The Colombian Special Jurisdiction for Peace under the microscope of the
ICC: a focus on amnesties and the complementarity principle
LLM Thesis
Name: Andreea Negrea Student number: 12849340 Supervisor: Prof. Dr. Vid Prislan
Table of contents
Introduction 3
Chapter 1: An overview of the situation in Colombia and the Special Jurisdiction
for Peace 5
1.1 An introduction to the Peace Accord and the Special Jurisdiction for Peace 8 1.2 The choice between peace and justice 9
Chapter 2: The framework of the Special Jurisdiction for Peace 11
2.1 The terms of the framework: the problem of sentencing 13 2.2 The incompatibility with the Rome Statute: a focus on amnesties 15
Chapter 3: The complementarity principle and the Special Jurisdiction for Peace 18
3.1 Positive complementarity in Colombia. 19
3.2 Complementarity: and analysis of ‘unwilling’, ‘unable’ and ‘genuinely’ 21
3.2.1 The application of the test to the SJP 23
a. Sentences 24
b. Investigation 25
3.3 Complementarity and the interpretative declaration on amnesties 26 3.3.1 The nature of Colombia’s interpretative declaration 29 3.3.2 The consequences of a ‘disguised’ reservation on the application of the
Rome Statute 30
a. Belilos case 31
b. VCLT and tacit acceptance 32
3.3.3 The validity of the declaration in light of international law 33
a. The duty to prosecute or extradite 35
b. Duty to prosecute and the ICC 37
The Colombian Special Jurisdiction for Peace under the microscope of the ICC: a focus on amnesties and the complementarity principle
Introduction
Colombia witnessed a conflict which lasted for 50 years and drew the attention of the entire international community which was in awe of the terrifying scenes and atrocities that were committed. The civil war was one of the most complex the world has seen and has changed the Colombian society forever. The population of the country was terribly affected with a considerable number of people being displaced, murdered, families fragmented and a collective memory which will never fully recover from the trauma suffered. The conflict involved multiple parties, starting from the Revolutionary Armed Forces of Colombia (FARC) to governmental authorities, thus being a battle that spread on multiple frontiers, having not only societal and moral implications but also political ones. The conflict started in 1964 and was the result of years of inequality.1 The wealth discrepancy in the country is one of the most striking
in the world and the poverty and lack of measures to redress the economic situation led desperate groups to take matters into their own hands. Thus, guerilla groups were formed on the basis of a ‘noble’ cause and started as positive movements that sought nothing but to fight for a fair political and social system. In a complex society where everyone seeks its own benefit, the guerilla movement resulted in approximately 260,000 people killed and 8 million displaced.2
This recipe for disaster found its solution in the Peace Accord3 of 2016 agreed and signed in
Havana by FARC and the Colombian government. This Accord brought the much-needed peace by finding a delicate balance between punishing perpetrators and guaranteeing their freedom through means of amnesties and lenient sentences. The core of the Accord is the Special Jurisdiction for Peace (SJP) which is set to prosecute those most responsible of international crimes in line with international criminal standards as put forward by the
1 ‘Colombian Armed Conflict’ (Justice for Colombia) <
https://justiceforcolombia.org/about-colombia/colombian-armed-conflict/> accessed 15 January 2021.
2 ‚Colombia Events of 2018’ (Human Rights Watch) <
https://www.hrw.org/world-report/2019/country-chapters/colombia#> accessed 15 January 2021.
3 ‘Final agreement to End the Armed Conflict and Build a Stable and Lasting Peace’, (Final Agreement, 24.11.2016) < https://www.peaceagreements.org/viewmasterdocument/1845> accessed 5 January 2021.
International Criminal Court (ICC) under the Rome Statute.4 As good as the Accord seems to
be, there is always a shadow hiding in the dark and, in this case, the central issues arise with respect to the wide amnesties which the deal grants to the perpetrators.
Here is where the ICC exerts its power through the well-known complementarity principle. The Court has the power to take over cases from the domestic level if the national proceedings fail to meet the standards of the international system. This is of great relevance in the Colombian context where the ICC5 has been involved since 2004 when preliminary
examinations were initiated. The ICC is currently conducting the third phase of examinations which focuses on the question of admissibility.
This paper will concentrate on the application of the complementary principle and its interaction with the Peace Accord. The question that seeks to find an answer is whether the SJP framework is in conformity with the ICC’s standards and Colombia’s international obligations in order not to trigger the complementarity principle. To reach a conclusion, an inquiry has to be made into the sentencing scheme of the SJP and the amnesty it allows; whether these amnesties and the national investigations reach the high standard imposed by the complementarity principle; and whether Colombia’s interpretative declaration on amnesties can be seen as a bar to the jurisdiction of the Court on the crimes of interest. The research methods employed to answer these questions are deductive and doctrinal, the process involves the study of existing laws, authoritative materials, appraisal of books, case-law and their application to the given situation.
Correspondingly, the assessment will focus on whether the SJP’s framework is sufficiently adequate as to not trigger the complementarity principle and consequently an official ICC investigation. The analysis will be conducted from the perspective of Colombia’s obligations under the Rome Statute and its obligations under international law. The first part of the paper will briefly look at how the Colombian transitional justice system was established and how it operates in the overall situation of the country. Subsequently, in the second Chapter, attention will be given specifically to the SJP and the fragile sentencing scheme it encompasses. The
4 Rome Statute of the International Criminal Court (Adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 90/37 ILM 1002.
5 ‘Preliminary examinations Colombia’ (International Criminal Court) <https://www.icc-cpi.int/colombia> accessed 5 January 2021.
lack of proper sentences creates room for amnesties which are prohibited by the Rome Statute and, to a certain extent, by the international community as well.
Chapter 3 will centre on the interplay between the amnesties allowed and the complementarity principle. The notion of ‘positive complementarity’ and the elements of ‘unwilling’, ‘unable’ and ‘genuinely’ are pivotal and carefully evaluated in light of the amnesties and the overall framework of the SJP. Likewise, the interpretative declaration made by Colombia on amnesties to the Rome Statute will be brought into question and it will be analyzed against the obligations imposed by the complementarity principle. The case of ‘disguised’ reservation will be considered and the validity of the declaration in light of the country’s international obligations will be evaluated. This is a pivotal element because a failure to comply with them can strengthen the applicability of the complementarity principle to the detriment of Colombia.
