SPECIAL NEWSLETTER

VIOLENCE AGAINST TRADE UNIONISTS IN COLOMBIA

WHY THE INTERNATIONAL CRIMINAL COURT MUST INVESTIGATE

Contents

1. Introduction 3 2. The concept of strategic litigation in human rights cases 4 3. Repression against trade unions in Colombia 5 4. Persecution of trade unionists: selected cases 6 5. Impunity for acts of violence against trade unionists in Colombia and the significance of the ICC – by attorneys Alirio Uribe Muñoz and Luis Guillermo Pérez, CAJAR 8 6. Summary of the legal arguments in the communication to the ICC 10 7. The International Criminal Court and Colombia – what would be required 12 8. Final remarks 14

With support from:

1. Introduction

On 9 October 2012, ECCHR together with developments have at least been officially the Colombian human rights organization reported. The submitted communication CAJAR and the Colombian trade union should make clear that Colombia has, to federation CUT submitted a communi- date, been unwilling — and is, cation to the Office of the Prosecutor furthermore, unable — to genuinely (OTP) at the International Criminal Court prosecute for human rights violations (ICC). The communication relates to the against trade unionists as crimes against ongoing impunity for crimes against humanity. humanity committed in Colombia against trade unionists. It is hoped that as a result of this communication, the ICC will open a The recourse to legal means is intended to formal investigation. This would increase ensure that trade unionists in Colombia are the pressure on the government and supported and protected in their struggle to national prosecutors to make a genuine enforce human and labor rights, and to effort to prosecute human rights violations prevent the murder of further union in Colombia and to introduce appropriate members. This approach may also serve as measures against high-ranking culprits. An an example to other countries and regions investigation by the ICC would also help to in which trade unionists are persecuted and raise global awareness of the human rights killed. Investigations against high-ranking situation in Colombia and facilitate the perpetrators of trade union persecution collection of independent evidence and would also demonstrate to Colombian witness statements. society that this is not just about controversial political decisions; it In March 2012 ECCHR, together with involves grave international crimes. Colombian trade union SINALTRAINAL and with financial support from Misereor, The submission is also intended to trigger a submitted a criminal complaint against wider debate about the selectivity and Nestlé and the company’s leading transparency of the choice of cases by the directors. They stand accused of Office of the Prosecutor in The Hague, and contributing to the murder of trade unionist to persuade the OTP to initiate an Luciano Romero in 2005 by failing to investigation against Colombia, its first introduce protection measures. The investigation against a non-African state. complaint could set a precedent, as it The ICC has for a number of years been would be the first time a Swiss company holding preliminary examinations into has been held responsible in Switzerland crimes committed in Colombia. The legal for a crime committed abroad. This debate on this issue centers on whether or complaint is also intended to support the not the investigations and prosecutions work of trade unionists in Colombia, to undertaken in Colombia are genuinely help bring about the end of impunity in being pursued, and on whether the Colombia, and to demonstrate the perpetrators hold positions of power in responsibility held by multinational politics and the military. But proceedings corporations in countries where human have stagnated since the initiation of the rights are violated and where these preliminary examination. No relevant violations go unpunished.

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2. The concept of strategic litigation in human rights cases

The European Center for Constitutional a particular legal case. Even reconstructing and Human Rights (ECCHR) is an the events and compiling the written independent and non-profit human rights complaint can itself be an important step organization located in Berlin and working for those affected by human rights primarily through legal means. ECCHR violations in overcoming their trauma and initiates, develops and supports exemplary in actively fighting for their rights. cases, in order to hold state and non-state Regardless of whether or not a claim is actors accountable for human rights successful in the courtroom, legal violations. In doing so we focus on proceedings can significantly contribute to selected cases that test the existing legal the political debate on accountability for framework, and that have the potential to human rights. Legal proceedings set legal precedents for the enforcement of demonstrate that inhuman policies and human rights. behavior are not just political and social scandals, but represent a violation of the We work together with those affected, their law, punishable by the courts. legal representatives, and with local human rights organizations. Particularly in cases ECCHR fights against double standards in where systematic human rights violations the application of international criminal and their root causes remain unresolved, law. We are, therefore, particularly active such as in this situation the widespread in cases in which those responsible for persecution of trade unionists in Colombia, international crimes are shielded from legal we make use of instruments such as action, whether it is because they hold a complaint mechanisms of UN bodies, civil high position in one of the powerful claims for damages or criminal procee- western states or because — like the dings. The aim of turning to legal measures political and military leadership of is to raise awareness of human rights Colombia — they are closely allied to problems and to support those affected, those states. We believe it is a dangerous and their local organizations, beyond the development if, out of political con- context of the individual case in their wider siderations, international human rights struggle to realize their rights. standards are not enforced, and are applied only to weak states or to those states, and In contrast to the usual work of a lawyer, their representatives, that are our approach is not just about the result in ‘uninteresting’ to the West.

