When a Preliminary Examination Closes, a New Era Opens: The OTP’s Innovative Support for Transitional Justice in Colombia

[Santiago Vargas Niño is a Legal Officer at the Tribunal for Peace of the Special Jurisdiction for Peace, Colombia. He is formerly an intern, legal assistant, and assistant legal officer of the Office of the Prosecutor of the International Criminal Court. The views expressed in this article do not necessarily reflect the views of the Special Jurisdiction for Peace.]

On 16 June 2021, renowned British barrister Karim A. A. Khan, QC, was sworn in as the new Prosecutor of the International Criminal Court (“ICC” or “Court”). In his acceptance address, Prosecutor Khan stressed the importance of the principle of complementarity. He thus sent a clear message to states: during his mandate, he would defer to genuine domestic proceedings and stand ready to engage with national authorities in “novel and imaginative ways”, wherever possible, to make inroads in the fight against impunity within situation countries. Following through on his approach, Prosecutor Khan subsequently found that “complementarity is working today in Colombia”. Hence, he decided to conclude the lengthiest Preliminary Examination (“PE”) in the history of the ICC. This decision may have profound implications in the interpretation and application of the principle of complementarity in the future. In particular, it may open the door for transitional justice mechanisms that appeared foreclosed by the Court’s practice until now.

Up to this point, complementarity was mostly seen as an ICC-centric test to ascertain whether domestic proceedings were being conducted against the same persons and for substantially the same conduct as those covered by the (potential) cases brought forward by the Office of the Prosecutor (“OTP”). Local authorities must, therefore, take progressive investigative steps to determine the criminal responsibility of persons of interest to the OTP in order to prevent ICC intervention. Furthermore, such inquiries must sufficiently mirror the case under investigation in The Hague. This means that there must be a considerable overlap between the incidents being investigated at the international and domestic levels. Failure to meet such stringent requirements, which Heller (2016) has long viewed as contrary to the rationale of complementarity, would allow the ICC to enter a finding of admissibility. Thus, the Court could exercise its jurisdiction in lieu of national authorities.

While not explicitly barring transitional justice mechanisms, the Court’s caselaw left the question about their permissibility under Article 17(1)(a) of the Rome Statute (“RSt”) unresolved. Allan (2011), for instance, argued that investigations must be criminal to pass muster, thus rendering truth commissions empowered to grant amnesties inadequate. On the other hand, Robinson (2003) maintained that “diligent, methodical effort[s] to gather the evidence and ascertain the facts relating to the conduct in question, in order to make an objective determination”, would satisfy the “investigation” requirement even if they were not criminal in nature. Stahn (2005) held a similar view. Nevertheless, the issue has not been adjudicated by the ICC. As a consequence, legal uncertainty posed a unique challenge for the Colombia PE due to the abundance of transitional justice initiatives that were implemented over the last two decades.

The Colombia PE was launched by the first ICC Prosecutor, Argentine lawyer Luis Moreno-Ocampo, in June 2004. After eight years analysing the country’s overwhelming conflict-related criminality, the OTP concluded that there were reasonable grounds to believe that members of the Colombian Army, as well as several organised armed groups, committed crimes within the Court’s jurisdiction. Due to the massive scope of the situation, the OTP decided to focus its admissibility assessment on four thematic areas: (i) promotion and expansion of paramilitary groups, (ii) forced displacement, (iii) sexual and gender-based crimes, and (iv) the widespread murder of civilians by members of the Army in order to inflate their operational results, a practice that is widely referred to as “false-positives” killings.

From that point onward, the OTP carried out an uneasy complementarity assessment during the third phase of the Colombia PE. It pursued seemingly contradictory aims: a “traditional” evaluation of domestic proceedings over cases of interest to the ICC along with what it termed a “positive approach to complementarity” in its 2013 and 2014 reports on PE activities. 

The “traditional” complementarity assessment led to a yearly stocktaking exercise detailing the investigations, indictments, trials, and sentences carried out by various judicial authorities in Colombia. The OTP demonstrated a keen interest in “false-positives” killings. Indeed, it identified five potential cases dealing with the alleged role of eleven Army brigades – operating under five different divisions – in the commission of hundreds of murders. It then conducted focussed inquiries into the progress of investigations against Army officials over a period of four years. Information that was leaked to the media in 2017 even identified 29 Army generals and colonels who were supposedly in the Court’s crosshairs. Yet the OTP never filed a request for the authorisation of an investigation in Colombia.