Chapter 1: An overview of the situation in Colombia and the Special Jurisdiction for Peace
Colombia found itself in an unseen conflictual situation for five decades. The civil war culminated in approximately 8 million victims6 displaced and 300.000 human lives lost. It is
now discerned as a conflict fueled by drugs and political interests; nevertheless, the roots of the dispute are embedded in agricultural misunderstandings when, in the 20th century, peasant
farmers were faced with unfair treatment coming from large landowners who took advantage by stripping them down of their lands. The farmers consequently called for an agricultural reform which was ignored by those at the top.7 As formal and just requests were not addressed,
the only way for those disadvantaged often turns to be measures involving violence and coercion. Accordingly, in order to make their voice heard in a country whose system favored the powerful, the Colombian farmers started a new guerilla movement in 1964 by organizing themselves in a group titled the Revolutionary Armed Forces of Colombia (FARC). This step further inspired other communities to unite and chase their goals, and in no time, Colombia was met with an upsurge of guerilla groups with new additions such as The National Liberation Army (ELN), supported by Cuba, and the Popular Liberation Army, backed by China.8 A new
6 Daniel Garzon Herazo, ‘Colombia Events of 2017’
https://www.hrw.org/world-report/2018/country-chapters/colombia (Human Rights Watch, 24 November 2017) accessed 20 November 2020.
7 Peter Burbidge, ‘Justice and Peace? – The Role of Law in Resolving Colombia’s Civil Conflict’ 8 (2008) International Criminal Law Review 557-587, 560.
era was starting which was about to draw the attention of the international community and place the country at the top of the most dangerous territories.
Problems intensified with time when the guerillas deviated from their expected course of action and got involved in the drug business in order to receive support, gain power and ensure success in their fight against the system. The aims of the groups became blurred and changed along the way when they became enemies of the society by murdering important actors in politics, human rights defenders and lawyers.9
As the guerilla groups became more prominent and greatly interfered with the peace in the country, paramilitary groups were formed in order to counter the guerillas and reinstate balance. The leading paramilitary group was the United Self-Defense Forces of Colombia (AUD). Similarly, to its guerilla counterparts, paramilitaries had to turn to and count on the support offered by the drug empire. The group soon got directly involved in drug trafficking, just as the guerillas, committed crimes which were deemed to be of international gravity. It was recognized that the paramilitaries were those most responsible for the majority of homicides occurring in Colombia and their actions had to be accounted for.10
The country took a breath of fresh air in 2002 with Alvaro Uribe’s presidency whose office managed to reach peace with the paramilitaries and start a process of demobilization through a new Justice and Peace Law adopted by the legislators.11 At the time, other international actors
had their eyes on the matter as the International Criminal Court was just setting its structure. The Inter-American Court of Human Rights carefully assessed and supervised the transition and it worryingly signalled the high degree to which Colombia allowed perpetrators to receive impunity by failing ‘to investigate, prosecute, capture and convict those responsible for
violations of human rights’12. This is indicative of what was to follow in the peace talks with
FARC and what we see today in the post-conflict era and the work of the Special Jurisdiction
9 ‘Paramilitary plan to kill human rights activist exposed in Colombia’ (Amnesty International, 7 June 2013) <
https://www.amnesty.org/en/latest/news/2013/06/colombia-movice-threats/> accessed 15 January 2021. 10 Burbidge (n7) 561.
11 Ibid 563 which, similar to the Peace Accord with FARC, offered great leeway to perpetrators by providing significant amnesties. if they confessed their crimes, they benefited from an extinction of their penalty as long as it was not genocide, terrorism, kidnapping, drug-trafficking. Similarly, to the Peace Accord with FARC, it pardons political crimes. However, the shortcoming was that it categorized all crimes committed as a member of an armed group as ‘political’.
for Peace. Attention should be given of how peace was achieved with the paramilitaries 17 years ago. The shortcomings of the system and the failures that were encountered then can also pose a challenge to the current situation.
Nevertheless, despite its condemnation for awarding a great degree of impunity, peace with the paramilitaries was successful to a certain extent. It is true that now ex-paramilitaries still engage in drug-related crimes, however, the overall situation can be seen as one of peace.13
The Colombian government unsuccessfully tried to achieve peace multiple times during the 50 years of conflict. For the first time, in 1980 FARC agreed to a ceasefire and organize itself in a new radical political party.14 Peace would have been a cover-up because the group would
have been given the chance to take the conflict to the political realm which was the ideal place to achieve its goals. Nonetheless, peace fell through and FARC went back to its fight on the ground.15 By the same token, in 1998 the government showed its great desire for peace by
granting FARC a Demilitarized Zone. FARC accepted but it was not long until it committed additional political crimes and the deal revoked.16
Nevertheless, the end of the conflict and final peace with the group was attained in 2016 in Havana where peace negotiations had been conducted for four years between FARC representatives and the Colombian government. The parties signed the Peace Accord which was later put forward to a popular vote in October 201617 which turned out to indicate the
disappointment of the Colombian population. In the referendum, the citizens voted against the long-negotiated Accord believing that it was too lenient, and the sentences were not proportionate to the harm caused. Thus, it can be stated the population of the country desired justice to thrive and those responsible to receive thorough judgement and punishment for the crimes committed. Despite the general opinion, the government went forward with the
13 ‘Guerilla and Paramilitary Groups’ (Drug Trafficking in Colombia )
<http://www.mtholyoke.edu/~macne22k/classweb/traffickingincolombia/page3.html> accessed 17 November 2020.
14 Burbidge (n7) 562. 15 Ibid.
16 Ibid.
17 Sibylla Brodzinsky, ‘Colombia referendum: voters reject peace deal with FARC guerillas’ (The Guardian, 3 October 2016) https://www.theguardian.com/world/2016/oct/02/colombia-referendum-rejects-peace-deal-with-farc accessed 19 November 2020.
Agreement adopted it in November 201618 after a which was deemed legitimate by the
Constitutional Court.19
It was seen through past failures in the 80s and 90s, that peace with FARC is not as easy to be achieved. A sheer image of peace through the new pact does not mean that return to conflict is impossible. It is to be learnt from experience that even if the group surrenders, this does not ensure that it will follow through with the peace concluded. If FARC does not obtain the lenient punishment it wants, in the way that it was promised in the Accord, the group has no remorse to go back and continue to fight for what it sees right.20 Here the discussion between peace and
justice comes in. One has to choose between the fear of a renewed conflict and the desire for justice which can be achieved through harsh punishment. This will be further assessed below.
The ICC started preliminary examinations in Colombia in 2004 and the Office of the Prosecutor was carefully involved in the peace negotiations and the implementation of the Accord. Currently, the Court has moved to the third phase of the preliminary examinations, meaning the admissibility stage. The focus is on the gravity of the crimes and the assessment of the relevance and genuineness of national proceedings.
1.1 An introduction to the Peace Accord and the Special Jurisdiction for Peace
The Peace Accord creates a system of transitional justice and is built on six main pillars: rural agrarian development; political participation; drug trafficking; victims’ rights; disarmament and demobilization; and post-agreement monitoring and verification.21
The SJP is part of the System of Truth, Justice, Reparation and Non-Repetition body.22 Thus,
it moulds perfectly on the ideology of transitional justice which renders it as a restorative
18 Rene Uruena, ‘Prosecutorial Politics: The ICC’s Influence in Colombian Peace Process, 2003-2017’ 111:1 (2017) Am. J. Int’l L. 104-125, 121.
