The art of softly killing the ICC in Africa

Hailemariam’s provocative and inflammatory accusations suggest that he wants to vanquish the ICC in Africa and cast himself as Africa’s “Jack the Giant Slayer.” (His predecessor, dubbed one of the “new breed of African leaders,” also suffered from an incurable case of delusions of grandeur.) Hailemariam and his comrades, including Thabo Mbeki of South Africa, Jakaya Kikwete of Tanzania, Youweri Museveni of Uganda and others are trying hard to resurrect and parade in the African and international media colonial and imperialist boogeymen robed in ICC regalia. The Rwandan dictator Paul Kagame contemptuously characterized the ICC as a form of “imperialism” that “seeks to undermine African countries.” These African “leaders” have mounted a slick propaganda campaign to depict the ICC as a racist institution that has “contempt” for Africans. They seek to portray themselves as innocent lambs relentlessly hounded by the vicious ICC wolf.

The fact of the matter is that Hailemariam and the other anti-ICC crusaders are threatening mass withdrawal from the Rome Statute in a desperate last-ditch effort to rescue their brethren Kenyatta and Ruto from the ICC hook and simultaneously immunize themselves against any future legal accountability for crimes against international humanitarian law. They aim to perpetuate and preserve their culture of impunity and criminality by demonizing, scandalizing, discrediting and threatening the ICC. They seek to cloak and disseminate their self-serving propaganda in a race-tinged narrative of a righteous moral struggle of an ascendant Africa (an Africa in Renaissance) against the wicked witch hunting West which stealthily and nefariously uses the ICC to keep Africa in its place.

Preview of the ICC funeral orations to be given at the AU on October 13, 2013

We have a very good idea of the game plan African “leaders” will use when they gather for their anti-ICC orgy at the AU on October 13, 2013. Their talking points and strategies to emasculate and incapacitate the ICC have already been laid out by Ambassador/ Permanent Representative Macharia Kamau of the Permanent Mission of Kenya in a 13-page CONFIDENTIAL (secret) letter to Menan Kodjo, President of the Security Council for the Month of May 2013.

Kamau’s secret letter—poorly crafted and edited, incoherently argued, logically disjointed, and embarrassingly convoluted—is nothing less than a counter-indictment of the ICC and the Office of the Prosecutor (OTP) (a branch of the ICC that investigates and prosecutes genocide, crimes against humanity, war crimes and genocide currently headed by Gambian Fatou Bensouda). Kamau’s essential message to the U.N. Security Council (UNSC) in his secret letter is straightforward: The ICC and OTP have become a double-headed Frankenstein poised to devour Kenyatta and Ruto. The U.N. Security Council must urgently intervene and get Kenyatta and Ruto off the ICC hook by “immediately terminat[ing] [their] cases at the Hague without much further ado.” Kamau desperately pleads with the UNSC to create a situation where bygones will be bygones and the alleged crimes committed by Kenyatta and Ruto will be quietly consigned to the dustbin of history. In making such bizarre and ludicrously outlandish plea and demands, Kamau presents at least nine separate arguments.

1. Kenyatta and Ruto should be let off the ICC hook because prosecuting them violates Kenyan sovereignty.

Kamau claims the prosecution of Kenyatta and Ruto is “an affront to the domestic policy and internal affairs of our sovereign Republic of Kenya.” He argues Kenya’s sovereignty is “being undermined and manipulated using different actors from within and without the territory of Kenya. As in the past, civil society bodies are currently being used by dark forces to espouse their own policies using the Rome Statute as a conduit and the ICC as the manifestation of this interference.”

Sovereignty is the first refuge of scoundrel African dictators. The African “leaders” who are now swaggering to defend the sovereignty of Kenya were silent as a church mouse when France directly intervened in the fighting in the Ivory Coast following that country’s November 2010 election and reasserted full control over its former colony. The AU sat on its duff twiddling its thumbs and watching from the sidelines. When France intervened to “liberate” northern Mali from terrorist insurgents in January 2013, African leaders did not invoke the principle of sovereignty to keep French troops out. Once again the AU sat on its duff twiddling its thumbs and watching from the sidelines.

Sovereignty is neither a legal defense nor a political argument against accusations of crimes against humanity, war crimes and genocide. The sovereignty argument made by African leaders today to invalidate ICC jurisdiction is indistinguishable from the sovereign immunity assertions made long ago by monarchs and kings who believed that they were subject to no earthly authority, deriving the right to rule directly from the will of God. Only God can judge an unjust king. Only an African dictator can judge an unjust African dictator!

African “leaders” want to use the shield of sovereignty to avoid accountability and perpetuate their culture of impunity and human rights abuses. St. Augustine said, “In the absence of justice, what is sovereignty but organized robbery?” Or organized extortion by threat of mass withdrawal from the Rome Statute? The bogus sovereignty argument must be rejected.

2. Kenyatta and Ruto are entitled to immunity from prosecution because they were found “innocent” in the March 2013 election.

Kamau argues the election of Kenyatta and Ruto “sends a clear and unequivocal message that the two persons are not only innocent but deserving of responsibilities in the highest office of the land.” Their ICC prosecution should be “terminated” because the “very humanity” against whom Kenyatta and Ruto allegedly “committed crimes against humanity stood firm behind [them] and proclaimed them innocent” when Kenyans “spoke with a loud, clear, concise voice [and] overwhelmingly elected [them] as President and Deputy President.” Given the “86% voter turnout and looking at the votes garnered by Mr. Uhuru Kenyatta and Mr. William Ruto [it is obvious] that the Kenyan populace is ready for them to be their political masters.” Beyond their electoral popularity, Kenyatta and Ruto “have not only been the greatest agents of cohesion but have been at the forefront and are the glue that binds the country… [and] their absence from the country may undermine the prevailing peace and any resultant insecurity my (sic) spill over the neighboring countries.” Kamau further suggests that the Rome Statute should not apply to Kenyatta and Ruto because they currently occupy the offices of “head [and deputy] of state and Commander-in-Chief of the defense forces of the Republic of Kenya.”

It seems Kamau confuses the voting booth with the court dock. Kenyatta and Ruto do not need an election to prove their innocence. They are presumed innocent until proven guilty. They have to prove nothing. What is at issue is whether the OTP can prove they are guilty of crimes against humanity beyond a reasonable doubt. That issue can be determined only in a pitted adversarial contest of facts in a court of law and not in an election campaign or the voting booth.

Kamau’s innocence-by-election argument is a classic red herring which aims to deliberately divert attention from the crimes against humanity the defendants allegedly committed to their recent electoral success and political ascendancy. The fact that Kenyatta and Ruto were recently elected by a “landslide” has nothing to do with the allegation that they committed crimes against humanity when they served as government ministers in 2007-08. The real issue is not whether Kenyatta and Ruto are innocent by electoral popularity but whether they committed crimes against innocent Kenyans in the aftermath of the 2007 election.

The fact that Kenyatta and Ruto are heads of state is of no legal consequence. Article 27 of the Rome Statute provides for a single standard of justice to all suspects appearing before the ICC: “The Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute…”

3. The evidence against Kenyatta and Ruto is “false and manufactured.”

Kamau claims the OTP brought trumped up charges against Kenyata and Ruto on its own (without referral by the Security Council or the Government of Kenya) and without sufficient cause or proper investigation. The ICC charges are groundless and based on “testimonies made by coached witnesses. The original claims [by victims] might have been false and manufactured.” The evidence relied upon by the OTP against Kenyatta and Ruto are “irreparably weak and flawed” and likely “tainted and procured through inducement and or corrupt measures.”

Whether evidence has been tainted, manufactured or obtained through corrupt measures is a question of evidence law and procedure to be determined by the ICC judges upon a proper showing. Kamau’s outrageous claim is manifestly intended to undermine confidence in the professionalism and ethical integrity of the OTP. But if there is a scintilla of evidence that the OTP is fabricating and presenting false evidence to the Court, Kamau’s government should promptly file a motion under Rule 103(1) of the ICC Rules of Procedure and Evidence and demand the severest sanctions against the OTP. Such cheap shots and smear tactics against the OTP should be condemned and rejected.

4. The OTP is unfair and has engaged in a pattern and practice of abuse of prosecutorial powers resulting in a denial of due process to Kenyatta and Ruto.

