PRESS RELEASE ON THE DECISION OF THE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT ON THE PRELIMINARY EXAMINATION ON THE SITUATION IN COLOMBIA
Bogota, October 28th, 2021
In his determination to move beyond the preliminary examination on the situation in Colombia, and adopt a new paradigm in the relationship between national authorities and the International Criminal Court (ICC), the Office of the Prosecutor recognizes and validates the transitional justice mechanism created by the Peace Accord that the Colombian State signed with the FARC-EP guerrilla in 2016. This decision symbolizes a seal of the highest quality, from the perspective of international criminal law, on the benefits, sanctions, procedures, efforts, and results of the Special Jurisdiction for Peace (JEP in Spanish).
As a result of the undeniable progress made by the JEP and other Colombian judicial bodies in the fight against impunity, the ICC has achieved the confidence necessary to reach the historic determination announced earlier today by the Prosecutor, Mr. Karim Khan. However, this decision will only prevail if a set of commitments are fully honored, among which the serious, genuine, and constant support to the JEP stands out.
The preliminary examination of the Office of the Prosecutor of the International Criminal Court (OTP-ICC) on the situation in Colombia lasted 17 years because, during that time, the judicial system did not show sufficient progress to address international crimes committed in our territory. It has only taken 3 years since the creation of the JEP for an event like this to take place, due to its hard work and commitment against impunity for the most serious crimes.
Colombia's relationship with the ICC changes from this time forward. From now on, cooperation will be more effective and expeditious, since the OTP-ICC will have a closer communication, especially with the JEP, with a view to activating its competences with higher intensity, and even taking them to their ultimate consequences, through a formal investigation, in case it detects non-compliance with the State's international obligations.
The OTP-ICC will continue operating in Colombia with full cooperation from the JEP, and will keep vigilant, although in a different manner, over what happens in our country, based, as of today, on greater confidence in the Colombian transitional jurisdiction and in the high expectations of genuine justice that it generates. It will be a new paradigm, with an equally rigorous, but more effective international supervision to define whether the preliminary examination is retaken, and a formal investigation is launched immediately. The two institutions, in other words, will complement each other in diverse ways. The JEP, at all its levels, will maintain permanent communication with the OTP-ICC. The Office of the Prosecutor, for its part, will be ready to continue and complement its mission in case the Colombian State does not fully comply with its international obligations. Mr. Prosecutor Khan could not have stated it better when he referred to the relationship between the two institutions during this new period: they are an exemplary manifestation of positive complementarity in action.
The OTP-ICC agrees with the State that in order to fulfill its duties under the Rome Statute, Colombia must, first and foremost, guarantee the stability of the constitutional and legal framework of the JEP, and refrain from interfering in its functions. Thus, the structure provided by the Peace Accord, the composition, functions, and institutions of the Jurisdiction today are a current and concrete expression of international criminal law in our country. It is not possible to alter them without activating a more decisive competence of the OTP-ICC, since a reform of this nature would constitute an objective breach of the commitments assumed by Colombia. In case of such a infringement, the Office of the Prosecutor retains the right to reopen the preliminary examination and, depending on the seriousness of the breach, to initiate a formal investigation. The purpose of bills of amendment such as the one currently under consideration by Congress, aimed at distorting the structure of the JEP with a different objective than fighting impunity, cannot be other than to disregard the renewed obligation that Colombia now acquires with the ICC.
Under the agreement between the OTP-ICC and the Colombian Government, the latter is obliged to guarantee the right to security of the persons for victims and for those appearing before the JEP, which means that it must implement all provisions of the Peace Accord that are pending implementation. Especially, those aimed at ending violence, such as (i) the adoption of an adequate and conclusive public policy to achieve the demobilization or dismantling of residual armed groups and criminal organizations that descended from the paramilitary; (ii) the implementation of a comprehensive rural reform, and (iii) the intensification of efforts to substitute illicit crops and end drug trafficking, which revenues are then invested in war.
The undertakings are applicable to all Colombian institutions. The State shall provide the JEP with the necessary budget for it to fully execute its functions. Therefore, with this agreement, the national government assumes responsibility for proposing the budget allocations reasonably requested by the Jurisdiction in successive years, and Congress, in good faith, must comply with its part. The agreement also establishes obligations of full cooperation and coordination between all branches and organs of Government, especially the Office of the Attorney General with the JEP. This means that Colombia will only honor its commitments to international criminal law if the State as a whole provides the JEP the cooperation required for the faithful fulfillment of its functions, and in particular if the Office of the Attorney General offers the JEP its investigative capacities for the most serious and representative crimes, and in service of the discovery of truth about conflict-related events.
All of the above implies that the OTP-ICC may resume and vigorously promote investigation proceedings in Colombia, as soon as it notices non-compliance with what has been agreed. In particular, Mr. Prosecutor Khan will consider as a breach of the principles of the new relationship with our country, any measure that affects, hinders, or jeopardizes the continuity, pace, or authenticity of the proceedings of the JEP; of the "special /restorative", "alternative", or "ordinary" sanctions that it may impose, or of the institutions agreed in the Peace Accord. It should be noted that a compromise such as the one achieved would not be possible without prior recognition of the satisfactory conformity of the JEP's sanctions with the highest standards of international criminal law applied by the Court. In the case of the "special" or restorative sanctions, the aforementioned commitment consists not only in the avoidance of interference, but also in providing all necessary financial and institutional infrastructure to implement a novel penitentiary scheme, strictly in line with the requirements of international criminal law. It is clear that the ICC sees in Colombia, but primarily in the JEP, an invaluable and serious laboratory under development, from which it hopes to take important lessons that can then be replicated in other places, where there are equally pressing needs to end impunity and the will to apply transitional practices and mechanisms such as those incorporated in the Peace Accord.
In the course of the strict monitoring process that the JEP will carry out on the commitments subscribed between the Colombian State and the OTP-ICC, if the Office observes lack of compliance with any of them, it will immediately make use of a direct and effective communication channel, created by such agreement, to alert the Prosecutor about these serious developments and to request, if necessary, the expeditious exercise of the full powers of the OTP-ICC for international criminal prosecution. It is a unique mechanism to respond in a timely manner to threats of impunity for international crimes, even with respect to one or a few individuals. The JEP will also be able to establish communication with the ICC through periodic reports to the Office of the Prosecutor on the progress of each of the cases under its jurisdiction. This is the new relationship of the JEP with the ICC.
Finally, it is worth noting that the announcement made this morning by the OTP-ICC is being preceded by the insistence of supportive countries that compliance with the Peace Accord is essential to resolve Colombia's major problems, including that of drug trafficking. The international community, knowledgeable about the work being done by the JEP, has expressed its full support and admiration for this Jurisdiction, and encourages it to move forward with ever greater strength and determination.
ACUERDO DE COOPERACIÓN ENTRE EL GOBIERNO DE COLOMBIA Y LA OFICINA DEL FISCAL DE LA CORTE PENAL INTERNACIONAL: 535686349-CPI-Acuerdo-de-Cooperacio-n (1).pdf