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3. Repression against trade unions in Colombia

Colombia is one of the most dangerous implemented. This is publicly known to countries for trade unionists in the world. have occurred in the years prior to the 2,927 trade unionists were murdered there murder of Luciano Romero. This has been between 1986 and 2012. The right to form reported by, among others, Amnesty and join trade unions is one of the pillars of International, the International Trade democratic and socially just societies. It is Union Confederation (ITUC), and in the not surprising, then, that in 2011 the annual reports of the United Nations High United Nations Development Programme Commissioner for Human Rights in listed Colombia, a country rich in natural Colombia. resources, as one of the countries with the greatest levels of social inequality, In the last 30 years nearly 3,000 trade surpassed only by Angola and Haiti. unionists have been murdered in Colombia. These numbers are currently in For many years Colombia has held the decline; yet in 2010 a total of 51 trade unhappy record of being the location of unionists were murdered, followed by 35 more than half of all murders of trade such deaths in 2011. As such, Colombia unionists worldwide. The vast majority of remains one of the most dangerous these crimes are attributed to the countries in the world for trade unionists. paramilitaries and state security forces. A high rate of impunity is also reported. Violations of the right to life, liberty, Despite the program of demobilization of physical integrity of trade unionists in paramilitary groups carried out between Colombia, 2002-2012 (30 June 2012) 2003 and 2006, trade unionists continue to Type of violation N° Cases % be threatened and killed by paramilitaries. Trespass or breaking State security forces are also involved in and entering 32 0.50% the murder of trade unionists, and initiate Threats 3,785 59.66% arbitrary criminal proceedings against Assassination attempts with or them. Amnesty International believes that without injury 133 2.10% there is a coordinated military-paramilitary Disappearances 61 0.96% strategy designed to undermine the work of Forced displacement 656 10.34% trade unions through intimidation and by Arbitrary detention 455 7.17% publicly discrediting members. Murder 775 12.22% Harassment 361 5.69% The Colombian state is not willing, or is Kidnapping 57 0.90% unable, to effectively protect trade Torture 29 0.46% unionists. Even in cases where the Inter- Total 6,344 100.00% American Commission of Human Rights has requested the Colombian government to take measures to protect threatened trade Source: Escuela Nacional Sindical unionists, these measures are not

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4. Persecution of trade unionists: selected cases