19 Ibid.
20 Mathew Charles, ‘Why Colombia’s Dissident FARC Rebels Are Taking Up Arms Again’
https://www.worldpoliticsreview.com/articles/28163/why-colombia-s-dissident-farc-rebels-are-taking-up-arms-again (World Politics Review, 4 September 2019) accessed 15 October 2020.
21 Bryan Harper, Holly K Sonneland, ‘Explainer: Colombia’s Special Jurisdiction for Peace (JEP)’
https://www.as-coa.org/articles/explainer-colombias-special-jurisdiction-peace-jep (AS/COA, 2 August 2018) accessed 10 November 2020.
mechanism that seeks to redress a conflictual situation rather than a punitive one.23 The focus
on transitional justice is on the victims and on providing them with a means of atonement and acknowledgement. The manner to achieve this stands with creating means for truth-telling, allocate and accept culpability and prevent future violations. The SJP system will be further detailed in Chapter 2.
Considering that the aims of transitional justice are restoration, the system allows for a punishment that is more lenient than the usual choice for the purpose of achieving a balance between peace and justice. The SJP framework does follow this approach and indeed it seems to put restoration at the heart of the process providing for significantly reduced punishment. Thus, the question remains whether the right balance between peace and justice is rightly struck in order to comply with ICC requirements and not trigger an investigation.
1.2 The choice between peace and justice
It is no doubt that in a harshly affected country as Colombia is difficult to strike the right balance between the two components and when equilibrium is achieved it is based on a fragile compromise of the two sides. The Colombian officials chose a balance that weights heavier towards peace rather than justice. This is a choice that eases the mind of the citizens who have been faced with atrocities, however, those who suffered from the conflict might not find fairness in the adopted transitional system. Many citizens agree with the approach taken by the government as it is the only manner in which they can live a normal life without conflict. Nevertheless, the referendum shows that a slight majority, established just by 1-2%, desires a balance that favors justice, and this choice was ignored by the government.24
The choice of peace in the Colombian society is well-argued to be in the interests of the victims as it is the only possibility to curb future violations which will occur if a merciful system is not opted for.25 Further conflict is likely to occur is harsher penalties would have been imposed as
rebels would have not agreed to imprisonment or robust penalties.
23 Ibid.
24 Helen Murphy, ‘Colombia’s peace deal in limbo after shock referendum’ (Reuters, 3 October 2016) <
https://www.reuters.com/article/us-colombia-peace-idUSKCN1230BH> accessed 20 October 2020. 25 Caroline D. Kelly, ‘Contextual Complementarity: Assessing unwillingness and ‘genuine’ prosecutions’ in Colombia’s Special Jurisdiction for Peace’ 48(3) (2017) Geo, J. Int’l L. 807-838, 833.
However, from an international criminal law perspective, the decision taken by Colombia can be regarded as far-reaching. The Agreement allows for lenient sentences and wide amnesties which is conventionally asserted that be a suitable solution to the conflict between peace and justice which, at times, might require the adoption of amnesties.26 However, when it comes to
the ICC, article 53 solely covers the assessment and action for the protection of the interest of justice and not the interest of peace.
Article 53(a) requires that a decision to initiate an investigation must consider whether there are ‘substantial reasons’ to believe that an investigation would not serve the interest of justice by looking at the gravity of the crime and the interests of the victims.
The concept of interest of justice gives the Court the means to assess alternative forms of justice, the ones established in transitional justice mechanisms, from a broader perspective.27
Paragraph (2)(c) indicates that this interest is not limited solely to criminal justice and, thereby criminal proceedings. It stipulates that the concept can justify a state’s resort to amnesties and alternative justice procedures, which however have to be made subject to a check and balances test.28
In 2007, the ICC issued a Policy Paper on the Interest of Justice,29 which sought to bring light
on the intricate situations which do not serve the ‘interest of justice’ and which the Office of the Prosecutor should not pursue and not bring further to the Court. It follows that the Prosecutor accepts the adoption ‘other justice mechanisms’ such as ‘truth-seeking, reparation
programs, institutional reform and traditional justice mechanisms’ which can be effective as
long as they are complementary to prosecutions.30 In the case of Colombia, alternative justice
mechanisms are the cornerstone of the system and, they can be seen as legitimate choices based on the approach taken by the Office of the Prosecutor in its paper. Nonetheless, the salient issue is the effectiveness of these mechanisms and the extent to which they fulfill their goal. The 26 Robert Cryer, Hakan Friman, Darrryl Robinson and Elizabeth Wilmshurst, An Introduction to Criminal Law
and Procedure (3rd edn., Cambridge University Press, 2014).
27 Casten Stahn, ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’ 3(2005) JICJ 695-720, 697.
28 Ibid 698.
29 Brodzinsky (n17). 30 Cryer (n26) 819.
acknowledgement of truth and the reparations the ex-rebels have to carry out are part of the accepted mechanisms of a peace-seeking society, however, they might not close the circle of justice when they complement an underdeveloped system of prosecutions and punishment. Simply matching a conventionally and traditionally recognized name to a set of measures does not suffice if in practice they do not raise to the expected standards. This matter is even more relevant in the context of the ICC which deems justice to be the primary aim. The Office of the Prosecutor was keen to point that peace and security are elements to be mostly regarded by other international institutions, namely the UN Security Council31 which is the body that has
the power to ‘defer action by the ICC where it considers it necessary for the maintenance of
international peace and security’.32 Article 16 of the ICC Statute halts investigations or
prosecutions conducted by the Court for 12 months by an act of the Security Council under Chapter VII.
Otherwise, the Office of the Prosecutor made it clear that it does not intend to sacrifice a great degree of justice to the benefit of peace. It perceives the ‘interest of justice’ to demand prosecution of international crimes.