Kamau charges that the OTP “is neither impartial nor independent. There is no demonstrable intent from the [OTP’s] conduct to show that the main purpose of the proceedings [prosecution of Kenyatta and Ruto] is to bring justice.” Kamau claims the OTP is so arbitrary and capricious that its investigative and prosecutorial conduct “is not consistent with the old and established tenets of legal adage, practice, use, customs (sic) ethics professional courtesy and decency.” Kamau points out that the OTP’s “prosecutorial methods and tactics” have been “castigated and deplored by ICC judges who have found them wanting, violating of the rights of the accused, unprofessional and at times verging on incompetence. Despite these turn of events the OTP has continued to doggedly insist that there is a case where there is none.” Moreover, the OTP has sought to deny a fair trial to Kenyatta and Ruto by “repeatedly and constantly” making “unfortunate and misguided extrajudicial statements” in “blatant disregard of the provisions of the Statute” and in “a manner aimed at seeking and winning sympathy from known and unknown quarters at the expense of due process.” The OTP has recklessly besmirched the reputations of Kenyatta and Ruto and kept the “people of Kenya on a leash and in a distracting sense of alertness.”

Allegations of prosecutorial misconduct are commonly made by criminal defendants, their legal counsels and supporters. Defense lawyers not infrequently raise prosecutorial misconduct as a procedural defense to argue that the defendant should not be held criminally liable for his actions because the prosecution acted in an egregiously inappropriate or unfair manner. Often allegations of prosecutorial misconduct involve withholding or fabrication of evidence, selective prosecution by race, knowingly allowing the presentation of false testimony and other flagrant abuses of prosecutorial methods, tactics and discretion.

If Kamau’s government has credible evidence of prosecutorial misconduct which has in the past or is currently likely to deprive Kenyatta and Ruto a fair trial, it should present it to the Court forthwith and also make it public. Neither the interests of justice nor the lofty purposes of the Rome Statue can be advanced by a wayward and abusive prosecutor who rides roughshod over the rights of defendants facing trial before the ICC. The fact of the matter is that Kamau and other African “leaders” hope to convince the world of egregious misconduct by the OTP by repeating over and over unfounded allegations and falsehoods. Kamau should put to judicial and public scrutiny his evidence of prosecutorial misconduct by the OTP.

5. The ICC and the OTP have unchecked power and are accountable to no one.

Kamau complains the “ICC lacks robust checks on its authority; and the judges themselves settle any dispute over the court’s ‘judicial functions’… The ICC’s ability both to interpret the law and effectively to force member states to adopt its view gives the ICC unprecedented power… For the first time, a permanent international institution is entitled to determine the legal obligations of states and their individual citizens and to criminally punish those individual citizens. When the ICC determines what international law requires in any of its areas of competence, this is arguably the final word… ICC judges are not otherwise subject to the supervision or control of the state parties…”

Kamau disapproves “the [power of the ICC] prosecutor [to] initiate an investigation on his own authority, and the [fact that the] ICC judges determine whether the investigation may proceed.” Kamau claims “the prosecutor has cherry picked individuals to prosecute, arbitrarily and most invidiously, from a long list whose veracity was never independently checked or verified…” Kamau questions why an “individual” (the ICC Prosecutor) should be able to bring a case without Kenyatta and Ruto having “recourse to a higher authority” to challenge their indictment.

Listening to African dictators and their minions talking about “unchecked powers” is like watching the tear drops of a crocodile. It is only in the 2010 Kenya Constitution that modest restraints were set to counter the unchecked powers of top Kenyan government officials. A bill of rights was included in the new Constitution along with minimal checks and balances on presidential power including impeachment for malfeasance in office. It should be underscored that the new Kenya Constitution was the direct result of the negotiated political settlement following the 2007 election which gave rise to the criminal allegations for which Kenyatta and Ruto are facing trial before the ICC.

In claiming the ICC and OTP have “unchecked power,” Kamau cleverly seeks to portray the two institutions as some trigger-happy lawmen gunslingers who “cherry pick” (“race hunt”) their African targets, shoot first and ask questions later. The fact of the matter is that the ICC and OTP can only investigate, prosecute and adjudicate crimes committed after the Rome Treaty went into force in 2002. It is a fact that over the past decade many of the gross abuses of human rights and bloodiest conflicts resulting in crimes against humanity, war crimes and genocide occurred in Africa. It is also a fact that the OTP is mandated to pursue only the most egregious crimes against civilians. Article 1 of the Rome Statute provides, “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” It cannot be denied that the vast majority of such crimes were committed in African countries since 2002.

6. By prosecuting Kenyatta and Ruto, the ICC has usurped the powers of the U.N. Security Council.

Kamau declares the “Rome Treaty removes the existing system of checks and balances [created under] the U.N. charter and [performed] by the Security Council” and “places enormous unchecked power in the hands of the ICC prosecutor and judges. ” He argues, “the UNSC needs to take bold and decisive steps to ensure that justice is done within the confines of the Rome Statute and the spirit of openness, fairness and with respect the (sic) sovereign will of an independent Nation.”

Kamau urges the U.N. Security Council to terminate Kenyatta’s and Ruto’s prosecution because the ICC “proceedings as relates to Kenya are not in the interests of peace and security in Kenya and/or the region and it is high time that the UNSC take cognizance of this matter afresh in light of the fundamental changes and present circumstances prevailing in Kenya.” He reminds the “U.N. Security Council not see themselves as disinterested observers of the ICC legal process, but rather recognize the potential and dire folly of the OTP as regards Kenya and the danger that it poses to international peace and security in Eastern Africa… It is time for the UNSC to pronounce itself in light of the interests of peace and security in Kenya, the region and recognize the sovereign inalienable right of the Kenyan people and exercise of the democratic space of the people.” At the end of his secret letter, Kamau in boldfaced text boldly demands, “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case the Hague without much further ado.”

Demanding the intervention of the UNSC to stop Kenyatta’s and Ruto’s prosecution before the ICC is either willful ignorance or sheer lunacy. It is certainly laughable. The ICC is not some kangaroo court whose judges can be politically manipulated, threatened or bought to deliver a particular outcome. The ICC is an independent judicial body. The UNSC has no legal authority to intervene in a case before the ICC except as provided under Article 16 of the Rome Statute which provides for “deferral of investigation or prosecution for a period of 12 months” subject to renewal. Ironically, it is the very lack of an independent judiciary that has given African leaders total immunity and impunity from accountability for their gross violations of the human rights of their people.

7. The Rome Statute violates the U.N. Charter and its prosecution of Kenyatta and Ruto is illegal (ultra vires).

Kamau challenges the essential legality of the Rome Statute. He suggest that the ICC by wrongfully arrogating to itself so much power “directly challenges the authority and prerogative of the U.N. Security Council, which the U.N. charter gives primary responsibility for the maintenance of international peace and security.” The fact that the “Rome Statute empowers of the ICC to investigate, prosecute, and punish individuals for the crime of ‘aggression’” is a manifest usurpation of the U.N Charter and the U.N.S.C’s role in maintaining international peace.

The fact of the matter is that the Rome Statute has been ratified by 122 countries to date. Among these States, 34 are African, 18 Asia-Pacific, 18 Eastern European, 27 Latin American and Caribbean and 25 Western European and other States. It is absurd to claim that a treaty signed by 122 countries is in flagrant violation of the U.N Charter. The UNSC has never doubted the legality of the Rome Statute and would never tolerate a presumptuous encroachment on its powers or breach of the supremacy of the U.N. Charter.

8. Kenya is ready, willing and able to prosecute violators of crimes under the Rome Statute in its own courts.

Kamau argues “a lot has changed in [Kenya in] the last two 2.5 years” and “Kenya has the capacity to offer a homegrown solution.” The “drafting and adoption of a progressive constitution, and implementation of a wide range of institutions commissions and legislation to domesticate the constitution safe guard (sic) human rights… is nothing short of exceptional.”

The Rome Statute operates on the principle of complementarity (national authorities have the first opportunity to prosecute suspects under the Statute) and respect for national sovereignty. Articles 1 and 17 of the Statute expressly give preference to national criminal jurisdictions over the ICC. The ICC is allowed to investigate and prosecute suspects only if national criminal jurisdictions have failed or are unable to prosecute them. The Kenyan government took no action to conduct a criminal investigation of the identified alleged perpetrators of crimes against humanity in Kenya following the 2007 election. In 2010, the OTP announced that six individuals including Kenyatta and Ruto would be summoned to appear before the ICC for their alleged role in the post-election violence. Kenyatta and Ruto cooperated with the proceedings and attended preliminary hearings in The Hague. In April 2011 and Pre-Trial Chamber confirmed the charges for which they are now standing trial.

