Emerging Voices: What Colombia’s FARC Peace Deal Teaches the ICC About Its Complementarity System.

[Camila Teran is a lawyer with a LLB in Law and a LLM in International Criminal Law, both from the University of Sussex.]

The ICC’s current crisis bears witness to the contentious relationship between the Office of the Prosecutor of the ICC (OTP) and States. The OTP’s progress is further frustrated by the small window triggering the admissibility phase that would allow the Prosecutor to formally investigate Colombia. The “Colombian situation,” focused on the prosecution of FARC militaries and paramilitaries through the Special Jurisdiction for Peace (SJP) Tribunal, after almost a decade proves the OTP’s complex relationship with Member States, exposing Colombia’s embedded hostility that manifests in adopting legislation not in directly contravening the Rome Statute but still warrants further investigation. Yet, preliminary examinations lack clarity to appropriately address these gaps that, left untouched, leads to abuse and impunity. The SJP’s legal gap is the definition of command responsibility (Transitory Article 24) opposing the Rome Statute’s Article 28. For the OTP to proceed with her preliminary investigation, the framework doesn’t cut it. This piece proposes updating the OTP’s “unwillingness” standard that proves the Colombian situation infringes the complementarity model regulating the OTP’s oversight over Member State’s domestic judicial processes.

A new category for the “unwillingness” standard?

To preserve national sovereignty, complementarity means the ICC, pursuant to Article 17, functions as a court of last instance. Unless Member States fail to take the appropriate steps to criminally process individuals accused of crimes that fall under ICC jurisdiction, the OTP cannot conduct an investigation.

And yet, this limits its scope since it relies on two scenarios for successful admissibility: (i) a State failing to initiate domestic proceedings or (ii) a state “unwilling” or “unable” to conduct proceedings in a genuine manner. Article 17’s “genuine” element involves an assessment of the state’s intention that is, predictably, not so straightforward. Its open-ended definition, particularly when analogously compared to Article 20(3) that disallows states to shield individuals from criminal responsibility, means the OTP cannot narrow her analysis.  

Article 20(3)(a): [Were] For the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.

Contrary to Article 20(3), Article 17’s non-exhaustive enumeration for grounds of admissibility lessens the OTP’s potential to pursue preliminary investigations with absolute certainty justice will not be brought. The OTP has previously suggested a more narrow approach to unwillingness, also endorsed by academics, that opposes the vague parameters of the “one or more” element rarely applied by the Court.

A clearer framework for Article 17(2) avoids dismissal of circumstances falling short of “unwilling,” e.g. national proceedings presumably conducting sham trials the Prosecutor cannot seek further legal guidance to discern. Currently, instances where a state’s judicial system is framed to shield individuals involves two main sub-criteria;“shielding” and “preponderance of evidence” elements.

“Shielding,” where the Prosecutor must prove national prosecutions are shams intended to protect individuals from criminal responsibility requires the Prosecutor to engage in subjective assessments usually lacking state co-operation. Whilst academics like Pichon suggest a set of indicia, Dalpe proposes a new international code of practice that apply to vaguer instances of state’s intentions, with the added benefit of removing deep-rooted political ties judges are often not well-versed in. This narrower Article 17(2) would take place utilising customary international law norms of Articles 31 and 32 of the Vienna Convention regarding travaux preparatoires (drafting stages of legislation), to interpret ambiguous provisions. Drafters foresaw middle ground between ICC jurisdiction and national sovereignty, making it possible to construct a broader ambit of “unwillingness” to include veiled instances of shielding that continues respects national sovereignty, i.e. sufficient grounds for admissibility.

The evidentiary threshold of Article 17(2),“preponderance of evidence” encounters difficulty as it requires assessing the State’s intent, rather than the perpetrator’s intent that alters the implications. Lower than “beyond reasonable doubt, this evidentiary threshold is too low to satisfy the “for the purpose of shielding” threshold proving State’s intent. Academics like Dalpe suggest raising the threshold to “convinced,” equal to beyond reasonable doubt allowing the OTP to improve her assessment using the available evidence to determine whether individuals have been shielded. In fact, the OTP already endorsed this interpretation of  “shielding” when assessing relevant information to “unjustified delay” or “lack of impartiality,” implying the relevance and compatibility of contextual factors within the current framework contingent the OTP focuses on mental elements..  The focus would be on “subtle attempts to bypass the law,” either by demonstrating no officials have been adequately prosecuted or that prosecution of only one or two officials doesn’t reflect the state’s overall intention to bring the person(s) accused to justice.

Command responsibility and Colombian context?