Our selection criteria reach joint goals. Hence, two cases have Of the almost 3,000 assassinations of trade been chosen in which the crimes were unionists committed in the past three committed by paramilitaries (Luciano decades, we present in our communication ROMERO and Maria LUCERO HENAO), five exemplary cases based on the while in the remaining three cases the acts following criteria: were attributed to the military (Arauca and Alejandro URIBE) or police forces With regard to the time frame, Colombia (Guillermo RIVERA). The involvement of accepted the jurisdiction of the ICC over an increasing number of political and crimes against humanity from 1 November governmental actors with paramilitary 2002. Therefore, only cases occurring after crimes came to light through the this date are included in our communi- “parapolitica” and DAS-scandals. These cation. 775 murders of trade unionists fall are reflected in two cases, one where under this time period. Due to comple- members of the Colombian Secret Service mentarity considerations, in order to award Departamento Administrativo de Seguri- Colombia’s national judicial system dad (DAS) are implicated (Luciano adequate time to deal with the cases on its ROMERO), and the other where the name own, no cases after 2009 were considered. of the future victim was passed on to the While ratifying the Rome Statute of the paramilitaries by a local politician (Maria ICC, Colombia, however, suspended the LUCERO HENAO). Finally, the ICC’s jurisdiction over war crimes for sometimes close collaboration between seven years (under Article 124). War military and paramilitary groups in the crimes hence only fall under the course of Colombia’s armed conflict is jurisdiction of the Court when committed being increasingly ascertained, and is also only after 1 November 2009. evidenced in one of the cases (Maria LUCERO HENAO). Perpetrators, in the majority of cases (77%), enjoy absolute impunity with The five selected cases neither the wider group of perpetrators nor (1) The first case concerns Maria any principal authors of the crime being LUCERO HENAO who was a trade identified. Yet, of the remaining cases in unionist and a social activist in the region which the (alleged) perpetrators could be of Alto Ariari in the department of Meta. identified, it is clear that the actors On 6 February 2004, paramilitaries of the principally responsible for crimes commit- “Bloque Centauros”, which forms part of ted against trade unionists are the parami- the paramilitary group „Autodefensas litaries (13% of the cases solved) and state Unidas de Colombia“ (AUC), took Maria security forces (3% of the cases solved), as LUCERO HENAO and her 16 year old son well as the guerillas (5% of the cases Yamid Daniel HENAO out of their house solved). As the investigation rate of and executed them. guerilla groups is comparatively high and higher ranking guerilla commanders are (2) The three Colombian unionists – Jorge being investigated, the focus of this Eduardo PRIETO CHAMUCERO, Héctor communication is on the other two groups. Alirio MARTÍNEZ and Leonel Moreover, paramilitaries and state security GOYENECHE GOYENECHE – were forces have frequently collaborated in killed by members of the Colombian army order to implement common policies and on 5 August 2004, in the department of

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Arauca. They had not been carrying authorities, in particular the Colombian weapons, nor had they tried to resist the secret service DAS as well as defamations militaries in any way. Nevertheless, the and false accusations by Nestlé-Cicolac three unionists were shot to death, and staff members, and – subsequently – death proclaimed by the army as guerrillas killed threats by the paramilitary. in combat. Prior to their assassination and as a result of their union, political and (4) Alejandro URIBE CHACÓN was a 29- social activism in the department of year old miner living in the district of Mina Arauca, the three trade unionists had been Gallo, municipality of Morales, department the object of constant harassment. The of Bolívar. He was a trade unionist and a risks associated with trade unionism and social activist in San Lucas, a mountain social activism in Arauca had previously region located between the northeast of been recognized by a 2002 resolution of Antioquia and southern Bolívar, an area the Inter-American Commission of Human traditionally extensively mined for gold. Rights, in which Colombia was urged to Alejandro URIBE was involved in the take provisional measures to protect the defense of the rights of miners to have life and the integrity of 14 unionists in access to the mines and against the Arauca, among them ALIRIO MARTÍNEZ attempts of massive gold exploitation of and PRIETO CHAMUCERO. Instead of several multinational companies. protecting the trade unionists, state Alejandro URIBE was killed on 19 officials – in particular high-ranking September 2006 by officials of the members of the army – before and after the antiaircraft battalion Nueva Granada. assassinations falsely accused the three of being associated with the guerrillas – a (5) Guillermo RIVERA FÚQUENES was pattern occurring repeatedly in crimes a trade unionist and a political and social against trade unionists. activist in the city of Bogotá who disappeared on 22 April 2008, in a street in (3) Luciano Enrique ROMERO MOLINA the neighborhood of “El Tunal”. At the was for many years an employee in the time of the incident, several police cars Cicolac factory of the Swiss company were present in the street, and the police Nestlé in Valledupar and active in the local are alleged to be responsible for his dis- management of the trade union appearance. His dead body was found two SINALTRAINAL (Sindicato Nacional de days later 179 kilometers away in the city Trabajadores del Sistema Agroalimen- of Ibagué (department of Tolima) and tario). On the evening of 10 September buried anonymously. The identification 2005, he was kidnapped by paramilitaries occurred almost three months later on 15 of the Bloque Norte of the AUC, July 2008, when prosecutors ordered the mistreated, and stabbed 50 times. His exhumation of the corpse and identified it assassination had been preceded by as the body of Guillermo RIVERA. surveillance and repression by state