Chapter 2: The framework of the Special Jurisdiction for Peace
As previously mentioned, the Peace agreement was adopted in 2016 after years of negotiations and a failed referendum. The Agreement sets the framework for the Special Jurisdiction for Peace which is a new independent judiciary body specifically designed to deal with those that committed the most international crimes as dictated by the Rome Statute. The post-conflictual situation demands responsibility for those that committed the most serious of crimes. In relation to the Rome Statute, these fall within the ambit of war crimes33 and crimes against humanity.34
The Court is composed of the main Peace Tribunal which supervises the entire process and three smaller chambers which deal with the cases at different stages of the procedure.35 First,
31 Ibid. 32 Ibid.
33Rome statute (n2) Article 8. 34 Ibid Article 7.
the SJP framework establishes the Truth and Reconciliation Chamber where the defendant is given the chance to confess to his crimes and secure himself a lesser form of punishment. Second, the Amnesty and Pardon Chamber assess amnesties and decides who is eligible for them and, third, the Sentencing Chamber which comes into play solely in expectational circumstances when a review of sentences yielded by the ordinary justice system is requested.36
Additionally, two other branches complete the institutional framework. The Appeal section of the SJP has the duty to review judgements of the Chambers and the Investigation and Prosecution Unit investigates the cases of those who do not voluntarily confess to their crimes and who, consequently, will receive sentences harsher than those stipulated for the rebels who willingly confess.37 The SJP is will be in place for a period of 15 years with a possible expansion
of 5 years.38 The trials it conducts can last just as long. Thus, one of the problems is whether
this uncertain timespan of proceedings can be seen as a fulfillment of due process obligations.
The perpetrators sought by the SJP are members of the guerilla groups, mostly FARC. However, paramilitaries who benefited or cooperated with the guerillas can also subject themselves to the jurisdiction of the Tribunal, but the SJP itself does not have any power to seek them out.39
The jurisdiction of the Tribunal applies retroactively and thus, only to crimes that had been committed prior to the entry into force of the Agreement in 2016. Ex-rebels can only be prosecuted by the SJP and the national criminal justice of the country. The Peace Accord stipulates they cannot be extradited40 if it is so requested by other countries. This has already
created problems in the country, especially in relation to the U.S. which requested the extradition of ex-rebels on drug-related charges.41 The SJP faced problems in interpreting the
temporal jurisdiction it has.
36 ‘Count with us for peace never war’ (Special Jurisdiction for Peace). 37 Ibid.
38 Harper, Sonneland (n21). 39 Ibid.
40 Final Agreement (n3).
41 Reuters Staff, ‘Colombia’s attorney general resigns over court refusal to extradite FARC leader’ (Reuters, 15 May 2019) <https://www.reuters.com/article/us-colombia-peace-idUSKCN1SL25Q> accessed 15 January 2021.
However, if rebels continue to commit crimes and they are found to violate the law after 2016, then they will be investigated under ordinary Colombian law and the possibility of extradition becomes a reality.
In this chapter, the terms of and the practice of the Special Jurisdiction for Peace will be analyzed in light of the duties that Colombia carries as a state party to the Rome Statute. The main focus will be on the broad range of immunities that the SJP allows and its the degree of incompatibility with the Statute of the ICC.
2.1 The terms of the framework: the problem of sentencing
The sentencing framework itself is lenient and proceeds to give significant leeway to the perpetrators and even provide them immunity by erasing any punishment. Those tried under SJP’s provisions can receive significantly reduced sentences compared to those prescribed by the Colombian ordinary criminal law.42 The Colombian Constitution sets down 80-year
imprisonment43 for grave crimes similar to the ones prosecuted by the SJP, while the Accord
allows for a maximum of 8 years. There are three categories of sentences, all directly proportional to the manner in which a defendant confesses. An ex-rebel who willingly confesses to his crimes will be given a ‘special sanction’ of 5-8 years with no prison time or 2-5 years if he was not directly involved in the crime investigated. If the perpetrator delays his confession and acknowledges his crime right before he is sentenced, he is to receive an ‘alternative sanction’ of 5-8 years which takes the form of deprivation of liberty. The harshest penalty takes the form of ‘ordinary sanctions’ which is applied to those that do not cooperate with the Tribunal and will be sentenced for 15-20-year imprisonment.44
It can be observed that most of the sentences do not involve prison time but are only meant to restrict the liberty of the defendant. Restriction can take the form of home arrest, community service and the obligation to redress wrongs by removing explosive from territories previously operated by the guerilla group.45
42 Ley 559 de 200 por la cual se expide el Codigo Penal (adopted 24 July 2000) No. 44097. 43 Colombian Constitution, 27 October 1991.
44 SJP (n36).
After the Accord was adopted, Prosecutor Fatou Bensouda sent a letter to the Colombian government criticizing the terms regarding the suspension of sentences and case prioritization.46 The ICC desires a strict interpretation of punishment and severe penalties.
Nevertheless, the Colombian Constitutional Court went the opposite way and supported flexible sentences.47
During the preliminary examinations in 2014, Prosecutor Bensouda was adamant on the matter of lenient punishment and made it clear that suspension of sentences would amount to an ICC intervention in the situation.48 On the other hand, scholars and other international bodies
advocated for flexible sentences, action which might have influenced the position of the ICC. The Inter-American Court of Human Rights, which had been greatly involved with the situation and other similar ones in the past, stated that an alternative method of punishment is to be implemented in cases such as Colombia where international standards and the necessity for peace must reach a balance.49 The position of the Inter-American Court and academic opinions
strengthen Colombia’s trust in its approach and indicated that a strict interpretation as desired by the Office of The Prosecutor is far-reaching and does not accommodate the complex reality of a post-conflict society. 50 Against this background, the Prosecutor accepted Colombia’s
approach as long as it ‘served appropriate sentencing goals, such as public condemnation,
recognition of victims’ suffering and deterrence of further criminal conduct’.51 Thus, the
conclusions drawn on paper looked promising, but the real challenge now was the implementation of the norms in a proper fashion that does not derail from the aims and the expected course of action.52
After the negative referendum, the Accord was amended and approved by the Constitutional court without submitting it to a public vote anymore. This might imply that the Accord lacks democratic legitimacy; however, the new changes were specifically made on matters which
46 Uruena (n18) 118.
47 Rene Uruena, ‘Playing with Fire: International Criminal Law, Transitional Justice and the Implementation of the Colombian Peace Agreement’ 110 (2017) ASIL 364-368.
48 Uruena (n18) 119.
49 The Massacres of El Mozote and nearby places v. El Salvador, merits reparations and costs 15 Oct 2021 IACtHR.
50 Ibid. 51 Ibid.
concerned the public. The new documents comprised of 5053 amendments and the most
significant ones relate to greater restrictions on rebels’ movement, disclosure of drug-trafficking routes and reparations to victims.54 The amended version confirms the right to hold
property and have land; requires FARC to provide financial reparations and restitution for victims which was absent and a cause of great concern in the initial agreement; and demands the rebel group to provide ‘exhaustive and detailed information’ on their drug production and sale.55
The new version of the Peace Agreement was welcomed by the international community and the ICC who received it positively and supported it. A few opponents still raised concerns, for instance, Human Rights Watch continuously flagged the vague and ambiguous approach to punishment and superior liability which contradicts international law. By the same token, Amnesty International pointed out that the deal falls short of international standards on law and human rights protection.56
The interplay between the broad approach to sentencing, the possibility it opens for amnesties, and the complementarity principle will be assessed below.
