibility is the Rome Statute, adopted in 1998. Article 28 of the Rome Statute, titled “Responsibility of commanders and other superiors,” has two sections. The first outlines the requirements to prosecute a military commander for the crimes committed by the forces under their control, while the second outlines the requirements to prosecute “superior and subordinate relationships not described” in Section 1.[32] Article 28, Section 2 of the Rome Statute states:
A superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
- The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
- The crimes concerned activities that were within the effective responsibility and control of the superior; and
- The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.[33]
Only when these three requirements are met— knowledge, control, and failure to act— can a civilian superior be held responsible for the crimes of subordinates under Article 28 of the Rome statute. Article 28 has the highest standard of qualifications necessary to trigger superior responsibility. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), working in the 1990s and early 2000s, did not require proof of a causal link between a superior’s position and the action of the subordinate. In other words, the ICTY and ICTR did not require Article 28(2) section B, which requires the action in question was in the effective control of the superior authority.[34]
Precedent of Superior Responsibility in International Law
With numerous international instruments that use superior responsibility as a means of culpability, application of the doctrine is not uniform throughout jurisprudence. However, superior responsibility in international law began in post-WWII jurisprudence. Although an overwhelming majority of prosecutions were of military officials, several civilian actors were prosecuted for the crimes committed by their subordinates. The International Military Tribunal for the Far East, or Tokyo Tribunal, convicted military and civilian officials under the Doctrine of Superior Responsibility.
Two foreign ministers, Hirot and Shigemitsu, were convicted for their failure to act on reports of war crimes under Count 55, which stated that defendants “deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches” of the laws of war.[35] Hirot received reports of the Nanking massacre, so he followed up with the War Ministry about the alleged war crimes. When the military assured Hirot that the claims were false, he “was content to rely on assurances which he knew were not being implemented” rather than “insisting before the Cabinet that immediate action be taken to put an end to the atrocities.”[36] Similarly, Shigemitsu ignored protests from the Allied Powers regarding the treatment of prisoners-of-war. The Tokyo Tribunal “emphasized Shigemitsu’s failure to take adequate steps to investigate the matter.”[37]
The Tribunal found Hirot and Shigemitsu guilty for not investigating valid claims that war crimes were occurring by the military, even though they were not military officers but ministers of the Japanese government. Yael Ronen in “Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings” notes that “Importantly, neither case involved a claim that the Minister was the direct or indirect superior of the perpetrators… The ministers’ responsibility under Count 55 was based on their dereliction of duty as members of the governmental collective.”[38] Unlike the requirements set out by Article 28, the Tokyo Tribunal did not require a clear causal link between the ministers and the perpetrators committing war crimes.[39] For the Tokyo Tribunal, holding a government position entails a duty to protect civilians and obey the laws of war. Violating this duty by neglecting to thoroughly investigate evidence of war crimes thus invokes the Doctrine of Superior Responsibility. Other than the cases of Hirot and Shigemitsu, Ronen notes that the Tokyo judgments “do not clearly address superior responsibility and instead focus on direct responsibility.”[40]
In the 1990s, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) would more clearly define superior responsibility and reference post-WWII jurisprudence as precedent. In contrast to Hirot and Shigemitsu, the majority of cases from the ICTY and ICTR involve civilians acting as militant officials, not civilians in government roles.[41] In the ICTY cases Čelebići and Aleksovki, the defendants were the de facto commanders of prison camps where civilians and combatants were held during the Bosnian genocide.[42] In both instances, the defendants were civilian actors who found themselves acting in the roles of military commanders. The ICTY indicted them for failing to stop the crimes of their subordinates, but in neither case was the civilian or militant status of the defendants made clear.[43]
Similarly, the ICTR convicted Jean Kambanda, Prime Minister of Rwanda from April 8, 1994, to July 17, 1994, for “crimes against humanity in connection with crimes committed by his subordinate prefects, bourgmestres, other administrative functionaries, and various armed forces and groups.”[44] However, Kambanda’s conviction was based on indirect responsibility and direct responsibility for carrying out crimes during the Rwanda genocide, so his culpability solely by virtue of superior responsibility was not explicitly differentiated.
Superior Responsibility of President Uribe and President Santos
President Uribe, in office from 2002 to 2010, and President Santos, acting as the Minister of Defense of Colombia from 2006 to 2008, are responsible for the crimes committed by subordinates in the False Positives scandal by virtue of Article 28(2) of the Rome Statute.[45] Beginning with the first requirement: “The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.”[46] In a voluntary testimony in front of Colombia’s Truth and Reconciliation Commission, President Santos admitted that in 2007, he received reports from families and human rights organizations that the Colombian military was luring young men to the countryside with promises of work where they would be executed and reported as guerrillas killed in combat. Santos testified that “At first, these reports seemed isolated or implausible. Our institutions were not prepared to imagine that members of the Army themselves might be involved in such acts. Many officials— myself included— initially assumed these were cases of confusion, errors in identification, or even false accusations promoted by adversaries of the government.”[47] Santos admitted to consciously disregarding information that clearly indicated subordinates were committing, or planning to commit these crimes. He commented that his own cognitive dissonance prevented him from taking any action until the Soacha massacre broke to the public.
