ICC Starts Next Chapter in Colombia
On October 28, the International Criminal Court (ICC) prosecutor, Karim Khan, on a visit to Bogota, announced that his office is closing down its preliminary examination in the country. The decision was cast as heralding a new chapter in the ICC’s support for national justice. But given the fragile transitional justice system in Colombia, the ICC’s decision to step back now raises concerns that it could undermine victims’ access to justice.
Colombia has endured over 50 years of armed conflict between government forces and nonstate armed groups. Military personnel and other state agents, paramilitary groups, and guerrillas—notably the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN)—have committed thousands of grave international crimes. In 2016, as part of their peace negotiations, the Colombian government and the FARC reached an Agreement on the Victims of the Conflict as part of their peace talks. Among other measures, the agreement provided for a “Special Jurisdiction for Peace” to investigate and prosecute international crimes and other human rights violations committed in the context of the armed conflict.
The ICC preliminary examination
The prosecutor’s preliminary examination aimed to determine whether or not a full ICC investigation was merited. There was no question that the crimes were serious enough to attract the court’s scrutiny. They included war crimes by armed groups and as many at 6,000 extrajudicial executions known as “false positives,” in which members of the military allegedly killed innocent people to boost their body count during the years of fighting. But the ICC is a court of last resort, deferring to genuine national proceedings. Colombian authorities have undertaken a range of domestic initiatives over the years for accountability. As a result, the ICC prosecutor’s office for several years had been monitoring national proceedings to determine whether it needed to step in.
Most recently, the government established the Special Jurisdiction for Peace, in charge of handling “grave violations of human rights and international human rights law.” The special jurisdiction, set up under a constitutional amendment, has a mandate over atrocities committed by FARC guerrillas and members of the Colombian armed forces, amongst others.
Proceedings before the Special Jurisdiction for Peace
Proceedings before the Special Jurisdiction for Peace, set up in 2017, remain at an early stage. The critical issue of detailing the punishment, known as “special sanctions,” that will be imposed by the tribunal, if and when people accept responsibility and are convicted, remains unaddressed. To be sure, there have been landmark steps forward in the past year such as Special Jurisdiction charges against 26 individuals, including a former general and several colonels, for “false positive” killings and against eight former senior FARC commanders for hostage taking and connected crimes.
But judicial authorities have made little significant progress regarding other crimes previously covered under the ICC’s preliminary examination, including sexual and gender-based crimes and offenses relating to the promotion and expansion of paramilitary groups.
Critically, the transitional justice system remains fragile. Former President Álvaro Uribe, a mentor of the current president, Iván Duque, and governing party leader, has recently proposed an “amnesty” and something “almost like a clean slate.” Uribe later proposed reforming the Special Jurisdiction and reducing prison sentences for members of the military.
These proposals are part of a pattern of efforts by the governing party, the Democratic Center, to undermine progress at the Special Jurisdiction, including by vetoing legislation that is critical for its operation, proposing reforms to seemingly undermine the work of the justice system, and making statements that appear designed to smear or intimidate the Special Jurisdiction and undermine the legitimacy of its decisions.
The Office of the Prosecutor’s changed approach
Against this complex backdrop, the former ICC prosecutor, Fatou Bensouda, whose nine-year term was completed in June and who had inherited the examination from her predecessor, had initiated a consultation process. The aim of the process was to develop benchmarks that would allow the Office of the Prosecutor to determine whether to close the preliminary examination and defer to national proceedings, or open ICC investigations in the absence of national justice.
Instead of proceeding with this framework, Khan’s decision to close now was accompanied by a cooperation agreement signed by Khan and President Duque aimed at safeguarding the progress made under the Special Jurisdiction. If the Colombian government violates the agreement, it could lead the ICC prosecutor to reconsider the decision to close the preliminary examination and to seek to open an investigation.
The agreement with Colombia was concluded with little to no genuine consultation with civil society organizations and victims’ associations, although some have welcomed the prosecutor’s decision to close the preliminary examination. By the time Khan met with civil society groups and victims’ representatives in Bogotá, his decision to close the preliminary examination with a cooperation agreement had already been leaked to the press and made public.
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