 Okay, we're back. We're live with transitional justice here in a given Monday morning at nine o'clock and we're we're talking to Maria Moreno, Montia. She is a Colombian and she is in Germany, working on international criminal court of justice matters. We're going to talk to her today about a change, if you will, a new step in the ICC's involvement with the war crimes in Colombia. So good morning, Maria. Hi, and good morning to you. Good evening from Germany. That's right. What is it? Oh my gosh, it must be nine o'clock there. Okay. Thank you for joining us. Let's talk about the background a little bit before we get to the appointment of a new, a new council so to speak. So the first the first question is, you know, FARC was the agreement that the peace agreement around FARC was a real positive thing in Colombia. And for a while it worked, but then it didn't work. Can you describe the, you know, the dynamic on that? Of course. So indeed, as you mentioned, there was a peace agreement. It was signed in 2016 between the Colombian government and then the FARC or the Revolutionary Armed Forces of Colombia. It was of course a milestone and it was something historical in my opinion, because it agreed that the parties agreed, the parties to the conflict agreed that they would seek these venues for reparation to redress the wrongdoings that were committed in relation to the conflict. Of course, also as part of this agreement, they agreed to establish the special jurisdiction for peace, which is the current transitional justice mechanism that is in place in Colombia. It is, it is a very, very relevant agreement and of course institution that created is paramount and it is, it is, it gives hope to all of us for the redress of these wrongdoings. As you mentioned, it has had a bumpy start, I would say, because of course the institution was created as such the legal framework was agreed, it was agreed was also proved domestically, but then with the current administration it has faced different challenges. As you mentioned as well, then you have other international actors, for example, the International Criminal Court, which are monitoring the situation in the country. Well, for reasons that we probably should discuss at least a little bit. The president of Colombia has not requested assistance to some of the problems and I guess the problems are ongoing, and that people are still in the streets after what almost six months of disturbances in the streets. And there are violations of human rights going on in Colombia. And he could, he could request assistance from the criminal court of justice in Holland in the Netherlands but he hasn't done that. Do you know why he hasn't done that? Wouldn't that be a good idea? Correct. So indeed, the National Strike was started in April this year, so we're at more or less three or four months of National Strike demonstrations and protests on the street. I must also say that the Office of the Prosecutor of the International Criminal Court opened the preliminary examination into the situation of Colombia in 2004. And this preliminary examination is focusing more on war crimes and crimes against humanity committed in connection to the conflict. So in principle, the current demonstrations, the current human rights violations would not be covered, let's say by the scope of analysis that the Office of the Prosecutor is carrying out. As you rightly say, the government has not requested assistance from the International Criminal Court. On this preliminary examination, it was, it was opened upon or under Article 15 of the Rome Statute, and that means basically that the Office of the Prosecutor received a series of communications which were informing of different human rights violations crimes against humanity war crimes. We still have to see whether it's civil society in Colombia civil society organizations are still referring information concerning the demonstrations and the protest. If they are sending this information to the Office of the Prosecutor for it to possibly then include it into its analysis under preliminary examination. So are you saying that the Office of the Prosecutor could take action, even if not requested by the President of Colombia? That is correct. So under Article 15 and Article 53 of the Rome Statute, the Office of the Prosecutor is entitled to assess where a situation meets the legal requirements for the for the ICC for the court to exercise jurisdiction on the field. This means that there are certain ways in which the Office of the Prosecutor can receive information. So as I have referred to Article 15 establishes that the prosecution, the Office of the Prosecutor can receive then information regarding this human rights violations. It could also be a state referral as it has happened in other situations, or it could be a referral by the United Nations Security Council. In the Office of Colombia, we're talking about Article 15 communication so information reports, etc, that have been referred then mostly by civil society in organizations. So, the news then is that a prosecutor is now in place or will be in place. What is the, what is the news about the ICC's action on the basis of these various requests. Yeah, so there we have, we have a new ICC prosecutor. This is the third ICC prosecutor that was elected. ICC prosecutors have a term of nine years. The first one was Luis Moreno Campo. The second one was Fatouan Suda, her last day of office, or in office, was a 15th of June this year, and then the new prosecutor, Mr. Karim Khan, and he was sworn into office on the 16th of June this year. However, there was a new development, as you have pointed out, and it's that on the 15th of June, so the last day of in office for prosecutor Ben Suda, he released a benchmarking consultation in connection to the preliminary examination in Colombia, which