On Friday October 9th, the very day the U.S. President Donald Trump imposed sanctions on the entire International Criminal Court (ICC), and that former ICC judge Navanethem Pillay received the Nobel Peace Prize, a document was made public in Colombia. It revealed a surprising power move by former President Gustavo Petro just before he handed over office to the winner of the presidential election, Abelardo de la Espriella.
Until then, this document had been kept secret. It is dated August 7th, Petro’s final day in office. In it, the outgoing president asks the ICC to reassess Colombia’s case. Such a move, for a country to refer itself to the Court, is extremely rare: it has only happened four times since the ICC was established in 2002.
According to the document, the Colombian government argues that there has been “a significant change in circumstances” and that the country no longer has the ability or willingness to investigate, prosecute and punish the most serious crimes committed during a half-century armed conflict – contrary to what it has been asserting for over a decade. It therefore asks the ICC, “should the statutory threshold be met, [to open] an investigation into past and ongoing crimes”.
Petro’s move could counter some of the manoeuvres by De la Espriella and his political allies against Colombia’s Special Jurisdiction for Peace (JEP), the transitional justice’s judicial arm, such as cutting its budget and seeking to give the military criminal justice system the power to review convictions of former military officials.
However, it could also backfire on the transitional justice system itself, as Colombia has spent years striving to demonstrate that its model complies with the standards of the Rome Statute and is effective in prosecuting the most heinous crimes. Furthermore, the decision to open a case could call into question the significant progress made by the JEP itself and underscore its shortcomings, particularly regarding sanctions.
“A significant change in circumstances”
Petro’s self-referral went unnoticed for two months after his term ended. Neither the Presidency, nor the Ministry of Foreign Affairs, nor the Ministry of Justice —the bodies that typically handle relations with the ICC— said a word about it. The complete document was only made public last week and was signed by the former president himself.
It was a procedural dispute between two bodies of the ICC - the pre-trial chamber and the office of the prosecutor - that led the Court’s president to lift the veil of confidentiality on October 8th: it resulted in the publication of the exchanges on the ICC website.
On 25 September, interim prosecutor Mame Mandiaye Niang lodged an appeal against a decision taken by the judges of the pre-trial chamber three weeks earlier. In that decision, dated September 3rd, they dismissed the complaint filed by Colombia, arguing that it “primarily consists of several references to concerns, speculative risks and hypothetical scenarios that may or may not materialise in the future”. In the judges’ view, the self-referral “does not identify a situation in which one or more crimes within the Court’s jurisdiction appear to have been committed” but rather constitutes an example of the new government’s “public rhetoric and announced policy directions”. In other words, they ruled that it had no merit.
The ICC prosecutor’s office, headed by Niang since a sexual misconduct cost Karim Khan his post in July, objected to that interpretation and asked the court’s Appeals Chamber to overturn the decision. In its view, the original decision didn’t consider the Petro administration’s argument regarding a “significant change in circumstances”.
Those four words are key. In the Rome Statute, the ICC’s founding treaty, this is the term that allows the court to assume jurisdiction if the country in question is unable or unwilling to investigate, prosecute or punish serious crimes. They also feature in the agreement signed by former prosecutor Karim Khan with Colombia in 2021 when he closed the 17-year preliminary examination into the country – the longest the Court has ever conducted. “If there is a fundamental change in circumstances, if space is not given [to the JEP], a preliminary examination can be reopened,” Khan had warned the government of Iván Duque, which had attempted to undermine the transitional justice process by vetoing its internal functioning norm.
For this reason, Niang requested that the prosecutor’s office gets to decide whether the complaint lodged by Petro’s government is valid and whether it warrants the opening of an investigation into the case.
Crimes that “may no longer be genuinely investigated or prosecuted”?
Beyond the procedural dispute between the ICC’s various instances, the complaint lodged by Colombia focuses - according to prosecutor Niang’s appeal - on a series of past and ongoing crimes that “may no longer be genuinely investigated or prosecuted by the Colombian authorities”.
By past crimes, he referred to those for which “the Prosecution’s previous finding of a reasonable basis to believe that crimes against humanity and war crimes had been committed, including in the context of forced displacement, sexual and gender-based crimes, and killings of civilians presented as combat casualties (‘false positives’)”. Regarding these three offences, Petro’s complaint states that there are “accountability gaps”, although the ICC prosecutor’s appeal does not specify what this refers to.
