Colombia: ICC Preliminary Examination Report and Peace Negotiations

02/11/2015 05:39 pm ET | Updated Apr 13, 2015

In December 2014, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published its annual Report on Preliminary Examination Activities. This report includes information on Colombia and Honduras, among others. Unlike other years, this latest report has not received greater interest in the media in Colombia since the eyes are set in the peace negotiations between the government and the FARC that are currently taking place in Havana. However, and regardless of our wishes of this peace process to be successful, we believe that this report should not go unnoticed because it raises many of the problems linked to human rights, which are currently being negotiated as you read this piece.

Colombia, like the rest of the Latin-American countries, has been quite active in the discussions around the creation and the establishment of the ICC, being part of the Rome Statute since 2002. For many Human Rights defenders, the ICC represented an opportunity for the victims of the long-term conflict in the country that were never able to access to any kind of justices or redress. The entry into force of the Statute was, therefore, very much celebrated and even more after the expiration of the 7-year-grace period of war crimes.

The OTP has received communications related to Colombia for more than ten years now. In 2005, the Court officially informed the Government that it "had received information about alleged crimes that could be from the Court's jurisdiction". From that moment on, the ICC has "requested and received continuous information about the crimes of jurisdiction of the Court and the state of the national procedures".

In particular, the Court has followed (i) follow-up on the Legal Framework for Peace and other relevant legislative developments, as well as jurisdictional aspects relating to the emergence of "new illegal armed groups"; (ii) proceedings relating to the promotion and expansion of paramilitary groups; (iii) proceedings relating to forced displacement; (iv) proceedings relating to sexual crimes; and, (v) false positive cases, which in practice are extrajudicial executions.

Since 2005 to date, many things have changed, but in regards to the ICC activity, the Court has given close monitoring the talks between the Government and the FARC. This process is currently in phase 5, concerning human right/ victims, including a process of meetings with victims selected from all parties in the conflict. In this context, the OTP has continued to collect information on alleged crimes that would fall under ICC jurisdiction.

The extent of the conflict has caused a high number of internally displaced persons (5 million people, according to the UNHCR) and holds one of the highest rates of landmine victims in the world. We can follow listing crimes, given that the FARC at some point in its long history was infamous for the high number of children forced to join their ranks - as almost 18,000 children were linked in 2012 to illegal armed groups and criminal organizations.

Despite some "progress" in the prosecution of cases in the framework of the Law of Justice and Peace - there are huge debts with the victims of sexual violence. Today few proceedings were carried out against those who have been perpetrators of sexual violence in armed conflict. According to the ICC, there is only a single conviction for violation.

With regard to the 183 conflict-related cases of sexual violence which the Constitutional Court ordered to investigate and accelerate legal procedures, the working group in charge of monitoring its implementation notes that, as of March 2013, only five convictions and one acquittal for acts of sexual violence have been issued, while 95 cases remain at the preliminary stage of investigation, 16 were in the investigation phase, four were terminated at the investigation phase, 26 were inactive and five have resulted in indictments.

Although a specific law on access to justice for victims of sexual violence was enacted in June last year, there haven't been significant advances. We believe it´s really striking that it took so long for the government to adopt this law, as it has been a claimed by the civil society for many years now.
What can we expect for 2015? Fluid contact between the ICC and Colombia. The ICC will follow closely the peace talks, the sexual violence and the "false-positive" cases.

We believe that Colombia faces major challenges this year- apart from the peace talks. It is time to strengthen the institutional framework- the judicial branch, especially- that seems to be quite volatile and to deal with the criminal gangs that are in the rise in the country, as it can affect the pacification they have been seeking for a long time now. Finally, it is time to provide redress to the victims of the over 50 years of internal conflict in the country.

*Co-Written with Salvador Herencia-Carrasco.