Colombia: ICC Prosecutor’s baffling choice to close preliminary examination must be reversed

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Daniel Munoz / AFP

The International Federation for Human Rights (FIDH) and the Colectivo de Abogados José Alvear Restrepo (CAJAR) urge reversal of International Criminal Court (ICC) Prosecutor’s decision to close the Court’s preliminary examination into the situation in Colombia. A blow to victims’ hope for justice.

On 27 April 2022, FIDH and its member organisation in Colombia CAJAR submitted a request, in representation of Colombian victims of crimes against humanity, to the International Criminal Court (ICC), for review of the decision of the Prosecutor Mr Karim A. A. Khan QC to close the preliminary examination into crimes under the jurisdiction of the Court committed in Colombia.

Since June 2004 – and up until 28 October 2021 – the situation in Colombia had been the subject of a preliminary examination by the Office of The Prosecutor (OTP), focused on crimes against humanity and war crimes. FIDH and CAJAR, alongside victims of crimes under the ICC’s jurisdiction, had submitted to the OTP information regarding these crimes over the course of the 17-year preliminary examination. Yet, on 28 October 2021, Prosecutor Khan closed the preliminary examination on Colombia, without providing reasoned arguments behind his decision.

In their request, FIDH and CAJAR ask that one of the Court’s Pre-Trial Chambers review and reverse the Prosecutor’s decision to close the preliminary examination in the case of Colombia, based on the fact that the Prosecutor’s decision – while dressed in references to complementarity in a press release and press conferences – was, on a closer look, based solely on the “interests of justice” as per the Rome Statute. For this reason, a Pre-Trial Chamber has authority to review the Prosecutor’s decision, as per article 53(3)(b) of the Statute.

FIDH and CAJAR submit that the Prosecutor’s decision did not serve the interests of justice in the Colombian case, considering in particular the interests of victims. In fact, the closure of the preliminary examination on Colombia may mean that hundreds or thousands of victims of crimes under the ICC’s jurisdiction will be deprived of knowing the truth and obtaining justice regarding the crimes committed. In Colombia, despite progress in some areas, there is still a systematic lack of investigation into many of the highest-ranking perpetrators of crimes under the ICC’s jurisdiction.

In the alternative, FIDH and CAJAR request that the Prosecutor, at a minimum, justify his decision to victims and the international community, providing a detailed explanation as to why an investigation was not opened in the Colombian case, as the OTP has done in other contexts, including UK/Iraq, Gabon and Honduras.

FIDH and CAJAR, in representation of victims, remain committed to fighting impunity, which is why a request has been made to review and reverse the Prosecutor’s decision to not open an investigation in Colombia, which goes against the fight against impunity and victims’ right to truth and justice.

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