Using this backdrop, it’s possible to take a closer look to how this ties together with the command responsibility doctrine and transitory Article 24. Its worth applying the ICC’s Bemba appeal Decision (Prosecutor v. Jean-Pierre Bemba Gombo, “Judgement on appeal on Mr. Bemba against Trial Chamber III’s Judgement pursuant to Article 74 of the Statute” 8 June 2018)that clarified the Court’s stance on the mental elements of ICL. As a mental requirement, this form of criminal indirect responsibility must be attached to the crimes under the Rome Statute’s Articles 6-8 rather than as separate crimes. For this reason, Article 28 requires a lower mental requirement (mens rea), namely “should have known”, than that of a principal perpetrator. Bemba overturned the prior Pre- Trial Chamber decision, significantly clouding the waters that further challenges the admissibility of the Colombian preliminary investigation.

The Appeals Chamber (AC) decision to overturn the Pre- Trial Chamber’s (PTC) decision relied on the fact the PTC had been unreasonable to interpret the scope of the duty to take “all necessary and reasonable measures” as intrinsically linked to the commander’s material ability to prevent or repress the commission of crimes. As the AC remarked, “all necessary and reasonable measures” require pinpointing what crimes the commander knew or should have known and at what point in time, i.e. material ability to take measures based on what the defendant might reasonably have been expected to do in accordance with proportionality and feasibility. Essentially, the AC formulation implies an opposition to strict liability, suggesting it interpreted Article 28’s liability more widely. Even so, the decision fails to address key elements of the doctrine as highlighted by Judges Monageng and Hofmanski’s Dissenting Opinions, including:failure to prevent and punish, effective control and the mens rea element. These critiqued the Majority’s assessment left the issue of what Bemba should have done and whether he took all reasonable measures “unresolved” [para. 46]. These substantive gaps raise legal uncertainty vis- a -vis the Colombian situation should the OTP rely on this jurisprudence that opposes prior jurisprudence (ICTY comes to mind), further reducing the grounds of admissibility and inevitably, the Court’s legitimacy.

Compiling the above with Colombia’s contextual factors, the OTP’s framework of preliminary mechanism requires further reforms. Once applied, the current constitutional framework of Colombia would be sufficient to prove decades of shielding individuals against criminal prosecution that satisfies Article 17’s  “unwillingness” element. Two areas must be factored in:

1. Governmental Hostility: Colombian lawmakers during drafting the Rome Statute worried how becoming a Member State would affect the FARC peace deal. As a result, much its decisions were motivated to prevent further OTP intervention and preserve national sovereignty, whilst attempting to maintain its responsibilities to the Rome Statute and international norms vis a vis the Legislative Framework for Peace. Notwithstanding, this Framework has been subject to criticism by the OTP who accused the Colombian government of “shielding the establishment of criminal responsibility” (see: 2013 OTP Interim Report). The Colombian government’s hostility to OTP intervention was further displayed during the redraft of the 2016 Peace Agreement, where the Colombia interpreted the OTP’s jurisdiction over the prosecution of FARC members in a way that further pushed back the OTP’s influence. The lack of mentions of Article 28 within the framework, exposed the structural deficiencies of the preliminary examination model that does not reflect political realities and demonstrates the need for a complementarity system that accounts for wider contextual factors in which these situations reside in.
2. Constitutional Hostility: the OTP’s minimal influence over Colombia’s constitutional framework regarding SJP is arguably in contravention with Rome Statute obligations. The Tribunal’s framework applies domestic law, meaning that for the Rome Statute to become applicable, the Constitutional Court must make an assessment of its necessity, followed with adoption thereof. Key to this is the political will to modify Colombia’s Penal Code, in line with the Rome Statute. Yet, crimes against humanity, even if not expressly necessary, remains unincorporated in the Penal Code. Given its sui generis nature, it is hard to envision how the current Colombian Penal Code could accommodate the standards of crimes against humanity without encountering interpretive gaps, even if the SJP Statutory law envisions prosecution thereof.  Ironically, applying the ICC’s crimes against humanity standard would be against Colombia’s procedural and civil law rights. This incongruence renders the Tribunal unable to criminalise individuals in an ICC-approved manner, further complicating the OTP’s obligations under the preliminary examination process.

The OTP’s next steps depend on whether the Tribunal implements Rome-Statute friendly mens rea standards or allows it to continue straining its functions. However,  absent a framework that accounts for the statutory inconsistencies of Transitory Article 24, the successful admissibility on the basis of complementarity remains distant. The proposed model would make Colombia liable to its obligations to the Rome Statute by virtue of failing complementarity standards because of the Constitutional Court’s defiance of nullum crime sine lege (“no crime without law”) that satisfies the “convinced” standard suggested. Implementing all crimes within national jurisdictions should occur, as without this, States Parties remain free to choose not to implement ICC crimes whilst granting the Court’s jurisdiction. Recent developments as of September 2018 where The Chamber for the Definition of Legal Situations of the Special Jurisdiction for Peace heard a “voluntary submission” where the defendant, accused of extrajudicial killings known as “false positives”, utilised the current formulation of “command responsibility” to argue certain certainly warrant reforms of the current framework. Ospina and Pappier were right in flagging the potential to undermine the interests of justice.