2.2 The incompatibility with the Rome Statute: a focus on amnesties
ICC seeks to end impunity and this goal clearly strikes out the idea of amnesties. The Preamble of the Rome Statute reiterates ‘that the most serious crimes of concern to the international
community as a whole must not go unpunished’ and states parties must ‘put an end to impunity for the perpetrators of such crimes’.57 Every state-party to the ICC is under the obligation to
either prosecute or extradite those that committed the gravest forms of crimes.58 If a state fails
53 Associated Press, ‘Colombia’s government formally ratifies revised FARC peace deal’ (The Guardian, 1 December 2016) < https://www.theguardian.com/world/2016/dec/01/colombias-government-formally-ratifies-revised-farc-peace-deal> accessed 15 January 2021.
54 Chris Kraul, ‘Colombian Congress passes amended peace deal to end decades of civil war’ (Los Angeles
Times, 30 November 2016) < https://www.latimes.com/world/mexico-americas/la-fg-colombia-peace-deal-20161130-story.html> accessed 15 January 2021.
55 ‘Colombia has a new peace agreement, but will it stick?’ (The Conversations, 1 December 2016)
<https://theconversation.com/colombia-has-a-new-peace-agreement-but-will-it-stick-69535> accessed 15 January 2021.
56 Harper, Sonneland n(21). 57 Rome Statute n(4). 58 Ibid.
to take action to ensure accountability, the ICC will step in and take over prosecutions over individual perpetrators as demanded by the complementarity principle.59
Amnesties are a means to an end. They can be the best choice in a post-conflictual crisis as they can secure reconciliation and pave a way for the conflicting sides to move towards peace (by reaching a compromise). Critics argue that more than ensuring reconciliation, amnesties, on the contrary, do nothing but stimulate future violations as they show a system that is feeble and easily manipulated and persuaded when faced with fear.60
The international community recognizes two types of amnesties: blanket and conditional.61
Blanket amnesties are firmly prohibited by international law. This is not supported solely by scholastic writings, but also by the practice of international organizations. The Inter-American Court of Human Rights is the steering wheel of the international community on the matter of amnesties and it firmly instituted a ban on amnesties laws.62
Condition amnesties are approved by states to the extent that it provides special measures and truth-telling mechanisms. It was argued that amnesties can have democratic legitimacy as long as they are submitted to political and legal scrutiny which involves public consultations between all relevant stakeholders who ultimately decide in their favor.63 Likewise, international
human rights law and customary law seem to underpin the legitimacy of limited amnesties, a matter which will be delved into in Chapter 3.3.
The ICC is not a supporter of amnesties and made Colombia aware of its expectations. The Court notified64 the Colombian institutions that it ‘would review with concern any measures
that appear designed to shield or hinder the establishment of criminal responsibility of individuals for crimes within the jurisdiction of the Court.’65
59 Cryer (n26) 572. 60 Ibid 575.
61 Diba Majzub, ‘Peace or Justice? Amnesties and the International Criminal Court’ 3 (2002) Melb. J. Int 1-33. 62 Barrios Altos v. Peru, Judgement 3 Sep. 2001 IACtHR para 53.
63 ‘Discussion Paper on the Legality of Amnesties’ (2010) ICTJ 7. 64 Refused to take the possibility of amnesty into account in Uganda. 65 Cryer (n26) 572.
In this case, Colombia is in an unstable situation as the Amnesty Law enacted in 2016 and the norms of the Accord which are in force render the state susceptible to violate the amnesty norms as supported on the international stage.66
Accordingly, the Peace Accord includes conditional amnesties when making a distinction between the categories of crimes that receive or do not receive amnesty. The framework does not condone amnesties for the gravest crimes: crimes against humanity, war crimes and genocide;67 however, certain amnesties are awarded for lesser violations categorized as political
crimes. For this, the Amnesty Law of 201668 differentiates between de jure amnesties: which
are granted for political crimes and demand the discontinuance of proceedings; and the de facto amnesties which are only to be applied by the SJP on a case-by-case basis for non-political crimes, thus crimes that are to be seen as international.69
As stated above, the ICC Prosecutor indeed agreed to the more flexible approach which was included in the Peace Accord. Furthermore, it was argued that the Rome Statute allows for amnesties in exceptional cases. This can be extrapolated from the ‘creative ambiguity’ which the Statute was built on. It makes it clear that pardons can rarely be a bar to prosecution, but interpretation can allow for a way around it.70 Nevertheless, these amnesties are of use solely
if they achieve the goals sought: keep the balance between peace and justice.
It is to be assessed from the perspective of the complementarity principle, in the next chapter, whether these amnesties are delivering victims’ recognition of suffering and deterrence of future criminal conduct. Amnesties will further be analyzed from the perspective of Colombia’s interpretative declaration and the bar it represents to the complementarity principle.
66 Uruena (n47) 364.
67 Which is in line with the international perspective on amnesties. Geneva Conventions and all human rights documents prohibit amnesties for these crimes.
68 How Does Law Protect in War? ‘Colombia Peace Agreement’ <
https://casebook.icrc.org/case-study/colombia-peace-agreement> accessed 15 October 2020. 69 Ibid.
Chapter 3: The complementarity principle and the Special Jurisdiction for Peace
The complementarity principle presented Article 17 of the Rome Statute asserts that the ICC has jurisdiction over a case when a state is ‘unwilling or unable to genuinely’ conduct investigations. This is one of the criteria of admissibility of a case to the Court. Thus, the ICC is a court of last resort71 which is only supplementary to national courts.72 Correspondingly,
complementarity may be regarded as the embodiment of sovereignty73 as it respects the primary
jurisdiction of states over those on their territory.
Prosecutor Moreno-Ocampo said that pursuant to the principle of complementarity, the efficiency of the ICC should be seen in the ‘absence of trials as a consequence of the regular
functioning of national institutions.74 Nevertheless, this perspective did not resonate with states
that were investing large sums of money and expected to see convictions by the Court.
Both the ICC and states see advantages in the existence of the complementarity principle which is the key element that allowed for the development of an international criminal law court and system. States are content that they can retain their sovereignty and assert their power of jurisdiction while having a helpful hand supporting them and taking over when the situation requires intervention. Furthermore, it provides safeguards that the Court will not unreasonably interfere with their national affairs and thus, makes it safer to join the system.75 By the same
token, the principle is a powerful attribute for the ICC which lacks resources and capacities to properly intervene in all the stages of the cases that require its attention. The Court has no bona fide enforcement scheme and not enough financial and personnel resources to respond to the entirety of the cases and in this exact matter, the complementarity principle perfectly balances the interchange between states and the Court. In this sense, the two parties seem to share responsibility76 on a certain given case, as the name of the principle indicates, the states and
the Court complement each other by having concurrent duties.
