Colombia

The ICC prosecutor opened a preliminary examination in 2004 to assess whether to formally investigate alleged crimes against humanity and war crimes by government, rebel, and paramilitary forces, taking into account the progress of peace talks in Colombia

Situation phase:

Preliminary examination - ongoing

Regions:

Americas

Colombia signed the Rome Statute in 1998 and ratified in 2002; however, it has not fully domesticated Rome Statute crimes and cooperation provisions. Colombia was trapped in a decades-long cycle of conflict until 2012, both caused by and resulting in poverty, inequality, and drug-trafficking. In 2004, the ICC prosecutor opened a preliminary examination for possible crimes against humanity from 2002 onward and war crimes from 2009 onward by the government and rebel groups. The ICC prosecutor is closely monitoring the Colombian peace process to ensure that justice measures are genuine and hold accountable those who bear the greatest responsibility for atrocity crimes.

Background

Conflict in Colombia from 1958 until peace talks began in 2012 resulted in at least 220,000 deaths and one of the world’s largest internationally displaced populations. Poverty, inequality, and drug-trafficking are both root causes and results of the conflict, which saw the rise and decline of various powerful drug cartels, guerrilla groups, and paramilitaries. The most significant conflict parties are the Revolutionary Armed Forces of Colombia – People’s Army (“FARC-EP”), the National Liberation Army (Ejército de Liberación Nacional, “ELN”), paramilitary armed groups and the Colombian armed forces. In October 2016, Colombians narrowly rejected a peace deal between the government and the main guerrilla group, the Revolutionary Armed Forces of Colombia (FARC). With a voter turnout of less than 38%, the referendum outcome came as a surprise to many. While explicitly excluding amnesty for war crimes and crimes against humanity, the agreement envisaged reduced and/or alternative sentences, such as house arrest, for perpetrators who confess to crimes and contribute to establishing the truth. The opinions of human rights organizations were split with regard to the agreement. Whilst the Columbian Commission of Jurists and the human rights group HUMANAS said yes to peace, Human Rights Watch and Amnesty had doubts and expressed the concern that it could lead to impunity for those responsible for human rights abuses.

ICC situation

The ICC Office of the Prosecutor (OTP) opened a preliminary examination in Colombia in June 2004. It has considered alleged killings, enforced disappearances, imprisonment, torture, and other grave crimes committed by both government and rebel groups from November 2002 onward. In 2012, the OTP found a reasonable basis to believe crimes against humanity and war crimes had been committed by the Colombian army, guerrilla actors like FARC and the National Liberation Army, and paramilitary groups.

Developments in Colombia suggest the potential for ICC preliminary examinations to motivate reform efforts at the national level, including national investigations into crimes falling under ICC jurisdiction. Colombian authorities have provided the OTP with 206 judgments against members of paramilitary groups and members of the armed forces issued between 29 June 2010 and 11 September 2017 by different Colombian courts, including Justice and Peace Law (“JPL”) tribunals. These judgments address multiple forms of conduct that fall under the Rome Statute Jurisdiction.

Cooperation

Colombia does not have specific legislative provisions for cooperation with the ICC but does have laws on international cooperation in criminal matters. Furthermore, Colombia has ratified the Agreement on Privileges and Immunities of the ICC to facilitate the work of ICC and ASP personnel in the field.

In 2011, Colombia became the first Latin American country to sign a voluntary cooperation agreement with the ICC on enforcement of ICC sentences.

National prosecutions

The Justice and Peace Unit (JPU) was established in 2005 with several Justice and Peace Tribunals (JPTs) to prosecute members of illegal armed groups that demobilized between 2004 and 2006. Its investigations and confessions shed light on the configuration of paramilitary structures and the relationships between these groups, government actors, business figures, and other actors.

The JPU evolved with the passage of new laws addressing some of its shortcomings, such as an absence of coordination between judicial and administrative authorities and inadequate technical capacity, expertise, and case databases. Significantly, a 2014 law enabled the 2014 judgment by a JPT against Salvatore Mancuso and other paramilitary leaders in 175 cases of sexual violence in conflict.

The Office of the Attorney General and its directorates have also reported investigations, prosecutions, and convictions in numerous enforced displacement cases against paramilitary leaders, hundreds of convictions of members of the national armed forces for extrajudicial killings, and numerous cases, investigations, prosecutions and some convictions of civilians and state agents not members of the public forces for crimes related to the promotion, support or financing of illegal groups.

In relation to proceedings relating to “false positives” cases, The Office of the Attorney General informed was reportedly conducting a total of 2,314 active cases, against 10,949 members of the army, involving 3,966 victims of “false positive” killings. As of September 2020, 1,749 members of the army had been reportedly convicted.

Regarding proceedings relating to sexual and gender-based crimes, the SJP reported that as of October 2020, the Panel had accredited 73 victims of sexual violence in three of macro cases concerning SGBC before the Panel for Acknowledgement of Truth.

Civil society advocacy

Coalition members have actively campaigned for full implementation of the Rome Statute during Colombia’s peace process. Civil society highlighted shortcomings of the country’s existing transitional justice in the mid-2000s and acted as key authors of a 2014 law incorporating more expansive definitions of sexual and gender-based crimes as crimes against humanity, including forced pregnancy, sterilization, and forced nudity.

Civil society along with the ICC-OTP have monitored the peace process in Colombia to ensure that, among other issues, the agreement’s allowance of political pardons does not undermine its prohibition of amnesty when pursuing justice in cases of grave international crimes.

Following the rejection of the peace accord in 2016, civil society called on all sides to continue negotiations to avoid a return to war.

Deferral of war crimes jurisdiction at odds with Rome Statute

Colombia ratified the Rome Statute in 2002, but was also one of only two states to invoke the Statute’s transitional provision—article 124, deleted in 2015—deferring ICC jurisdiction over war crimes in Colombia or by Colombian nationals. Various Coalition members strongly opposed the inclusion of the provision, noting that it weakened the jurisdictional regime of the ICC and was incompatible with the object and purpose of the Statute.

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