By ongoing crimes, he referred to “the ongoing violence affecting former FARC-EP [Revolutionary Armed Forces of Columbia - People’s Army] combatants, social leaders and human rights defenders”. These last crimes, which were not explicitly part of the preliminary examination opened by the ICC prosecutor’s office against Colombia in 2004, have been a reality in Colombia over recent decades – including during Petro’s time in office.
In the ten years since the peace agreement was signed, the UN Verification Mission has documented 501 murders of former FARC rebels who had laid down their arms and reintegrated into civilian life, out of a total of 13,000 peace agreement signatories. It has also recorded 185 attempted murders and 56 enforced disappearances. Meanwhile, at least 548 environmental or land rights defenders have been killed or disappeared in Colombia since 2012, according to the list compiled by the international NGO Global Witness – the highest figure in the world.
Significant progress on “false positives”
The past crimes mentioned in the ICC’s preliminary examination are at the heart of what the Colombian transitional justice system has been investigating. The case that has seen the most progress is the one on extrajudicial executions committed by the military, known to Colombians by the euphemism “false positives”.
To date, justices Catalina Díaz, Oscar Parra and Alejandro Ramelli of the JEP’s Acknowledgment Chamber have unveiled nine group indictments detailing hundreds of these murders of civilians murdered by Colombian military and falsely presented as rebels killed in combat. In these charges, they have accused 169 former military officials of war crimes and crimes against humanity.
They include 17 retired generals and 46 colonels, including three former commanders of the national army, Generals Óscar Enrique González, Jaime Lasprilla and Mario Montoya, notorious for ordering his soldiers to bring him “litres of blood”’. Although many, particularly those of lower rank, had been convicted by the ordinary courts and were serving prison sentences, so far none of those judicial decisions had documented in such detail the coordinated and premeditated manner in which they selected victims, fabricated military operations and rewarded those who took part – in short, how they issued orders and ensured impunity.
Twelve of these former military officials, who admitted their role in 135 extrajudicial executions in the Caribbean region, were already sentenced in September 2025, in one of the JEP’s first two judgements. Another one, Colonel Hernán Mejía, who did not own up to his role and opted for an adversarial trial, was sentenced in December 2025 to 20 years’ imprisonment, the maximum sentence permitted by the special tribunal.
Others are still awaiting a ruling. The delay by the special tribunal’s justices in converting these indictments into convictions is difficult to understand, given that 90% of the accused chose to publicly acknowledge their responsibility, reveal the truth, apologise to their victims and help redress them. In theory, such a decision would speed up the judicial process and reduce the burden of proving the facts on a case-by-case basis. Even so, the 10 former military officials and one civilian charged over “false positives” in the Catatumbo region are yet to see a conviction three years after their formal charges and four since the public hearing at which they apologised to their victims. Three other groups are in a similar situation.
In the adversarial track, designed for those who choose not to admit guilt, only the trial against Colonel David Herley Guzmán is progressing; another, Colonel Juan Carlos Figueroa, is awaiting sentencing after belatedly admitting his responsibility during his own trial. A further 20 are awaiting trial, individual charges from the Investigation and Prosecution Unit [the JEP’s prosecutors] or have filed appeals to halt cases against them.
Another sticking point in this macro-case could be that many victims of “false positives”, whose cases were not included in the collective indictments unveiled so far, still hope to see them investigated. The JEP’s acknowledgment chamber described its subcases as a prioritisation, but has so far avoided specifying whether this constitutes the total number of extrajudicial executions it will select.
A mixed track record on sexual violence
The JEP’s progress on the other offences listed in the ICC’s preliminary examination concerning Colombia has been mixed.
There is a “macro-case” currently underway focusing on sexual and gender-based violence; however, as the last one to be opened, it has only seen a partial indictment announced. Seven former rebel leaders, including Milton Toncel, Fabián Ramírez and Bertulfo Caicedo, were charged with rape or sexual violence. According to the indictment, as part of their strategy for territorial control, they used sexual violence as a form of punishment against women, generally from rural communities.
At least two other cases have involved similar charges. In the case on the recruitment of child soldiers, 27 former FARC members – including six from its top brass – were charged, amongst other offences, with the war crimes of rape and sexual slavery. Seeking to “de facto prohibit, at all costs, the exercise of motherhood and fatherhood” within their ranks, they subjected hundreds of girls to reproductive violence such as forced contraception and forced abortions. Similarly, in the kidnapping case, several former rebels were charged with sexual violence, and in the Cauca regional case, five were charged a month ago.
There have not yet been any charges of sexual violence against members of the military, although a retired sergeant was charged with persecution for targeting an LGBT person.