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5. Impunity for acts of violence against trade unionists in Colombia and the significance of the ICC – lawyers Alirio Uribe Muñoz and Luis Guillermo Pérez, CAJAR*

*Alirio Uribe Muñoz and Luis Guillermo murders of trade unionists. Today it is said Pérez are members of the Colombian that they have demobilized and that as a human rights organization Colectivo de consequence the number of murdered trade Abogados José Alvear Restrepo, which for unionists has decreased. Yet Colombia 25 years has supported victims of the remains at the top of the list of most gravest human rights violations in dangerous countries for union members. In Colombia and acted on their behalf in 2011, 35 trade unionists were murdered court proceedings. In this capacity it and thirteen have died to date in 2012. We provides legal advice to the trade union have therefore requested that the chief SINALTRAINAL. The Collective has taken prosecutor of the ICC initiate an emblematic cases of torture, extrajudicial investigation into the 775 murders of trade executions and disappearances before unionists that have occurred since the entry Colombian courts, the Inter-American into force of the ICC. Court of Human Rights and the United Nations. Because of its courageous work, The International Trade Union the Collective and its members are Confederation (ITUC) has determined that continually subjected to intimidation and more than half of all murders of trade defamation. unionists worldwide occur in Colombia, making it the most dangerous country in the world to exercise the right to unionize. The ongoing impunity and long term effects of these crimes on the affected unions have led to a repressive environ- ment for trade union freedom and the defense of labor rights. This is reflected today in the sinking membership numbers of trade unions: of the economically active population of Colombia, only 4% are active in trade unions, a figure which once stood at 20%. This contributes to deepening inequality as well as to social and political violence. According to the Human Development Report 2011 of the Why it is important that the ICC opens a UNDP Colombia is one of countries with case on Colombia? the highest social inequality in the world, followed only by Angola and Haiti. The Rome Statute entered into force on 1 November 2002 in Colombia, yet for the The communication to the International lawyer’s collective José Alvear Restrepo, it Criminal Court sets out the context and has not had the anticipated preventive documents five emblematic cases of effect. Paramilitary groups are reportedly extrajudicial executions of trade unionists. responsible for at least half of the 3,000 It shows examples of the joint actions of

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state and paramilitaries as well as the direct solely to crimes against trade union actions of Colombian security forces, such members, such as murder, threats, as for example in the case of the three trade kidnapping and torture. unionists in Arauca. In investigating the instigators of the crimes, the Prosecutor Since 2007 specialized judges have been should seek to examine the stigmatization assigned to the issue of violence against of trade unionists as supporters of the trade unionists. Yet the results of these guerrillas as well as the impunity for institutional changes remain uncertain. A perpetrators. verdict is delivered in ca. 10% of the cases relating to the killing of trade union members, more than half of those convicted are still at large and 98% of the convicted are those who actually and directly committed the acts; there are no convictions of the persons who instigated and contracted the crimes. The latter also includes corporations. In the Justicia y Paz proceedings paramilitaries testified that they had been financed through national and multinational companies, a fact that has yet to be investigated.

Due to international complaints and in Impunity is also a grave problem in the light of the ongoing impunity, a special case of threats. Between 1986 and May unit called the ILO Subunit was created in 2011 there was at least 5,315 threats made 2007 within the human rights department against union members. These resulted, of the Office of the Attorney in response to calls from the international community for justice in cases of murders of and attacks on trade unionists.

Arising from the negotiation and ratification of the Free Trade Agreement with the USA, an “Action Plan Related to Labor Rights” was signed by Presidents Obama and Santos, providing for measures to enhance the capacity of the Office of the Attorney General when it comes to investigating crimes against trade unionists however, in just two convictions relating to in Colombia, as well as measures for the the intimidation of six victims. The vast fulfillment of obligations relating to the majority of these crimes went unpunished. protection of trade union leaders and In this communication to the ICC we activists. advise on potential principal offenders and instigators, none of whom have, to date, There was an increase in the number of stood trial for these crimes before the investigating prosecutors and police. Colombian courts. We are requesting an Between 2010 and 2011, the number of investigation into the potential principal prosecutors in the ILO Subunit rose from offenders and instigators, who held or still 10 to 25, with an increase from 100 to 243 hold leading positions within the armed in the number of investigators devoted forces and government.