If Santos knew about the False Positive scandal in 2007, it is likely that Uribe, as President, would also have some knowledge of the killings. However, to date Uribe has not testified in front of a judicial or investigative body about his knowledge of the scandal. Even so, the Human Rights Watch 2015 report, On Their Watch : Evidence of Senior Army Officers’ Responsibility for False Positive Killings in Colombia, reports that the False Positive killings were not unknown to Santos, or Uribe, at the time the Soacha massacre became public: “When the Soacha false positives scandal erupted, ‘the type of army crimes… was not unknown— neither to the military leadership nor to the Minister of Defense, nor to the President of the country, Alvaro Uribe Velez.”[48] Santos’ testimony along with the Human Rights Watch report prove how Santos willfully disregarded credible evidence, meeting the first requirement of Article 28 (2) for superior responsibility. As for Uribe, evidence of what he knew when is less concrete, but it is widely accepted that he knew about the killings long before there was any action to stop them.
The second requirement is: “The crimes concerned activities that were within the effective responsibility and control of the superior.”[49] The Latin American Security and Defense Network defines the responsibilities for the Minister of Defense of Colombia as:
The Ministry of Defence conducts the Military Forces and the National Police as ordered by the President, formulating and adopting the sector policies, general plans, programmes and projects for the defence of the sovereignty, independence and territorial integrity of the nation as well as to maintain the constitutional order and guarantee a democratic co-existence. The National Ministry of Defence counts on the immediate assistance of the General Commander of the Military Forces, the Commanders of the Armed Forces, the General Director of the National Police and the Vice Minister.[50]
Under this definition, Santos was responsible for maintaining constitutional order by ensuring the military was not committing human rights violations. The Ministry of Defense is a separate institution from the military, but as noted in the definition, the operations of the Ministry is dependent on communication and cooperation with the military. Investigating the False Positive deaths fell under Santo’s responsibility as Minister of Defense. Further, the description above states that the Minister of Defense executes their responsibilities as ordered by the President. President Uribe thus was responsible for overseeing the military and Santos.
Furthermore, precedent supports the notion that government officials have effective control over military actions enough to be held culpable under superior responsibility. The Tokyo Tribunal convicted Hirot and Shigemitsu for their failure to prevent Japanese war crimes when reports of such crimes came to their attention. Hirot and Shigemitsu were Foreign Ministers, not part of the Japanese military. Arguably, Santos was more connected to the military than Hirot and Shigemitsu because his office was directly connected to the military branch. Nonetheless, President Santos meets the effective control requirement of Article 28(2) under the definition of his title, actions he would ultimately take to end False Positive deaths, and legal precedent which employs superior responsibility for government ministers.
As for whether Santos and Uribe had effective control over the brigades responsible for the killings, the actions he took following the Soacha massacre reveals that he had effective control over the military to order an investigation and remove military officials from their high ranking positions. Santos testified in front of Colombia’s Truth and Reconciliation Commission that after the Soacha scandal broke to the public in 2008, he immediately ordered an investigation into the scandal, and weeks later, the truth of what the military had been doing for years was finally admitted to by the Colombian government. Twenty seven Army officers were dismissed, one of the biggest purges in Colombian military history. The fact that Santos took action to order an investigation and dismiss twenty seven officers only weeks after the Soacha massacre illustrates the control Santos wielded as Minister of Defense. If only he had taken the same action in the year from his first knowledge of the killings to Soacha, countless lives would have been saved. As for Uribe, the Colombian president is also the Commander-in-Chief of the armed forces, wielding power over the entire military branch. Claims that Uribe lacked effective control against military officials is illogical.
The third and final requirement is: “The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”[51] Here, it is crucial to differentiate between legal and moral culpability. While President Santos’ action following the Soacha scandal may be important context, someone’s actions following a crime does not in some way undo the crime that has been committed. President Santos knew for at least a year that credible evidence existed concerning the Colombian military committing extrajudicial killings of civilians to report higher kill counts, as the evidence for the first requirement indicates. His Nobel Peace Prize does not counteract this fact.