shall be taken up by the new prosecutor. So, when you say the new prosecutor for the ICC, you mean the chief prosecutor. The prosecutor is not associated with one particular area or country or set of crimes, but all the crimes that the ICC looks into. That's correct. So the office of the prosecutor is one organ within the International Criminal Court, and then the office of the prosecutor is led or guided as you have pointed out by the chief prosecutor of the ICC. There is also a deputy prosecutor that might be changed, we will see. Right now is Mr. James Stewart, British, I think the British national. So right now we have Mr. Karim Khan as the U.S. recently elected chief prosecutor. So, we style this discussion, luckily the third time, this would be the third prosecutor, but why did the first prosecutor and the second prosecutor not do anything with respect to Colombia? So, they did. They did, in my opinion, what they could. The thing is that the first ICC prosecutor decided to open this preliminary examination, which now is 17 years old. So we're talking about the longest preliminary examination that the office of the prosecutor has carried out. In 2012, the second prosecutor, Mrs. Tupensuda, took office. Then what she did is that she released an interim report in which she tried to assess the situation of Colombia, and then decided or tried to determine whether the preliminary examination should remain open, or if a decision was to be taken. In this case, then in this interim report, what the office of the prosecutor did is that he tried to narrow down what were exactly the phenomena that the office of the prosecutor were looking into. So as we have mentioned, the OTP is looking into war crimes and crimes against humanity. However, in this interim report, there were four particular phenomena that the office of the prosecutor highlighted as particular development. We're talking about sexual violence. We're talking about paramilitary violence. We're talking about forced displacement and we're talking about false positive cases. Back then, the prosecutor decided to continue with the preliminary examination. And then in 2019, a Mrs. Tupensuda, she stated that it was part of her strategy to make or to take the terminations there to decide on on the preliminary terminations before she left office. And this was the case, for example, in the case of the situation of Nigeria or the situation of Iraq and the UK, in which a determination was made. Now this benchmarking consultation basically means that the OTP seems to be still at crossroads. And what it's trying to do is that it's trying to get further information from stakeholders to create like a benchmarking metric that might assist then the OTP to reach such a determination. That's why we're now at the, this is the challenge that the third ICC prosecutor is going to be facing, and we will see where their time is the lucky time. You know, I want you to correct me if I'm wrong but Colombia is a relatively civilized country in Latin America. It has arguably a democracy, a functioning government. It doesn't have a lot of what you hear about in the American immigration crucible, and people running for their lives, because they and their families will be persecuted by the gangs and the like. I guess and has people like you who can speak, who can speak their minds, who can participate in the work of the ICC. And I, you know, although it's, it's good to have this officer, the prosecutor spend a little time with you and attention with you. There are so many other places in the world where the atrocities, the war crimes are so much more stark, more frightening, more, more worse. And why isn't there a priorities problem here? Is it that the officer, the prosecutor is, is or should be more interested in countries and regions in which war crimes are more savage? So this statement about Colombia is still debatable. Of course we can say that Colombia is a civilized country we have a democratic government. However, we had a conflict that spawned for more than 60, 65 years. And even though with the peace agreement hostilities seem to cease, there are still some episodes of violence in the country. So who's doing it? Who's doing it, Maria? We have different parties to the conflict. We're talking about paramilitary groups. We're talking about drug dissidents. We're still talking about state forces. So there are still, and for example, criminal bans, which are still engaging hostilities and still engaging in committing crimes, international crimes against the population. So of course there are different situations around the globe that may call for the attention of the ICC. However, the ICC in any case, particularly the Office of the Prosecutor has determined that these crimes that were committed and that are still being committed in the country are grave enough for the ICC to have jurisdiction. So right now the element that the OTP is assessing is admissibility. And for this admissibility test, one element that it is considering is where the domestic proceedings that are being taken place in the country are genuine. So that's why, in my opinion, this is why the OTP is once again at crossroads, because of course the ICC is not supposed to be subsidiary or it is not supposed to just completely take over all the judicial processes and whatnot that are taking place in the country. What the OTP is supposed to do is more to be complementary to these domestic judicial systems. And why are we talking that it is at crossroads, because of course there are still domestic judicial processes that are taking place, as I said, and with the special jurisdiction there is clearly the ability and also the willingness from the state to carry out these prosecutions domestically. However, the result, that is a different thing. We're talking then about whether the real