The ICC Preliminary Examination in Colombia: A Mechanism to Support or Overthrow the Peace Negotiations Between the Government and FARC?

A partial deal on land marks a welcome breakthrough in the peace talks that began in October last year, even though the negotiations are taking place under the understanding that “nothing is agreed until everything is agreed.”  Thus, an agreement on one agenda point will only enter into effect if an overall peace accord can be reached.

The peace talks follow a five (in effect, six) point agenda, in which land reform was the first issue on the table. Work now begins to reach agreement on the remaining issues: political participation for FARC members, ending the conflict and demobilization of the guerilla, the problem of drug trade, the rights of the victims, and implementation of a final accord.

If the issue of land reform was difficult to overcome, the upcoming agenda items may be even more challenging for the negotiators.  During Colombia’s five decade long internal armed conflict, crimes have been committed against the civilian population on a massive scale by the actors involved – i.e. guerillas (FARC and ELN), state security forces, and right-wing paramilitary groups. Thousands have been killed, kidnapped, tortured, and subjected to sexual violence, or have forcibly disappeared, and millions have been internally displaced. A critical part of reaching a final peace agreement will thus be to ensure accountability for serious crimes committed during the conflict.

Colombia has been a State party to the Rome Statute of the ICC since 5 August 2002.[1] When former prosecutor of the ICC, Luis Moreno Ocampo, took office, he conducted analyses of a number of situations and identified Colombia, together with the DRC and Uganda, as the situations containing the gravest occurrence of crimes within the court’s jurisdiction.[2] Since there were no national proceedings in the DRC or Uganda, while proceedings had been initiated in Colombia, he initially focused on the other two situations.

In 2006, however, the Office of the Prosecutor (OTP) announced publicly that it had Colombia under so-called preliminary examination. The purpose of a preliminary examination is to enable the ICC Prosecutor to determine whether a particular situation meets the legal criteria established by the Rome Statute to warrant an investigation by the ICC. The analysis is a three-pronged one. First, it must be determined that crimes under the court’s jurisdiction have been committed, i.e. genocide, crimes against humanity, or war crimes. The second step is to assess whether the situation meets the admissibility criteria under the Rome statute, taking into consideration both the gravity of the alleged crimes and complementarity. Third, initiating an investigation must not contravene the interests of justice.[3] If the above criteria are met, the Prosecutor may initiate a formal ICC investigation into a situation, subject to judicial review as appropriate.

The principle of complementarity states that ICC jurisdiction is complementary to national criminal jurisdictions. This means that crimes within the Court’s jurisdiction may be inadmissible if subject to national investigation or prosecution.[4] Determining whether the national justice system has prosecuted the relevant cases, thus blocking admissibility at the ICC, has been the main focus of the ICC preliminary examination in Colombia.

Colombia has a sophisticated and independent justice system, particularly compared to other situations under ICC scrutiny, and Colombian authorities have indeed conducted a large number of trials in relation to crimes under ICC jurisdiction.[5] Proceedings have been initiated against guerilla group leaders, paramilitary leaders, police and army officials and politicians with alleged links to armed groups. Several of the most senior FARC leaders have been tried and convicted in absentia, even though they have not yet been subject to capture and confinement.

Despite these efforts, Colombia suffers from decades of impunity for crimes related to the armed conflict. The Justice and Peace process, which was implemented as a means to induce paramilitaries to demobilize and confess their crimes in exchange for reduced sentences of 5-8 years, has been in place for more than eight years, but so far only a couple of handsful of paramilitaries has been convicted.[6] According to official numbers, it would take 100 years to process all the persons involved in the Justice and Peace proceedings (although new legislation has been implemented to speed up the process and make it more efficient).

Altogether, the Colombian justice system is faced with countless investigations. The perpetrators are often part of criminal networks that have infiltrated the Colombian society at local, regional and national level, making criminal investigations extremely complex and resource demanding. No ordinary criminal justice system is equipped to deal with that kind of massive criminality, and Colombia’s overburdened justice system is simply not capable of investigating the entire backlog of serious crimes related to the armed conflict. The difficulty for the ICC prosecutor has thus been to determine whether Colombia has done “enough” under the complementarity principle enshrined in the Rome Statute.

With the peace negotiations between the government and FARC progressing, determining whether Colombia has passed the complementarity threshold promises to be even more difficult. The peace negotiations were preceded by an important constitutional reform called “the Legal Framework for Peace”, which sets a roadmap for the peace negotiations.[7] The reform, adopted in June 2012, enables the Colombian Congress to define criteria for the selection of certain crimes, whereas others will be subject to other transitional justice measures. The transitional justice mechanisms the law provides for will be applicable to all actors of the armed conflict, i.e., not only the guerilla groups, but also to paramilitaries and governmental armed forces.

