Colombia: Report published by International Criminal Court Office of the Prosecutor on the closure of the preliminary examination is insufficient


On 30 November 2023, the Office of the Prosecutor of the International Criminal Court (ICC) communicated a report, in which it finally made public the reasons that led the Prosecutor to conclude the preliminary examination on Colombia in October 2021,with the decision not to proceed with an investigation. This comes more than a year after a decision by the ICC, which ordered the Prosecutor to explain his decision, following a request by FIDH and CAJAR. Both organisations regret the insufficient information provided in the Prosecutor’s report and urge the Prosecutor to continue to critically monitor prosecutions of crimes against humanity and war crimes in Colombia.

Paris and Bogota, 4 December 2023. The International Federation for Human Rights (FIDH) and the Colectivo de Abogadas y Abogados Jose Alvear Restrepo (CAJAR), its member organisation in Colombia, regret that the report published last 30 November 2023 by the ICC Office of the Prosecutor fails to mention that the report is not voluntary, but rather a consequence of the 22 July 2022 decision of Pre-Trial Chamber I, in response to a request by FIDH and CAJAR. In its decision, the ICC established that the Office of the Prosecutor did not sufficiently inform the victims and their representatives about the reasons for the closure of the preliminary examination of the situation in Colombia and urged the ICC Prosecutor to provide additional information. We regret this omission, as we believe that the ICC Office of the Prosecutor should openly acknowledge when its actions do not follow good practices and continue its dialogue and interaction with victims and civil society organisations in that regard.

Our organisations consider that the reasons given in the report regarding the closure are insufficient and urge the Prosecutor’s to maintain a critical monitoring of judicial activity in Colombia.

Among the "reasons" that led the Prosecutor to close the preliminary examination, the report mentions the advances in judicial matters in Colombia with respect to crimes related to the "promotion and expansion of paramilitary groups", forced displacement, sexual crimes, and the "false positive" cases, including macro-cases before the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz - JEP). This assessment ignores the high rates of impunity in cases of sexual violence and forced displacement, acts that were systematically committed in the context of the armed conflict.

On the other hand, the OTP’s report ignores the fact that the jurisdiction of the JEP is limited and circumscribed to acts committed in relation to or in connection with the armed conflict, which excludes other conducts that were being evaluated in the framework of the preliminary examination before the ICC. It also fails to assess in detail the gaps denounced by the victims and their organisations, in particular regarding the scope of the paramilitary demobilisation process and the application of the legal framework of Law 975 of 2005.

In addition, the Prosecutor’s report highlighted that "it was also clear that the judicial authorities were seized of allegations concerning those who appeared to bear criminal responsibility at the highest command levels".
Finally, the report stated that the advances before the Colombian jurisdiction demonstrate that the actions of the Government cannot be considered as "marred by an inability or unwillingness to carry them out genuinely", which is why complementarity would be satisfied in the Colombian case.

While FIDH and CAJAR recognise the important advances in Colombia - and continue their support and interaction with transitional justice processes, particularly before the JEP - significant gaps remain. In particular, as highlighted in our April 2022 request to the ICC, several of the military personnel allegedly responsible for extrajudicial executions in the "false positives" cases have not been called to appear before the JEP and, in fact, have continued to hold positions and be promoted within the structure of the Colombian National Army.

In turn, with respect to third party civilians and non-combatant state agents, there is a lack of sufficient will to bring these actors to justice. While the Prosecutor’s report noted that the authorities are dealing with crimes that "appear" to prosecute high-level commanders, it did not elaborate on how it reached this conclusion. Added to this is the lack of jurisdiction of the JEP to hear cases involving heads of state and the unwillingness of the Accusations Commission of the House of Representatives (Comisión de Acusaciones de la Cámara de Representantes) - which would have jurisdiction - to push forward investigations against them.

In addition, various victims’ groups have expressed their discontent at the closing down of certain mechanisms that allowed for their participation before the JEP regarding issues such as the definition of the sanctions to be imposed on those most responsible, despite the fact that constitutional jurisprudence considers this participation a right.

The OTP report also focuses on the Cooperation Agreement signed with the JEP as an instrument that will strengthen accountability in Colombia. While this agreement may constitute a positive practice in terms of cooperation and complementarity, the report limits itself to describing academic activities carried out with the JEP as a result of this agreement. FIDH and CAJAR consider that within the framework of this agreement, the emphasis should be on critical monitoring of national activity, including those of the JEP, given the magnitude of impunity in Colombia, as well as the multiple challenges and inadequacies that continue to exist in the ordinary jurisdiction.

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