{"id":13856,"date":"2021-05-12T09:55:31","date_gmt":"2021-05-12T07:55:31","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=13856"},"modified":"2021-05-12T18:47:47","modified_gmt":"2021-05-12T16:47:47","slug":"the-dreadful-night-goes-on","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-dreadful-night-goes-on\/","title":{"rendered":"The Dreadful Night Goes On"},"content":{"rendered":"

At times, words fail to describe the horrors of reality. That is until we have recourse to the language of international criminal law (ICL). While its use may be problematic, helping hegemonies narrate their political and military struggles in a way that frames their enemies alone<\/a> as hostis humani generis<\/em>, few areas of knowledge describe state violence so aptly. Thus, one should not be too quick to discard ICL as an interpretive framework for the systematic state repression of largely peaceful demonstrations in Colombia. In fact, approaching this crisis from the perspective of international crimes and legitimate responses to their commission could prove useful. If not to extinguish the fire, at least to hold accountable those who set it alight.<\/p>\n

Since 28 April, Colombian authorities have conducted a brutal crackdown<\/a> on demonstrations<\/a> against an unpopular tax bill<\/a>and the Duque<\/a> administration more broadly<\/a>. Despite sporadic clashes and the erection of roadblocks, most notably around Cali, the conduct of protests has been generally peaceful<\/a>. It bears recalling<\/a> that isolated instances of violence \u201cwill not suffice to taint an entire assembly as non-peaceful\u201d. In addition, the \u201cdisruption of vehicular or pedestrian movement or daily activities\u201d is not considered as violent action. Nevertheless, at the time of writing, Indepaz <\/em>and Temblores ONG<\/em>reported<\/a> 47 deaths, 278 victims of assault, 963 arbitrary detentions, and 12 victims of sexual violence. Moreover, the Ombudsman informed about 548 missing persons. The Inter-American Commission on Human Rights<\/a>, the United Nations (UN) Verification Mission in Colombia<\/a>, the Representative of the Office of the UN High Commissioner for Human Rights<\/a>, and the UN Committee on Enforced Disappearances<\/a> have issued statements expressing their concern.<\/p>\n

Colombia is a party<\/a> to the Rome Statute<\/a> (RSt) since 01 November 2002. It is, therefore, reasonable to consider whether such massive acts of violence constitute crimes against humanity (CAH) within the jurisdiction of the International Criminal Court (ICC). Certainly, the wave of police, military, and \u2013 perhaps more worryingly \u2013 paramilitary<\/a> violence constitutes an example of what David Luban describes<\/a> as cancerous politics hell-bent on destroying individual and collective aspects of human existence. It has turned membership in a political community \u2013 the Indigenous Guard, a labour union, or the demonstration itself, however ephemeral it may be \u2013 into a death trap.<\/p>\n

Article 7 RSt and its attendant Elements of Crimes<\/a> (EoC) describe CAH as any underlying act mentioned in paragraph (1), letters (a) through (k), when committed in the context of a widespread or systematic attack, carried out pursuant to or in furtherance of a state or organisational policy, against any civilian population, and with knowledge of the attack. These elements will be analysed in turn with regard to the situation in Colombia.<\/p>\n

Under Article 7(2)(a) RSt, an attack <\/strong>is \u201ca course of conduct involving the multiple commission of acts referred to in paragraph 1\u201d. The EoC clarify that they \u201cneed not constitute a military attack\u201d. Hence, in light of the recent judgment in Ntaganda<\/em><\/a>, it suffices to establish the commission of a number of acts within \u201ca series or overall flow of events\u201d. This appears to be the case in Colombia, given that numerous acts<\/a> of murder<\/a>, severe deprivation of physical liberty<\/a>, sexual violence<\/a>, enforced disappearance<\/a>, and other inhumane acts have been committed over the last fortnight.<\/p>\n

The attack must be committed pursuant to or in furtherance of a policy <\/strong>that, for the purpose of the situation in Colombia, emanates from the state<\/strong>. According to the confirmation decision in Ruto & Sang<\/em><\/a>, this refers to a design \u201cto carry out an attack against a civilian population\u201d. The Ongwen<\/em><\/a> judgment compiled indicia of its existence that include, inter alia<\/em>, statements condoning the commission of crimes and underlying motives. It is therefore telling that high-ranking Colombian officials have failed to categorically reject the conduct of the security apparatus. Instead, public officials have either accused demonstrators of being \u201cterrorists<\/a>\u201d or issued feeble calls for the rejection of \u201cviolence<\/a>\u201d, without explicitly disavowing police excesses. Moreover, the defence minister expressed<\/a> \u201cgratitude and admiration\u201d for the security forces and attributed violence to organised armed groups<\/a> (OAGs) or Venezuelan citizens<\/a>. President Duque, meanwhile, called for military assistance<\/a> in cities affected by police brutality and ordered a full army and police mobilisation<\/a> into Cali on 09 May. It seems that their policy is to end peaceful demonstrations at all cost.<\/p>\n

The abovementioned figures for prohibited acts indicate the widespread<\/strong> character of the attack, which \u201cconnotes [its] large-scale nature (\u2026) and the number of targeted persons\u201d. It is also worth mentioning that they have occurred in several cities<\/a> for almost two weeks. The alternative <\/em>qualifier concerning the systematic <\/strong>quality of the attack, which refers to the \u201corganised nature of the violent acts (\u2026) and the improbability of their random or accidental occurrence,\u201d could be inferred from the following patterns:<\/p>\n