There is no question that Kenya or any other signatory African country can exercise its right to prosecute suspects accused of crimes under the Rome Statute. However, it is absurd to demand the UNSC to change horses midstream and remand the case to Kenyan authorities for re-investigation and re-prosecution. The effort to pervert the course of justice in the ICC should be rejected.

9. The ICC prosecution of Kenyatta and Ruto is pointless.

Kamau claims it is pointless to prosecute a “supreme head of state and his deputy by a prosecutor of the very institution to which the state is a party” in “an off shore trail (sic) that has no popular resonance and that serves no national or international purpose.” If it is pointless to prosecute heads of state for gross abuses of human rights, it becomes equally pointless to prosecute rebel and militia leaders who commit similar abuses. The pursuit of justice is never pointless, particularly to the powerless, helpless, defenseless and voiceless innocent victims of injustice. It was H.I.M. Haile Selassie, the first chairman of the organization of African Unity (AU’s predecessor) who made that point crystal clear over one-half century ago: “Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.” To silence justice in the International Criminal Court because the defendants are heads of state is to make “possible for evil to triumph.”

African dictators’ quest for a double standard of justice

On October 13, African “leaders” will meet to deliver an ultimatum to the ICC: Let Kenyatta and Ruto go or we will go! They will beat their drums and circle the wagons and shriek the African sky will fall unless the ICC immediately terminates Kenyatta’s and Ruto’s prosecution. They will huff and puff and threaten to blow the International Criminal Court house down by mass exodus from the Rome Treaty.

After the dust settles, what African dictators really want is a double standard of justice. They want the ICC to allow them to be prosecuted and adjudicated by their own hand-picked prosecutors and judges at the time of their own choosing. In exchange, they will gladly and promptly hand over any rebels, militants or warlords in their countries who are suspected or accused of violating the crimes prohibited by the Rome Statute.

I imagine the African “leaders” will try to play “good cop, bad cop” at the AU meeting on October 13. As some damn and pillory the ICC, others will propose the ICC play less of an investigative and prosecutorial role and transform itself into some form of a truth and reconciliation commission that will bring African victims of human rights abuses with their abusers in the interest of domestic tranquility and regional stability. But if the ICC insists on aggressively pursuing its suspects in Africa, it should also be prepared to accept full responsibility for any domestic and regional instability and conflict that might result from its actions.

The ICC is by no means the perfect international judicial institution for the prosecution of egregious crimes against humanity. Over the past decade, it had its share of growing pains. The success of its investigations have often depended in large part on the goodwill and cooperation of the same political leaders who are now trying to exorcise it from Africa. Its investigative efforts are often frustrated and its inquiries officially stonewalled by those in power in many African countries.

Neither the ICC nor the OTP are beyond legitimate criticism. Out of frustration and moral indignation, I have faulted the OTP for not initiating an investigation into the massacres of hundreds of unarmed demonstrators following the 2005 election in Ethiopia or in countries of the Middle East. I understand that the OTP does not have the power to investigate crimes in non-signatory countries such as Ethiopia. I also believe the current ICC process is prohibitively expensive. Charles Taylor’s prosecution alone cost USD$250 million!

I am unconvinced by those who argue that the ICC prevents a graceful exit from power for dictators who see the ICC as an unavoidable trap. The fact of the matter is that African dictators in their relentless pursuit of power and wealth are not in the least bit concerned about a graceful exit. They will continue to unleash their military and security forces on their civilian populations and commit heinous crimes to cling to power. There must be some meaningful way of holding them accountable; and for all its imperfections, the ICC for now is the only “game in town.”

In fairness, there are African countries who have accepted the ICC and even directly solicited its assistance in bringing to justice those who have committed egregious human rights abuses in their countries. Mali recently requested the ICC to initiate an investigation of suspects in connection with crimes committed by insurgent terrorists in northern Mali. In 2011, President Alassane Ouattara of Cote d’Ivoire emphatically urged the OTP to bring the “people who bear the greatest responsibility for the most serious crimes [committed following the 2010 election] before the International Criminal Court.” When convenient, similar referrals to the OTP have been made by the powers that be in Uganda, Democratic Republic of Congo and the Central African Republic.

The death of rule of law in Africa

Articles 4(m) and 4(o) of the Constitutive Act of the African Union impose upon African countries the affirmative duty of upholding “human rights, the rule of law and good governance” and “reject[ing] impunity for crimes.” AU’s threatened mass withdrawal from the Rome Statute on October 13 is in itself a flagrant violation of this core principle of the Act. Ironically, the AU will bury the Rome Statute along with its own core principle on October 13.

There is a simple and unavoidable moral choice—rather a moral imperative to be reckoned with—to be made in the face of the threatened mass exodus of African countries from the Rome Statute: Stand up to those who sneer at the rule of law or stand with those who at least make an effort to uphold it. Standing up for the International Criminal Court is standing up against African war criminals, criminals against humanity and perpetrators of genocide!

The time to defend the ICC is NOW!

IV. Assumption of Risk

States Parties that are signatories of the Rome Treaty open themselves up to ICC investigation and attack by virtue of having signed the Treaty. In the case of Kenya, the nation had itself signed the Rome Treaty in August 1999. By making its mark in the sphere of protecting its citizens against human rights abuses, the nation and government opened itself up to investigation. It assumed the risk of its suspected citizens facing charges by the ICC. Any complaints made therefore by it and by critics against Africa focus therefore diminish in merit due to the risk the country has agreed to accept that its citizens could face charges if the government is not in an adequate position to bring the charges itself.

V. Probability of Conviction

A high rate of conviction gives the OTP credibility and thereby enhances the effectiveness and strength of the ICC as an institution. The ICC has the highest chance of success in Africa. First, the African regions tend to be closer in proximity to The Hague than other continents suffering human rights abuses. This is particularly helpful to the prosecution team in terms of saving on costs for transporting witnesses, transporting evidence, and transporting ICC staff and investigators. Witnesses may also be more willing to testify in court if travel distance and time commitments are lower. Furthermore, the number of victims affected by the crimes in Africa may be higher than in other regions (more widespread), making the job less burdensome for the OTP. Although technology in Africa is not as advanced as it may be in other regions, which makes accuracy and efficiency in evidence gathering in Africa more difficult for the OTP, the advantages brought by proximity increase the chances of the OTP sustaining convictions in African nations.

The African situations also come with serious and more visible human rights violations than in other regions. Crimes in globally problematic regions must rise to the level of war crimes, crimes against humanity, and genocide in order to come under the umbrella of ICC jurisdiction. This includes crimes such as mass rape, mass murder, and child soldier recruitment. The ICC’s Africa cases are legitimate and can all be more readily confirmed as righteous humanitarian crises. The effects of the M23’s presence in the DRC were quite visible. A ride around the city of Goma reveals the magnitude of necessary international aid in the city, present to provide relief to the suffering population. Convoys of Doctors without Borders, human aid organizations, the United Nations’ MONUSCO troops, among others, are vastly and visibility present to protect and provide relief. The most recent siege of Goma by the M23 in November 2012 brought with it horrendous consequences—rape, murder, recruitment of soldiers even from the local government police force. Almost every civilian in Goma can recount the horrific nature of crimes that have been committed by the M23. The group has been notorious and well-known internationally for its military power and savage method of attack on civilian populations. The rebel commander, Bosco Ntaganda, who now sits before the ICC, is known as “The Terminator.” He has been widely known for his reputation of extreme brutality and has currently been charged by the OTP with rape, murder, sexual slavery, and using children as soldiers.

The situation brought forth by Joseph Kony, the former leader of the guerilla group, the Lord’s Resistance Army, is similarly extreme. Scholarly articles, one after the next, have focused on the atrocities of Kony, particularly in Uganda. The ICC has held an outstanding warrant for him since 2005 for murder, sexual enslavement, rape, pillaging, and forced enlistment of children. The mere fact that even laypersons are inspired and recognize the notoriousness of the Kony campaign, which launched through social media and quickly went viral attests to the international community’s widespread awareness of his notoriety in terms of the magnitude of the crimes he has committed.

