On Tuesday December 11th at the Assembly of State Parties to the International Criminal Court took place an event titled "Colombia: context and challenges: Towards a new intermediate report?" This event was convened by the Comisión Colombiana de Juristas, the Alianza Cinco Claves represented by the Corporación Sisma Mujer and the Corporación Humanas, the Colectivo de Abogados José Alvear Restrepo and Lawyers Without Borders Canada. This is a summary of the main ideas expressed during this event.
Since 2004, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has been conducting a preliminary examination of the situation in Colombia, given the existence of crimes under the ICC’s jurisdiction.
In the past 15 years, the OTP has been able to observe and assess many situations regarding the performance of the judicial authorities in Colombia. Given the ICC’s complementary function and the current transitional justice scenario that is being advanced in Colombia due to the Peace Agreement which put an end to the internal armed conflict with the FARC-EP, a novel context is being generated for the development of the preliminary examination that we believe should lead to the clarification of the study of the situation of impunity in the country and the absence of rights guaranteed to the victims of international crimes.
In this specific context of transitional justice, we, along with other organizations of Colombian civil society, have identified a series of challenges which lead us to make a special call for attention to the OTP. In our opinion, the identification of such challenges should lead to the issuance of a new intermediate report, the continuation of the preliminary examination, the publication of annual reports on the situation of the country as well as for the OTP to consider the possibility of advancing towards the formal investigation stage.
Keeping in mind that international criminal justice is constituted as a way to put an end to the impunity of the perpetrators of the most serious international crimes in those situations where States are unwilling or unable to carry out the necessary investigations and indictments as provided by the Rome Statute, the OTP’s reports on Colombia highlighted the existence of precarious legal advances against those responsible - especially high-ranking officers - for sexual crimes, forced displacement and extrajudicial executions, also known as "false positives".
The creation of the Special Jurisdiction for Peace (JEP) in Colombia, which is in charge of administering justice against those responsible for crimes committed during the armed conflict, has increased the expectations of victims who have faced longstanding impunity in the country. It also generates a special follow-up context on the part of the OTP to verify compliance of said jurisdiction with customary law and the Rome Statute. However, despite the novelty of the justice mechanism, there are already elements of constitutional and legal status that may hinder the proper functioning of the JEP, generating a space for possible action by the OTP in order to move forward regarding the formal investigation of identified cases, complementing the work of the State and guaranteeing the rights of the victims.
Due to the above, we request that the OTP continue with the preliminary examination on Colombia in the hope of advancing towards the formal investigation stage as well as with its positive complementarity role, carry out an official visit to the country in order to assess the issues mentioned in our report, take into account the importance of the examination on the region, and assess the possibility of issuing an intermediate report that allows for the evaluation of the transitional justice system, especially regarding its performance on three suggested action contexts : i) special performance due to the absence of the JEP’s competence; ii) particular and complementary follow-up on the JEP’s performance; and iii) a detailed review of the actions and progress of the Office of the Attorney General of the Nation.