commanders or the ones who are actually the most responsible as a proper term in ICL would be, are being prosecuted or not. And this is where the OTP has signaled that in some cases that seems not to be the case. So that's why we're still talking about the preliminary examination and we will see what would be the result of this benchmark in consultation. Well, you know, but you have a functioning government. Why doesn't the government attend to this? Why doesn't the Colombian prosecutor system address these problems and arrest people and prosecute them and put them in jail and stamp this out internally within the country. And if it isn't doing that, what is wrong with it? And how can the International Court of Criminal Justice and the prosecutor change that? So the Office of the Attorney or the Attorney General's Office, it is indeed carrying out certain domestic processes in the ordinary jurisdiction that are aiming to prosecute these international crimes. And then we have different system of institutions, like for example, the special jurisdiction for peace. We also have another transitional justice mechanism, the justice law of justice and peace. And then a new system of institutions were also set in place to prosecute these international crimes. The issue is that according to the Rome Statute, in order to prosecute core international crimes, the most responsible ones must be prosecuted. So right now the domestic proceedings, these proceedings that are being carried out at the national level seem to be prosecuted mostly middle and lower level perpetrators. So they are still not looking fully into those most responsible ones. And because of that, we cannot be talking about full redress of these wrongdoings. And then the obligation of the state and of the Rome Statute is still yet to be fulfilled. So is the Office of the Prosecutor actively investigating these crimes now, actively consulting with the government on having them prosecuted, or is it still ramping up? So the Office of the Prosecutor, the first prosecutor, Mr. Luis Moreno Campo, he came up with this concept of positive complementarity. In addition, the Rome Statute establishes that the ICC must be complementary to domestic jurisdictions. But then this concept, this notion of positive complementarity establishes that the ICC and particularly the OTP can monitor how these domestic proceedings are taking place at the national level to assess whether they are in fact genuine. So this is something that the OTP continues to do. But as I said, I mean, the state does seem to be willing and able to carry out these proceedings. But then we have a series of elements that have to be considered, for example, the outcome, really the most responsible ones are really those most responsible ones being prosecuted. Then we can really talk about pool reparations or pool guarantee of non-repetition, truth, justice. So there is a big justice gap still that has to be fulfilled and I think that that's what the OTP is taking. The kingpins, the ones at the top. Exactly. Are they like the FARC, are they still involved in drugs? So the drug trafficking might still be a component, but I think that in this case we're mostly talking about, for example, the commanders of the state army, the state forces. But then we're also talking about paramilitary groups and the potential involvement of politicians and this political elite in class and the country and the relationship that they have had in fostering the community of these paramilitary groups. And of course then the role that they have taken in this hostilities and in this violence that has been rampant in the country. This is a direct threat to the democracy in Colombia. This kind of atrocity, this kind of war crime goes directly to civil order and would undermine the government if it isn't contained. This would be very troublesome. How does this compare against similar processes in Central America and South America, Latin America in general? Are there countries that are experiencing the same thing? What are they doing? Is it better? Is it worse? Does it involve the International Court criminal justice? So there have been, in fact, other countries in Latin America that in which the civil society then has tried or has engaged with the office of the prosecutor. So we're talking, for example, of Mexico, we're talking about Honduras, we're talking as well about Venezuela. So in the case of Honduras, there was a preliminary examination that the office of the prosecutor initially opened and then upon an assessment of the legal requirements it determined that there were no crimes under the jurisdiction of the court were being committed that there was no reasonable basis to believe that these crimes were being committed in this country. The reasonable basis would be then the burden of proof that the office of the prosecutor has to assess. Then we also have, for example, in the situation of Mexico, the civil society keeps on referring information under article 15 with several, several communications to the office of the prosecutor and the office of the prosecutor has not opened up a preliminary examination. It has determined that in the situation of Mexico, it is at one phase that would be called phase zero or phase one, which is a secret phase of the assessment that the office of the prosecutor carries out, but then the preliminary examination has not been announced as open. And then we have the situation in Venezuela, in which currently there are two preliminary examinations, one opened according to under article 15, since the office of the prosecutor received a series of communications in this regard. And then a second one that was opened due to the state referral of government, of the government of President Maloudo. Is the United States involved, the United States has always had a close