Focusing cases in nations outside of Africa may be more questionable. It may be more difficult to establish the magnitude of the crimes because the crimes in other regions may be covered up or at least not carried out so openly as they are in Africa. Furthermore, crimes in some of the South American nations for example sometimes tend to be isolated and hidden. By virtue of the atrocities in Africa being so notorious and obvious in the international community, the OTP possesses a neutral justification in focusing a majority of its cases on Africa.

Furthermore, African states have been compliant with ICC requests and have cooperated. For instance, the Kenyan defendants voluntarily appeared before the ICC on their own. Although, some African suspects, including Omar al-Bashir of Sudan, remain at large and although the ICC has been unable to execute some arrest warrants, the Kenyans as well as Bosco Ntaganda surrendering voluntarily to the American Embassy in Rwanda illustrates at least some willingness by the African suspects to be prosecuted and again, demonstrates their assumption of risk. According to current ICC Prosecutor, Fatou Bensouda, African states, including non-States Parties, receive more than 50 percent of the OTP’s requests for cooperation. Over 70 percent are met with a positive response.

VI. Media and UN Support Affect ICC Credibility

International presence is African conflict regions is quite high. International governments have focused on how areas enriched with conflict minerals and afflicted with atrocities affect their own economies and have passed laws and sanctions to protect African populations against the abuses they face by virtue of power hungry war lords seeking financial gain from exploiting natural resources. These debates have plagued news reports and media sources, as well as academic journals. Due in part to these supply chain discussions which carry over and pour into other countries to affect Western economies, there is much media support and focus in African. Human rights non-governmental organizations such as Amnesty International and Human Rights Watch, among others, have organized their efforts in an orderly fashion to arrange research teams of their employees in conflict regions to monitor and report on human abuses after every known attack. Because the crimes in Africa are so notorious, media condemnation of defendant capture is low. The wide international presence, not only from a legal focus perspective, but also from medical efforts help to hold the region accountable for its activities and permit the international community to be fully aware of the atrocities. This media support as well as the existence of UN troops, notably in the DRC, supports the OTP’s investigations and focus in Africa. Because the atrocities are more readily verifiable through these news reports, the ICC’s credibility is enriched. In other words, the ICC’s focus in Africa has been far from arbitrary.

VII. Involuntary Nature of the ICC’s Africa Focus and Lack of ICC Jurisdiction

Most of the ICC’s focus on Africa has been involuntary, or rather, not proprio motu (initiated by the OTP at its own discretion). The Prosecutor can only use his or her prioprio motu powers to open investigation in a problematic region only if the nation is a States Party, that is, a signatory to the Rome Statute. The UN Security Council was responsible for referring the Libyan and Sudanese situations to the ICC. Both nations were non-states parties. Thus, the ICC did not have original jurisdiction over these regions. Three of the seven states prosecuted in Africa (Central African Republic, DRC, and Uganda) requested that the ICC do so because they were unable to request senior figures to be prosecuted in their country. These were self-referrals. Only Kenya and Ivory Coast have been voluntary (proprio motu) cases in Africa, but both requested the ICC’s assistance.

Many other nations where war crimes have occurred are not signatories of the Rome Treaty, omitting them from the reach of the ICC. Since the ICC does not have jurisdiction over some of these key nations and/or regions (for example, Palestine, Israel, Iraq, Syria, and North Korea), Africa again seems to be the next best region on which the OTP should focus its activities. To continue improving its credibility and international support, the ICC must continue attaining convictions and focusing on regions that do not have functioning national justice systems seems to be the right answer. Some of the historically problematic nations, including the United States, Russia, and China, all have veto power over the UN Security Council vote to refer a situation to the ICC, eliminating the possibility of investigation of non-signatory nations with which the United States, China, or Russia are allies. Thus, instead of remaining powerless with respect to Syria, for instance, the ICC must push forward and the OTP must continue its investigation on those nations that are with in its reach by mandate.

VIII. Conclusion

There have been complaints of African bias and dramatic images of African warlord Thomas Lubanga sitting before three white judges of the ICC. Although various historical factors provide a higher probability that a given judge will be white, still ICC judges have been selected with diverse backgrounds. Around thirty-three percent of the ICC judges represent African nations. Investigations in nations other than in Africa are presently underway, including preliminary investigations in five non-African nations: Afghanistan, Columbia, Georgia, Honduras, and Korea. So-called white judges at the ICC are not attempting to push forward a white colonialist agenda if their main purpose is to bring justice to the abundance of black victims and families who suffered at the hands of the defendants being prosecuted. It thus does not make sense to say that the ICC as an institution and its judges are advancing their own motives and agenda. If the nation’s own government and judiciary does not act as a deterring force to war criminals, then who will? Although there are challenges and flaws with the institution and the ICC is far from perfect, it is an attempt to provide deterrence to commanding criminals whose orders and leadership result in the perpetration of mass rape and mass murder. That is what the ICC stands for. If the ICC involves itself with a situation, it is because the nation’s government refuses to do so or was unable to do so. It is a court of last resort. Thus, despite critics’ attack on the ICC’s focus on Africa, it is at least worth a moment of reflection to question why it seems as though the ICC has prosecuted mostly cases in Africa. Upon closer examination, we can at least ascertain that in actuality, the ICC has not been nearly as “biased” as it seems at first glance.

II. Background of the Situation in Colombia.

A. Factual Background of Civil War and International Crimes in Colombia.

The civil war in Colombia has been ongoing since the 1940s between the armed forces and paramilitary and guerilla groups.1 Uprisings began by peasant paramilitary and guerilla groups largely in response to poverty, especially in rural areas, and to protest government violence. Uprisings began in the 1940s and 50s and involved mass killings of civilians early on. In response, General Gustavo Rojas Pinilla launched a major military offensive during the mid-1950s.2 The government offensive against the peasant uprising became known as the War of Villarica.3 The largest guerilla faction, the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), gained more power and influence when “failed Colombian political initiatives in the 1970s led to a near doubling of the poverty level in urban areas.”4 FARC and Ejército de Liberación Nacional (“ELN”) also tried to gain political, economic, and social control over land and resource-rich areas.5 FARC and ELN were involved in narcotics production and trafficking, especially of cocaine, and gaining control of certain land regions was of strategic importance to cocaine production and trafficking.6 As a result, peasants fled the cities to the FARC-controlled rural areas to find work in growing coca.7 “This mass migration led to a large increase in FARC revenues, due to ‘war taxes’ that FARC levied on civilians living within regions under their control. Initially, the drug lords and FARC worked together; the drug lords produced and trafficked the cocaine, developed from the vast coca fields farmed by peasants, and FARC provided protection within the region for the illegal operation.”8

As the drug lords of the FARC became wealthier, they invested their money in property alongside wealthy landowners.9 This led to violence and conflict between the FARC and landowners.10 Many landowners were kidnapped and murdered, in response to which an alliance of members of the Colombian military, the police, businessmen, and ranchers formed in the 1980s, known as Muerte a Secuestradores (“MAS”).11 The MAS later became known as the Autodefensas Unidas de Colombia (“AUC”), including 15,000 members and supporters.12 The AUC also maintained itself through wealth obtained from cultivating and trafficking cocaine, like the FARC and ELN.13

This conflict led to human rights violations on a massive scale.14 One of the most known about patterns of crimes in Colombia is known as the falsos positivos (“false positives”) committed by the Colombian armed forces. False positives are killings of civilians “staged by the security forces to look like lawful killings in combat of guerillas or criminals.”15 It is estimated that the National Security Forces committed 3,345 extrajudicial executions between 1996 and 2008.16 The vast majority of these cases occurred between 2004 and 2008, but continued at least through the present day.17 As of 2010, the Human Rights Unit of the Attorney General of Colombia recognized 1,622 such cases as having been committed by state security forces.18 “Of these cases 1,509 had been committed between 2002 and 2010 (96.1 percent of the cases). These cases, which represent 2,679 victims, do not include those being processed in the sectional or local offices of the public prosecutors offices, much less those being prosecuted under the military criminal justice jurisdiction.”19

