Admissibility at the International Criminal Court:
When should the work of truth commissions be respected?
University of Amsterdam
International and European Law: Public International Law Name: Abeltje Nuijens
Thesis supervisor: Prof. Göran Sluiter
2 Abstract
Over the last 40 years, truth commissions have become a common phenomenon in post-conflict countries struggling with the aftereffects of gross human rights violations. In most cases truth commissions complement the work of the International Criminal Court and both bodies serve as co-workers. However, problems arise when the ICC is investigating a case that has already been fully investigated by a truth commission and retributive and restorative justice clash. Is prosecution in those situations contrary to the principle of complementarity? The problem of truth commissions remains relevant today considering the recent
establishment of a truth commission in Colombia and there are still no criteria that dictate when the ICC should render a case inadmissible in situations where a truth commission already investigated it. Extensive research on the drafting history and the law in practice has proved that there is room for the Prosecutor to declare cases inadmissible with regard to investigations by truth commissions. However, article 17 of the Rome Statute, containing the principle of complementarity, is vague and leaves room for ambiguity. The negotiators of the Rome Statute left it to the discretion of the Prosecutor to develop a coherent approach. The Prosecutor however, has abstained from developing such an approach, hereby leaving the issue unresolved. The purpose of this thesis is to clarify the complementarity regime with regard to truth commissions. Therefore, this thesis seeks to answer the following research question: “Under what circumstances should a case be declared inadmissible at the
International Criminal Court (with regard to the principle of complementarity), when it has already been fully investigated by a legitimate and genuine truth commission?”
The vagueness of article 17 has led to legal uncertainty and therefore the suggestion is made to amend article 17 of the Rome Statute, allowing it to include criteria applicable to truth commissions. A truth commissions must meet the following conditions will its investigation render a case inadmissible before the ICC: legitimacy, independency and impartiality, no shielding of persons from criminal responsibility, no blanket amnesties, establishment in accordance with the Rome Statute, timely investigations and it must serve the interests of the victims. Given the fact that amendments to the Rome Statute are very unlikely to happen in the near future, it is up to the Prosecutor to take a stand and issue clear criteria in order to address the problematic relationship between the ICC and national mechanisms addressing human rights violations. The ball is in their Court.
3 Table of Contents
Introduction ... 4
Chapter 1 – Truth commissions and their functions ... 8
1.1 History and definition of truth commissions ... 8
1.2 Aims/functions truth commissions ... 9
1.3 Two examples of truth commissions ... 12
Chapter 2 – Drafting history ... 13
2.1 Principles of complementarity and ne bis in idem ... 13
2.2 Truth commissions and amnesties... 15
Chapter 3 – The law in practice ... 16
3.1 Complementarity in practice ... 16
3.2 Complementarity and truth commissions ... 20
3.3 Prosecution in the interests of justice ... 23
Chapter 4 – Case study: Colombia ... 24
Chapter 5 – Evaluation and Recommendations ... 31
5.1 Evaluation... 31
5.2 Recommendations ... 32
Chapter 6 – Conclusion ... 38
4 Introduction
It is to be hoped…that when the ICC comes into being, it will not, either by definition or by approach, discourage attempts by national states to come to terms with their past…It would be regrettable if the only approach to gross human rights violations comes in the form of trials and punishment. Every attempt should be made to assist countries to find their own solutions provided that there is no blatant disregard of fundamental human rights.1
In the quote above, Alex Boraine expressed his concern about the way in which the
International Criminal Court (ICC) would deal with national initiatives established to address gross human rights violations. This issue was also addressed by other scholars (such as Charles Villa-Vicencio) who feared that the ICC would not be able to properly deal with the different and complex situations that arise during the political transition of a particular country.2 There is some truth to these expressed concerns. Although the establishment of the ICC, the first court established in advance of international human rights violations, can be considered as a historic achievement,3 there are still some problems regarding the functioning of the ICC and its objective to pursue criminal accountability for the most serious crimes of international concern.4
A crucial factor that determines the credibility and independence of the ICC is state cooperation.5 In order to carry out its main responsibilities, the ICC is dependent on the cooperation of states and international organizations.6 The cooperation of states is not always guaranteed and remains to be challenging. Furthermore, the ICC has limited financial and human resources, which makes it virtually impossible to prosecute all the perpetrators of human rights violations.7 Therefore, the Court often chooses to prosecute only the high-level
1 A. Boraine A Country Unmasked: South Africa’s Truth and Reconciliation Commission (Oxford University Press
2000).
2 J Yav ‘The relationship between the International Criminal Court and Truth Commissions: Some thoughts on
how to build a bridge across retributive and restorative justices’ (2005) Centre for Human Rights and Democracy Studies <http://www.iccnow.org/documents/InterestofJustice_JosephYav_May05.pdf > (14 July 2016) 11.
3 R Dicker and H Duffy ‘National Courts and the ICC’ (1999) VI BJWA 53, 53. See also: CD Totten ‘The
International Criminal Court and Truth Commissions: A Framework for Cross-Interaction in the Sudan and Beyond’ (2009) 7 NW. J. Int’l Hum Rts. 1, 15.
4 See also the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002) 2187 UNTS 90 (Rome Statute) art. 1.
5 R Blattmann and K Bowman ‘Achievements and Problems of the International Criminal Court: A View From
Within’ (2008) 6 JICJ 711, 722.
6 ibid 722.
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perpetrators.8 When the ICC does choose to prosecute, there is always the challenge of speediness of the proceedings and trial.9 Because of these disadvantages it is important that national initiatives are welcomed. Moreover, prosecution is not always the right response to gross human rights violations, especially when a country is going through a political
transition and moves from conflict to peace or oppression to democracy.10 The complex questions of justice and accountability cannot entirely be satisfied by trials in court and therefore, complementary approaches to criminal justice have come into existence. 11 However, there are certain tensions that arise between alternative (non-punitive) approaches to mass atrocities and the criminal justice system.12 This is where truth commissions enter the discussion.
The subject of truth commissions is touched upon by various authors (Robinson, Totten, Seibert-Fohr etc.).13 These scholars discuss the way in which truth commissions may form a problem for the functioning of the ICC and its task to prosecute perpetrators of the most serious crimes of concern to the international community.14 Although truth commissions and international criminal justice can be considered as co-workers and can complement each other in transitional phases of different countries, it is inevitable that the Court’s jurisdiction will overlap with investigations carried out by those truth commissions.15 Several legal questions arise when national initiatives and investigations by the ICC cross paths. For instance, how should the ICC deal with truth commissions and should the work of these commissions be respected?