The key criteria for deciding which cases are to be selected for prosecution is that they involve “those most responsible” for serious international crimes.[8] Even such crimes that amount to crimes against humanity and war crimes could fall outside of the scope of prosecutions if the alleged perpetrator is not considered among “those most responsible”.[9] Even in relation to those cases that are selected for prosecution, i.e. those considered most responsible, the constitutional amendment also includes the possibility of suspended criminal sentences. The content and scope of such suspensions are not defined in the amendment, but will be further elaborated in legislative proposals soon to be underway. One possibility is that those most responsible will be investigated, tried and convicted, but that their sentences will be completely suspended.

In an interim report on the preliminary examination, released in November 2012, the OTP underscored that the preliminary examination from here on would focus – inter alia – on the execution of sentences for guerilla leaders. No doubt the ICC is following the peace negotiations closely. The crucial question is this: will a negotiated peace agreement that involves shortened or suspended criminal sentences, even for those most responsible, be a cause for the ICC to intervene under the principle of complementarity? Or does the duty to investigate and prosecute under the Rome Statute not necessarily include the imposition of a prison sentence – if the investigations are part of a holistic transitional justice strategy that entails attributing accountability for international crimes as well as other measures aimed at restoring the rule of law (such as reparations, truth telling, restitution, etc)? While the ICC has proven to accept shortened or alternative punishment in the framework of a broad transitional justice strategy (e.g. the JPL-proceedings, which involves a 5-8 year prison term also for crimes under ICC jurisdiction), it is unlikely to accept an agreement that amounts to blanket amnesties for those most responsible.

There appears to be a genuine effort on behalf of President Santos and his administration to transition out of conflict into a sustainable peace, and a realization that such a process must keep victims’ rights at its center. Through the Legal Framework for Peace, Colombia has identified a transitional justice scheme that does not involve general amnesties. Instead, cases involving those considered most responsible will be selected for prosecution. However, the quantity of cases selected for prosecution, and the minimum prison time served by those convicted, is yet to be defined.  The FARC leadership is almost certainly not interested in a peace agreement that involves lengthy prison sentences for themselves, and a subsequent foreclosed opportunity to participate in politics. And the Legal Framework for Peace does hypothetically comprise an outcome that amounts to de facto amnesties, given that criminal sentences could be suspended in their entirety.

Colombia’s Peace Commissioner has underlined that general amnesties are out of the question and vicariously denied that a peace agreement will lead to impunity.[10]  At the same time, many are worried that this is precisely what the outcome will be when the legal framework for peace is activated in the wake of a final accord. 

In a press release from April this year, the OTP showed deference to the Colombian government’s willingness and ability to devise a transitional justice strategy that complies with its responsibilities under the Rome Statute, while at the same time cautioning that justice must not be overlooked in the peace negotiations: “Colombia today is at a crossroads, facing an opportunity to overcome decades of conflict and bring an end to a situation that has led to the ongoing commission of alleged ICC crimes. The principles of the Rome Statute – to which currently 122 states are parties, including Colombia – reflect the consensus of the international community regarding the integral role of justice in ensuring peace, stability and security. The Rome Statute provides a legal framework underpinning durable solutions that provide for both peace and justice in this regard.”[11]

The perceived threat of an ICC intervention will surely be a factor as the peace talks progress.

The possible outcomes of the negotiations and the legislative proposals underway to set out a comprehensive transitional justice strategy in the wake of a peace agreement may well challenge the notion of a State’s duty to investigate and prosecute under the complementarity regime.

Furthermore, the ICC’s presence in Colombia might again trigger the familiar debate on peace versus justice. At the moment, the Court has the potential to either assist in conflict resolution or derail a fragile peace process. On the one hand, a rigid demand for accountability from an international institution might contribute to a complete break-down in the negotiations that have successfully moved forward on other agenda points. On the other hand, the mere threat of a potential ICC intervention – instead of an ongoing investigation against specific individuals who are aware that they will be subject to criminal justice proceedings upon arrest – could actually give the government leverage in the peace negotiations with the FARC. The negotiators on both sides are well aware that an agreement involving blanket amnesties for those most responsible will cause the ICC to intervene. This is an outcome that neither party desires. The ICC preliminary examination could therefore influence the negotiations positively, forcing the parties to find a mutually agreeable solution that also corresponds with the “minimum level” of accountability required under international justice norms. 

Time will tell. President Santos has declared that he wants a final agreement already this year, ahead of elections in 2014. Before any final agreement can be enacted, it shall also be approved via popular vote or referendum. The negotiators have little time to complete the difficult task of devising an agreement that satisfies not only both sides of the table, but also the Colombian people, as well as the ICC.