While the false positives were notoriously committed by the State security forces, there were mass killings, assassinations, torture, and kidnappings committed by all warring factions and groups, including against civilians.20 The Colombian Government has reported 3,166 civilian deaths between 2003 and 2010.21 Non-governmental sources, however, report much higher numbers—6,040 civilian deaths—between 2003 and 2009.22 According to the Ministry of National Defense between from 2002 and 2008, 12,713 people belonging to the guerrillas, and 2,602 members of paramilitary groups fell in combat. The Ministry also reported 49,523 captured, of whom 32,335 belonged to the guerrillas and 13,456 to paramilitaries.”23 The government reported that in 2002 alone there were 1,708 victims of abductions, though by 2009 this number decreased to about 160.24 As of March 2011, there had been 490 confessions of torture as part of proceedings under the Justice and Peace Law.25

There has also been extremely widespread sexual violence of various forms including rape, domestic labor, forced prostitution, forced pregnancy, forced abortions, forced domestic labor, sexual harassment, and other forms of sexual violence. According to the First Survey on the Prevalence of Sexual Violence against Women in the Context of the Colombian Armed Conflict 2001-2009, at least 33,960 women in Colombia were victims of some form of sexual violence committed by armed groups; at least 12,809 were victims of rape committed by members of armed groups; at least 1,575 women have been forced into prostitution by armed groups; at least 9,388 women were victims of domestic labor; at least 4,415 women were victims of forced pregnancy committed by paramilitary groups; at least 1,810 women were victims of forced abortions by paramilitary groups; at least 8,166 women were victims of sexual harassment by paramilitary groups. Between 2001 and 2009, 700 cases of rape and other forms of sexual violence against women had been reported to the Justice and Peace Unit.26

The guerilla and paramilitary groups have also been known to use child soldiers as informants, messengers, foot soldiers, and executioners.27 Of all the children allegedly used as child soldiers, FARC allegedly accounts for 80 percent of the use of children, and the AUC accounts for the remaining 20 percent.28

There have particularly been mass killings of trade unionists and human rights defenders. Notably, Colombia has the highest rate of murders of trade unionists every year. Thirty-two human rights defenders were reported to have been victims of murder or enforced disappearances in 2010, and 55 in 2011.29 Twenty-nine trade unionists were reported murdered in 2011.30 In 2012, at least 40 human rights defenders and 20 trade unionists were killed.31 In addition, human rights defenders and trade unionists “face violations to their right of personal integrity, threats, defamation, and judicial harassment.”32 Two hundred and thirty-nine total individual attacks on defenders were recorded in 2011, of which 59 percent were threats.33

There has also been mass displacement of over 2.5 million people throughout the civil war.34 Colombia has the second highest number of displaced persons of any country in the world.35 The United Nations High Commissioner for Refugees (“UNHCR”) reported that between 2005 and 2010, 52,521 persons belonging to indigenous communities were displaced.36

The various alleged crimes have targeted human rights defenders, public officials, trade unionists, teachers, public officials, journalists, community leaders, and members of indigenous and Afro-Colombian communities.37 These violations have not significantly decreased over time. In fact, in 2011, the International Committee of the Red Cross concluded that the number of international human rights violations committed in Colombia has increased.38 Luis Moreno-Ocampo, in his position as Prosecutor of the ICC, found that Colombia was one of the three countries where the most serious international crimes had been committed.39

B. The International Criminal Court: Jurisdiction over the Situation in Colombia and the Interim Report on Colombia.

The ICC has jurisdiction over crimes against humanity (and genocide) in Colombia since November 1, 2002, when Colombia ratified the Rome Statute.40 However, Colombia had ratified the Rome Statute with a reservation providing that the ICC would not have jurisdiction over war crimes for seven years following Colombia’s ratification of the Rome Statute. Hence, the ICC has jurisdiction over war crimes in Colombia since October 31, 2009, when the reservation expired.41

The OTP published an interim report on its preliminary investigation into the situation in Colombia in November 2012. The report concluded that the preliminary examination of the situation would continue and the OTP would continue to monitor the situation on the ground.42

III. The Legal Standard for Initiating an Investigation in the International Criminal Court.

Article 53(1) of the Rome Statute establishes the standard for initiating an investigation into a new situation in the ICC. The Prosecutor must consider three factors in evaluating whether or not to initiate an investigation: (a) whether there is a reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed; (b) whether the case would be admissible under article 17 of the Rome Statute; and (c) taking into account the gravity of the crime and the interests of the victims, whether there are substantial reasons to believe that an investigation would not serve the interests of justice.43 Article 17 clarifies the second prong of the article 53(1) inquiry and includes essentially a two part test: (1) the complementarity test in article 17(1)(a)-(c) and (2) the gravity of the crime in article 17(1)(d).44 The following section A will focus briefly on the reasonable basis standard. Section B will focus heavily on the complementarity aspect of article 17, since that is the primary issue for the OTP at this stage of the preliminary investigation. The OTP has not engaged in an analysis of the gravity of the crimes committed and consequently that will not be addressed in this paper at length.

A. Reasonable Basis.

The first part of the article 53 inquiry regarding whether the OTP could initiate an investigation into a new situation is whether there is a reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed. The Trial Chamber of the ICC articulated reasonable basis as meaning “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed.’”45 In its Interim Report on Colombia, the OTP finds that there is a “reasonable basis” to conclude that war crimes and crimes against humanity within the jurisdiction of the ICC were committed by state and non-state actors in Colombia.

The OTP concluded that from November 1, 2002 to the present date, there is a reasonable basis to believe that both State and non-State actors (namely the FARC, ELN, and other paramilitary groups) have committed crimes against humanity including: murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, and rape and other forms of sexual violence.46

The OTP also concluded that since November 1, 2009 the FARC and ELN have committed war crimes including murder; attacking civilians; torture and cruel treatment; outrages upon personal dignity; taking of hostages, rape and other forms of sexual violence; and conscripting, enlisting, and using children to participate actively in hostilities.47 The OTP also concluded that State actors have committed war crimes referred to as false positives, namely constituting crimes of murder and enforced disappearances, and that a State policy existed at least at the level of brigades within the armed forces.48 The OTP finds there is also a reasonable basis to believe that State actors committed other war crimes as well including murder, attacking civilians, torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.49

B. Admissibility.

The second stage of analysis under article 53 of the Rome Statute as to whether the OTP could initiate an investigation into a new situation is whether the situation of Colombia would be admissible under article 17 of the Rome Statute. Article 17 requires a two-part inquiry into the complementarity test and the gravity of crime(s) committed. Since the OTP has not evaluated the gravity of the crimes at this stage and has focused primarily on complementarity, this section will evaluate the meaning of complementarity at length and under what conditions a situation will be admissible to the ICC.

Article 17 states:

Article 17(1)(a)-(c) are the starting points for the inquiry. One of the Trial Chambers of the ICC interpreted this as positing two questions: “(1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned.”51 If both questions are answered in the negative, the case would be admissible to the ICC. That would be end of the inquiry regarding complementarity.

For cases to be admissible to the ICC on the basis of ongoing domestic investigations, there is also a “same person same conduct” requirement.52 In other words, the ongoing or previous investigations in the domestic justice system must cover the same person for the same crimes that would be punishable under the Rome Statute; the proceedings must cover those most responsible for the gravest war crimes, crimes against humanity, and/or genocide in that situation that would be the subject of an ICC case.53 The ICC has noted that this test “is more specific when it comes to an admissibility determination at the ‘case’ stage,” suggesting that at the stage of a preliminary examination the required adherence to this test is less stringent.54 The ICC elaborated that “[t]he Prosecutor’s selection of the incidents or groups of persons that are likely to shape his future case(s) is preliminary in nature and is not binding for future admissibility assessments. This means that the Prosecutor’s selection on the basis of these elements for the purposes of defining a potential “case” for this particular phase may change at a later stage, depending on the development of the investigation.”55 Hence, the Prosecutor does not need to identify specific individuals for a potential case or cases prior to opening a formal investigation into a particular situation.

If these two questions as articulated by the Court—as to whether there are ongoing investigations or whether there have been investigations in the past after which the State decided not to prosecute the individuals concerned—are answered in the affirmative, the situation may still be admissible. The Prosecutor and the Court must then evaluate the second half of the sub-paragraphs of article 17(1)(a) and (b).56 The Court must consider whether the domestic proceedings have been “genuinely” conducted or whether there is indication of an unwillingness and/or inability of the State to prosecute those responsible for crimes that would fall under the jurisdiction of the ICC.57 Article 17(2) and (3) provide further guidance on how to evaluate whether or not there is unwillingness or inability on the part of the State to conduct genuine prosecutions.