relationship with Columbia. There are a lot of American retirees in Columbia. Columbia, you know, business includes a lot of American companies. Is the United States involved. You know, for example, you know when when we had this issue where we are having this issue about the assassination of President of Haiti, the FBI goes down there. Is the United States involved in Columbia? The United States is indeed involved in Columbia. In my opinion, it is not as involved in the situation between or the relationship between Columbia and the ICC. Of course, there is also the question of where paramilitary violence and paramilitary groups had been mainly or possibly financed by American companies, although this is something that has been analyzed and that is currently being assessed by ordinary jurisdiction in Columbia. This is not something that the Office of the Prosecutor has referred to. However, the United States is not a state party to the run statute and then the Office of the Prosecutor would have certain issues establishing jurisdiction over nationals of the of the US, for example. Very important for stability and stability is very important in Latin America. But we don't have stability in many, many countries in Latin America. And in a way, the Columbia is a kind of special sui generous the legal term in its own category, I think. And so it becomes all the more important to preserve order, preserve democracy such as it is in in Columbia. Now you're in Germany, you've been in Germany for a number of years. It took your international law degree in Germany. Why are you interested in all of this. Why are you associated with project expedite justice. Why are you involved. I am involved because, as you have mentioned, this is part of my legal training. I am a Colombian lawyer, I studied international law specialized in international criminal law and human rights. As a Colombian lawyer, I think that we have a responsibility to disseminate as well this kind of information to properly understand what what are the international institutions doing when it comes to the country so for example in the case of the ICC has had an impact that it's all symbolic. So when it comes to politics, very often as part of this democracy and as part of politics and how they how they and all in the in the country. The ICC has been used as a token. So then I think that the more that we communicate about what is currently happening, the more that we explain to normal people, what is actually happening, what is the assessment that the prosecutor is carrying out, then the more tools that were given to them to properly understand what is the impact of this is international institutions and why international law and particularly international criminal law is important and should be also upheld also domestically. Yeah, so a part of the mission is to build up the ICC international criminal justice which is not actually part of the United Nations as I remember it's on its own. And it needs to have support from what I call a member countries, and it needs to have successes, it needs to be able to go and make things better in a given client country so to speak. So, you know, with with your training, and you're familiar, familiar, familiarity with all that is going on what exactly do you do you mentioned before the show that you do research. I'm not sure if that's legal research or evidentiary research. Can you talk to us about that. Of course, so as I was mentioned to you before we went live, I am currently working at a foundation NGO here in Newtonburg, and we're doing legal research we're doing interdisciplinary research. Currently, I am working on a project on digital evidence, but I am also affiliated with another NGO, the names a case matrix network and then what we do is capacity building and strengthening of the domestic authorities so then they have the tools to make it core international crimes domestically. So it is more like this idea of positive complementarity how to properly they make it a practical so it actually takes place like this and then the ICC has to be less involved in this situation. So let's assume that your research includes evidence, digital evidence is everywhere these days. Digital evidence is very persuasive I mean look at all the examples of that in the United States I mean the insurrection is is is reflected in miles of digital evidence. And so I mean would would you know the killing of George Floyd have been as much as a spectacular public interest and concern, had it not been recorded on digital evidence. So it seems to me that's one of your best goals in the in the kit in the inventory. And the question is, what are the challenges of getting it. What are the challenges are are presenting it. And when when you do present it where does it go. Decision by the prosecutor by the court, does it go to a trial of guilt or innocence, does it go to punishment, or does it go to all those things. Can you talk to us about the, the importance of digital evidence and, and how it is used. And so as you mentioned the digital evidence has taken more responsibility more sorry more relevancy in the last years as technology continues to progress. So as you also mentioned, we have seen more videos for example on YouTube or on Facebook, or tweets and whatnot that might refer then to core international crimes. The challenges relate to how to properly take this digital materials, and then turn them into evidence. Then we would be talking about different kind of frameworks. So for example, when it comes to the civil law framework, then we have different understanding of how the species of evidence should be treated. And then we have also different kind of frameworks and regulations when it comes to common law systems at the international level what and particularly the research that we're doing is that we're trying