In order to determine how the ICC will interact with truth commissions, it is essential to examine the legal framework set out in the Rome Statute.16 Even though there already existed more than 20 truth commissions at the time the ICC came into existence, the Rome Statute
8 CD Totten (n 3) 22. In Sudan, for example, the court chose to prosecute only the individuals most responsible
for serious violations of international criminal law.
9 R Blattmann and K Bowman (n 5) 724. 10 J Yav (n 2) 12.
11 PB Hayner Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (2nd edn
Routledge 2011) 7-8.
12 J Yav (n 2) 3.
13 See for example: D Robinson ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court’ (2003) 14 European Journal of International Law.
14 Art. 1 Rome Statute.
15 P Flory ‘International Criminal Justice and Truth Commissions: From Strangers to Partners?’ (2015) 13 JICJ 19,
21. See also: PB Hayner (n 11) 110.
16 D Roche ‘Truth Commission Amnesties and the International Criminal Court’ (2005) 45 Br. J. Criminol. 565,
6
remains largely silent on the topic of truth commissions.17 This leaves us with a lot of
unanswered questions. For example, can the ICC prosecute a perpetrator if he/she has already been examined by a truth commission? Or would this be contrary to article 17 of the Rome Statute, because the case has already been investigated by a state?18
Although the problem with cases already ‘examined’ by truth commissions has been discussed for quite some time, it remains highly relevant today. For example with regard to the situation in Colombia. Last year, the Colombian government and FARC guerrilla fighters have agreed to form a truth commission.19 There is a big chance that the ICC will be
confronted with the work of this truth commission, because the prosecutor of the ICC has already started an ongoing preliminary examination of the situation over there.20 Moreover, truth commissions are created in multiple countries and are a common phenomenon. It is therefore important that this subject is addressed.
This thesis will not be able to cover all of the questions that arise when one thinks of truth commissions. Instead, it will focus on the principle of complementarity and the influence this principle has on the acceptance of the work of truth commissions by the ICC. Although this topic has been discussed ever since the ICC was established, there are no criteria that dictate when the ICC should render a case inadmissible and should respect the work of truth
commissions. The research question that will be examined reads as follows: “Under what
circumstances should a case be declared inadmissible at the International Criminal Court (with regard to the principle of complementarity), when it has already been fully investigated by a legitimate and genuine truth commission?”
The first chapter of this thesis will describe the history and definition of truth commissions, as well as their functions and aims. It is important to have a clear understanding of truth commissions and their functions in order to gain a broad perspective on the relationship
17 D Roche (n 16) 567. For a list of these truth commissions see PB Hayner (n 11) XI.
18 Art. 17 Rome Statute states that a case shall be determined as inadmissible when the case is already being
investigated or prosecuted by a State with jurisdiction.
19 — ‘Colombia and FARC rebels agree to form truth commission: Negotiators from both sides meeting in
Cuban capital reach agreement despite recent escalation of violence’
<http://www.aljazeera.com/news/2015/06/colombia-farc-rebels-agree-form-truth-commission-150604235948145.html> (14 July 2016).
20 — ‘situations and cases’
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between alternative approaches to mass atrocities and prosecution by the ICC. In addition, attention is paid to one of the most successful truth commissions that ever existed in comparison with a not so widely acclaimed truth commission, respectively the truth commissions in South Africa and the Federal Republic of Yugoslavia. Chapter 2 will continue with the drafting history of the ICC, focusing on the principles of complementarity and ne bis in idem. The question remains why there was no provision on truth commissions included in the Rome Statute. This topic will also be touched upon. After the drafting history is discussed, the third chapter will look at the way in which the relevant principles from the Rome Statute are applied to the work of truth commissions. How exactly is the law applied in practice? Hereafter a case study will be performed. Chapter 4 will discuss the situation in Colombia. What kind of effect does the existence of the Colombian truth commission have on the determination of admissibility before the ICC? The final chapter of this thesis will give an evaluation of all the information presented. Recommendations are made. Under which circumstances should the prosecutor of the ICC render a case, that has been examined by a truth commission, inadmissible? Criteria for this will be given. Furthermore, not only recommendations for the prosecutor of the ICC will be made, but also for states who are interested in establishing a truth commission or who have already established a truth commission. I will discuss how they should design their local truth commission in order to avoid that perpetrators, who have already been subjected to an investigation by a truth commission, will be prosecuted by the ICC. In addition, the question whether it is necessary to change the law in order to improve the already complicated relationship between the ICC and truth commissions, will be answered. Should a new legal regulation be introduced to clarify this problem?
8 Chapter 1 - truth commissions and their functions
1.1 History and definition of truth commissions
In 1974, the first ever truth commission, named the Commission of Inquiry into the Disappearance of People in Uganda since 25th January 1971, was established.21 However, this Ugandan Commission had very little impact and was virtually forgotten in history.22 It took a few more years before the first widely known truth commission was set up in Argentina.23 The undeniable disappearance of thousands of persons during the ‘Dirty War’ made the establishment of truth the ‘first order of the day’.24 However, the concept of truth commissions did not exist at that time and the Argentinian commission was therefore never referred to as ‘truth commission’, but rather as the National Commission on the Disappeared (CONADEP).25 Moreover, the concept of truth commissions did not emerge until almost ten years later, when it became a term of art.26
Although it has been over 40 years since the first truth commission was established, there is no such thing as a universally accepted definition of these commissions. Generally, they are specified as ‘bodies set up to investigate a past history of violations of human rights in a particular country-which can include violations by the military or other government forces or by armed opposition forces’.27 Priscilla Hayner28 suggests a working definition applicable to all truth commissions, which is widely cited by other scholars.29 According to this definition a truth commission constitutes the following:
A truth commission (1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their
21 PB Hayner Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (2nd edn
Routledge 2011) 239.
22 ibid 239. 23 ibid 10.
24 The exact number of disappearances remains unknown, official accounts say almost 20.000 people
disappeared. See: Vladimir Hernandez ‘Painful search for Argentina’s disappeared’ (2013)
<http://www.bbc.com/news/world-latin-america-21884147> (14 July 2016). See also: Reed Brody ‘Justice: The First Casualty of Truth?’ < https://www.hrw.org/news/2001/04/12/justice-first-casualty-truth> (14 July 2016).
25 PB Hayner (n 21) 10. 26 ibid 10.
27 PB Hayner ‘Fifteen Truth Commissions -- 1974 to 1994: A Comparative Study’ (1994) Hum. Rts. Q. 597, 600. 28 PB Hayner (n 21) 10-11.