The third clause has a crucial distinction— the superior failed to take all reasonable measures within their power or failed to report the matter to the appropriate authorities for an investigation. Santos failed to report the matter to the appropriate judicial bodies to carry out an internal investigation of the scandal until the Soacha scandal broke. Santos, as Minister of Defense, was the one who ordered the internal investigation in October 2008, which led to the dismissal of 27 military officials. This indicates that it was within his role, as Minister of Defense, to order such an investigation. Santos, within the scope of his title, failed to report the evidence to appropriate authorities to conduct an investigation, meeting the third and final requirement of Article 28 (2).
Turning to President Uribe, it is distressing that for six years under his leadership False Positive deaths were occurring. The year that Uribe took office, in 2002, False Positive deaths rose dramatically until the Soacha massacre in 2008 was leaked to the public.[52] As President of Colombia, and Commander-in-Chief of the Armed Forces, Uribe had many avenues to investigate, prosecute, and punish those responsible for the executions. However, it would take six years for any action to be done; this ultimately came from Santos, not Uribe. President Uribe did not order Santos to begin an investigation after the Soacha massacre; Santos began the investigation under his own volition. Uribe, as President of Colombia, failed to alert the appropriate individuals of evidence and order an investigation, meeting the third and final requirement of Article 28 (2).
The Special Jurisdiction for Peace and the C-674 Ruling
Despite the evidence that President Santos meets all three requirements under Article 28(2) to be responsible for the crimes of his subordinates, barriers in Colombian and international law protect Santos from prosecution. The 2016 Peace Agreement between the Colombian military and FARC outlined a transitional justice framework for Colombia, including the creation of a truth commission and the Special Jurisdiction for Peace. The Special Jurisdiction for Peace (JEP) is a judicial body created to investigate and prosecute crimes during the armed conflict. The 2016 Peace Agreement outlines various goals of the JEP, including the realization of victims’ rights, guarantees of non-recurrence, and the creation of reparations. On the goal of accountability, the treaty states: “Accountability, through the establishment of responsibilities, of everyone involved in the conflict, directly or indirectly, as combatants or non-combatants, shall assume their share of responsibility for the serious violations and infringements committed in the context of and due to the armed conflict.”[53] To realize this goal, the JEP was created to investigate, prosecute, and punish crimes related to the armed conflict in Colombia.
There are six bodies of the JEP: the main Peace Tribunal, three smaller chambers, and two offices. A case moves through each chamber chronologically, beginning with the Truth and Reconciliation Chamber which offers defendants the opportunity to confess to their victims. Then, defendants move to the Amnesty and Pardon Chamber, where judges decide which crimes qualify for pardons and which do not. Lastly, the case moves to the Sentencing Chamber, where restorative justice, rather than punitive sentences, is the end goal.[54] If defendants take accountability for their crimes, then they avoid prison sentencing and must perform other forms of reparations to their victims.[55] However, if defendants refuse to take accountability, their case moves into the Colombian criminal court system. If found guilty, they would be sentenced to serve time in prison rather than partake in restorative justice. The JEP has a case number system, which categorizes investigations and trials into 11 macrocases. The Investigation Unit, consisting of sixteen prosecutors, gathers evidence for each macrocase. Cases cover a wide range of crimes, including the FARC kidnappings and paramilitary extermination of leftist groups. Case 3 encompasses everything related to the False Positives scandal.
Almost a decade after its creation, the JEP released its first judgments. On September 16 and 18 of 2025, the JEP handed down its first convictions, nearly nine years after its establishment by the 2016 Peace Agreement between the Revolutionary Armed Forces of Colombia (FARC-EP) and the Colombian government. Justice for Colombia reported that the JEP “sentenced 12 officers and soldiers in the Popa Battalion to between five and eight years of restorative justice for the murders or forced disappearances of 135 civilians in Colombia’s Caribbean region from 2002 to 2005.”[56]
Notably, civilian actors and government officials were not prosecuted, or even investigated, for their involvement in the False Positive scandal. This is due to a jurisdictional restriction the Colombian Constitution Court placed upon the JEP. In 2017, one year after the JEP was established by the peace accords, the Constitutional Court ruled in Sentence C-674 that the JEP’s mandatory jurisdiction over third party civilians was unconstitutional. Originally, the JEP had the power to investigate and prosecute any individuals they deemed responsible for humanitarian crimes in Colombia during the long armed conflict. In C-674, the Constitutional Court argued that while the JEP did have mandatory jurisdiction over two parties, the FARC and Colombian military, it did not have the same type of jurisdiction for third party civilians. In Colombia: The Special Jurisdiction for Peace — Analysis One Year and a Half After Its Entry into Operation, the International Commission of Jurists explains this distinction:
Over a third group (civilians and State agents who are not members of the military forces, such as politicians or public servants) the JEP has voluntary jurisdiction. This means that the JEP can investigate and prosecute the crimes committed during the conflict by members of the third group only if they accept JEP jurisdiction voluntarily. The voluntary acceptance of JEP jurisdiction is individual.[57]
The Court argued that this distinction between mandatory and voluntary jurisdiction was necessary to protect the constitutional right of third party civilians to a natural judge.[58] In “El derecho al juez natural ‑ como derecho humano ‑ y los tribunales militares en Colombia” Florabel Quispe Remón traces the history of the right to a natural judge in Colombian jurisprudence. The right to a natural judge means everybody has the right to (1) a court that is pre-established by law, (2) with a pre-existing jurisdiction, (3) that is ordinarily competent for that kind of defendant and conduct.[59]
The Colombian Constitutional Court in Sentence C-674 argued that while this right is not violated for FARC and military officials, it is for third party civilians. The JEP was established by the 2016 peace accords between the FARC and Colombian government. However, in Sentence C-674 the Constitutional Court argued that only individuals who participated directly in the armed conflict are subject to the provisions of the peace accord.[60] Government officials, not belonging to FARC or the military, were categorized as not directly involved in the conflict.[61] The Court concluded that in a peace negotiation, only those directly involved in the conflict are signers to the treaty. Since third party civilians, including government officials, were not classified as direct participants, they never agreed to accept JEP jurisdiction. This does not mean that third party civilians have amnesty, but rather they need to voluntarily elect for JEP jurisdiction— otherwise they fall under civil jurisdiction.
Fabio Estrada Valencia in “Terceros civiles y garantía del juez natural en la Jurisdicción Especial para la Paz: análisis de la Sentencia C-674 de 2017 desde una perspectiva transicional,” argues that the Constitutional Court wrongly characterized the JEP’s mandatory jurisdiction over third party civilians as violating the right to a natural judge because under a transitional-justice framework, the reform did not replace that principle but rather adapted it appropriately to Colombia’s post-conflict context. Valencia argues that “the lens through which the Constitutional Court examines the constitutionality of these reforms enacted in these scenarios must differ from that used in a context of normalcy” because ordinary criminal institutions are insufficient in meeting the needs of a transitional justice system.[62]
Further, the Constitutional Court is inconsistent with its treatment of the Constitution in transitional justice settings. In Judgment C-699 in 2016, the Constitutional Court addressed Articles 1 and 2 of the Legislative Act 01 of 2016 which implemented the Peace Agreement, which granted the President power to implement the provision of the treaty by bypassing certain legislative processes. The Court argued that the Constitution is to be understood differently in a transitional justice setting, and that the Colombian constitution “is characterized by giving its norms a relative, diverse, functionally differentiated resistance that is susceptible to adaptation to the transitional scenario.”[63] Another case, Judgement C-332 of 2017, examined articles of the Legislative Act 01 which regulated the special legislative procedure of peace, the investment plan for peace, and the classification of the Peace Agreement as a special treaty. The Court ruled that “constitutional reforms that contain instruments specific to transitional justice do not, by that fact alone, replace defining elements of the Political Charter, even if they establish exceptional and transitory tools that would not be applicable during ordinary periods of institutionalization.”[64]
The Court in C-674 did not follow the same legal reasoning outlined in these two cases. In C-674, the Court rigidly applied the right to a natural judge without considering the special context the provision existed within, and did not adapt the Constitution, as the Court argues for in C-699. This contradiction in Colombian case law places a protection on civilian actors from being prosecuted by the transitional justice system by not properly adapting their legal reasoning to the special circumstances they found themselves under.
President Uribe, Santos, or any other government official related to the False Positive scandal, has not been prosecuted by the Colombian criminal court system. This is a problem for several reasons. First, the Colombian transitional justice framework purports that its goal is victim centered and aimed at securing accountability for perpetrators who directly or indirectly contributed to human rights violations. Ignoring the calls of victims’ families to seek justice against President Santos is a disregard for the needs of victims. Second, the protection of government officials from JEP jurisdiction sets a dangerous precedent in Colombia for future prosecutions. Government involvement in the workings of right-wing paramilitary organizations, not discussed in this paper, is another high profile JEP macrocase. C-674 means any government superior involved in the case cannot be investigated by the JEP unless they willfully subject themselves to it, which no one has yet to do. Third, the prosecution of President Uribe and Santos would send a powerful message to the international community about crimes of omission and bearing superior responsibility. If a former head of state is prosecuted by the very transitional justice system he himself created, it proves that transitional justice is successful in prosecuting high ranking officials. Justice does not discriminate.