to compile these practices from different legal systems. So then we can properly assess how should this be done by international tribunals. The challenges are massive. They, they mostly relate to a verification authentication how to guarantee that the certain piece of evidence can be relied on. How can they be corroborated. And then of course when you submit it to the judges how to submit it to, in order to avoid potential biases because for example when we're when we're talking about user generated evidence. If there's evidence that it's been, it's been captured in a protest, then most likely these evidence will be captured by the protesters and then they're going to be recording for example the state of uses. But then we don't see the other side of the coin if you if you wish, because then it depends how the type of evidence is collected. And then as well how to properly analyze it. So we can guarantee that as part of the assessment of this evidence we can we can reach the truth, which is ultimately or at least this legal truth which is ultimately what we try to reach when comes to get to judicial processes. So these war crimes and atrocity proceedings before the of the International Court of Criminal Justice. Who presents that in what circumstances. How is it used to achieve some judicial result. The evidence can be can be submitted by either of the parties either the office of the prosecutor of the defense. When it comes to digital evidence that was a case Albert Fali Albert Fali case, which was in which the ICC the International Criminal Court, then the, it reached a determination and decision in on the arrest warrant. And it was mostly focusing on seven Facebook videos. Of course there were other pieces of evidence that kind of corroborated what was seen on this videos, but then that was that was heavily debated in the International Criminal Law field of how then how can then we properly assess this this videos how can we properly guarantee that they are authentic. How can we verify them and so on. But as I said this is something that it is still the progress is ongoing. And what we're trying to do is how to provide provide proper guidelines to international justice institutions. So then we can have more legal certainty about about this process. Yeah. So you mentioned that at some point, somebody charged with a war crime or atrocity could be arrested. Does the court have the power of arresting someone anywhere in the world. And when they are arrested, what happens to them, and are they defended, you know, just as there are a number of lawyers who help the prosecution. I would imagine there are lawyers who specialize in defending the people who are accused. Can you talk about the process. Of course, of course. So when it comes to the procedure of them at the ICC, then we're talking about different procedural stages. So we have already referred to the preliminary examination stage. This is not a judicial judicial stage as such is more a quasi jurisdictional stage, if you if you wish, and it is carried out then before the office of the prosecutor but at this stage, there are no judges involved, only if the office of the prosecutor decides or, for example, it determines that there's reasonable basis to be to believe that crimes under the jurisdiction of the court have been committed in a certain situation. It might then request to open an investigation request for to open an investigation before the pretrial chamber. And then we're talking about the judicial stages. Then we're talking about the pretrial chamber, for example, then we're talking about the arrest warrant, then we have the confirmation of charges, then we have the trial phase. There is one thing that it's important to to know and and to mention, and is that the ICC it is an independent institution, it has a relationship with the UN. However, it has no police force. So it cannot it doesn't have like any kind of law enforcement organ that can go on the field and then seek these these aspects. What we have to do is that it relies on the cooperation of state parties under part nine of drama statute, and then based on this cooperation it expects that then this but these aspects are properly apprehended and then taken before the court in the Hague in the Netherlands. So if this happens, then, of course, the defense council is assigned their office at the International Criminal Court has at least well first of all it has an organ such the Office of Public Defense Council. And that is that is the organ that then kind of coordinates what kind of defense and legal aid is then provided to the suspect, because of course it also tries to uphold the human rights of the suspects. Fair is fair. So, you know, I'd like to ask you also where where is this going is the Criminal Court of Justice International Criminal Court of Justice, getting better traction these days. Does it have more work. Do you have more work on their more atrocities more war crimes now than the work, say 10 years ago. Where is it all going is this mechanism that you've been involved in that we've been talking about effective in the face of whatever the level of atrocities and war crimes are in the world today. What do we need to do something to give it more traction. The question is very sensitive because next year is going to be the 20th anniversary of the establishment of the court. So there have been several debates about what is the record writer of the court today in the last 20 years. So, in my opinion, I think that right now, of course, I mean, unfortunately atrocities are still being committed everywhere around the world. There is plenty of work for the ICC and unfortunately not enough support. So, for example, the previous administration in the US was particularly strong against the ICC, and it even imposed a series of sanctions on the prosecutor