29 See for example: CD Totten ‘The International Criminal Court and Truth Commissions: A Framework for
9
experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review.30
Thus, truth commissions are bodies created to investigate human rights violations after and during the political transition of a particular country.31
From the year 1974, the number of truth commissions has rapidly evolved, marking the vast grow of importance of such commissions.32 However, it is important to note that the concept of truth commissions is sometimes incorrectly applied to inquiries that do not fit the
concept.33 In 2011 there were approximately 40 inquiries that could be qualified as truth commissions, although this list does not include truth commissions that were established after 2011, such as the truth commission in Colombia.34 The increasing growth of truth
commission over the last 40 years leads us to believe that these commissions fulfill important functions. But what exactly are the functions and aims of truth commissions? This issue will be discussed in the upcoming paragraph.
1.2 Aims/functions truth commissions
Truth commission often arise ‘during or immediately after a political transition in a particular country’.35 Therefore, truth commissions are often seen as an initiative from the government to respond to mass atrocities that occurred.36 The objectives of a particular truth commission are stated in the legal instrument that establishes it and may vary between different
countries.37 Typically, truth commissions have some or all of the following objectives:
to discover, clarify, and formally acknowledge past abuses; to address the needs of victims; to “counter impunity” and advance individual
accountability; to outline institutional responsibility and recommend reforms; and to promote reconciliation and reduce conflict over the past.38
One of the most fundamental and straightforward objectives of a truth commission is
30 PB Hayner (n 21) 11-12.
31 CD Totten (n 29) 4. 32 PB Hayner (n 21) XI. 33 ibid 13.
34 ibid XI. However, these numbers stem from 2011. See also: — ‘Colombia and Farc announce truth
commission’ < http://www.bbc.com/news/world-latin-america-33017258> (14 July 2016).
35 PB Hayner (n 27) 608. 36 PB Hayner (n 21) 20.
37E González and H Varney (eds.) Truth Seeking: Elements of Creating an Effective Truth Commissions (New
York: International Center for Transitional Justice 2013) 9.
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finding.39 Truth commissions are capable of establishing ‘an accurate record of a country’s past’ and can ‘lift the lid of silence and denial from a contentious and painful period of history’.40 International courts have stated that it is a state’s obligation to provide the truth and to investigate past abuses and this is one of the primary reasons governments choose to express their support towards the establishment of truth commissions.41
A question that rises when it comes to fact-finding, is whether a truth commissions might be a better fit to write historical records than international criminal tribunals. Hannah Arendt elaborated on this in her work written during the Trial of Adolf Eichmann. She stated that ‘the purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes - "the making of a record of the Hitler regime which would withstand the test of history,".42 Thus, according to Arendt, Courts should not attempt to write definitive historical records of mass atrocities.43 She has a valid point here. Courts are created to assess the quilt or innocence of the accused, not to write historical records.44 However, for international criminal tribunals to assess mass atrocities it is inevitable that they discuss the historical context.45 As Harmen van der Wilt argues: ‘without some historical context neither system criminality nor international crimes can be properly understood’.46 Still, I believe truth commissions are often in a better place to write historical records of mass atrocities than international criminal tribunals, though this does not mean that these tribunals should not touch upon the historical context at all.
Another difference between truth commissions and trials by international criminal tribunals is the ‘nature and extent of their attention to victims’.47 Truth commissions are primarily
focused on the victims and their rights.48 Truth commissions ‘protect, acknowledge, and empower victims and survivors’.49 By taking statements, holding public hearings and
39 PB Hayner (n 21) 20.
40 ibid 20.
41 ibid 23. This obligation has been restated in the work of the UN and other governmental institutions. 42 H Arendt Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books 2006) 253.
43 H van der Wilt ‘Crimes against Humanity: a Category Hors Concours in (international) criminal law?’ in B Van
Beers L Corrias and WG Werner (eds) Humanity across International Law and Biolaw (Cambridge University Press 2014) 39. 44 ibid 39. 45 ibid 40. 46 ibid 40. 47 PB Hayner (n 21) 22. 48 ibid 22.
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publishing reports, they raise awareness among the general population and give victims their voice back. 50 Furthermore, truth commissions can provide for reparation in ways that
international criminal trials probably cannot.51
Besides fact-finding and attention to the rights of victims, truth commissions may also contribute to individual accountability by passing their reports and findings on to (local) prosecuting authorities.52 Depending on the effective functioning of the authorities and the concrete circumstances of the case, this may lead to prosecution and hence a criminal trial.53 Moreover, truth commissions can contribute to social and political transformation by
recommending reforms and outlining institutional responsibility in order to encourage change in the behavior of these institutions.54 In addition, some truth commissions see reconciliation and the promotion of peace between formal rival communities as a priority.55 Reconciliation remains a difficult issue however and truth commissions have struggled with the
implementation of this objective.56 It remains unclear exactly how the establishment of truth affects reconciliation. On the one hand revealing the truth can help solve conflicts and
contribute to the establishment of a new society. On the other hand, the establishment of truth can also create new tensions.57
Consequently, the functions of truth commissions go far beyond fact-finding and the establishment of truth. It is therefore understandable that the amount of truth commissions has rapidly grown over the last 40 years. Truth commissions fulfill important functions in post-conflict countries and can contribute to the process of reconciliation in countries with a history of mass abuse. However, this does not mean that truth commissions are always successful in fulfilling their purposes.
50 PB Hayner (n 21) 22.
51 Reed Brody ‘Justice: The First Casualty of Truth?’
<https://www.hrw.org/news/2001/04/12/justice-first-casualty-truth> (14 July 2016).
52 PB Hayner (n 21) 22-23. 53 ibid 22-23.
54 ibid 23. See also: E González and H Varney (eds.) (n 37) 9. 55 E González and H Varney (eds.) (n 37) 9.
56 PB Hayner (n 21) 23. 57 ibid 23.
12 1.3 Two examples of truth commissions
One of the strongest truth commissions that ever existed is South Africa’s Truth and
Reconciliation Commission (SATRC).58 This commission has received global attention and almost universal acclaim over the years.59 Furthermore, within the international human rights community many consider the South African model as a great example for future truth commissions.60
The SATRC was inaugurated in 1995, after a long process consisting of hearings, two international conferences and a public nomination and selection process in order to appoint seventeen commissioners.61 During this process, civil society had a significant input and it has been argued that this public nature of the SATRC has helped building a culture in South Africa that supports democracy and human rights.62 However, the public nature of the SATRC was not the only aspect that made this truth commission such a success. There were other aspects that influenced the positive effects of the SATRC on the South African society, such as the public hearings that were held and the ability to grant amnesties.63 But the
SATRC also had some flaws and was criticized for not using the strong powers it was given (amongst others the power to issue a subpoena).64 Furthermore, the actual impact that the SATRC has had on reconciliation and the improvement of racial inequality remains difficult to determine.65 Despite these flaws and uncertainties, the SATRC was still very successful and is not without reason often referred to.
