Colombia: Letter to the Prosecutor of the International Criminal Court

September 30, 2021

Dear Prosecutor,

We are writing in response to the call by the Office of the Prosecutor (OTP) for comments regarding the development of a benchmarking framework that could guide the office in taking a final determination as to whether to open a formal investigation or close the preliminary examination in deference to genuine national proceedings in the situation of Colombia.[1]

As some of your recent remarks have indicated, the success of the Rome Statute system depends on national authorities increasingly playing their role in affording victims access to justice. At the same time, in its “Benchmarking Consultation” document, the OTP raises the important issue of when a decision either to “open” or to “close” should be considered ripe. It acknowledges that when it first proposed a benchmarking approach in late 2019 there was “considerable concern over the prospect [of] a premature determination by the OTP … in terms of the impact this would have on ongoing transitional justice processes in Colombia, which currently remain at a crucial, formative stage.” To address those concerns, “the Office has sought to re-assure stakeholders during the course of the last year that it does not anticipate any decision being reached imminently.”[2]

We strongly believe this analysis remains correct based on our close monitoring of accountability processes in Colombia. It would be premature and counterproductive to the goal of affording access to justice for victims of the serious international crimes the office has analyzed since opening the examination in 2004. We urge the office to keep the preliminary examination open while intensifying its efforts to engage national authorities, victim associations and their representatives, other civil society organizations, Colombia’s international partners, and additional stakeholders in support of realizing genuine national proceedings.

Since the office’s last annual report on the preliminary examination in December 2020, the Special Jurisdiction for Peace has taken important steps forward in some of the seven situations prioritized by its magistrates. These include bringing charges against 26 individuals, including a former general and several colonels, for “false positive” killings, and against eight former, top Revolutionary Armed Forces of Colombia (FARC) commanders for hostage taking and connected crimes.[3] In issuing the charges, the magistrates adopted an interpretation of command responsibility that appears consistent with international law, addressing a key concern as to how the agreement reached between the government and FARC guerrillas would apply to army commanders.[4] At the same time, judicial authorities have made little significant progress regarding other crimes covered under the preliminary examination, including sexual and gender-based crimes and proceedings relating to the promotion and expansion of paramilitary groups.

So far, there have been no convictions before the Special Jurisdiction for Peace, with proceedings remaining at an early stage in the process. The critical issue of detailing the  sanctions, known as “restrictions on liberty,” that will be imposed by the tribunal, if and when there are convictions of those individuals accepting responsibility, remains unaddressed.[5] The OTP has been clear that its assessment of the genuineness of national proceedings includes the matter of punishment and has noted that the effectiveness of these sanctions hinges on a “rigorous verification” system, whether their operationalization with participation in political affairs does not “frustrate their object and purpose” and on whether they “adequately serve sentencing objectives and provide redress for the victims.”[6] In May 2021, the UN Security Council expanded the mandate of the UN Verification Mission in Colombia to include the verification of sanctions imposed by the Special Jurisdiction.[7] Yet as the language in the existing legislation on these sanctions is vague, and no punishments have been imposed, it remains unclear how the “restrictions on liberty” will operate in practice.

Despite the recent progress, or precisely because of it, the transitional justice process itself remains fragile. Former President Álvaro Uribe, a mentor of President Iván Duque and the leader of the governing party, has recently proposed an “amnesty” and something “almost like a clean slate”[8]—an idea that was partly supported by the opposition leader Gustavo Petro who leads the polls for the May 2022 presidential election.[9] Uribe later proposed reforming the Special Jurisdiction and reducing prison sentences for soldiers.[10] Uribe’s 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.[11]

The OTP has been clear that an assessment of genuineness “necessarily relates to specific national proceedings in given cases, not to transitional justice mechanisms or the national judicial system as a whole.”[12] In this context, it is premature for the office to conclude that there are genuine national proceedings rendering the potential cases identified during the preliminary examination process inadmissible. Further progress at the national level is required before the office will be in a position to make that determination.

This is important for justice in Colombia and to avoid setting a negative precedent for other admissibility assessments at the ICC. Premature assessments by the OTP in the context of preliminary examinations could enlarge the space available to national authorities to seek to manipulate the principle of complementarity. Accordingly, the OTP should avoid assessments that endorse domestic activity that may be conducted with a view to staving off ICC intervention, but which has not matured into effective domestic proceedings. The OTP acknowledges that “at the lowest point in [its] relationship [with Colombian authorities], it appeared at times that the bare minimum was being undertaken at the national level in the effort to keep the ICC ‘at bay’.”[13] Ensuring there is sufficient domestic progress before concluding its assessment is a critical element of avoiding this result.