Less visibility on the crime of forced displacement
In contrast, accountability for forced displacement is more complex: as it has not been prioritised as a “macro-case” by the JEP, charges have been brought in several cases, but always alongside other, distinct offences.
In August this year, 25 former rebels were charged in the umbrella case with the war crime of forced displacement of civilians. However, as it is subsumed within an investigation ranging from the seizure of villages and massacres to the assassination of a former presidential candidate, it has received little attention. Something similar occurred in the first indictment in the case concerning crimes against ethnic groups in the Sierra Nevada de Santa Marta.
This reality contrasts with the scale of the issue in Colombia’s war: of the 10.4 million officially recognised victims in the country, one in five Colombians, 9.2 million were forced to flee their homes. The next most frequent offences – murder and threats – have eight- and ten-times fewer victims, respectively, according to the victims’ register of the government.
A setback for De la Espriella or a blow to the Colombian model?
Petro’s move comes at a time when transitional justice has once again become a political punching bag. The JEP is currently locked in a bitter dispute with the national government over its budget, after the ruling party proposed a bill to cut its funding by 100 billion pesos (33 million dollars). President De la Espriella – who promised during his campaign to abolish the transitional justice system he had previously defended – backed the move. In the first debate, they approved a 170 billion pesos (53 million dollars) cut.
At the same time, the Democratic Centre, which is part of his governing coalition, proposed a bill creating a body to review convictions of military officials by the JEP in the military criminal justice system, which is where investigations into “false positives” made the least progress historically.
JEP chairman Alejandro Ramelli sent a letter to the ICC prosecutor’s office on 18 September, arguing that the two proposals “undermine the material, legal, and institutional conditions essential to the JEP’s functioning, affect the progress and authenticity of national accountability proceedings, and constitute a breach of the obligations assumed by the government” with the ICC.
It also comes just as the Trump administration, through Secretary of State Marco Rubio and Secretary of War Pete Hegseth, has been pressuring Latin American governments to withdraw from the ICC and the Rome Statute. De la Espriella has not commented on the matter -and even if he did so, the Court would not lose jurisdiction over crimes committed in Colombia in the past. But a month ago, he withdrew the nomination of lawyer and former ambassador Carolina Olarte-Bácares as a judge of the ICC, despite her being the only candidate from Latin America and the Caribbean and having been assessed as “highly qualified” by the advisory committee.
So far, there is no indication that the ICC prosecutor’s office believes the situation in Colombia has changed. Deputy prosecutor Nazhat Shameem Khan visited Colombia in May and highlighted the progress made by the transitional justice system. A day later after Khan left, Costa Rican Judge Sergio Ugalde, who presides the Pre-Trial Chamber, visited too.
Could the ICC reopen the case?
However, on October 7th, the prosecutor’s office stated in response to an inquiry from the Spanish newspaper El País that it could reopen the preliminary examination if there were a significant change in circumstances. It said no more.
Such a move would bring De la Espriella negative international attention, and undermine its stance on being tough on crime. If it supports the bill put forward by former President Alvaro Uribe’s party – which could pave the way for convicted former military officers to have their sentences overturned – the government will be seen as responsible for facilitating impunity for senior officers who ordered, facilitated or covered up thousands of false positives.
But reopening the case would also be a severe blow to the country, which has spent years trying to persuade the ICC that its transitional model complies with the Rome Statute’s standards for investigating and punishing the gravest crimes. A model that has been seen as a success story of “positive complementarity” between the Court and a national judicial system.
It could, incidentally, undermine the JEP itself, which has been reluctant to fulfil the retributive component of its sanctions as stipulated in the 2016 peace agreement. The ICC has insisted for years that its endorsement of Colombia’s transitional model depends on “the imposition of effective penal sanctions that serve appropriate sentencing objectives of retribution, rehabilitation, restoration and deterrence”. An appeals ruling in July corrected many of the problems in the initial ruling against FARC’s top brass regarding thousands of kidnappings. However, questions remain, such as what the perimeter of their place of residence while they serve their sentence, who will monitor them after the transitional justice process ends in 2034, and whether redress efforts will be coordinated with existing government victim redress programs.
At best, the move by Petro -whose government didn’t play a visible role in solving those problems- could pressure the JEP to fulfil the retributive component of its sanctions and push De la Espriella’s government to provide transitional justice with the budget it needs to carry out its work.
At worst, it gives De la Espriella the perfect excuse to continue undermining the JEP.
