ICC OTP Report on the Situation in Colombia – A critical analysis

Preliminary Remarks
On 14 November 2012 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published the “Interim Report” on the “Situation in Colombia”. The Report is exceptional for the fact that the OPP usually does not submit such kind of country report at this (preliminary) stage of the proceedings; instead, the Office’s activities are reported in its Annual Report on Preliminary Examination Activities. The reason why this is different in this case is “the high level of public interest” in the Colombian situation. In fact, the very existence of the Report demonstrates the seriousness with which the Office continues to monitor the situation in Colombia.
Despite all its shortcomings, the Report still deserves praise in that it constitutes a unique effort to subsume the complex Colombian situation under the legal regime of the Rome Statute. In fact, the OTP offers the first “official” and impartial account of the Colombian violence in ICL terms and this constitutes an advance in itself, not least with regard to the domestic discussion in Colombia. More concretely speaking, however, the Report offers a mixed picture. While some issues are treated adequately, contributing significantly to an accurate assessment of the Colombian situation, especially with regard to the topic of the “false positives”, the treatment of other aspects leaves more questions than answers. In this sense, the Report makes it difficult to determine with some precision the further course of the OTP’s evaluation of the Colombian situation. Indeed, the Report does not provide for clear standards that could serve as a framework for current and possibly future peace negotiations. Perhaps the question of an “alternative punishment” is the most important one effectively left open by the Report. Clearly, the report reflects the complexities of the Colombian situation which make it so difficult to come to a balanced and satisfactory judgment with a view to possible intervention by the ICC. It may well be argued that this situation demonstrates more than any other the importance of cooperation and mutual learning between local and international criminal justice.
The Report contains, apart from a brief introduction and conclusions, two main sections.  The first section (para. 30-153) concerns the ICC’s ratione materiae jurisdiction, dealing with crimes against humanity and war crimes perpetrated since the Rome Statute’s (RS) entry into force for Colombia (1 November 2002 and 1 November 2009 respectively). The OTP makes a distinction between alleged crimes perpetrated by state actors and by non-state actors, and offers, for the first time, a qualification of the relevant conduct in terms of international criminal law (ICL). In the second section, the report makes an “admissibility assessment” of the relevant conduct (para. 154-196). Summarizing the prosecution and sentencing of the different actors of the conflict, it highlights with regard to the guerilla groups (FARC and ELN) the appropriate execution of sentences, and that “those who appear to bear the greatest responsibility … have already been the subject of genuine national proceedings” (para. 161). As to the members of the paramilitary groups, the Report considers that “these cases would not be admissible before the Court” given that “43 out of 46 senior paramilitary leaders still alive today have been investigated, prosecuted or convicted in respect of conducts which constitute crimes within the subject-matter jurisdiction of the ICC” (para. 173). In this context, the OTP also refers to politicians that have had links to illegal armed groups, the so-called “parapolítica” scandal. The report mentions the judicial results so far and stresses that the Supreme Court has even held defendants responsible for “crimes against humanity” (para. 179). Last but not least, with respect to army officials, the OTP concludes that while many “have been investigated and disciplinary measures, criminal convictions and prison sentences issued, the proceedings have not focused on the responsibility of those at senior levels for the occurrence of such crimes” (para. 196).
It should be noted that the Report does not contain any decision regarding the opening of a formal investigation or lack thereof. This means that it does not, contrary to the impression created by public opinion in Colombia, entail any “final warning” – tacit or implied – which may be considered as an “ultimatum” for the state of Colombia. The document merely confirms that the Colombian situation is still under preliminary investigation, as it has been for the past eight years. It also acknowledges the efforts of the Colombian criminal justice system in the investigation and possible prosecution of crimes within the jurisdiction of the Court. The aspects to be monitored by the OTP in the future are the following: (i) the follow-up on the constitutional framework for peace (“Marco Jurídico para la Paz”) and other relevant legislative developments, especially with regard to the emergence of “new illegal armed groups”; (ii) proceedings relating to the promotion and expansion of paramilitary groups; (iii) to forced displacement; (iv) and to sexual violence; and (v) “false positive” cases (referring to killings of civilians by Colombian army officials presenting them as insurgents) (para. 224).
Issues of methodology of analysis
The Report treats the analyzed information in a purely quantitative way and thus leaves out some qualitative aspects of a legal and judicial nature that are indispensable to adequately evaluate the results of the Colombian criminal justice system with regard to the prosecution of international crimes. Pure outcome-oriented statistics about the criminal justice process do not reveal anything about how these results were reached, in particular whether the minimum standards of due process were respected. Concerns in this regard arise especially with respect to several sentences in absentia (para. 160), and also with respect to the use of the offence of(aggravated) conspiracy to commit crimes (“concierto para delinquir aggravado”). I will come back to this point later. In any event, the qualitative side of the criminal justice system should not be ignored by an organ of a Court that is committed to due process (see, inter alia, Article 67 RS). The sheer number of convictions cannot be the only parameter to establish the success of a judicial system in the light of Article 17 RS, given that this same article refers to due process in its para. 2. In addition, according to Article 21 (3) of the RS, the Court should take into consideration “the international human rights internationally recognized”, among them most prominently due process rights.