Noting this concern the final report of the Independent Expert Review cautioned against “having regard to prospective national proceedings,” and recommended "focus[ing] solely on whether national proceedings are or were ongoing” in admissibility assessments during the preliminary examination phase.[14] But, in our view, this could suggest a static view of admissibility that may not be sufficiently sensitive to the dynamic nature of national proceedings. As our detailed 2018 assessment of the OTP’s preliminary examination practice in four situations—Colombia, Georgia, Guinea, and the United Kingdom—demonstrates, political will to sustain genuine proceedings may wax and wane due to changes in the national context.[15] If admissibility assessments are made prematurely on the basis of a “snap shot” in time, there is a real risk of concluding proceedings are genuine before there is a sufficient track record of results to make this assessment.

Indeed, while fundamentally we consider the issue not yet ripe, the closure of the preliminary examination now in deference to national proceedings would carry significant opportunity costs for justice in Colombia. The OTP’s primary goal during preliminary examinations should remain a timely determination of whether the office will seek to exercise the ICC’s jurisdiction. The policy goal of catalyzing national justice, which in our view constitutes an element of “positive complementarity,” will always be secondary.[16] Yet pursuing this policy goal where appropriate could be a key dimension of maximizing the ICC’s impact on justice beyond the situations and cases it will pursue directly. It is fundamental to hopes for the ICC’s broad impact.

The OTP has had some success in catalyzing positive steps in Colombia, particularly where it concerns countering legislative proposals that could set back accountability efforts, including attempts to undermine progress by the Special Jurisdiction, as well as contributing to the continued forward movement in prosecutions against low and mid-level army soldiers. As set out in our detailed 2018 study, we believe the office could do more to have greater effect, including through the articulation of benchmarks to be satisfied by national authorities and clearer public statements where progress is insufficient.[17] But closing the preliminary examination would be premature, while also dealing the ICC out of efforts to ensure effective, genuine national proceedings are realized in cases relevant to the ICC’s admissibility assessment.

To the extent the office seeks to play an ongoing partnership role with the Colombian authorities, our monitoring of the situation suggests that the closure of the examination is likely to severely undercut its influence. Its influence is likely to be the most constructive where authorities are concerned that an ICC investigation would be opened absent further progress nationally.[18] While that influence has been taxed by the protracted nature of the preliminary examination, recent steps—like the identification of potential cases and submissions to the Constitutional Court—have demonstrated a more proactive approach. Closure would remove one important factor that, on a complex and multi-layered landscape, has seen forward, if incremental and inconsistent, movement on accountability through Colombian mechanisms. Given the global workload of the office, suggestions that the office could “reopen” the preliminary examination once it is closed and proceed to investigation are likely to come across as an empty threat.

Finally, we want to acknowledge that some ICC states parties have called on the Office of the Prosecutor to apply strict time limits to preliminary examinations while collectively, ICC states parties are failing to provide resources adequate to effectively meet the court’s current workload.[19] These factors may be creating pressure to “close out” situations—whether under preliminary examination or investigation—across the court’s docket.

Delay in opening investigations where ICC investigation is merited serves no one, least of all victims awaiting justice. We have previously recommended steps the office can take to expedite its preliminary examinations.[20] At the same time, we believe the length of the preliminary examinations is not a correct proxy for their effectiveness. Colombia is a Rome Statute member. Consequently, the ICC can be understood as forming a permanent part of its legal system. Pressure to conclude its engagement prematurely and move on misses the fundamental nature of the Rome Statute treaty as creating a system for justice, and not simply a courtroom in The Hague.

We urge your office as it contemplates next steps in the Colombia situation to keep the examination open and deepen its approach to engaging national authorities with the goal of realizing effective, genuine domestic proceedings. We will remain relentless in pressing states parties to address as a matter of urgency the resources necessary for the office to be able to implement its mandate independently, robustly, and ever more effectively across the situations open before it.

Sincerely,        

José Miguel Vivanco

Executive Director, Americas Division

Human Rights Watch 

Elizabeth Evenson

Associate Director, International Justice Program

Human Rights Watch