El control de convencionalidad de la renuncia a la persecución penal para agentes de Estado

Résumé

Is a transitional constitutional reform that establishes the judicial waiver of criminal prosecution for State agents in all cases related to international crimes (genocide, crimes against humanity, and war crimes) not selected by the Special Jurisdiction for Peace (hereinafter the JEP) compatible with the American Convention on Human Rights and the jurisprudence of the Inter-American Court of Human Rights (the acquis conventional)? Would the jurisprudence of the Constitutional Court be compatible with this acquis by interpreting the aforementioned reform, according to which, while those most responsible could be held liable for such crimes, those who are not found most responsible, a contrario sensu, could not be selected and, therefore, be granted the said waiver? To these questions I could answer with two doctrines: the peace makers or realists, who consider the end of the armed conflict to achieve a lasting peace as the main objective, and the human righters or idealists, who consider that the purpose is to investigate, judge and punish the serious human rights violations committed in the past. It is about a peace or justice dilemma. I am in favor of the Human Righters, which implies the fulfillment of the duty to investigate, prosecute and punish all those responsible for serious human rights violations and serious violations of International Humanitarian Law, typified as international crimes. A duty that the Colombian State fails to fulfill by issuing the aforementioned constitutional reform and theconstitutional jurisprudence by endorsing the waiver of criminal prosecution for State agents in all cases not selected by the JEP, which is manifestly incompatible with the There is no peace without justice.