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We hope that this will contribute to the of the ICC is complementary to efforts protection of trade unionists in Colombia, underway within Colombia and is help bring about the end of anti-trade union absolutely essential as a deterrent, to pre- violence, and remind the Colombian vent further crimes against trade unionists judiciary to meet its obligations. The work and other human rights defenders.

6. Summary of the legal arguments in the communication to the ICC

There is a reasonable basis to believe that well as military and police commanders in since 1 November 2002 crimes against charge in the past decade –, should be humanity have been committed against investigated for their individual criminal trade unionists as part of the broader attack responsibility for these crimes. against human rights defenders in Colombia. Emblematic examples are the Regarding the admissibility criteria under cases presented in this communication: the Article 17 of the ICC Statute, we conclude murder of the trade unionists of Arauca as that the investigative steps undertaken by well as of Maria LUCERO HENAO, the Republic of Colombia since 2002, are Luciano ROMERO, Alejandro URIBE, insufficient. Impunity for those most and Guillermo RIVERA. These cases fulfil responsible is absolute in the cases under all the elements required by Article 7(1) of consideration, so that the complementarity the ICC Statute, particularly as the crimes criteria are met. Since the cases presented committed can be described as part of a in this communication meet the gravity widespread and systematic attack directed threshold and an investigation would serve against a civilian population. The element the interests of justice, we suggest that of a State policy to commit such an attack there is a reasonable basis to proceed with can be inferred from national policies and the investigation. Therefore, we urge the counter-insurgent doctrines targeting trade Prosecutor to submit a request for unionists as “guerrilleros” and hence authorisation of an investigation to the Pre- enemies of the State. This stigmatization Trial Chamber according to Article 15 (3) and public discreditation of trade unionism of the ICC Statute. is combined with the cooperation of State actors with illegal armed groups in a series As the ICC shows continued reluctance to of cases. The number of crimes committed start formal investigations into the situation against trade unionists in the past decades, of Colombia, crimes under its jurisdiction including 3,000 murders (775 of these are still being committed there on a daily being from 2002 alone), amounts to such a basis. In particular, trade unionists are level that it constitutes a widespread attack. continuously targeted. Further, the The attack may, moreover, be described as situation is by no means improving, rather systematic in character since it can be it is worsening. In 2011, 35 trade unionists firmly excluded that anti-union violence in were murdered or forcibly disappeared.i Colombia occurred randomly. Those Thirteen have been killed already this qualifying as most responsible under the year.ii Intimidations and death threats are criteria of the ICC Statute – paramilitary still the norm for trade unionists. Until commanders, high government officials as today, Colombia is still one of the most

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dangerous countries in the world for trade only be fulfilled at the preliminary unionists. examination stage before an investigation is opened and the case is brought before Ongoing impunity for such crimes creates the ICC, but have to be evaluated on an an inverse incentive for potential ongoing basis at every stage of the perpetrators who feel encouraged to proceedings. A decision to take a step continue committing these crimes, instead forward now and open an investigation of being deterred by examples of does not preclude the option of closing the accountability. The impunity rate amounts investigation at a later stage, should the to 92% of all cases of assassinations (with complementarity test lead to a different only 230 judgments having been rendered result. There is a reasonable basis to from 2,972 casesiii). Prosecutions, believe that Colombia is not complying moreover, very rarely target State actors, with its obligations under the complemen- and hardly ever investigate the intellectual tarity principle. Therefore, complementa- authors of those crimes. However, those rity considerations should no longer most responsible must be investigated and prevent the OTP from requesting the prosecuted in order to interrupt this opening of a formal investigation. continuous State policy of committing such an attack. In February 2011, an ILO high- Article 53(1) of the ICC Statute only level tripartite mission to Colombia requires that there be “a reasonable basis” concluded that “the majority [of trade in order to grant the opening of unionist killings] have not yet been investigations into a situation. The anti- investigated nor have the perpetrators, union violence that remains rife throughout including the intellectual authors of these Colombia more than satisfies this standard. crimes, been brought to justice.”iv As such, we urge the OTP to submit a request to the Pre-Trial Chamber in order The admissibility criteria, of which the to obtain authorisation to open an in- complementarity test is a part, must not vestigation into the situation of Colombia.

