I have never believed in such a thing as universal jurisdiction. It is a weird concept, product of the intellectual chimeras of elitist scholars, an illogical misconstruction, an affront to the very concept of justice. Judges and prosecutors who claim to have universal jurisdiction (that is, that they have the authority to investigate and try criminal cases regardless of where they occurred) abrogate for themselves a power that knows no borders and no limits. They recognize no power but their own. They claim to speak for humanity itself.
And having so much unchecked power in their hands inevitably turns them into bullies. This is exactly what has been going on for a while with the International Criminal Court and its treatment of Colombia. Since Colombia joined the ICC, representatives of that organism have used every second of their time to warn the government that they will intervene if the Colombian judicial system is incapable to prosecute and punish human rights violators.
Just this week, the ICC issued another such warning, and given that an existing moratorium on the Court’s actions in Colombia expired last week, the threat could materialize sooner rather than later. In theory, the Court will only investigate those cases in which Colombian justice has proven unable to deliver. As of today, Colombia is one of the seven countries that the ICC has under “official observation”, putting it in the same category as nations of the like of Afghanistan, Kenya, Cote d’Ivoire, Georgia, Guinea, and Palestine.
So we could have foreign prosecutors and judges investigating some of the most obscure and gruesome episodes of Colombia’s armed conflict. They will read the cases, question witnesses, and present people with charges for unresolved crimes. They will produce verdicts, pronounce sentences and levy fines. Somebody will be going to jail.
It would be easy to welcome actions by the ICC as a solution to the endemic impunity that Colombia has suffered throughout all of its history. If the state has been unable or unwilling to prosecute the numerous criminals and compensate the countless victims of the country’s internal conflict, let the ICC do it. Moreover, as an international body, the Court is not subject to the clientelism and the conflicts of interest that affect Colombia’s judiciary. As a result, the ICC will be more efficient, and its decisions much more impartial and legitimate. Finally, some justice.
This is precisely the wrong point of view in this matter. An eventual intervention by the ICC would have no legitimacy whatsoever, no foundation in Colombia’s constitution, and very poor, counterproductive results. Let me put this in the most straightforward way possible: The crimes that the ICC wants to investigate were committed in Colombia, by Colombians, and against other Colombians. I find it utterly fantastic that a court that sits in Europe claims to have the authority to investigate those crimes.
When the Constitutional Assembly drafted the 1991 Constitution, the monopoly of justice was given to the judiciary branch of the Colombian state. In a referendum, the sovereign people of Colombia approved the adoption of that Constitution, branding it with legitimacy. Since then, Colombian judges and magistrates are constitutionally mandated to base their decisions exclusively on Colombian law, law which has been passed by a popularly elected Congress, ratified by a popularly elected President, and scrutinized and accepted by the Constitutional Court.
But now Colombia is on the brink of surrendering its exclusive right to prosecute its own criminals to the ICC. The country is submitting itself to being bullied, in the most colonial-like fashion, by a bunch of unelected judges and prosecutors who hail from wealthy nations, accountable to no one, and whose inflated egos lead them to believe that they are the universal bearers of justice. Never mind what the Constitution says. Never mind that Colombian judges, by the mere fact of living in Colombia, are much more responsive to the sentiments, the pleas and the pressures of the Colombian people. They are also subject of important institutional and legal checks on their performance in order to ensure that they do not use more power than they were given by our magna carta.
Nobody can say the same thing about the ICC and its amazing prepotency. Furthermore, as many of the criminals the ICC would like to investigate are still on the run, I imagine that the main target of the Court’s actions will be the Colombian state (which by definition cannot run away) and its elements. I anticipate Court sentences ordering the Colombian state to pay millions and millions of dollars, just like it has happened so often in the past with the Inter-American Court of Human Rights. Usually these supranational judicial entities end up serving no other purpose than opening huge holes in our public finances.
It is time to change this situation. Colombia needs to get serious about improving the quality of its judicial branch of government, so that citizens can start to trust the system, and that injustices can finally be redressed. But bringing the ICC in is not the solution. It is unconstitutional, illegitimate, and it will bring trouble for the Colombian state at a time when it has plenty on its plate. It is true that the Court will be able to investigate Colombian cases only because the Colombian state acceded to it. But the question remains whether government representatives and the Congress had the constitutional power of stripping the Colombian judiciary of its monopoly on justice. I don’t think so.
It is also telling that when they were presented with the choice of getting into the ICC, the Americans refused. They do not want nosy foreigners messing with their own judicial decisions, or trying US citizens for crimes they committed in or from the United States. By that, the US sent a clear signal that within their country no law is above their own Constitution. Perhaps Colombia should do the same thing and leave the Court for good.