The relevant inquiry as to the admissibility of the situation in Colombia is whether Colombian authorities are “unwilling” to conduct genuine investigations and prosecutions. There are quite a large number of domestic proceedings ongoing in Colombia and there have been several convictions as well. Therefore, the Colombian situation would be inadmissible to the ICC unless “unless the State is unwilling or unable genuinely to carry out the investigation[s] or prosecution[s].” Furthermore, the more critical issues in Colombia will relate to whether there is unwillingness on the part of the State to genuinely conduct proceedings, as will be discussed further below, rather than on whether Colombian authorities are unable to conduct investigations and prosecutions. Since there are ongoing investigations, it is unlikely that Colombia is really unable to conduct genuine investigations and prosecutions at this time, though that is debatable. Given these considerations, the following analysis of complementarity will focus primarily on the “unwillingness” aspect of the complementarity test.

The guidance provided in the Rome Statute regarding the terms “genuinely,” “unwillingness,” and “inability,” are still rather insufficient and their interpretations are largely left to the discretion of the Court. The issue of genuineness is particularly vague. Much of the debate has focused on whether genuineness is or should be dependent on the State’s intent to conduct genuine prosecutions. However, it is sensible to argue and has been argued that the focus of the genuineness inquiry cannot be based solely on the intent of the State. The Court has rejected this interpretation, noting that it should not be the case that the Court should “be unable to exercise jurisdiction over a case as long as the State is theoretically willing and able to investigate and prosecute the case, even though that State has no intention of doing so.”58 This approach would also render cases inadmissible to the ICC where a State alleges it has genuine intent to prevent impunity, and yet impunity reigns and the Rome Statute’s goal of ending impunity for the most serious crimes is left unfulfilled.59

In addition, analyzing the subjective intent of the State alone to evaluate genuineness would be impractical. It makes more practical sense to analyze whether the way in which proceedings are conducted are “genuine,” and whether proceedings are conducted in a proper manner. “It is not the will that must be genuine, but the actual prosecutions.”60 Though it is not necessarily the Court’s role to evaluate broader human rights violations, international standards for the proper administration of justice are helpful guideposts. Whether proceedings are conducted in a “genuine” manner not “inconsistent with an intent to bring the person concerned to justice” are further guided by the three criteria identified in article 17(2)(a)-(c).61 Essentially the question is to ask whether the state is “walking the walk” and not just “talking the talk,” and whether the State’s judicial processes are consistent with its obligation under the Rome Statute to eliminate impunity for “the most serious crimes of concern to the international community” as required by the preamble of the Rome Statute.62

Several scholars, notably including a panel of experts convened by the OTP, have elaborated on more concrete factors under article 17(2) and (3) that may assist in the identification of (1) whether the State is attempting to shield persons from criminal responsibility for crimes within the jurisdiction of the Court; (2) whether there have been unjustified delays that are “inconsistent with an intent to bring the person concerned to justice;” and (3) whether proceedings lack independence and/or impartiality inconsistent with an intent to bring the person concerned to justice.

Shielding persons from criminal responsibility may be indicated by the presence of official documentation including legislation, orders, amnesty decrees, instructions, and correspondence.63 Sham proceedings in particular are red flags regarding attempts to shield persons from responsibility.64 Evidence of longstanding knowledge of crimes without action taken to discipline perpetrators of those crimes, or to prevent the continued commission of such crimes, may indicate attempts to shield perpetrators from responsibility.65 There may be evidence that investigations were only launched when the ICC took action or became involved.66 There may be a low number of investigations opened in proportion to the number of crimes that have been committed.67 The Prosecutor and the Court should also consider how high up the scale of authority investigations and prosecutions reached, as well as the adequacy of charges and modes of liability vis-à-vis the gravity and evidence of the crime(s) committed.68 Other key indicators of shielding persons from criminal responsibility may be the creation of special processes established specifically for the perpetrators, the appointment of special personnel such as judges, prosecutors, or jury members for trials, or strong deviations from normal criminal justice processes.69 Evidence of disproportionately lenient sentences, inefficient investigations, and prosecutions of ordinary rather than serious international crimes may also point to attempts to shield persons form responsibility.70 One scholar has also noted:

To establish a purpose of shielding it is not sufficient to find that a state only initiated proceedings in order to prevent the court from acting…If the state has the intent to establish the relevant facts, to evaluate these facts according to the pertinent laws and, in case of conviction, to impose an adequate sentence, this precludes an intent to shield a person, even if, at the same time, the state wishes to prevent the Court from stepping in.71

These are all factors that the Prosecutor and the Court could consider in determining whether the State is shielding persons from criminal responsibility, though this list is not exhaustive.

The issue of unjustified delays presents a more difficult issue in terms of defining the length of delay that would constitute an “unjustified delay.” Most scholars have resolved this in two ways. First, they would focus on the relative length of time of the proceedings at issue compared to the length of time of more typical and ordinary proceedings in the domestic justice system or in comparison to normal delays.72 In the alternative, some scholars have focused on whether there are reasonable justifications for any delays.73 These approaches get around the problem of having to determine a particular length of time that would constitute an unjustified delay. This would require a highly subjective inquiry by the Court and relevant parties to the case(s).

An inquiry into whether there is a lack of impartiality or independence seems to be slightly less subjective and can be more easily evaluated in the context of international standards of impartiality, independence, and international standards of due process. The Court could inquire into the degree of de jure and de facto independence and impartiality of the judiciary, prosecutors, investigating agencies, witnesses, and victims.74 There may be institutional shortcomings and a lack of procedural safeguards that inherently inhibit or do not provide for judicial independence and impartiality.75 Other considerations include the legal regime of access to evidence, the legal regime of extradition, linkages between perpetrators and judges, and corruption.76 Also relevant are the degrees of independence and fairness of procedures of appointment and dismissal of members of the judiciary, prosecutors, or investigating agencies, and whether there are awards or sanctions such as promotions or demotions in relation to such workers performing their duties.77 For instance, a case in which a prosecutor is fired for prosecuting a high-ranking official with crimes against humanity would indicate a lack of independence.78 Whether or not victims and witnesses face similar intimidation, threats, or retaliatory crimes are also a key factor pointing to a lack of independence or impartiality, as are any measures (or lack of measures) taken to protect such persons from intimidation, threats, or retaliatory crimes.79 Whether investigators, prosecutors, and witnesses have safe access to crime scenes are also relevant.80 The Court should also consider any patterns of political interference, particularly by the executive branch, in investigation and prosecution.81 Again, this is a non-exhaustive list of several concrete factors that may aid an analysis of whether the domestic proceedings lack independence or impartiality.

It is clear from these considerations that any inquiry into complementarity must take into account the realities on the ground in the situation country as well as the legal, governmental, and institutional framework that impacts the domestic judicial processes. This is necessarily a highly qualitative inquiry. Furthermore, “[t]he unwillingness test cannot be based on the outcome of proceedings…[T]he admissibility assessment should be based on procedural and institutional factors, not the substantive outcome.”82 The sheer number of investigations and prosecutions cannot demonstrate the “genuineness” of prosecutions. Even where there are a high number of investigations and prosecutions, there may still be serious defects in the “genuineness” of those cases as demonstrated above. As the OTP further considers whether to initiate an investigation into the situation of Colombia and other situations in the future, it must consider these qualitative factors.

IV. Complementarity as Applied to the Situation in Colombia.

The OTP should open a formal investigation into the situation in Colombia because domestic proceedings in Colombia demonstrate an unwillingness to conduct genuine criminal investigations or prosecutions against those most responsible for the most serious war crimes and crimes against humanity.83 As noted above, the key inquiry to determine the admissibility of the Colombian situation is whether or not the State is unwilling to conduct genuine investigations and prosecutions of those most responsible for the most serious crimes. The OTP noted in its interim report that it has focused on “whether proceedings have been prioritized against those who appear to bear the greatest responsibility for the most serious crimes within the jurisdiction of the Court and whether such proceedings are genuine.”84 However, in the interim report the OTP spent little to no time analyzing the genuineness of such proceedings and focused entirely on the number of proceedings currently ongoing or completed in Colombia. The OTP uncritically accepts that the proceedings are genuine, without engaging in any in-depth analysis of the current judicial system and legal framework in Colombia. This exclusively quantitative analysis is insufficient. The OTP should conduct a more qualitative inquiry into the willingness of the Colombian authorities to conduct genuine investigations and prosecutions and on this basis initiate an investigation into the situation of Colombia.

