About the author(s):
Associate Professor and Director of the Legal Clinic at Universidad de La Sabana (Colombia). Holds a law degree from Javeriana University; a Master in Human Rights from Externado University; an LL.M. in International Legal Studies from NYU and is pursuing her Ph.D. at UNAM. She has advised and extensively published in matters of international law and transitional justice. She has represented Colombia, Chile and Bolivia before the Inter-American Court of Human Rights. As part of the Office of the High Commissioner for Peace, she participated in the Colombian peace process. She presided the Colombian Academy of International Law and is currently a member of the Editorial Board of the International Review of the Red Cross.
I want to start by saying that I have always maintained that international law should be a tool rather than an obstacle to peace negotiations; particularly in a world where there are still more that 74 non-international armed conflicts across 25 countries. But if we look at international law today, this is not exactly the case. First, as Freeman points out in his post, there is no international law on negotiation as a means of preventing or ending non-international armed conflicts.
Second, if we look at the norms about war and justice, several problematic issues arise. On the one hand, the sources of international law are dispersed, and the scope of the law is often ambiguous. This creates enormous legal uncertainty for the negotiations. On the other hand, it seems that international human rights law has captured the discussion of standards regarding transitional justice. Moreover, the laws of war have until now been underestimated, especially regarding the parameters and limits of negotiations, even though it states the only hard law provision on amnesties. Indeed, international humanitarian law establishes that at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict (article 6.5 of Protocol II to the Geneva Conventions).
As such, despite some consensus on the legal minimums that must be respected to avoid impunity pacts, there are still multiple levels of normative uncertainty. The first level of uncertainty is related to the interpretation of the scope of said minimums. For example, although consensus exists on the prohibition of granting amnesties for international crimes, there is still no consensus on whether this prohibition includes the punishment of all those responsible or only the most responsible. There are also wider questions that do not have unique answers in international law. For example, is traditional justice always better justice? Do amnesties always imply sacrificing the obligation to prosecute, judge, and punish? Or conditional amnesties could help to fulfill this obligation in a different way?
The second level of uncertainty relates to the possible legal responses to fill the normative gaps regarding the design of transitional justice mechanisms. Is it up to international law to fill in all these gaps with content, or is this a prevailing task of the negotiating parties and of the societies living through the transition? The proposed principles of flexibility and local ownership in the indicative text (Password: 2021-PTI) are important parameters to answer this type on unanswered questions.
The legal uncertainty is not only a disincentive for negotiations in the first place, but it also risks prolonging violent conflict or even tipping back into it. Furthermore, there is currently a tendency towards problematic interpretations of the international obligations of states in contexts of transitions, such as the trend of some of the international forums to copy and paste the rules of transitions from dictatorship to democracy, to the contemporary reality of transitions from armed conflict to peace, even when political negotiations are involved.
Based on the above, I agree with Freeman in that it is very important to give space in international law to an instrument that generates incentives and provides guidance to States to initiate, advance, and implement peace negotiations. Thus, I celebrate the objectives contained in the indicative text of this treaty. If this instrument also helps as Freeman points out to provide “legal clarity on key questions of international law that negotiators systematically encounter”, this will certainly serve, among other things, as a tool to mitigate the risk of a relapse into violent conflict.
Presumption of conformity?
One of the most innovative provisions of the indicative text is article 12, which states that a signed peace accord should enjoy a “Presumption of Conformity” except if:
“(…) following a procedure to be determined by the Conference of States Parties, more than half of the States Parties declare that the terms of the written accord as they relate to atrocity crimes, including any conditional amnesty: (i) are unnecessary for achieving the objective of this Convention, particularly the prevention or resolution of armed conflict; (ii) lack appropriate accountability conditions or obligations in regard to relevant individuals and entities; and (iii) neglect to incorporate targeted measures addressing the needs of victims, including with respect to missing and disappeared persons”.
The main objective of this provision seems, as Freeman points out, to provide “as much legitimacy, stability, and recognition as possible, taking into account the most reasonable and objective readings of applicable international law”. Indeed, this is of the outmost importance for many reasons, including the eventual intervention of international bodies such as the Inter-American Court and the International Criminal Court.
However, I would like to suggest a slight improvement. My main concern is that the treaty might increase the problem by allowing space for the presumption of conformity to be undermined by international politics, especially bearing in mind the current trends of populist regimes. For example, I see a serious risk in allowing for a broad or ambiguous understanding of certain statements such as “lack of appropriate accountability” or “needs of victims”. Second, although the preamble states that this presumption should only be able to be disproved “by a preponderance of evidence”, the wording of the article is open and leaves too much room over what constitutes enough evidence, making the threshold seem low. Third, I am not sure that this presumption (as it is in now worded in the text) is going to have a binding effect on human right’s courts or on the International Criminal Court. I see that it is the tendency of the courts to do the exact opposite: that is, that political decisions (even popular votes – See Gelman vs. Uruguay) do not affect the judicial review of measures such as amnesties.
Rather, it might be better to establish minimums derived from the convergence between international human rights law, international humanitarian law, and international criminal law, and subsequently hold that the rest remains for the “threshold of societies”. These minimums could act as objective criteria for the state parties to rebut the said presumption and could also be an objective guidance for international courts.
In my doctoral thesis (currently in the final stage), I intend to precisely propose that: minimum rules regarding what and how to prosecute. Hence, although there is a wide margin for states to define their criminal policy, particularly in transitional justice contexts, I identify the following inviolable rules that derive from international law, even for negotiated models of justice: (i) the prohibition of adopting unconditional amnesties for the commission of international crimes; (ii) the imprescriptibility of international crimes; (iii) the aut dedere aut judicare, or “extradite or prosecute” clause; (iv) the existence of an adequate sanction (not necessarily prison), and (v) effective victim participation in transitional justice mechanisms. Out of these minimum rules, there should be complete discretion for societies to design the best ways to balance all principles and obligations that are involved, overcoming the false dilemma between peace and justice. I believe the contribution of the treaty in this regard, could be unprecedented and invaluable.