{"id":84121,"date":"2021-11-09T11:16:48","date_gmt":"2021-11-09T10:16:48","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=84121"},"modified":"2021-11-09T11:17:36","modified_gmt":"2021-11-09T10:17:36","slug":"icc-backs-colombia-transitional-justice-model","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/84121-icc-backs-colombia-transitional-justice-model.html","title":{"rendered":"The ICC backs Colombia\u2019s transitional justice model"},"content":{"rendered":"\n

On October 28, Prosecutor Karim Khan decided to close the International Criminal Court\u2019s preliminary examination on Colombia, opened 17 years ago. His decision came with a strong endorsement of the country\u2019s innovative transitional justice model and in particular its Special Jurisdiction for Peace. It is also hailed by some as a success story of \u201cpositive complementarity\u201d between the ICC and a national court system.<\/strong><\/p>\n\n\n\n\n\n\n\n

After 17 years, Prosecutor Karim Khan decided to close the International Criminal Court\u2019s longest-running probe on war crimes and crimes against humanity. \u201cColombia has stepped up to its international obligations, to its Rome Statute obligations and, consistent with the principle of complementarity, I\u2019m delighted to say that I can step out of the preliminary examination stage\u201d, he announced in a ceremony in Bogota\u2019s presidential palace on October 28.<\/p>\n\n\n\n

In choosing to end the Office of the Prosecutor\u2019s exam instead of opening a formal investigation, the ICC endorsed the innovative transitional justice system stemming from the 2016 peace agreement with the Revolutionary Armed Forces of Colombia (FARC). It also gave a much needed backing to the Special Jurisdiction for Peace (JEP), the system\u2019s judicial arm which is seeking to strike a balance between restorative and retributive sanctions \u2013 but which has struggled amid the current government\u2019s efforts to undermine<\/a> its work.<\/p>\n\n\n\n

Khan, who took over as ICC Prosecutor last June, chose a new exit strategy to close the Colombia probe. He signed a \u201ccooperation agreement\u201d<\/a> with President Iv\u00e1n Duque in which the government pledges to \u201censure that the JEP is given space to do its do work\u201d, that it is \u201cproperly funded\u201d and, perhaps most importantly, that \u201cthere is no political or other interference in the process\u201d.<\/p>\n\n\n\n

Khan and Duque\u2019s strange dialogue<\/h2>\n\n\n\n

At times, the presentation of the bilateral agreement seemed like a conversation between two persons on different subjects, with Duque downplaying the importance of the JEP\u2019s work and Khan emphasising it.<\/p>\n\n\n\n

\u201cThis agreement signed today shows the world that Colombia, in these 17 years of observation or preliminary examination, has strengthened its judicial institutions and now faces its greatest test of ensuring that this framework fully satisfies all victims\u201d, said<\/a> President Iv\u00e1n Duque. In his speech, he highlighted the work done by the Attorney General\u2019s Office and by the Justice and Peace chambers that investigated crimes committed by the right-wing paramilitaries that demobilised during the administration of Duque\u2019s mentor, former president Alvaro Uribe, back in the mid-2000\u2019s. He only alluded vaguely to \u201cthe transitional justice in place\u201d today, stressing his government\u2019s funding of it, but not mentioning the JEP or the peace deal by name even once.<\/p>\n\n\n\n

In stark contrast, Khan underscored the work being done by the JEP throughout his speech, calling on perpetrators to come before the tribunal and acknowledge their crimes, instead of choosing the adversarial route in its two-track system. \u201cThis agreement makes it clear, consistent with the Rome Statute, that if there is a fundamental change of circumstance, if space is not given [to the JEP], a preliminary examination can be reopened\u201d, he warned, underscoring that the ground rules laid down in the agreement are \u201clegally binding undertakings\u201d and that his office will be monitoring the situation.<\/p>\n\n\n\n

An endorsement of Colombia\u2019s peace tribunal<\/h2>\n\n\n\n

Khan\u2019s exit strategy was widely interpreted as a strong endorsement of the JEP. \u201cThis is a triumph for the peace deal and the JEP: for the first time the ICC recognises the transitional system of a country as being in line with the Rome Statute,\u201d Sergio Jaramillo, the former peace commissioner who led the peace negotiations with FARC, told JusticeInfo. \u201cThe sole reason why it was closed are the JEP\u2019s investigative efforts,\u201d added<\/a> its president and justice Eduardo Cifuentes<\/a>.<\/p>\n\n\n\n

The ICC\u2019s decision comes months after the JEP unveiled its first batch of indictments, its clearest results so far. In January, following three years of investigation, the tribunal accused eight former FARC leaders<\/a> over thousands of kidnappings and then in July it accused 25 former Army officials<\/a> of having murdered 247 civilians and unlawfully passing them off as rebels killed in combat, a tragedy that Colombians have euphemistically called \u2018false positives\u2019. In both cases, the JEP charged them with war crimes and crimes against humanity, the harshest legal qualification possible.<\/p>\n\n\n\n

The FARC commanders have already announced their willingness to accept the charges and own up to their responsibility. Their admission paves the way for the JEP to hand them 5-to-8-year sentences in a non-prison setting, provided it also deems that they\u2019re answering to victims\u2019 demands for truth and redress. Should they contest the JEP\u2019s findings, their case would move to an adversarial track within the special tribunal and, if found guilty, face 15-to-20-year prison sentences. The indicted Army officials are expected to communicate their decision to the JEP soon too. The first rulings are expected before the end of this year.<\/p>\n\n\n\n

This reality means that Khan and his prosecuting team deemed that Colombia is in fact, in the Rome Statute\u2019s language, willing and able to fulfil its duties to investigate and prosecute the most serious crimes. It noticeably left the duty to punish out of the equation, trusting that the system in place means sanctions will be handed down.<\/p>\n\n\n\n

Human rights NGOs caught by surprise<\/h2>\n\n\n\n

Khan\u2019s announcement however came as a surprise to human rights organisations that have worked hand in hand with the ICC over the past two decades. While Human Rights Watch\u2019s Jose Miguel Vivanco called the decision<\/a> \u201cpremature, misguided and counterproductive\u201d and warned that it \u201cmay leave the JEP more exposed to attacks on its independence\u201d, most of the Colombian NGOs chose to strike a more positive tone and underscored the importance of the ICC\u2019s support for the JEP and the peace deal.<\/p>\n\n\n\n

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La decisi\u00f3n del Fiscal de la Corte Penal Internacional de cerrar su examen preliminar en Colombia con un acuerdo de cooperaci\u00f3n es prematura, equivocada y contraproducente.

La decisi\u00f3n puede dejar a la JEP m\u00e1s expuesta ante ataques contra su independencia.<\/p>— Jos\u00e9 Miguel Vivanco (@VivancoJM) October 28, 2021<\/a><\/blockquote>