International Law and Invoking Article 28
To date, the ICC has not convicted anyone under Article 28(2). Article 28 has been rarely employed by the ICC, and when it has, it has been for military officials acting in superior roles. Thus, the most developed jurisprudence illustrating the ICC’s application of Article 28 is in a case about a military official. Prosecutor v. Jean-Pierre Bemba Gombo, first heard by the ICC in 2016, proceeded under Article 28(1). Bemba illustrates how the ICC understands “effective authority and control” and the scope of the “necessary and reasonable measures” requirement.[65] As the military leader of the Armée de libération du Congo in 2002, Bemba deployed his forces to the Central African Republic where they participated in the systematic murder and rape of civilians.[66] The ICC convicted Bemba in 2016 for failing to take necessary and reasonable measures to prevent and punish the war crimes committed by his subordinates. However, the 2018 Appeals Chamber reversed the conviction, arguing that the Trial Chamber applied an overly expansive interpretation of a commander’s duties.
Prosecutor v. Jean-Pierre Bemba Gombo and its acquittal underscores the ICC’s reluctance to impose superior responsibility without precise proof of knowledge and concrete failures of control—standards even more demanding for civilian superiors than for military commanders. Although charged as a military commander under Article 28(1), the ICC’s legal reasoning parallels the requirements under Article 28(2) — analyzing the challenges of attributing responsibility when a superior is geographically distant, reliant on imperfect reporting structures, or exercising dispersed forms of authority.
Nybonda notes how defining positions of power for civilians is more complicated than for military officials. The military has a hierarchical structure which clearly defines the superior-subordinate relationship. Since Article 28(2) does not comment on the level of authority which triggers superior responsibility, any civilian who exercises power over a subordinate falls under superior responsibility.[67] Nybonda notes that post-WWII jurisprudence required that civilian “defendants had been leaders, planners or belonged to the policy level,” but subsequent international tribunals never defined which civilians have superior responsibility and which do not.[68] The ICTY and ICTR operated under a case by case basis, and primarily prosecuted civilians acting in militant roles. However, the ICC’s difficulty with specifically defining the scope of authority of non-government officials does not apply to Santos. As discussed above, Santos’ responsibility and failure to act are clearly defined and not disputed. His responsibility as Minister of Defense to prevent and stop crimes of war and his ultimate action to end the False Positive scandal reveal how it was within his duty and power to act.
Other post-conflict societies in Latin America have prosecuted former heads of state for crimes of superior responsibility. However, they did not invoke Article 28 of the Rome Statute, but relied on other international law instruments to get a conviction. One such example is the trial of former Peru president, Alberot Fujimori (1990-2000). On April 7, 2009, the Special Criminal Court of the Peruvian Supreme Court convicted Fujimori guilty of human rights violations and sentenced him to 25 years in prison.[69] Jo-Marie Burt in “Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations,” notes that Fujimori’s conviction “marks the first time a democratically elected head of state has been extradited to his own country, put on trial for human rights violations, and convicted.”[70] Fujimori’s decade of reign was marked by fraud and state-sponsored violence against any who spoke out against the government, or supported the Communist terrorist group Shining Path.[71] In September 2007, Fujimori was extradited from Chile to Peru to stand trial for his crimes. He was ultimately convicted of aggravated homicide, assault, and kidnapping in three high profile cases: Barrios Altos, Cantuta, and Gorriti/Dyer.[72]
The judges relied on the concept autoría mediata, or perpetration by means, to prove his culpability. Burt writes that in Peruvian law, perpetration by means “is attributed to those who have dominion over an ‘organized power apparatus’ and thus have the power to order and direct the individual members of that apparatus to commit crimes.”[73] The judges found that the prosecutors had sufficiently proven that a former president, as Commadner in Cheif of the armed forces, “had direct control over the Colina Group, a military unit that operated from within the army intelligence services and that engaged in a number of extralegal killings, forced disappearances, and torture.”[74] Perpetration by means is not the same as superior responsibility because the latter encompasses cases when a superior failed to uphold their responsibilities, as well as cases when a person in power abuses their position to carry out crimes through other means. Nonetheless, the Fujimori trial and conviction reveal that there is hope in Latin America for former heads of state to be prosecuted, and offers another avenue for prosecutors to argue that government officials are responsible for human rights violations the military carries out.
As for international law, the ICC will most likely never prosecute President Uribe or President Santos. Santos, attributed as the creator of transitional justice in Colombia and winner of the Nobel Peace Prize, has legal protection from prosecution. Domestic law preventing the JEP from investigating Santos and the ICC’s reluctance to invoke Article 28 create a shield around him, allowing non-military officials to get off scot-free. President Uribe has been prosecuted by the Colombian criminal court in recent years, but not for crimes related to the False Positives scandal or superior responsibility as President from 2002 to 2010. On August 1, 2025, Uribe was sentenced to twelve years in prison for witness tampering and fraud.[75] The case involved claims that Uribe’s lawyer had offered to pay ex-paramilitaries to testify in Uribe’s favor.[76] While this conviction marks progress for the Colombian judicial system, as it is the first time as former Colombian president has been convicted of a crime, the case does not actually involve Uribe’s involvement with paramilitaries or the False Positive scandal— it is related tangentially with due process charges.