Unlike the SATRC, there are also examples of truth commissions that were not praised for their successes. The Commission for Truth and Reconciliation in the Federal Republic of Yugoslavia for instance, achieved very little.66 No public hearings were held and no
statements from victims were taken by this commission.67 Furthermore, the commission was annulled in 2003 when the Federal Republic of Yugoslavia ceased to exist en was
58 PB Hayner (n 21) 28.
59 E Wiebelhaus-Brahm Truth Commissions and Transitional Societies: The Impact on Human Rights and
Democracy (Routledge 2010) 35.
60 ibid 35.
61 PB Hayner (n 21) 27.
62 ibid 27. See also: E Wiebelhaus-Brahm (n 59) 35. 63 E Wiebelhaus-Brahm (n 59) 35.
64 PB Hayner (n 21) 28. 65 ibid 31.
66 ibid 252.
67 ibid 252. See also V Dimitrijević ‘The Fate of the Truth and Reconciliation Commission in the Federal Republic
13
transformed into Serbia and Montenegro.68 The failure and ineffectiveness of this
commission was caused by several factors, such as the fact that the commission did not have extensive powers nor a constitutional basis.69
Chapter 2 –Drafting history
2.1 Principles of complementarity and ne bis in idem
In order to establish the ICC, the Preparatory Committee on the Establishment of the ICC (Preparatory Committee) was created to provide a draft text, although this was after the International Law Commission (ILC) had generated the first Draft Statute regarding the establishment of the ICC.70 The text of the Preparatory Committee provided the basis for the United Nations Conference of Plenipotentiaries on the Establishment of an ICC (also known as the Rome Conference), which resulted in the adoption of the Rome Statute of the
International Criminal Court in July 1998.71
An important question the drafters of the Rome Statute faced, during the establishment of the ICC, was how the permanent court would interact with national courts.72 Supporting states expressed different views on this matter. There were some states, including
non-governmental organizations, which saw great potential in the Court and therefore argued that the Court should be able to intervene with national proceedings.73 However, other states were afraid that the ICC would infringe on their national sovereignty and were more hesitant.74 Although other international criminal tribunals, such as the ICTY and the ICTR, did have primacy over national proceedings, it was eventually agreed upon that the ICC was there to complement national authorities.75 This fundamental principle, in which national proceedings have primacy over the ICC, is referred to as complementarity. Even though there is no
definition of the term complementarity in the Rome Statute, the concept is implicitly referred
68 PB Hayner (n 21) 252.
69 See for the other reasons: V Dimitrijević (n 67) 63.
70 — ‘History of the ICC’ <http://www.iccnow.org/?mod=icchistory > (14 July 2016). 71 ibid.
72 JT Holmes ‘The Principle of Complementarity’ in RS Lee (ed) The International Criminal Court: The Making of
the Rome Statute: Issues, Negotiations, Results (Kluwer Law International 1999) 41.
73 ibid 42. 74 ibid 41.
75 D Roche ‘Truth Commission Amnesties and the International Criminal Court’ (2005) 45 Br. J. Criminol. 565,
14
to in article 17.76 The principle of complementarity had already taken shape in the first Draft Statute of the ILC under the term ‘issues of admissibility’.77 There were some changes made to this provision (the provision has been extended), but it would be too extensive to discuss these changes in detail. What is important to note however, is that the underlying objectives of complementarity remained the same during the entire drafting period and that the
Preparatory Committee never disputed the principle.78
The end result of the long drafting history of the ICC is an article that determines
inadmissibility of cases in four different situations. First, when a state is already investigating or prosecuting a case. However, during the drafting process some delegations expressed their concern that national prosecution would be used to shield perpetrators from prosecution and therefore the sentence ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’ was added.79 Second, when the state has already completed the investigation and has decided not to prosecute, unless this decision was the result of
unwillingness or inability to genuinely prosecute. Third, when a person has already been tried for conduct that is the same subject of the current complaint and fourth, when the case is not of sufficient gravity.80
A principle that has a close connection to that of complementarity is the principle of ne bis in
idem to which article 17 (1) (c) of the Rome Statute refers. The ne bis in idem principle itself
is codified in article 20 of the Rome Statute and its purpose is to ensure that prosecution by the ICC is barred when the perpetrator has already been tried for the same conduct (the conduct which is the subject of the complaint).81 In the first Draft Statute however, there was no such reference in article 35 (current article 17) to the ne bis in idem principle.82
Furthermore, the provision on ne bis in idem, article 42 (current article 20) was placed in a chapter called ‘trial’ and followed the section on the rights of the accused.83 During the
76 T McHenry ‘Complementarity Issues’ (2011) 105 Am. Soc'y Int'l L. Proc. 157, 157. 77 ILC Draft Statute for an International Criminal Court with commentaries art. 35.
78 For a more elaborate summary on the drafting of the Rome Statute see: W Schabas The International
Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 336-339.
79 Art. 17 Rome Statute and J Trahan ‘Is Complementarity the Right Approach for the International Criminal
Court’s Crime of Aggression? Considering the Problem of “Overzealous” National Court Prosecutions’ (2012) 45 Cornell Int’l L.J. 569, 582.
80 See for all these conditions: art. 17 Rome Statute. 81 See art. 17 (1) (c) Rome Statute.
82 ILC Draft Statute (n 77) art. 35.
83 J Baranowski ‘Re-examining the relationship between Ne Bis in Idem and Complementarity under The
15
drafting process, opinions were expressed to assemble all provisions on admissibility and to place them in one section.84 After some changes were made to the provisions, they were eventually placed in the same part of the Rome Statute (Part II on jurisdiction, admissibility and applicable law). Moreover, a reference to article 20, the provision on ne bis in idem, was added in the drafting process (article 17 (1) (c)), in order to protect the rights of the accused.85
The drafting history of the Rome Statute shows that the establishment of the ICC was a process consisting of long negotiations and compromises. During this process it has become clear that the principles of complementarity and ne bis in idem are of significant importance for the existence of the ICC. Furthermore, the reference made in article 17 (1) (c) to article 20 suggests that there is a strong connection between the two principles.
