Deputy Prosecutor of the International Criminal Court, Mr. James Stewart, spoke at a conference on “Transitional Justice in Colombia and the Role of the International Criminal Court” held in Colombia last week. He noted that the role of the Court had not been without some public controversy and that it was time to put that role into its proper perspective.
The Office of the Prosecutor (OTP) opened a preliminary examination of the situation in Colombia in 2004, which is on-going, but to date it has not proceeded with an investigation.
Mr. Stewart highlighted that a situation of transitional justice, as exists in Colombia, only engages the mandate of the ICC Prosecutor, if the authorities of the State concerned are not themselves conducting genuine proceedings for such crimes, i.e. if they are unable or unwilling to act.
Up to and including June 2013, the OTP has received 141 communications under Article 15 in relation to the situation in Colombia. 94 of these are currently analysed in the context of preliminary examination.
In November 2012, the OTP published an interim report summarising the findings of the preliminary examination into Colombia. According to this report, there was a reasonable basis to believe that crimes against humanity were committed by various parties to the conflict. It was also suggested that various groups may have been responsible for committing war crimes.
The Prosecutor found, however, that the Colombian authorities had carried out and are still conducting national proceedings relevant to the preliminary examination against different actors to the conflict in Colombia for crimes that may constitute crimes against humanity and war crimes. For this reason, the Office considered the cases to be inadmissible before the ICC at that time.
According to Mr. Stewart, the OTP continues to inquire into relevant national proceedings to determine whether those most responsible for the most serious crimes alleged to have been committed by all parties to the conflict are being brought to account.
The interim report of 2012 described the principal focus to include sexual or gender-based crimes, forced displacement of civilian population, cases of “false positives”, as well as actions relating to support for paramilitary groups
Colombia’s so-called “false positives” scandal is centered around the extrajudicial killings of thousands of civilians by members of the armed forces who dressed their victims as guerrillas in order to present them as combat kills.
Mr. Stewart held that in relation to these false positives cases, the widespread victimisation resulting from this practice meant that continued failure to inquire into responsibility at the highest levels of military authority would affect the view the ICC Prosecutor takes on the admissibility of such cases before the Court. He stressed that there must be genuine progress in investigations of “false positives” cases at the national level.
Mr. Stewart also noted that the provision of the “interests of justice” had been invoked in discussions in relation to the Colombian situation. However, this notion only applies where a case was determined to be admissible before the ICC, which was not the case in the present situation.
He concluded by saying that, although the international legal framework created by the Rome Statute emphasises the vital importance of ending impunity for the perpetrators of the worst crimes, and that this framework cannot be suspended or ignored as a matter of expediency, it does however offer flexibility to States striving to deliver justice in post-conflict situations.
Colombia experienced for almost 50 years a conflict between the government and several illegal armed groups. The most significant illegal armed groups are the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias Colombianas, “FARC”) and the National Liberation Army (Ejército de Liberación Nacional, “ELN”). Over the years, the Government of Colombia has held several peace talks and negotiations with illegal armed groups, with different degrees of success.