The case of President Uribe and President Santos reveal the many ways impunity is institutionalized into the judicial systems of post-conflict societies. Often, impunity takes the form of amnesty laws, where perpetrators are given blanket protection from prosecution. Even without amnesty laws in Colombia, and the active role the transitional justice system has played in investigating and prosecuting perpetrators, there still exists impunity for non-military government officials. It is crucial, for international law and transitional justice, to recognize that military actors are not the only perpetrators of violence. The crime of omission, the failure to prevent grave human rights violations, is a crime that needs to be recognized, investigated, and prosecuted in a court of law.
[1] U.S. Department of State, Human Rights Reports: Custom Report Excerpts for Bangladesh, Colombia, Honduras, Mexico, Nigeria, Philippines, South Africa, and Syria (Washington, D.C.: U.S. Department of State, 2021), accessed December 11, 2025, https://www.state.gov/report/custom/a4666c6778.
[2] Vanessa Buschschlüter,“‘False positives’: Colombian army apologises for killing civilians,” BBC News, October 4, 2023. Accessed October 31, 2025. https://www.bbc.com/news/world-latin-america-67005102.
[3] Max Schoening, and Human Rights Watch. On Their Watch : Evidence of Senior Army Officers’ Responsibility for False Positive Killings in Colombia. New York: Human Rights Watch, 2015.
[4] Justin Perry, “Can the Government Police Itself? Colombia’s False Positives Scandal and its Lessons for Atrocity Prevention,” The SAIS Review of International Affairs, August 5th, 2022, https://saisreview.sais.jhu.edu/colombia-false-positives-scandal-atrocity-prevention/.
[5] Id.
[6] Justice for Colombia, “Colombian Armed Conflict,” Justice for Colombia, accessed December 11, 2025, https://justiceforcolombia.org/about-colombia/colombian-armed-conflict/.
[7] Id.
[8] Id. For more on the history of guerrilla groups in Colombia, notably M-19, see The M-19’s ideological Sancocho: the reconciliation of socialism and Colombian nationalism by Mark Chernick.
[9] Jakob Meer and Francis O’Connor, “The M-19’s Ideological Sancocho: The Reconciliation of Socialism and Colombian Nationalism,” Small Wars & Insurgencies 32, no. 2 (October 2020): https://doi.org/10.1080/09592318.2020.182986.
[10] International Center for Transitional Justice (ICTJ), An Overview of Conflict in Colombia, fact sheet, January 1, 2009, https://www.ictj.org/sites/default/files/ICTJ-Colombia-Conflict-Facts-2009-English.pdf.
[11] Id.
[12] Id.
[13] Colombia, Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace (Bogotá: Government of Colombia, November 24, 2016), English translation by the Kroc Institute for International Peace Studies, University of Notre Dame, accessed October 31, 2025, https://peaceaccords.nd.edu/wp-content/uploads/2020/02/Colombian-Peace-Agreement-English-Translation.pdf.
[14] Statista, “How Many Victims Has Colombia’s Armed Conflict Claimed?” (chart), July 12, 2022, accessed December 11, 2025, https://www.statista.com/chart/27758/colombia-armed-conflict-number-of-victims/?srsltid=AfmBOoox61QJ1Axk0rmiIuTraU8lni1duxKiGX2ze1me7gzF2kqG_41X.
[15] Id.
[16] Daron Acemoglu, Leopoldo Fergusson, James A. Robinson, Dario Romero, and Juan F. Vargas, “The Perils of High-Powered Incentives: Evidence from Colombia’s False Positives,” American Economic Journal: Economic Policy 12, no. 3 (August 2020): 3.
[17] See Perry, supra note 4.
[18] Id.
[19] See Buschschlüter, supra note 2.
[20] Id.
[21] Amnesty International, Colombia: Seeking Justice: The Mothers of Soacha, January 2010, Index: AMR 23/002/2010, accessed December 11, 2025, https://www.amnesty.org/ar/wp-content/uploads/2021/07/amr230022010en.pdf.
[22] Perry, supra note 4.
[23] There were three Ministers of Defense before Santos between 2002 and 2008. Those include: Marta Lucía Ramírez, Jorge Alberto Uribe Echavarría, and Camilo Alfonso Ospina Bernal. While these officials also bear responsibility for being in power during the False Positives scandal, for this paper I am choosing to focus on Santos because he gave testimony before the Colombian Truth Commission about his knowledge of the False Positives scandal and failure to take action to investigate, prosecute, and punish.
