Practice Relating to Rule 157. Jurisdiction over War Crimes
Colombia’s Penal Code (2000), which criminalizes a number of war crimes under the 1949 Geneva Conventions and the 1977 Additional Protocols, provides:
The Colombian Penal Code shall apply to:
6. Any foreigner who has committed an offence outside Colombia against a foreigner, as long as the following conditions are met:
(a) That he is present on Colombian territory;
(b) That the crime is punishable in Colombia by a minimum prison sentence of not less than three years;
(c) That the crime is not a political offence; and
(d) That if extradition has been requested, it has not been granted by the Colombian Government.
Colombia’s Criminal Procedure Code (2004) states:
Criminal jurisdiction covers the prosecution and adjudication of crimes committed on national territory and of crimes committed abroad in cases in which international treaties which Colombia has signed and ratified and national legislation provide for such jurisdiction.
In 2003, in the Constitutional Case No. C-004/03, the Plenary Chamber of Colombia’s Constitutional Court stated:
International law has developed the principle of universal jurisdiction, whereby every State has an interest in the punishment of the most serious violations of human rights or international humanitarian law, such as genocide, torture, or enforced disappearances. A person may be tried and sentenced by any State on behalf of the international community for such acts.
In 2005, in the Constitutional Case No. C-797/05, the Plenary Chamber of Colombia’s Constitutional Court held:
[According to the] the principle of universal jurisdiction … it is in every State’s interest to investigate and punish the most serious violations of human rights and international humanitarian law, such as genocide, torture [and] enforced disappearance. Such interest legitimizes any State to exercise its jurisdiction in the name of the international community and investigate, prosecute and punish the perpetrators of such crimes.
[footnote in original omitted]
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
At the international level, the State obligation to respect and ensure respect for international humanitarian law is found in Article 1 common to the 1949 Geneva Conventions and has acquired customary status.
[T]he general obligation to respect and ensure respect for international humanitarian law is the foundation for a number of more specific duties such as … the duty to investigate, prosecute, sanction … war crimes, crimes against humanity and genocide committed during internal armed conflicts, a customary duty binding States because it is States through their legitimately established authorities who must effectively determine individual criminal responsibility for the commission of grave breaches of international humanitarian law without prejudice to the principle of universal jurisdiction as applicable in the commission of these type of crimes universally accepted today.