71Luis Moreno-Ocampo, ‘A positive Approach to complementarity’ 21. 72 Cryer (n26) 154.
73 Carsten Stahn, ‘Taking complementarity seriously: on the sense and sensibility of ‘classical’, ‘positive’ and ‘negative’ complementarity’ 234.
74 Luis Moreno-Ocampo n(71) 15. 75 Stahn (n73) 235
One of the shortcomings of the Rome Statute is its lack of clarity and detail on how one is to define complementarity.77 Nonetheless, the notion of ‘positive complementarity’ came into the
spotlight and was observed to play out in multiple situations.
Positive complementarity finds its legality in Article 93(10) which enables the Court to ‘cooperate with and provide assistance to a State Party conducting an investigation into or
trial in respect of conduct which constitutes a crime’. Assistance can take the form of
transmission of statements, documents or any other type of evidence; the inquiry of any person detained; or any other measure requested by the Court.78 As a result, it establishes a horizontal
relationship between the Court and the state79 where the former steps in to support and assist
the state when its national judiciary system is stretched to the limit. Often states avoid joining forces with the ICC as this would be proof that the domestic system is failing. Positive complementarity should not be mistaken with an indication that the entire system is failing, but solely a certain worn-out part requires further assistance. On the contrary, it provides a means to strengthen prevention, to develop cooperation and create a closer link between the national and international judicial realms.80
In this section, we will look at how ‘positive complementary’ was instituted by the ICC in relation to the Colombian situation and we will analyze whether the perceived shortcomings of the actual framework and proceedings under the SJP can trigger ICC prosecutions by analyzing the three main elements of Article 17: unwilling, unable, and genuine.
3.1 Positive complementarity in Colombia
The ICC laid its eyes on Colombia in 2004 when it initiated preliminary examinations, two years after Colombia joined the Rome Statute in a moment of great turmoil and a desperate need to reach peace.81 The signing of the Statute was a two-edged sword as it gave hope to the
government that it will receive assistance in its battle with the guerillas; however, at the same
77 ibid 236. 78 Ibid.
79 Stahn (n73) 260. 80 Ibid 235. 81 Uruena (n8) 106.
time, it was a threat to the peace discussions because the government was bound to the standards of the Court which prohibit the key tool that the state had at its disposal: amnesties.82
The preliminary examinations launched during the time in office of Mr Moreno-Ocampo were seen as an act of ‘positive complementary’. At the time it was the paramilitaries that conducted the main peace process and, in the given context, the Prosecutor was the advocate of a ’minimalist’83 approach to prosecution. Mr Moreno-Ocampo urged the state to target high-level
paramilitaries which was a more achievable goal in a crumbling society than prosecuting each and every criminal.
As time passed, the new Prosecutor Fatou Bensouda took office during the peace negotiations in Havana with FARC. She expressed distress with regard to ‘measures that appear designed
to shield or hinder the establishment of criminal responsibility of individuals.’84 She asked for
prosecution of all those responsible, accentuating that failure to do so would trigger an investigation by the ICC.85 It can be seen that the two approaches of the Prosecutors differ and
Colombia, used to and fairly expecting the continuation of the initial view adopted by the OTP, might have found itself trapped in unknown territory. The Prosecutor continued to intervene in the negotiations, highlighting ‘suspending sentences for those most responsible for war crimes
and crimes against humanity would amount to shielding the persons from criminal responsibility’.86 Nevertheless, it is interesting to observe that upon the completion of the
negotiations, Prosecutor Bensouda diminished the extent of her approach and agreed to a broader framework of responsibility as proposed by the Colombian Constitutional Court which found a way to interact with the Court and change her stance to fit the national interpretation.87
The horizontal relationship between state-Court can be noticed in the instance when the Court listened to the state and diminished and shaped its desideratum to suit its counterpart.
As discussed, the amnesties and sentencing scheme in the Peace Accord were a compromise that the international community, including the ICC and its Prosecutor, agreed to and supported. 82 Ibid. 83 Ibid 117. 84 Ibid. 85 Ibid. 86 Ibid 118. 87 Ibid.
The principle underlying Article 17 requires that if amnesties exist, at least some systems of inquiry into the crimes must be established. Amnesties will hardly ever be a bar to the ICC’s exercise of powers, nevertheless,88 complementarity provides a ground for inadmissibility if
crimes are investigated by truth commissions or minimal sanctions are established as part of well-rounded criminal procedures.89
The issue that can trigger ICC’s intervention is the implementation and the manner in which the SJP handles the cases which it investigates. What is on paper does not always match what happens in practice and, even though the sentences, and implicitly amnesties, do work in the words of the Accord, in practice the aims of victims’ recognition of suffering and deterrence of criminal conduct might not be properly achieved as laid down in the provisions stipulated in the deal. However, it can be argued that the scope of the amnesties is fulfilled considering that more severe punishment would not have been accepted by FARC and the conflict would have been restarted in the blink of an eye. Even now, with lenient sentences and a compromise agreed to, several ex-rebels took up arms again.90
3.2 Complementarity: an analysis of ‘unwilling’, ‘unable’ and ‘genuine’
The principle of complementarity proposes a tripartite test. First, it only allows the Court to start investigations if there are no proceedings initiated at the national level because the state is inactive, or if there are proceedings but they are biased.
Second, in the assessment of admissibility, besides looking at the existence of proceedings and their fairness, an important element the Court must consider is whether investigations have concluded. According to the ne bis in idem principle, the ICC cannot undertake new proceedings on the same matter against a perpetrator that has already been prosecuted. This principle is however overridden when the proceedings prove to have been misused.91
88 Stahn (n27) 709. 89 Ibid.
90 Charles (n20). 91 Cryer (n26) 155.
Third, the most relevant point to be assessed during procedures or in already terminated procedures is the conduct of the national authorities. The Court has to analyze whether the court was able to conduct independent and impartial proceedings in a genuine manner. Here the elements expressed in Article 17 come into play: ‘unwilling’, ‘unable’ and ‘genuine’.
A state is unwilling to prosecute when the investigations are shaped to the benefit of the accused. Certain elements indicate the reluctance of the state to prosecute: unjustified delays, lack of independence, lack of impartiality.92 A state must prove that its system is in conformity
with international standards of prosecution.93 This criterion is to be assessed in light of ‘the
principles of due process recognized by international law.’94 Due process refers to the rights
such as the right to be informed of the allegations made, opportunity to defend oneself, the right to legal representation and the right to question witnesses. A state must prove that its system is in conformity with international standards of prosecution.