The OTP has not provided sufficient explanation as to why it is not opening an investigation at this stage. Regarding crimes committed by paramilitary and guerilla groups, the OTP alleges, “the national authorities have conducted relevant [and genuine] proceedings against those who appear to bear the greatest responsibility for the most serious crimes.”85 The OTP also commended Colombian authorities for investigating public officials, namely members of Congress, for criminal phenomena known as parapolitics. In other words, members of Congress have been prosecuted for “promoting illegal armed groups.”86 The OTP also found that many members of the military have been subject to disciplinary measures and/or criminal proceedings. However, the OTP acknowledges that high-ranking members of State forces have not been the subject of investigations for crimes, particularly the false positives, and that proceedings for crimes of rape and sexual violence as well as forced displacement are far and few between.87 These latter findings, that those most responsible for false positives among the state forces enjoy impunity and that nearly all crimes of sexual violence and forced displacement have gone unpunished, alone should warrant admissibility under article 17(1). For those crimes, an inquiry into the genuineness of proceedings is not even really necessary. Regardless, the OTP simply says it will continue monitoring the situation in Colombia in the preliminary examination phase rather than initiate a formal investigation. Regarding other ongoing proceedings, the OTP simply accepts these as genuine and alleges that other crimes, for instance murders and executions committed by paramilitary and guerilla groups, would be inadmissible on the basis that those most responsible have been subject to investigations and prosecutions to some degree.

The OTP fails to analyze the willingness (or lack thereof) of Colombian authorities to prevent impunity and provide accountability for these crimes. The OTP should have conducted more of a qualitative inquiry into the factors discussed in section III(B) of this paper: (1) whether the State is shielding persons from criminal responsibility, (2) whether there are unjustified delays, and (3) whether domestic proceedings lack independence and impartiality. The OTP relied merely on the quantitative nature of evidence, namely the number of ongoing or past proceedings, leaving out “qualitative aspects of a legal and judicial nature that are indispensable to adequately evaluate the results of the Colombian criminal justice system with regard to the prosecution of international crimes.”88

This section will include a more qualitative analysis of these issues to demonstrate that there is strong evidence to suggest that in fact each of these three factors are present and the Colombian authorities do exhibit unwillingness to conduct genuine investigations and proceedings. Section A will discuss the continuing level of impunity for those most responsible for the most serious crimes that would fall under the jurisdiction of the ICC and Colombia’s new Legal Framework for Peace Law as shielding those most responsible for crimes from investigation at the ICC. Section B will analyze the presence of unjustified delays in domestic proceedings, including the impact of extraditions. Section C will analyze the lack of independence and impartiality of domestic proceedings in Colombia, including the flawed reliance on military tribunals; the threats and intimidation targeted at judges, prosecutors, victims, witnesses, and human rights defenders; and de facto amnesty provided to paramilitary groups under the Justice and Peace Law. The OTP is encouraged to engage in a similar qualitative analysis and to reach the same conclusion that a formal investigation is warranted into the situation of Colombia.

A. There is Impunity for the Highest Level Perpetrators of Crimes in Colombia.

1. There is Nearly Complete Impunity for Crimes of Rape and Other Sexual Violence as well as Forced Displacement.

The OTP itself has noted widespread impunity for crimes of rape and sexual violence and forced displacement, which should be sufficient to initiate an investigation into the situation of Colombia. The OTP notes that a “a high level of impunity for the crime of forced displacement and procedural and institutional barriers continue[] to exist” and that the “State had failed to attend to the fundamental rights of the displaced population, including their right to justice.”89 Regarding cases of rape and sexual violence, by January 2012, only four of the 183 cases transmitted to the Attorney General had been brought to trial.90 If there are so few ongoing proceedings at all, it is clear that those most responsible for these crimes are going unpunished. The absence of any such proceedings meets the admissibility requirements under article 17(1) of the Rome Statute without a further necessary inquiry into the genuineness of proceedings. The OTP at least has sufficient justification to initiate an investigation for these crimes.

2. Senior Officials of the Government and State Security Forces Enjoy Impunity for Crimes, Especially False Positive Cases.

The OTP notes that senior military commanders of the State security forces have not been the subject of criminal investigations for the same crimes falling under the jurisdiction of the ICC and that investigations into false positive cases have not focused on those bearing the greatest responsibility.91 The OTP concluded that “while numerous members of the armed forces have been investigated and disciplinary measures, criminal convictions and prison sentences issued, the proceedings have not focused on the responsibility of those at senior levels for the occurrence of such crimes.”92 In several brigades, the OTP found no evidence that higher-ranking officers have been or are the subject of proceedings.93

The lack of accountability at higher levels of the State security forces in Colombia is well documented. Non-governmental organizations and United Nations agencies have maintained that the highest-level perpetrators still enjoy impunity.94 The Fédération Internationale des Droits de l’Homme (“FIDH”), for instance, maintains that only lower-level perpetrators, or in other words direct and material perpetrators of crimes are the subjects of criminal proceedings.95 Senior military commanders and intellectual military perpetrators have not answered for crimes committed, particularly for extrajudicial executions.96 Only one colonel has been the subject of any proceedings.97 In its 2011 Annual Report, the United Nations Office of the High Commissioner for Human Rights (“OHCHR”) noted that the highest ranking official to have been condemned and subject to criminal processes was a retired colonel who accepted responsibility in 57 extrajudicial executions committed between 2007 and 2008.98 No senior military or paramilitary commanders or higher-ranking officials seem to have been the subject of any criminal processes thus far, or at least no “genuine” criminal processes.

There can be no doubt that higher-ranking officials within the command structure of the military and the Colombian government at least knew about the mass atrocities, especially the false positives, being committed. There was a high degree of organization and coordination for committing extrajudicial executions known as “false positives” in various regions of the country by various brigades and clearly targeted and specific groups of victims.99 Patterns of executions exhibiting high levels of coordination could not have been carried out as isolated incidents by “bad apple” soldiers or even only brigades.100 Military officials at higher levels must have at least known about these abuses.

The mobility of commanders from one military unit to another, for one, likely reinforced the patterns across different brigades in terms of committing executions.101 Furthermore, the high number of casualties racked up by brigades “earned their commanders promotions rather than criminal investigations, thereby encouraging, expanding, perpetuating, and accentuating the impunity of the criminal activity of false positives.”102 The FIDH names Colonel Juan Carlos Barrerra Jurado as an example. He first served as a commander of the Fourth Brigade, which has been linked to a high number of false positive cases, and was then promoted to commander of the Fourteenth Brigade, also linked with a high number of false positive cases.103 The FIDH also identified Generals Mario Montoya and Oscar Gonzalez Peña as having been promoted in military ranks after being brigade and division commanders in Antioquia, the department where most of the extrajudicial executions reported between 2004 and 2008 took place.104 The OTP did not consider whether any proceedings are ongoing or have been instigated against Jurado, Montoya, and Peña. These are examples of high-ranking officers who were rewarded and praised despite having led brigades known to have committed a large number of false positives. Montoya was named Commander of the Armed Forces in 2006 and in 2009 was appointed as Colombia’s Ambassador to the Dominican Republic—even though he was linked to false positive cases.105 Commander Peña was praised as “the best commander in the country during his period as commander of the Fourth Brigade, because his unit was the one that reported the highest number of kills: 857” and was promoted in 2008 to replace Montoya as Commander of the Armed Forces.106

It cannot be argued that high level military commanders and other government officials had no knowledge of the false positives being committed. Human rights organizations and United Nations entities have condemned the military policies of offering incentives and the high pressure for results, or killings, on the basis that this perpetuates and incentivizes soldiers to commit false positives and other human rights abuses. Among these critics are the United Nations Special Rapporteur for Extrajudicial Executions, the United Nations Human Rights Committee, the OHCHR, and the FIDH.107 An increasing number of complaints against the security forces regarding extrajudicial executions were made to the Human Rights Unit of the Office of the Attorney General—73 in 2005, 122 in 2006, and 245 in 2007.108 Given the seriousness and widespread nature of the extrajudicial killings, it is implausible that senior military commanders had no knowledge thereof.109 The OTP even notes, “The information available indicates that high officials of the army were aware of false positive killings prior to 2002, but failed to take appropriate measures to address the allegations.”110 The OHCHR has also expressed suspicion that senior officials have some responsibility in the false positive cases.111

