Practice Relating to Rule 159. Amnesty
Section B. Prohibition on amnesty for war crimes
Colombia’s Amnesty Decree (1991) states:
The National Government can grant, in every particular case, the benefits of a pardon or an amnesty [to Colombian nationals] for offences or acts which constitute crimes of rebellion, sedition, putsch, conspiracy and related acts, committed before the promulgation of the [Constitution], when, in its opinion, the guerrilla group of which the person asking for [the pardon or amnesty] is a member has demonstrated its intention to reintegrate into civil life.
The benefits provided for in this decree can neither be granted with respect to atrocities nor with respect to murder committed outside a situation of combat or in taking advantage of the defenselessness of the victim.
Colombia’s Law on Judicial Cooperation (1997), as amended in 2010, states:
The National Government may grant a pardon, on a case-by-case basis, to nationals who have been convicted by final and binding judgment for … political offences when, in its view, the organized armed group outside the law, of which the applicant is a member and with which a peace process has been initiated, has demonstrated its will to reintegrate into civil life.
It may also grant this to individuals who request it, after individually and voluntarily abandoning their activities as members of organized armed groups outside the law, provided that they have, in the view of the National Government, demonstrated a wish to reintegrate into civil life.
The legal benefits provided for in this chapter and the socio-economic benefits established by the National Government within the reintegration process, are not applicable to those who have committed crimes of genocide, kidnapping, crimes against humanity, war crimes … in accordance with international treaties and conventions ratified by Colombia.
The Law also states: “Those convicted for the illegal recruitment of minors, in addition to being subject to the criminal penalties provided for under article 162 of the  Penal Code, cannot be granted the legal benefits provided for under this law.”
Colombia’s Law against Kidnapping, Terrorism and Extortion (2002), states:
Amnesty and pardon.
Under no circumstances may the perpetrator of or participant in a crime of terrorism, kidnapping or extortion, in any of their forms [including, according to Articles 3 and 6, in their aggravated form against persons protected under IHL], benefit from amnesties or pardons, nor can these crimes be found to be related to a political crime, owing to their atrocious nature.
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court stated:
It is noteworthy that the [Inter-American Human Rights] Commission makes clear that international humanitarian law safeguards the protection derived from the right to due process and judicial protection during non-international armed conflicts and that these guarantees may not be derogated from because of the conflict. This is to say that the obligations to investigate and adjudicate may not be avoided because of the conflict. This does not prevent Congress from adopting amnesty or pardon laws under certain strict conditions, though Congress must stay within the parameters set up by the Constitution and international criminal law.
The Court also held:
[T]he following principles are relevant for the … [present case]: … the prohibition of criminal action or punishment must not be imposed for serious crimes which constitute crimes against humanity under international law and must not take place during a period when there are no effective remedies.
The Court also found:
Of well-known importance as jurisprudential precedents are … statements on the importance of peace as a constitutional value and on … amnesties and pardons as mechanisms to consolidate peace as well as the circumstances and crimes with regard to which these legal techniques are not accepted because they would lead to impunity and disregard for the right to truth, justice and reparation. Amongst these observations stand out those that refer to amnesties established with the aim of consolidating peace which are considered to be compatible with international humanitarian law as long as they do not constitute an obstacle to effective access to justice.
The Court continued by quoting one such jurisprudential precedent, the judgment of the Plenary Chamber of Colombia’s Constitutional Court in Constitutional Case No. C-578/02 of 30 July 2002:
The Court notes that amnesties established with the aim of consolidating peace have been considered instruments compatible with respect for international humanitarian law. This is, for example, what Article 6(5) of the [1977 Additional] Protocol II to the 1949 Geneva Conventions says …
Notwithstanding the aforementioned, with the objective of rendering peace compatible with effective human rights [protection] and respect for international humanitarian law, international law provides that internal instruments used by States to achieve reconciliation must guarantee the possibility of access to justice for the victims and those affected by criminal conduct as well as their right to know the truth about what occurred and to obtain effective judicial protection. This is why the Rome Statute, which represents the international consensus on this matter, does not prohibit amnesties which comply with the minimum requirements while prohibiting those that are the product of decisions that do not offer effective access to justice.
The following legal techniques have been considered to violate States’ international obligations to provide judicial remedies for the protection of human rights guaranteed under the different international instruments: Laws which impede access to justice, blanket amnesties for any crime, self-amnesties (i.e. the criminal law benefits which those legitimately or illegitimately in power grant to themselves and to the accomplices in the crimes), or any other law which has the purpose of impeding victims’ effective recourse to justice in order to exercise their rights.
