Flying Low to Reach New Heights? Colombia Candidate to the International Criminal Court

This blog is part of a series highlighting local perspectives about ICC judicial nominations, including the candidate’s qualifications and the process that led to their nomination. By hosting this series, the Open Society Justice Initiative (OSJI) seeks to provide a platform for local actors with knowledge of that background to inform a wider international audience. OSJI does not necessarily endorse the views expressed. OSJI has offered an opportunity to civil society groups from all nominating states to express their views.

In the midst of the COVID-19 pandemic, Colombians learned indirectly of the Colombian government’s nomination of Andrés Bernardo Barreto González to fill a judicial vacancy at the International Criminal Court (ICC).  

The news was unexpected and confusing for at least three reasons. First, the news did not come from the Ministry of Foreing Affairs, the nominating body; rather, the public learned of Barreto González’ nomination when the Court itself published a list of nominees. Second, rather than learning that a selection process had begun, it was clear that the candidate had already been nominated without any opportunity for public discussion or participation. Third, there is the obvious question of how the current Superintendent of Industry and Commerce (Barreto González’ current position) has the profile (and is the best possible candidate) to address issues of international criminal law at the highest international level.

This last question is particularly relevant in a country like Colombia. Given the long history of violence and the massive commission of international crimes in the context of the armed conflict, the country not only has extensive legal experience in international criminal law and many deserving candidates for positions at the ICC, but is also one of the countries currently under preliminary examination by the ICC Office of the Prosecutor. For both these reasons, it could have been expected that the decision of who to nominate for such a candidacy would be made carefully and guided by the interest of making a positive contribution to a body of utmost importance in the world suchas the ICC.

Friendship above capacity

By nominating a president’s childhood friend, the administration of Iván Duque has decided to privilege secrecy and nepotism at the expense of strengthening domestic and international institutions. In Colombia, despite persistent civil society requests, the administration has not organized public processes to select candidates to fill vacancies at multilateral organizations.

The decision on Barreto González’ candidacy not only ignores these civil society calls to undertake a transparent nomination process, but it also underscores Duque administration’s policy of reversing the few existing advances in participation, transparency, and election based on merit. In fact, this government has repealed the only existing selection processes: the selection of the Attorney General and the nomination of candidates for the Constitutional Court.

In the absence of these processes at the national level, candidates for both senior judiciary offices and international positions have been selected based on ideological affinity and friendship with the president. The main criteria for selection has not been merit to perform the designated role, as the recent unfortunate experience of a nomination to the Inter-American Commission on Human Rights (IACHR) has demonstrated. During the process, a group of independent experts found that the Colombian candidate did not “meet the requirement of recognized competence in the field of human rights law.”

The case of Barreto González  is similar. Although he is a well-known and respected lawyer in the fields in which he has practiced, Barreto González is not recognized by the Colombian legal community for his extensive experience or knowledge in international criminal law, international humanitarian law, or human rights. Moreover, according to the information on Barreto González’ resume, the candidate does not seem to meet the qualifications required in Colombia for appointment to the highest judicial office, as established in Article 36(3)(a) of the Rome Statute. In particular, he does not appear to fulfill the constitutional requirement (Article 232 of the Colombian Constitution) of having practiced as a lawyer for at least fifteen years.

Not fulfilling the basic requirements for the position could lead the government into another negative experience, similar to that of the IACHR nomination. For this reason, it is likely that the government has decided to fly under the radar with this nomination. It remains to be seen if states parties will buy it. Colombians won’t.

Nelson Camilo Sánchez, Assistant Professor of Law and Director for the International Human Rights Law Clinic at the University of Virginia School of Law.

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