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7. The International Criminal Court and Colombia – What would be required

The International Criminal Court in The overall situation. At this stage, in Hague has jurisdiction over Colombia requesting authorization to open investi- since 1 November 2002. For all crimes gations, victims should be informed and against humanity committed in Colombia given the opportunity to contribute to the since this date – if committed as part of a Prosecutor’s request in the form of a widespread or systematic attack – the written statement. To date the Prosecutor Prosecutor can independently apply to the has twice submitted a request to the Pre- Pre-Trial Chamber to request authorization Trial Chamber to open an investigation. In of an investigation. A referral by a state both cases, involving Kenya and Ivory party or through the UN Security Council Coast, the request was granted. is not necessary. The initiation of an investigation has the In order to maintain a certain degree of advantage of enabling the Prosecutor to control over the Office of the Prosecutor, dispatch its own investigation team in he or she must formally request order to gather evidence, question authorization to investigate from the Pre- important witnesses and request documents Trial Chamber. This has not yet happened from other states as well as from in the case of Colombia, even after almost international organizations. The investi- ten years of preliminary examinations and gation can freely follow all leads, restricted despite the very low threshold for doing so only by considerations of time and the set out in the Rome Statute of the classification of the crimes as genocide, International Criminal Court. The war crimes or crimes against humanity, Prosecutor must simply demonstrate that and must focus on those bearing the there is a “reasonable basis” to proceed greatest responsibility. If sufficient with an investigation. This involves an evidence can be gathered, the investigation initial evaluation to establish that the ICC might conclude with an application for a has jurisdiction, a crime within the warrant to arrest individual suspects. At jurisdiction of the Court has been or is every stage of the process it must be being committed, the case is or would be determined if the case still would be admissible, which means that the state admissible, and particularly that there are party does not investigate the same acts no ongoing proceedings in the state in and persons, and whether taking into question against the same suspects in account the gravity of the crime and the relation to the same acts. This also means interests of victims, there are nonetheless that for the purposes of the Prosecutor’s substantial reasons to believe that an request for authorization to open an investigation would not serve the interests investigation, no final judgment needs to of justice. An initial summary of the be handed down regarding the ad- crimes must name the time and place the missibility; indeed any investigatory crime was committed as well as any measures introduced in the country in potential (groups of) suspects. A question may be examined in further detail. chronology of the alleged acts should be Directly after assuming office in June provided as well as maps and a glossary 2003, the Prosecutor of the ICC identified giving an overview of persons, groups, Colombia, along with the Democratic places and institutions relevant to the Republic of the Congo and Uganda, as one

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of the countries in which crimes of an submitting a request to investigate. international nature have been committed Colombia is briefly mentioned in public and which fall under the jurisdiction of the announcements relating to preliminary Court. Preliminary examinations were examinations, without any sufficient subsequently opened and the Chief explanation for the inaction on the matter. Prosecutor at the time visited the country There are no guidelines of any kind setting in 2007 and 2008. In the nearly ten years out time limits for preliminary exami- that have now passed since the beginning nations or deadlines for the publication of of the preliminary examinations, further reports on the status of preliminary exami- crimes have been committed in Colombia, nations. One of the consequences of this is acts over which the ICC has jurisdiction. that in Colombia, through two presidencies During this period the Colombian judiciary and various governments, these crimes has opened numerous investigations, continue to be committed and the over- directed mainly against low and mid-level arching criminal structures remain in place. paramilitaries, military personnel and The hopes within Colombian society that politicians as well as high-level members the ratification of the Rome Statute would of the guerilla groups. According to the bring an end to violence have long been Rome Statute of the International Criminal dashed. To date Colombians have been Court, the ICC should only act in cases denied a process of coming to terms with where criminal prosecution is not achieved the long history of violence in Colombia by the state itself. Precisely this situation is and a period of transition towards lasting occurring in Colombia, where for political peace. While low-level perpetrators are and security reasons those military officers prosecuted, criminal structures in the and politicians most responsible for crimes military, in politics and in business remain are left out of investigations. The OTP has intact, leading to the formation of new to date failed to clarify whether, and if so, criminal networks and rendering it in what timeframe and for what reasons a ultimately impossible for society to decision was reached to refrain from overcome the country’s legacy of violence.