2.2 Truth commissions and amnesties
As previously stated, truth commissions and the ICC do not always have to clash. They both serve important objectives and can complement each other in the achievement of these objectives. However, problems arise when a truth commission grants amnesty to a perpetrator, because this endangers the objective of the ICC to punish those who commit serious international crimes.86 The question we are left with is whether the ICC must respect these amnesties and whether these amnesties provide a bar to prosecution.87
This question was raised during the drafting of the Rome Statute (according to those involved in this process) and different provisions were proposed in order to clarify this issue.88 Some delegations were of the opinion that amnesties should be addressed in the Rome Statute and suggested clear guidelines and provisions on national amnesties.89 They wanted to ensure that perpetrators of serious international crimes did not go unpunished and proposed a provision in which the principle of ne bis in idem with regard to national amnesties did not apply.90 However, there were also delegations that wanted to prevent the ICC from exercising
84 J Baranowski (n 83) 15.
85 C Laucci The Annotated Digest of the International Criminal Court: 2009 (Martinus Nijhoff Publishers 2014)
88.
86 D Robinson ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal
Court’ (2003) 14 European Journal of International Law 481, 484.
87 D Roche (n 75) 567. 88 ibid 567.
89 A Seibert-Fohr ‘The Relevance of the Rome Statute of the International Criminal Court for Amnesties and
Truth Commissions’(2003) 7 Max Planck UNYB 553, 561.
16
jurisdiction and interfering with national decision-making. They proposed a provision that banned the ICC from prosecuting perpetrators that had already been the subject of a national decision.91 Unfortunately, no agreement could eventually be reached and therefore none of the articles of the Rome Statute refer to amnesties or the subject of truth commissions.92 This means that it was left to the Prosecutor and the Court to figure out how to interpret the Rome Statute and how to shape the relationship with truth commissions.93
Two members of a group of experts, established in April 2003, were of the opinion that the Office of the Prosecutor (OTP) should develop clear criteria regarding truth commissions and amnesties as soon as possible, as they felt that this would enhance the authority, transparency and certainty of the actions of the OTP.94 However, the OTP has abstained from doing so, leaving the issue of amnesties an truth commissions unresolved and ambiguous.
Chapter 3 – The law in practice
3.1 Complementarity in practice
The drafting history of the ICC has demonstrated that the principle of complementarity, which was agreed upon to protect the sovereignty of states, limits the competence of the ICC by ensuring that the Court does not have primacy over national proceedings. It is up to the Prosecutor to determine when a case, that is being investigated or prosecuted by a state, should be rendered inadmissible at the ICC. In order to do this, the Prosecutor makes use of the criteria set out in the Rome Statute, in specific articles 17 and 20. This paragraph will elaborate on these articles and the way the principle of complementarity is applied in practice.
A case is admissible at the ICC, unless one of the grounds of inadmissibility, set forth in article 17, is applicable.95 The ICC shall declare a case inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or
91 A Seibert-Fohr (n 89) 561-562. See also Doc. A/CONF.183/2/Add.1, p. 42 and art. 19. 92 D Roche (n 75) 567.
93 ibid 567.
94 See ‘Informal Expert Paper: The Principle of Complementarity in Practice’ (2003) ICC-OTP 2003 supra nota
34.
95 JS Easterday ‘Deciding the Fate of Complementarity: A Colombian Case Study’ (2009) 26 Ariz. J. Int'l & Comp.
17
prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.96
There has been some debate on article 17 (1) (a) and (b) and whether these provisions contain a single or a two-fold test. Some scholars are of the opinion that if a state has jurisdiction over a particular crime, the only test that needs to be conducted is whether this state is unwilling or unable to prosecute that crime. However, others have taken a different view and argued that the latter test only applies in cases where national proceedings have actually been initiated or conducted.97 The ICC has followed this latter approach and has applied the two-fold test on multiple occasions.98 Therefore, to determine whether the grounds in article 17 (a) and (b) are applicable, two questions must be answered: first, are there national
proceedings by a state with jurisdiction and second, is that state willing or able to genuinely carry out those proceedings.99
Article 17 sets forth the following factors in order to determine the unwillingness of a state to genuinely carry out national proceedings:
In order to determine unwillingness in a particular case, the Court shall consider (..) (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.100
The phrase ‘the Court shall consider’ implies that the provisions are open-ended and that the factors mentioned, such as the unjustified delay in the proceedings, serve as a mere
96 Art. 17 (1) Rome Statute.
97 TO Hansen ‘A Critical Review of the ICC’s Recent Practice Concerning Admissibility Challenges and
Complementarity’ (2012) 13 Melb. J. Int'l L. 217, 220.
98 See for example: Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial
Chamber II of 12 June 2009 on the Admissibility of the Case (ICC, Appeals Chamber, Case No ICC-0 1/04-01/07-1497, 25 September 2009) 78.
99 JS Easterday (n 95) 57. 100 Art. 17 (2) Rome Statute.
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illustration.101 This open-endedness and ambiguity have made it hard to asses unwillingness in practice. Should the ICC, for example, investigate or prosecute crimes for which states have granted amnesties?102 Can states then be considered as unwilling? The Rome Statute does not provide us with a clear answer to this question.103 Former UN Secretary General Kofi Annan addressed this issue in a statement regarding the South African Truth and Reconciliation Commissions and argued that: ‘the purpose of that clause in the Statute is to ensure that mass murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order’.104 It is left to the Prosecutor to determine whether a criminal is sheltering behind a state and regrettably, article 17 does not give much guidance.105 Therefore the Prosecutor has a lot of discretionary powers during this assessment.106
Besides the term unwilling as mentioned above, the Rome Statute also elaborates on inability to prosecute: ‘the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.107 In a Policy Paper stemming from 2003, the OTP explained the rationale behind this provisions as follows:
[T]his provision was inserted to take account of situations where there was a lack of central government, or a state of chaos due to the conflict or crisis, or public disorder leading to collapse of national systems which prevents the State from discharging its duties to investigate and prosecute crimes within the jurisdiction of the Court.108
Thus, the Prosecutor has the task to analyze the functioning of national judicial systems in combination with the political climate in a particular state in order to assess inability.109
Another problem that rises when assessing admissibility of cases is the use of the wording
101 D Robinson ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal
Court’ (2003) 14 European Journal of International Law 481, 500.
102 JS Easterday (n 95) 58. 103 ibid 58.
104 Secretary-General Kofi Annan Secretary-General Urges 'Like Minded' States to Ratify Statute of International
Criminal Court Press Release U.N. Doc. SG/SM/6686 (1 September 1998).
105 JS Easterday (n 95) 59.
106 M El Zeidy ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’
(2002) 23 Mich. J. Int’l L. 869, 899.
107 Article 17 (3) Rome Statute.
108 ‘Paper on some policy issues before the Office of the Prosecutor’ (2003) ICC-OTP-2003 4. 109 JS Easterday (n 95) 62.