Clearly, the OTP’s effort to tackle the complex situation in Colombia deserves to be acknowledged. Even for Colombians themselves, it is difficult to fully understand the factual and normative dimensions of the armed conflict. However, the extensive recourse to higher court sentences, press information and official documents starkly contrasts with the scarce theoretical basis of the analysis. It is, for example, surprising that the OTP does not take into consideration the conditions of violence under which the Colombian judicial system operates, which undoubtedly conditions its performance. In any event, one may have some doubts as to the impartiality of the OTP’s evaluation if its main source of information is precisely the state it pretends to evaluate.
Substantial problems
Of particular importance is the Report’s legal qualification of the so called “false positives”. The OTP considers, in the context of its analysis of crimes against humanity, that there is a “reasonable basis” to believe that the relevant acts were committed in a widespread and systematic manner as an expression of state policy, it being sufficient that such a policy exists at a regional or local level (para. 95 et seq). This is indeed a fundamental conclusion, not very common at this procedural stage, and it should be taken seriously in the Colombian domestic discussion where the matter has not yet been resolved. Additionally, the OTP deals with internal displacement (para. 60 ss) and sexual violence in the framework of the internal armed conflict (para. 78 ss), stressing the need to prioritize the prosecution of the relevant conduct. This is in line with international efforts, not least at the ICC, to prosecute these crimes more efficiently, overcoming technical procedural difficulties.
Notwithstanding, the Report leaves some questions unanswered and even creates confusion in relation to substantive issues. First, it is surprising how the OTP deals with the already mentioned conspiracy offence in the context of the “parapolitics” scandal. While the Report distinguishes between the officials that were convicted for sponsoring the promotion of armed groups and those that were involved in the commission of more concrete crimes such as homicide or enforced displacement (para. 178), it uncritically takes the total number of convictions for that offence as a positive result without analyzing more closely the potential overcriminalizing effect brought about by this offence, widely criticized among Colombian criminal lawyers and academics. The Report does not clarify, with regard to the complementarity principle and Colombia’s ensuing obligation to investigate the ICC crimes, if it takes into account only those cases in which politicians had direct responsibility in other serious crimes, or also those where only a general support of a paramilitary group or even less, for example an electoral arrangement between a candidate and a paramilitary group, formed the basis of a conviction (the latter not being covered by the ICC’s jurisdiction). In other words, the analysis leaves out key aspects that are relevant to more accurately assess the convictions for conspiracy. In fact, the OTP seems to value any criminal conviction equally, regardless of the specific criminal wrong and personal culpability involved.
Secondly, the OTP does not make the criteria taken into consideration to evaluate the situation in Colombia explicit in the cases of “false positives”, sexual violence and enforced displacement. While the Office, given its limited capacity, must obviously prioritize its investigations and select situations and cases, this process cannot be arbitrary but must be based on rational and accountable criteria that may help to orient the parallel domestic prosecutions. The Report leaves much to be desired in this area. It is not clear, for instance, if ICC prosecution of crimes such as torture, enforced disappearances or general war crimes perpetrated after 2009 – crimes that are possibly not the OTP’s top priority – is definitively precluded. While the Report refers several times to the violence perpetrated against trade union leaders, indigenous and Afro-Colombian communities (eg, with relation to non-State actors, para. 54), it is not clear how this plays out in the OTP’s prosecutorial strategy with regard to Colombia. Admittedly, the lack of clear prioritization and selection criteria forming the basis of the OTP’s prosecutorial strategy is a general problem, not limited to Colombia, but this only demonstrates that it is high time for the OTP to develop such a strategy (see Ambos/Stegmiller, Crime, Law and Social Change 59, 2013).
Finally, the OTP’s observations with regard to the prioritization of cases at the domestic level seem contradictory, especially as concerns the already mentioned constitutional “Framework for Peace” and the Directive 0001 of 2012 of the Office of the Colombian Attorney General (paras 200 et seq.). On the one hand, the OTP welcomes the Colombian efforts to prioritize the investigation of those who bear the greatest responsibility; on the other hand, it stresses the need to prevent impunity. Thus, it seems as if the OTP tries to square the circle, ignoring the fact that any process of prioritization and selection necessarily and on purpose entails impunity. In fact, even the three-tiered international criminal justice system – composed of the territorial state, the ICC and third states – leaves considerable gaps of impunity. The OTP knows well from its daily practice that the prosecution and sanction of all international crimes is an unrealistic goal, more so in situations of ongoing and prolonged violence such as Colombia. This is precisely the reason to call for prioritization and, as a corollary, accept a dose of (self-inflicted) impunity.