In addition, international law has recognized the non-derogability of ius cogens norms which is without doubt relevant for the present question. In this respect international law has punished the most serious crimes which are important for the entire international community. Without ignoring international law, Colombia has conceded amnesties and pardons specifically for political crimes.
Thus, the principles and norms of international law accepted by Colombia (Article 9 CP [Political Constitution]), the Rome Statute, and our constitutional order which only permits amnesties or pardons for political crimes and with the payment of indemnities (Article 150(7) CP) do not permit the adoption of self-amnesties, blanket amnesties, laws or other instruments that impede victims’ effective access to judicial remedies.
[footnotes in original omitted]
The Court further held:
18.104.22.168. Amnesties adopted for the purpose of consolidating peace have been considered as instruments compatible with international humanitarian law under certain conditions such as the cessation of hostilities and if they do not constitute obstacles to an effective access to justice.
22.214.171.124. Criminal prosecution must not be prohibited for crimes such as enforced disappearance. This has various reasons: the interest in eradicating impunity, the need for society and the affected people to know the truth and to hold the responsible individuals and institutions to account, and in general the interest in guaranteeing victims’ right to justice and reparation for the harm.
In 2009, in the Constitutional Case No. C-801/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of the 2002 ICC Elements of Crimes, the 2002 ICC Rules of Procedure and Evidence and the corresponding domestic law approving them. Regarding the provisions of the 1998 ICC Statute related to amnesty for international crimes, the Court stated:
2.2.13. …[I]n the … Case No. C-578 of 2002, the [Constitutional] Court identified the articles of the  Rome Statute of the International Criminal Court that contain different treatment to that provided for in the  Political Constitution, recognizing that, in any case, these were expressly authorized by Legislative Act No. 2 of 2001, as long as it is understood that their effects are limited exclusively within the scope of the said Statute.
2.2.14. [I]n the section corresponding to the conclusions of Case C-578 of 2002, the Court reiterated that “the different treatment in substantive matters was authorized by Legislative Act No. 2 of 2001 exclusively within the scope of the exercise of the International Criminal Court’s jurisdiction” and, therefore, it “does not diminish the scope of the guarantees provided for under the Constitution with regard to the exercise of the jurisdiction of the national authorities”.
2.2.15. In conformity with this, this Court considered that it was unnecessary for the Head of State … to make an interpretative declaration for each of the different treatments identified in this case at the time of ratifying the treaty. However, … the Court highlighted the topics for which it recommended the adoption of some interpretative declarations in order to harmonize the Constitution with the Rome Statute. In any case, the judgment made clear that in no case whatsoever did this entail partial unconstitutionality of the Statute ….
The topics were listed in the judgment as follows:
(1) None of the provisions of the Rome Statute on the exercise by the International Criminal Court of its jurisdiction prevents the Colombian State from granting amnesties and pardons with regard to political offences, as long as they are granted in conformity with the Political Constitution, as well as with the principles and rules of international law accepted by Colombia.
In 2010, in the El Iguano case
, the Justice and Peace Chamber of Colombia’s High District Court of Bogotá convicted a member of the paramilitary group Autodefensas Unidas de Colombia (United Self-Defence Forces of Colombia) of several crimes committed against the civilian population. The Court stated that “war crimes and crimes against humanity are international crimes, … they cannot benefit from amnesties, pardons or any other forms of pardon”.
In 2006, the Government of Colombia stated before the Committee against Torture:
[M]ention should be made of the adoption and entry into force of Act No. 589 of 6 July 2000, which defines the crimes of genocide, enforced disappearance and forced displacement and imposes heavier penalties for the crime of torture, in keeping with the main international standards in that regard. Furthermore, the Act stipulates that such crimes shall not be eligible for amnesty or clemency.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
Among the peace processes taking place in the world, this [the one established by the 2005 Justice and Peace Law] is the most stringent … This legal framework does not allow amnesties or pardons for war crimes or crimes against humanity. By contrast, it grants offenders reduced prison sentences in exchange for truth, justice and reparations for victims and compliance with commitments on disarmament and non-recidivism. It should be noted that, as [with] all facts that are not clarified voluntarily, the ordinary courts will be required to take cognizance of them and pursue the investigation.