The second element is explained in Article 17(3) which specifies that a state is unable to conduct prosecutions when its national justice is virtually inexistent. This refers to the collapse of the system where the necessary institutions and procedures responsible to bring the accused to justice do not have the capacity to sustain such an endeavor.95
The criterion of ‘genuineness’ remains a vague one. ‘Genuinely’ was a very debated term during Rome Statue’s negotiations and in the end, it stood as the preferred choice.96 It indicates
that when national investigations are in place, the case will be admissible solely when the efforts are not genuine.97
The SJP has already begun proceedings on multiple cases involving ex-rebels. Subsequently, the relevant question pertains to the nature of these proceedings. One is to assess whether the state in question is unwilling or unable to carry out the proceedings in a genuine manner.98
92 Kelly (n25) 809. 93 Cryer (n26) 157
94 Stahn (n27) 713; Rome Stature (n4) Art 17(2). 95 Cryer (n26) 158.
96 ibid 156. 97 Ibid 256.
3.2.1 The application of the test to the SJP
The first element of the test does not seem to impose challenges when it comes to the special Colombian system. To assess the willingness of the country to prosecute, attention must be paid to the practical aspects of the procedures. Thus, it is to be analyzed whether the appointment of the judges is fair without external interferences and whether the proceedings are conducted in a timely manner that ensures the efficiency of the system and whether guarantees of a fair trial are maintained.99
The Pact agreement seems to fulfill due process requirements. It requires the election of impartial and independent judges100 in a transparent manner, it additionally provides for
assistance of foreign jurists and it gives the possibility of appeal. However, one problem might exist with concern to the ‘unjustified delays’ in the proceedings. It has recently brought to the attention of the international community that the Attorney General’s Office has suspended investigations and judicial proceedings for all the cases connected to the conflict.101 The Court
was called upon to take into account this information in its complementarity assessment.
The second element to address is the ability of the state to conduct prosecutions. In the Colombian context, this is the factor that presents the least amount of concerns as the SJP itself is a well-functioning mechanism with substantial resources and the majority of the defendants voluntarily submitted their cases to the Tribunal.
Subsequently, the paramount criterion in the situation at hand remains the genuineness of the proceedings. Two matters are of interest in this context: the sentencing scheme and the investigation.
99 Stahn (n73) 246.
100 Final Agreement (n2) 88; Kai Ambos and Susan Aboueldahab, ‘Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?’ (EIJL:Talk, 19 December 2017)
< https://www.ejiltalk.org/foreign-jurists-in-the-colombian-special-jurisdiction-for-peace-a-new-concept-of-amicus-curiae/> accessed 15 January 2021.
101 ‘Colombia: FIDH and CAJAR denounce impunity gap for international crimes committed by agents of the State’ (International Federation for Human Rights, 14 December 2020) <
https://www.fidh.org/en/region/americas/colombia/colombia-fidh-and-cajar-denounce-impunity-gap-for-international> accessed 15 January 2021.
a. Sentences
Concerning sentences, Deputy Prosecutor James Stewart said: ‘where a conviction results from
proceedings, the assessment of genuineness also includes the matter of sentence’.102 Problems
in the assessment arise due to the lack of objective criteria. The Rome Statute does not explicitly address sentences and does not provide an objective framework and standard upon which comparison of national sentences, and transitional in this case, can be made and conclusions can be drawn.
Nevertheless, an idea can be formed by looking at the conditions that the given sentences fulfil. When such sentences do lead to acknowledgement of criminal responsibility, demobilization and, disarmament and guarantees of non-repetition, the alternative framework can be appropriate and, implicitly, the proceedings can be rendered as ‘genuine’. The SJP proceedings did lead in the majority of cases to demobilization, disarmament and non-repetition by utilizing sentences. It is true nonetheless that it did not do so to the desired extent as some criminals are returning to arms and some do not confess. However, the aims were achieved to the expected extent. The conflict in the country has political implications and was complex and on a great scale with consequences on the memory and the future of society. In such a context, it is to be expected that some rebels would not comply with the newly set rules and a certain degree of crime would be maintained. What is important is not the slight degree of non-compliance, but whether the majority of the perpetrators followed the right path and abided to the laws of accountability which they owe to the victims and the community as a whole.
Similarly, to assess alternative sentences which are restorative in nature, one can take into consideration the usual framework of sentencing under national law,103 the proportionality of
the sentence in relation to the crime and the type and degree of restriction on liberty.
The SJP sentences are inequitable when compared with the national standards. Colombian law imposes 80 years of imprisonment for crimes similar to the ones laid down in the SJP and it is no doubt that the lenient sentences of 5-8 years are not in balance with the gravity of war crimes and crimes against humanity that amounted to thousands of deaths. However, as it’s been
102 Kelly (n25) 832. 103 Ley 559 de 200 (n42).
recurring, the Accord was approved and supported by the international community and thus deemed reasonable in a post-conflict situation. The relevant point is not the amount of time, but whether acknowledgement, demobilization and the delicate balance between peace and justice are rightly fulfilled.
Overall, the gaps in understanding and clarity of the complementarity principle create an ambiguous context in which neither the states know how to comply with inexistent standards nor the Court explains and understands clearly what precise elements and steps are fully appropriate. There is a need to develop more foreseeable criteria regarding appropriate sentences in order to provide certainty and a clear road ahead for states, which can easily infringe norms and expectations that are unknown. 104
b. Investigation
Article 17(2)(c) suggests that a genuine investigation is one that is consistent ‘with an intent to
bring the person concerned to justice.’105 However, paragraphs (a) and (b) make a distinction
between investigations and prosecutions which are not mandatory to be of criminal nature.106
Accordingly, whether proceedings are genuine depends on the perspective which is adopted. A strict interpretation would need the Court to assess the Colombian procedures against an uncompromising idea of criminal investigations. In contrast, a flexible approach would expand the ambit of proceedings and the Court would have to take into considerations alternative forms of justice. It has been argued that this flexible interpretation is the preferred option considering the working of the entire Article 17. The term ‘investigation’ is to be understood as including procedures which ensure the gathering of evidence and facts, and the role of the defendant. As in the case of Colombia, alternative justice may be a ‘credible alternative where amnesty is
granted after an effective inquiry.’107
Thus, this expansion of the term would accept the individualized justice system established by Colombia despite the exemptions it makes to criminal responsibility. It can be asserted that
104 Kelly (n25) 834. 105 Stahn( n27) 715. 106 Ibid.
conditional amnesties part of a well-defined alternative system meets the requirements set forward by Article 17.