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‘genuinely’ in article 17 (1) (a) and (b). Does this wording refer to situations where states are prosecuting certain individuals, but in a deceitful and insincere way? Or does it refer to situations where states are just not able or not willing to prosecute?110 According to a group of experts the correct interpretation of ‘genuinely’ includes situations in which a state is acting deceitfully and insincerely.111 However, due to the vagueness of the word other scholars have expressed the opposite view and argued that genuinely only refers to situations where the state is really unable or unwilling to prosecute.112 Personally, I tend to agree with the group of experts. Why would the word ‘genuinely’ be included in the text of the Rome Statute, if it only includes situations in which the state is not prosecuting?113 The Problem is that, unlike the terms unwilling and unable, the term genuinely is not defined in the Rome Statute and therefore the interpretation is left entirely to the Court.114
The third ground of inadmissibility is, unlike article 17 (1) (a) and (b), not there to protect the sovereignty of states, but is there to protect the rights of the accused. To assess whether this ground is applicable, one must answer the question whether the person has already been tried for the conduct that is the subject of the complaint.115 Reference is made to the article 20 (3) of the Rome Statute containing the principle of ne bis in idem regarding persons already tried by another court for the same conduct. Those persons cannot be tried by the ICC unless the earlier proceedings:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.116
How this article relates to the existence of truth commissions will be discussed in the next paragraph.
A case can, lastly, be declared inadmissible if it is not of sufficient gravity to justify further
110 LN Sadat and SR Carden ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88 Geo. L.J.
381, 418. See also: JS Easterday (n 95) 59.
111 JS Easterday (n 95) 60 and Informal Expert Paper (n 94) 21. 112 M El Zeidy (n 106) 900.
113 JS Easterday (n 95) 60. 114 ibid 61.
115 Art. 17 (1) (c) Rome Statute. 116 Art. 20 (3) Rome Statute.
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action by the Court.117 As is evident from the Preamble of the Rome Statute, the ICC must focus on grave crimes and must ensure punishment for ‘the most serious crimes of concern to the international community as a whole’.118 The idea that the ICC must only focus on the most serious crimes was already included in the draft articles and proved to be
uncontested.119 Although ‘gravity’ is not defined in the Rome Statute, some guidelines can be derived from other provisions in the Statute, for example that scale is an important element of gravity.120 Besides scale, there is also the need to prosecute only the high-level perpetrator and leave the low-level perpetrators to the hands of the national courts.121
The principle of complementarity is, as is apparent from this paragraph, not always easy to apply in practice. The problems that exist are caused by a lack of clarity with regard to the wording and interpretation of article 17 of the Rome Statute. These problems are of particular importance to the subject of truth commissions. It remains unclear whether the work of a truth commission can render a case inadmissible at the ICC. The upcoming paragraph will address this issue and will determine how the principles of complementarity and ne bis in
idem relate to truth commissions.
3.2 Complementarity and truth commissions
The first two grounds of inadmissibility of a case, set forth in article 17 (1) (a) and (b) of the Rome Statute, require that the case is being or has been investigated or prosecuted by a state.122 Therefore, the first question that must be answered when discussing the principle of complementary in relation to truth commissions is whether truth commissions and their work can be considered as an investigation.123 James Crawford addressed this issue and stated the following:
I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily
117 Art. 17 (1) (d) Rome Statute.
118 Paragraphs 3 and 4 Preamble Rome Statute. 119 M El Zeidy (n 106) 904.
120 ibid 905. 121 ibid 905.
122 A Seibert-Fohr ‘The Relevance of the Rome Statute of the International Criminal Court for Amnesties and
Truth Commissions’(2003) 7 Max Planck UNYB 553, 567.
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involve prosecutions of individuals, so there’s no reason why the principle of
complementarity ought not to cover an appropriately constituted truth commission.124
This means that truth commissions fall under the scope of article 17 (1) (a) and (b) and they could, in theory, lead to the inadmissibility of a case before the ICC, unless the state was unwilling to prosecute. As discussed in the previous paragraph, the following factors are important to determine unwillingness to prosecute: shielding persons from criminal
responsibility, unjustified delays in the proceedings and the lack of independence/impartiality in the proceedings.125 The question whether a state is shielding a person from criminal
responsibility is probably the hardest to answer. For example in the situation where a truth commission has granted amnesty to a certain perpetrator. Does this necessarily mean that a state is unwilling to prosecute? In those situations unwillingness depends on an assessment whether the amnesty was granted to shield the perpetrator or to achieve a higher goal, for example reconciliation or peace.126 Furthermore, one must keep in mind that prosecution is not always the best option. In some situations it is necessary not to prosecute in order to achieve security and peace, two very important aims of the Rome Statute.127 It is therefore important that truth commissions are established with an aim to achieve peace and security.128
In order to determine whether there is prosecution or an investigation at the national level, the Court uses the same person/same conduct test as a threshold.129 The Appeals Chamber of the ICC stated that for a case to be rendered inadmissible under article 17 (1) (a) of the Rome Statute ‘the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court’.130 This means that a perpetrator, who has been subjected to the investigations of a truth commission, can still be prosecuted by the ICC if the Prosecutor tries him on the basis of another crime.
124 J Yav ‘The relationship between the International Criminal Court and Truth Commissions: Some thoughts on
how to build a bridge across retributive and restorative justices’ (2005) Centre for Human Rights and Democracy Studies <http://www.iccnow.org/documents/InterestofJustice_JosephYav_May05.pdf > (14 July 2016) 16.
125 Art. 17 (2) Rome Statute. 126 A Seibert-Fohr (n 122) 570.
127 Ibid 571. See Also paragraph 3 Preamble Rome Statute. 128 A Seibert-Fohr (n 122) 571.
129 TO Hansen (n 97) 225.
130 Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May
2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011) 39.
