Is it possible to directly apply the responsibility of the superior of the Rome Statute in Colombia?

Abstract

The “superior responsibility” is a form of responsibility in international criminal law, which allows civilian and military superiors to be criminally liabled for crimes under international law committed by their subordinates. This figure is described in article 28 of the Statute of the International Criminal Court (Rome Statute). Despite the fact that the Colombian Penal Code does not recognize the responsibility of the superior, the Supreme Court of Justice directly applied the article 28 of the Rome Statute for the first time in the sentence SP5333-2018 of December 12, 2018, to judge a paramilitary commander according to this figure for crimes committed by his subordinates within the framework of the Justice and Peace Law. The purpose of the investigation was to analyze the jurisprudence of the Supreme Court of Justice on the responsibility of the superior. The methodology used was hermeneutical, where the academic literature and the most relevant jurisprudence on the subject were studied. The results of the investigation consisted in developing the two legal discussions on the responsibility of the superior that are present in the sentence SP5333-2018, the first, on the handling of the sources of international law, particularly about the direct application of the Statute of Rome, and the second, regarding the nature and content of the superior’s responsibility. This research constitutes a great contribution to the study of international criminal law in our country. Finally, the investigation revealed that the responsibility of the superior has been wrongly developed in Colombia.