Confusion on issues of criminal procedure
The Report also neglects several aspects that characterize the Colombian system of criminal procedure. The analysis does not adequately mark the difference between the two forms of criminal procedure, ie, the ordinary system and the special system based on the Justice and Peace Law (Law 975 of 2005). Instead, the Report promotes generalizations that make difficult an accurate analysis of the results of the Colombian criminal justice system with regard to the ICC crimes. For example, the way in which the Report refers to the ordinary criminal justice system (which includes the investigations conducted by the Human Rights Unit of the Attorney General’s Office) is confusing (para. 11, 159 and especially footnote 237) since it is stated that this system is governed by the Criminal Code, mixing up substantive criminal law with procedure and apparently overlooking that the Criminal Code also applies to the Justice and Peace procedure. At that point the Report misconceives the complexity of the Colombian criminal procedural system that is constitutionally defined as an “accusatorial system” but implemented by various general and special procedural statutes.
In addition, the Report refers to some norms, in particular Law 782 of 2002 and Regulatory Decree 128 of 2003, as if they were part of the Justice and Peace Law 975 (para. 164). While these norms regulate the demobilization of members of irregular armed groups, and Law 975 refers to them for this reason, their ratione materiae and personae scope of application is different, and, in fact, they do not provide for any form of procedure. This lack of more detailed knowledge of the Colombian criminal justice system may explain the shortcomings in the OTP’s analysis of the demobilization, disarmament and reintegration of members of irregular groups, the nature and quality of the investigations and prosecutions, and the tensions between the ordinary and Justice and Peace systems. In this context, it is also surprising that the Report does not even mention the opportunity principle, so extensively discussed with regard to those demobilized (“ordinary soldiers”) who are not covered by Law 975 – many of who may have committed serious international crimes.
Similarly, the Report’s assessment of the effectiveness of the investigation and prosecution of paramilitary leaders extradited to the U.S. (para. 170-173) appears to be insufficient. The OTP derives the inadmissibility of these cases from the high number of proceedings against paramilitary leaders (43 against 46 leaders), neglecting, however, the very fact that several of these leaders have been extradited to the U.S. and that this has substantially affected the momentum of their respective proceedings. It is worth remembering in this context that the Inter American Commission of Human Rights has warned that “extradition impedes the investigation and adjudication” of the crimes committed by these persons. Clearly, the extradition of paramilitary commanders has caused legal and logistical difficulties regarding the continuation of their respective hearings and their role as witnesses in other proceedings. Thus, the OTP should have analyzed more precisely whether extradition operates as a de facto exclusion of the Justice and Peace process and, therefore, constitutes a procedural obstacle amounting to unwillingness or inability within the meaning of Article 17 RS, falling short, of course, of total inactivity.
In addition, it is quite surprising how the OTP understands and describes the special procedure of Law 975 (para. 164). Despite the fact that this procedure has been critically and widely discussed in the scholarly literature (inter alia by this author), the approach of the Report is remarkably uncritical and imprecise. The Report ignores the fact that a crucial feature of this procedure is that the determination of criminal responsibility is predicated on collaboration by the perpetrators (in fact, his confession), rather than the investigatory capacity of the Colombian criminal justice system. As a consequence, it says little, if anything, about the effectiveness of the system. Among the many problems that have arisen in the implementation of the Justice and Peace Law it suffices to mention but a few: the difficulty in assessing the true probative value of so-called free versions (confessions), especially considering the limited efforts made to corroborate any such statements with witness/victim accounts, and the little information they provide regarding the structures of violence; the fact that the charges are solely based on their acceptance by the respective perpetrator; and the limited operational and logistical capacity of the Colombian Attorney General’s Office to verify the information received.
In general terms, the report leaves open the issue of whether the Justice and Peace procedure satisfies the admissibility criteria of Article 17 RS. This question is however of crucial importance for subsequent peace negotiations, in particular the current one between the government and the FARC. The Report does not explicitly take a stand, for example, on the “alternative punishment” model introduced by the Justice and Peace Law. Is such a model, drastically reducing the actual sentence meted out to an alternative sentence of maximum 8 years, compatible with a state’s obligation under Article 17 RS? If so, would a further measure, for example a process of judicialization without any effective sanction, also be acceptable?
Last but not least, the OTP’s intended monitoring of the – already mentioned – legal framework for peace begs the question of how such monitoring shall take place and how the OTP views such an approach generally. Would it fit well into the OTP’s understanding of positive complementarity? Or would that require more concrete steps than just an abstract normative (constitutional) framework? One also wonders what the OTP expects from such a legal initiative. Does it inform us about the effectiveness of a criminal justice system which, on the face of it, is the only relevant question within the framework of Article 17? Why else does the OTP pretend to give such an initiative a special weight even subjecting it to its monitoring?

A longer version of this paper has been published first in http://www.semana.com/opinion/articulo/examen-preliminar-cpi-caso-colombiano/326053-3 in collaboration with Diego Tarapués, Gustavo Cote and John Zuluaga (all Colombian doctoral students of the author).