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Although it is clear that the work of truth commissions falls within the scope of the principle of complementarity, this does not mean that the application of article 17 of the Rome Statute to situations where a truth commission is established is easy. The ne bis in idem rule,
contained in articles 17 (1) (c) and 20 (3) of the Rome Statute, raises some questions. First of all, the use of the wording ‘tried by another court’.131 Does this mean that there has to be a criminal trial? Article 20 (1) and (2) of the Rome Statute speak of crimes for which the person has been acquitted or convicted. Besides, article 20 (3) (b) of the Rome Statute uses the wording ‘with the intent to bring the person concerned to justice’.132 This seems to imply that there must be a criminal case before the principle of ne bis in idem is applicable. If this is the case, it would imply that the work of truth commissions can under no circumstances trigger the principle of ne bis in idem, since truth commissions are not criminal courts, nor capable of convicting/acquitting people. This would also mean that the provision is not applicable in cases where an amnesty has been granted before a trial was held.133 Whether the same applies to amnesties granted after a trial is more debatable. However it has been argued that an amnesty nullifies a trial and that therefore the ne bis in idem rule should not be triggered.134
The last ground that can render a case inadmissible before the ICC is article 17 (1) (d); cases not of sufficient gravity. This is where truth commissions and the ICC can complement each other and work together. As explained earlier, the ICC should punish those who are
responsible for the most serious crimes to the international community as a whole.135 This means that they should focus on high-level perpetrators. Truth commissions can, on their part, handle the low-level perpetrators. In an ideal situation, the ICC would render cases, which are focused on low-level perpetrators and are investigated by truth commissions, inadmissible. However, this has not happened yet. In the Pre-Trial Chamber decision on the situation in Kenya, the ICC still declared the case admissible, even though Kenya tried to establish a special tribunal in order to prosecute those responsible for low-level violations.136 Moreover, the operational Kenyan truth commission was not even taken into consideration
131 Art. 20 (3) Rome Statute. 132 Art. 20 (3) (b) Rome Statute. 133 A Seibert-Fohr (n 122) 565. 134 ibid 565.
135 Paragraph 4 Preamble Rome Statute.
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when making the decision.137 This seems to indicate that the establishment of a truth commission does not have any effect on the exercise of jurisdiction by the ICC.138 The Pre-Trial Chamber hereby disregards the value of truth commissions and the role they can play in for example fact-finding and the process of peace within a society.
3.3 Prosecution in the interests of justice
In order for the Prosecutor to start an investigation or to prosecute a perpetrator, the Rome Statute states that the requirements of jurisdiction and admissibility must be fulfilled.139 However, even when these requirements are met, the Prosecutor can still decide not to continue with the proceedings. The interests of justice-test can provide a valid reason not to proceed even when jurisdiction is established and a case is admissible. This can occur whenever the Prosecutor finds that prosecution would not serve the ‘interests of justice’.140 But what exactly are the criteria that determine when proceedings are in the interests of justice?
The following criteria are taken into account when assessing the interest of justice: the gravity of the crime, interests of the victims and the particular circumstances of the accused (age and alleged role in the committed crime).141 In addition to these factors, the OTP has mentioned other potential considerations in a Policy Paper published in 2007. Of particular importance is the elaboration on ‘other justice mechanisms’. The OTP ‘fully endorses the complementary role that can be played by domestic prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in the pursuit of a broader justice’.142 Furthermore, the OTP recognizes that in some situations criminal prosecution is not sufficient and emphasizes that other justice mechanisms can play a valuable role in dealing with large numbers of offenders.143 In practice, however, it is only in exceptional circumstances that the Prosecutor decides certain proceedings do not serve the interests of justice.144 Moreover, the OTP did not anticipate situations in which the existence of truth
137 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the
Situation in the Republic of Kenya (ICC, Pre-Trial Chamber II, Case No ICC-01/09-19, 31 March 2010) 181-187. See further: A Bisset (n 136) 66.
138 ibid 66.
139 Art. 53 Rome Statute. 140 Art. 53 (1) (c) Rome Statute.
141 Art. 53 (1) (c) and (2) (c) Rome Statute.
142 ‘Policy Paper on the Interests of Justice’ September (2007) ICC-OTP-2007 8. 143 ibid 8.
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commissions would make prosecution by the ICC unnecessary or would negate from the need of prosecution.145 On the basis of these statements by the OTP, it has been argued that
criminal prosecution is prioritized over truth commissions and that these commissions thus play a complementary, but first and foremost, secondary role to prosecution by the ICC.146
Consequently, the practice of article 53 of the Rome Statute demonstrates that it is unlikely that the mere existence of a truth commission would be a crucial reason for the Prosecutor not to proceed with the investigation/prosecution on the grounds of the interests of justice. The OTP sees truth commissions as complementary to international criminal prosecution, but not as an alternative for it. Furthermore, if the Prosecutor decides there is no reasonable basis to proceed, he or she has to inform the Pre-Trial Chamber.147 After this, the Pre-Trial Chamber can choose to review the decision of the Prosecutor, in which case the Prosecutor needs the approval of the Chamber. 148 In this situation both the Prosecutor and the Pre-Trial Chamber have to be of the opinion that prosecution does not serve the interests of justice. It can be hard to convince both these bodies and therefore the declination of prosecution on the grounds of interests of justice only happens in exceptional circumstances. Nevertheless, it remains to be seen how the Prosecutor will deal with the interests of justice-test and the existence of truth commissions. Situations could arise where the Prosecutor decides not to proceed with the investigation because of the work of a truth commission. It is most certainly interesting to see whether the interest of justice-test might be interpreted in a way that would give primacy to the work of truth commissions. However, the current practice does not point in that direction.
Chapter 4 – Case study: Colombia
Since the year 1948, Colombia has suffered from the consequences of a -half a century- during civil war, demanding the lives and displacement of hundreds of thousands of
citizens.149 Most of the victims were citizens caught in the crossfire between rival parties to the conflict, consisting of armed groups (left-wing guerillas and right-wing paramilitaries),
145 A Bisset ‘Rethinking the Powers of Truth Commissions in Light of the ICC Statute’ (2009) 7 JICJ 963, 964. 146 ibid 964.
147 Art. 53 (1) (c) and 2 (1) (c) Rome Statute.
148 ‘Policy Paper on the Interests of Justice’ September (2007) ICC-OTP-2007 1.
149 P Paterson ‘Transitional Justice in Colombia: Amnesty, Accountability, and the Truth Commission’ (2016)
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drug traffickers and criminal gangs.150 On the 4th of June 2015 the national government of Colombia and the FARC guerilla fighters agreed to form a truth commission in order to clarify and investigate the most serious cases of war crimes and crimes against humanity and now, for the first time in years, there is a real chance of peace. 151
The Colombian truth commission or Commission for the Clarification of Truth, Coexistence, and Non-Repetition will be established six months after the final peace agreement has been signed and will be an ‘independent and impartial mechanism of an extrajudicial nature’.152 This means that other judicial bodies, in place to hold perpetrators accountable for committed crimes, will not be replaced. The Commission will consist of 11 commissioners, who are chosen by representatives of the national government and the FARC.153 Three fundamental purposes shall be fulfilled by the truth commission. First, the Commission will promote a shared understanding of the conflict among the society by offering a broad explanation of the events that occurred during the conflict.154 Second, the Commission will pay attention to the victims by promoting and contributing to the recognition of citizens whose rights have been violated.155 Lastly, the Commission will try to establish peace and shall promote coexistence on the territory of Colombia.156 Within three years after the establishment of the Commission the work of the body needs to be completed and a final report needs to be published.157
After 2002, mass atrocities still occurred on the territory of Colombia, which means that there could be an overlap between the work of the truth commission and the jurisdiction of the ICC, since the Court has jurisdiction with respect to crimes committed after the entry into
150 P Paterson (n 149) 4.
151 — ‘Colombia and FARC rebels agree to form truth commission: Negotiators from both sides meeting in
Cuban capital reach agreement despite recent escalation of violence’
<http://www.aljazeera.com/news/2015/06/colombia-farc-rebels-agree-form-truth-commission-150604235948145.html> (14 July 2016). See further: Ed Vulliamy ‘Colombia: is the end in sight to the world’s longest war?’ (2015) <http://www.theguardian.com/world/2015/mar/15/colombia-end-in-sight-longest-running-conflict> (14 July 2016).