[24] See supra note 2.
[25] Id.
[26] In this paper, I will be using the term Superior Responsibility rather than Command Responsibility since my focus is on non-military civilian actors, and Command Responsibility refers only to military individuals. Some authors use the terms interchangeably, but for clarity I will be using one. See Arnold and Jackson.
[27] Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (The Hague: T.M.C. Asser Press, 2010), 14.
[28] Id, at 12.
[29] Id, at 13.
[30] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), Article 86 — Failure to act, adopted 8 June 1977, United Nations, accessed December 11, 2025, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-86.
[31] Id, Article 87 — Respect for and ensure respect for the law (adopted 8 June 1977), United Nations, accessed December 11, 2025, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-87.
[32] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[33] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[34] Yael Ronen, “Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings,” Vanderbilt Journal of Transitional Law 43, no. 2 (2010): 322. Accessed October 31, 2025. https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1349&context=vjtl.
[35] The Tokyo Judgment, vols. XV–XVI, ed. B. V. A. Röling and C. F. Rüter (Amsterdam: Amsterdam University Press, 1977).
[36] Id.
[37] Ronen, supra note 34.
[38] Yael Ronen, “Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings,” Vanderbilt Journal of Transitional Law 43, no. 2 (2010): 322. Accessed October 31, 2025. https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1349&context=vjtl.
[39] The ICTY and the ICTR had lower standards than Article 28 of the Rome Statute to prove superior responsibility, not requiring a causal link between “the superior’s dereliction of duty and the commission of the crime.” Yael Ronen, “Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings,”Vanderbilt Journal of Transitional Law 43, no. 2 (2010): 316. Accessed October 31, 2025. https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1349&context=vjtl.
[40] Ronen, supra note 34, at 324.
[41] Id, at 320.
[42] Prosecutor v. Delalic, Case No. IT-96-21, Indictment, 2-3 (Mar. 21, 1996); Prosecutor v. Aleksovski, Case No. IT-95-14, Indictment, T 26 (Nov. 10, 1995).
[43] Two other highly studied ICTY cases handed down convictions using command responsibility, for Ratko Mladic and Radovan Karadzic. Since both were also examples of military leaders acting in militant roles, I chose not to expand upon them here. For more information, see PBS Frontline, “Timeline: Ratko Mladić and His Role in War Crimes During the Bosnian War,” PBS, March 19, 2019, accessed December 18, 2025, https://www.pbs.org/wgbh/frontline/article/timeline-ratko-mladic-and-his-role-in-war-crimes-during-the-bosnian-war/.PBS.
[44] Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, TT 39-40 (Sept. 4, 1998).
[45] Since Article 28 is the legal precedent the ICC acts under, and is the most comprehensive legal provision invoking superior responsibility, it is the legal framework I will be analyzing the actions of President Santos under.
[46] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[47] Juan Manuel Santos, “Juan Manuel Santos en Contribuciones a la Verdad,” YouTube video, June 11, 2021, posted by “Comisión para el Esclarecimiento de la Verdad,”translated by the author, https://www.youtube.com/watch?v=Ka9p-fuU8JQ.
[48] Max Schoening, and Human Rights Watch. On Their Watch : Evidence of Senior Army Officers’ Responsibility for False Positive Killings in Colombia. New York: Human Rights Watch, 2015, 38.
[49] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[50] A Comparative Atlas of Defence in Latin America and Caribbean: 2010 Edition, ed. Red de Seguridad y Defensa de América Latina (RESDAL) (Buenos Aires: RESDAL, 2010), 43, accessed December 11, 2025, https://www.resdal.org/ebook/AtlasRESDAL2010-eng/print/page43.pdf
[51] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[52] Daron Acemoglu, Leopoldo Fergusson, James A. Robinson, Dario Romero, and Juan F. Vargas, “The Perils of High-Powered Incentives: Evidence from Colombia’s False Positives,” American Economic Journal: Economic Policy 12, no. 3 (August 2020): 3.
[53] Colombia, Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace (Bogotá: Government of Colombia, November 24, 2016), English translation by the Kroc Institute for International Peace Studies, University of Notre Dame, accessed October 31, 2025, https://peaceaccords.nd.edu/wp-content/uploads/2020/02/Colombian-Peace-Agreement-English-Translation.pdf.
[54] Brian Harper and Holly K. Sonneland, “Explainer: Colombia’s Special Jurisdiction for Peace (JEP),” AS/COA (Americas Society/Council of the Americas), August 3, 2018, accessed December 11, 2025, https://www.as-coa.org/articles/explainer-colombias-special-jurisdiction-peace-jep.
