On 28 October 2021, based on thorough legal and factual analysis of the information available, the Office concluded that there was not a reasonable basis to believe that potential cases arising from an investigation of the situation would be admissible. This was because, based on an assessment of the facts as they presently exist, the national authorities of Colombia could not be characterised as being inactive, nor unwilling or unable to genuinely investigate and prosecute relevant Rome Statute crimes. Accordingly, the Prosecutor decided to close the preliminary examination, subject to possible reconsideration upon a significant change of circumstances.
Jurisdiction – General status
Colombia deposited its instrument of accession to the Rome Statute on 5 August 2002 together with a declaration pursuant to article 124 excluding war crimes from the jurisdiction of the ICC for a seven-year period. The ICC may therefore exercise its jurisdiction over war crimes committed in the territory or by the nationals of Colombia since 1 November 2009 and over other crimes listed in the Rome Statute committed since 1 November 2002.
Procedural history and focus of the preliminary examination
The situation in Colombia had been under preliminary examination since June 2004. The OTP has received numerous communications under article 15 of the Rome Statute in relation to the situation. The preliminary examination focussed on alleged crimes against humanity and war crimes committed in the context of the armed conflict between and among government forces, paramilitary armed groups and rebel armed groups, including the crimes against humanity of murder; forcible transfer of population; imprisonment or other severe deprivation of physical liberty; torture; and rape and other forms of sexual violence; and the war crimes of murder; intentional attacks against civilians; torture; other cruel treatment; outrages on personal dignity; taking of hostages; rape and other forms of sexual violence; and using children to participate actively in hostilities. Having entered these conclusion, the preliminary examination primarily focussed on the existence and genuineness of national proceedings in relation to these crimes.
Over the course of the preliminary examination, the Office assessed that although the Colombian authorities had carried out and were conducting a large number of proceedings relevant to the preliminary examination against different actors in the conflict for conduct that constituted crimes within the jurisdiction of the Court, including against persons who appeared most responsible, there remained a number of gaps or shortfalls which indicated insufficient or incomplete activity in relation to certain categories of persons and certain categories of crimes. In 2012, the Office published an Interim Report on its findings. Since then, and on the basis of ongoing engagement by the Office, the Colombian authorities extended the scope and depth of their investigations and prosecutions, including into patterns of criminal responsibility directed towards those who appear most responsible as well as previously under-prosecuted thematic clusters. Given these developments, in June 2021, the Office sought to explore the role that it should play in a preliminary examination that faces a long-term, multi-layered domestic accountability processes where national proceedings were likely to extend over a considerable period of time, by inviting stakeholder engagement in a Benchmarking Consultation.
On 28 October 2021, the Prosecutor announce his determination that, as things stand, complementarity was working in Colombia through the combination of proceedings before the ordinary courts, the Justice and Peace Law Tribunals, and the Special Jurisdiction for Peace. The ongoing progress made by these different jurisdictions led the Prosecutor to determine that the national authorities of Colombia could not be deemed to be inactive, nor unwilling or unable to genuinely investigate and prosecute conduct proscribed under the Rome Statute.
To ensure that the progress made is sustained over the long term, the announcement of the closure of the preliminary examination was accompanied by the signing on 28 October 2021, in Bogota, of a Cooperation Agreement between the Office of the Prosecutor and the Government of Colombia to reinforce and further define the mutual roles the Office and the Government will undertake to ensure that the significant progress achieved by domestic prosecutorial and judicial entities, and in particular by the Special Jurisdiction for Peace, is sustained and strengthened. The Office of the Prosecutor intends to build upon a long lasting, sustainable relationship with the Colombia authorities within the framework of this Agreement.
ICC Prosecutor, Mr Karim A. A. Khan QC, concludes the preliminary examination of the Situation in Colombia with a Cooperation Agreement with the Government charting the next stage in support of domestic efforts to advance transitional justice