The Hague
On 28 October 2021, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) concluded its Preliminary Examination in Colombia, opened in June 2004. A Cooperation Agreement was signed between the Government of Colombia and the Office of the Prosecutor that renews the commitment of the OTP with Colombia’s accountability mechanisms. While marking a new chapter for complementarity in the country, it is also the first time that the Office concludes such an agreement with a State Party. As clearly stated by Article 6 of this Agreement, the OTP will ensure that the Colombian government is effectively and genuinely committed to fighting against impunity. It may, if necessary, reconsider its assessment of complementarity at a later stage, which means that any further obstacle to the work of the Special Jurisdiction for Peace (SJP) or other form of accountability, will trigger a renewed Preliminary Examination or an actual investigation.
Article 6
In line with the Rome Statute, the Office of the Prosecutor may reconsider its assessment of complementarity in light of any significant change in circumstances, including any measures that might significantly hamper the progress and/or genuineness of relevant proceedings and the enforcement of effective and proportionate penal sanctions of a retributive and restorative nature; initiatives resulting in major obstructions to the mandate and/or proper functioning of relevant jurisdictions; or any suspension or revision of the judicial scheme set forth in the peace agreement in a manner that might delay or obstruct the conduct of genuine national proceedings. In this context, and to ensure information flows about these and other related matters, lines of communication between the Office of the Prosecutor and the Government of Colombia and judicial actors, including with the Special Jurisdiction for Peace, will be maintained and reinforced.
Considering this decision, several PGA leading Members from Colombia made important political declarations:
Sen. Iván Cepeda Castro stated that the conclusion of the Preliminary Examination was a recognition of the work conducted by the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz or JEP), the Truth Commission, and the Unit for the Search of Disappeared Persons (Unidad de Búsqueda de Personas dadas por Desaparecidas).
El cierre del examen preliminar de la Fiscalía la Corte Penal Internacional obedece al reconocimiento del trabajo de la JEP, la Comisión de la Verdad y la UBPD. No significa que en el futuro no se pueda abrir casos sobre Colombia. Que no se ilusionen los amigos de la impunidad.
— Iván Cepeda Castro (@IvanCepedaCast) October 28, 2021
Furthermore, mindful of the concerns the decision raised, Sen. Cepeda stressed in a short public video that the OTP’s closure of the Preliminary Examination does not mean that no cases in Colombia could ever be opened before the ICC in the future. He conveyed that this is not a “blank check” for impunity. On the contrary, what the Office of the Prosecutor will do is to “carefully observe what happens from now on with the Special Jurisdiction for Peace. To that end, the government has committed to respecting this jurisdiction, which is vital because President Iván Duque’s government had proposed to eliminate this transitional justice mechanism that today is an example in the world.”
Mi declaración ante la decisión de la Fiscalía de la Corte Penal Internacional: pic.twitter.com/UDvXhKXvDb
— Iván Cepeda Castro (@IvanCepedaCast) October 28, 2021
As member of the movement “Defendamos la Paz” - an organization formed by environmental and human rights defenders, members of rural and indigenous communities, and politicians from across the political spectrum -, Rep. Ángela María Robledo co-signed a joint statement emphasizing that the Government's agreement with the OTP constitutes a recognition, by the current administration, of the legality and legitimacy of the SJP and an endorsement of the Peace Agreement.
Although Rep. Robledo believes that the decision of the OTP may be premature, she warned that her office would remain vigilant to ensure that President Duque’s Government complies with its commitments. She finally added that the Prosecutor should not ignore that several bills were introduced at the House of Representatives attempting to end the SJP’s mandate.
El Fiscal de la Corte Penal Internacional debe ingnorar que en @CamaraColombia cursa de nuevo un proyecto para acabar con la @JEP_Colombia
— Ángela María Robledo (@angelamrobledo) October 28, 2021
Una razón más para considerar apresurada su decisión de cerrar el caso Colombia por violaciones de DDHH y crímenes de lesa humanidad .
On a similar note, Sen. Roy Barreras Montealegre asked Duque’s Government to withdraw all bills altering the SJP, in accordance with the request made by the OTP to support the institution and the peace process in Colombia. To this declaration, Sen. Cepeda added that the agreement signed last week excluded any possibility to reform the SJP moving forward.
Durante años han atacado a la @JEP para hacer trizas la paz. Hoy la CPI @IntlCrimCourt alaba el proceso de paz que firmamos y exige respaldo a la JEP. Duque suscribe el compromiso. Solicito al partido de Gobierno RETIRAR los proyectos de ley que insisten en alterar la JEP. https://t.co/vXcrZtTAgR
— Roy Barreras (@RoyBarreras) October 28, 2021
Finally, Sen. Barreras issued a short statement where he emphasized that, as a result of the SJP’s work carried over the last few years, the OTP decided to “provisionally” conclude the Preliminary Examination in Colombia. In that sense, he highlighted that the Prosecutor and the ICC recognize the fundamental importance of the Tribunal and peace deal signed in 2016.
Colombia, somos una sola voz que se hace escuchar buscando el cambio.
— Roy Barreras (@RoyBarreras) October 28, 2021
Corte Penal Internacional reconoce el trabajo de la JEP y cataloga el proceso de Paz como ejemplar.#NoMásMiedo pic.twitter.com/5ZjjWQDqI5
Representative Ángela María Robledo advocated for an independent and impartial analysis related to the problems that arise in the restoration of rights and access to justice for victims of sexual violence.
Interview with Mr. Karim Khan, the ICC Prosecutor, on closing the Preliminary Examination (in Spanish)