Meanwhile, the “positive approach to complementarity” meant that the OTP acted as a watchdog to promote domestic responses to international crimes, influence debates regarding their compliance with the RSt, and protect them from political obstructionism. The interactions between the OTP and Colombian authorities gave the latter latitude to establish “Justice and Peace” Chambers in various District Courts that were empowered to grant alternative penalties, of between five and eight years of imprisonment, to former AUC members who contributed to truth and reparation. Furthermore, the frictions with the ICC lead to a unique conceptualisation of justice – enshrined in the fifth part of the 2016 Peace Agreement signed with FARC-EP – that weaves together restorative and retributive approaches.

Certainly, the Special Jurisdiction for Peace (“SJP”) prioritises the perpetrators’ acknowledgment of truth and responsibility in exchange for non-carceral sanctions of five to eight years, during which they should perform restorative works to benefit war-affected communities. Adversarial proceedings are triggered only if those responsible for crimes committed in the context of the armed conflict fail to recognise their liability to the victims’ and the SJP’s satisfaction. Should the accused accept the charges before the judgment is delivered, they would receive an alternative penalty of five to eight years in prison. If they decide to carry on with the proceedings and are found guilty beyond reasonable doubt, that punishment may increase to up to 20 years of incarceration.

The SJP is currently investigating seven macro-cases dealing with various aspects of the armed conflict. Notably, it has attributed war crimes and crimes against humanity to former FARC-EP commanders for the taking of hostages and other severe deprivations of physical liberty. It also issued a prioritisation decision, and two decisions containing war crimes charges against members of the Army and civilians for their role in “false positives” killings in the Catatumbo and Caribbean Coast regions. 

While the OTP originally held that “a sentence that was manifestly inadequate, in light of the gravity of the crime and the degree of responsibility of the convicted person, could vitiate the apparent genuineness of the proceedings”, it progressively warmed to the SJP’s approach to justice. Thus, more recently, it posited that SJP penalties would be acceptable if they “adequately serve sentencing objectives and provide redress for the victims”. In order to do so, they would require effective implementation, a rigorous verification system, and measures to guarantee that other activities – such as political participation – do not frustrate their object and purpose. Furthermore, former Prosecutor Fatou Bensouda’s final decision regarding the Colombia PE was to open a consultation on structural, procedural, and outcome benchmarks against which her office could decide whether to close the PE or to request a formal investigation. At the time, she stressed that “the trajectory of accountability on which Colombia has set itself, involving a complex array of actors and accusations, will continue to evolve over a significant period of time and take many years to complete”.

In this context, when Prosecutor Khan decided that “[t]he progress made has led the Office to determine that the national authorities of Colombia are neither inactive, unwilling nor unable to genuinely investigate and prosecute [RSt] crimes”, he implicitly acknowledged that the SJP satisfied the “traditional” complementarity test mentioned above. Hence, he sought assurances from the Government of Colombia that it would cooperate fully with the SJP. They were embodied in an agreement that, at first glance, appears to meet the definition of a treaty under Article 2(a) of the 1986 Vienna Convention. While not in force, the Convention offers valuable guidance on the binding nature of the agreement. Never before had an ICC Prosecutor signed a document of this nature to guarantee the success of a domestic judicial organ. Let alone one that challenges the paradigm of retributive criminal justice incorporated in the RSt.

Even though these developments delayed a finding on admissibility for 17 years, they demonstrate a profound shift in the OTP’s understanding of the principle of complementarity. In particular, they show that a “positive approach to complementarity”, which is flexible and context-specific, may lead to the adoption of transitional justice mechanisms that – despite being empowered to impose non-carceral penalties – could constitute “investigations” within the meaning of Article 17(1)(a) RSt. Ultimately, this means that the OTP could help states satisfy the “traditional” complementarity test through open and creative dialogue at the PE stage.

A new era may be upon us: one in which the ICC finally acknowledges that “justice” means something more than “punishment”.