152 See the joint report of the dialogue table between the national government and the Revolutionary Armed
Forces of Colombia People’s Army (public release about the truth commission) <
https://www.mesadeconversaciones.com.co/comunicados/informe-conjunto-de-la-mesa-de-conversaciones-entre-el-gobierno-nacional-y-las-fuerzas?ver=in> (14 July 2016).
153 P Paterson (n 149) 26.
154 Public release about the truth commission (n 152). 155 ibid.
156 ibid. 157 ibid.
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force of the Statute (1 July 2002).158 In fact, the situation in Colombia has been under preliminary examination by the Prosecutor of the ICC since 2004 and is currently in phase 3; admissibility.159 However, when acceding to the Rome Statute in November 2002, Colombia excluded war crimes, for a period of seven years, from the jurisdiction of the ICC and
therefore the ICC can only exercise jurisdiction over war crimes committed by nationals of Colombia or on the territory of Colombia since 1 November 2009. For all the other crimes, mentioned in article 5 of the Rome Statute, the ICC has jurisdiction from 1 November 2002.160
During the preliminary examination, the Prosecutor is focused on: ‘alleged crimes against humanity and war crimes committed in the context of the armed conflict between and among government forces, paramilitary armed groups and rebel armed groups’.161 What is striking about this is that it overlaps with the mandate of the Colombian truth commission, namely to investigate serious human rights violations and violations of international humanitarian law.162 This means that the Prosecutor of the ICC will face the difficult task of determining whether prosecution by the ICC is necessary and whether an investigation into Colombia must be admissible before the ICC. In order to reach a decision, the Prosecutor is
investigating the existence of national proceedings in Colombia and is trying to figure out whether these proceedings are genuine.163 During this process, the Prosecutor has addressed the developments between the government of Colombia and the FARC and their agreement to create a ‘Special Jurisdiction for Peace’, which includes the creation of a judicial body to put an end to the conflict in Colombia.164 With regard to the ‘Special Jurisdiction for Peace’, the Prosecutor stated:
Any genuine and practical initiative that achieves this laudable goal, while paying homage to justice as a critical pillar of sustainable peace, is of course welcomed by my Office. Our hope is that the agreement reached by the parties on the creation of a Special Jurisdiction for Peace in Colombia does just that. I note with optimism that the agreement excludes the granting of any amnesty for war crimes and crimes against
158 Art. 11 (1) Rome Statute. See also: JS Easterday ‘Deciding the Fate of Complementarity: A Colombian Case
Study’ (2009) 26 Ariz. J. Int'l & Comp. L. 49, 69.
159 — ‘Preliminary Examination: Colombia’ <https://www.icc-cpi.int/colombia> (14 July 2016). 160 ibid.
161 ibid.
162 See for the entire mandate Public release about the truth commission (n 152). 163 Preliminary Examination: Colombia (n 159).
164 Nicolás Carrillo-Santarelli ‘An Assessment of the Colombian-FARC ‘Peace Jurisdiction’ Agreement’ (2015)
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humanity, and is designed, amongst others, to end impunity for the most serious crimes.165
Thus, the Prosecutor was optimistic about the agreement on the creation of a ‘Special
Jurisdiction for Peace’ and welcomed the initiative. However, has the agreement truly turned out to be a positive development with regard to the prosecution of individuals responsible for serious human rights violations? Human Rights Watch investigated the ‘Special Jurisdiction for Peace’ and came to a different conclusion. It discovered that certain guidelines, which were announced by the government and applicable to state agents, could be used to shield those agents from prosecution and ensure immunity with regard to ‘false-positive’ cases.166 In all probability, all the ‘false positive’ cases that are being investigated and prosecuted by Colombian Courts will be transferred to the ‘Special Jurisdiction for Peace’.167 However, it is unlikely that the ‘Special Jurisdiction for Peace’ will prosecute all these ‘false positive’ cases. The guidelines, which were issued by the Colombian government, state that the Special Jurisdiction can suspend sentences or waive criminal prosecution in cases where state agents did not have ‘major responsibility’ in the ‘worst and representative crimes’.168 This means that state agents who contributed to the executions, but did not have a ‘major responsibility’ could escape prosecution and punishment. Although focusing on the high-level perpetrators is exactly what the ICC does as a prosecutorial strategy, this does not mean that national
authorities should only concentrate on the persons most responsible. The Deputy Prosecutor of the ICC said that: ‘the differences between the ICC’s mandate and that of national judicial systems means, however, that ICC prosecutorial strategy cannot be taken as authority for how national jurisdictions should determine who to investigate or prosecute.’169 Furthermore, Human Rights Watch argues that from all the members of the armed forces who participated in the executions, only a limited amount will be effectively sanctioned.170 Consequently, the ‘Special Jurisdiction for Peace’ is flawed in many ways.
165 ‘Statement of the Prosecutor on the Agreement on the Creation of a Special Jurisdiction for Peace in
Colombia’ 24 September 2015 <https://www.icc-cpi.int//Pages/item.aspx?name=otp_stat_24-09-2015> (14 July 2016).
166 — ‘Colombia: Prosecution of False Positive Cases under the Special Jurisdiction for Peace’ (28 March 2016)
<https://www.hrw.org/news/2016/03/28/colombia-prosecution-false-positive-cases-under-special-jurisdiction-peace> (14 July 2016). The Colombian army systematically executed large groups of civilians and pretended they were guerillas. The killings therefore counted as ‘positive’ results and that is why the executions are referred to as ‘false positive’.
167 ibid. 168 ibid.
169 Office of the Prosecutor of the International Criminal Court ‘Transitional Justice in Colombia and the role of
the International Criminal Court’ (13 May 2015) <https://www.icc-cpi.int/iccdocs/otp/otp-stat-13-05-2015-ENG.pdf> (14 July 2016) 15.