3.3 Complementarity and the Interpretative declaration on amnesties
First and foremost, the Vienna Convention on the Law of the Treaties (VCLT)108 arranges the
ground for reservations which are unilateral acts through which states choose to exclude or modify the legal effect of a given provision when ‘signing, ratifying, accepting, approving or
acceding’.109 Reservations are usually allowed because they can bring states to join a treaty
system which otherwise they would have avoided; however, their use may be limited or prohibited altogether according to the regime of the treaty that is discussed. In general, a reservation is legitimate as long as it does not conflict with the object and purpose of the treaty.110 The effect of a reservation is that it changes the default dynamic between the reserving
state and the other state parties in relation to the flagged provision which now only applies in part or not at all for the reserving state. Nevertheless, states are not obliged to agree to a reservation. A state can object against a reservation through public declarations, however, as long as no objection is expressed within 12 months, acquiescence is deemed as tacit acceptance.111
As stated, most treaties do allow for reservations as one would rather have states bound to some obligations rather than none. On the other hand, other treaties are of such utmost importance that reservations are incompatible with their framework and scope. Among these non-accepting treaties is also the Rome Statute which in Article 120 prohibits reservations. Scholars such as Schabas criticized the decisions of the drafters as counterintuitive and described it as ‘excessive’112 and not capable of maintaining the level of uniformity and certainty desired
considering that state parties can issue declarations on the norms.
Article 120 is complemented by Article 124 which allows a signatory state to block the jurisdiction of the Court for seven years. This provides the means of issuing interpretative
108 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, vol. 1155, May 1969. 109 Ibid article 19.
110 Gleider Hernandez, International Law (1stedn. Oxford University Press, 2019) 172.
111 Malgosia Fitzmaurice, ‘On the Protection of Human Rights, the Rome Statute and Reservations to Multilateral Treaties’ 10 SYBIL (2006) 133-173, 140.
declarations which do differ from reservations, but in certain instances, it is argued that they can be molded to take the form of a reservation.113 Interpretative declarations are not officially
acknowledged and defined in the international realm. The ILC came closest to giving a definition in its Guide on Reservations to Treaties114 where it recognizes interpretative
declaration to be unilateral statements, however phrased or named, made by a state or by an international organization whereby the state or that organization purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or of certain of its provisions.’115
Subsequently, the question that ignites controversy is whether such interpretative declarations can in certain cases be assimilated as reservations and, if so, whether they yield the same effect on the provisions of the Statute and the states’ relationships as a reservation would. This will be further analyzed in the Colombian situation in the next section.
A distinction is made between two types of interpretative declarations: mere declarations and qualified ones.116 The former refers to the usual use and understanding of interpretative
declarations: a simple statement that expresses a state’s perspective on the proper application of a norm; while the latter goes a step further and makes the participation of the declaring state dependent on the application of the provision in the manner which the state demands.117 At this
point, the declaration loses its minimal indicatory character and ‘excludes and modified the
terms of the treaty’.118 Building on this reasoning, the consequences attached to making a
reservation should also apply to interpretative declarations and the rules of the VCLT on reservations should extend to cover statements deemed as qualified interpretative declarations.
In the Rome Statute, the name given should be ignored and the focus should be placed solely on the effect of the affirmation. As long as a statement modifies or excludes the legal consequences of provisions, it is to be understood as a ‘disguised reservation’119 which
113 Fitzmaurice (n112) 168.
114 Report of the ILC on the Work of its 63rd session, GA, Official Records, 66th Session, supplement No. 10 Doc. A/66/10/Add. 115 Ibid Principle 1.2. 116 Fitzmaurice (n112) 160. 117 Ibid. 118 Ibid. 119 Ibid 168.
completely changes the dynamic of the Rome Statute’s norms on the territory of the declaring state.
Against this background, Colombia made multiple interpretative declarations on the provisions of the Rome Statute. The most important one in the discussion of complementarity is the declaration on amnesties which can block the possible jurisdiction of the ICC.
The declaration cites as follows:
‘None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the International Criminal Court prevent the Colombian State from granting amnesties, reprieves or judicial pardons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia.’120
If the arguments made by scholars and the international community are to be followed, this declaration modifies the legal effect of the prohibition of amnesty. Colombia’s declaration was mostly met with tacit acceptance from the part of the other state parties which means that it is legitimate and, accordingly, Colombia can make use of amnesties which conflict with its obligations under the Rome Statute. Nevertheless, one opponent was Amnesty International which objected to the presented declaration by highlighting that together with the Amnesty Law enacted in 2016, it can lead to de facto impunity for those responsible for international crimes and contravenes with Colombia’s duties under international law.121 The issue thus is
whether this declaration is, in fact, a declaration or it goes further to amount to a reservation. If the second scenario applies, then the application of the Rome Statute can suffer considerable change with regard to Colombia.
Similarly, the declaration gives rise to a second problem when it makes reference to amnesties that are to be granted ‘in conformity…. with the principles and norms of international law accepted by Colombia’. Under international human rights law, Colombia adheres to obligations that can preclude amnesties when violations of the norms occur on the state’s territory. This reference can affect the validity of the reservations and see Colombia violate international law. Both these matters are assessed in the following sections.
120 Ibid 163. 121 Ibid.
3.3.1 The nature of Colombia’s interpretative declaration
The discussion revolves around the question of whether the interpretative declaration made by Colombia is, in fact, a reservation. If this is the case, then Colombia’s statement is not valid anymore, meaning that the country is not allowed to uphold its amnesty law and the complementarity principle can be triggered due to the incompatibility of the sentencing framework with the ICC rules.
Identifying how a statement relating to a treaty provision is to be categorized can be a difficult task. The ILC tried to bring some light on the matter in Guiding Principle 1.3 which states that ‘the character of a unilateral statement as a reservation or as an interpretative declaration is
determined by the legal effect that its author purports to produce.’ Thus, the ‘legal effect’ test
is called into action, but this does not necessarily make the distinction between the two easier. It can be challenging to identify the legal effect that a statement produces because, on the international stage and not only, states are often reluctant to give a clear explanation of their intentions and most of the times they remain hidden or too subtle to build a case on them.122
Thereby, in order to reach a conclusion, the most important factor that has to be considered is the effect which the statement made by Colombia produces. The declaration made can be seen as a ‘qualified’ one if it does not simply seek to clarify the interpretation of the provision in relation to the country at hand, but it modifies and makes the applicability of the Rome Statute dependable on the statement.
Writing of scholars and international precedents indicate that and assessment of the legal effect is to take into consideration the wording and the intention behind the statement.
One interesting precedent is the Belilos123 case ruled upon by the European Court of Human
Rights. In its analysis, the Court looked at the language of the declaration and the travaux preparaitores in order to ascertain the original intention of the drafters. 124 It cannot yet be stated
122 Ibid 161.
123 Belilos v. Switzerland, Admissibility, merits and just satisfaction 29 Apr. 1988 ECtHR No 132
124 Susan Marks, ‘Reservations Unhinged: The Belilos case before the European Court of Human Rights’ 39 (1990) Int. Comp. Law. Q 300-3217, 305.