and then some some heads of units within the office of the prosecutor. This is also it is also coupled with some some states that have stated as well that they would like to withdraw from from their membership, let's say, from the from the court. So we have we were facing a situation in which atrocities are still being committed budgetary constraints remain the remain the case. And then there is not enough support from state parties and from other states in the international community to guarantee that the ICC can can continue to mandate. And I think that this is also one of the challenges that the new ICC prosecutor will be facing. And just as in the in civil law in continental Europe, the prosecutor is a very important member of the team, perhaps more important, you know, in the context of the International Court of Criminal Justice, then he or she would be in the United States in this prosecutorial process. So okay Maria that's that's really interesting and you mentioned issues and funding well who supports the court. Where does that money come from is it is it the members who have signed on. Is it others, and has the United States supported it. So the budget is approved by the assembly of the state parties assembly of the state parties has a meeting or a session in once per year. Of course, last year was a bit more complicated because of the current pandemic. However, they still need they still have to approve it the budget and it is also this also has a relationship with how much the office of prosecutor and different organs, the registrar for example as well. And says that they need in order to continue their, their function. They also have received some kind of day or some donations, and to my understanding, the US has provided some donations but not in the last years their relationship between the US and the ICC has been rather bumpy, as you can imagine. So I think that Donald J. Trump was doing war crimes. You think of the, the children penned up inappropriately when they crossed the border, few years ago. My own view that that was a war crime and other atrocities. And so the United States is in a funny position isn't it. It's not a member. I always have some problems. And yet people expect it to be the leader of the free world. I think it would be better if the United States was a member and cleaned its own house, and did not elect President Trump again either. That's my view. The question I put to you is, wouldn't it be better? Wouldn't the International Court of Criminal Justice have more traction if it were formally associated with the United Nations? Okay, so if I, if I make, if I may make a comment about what you referred to regarding the Trump administration. So indeed, for example, these facts, these incidents could amount to court international crimes. The thing is that we have a dilemma, let's say, when it comes to international justice, and it is that the international community is still very much based on the principle of sovereignty of the state. And during that the US is not a state party to the ICC, then the ICC would really have some probably establishing jurisdiction, because it would require then territorial jurisdiction and personal jurisdiction, among others. And because of these, of these non membership. And in that note, on that note, I may say as well that President Clinton actually signed the Rome Statute, but then it was not approved it was not ratified by the US Congress at the time. There has been some kind of willingness to be to interact to be part of the court, but then it has not been completely a crystallized as to the question regarding the relationship between the UN and the ICC. The point is that they went there, the founders, let's say, of the, of the International Criminal Court, this is a delegations at the Rome conference in 1998. They wanted to create and establish an international institution and international judicial institution that would be independent. So it is under these, this principle that the ICC, although has a relationship with the UN, it is not one of the organs of the UN, and it cannot be considered to be dependent on it. So it does not have any, as the Office of the Prosecutor has stated it as well in the past, it aims to not be political. It only applies the legal framework that is established and that it should apply. Now that you've said that it sounds quite right. It sounds like the best arrangement, because the United Nations has become political, particularly the Security Council, and it's best if the ICC stay away from that. Yeah, that's fair, that's a fair, yeah, go ahead. Yeah, at the same time, of course, one thing is what is on paper, and one thing, another thing is what is the reality, right? So on paper, of course, it is an independent institution, and it tries, I do believe so, to not to be political as much as it can. But of course, it is an international institution that it is playing on the international field, and it cannot completely be blind to the political interactions that happened there. So for example, you have had the situation in Palestine, or for example, the situation in Ukraine, or the situation in Iraq, in which some concerns about how politicized or not certain determinations by the office have been. As I said, the office of the prosecutor insists once and again, that all the all terminations that it has made are non political. So it is only a legal assessment of the legal requirement, but I think that this reality cannot be completely overlooked. Wow. Great. Wow, what a great discussion. Well, thank you Maria, we have to circle back and, and, you know, get get updates from you on these and other issues around the International Court of Criminal Justice and its work, and about Europe in general. Thank you so much. Maria Moreno Montia really appreciate. Thank you very much. Aloha.