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8. Final remarks

Our partners in Colombia and in many investigation. The submitted communi- other countries often put themselves at cation is intended to contribute to the great risk to ensure that human rights efforts of numerous human rights violations are punished under the law, in organizations in Colombia and around the the hope that legal sanctions handed down world who are working to achieve this for past wrongdoings can act to deter goal. It draws attention to a particularly future crimes. In the course of this work alarming aspect of the human rights they often come up against the limits of violations committed in Colombia: the their respective legal systems and, in such persecution of trade unionists. That this cases, hope for action to be taken on an repression is ongoing implies a special international or European level. Of course, obligation on the member states of the bringing cases before international courts European Union to press for compliance cannot fully make up for deficiencies in with fundamental individual and collective local judicial systems. Indeed, in rights and to resort to trade restrictions, if accordance with the so-called principle of necessary, in order to bring about this complementarity, the ICC is intended only compliance. In this situation, bringing the to prosecute the major perpetrators of Free Trade Agreement between the EU and international crimes where the state in Colombia into force would send the wrong question is unwilling or unable to do so. It signal. Instead, European states must remains the responsibility of each state support the work of the International party to prosecute the lower-level direct Criminal Court, financially as well as perpetrators of such crimes. through the gathering of evidence by their own prosecution authorities. Criminal In order to make progress on the proceedings aid the establishment of truth, deadlocked Colombian situation, the justice and, in the case of the ICC, International Criminal Court in The Hague reparations for victims, all of which are must now, after nearly ten years of important components for the achievement preliminary examinations, initiate a formal of lasting peace.

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Footnotes i ITUC, “Annual Survey of violations of trade unions rights”, 2012, available under http://survey.ituc- csi.org/Colombia.html?edition=336&lang=en#tabs-5 (last accessed on 5 October 2012). The ITUC further reports 10 attempted killings, 342 threats and 16 imprisonments. ii El Nuevo Siglo, “En 2012 13 sindicalistas han sido asesinados”, 17 August 2012, available under http://www.elnuevosiglo.com.co/articulos/8-2012-en-2012-13-sindicalistas-han-sido-asesinados.html (last accessed on 5 October 2012), according statistics by the CUT. The CUT furthermore had registered 146 cases of threats. iii Fiscal General Viviane Morales et al., Informe: „Judicialización de los crímenes contra sindicalistas. Análisis de las sentencias proferidas de 2000 a 2011 por la justicia colombiana“, 2011, p. 9, available under www.verdadabierta.com/archivos-para-descargar/category/58-sindicalistas?download=1023%3Ainforme-de- la-fiscala-sobre-crmenes-contra-sindicalistas (last accessed on 5 October 2012). iv International Labour Organization, “Conclusions of the High-level Tripartite Mission to Colombia”, 18 February 2011, p. 7, available under http://waysandmeans.house.gov/uploadedfiles/ ilo_high_level_mission.pdf; see also: Human Rights Watch, Letter to Attorney General Morales of 29 September 2011, p. 3, available under http://www.hrw.org/sites/default/files/related_material/ Letter%20from%20HRW%20to%20Attorney%20General%20Morales_Sept%2029%202011.pdf (last accessed on 5 October 2012).

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9th October 2012

Imprint Produced by: European Center for Constitutional and Human Rights (ECCHR) e.V. General Secretary Wolfgang Kaleck Zossener Str. 55-58, Aufgang D D - 10961 Berlin Tel: +49 (0) 30 40 04 85 90 Fax: +49 (0) 30 40 04 85 92 [email protected] www.ecchr.eu

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