[55] If a defendant confesses to their crime upfront, they serve five to eight years of alternate sentencing, which deprive them of personal liberties if the crime is serious, and two to five years if the crime is not. Alternative sentences include: house arrest, community service, and finding, identifying, and returning remains of the disappeared. For more, see Brian Harper and Holly K. Sonneland, “Explainer: Colombia’s Special Jurisdiction for Peace (JEP),” AS/COA (Americas Society/Council of the Americas), August 3, 2018, accessed December 11, 2025, https://www.as-coa.org/articles/explainer-colombias-special-jurisdiction-peace-jep.
[56] Justice for Colombia. “JEP Peace Court Issues First Sentences over Human Rights Violations during Armed Conflict.” September 25, 2025. https://justiceforcolombia.org/jep-peace-court-issues-first-sentences-over-human-rights-violations-during-armed-conf.
[57] International Commission of Jurists. Colombia: The Special Jurisdiction for Peace — Analysis One Year and a Half After Its Entry into Operation. Geneva: International Commission of Jurists, 2019. Pg. 10. https://www.icj.org/wp-content/uploads/2020/05/Colombia-Jurisd-para-la-paz-PUBLICATIONS-Reports-Fact-finding-mission-report-2019-ENG.pdf?utm_source=chatgpt.com.
[58] Corte Constitucional de Colombia. Sentencia C-674 de 2017 (Revisión del Acto Legislativo 01 de 2017, por medio del cual se crea un título de disposiciones transitorias para la terminación del conflicto armado y la construcción de una paz estable y duradera). Bogotá: Corte Constitucional, November 14, 2017. https://www.corteconstitucional.gov.co/relatoria/2017/C-674-17.htm.
[59] Florabel Quispe Remón, “El derecho al juez natural – como derecho humano – y los tribunales militares en Colombia,” Eunomía: Revista en Cultura de la Legalidad, no. 5 (September 2013 – March 2014): 118, https://e-revistas.uc3m.es/index.php/EUNOM/article/view/2150.
[60] Corte Constitucional de Colombia. Sentencia C-674 de 2017 (Revisión del Acto Legislativo 01 de 2017, por medio del cual se crea un título de disposiciones transitorias para la terminación del conflicto armado y la construcción de una paz estable y duradera). Bogotá: Corte Constitucional, November 14, 2017. https://www.corteconstitucional.gov.co/relatoria/2017/C-674-17.htm.
[61] Corte Constitucional de Colombia. Sentencia C-674 de 2017 (Revisión del Acto Legislativo 01 de 2017, por medio del cual se crea un título de disposiciones transitorias para la terminación del conflicto armado y la construcción de una paz estable y duradera). Bogotá: Corte Constitucional, November 14, 2017. https://www.corteconstitucional.gov.co/relatoria/2017/C-674-17.htm.
[62] Fabio Estrada Valencia, “Terceros civiles y garantía del juez natural en la Jurisdicción Especial para la Paz: análisis de la Sentencia C-674 de 2017 desde una perspectiva transicional,” Díkaion 31, no. 2 (2022): 6, translated by the author, https://doi.org/10.5294/dika.2022.31.2.8
[63] Corte Constitucional de Colombia, Sentencia C-699 de 2016, M.P. María Victoria Calle Correa, accessed December 11, 2025, translated by the author, https://www.corteconstitucional.gov.co/relatoria/2016/c-699-16.htm
[64] Corte Constitucional de Colombia, Sentencia C-546 de 1992, M.P. Ciro Angarita Barón y Alejandro Martínez Caballero, accessed December 11, 2025, translated by the author, https://www.corteconstitucional.gov.co/relatoria/1992/c-546-92.htm. Corte Constitucional
[65] Rome Statute of the International Criminal Court, adopted July 17, 1998, entered into force July 1, 2002, English text, International Criminal Court, 22, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[66] International Criminal Court, Case Information Sheet: The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, English, accessed December 11, 2025, https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/BembaEng.pdf.
[67] Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors (The Hague: T.M.C. Asser Press, 2010), 72.
[68] Id.
[69] Jo-Marie Burt, “Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations,” International Journal of Transitional Justice 3, no. 3 (November 1, 2009): 384, https://doi.org/10.1093/ijtj/ijp017.
[70] Id.
[71] Id, at 387.
[72] Id.
[73] Id, at 397.
[74] Id.
[75] Victoria Bourne, “Colombia’s Former President Álvaro Uribe Sentenced in Historic Witness-Tampering Case,” BBC News, August 1, 2025, accessed December 18, 2025, https://www.bbc.com/news/articles/c1ejz80qzxjo.
[76] Id.
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