In response to several complaints of false positives, in 2007 the Ministry of Defense also ordered armed forces to avoid killing civilians (though this did not stop the commission of crimes).112 In the same year, the Ministry of Defense in 2007 even established a committee under Ministerial Directive 010 for a period of one year to monitor complaints of such illegal executions.113 The Chief of Joint Operations was tasked with “overseeing the implementation of this directive, receiving, consolidating, analyzing, and evaluating the information on operational results supplied by the Command Force and Joint Organizations.”114 Additionally, in 2008, the Minister of Defense created a commission to carry out an administrative investigation into allegations of false positives committed by the armed forces—though the commission had no authority to gather evidence, identify those responsible for alleged crimes, or pursue any criminal investigation.115 This commission found serious failures in military records pointing to misconduct and uncovered several false positive cases.116 In connection with those cases, 27 members of the military including three generals were discharged for their misconduct—but never faced any criminal investigations.117 Nevertheless, no steps were taken toward initiating criminal investigations against any military officers alleged to have committed extrajudicial killings.118 The OTP also acknowledges allegations that “the military would sometimes open preliminary investigations immediately after a death in combat was reported in order to prevent future criminal investigations, rather than to establish the truth on the circumstances of the death. The lack of accountability for violators as well as the absence of effective control by army commanders or clear rules preventing and punishing these crimes could have contributed to the persistence of such practices.”119 Based on this lack of accountability of those most responsible for these atrocities, the OTP should initiate an investigation into the situation in Colombia.

3. Even Where Domestic Criminal Proceedings have been Initiated and/or Completed against Higher Level Perpetrators, these Individuals have Not Faced Prosecutions for Crimes against Humanity.

Even where some are the subject of investigations or prosecutions, they have not been tried for crimes against humanity. Colombia has not incorporated the Rome Statute into its domestic legislation. Notably, the Attorney General has been investigating cases as isolated incidents rather than investigating patterns in order to establish the widespread and systematic nature of crimes against humanity.120 With this limited method, the chain of command cannot be established. The crime typically charged for false positive cases is homicide.121 At least once case did involve an analysis of related actions, a case in which a single brigade in the municipality of Soacha was involved in false positive cases.122 This method of investigation, however, has been rare. According to the FIDH, not a single case has been investigated regarding crimes against humanity as defined under the Rome Statute.123 A method of investigation focusing on the patterns of crimes committed is particularly important to understand command structures and how high within the ranks of the military or other paramilitary groups planning or at least knowledge of crimes permeated.124 Furthermore, many government officials including congressmen have primarily only been tried for political crimes of partaking in conspiracies, rather than being held accountable for the actual underlying crimes.125

4. Colombia’s “Legal Framework for Peace” Prioritizes the Prosecution of the Highest-Level Perpetrators of Crimes, Thereby Shielding Them from Prosecution at the International Criminal Court and Creating an Impunity Gap.

The Colombian government recently passed the “Legal Framework for Peace” which prioritizes the prosecution of the highest-level perpetrators, but may be an effort to shield those most responsible from prosecution at the ICC and may result in an impunity gap. This is not in line with the complementarity obligations on the State. The Legal Framework for Peace will provide for differential treatment for each of the different parties that have participated in the conflict.126 The Congress must prioritize certain cases and develop selection criteria to determine which cases to prioritize.127 As explained by the OTP, “[t]ransitional justice measures will be implemented by the National Congress through statutory laws. They will determine (a) who can benefit from the differentiated treatment; (b) which extrajudicial and judicial measures should be implemented to further proceedings; (c) the case selection criteria; (d) the conditions for the suspension of sentences; and (e) in which cases the application of extrajudicial sanctions, alternative sentences or special methods for the execution and serving of the sentence will apply.”128 Congress will have the power to forego criminal prosecutions or suspend the execution of criminal sentences in certain cases.129 Depending on what the selection criteria end up being, Congress ultimately has the discretion to forego prosecution or suspend sentences for international crimes including for those most responsible for the most serious crimes.130

The OTP itself noted some concern about this law, viewing “with concern any measures that appear designed to shield or hinder the establishment of criminal responsibility for crimes within the jurisdiction of the Court.”131 The OTP also emphasized the importance of knowing “as much as possible…about specific crimes committed by each person,” in order to better understand command structures and uncover evidence about the chain of command and how high criminal responsibility reaches in the ranks of armed groups.132 Aside from the strong potential for an impunity gap to be created by such a policy of prioritization, allowing de facto amnesty for some crimes, even those committed by low-level perpetrators, can have negative implications for cases against higher-level perpetrators. Information and evidence about higher-level perpetrators may in some instances only be gained from cases against lower level perpetrators. But the OTP did not go into an in-depth analysis of the law and still did not see this as a bar to admissibility. The OTP intends to continue to evaluate on a case-by-case basis whether reduced and suspended sentences under this framework could be said “to be consistent with an intent to bring the person concerned to justice.”133 This law has a high likelihood to lead to further impunity, including of those most responsible for the most serious crimes. As scholar Kai Ambos noted, the OTP is ignoring “the fact that any process of prioritization and selection necessarily and on purpose entails impunity.”134

B. There are Unjustified Delays in Domestic Proceedings, Particularly Due to Colombia’s Extradition of the Highest Paramilitary Leaders to the United States for Less Serious Crimes.

Another qualitative aspect of the complementarity inquiry the OTP overlooks is the existence of unjustified delays in domestic proceedings. One major obstacle to avoiding unjustified delays in proceedings against higher-level perpetrators is the issue of extradition. The OTP failed to consider the fact that the Colombian government extradited 23 of the most senior paramilitary members to the United States for charges relating to drug trafficking between 2008 and 2009.135 These individuals did have criminal proceedings against them ongoing in Colombia under the Justice and Peace Law prior to their extraditions. Any domestic proceedings against them will be delayed by decades (in light of long sentences they are expected to serve in the U.S.), if the domestic proceedings ever move forward at all. While the government contends this will not affect their domestic accountability, this will result in significant delays in Justice and Peace proceedings against these individuals, if these proceedings ever resume at all. As of May 2012, very few hearings had been organized in camera and only seven of those extradited continue to participate in domestic proceedings.136 There are no overlapping charges in the U.S. jurisdictions, meaning none of these persons are facing charges of war crimes or crimes against humanity in the U.S. Furthermore, these individuals face sentences over thirty years, as identified by the OTP itself. These individuals will not return to Colombia at least until their sentences have been served if they return at all. These circumstances make it unlikely that these individuals will ever face justice for their atrocities in Colombia. The willingness of Colombian authorities to extradite these individuals during their early stages of proceedings under the domestic Justice and Peace Law demonstrate a lack of willingness by the Colombian government to hold these persons accountable for war crimes and crimes against humanity, and even indicate an attempt to shield these persons from prosecution in the ICC. The ICC acknowledges these extraditions but does not sufficiently analyze their negative impact for domestic proceedings, and instead finds that due to their ongoing domestic proceedings, their cases would be inadmissible to the ICC. The OTP should have analyzed whether this constitutes a procedural obstacle to willingness of the Colombian authorities under the complementarity test.137 The Inter-American Commission of Human Rights has also “warned that ‘extradition impedes the investigation and adjudication’ of the crimes committed by these persons.”138

Aside from the extraditions, other ongoing proceedings are moving along very slowly. For instance, as of February 2012, the Human Rights Unit of the Office Attorney General of the Nation reported that 1,579 investigations had been opened since 2000 regarding false positive cases allegedly committed by members of the armed forces.139 1,405 (88.9 percent) were at the investigation stage, 45 had charges filed (2.8 percent), 30 were in the trial stage (1.9 percent), and only 16 cases had judgments rendered (1 percent).140 Most of the cases were at that time still in the preliminary stages of proceedings and had no perpetrators even named.141 The Constitutional Court also noted that out of every 200 cases, fewer than one reaches the stage of Accusation.”142 One report even noted that Colombia is ranked 178 out of 183 countries in terms of judicial efficiency, has the sixth slowest justice system in the world, and the third slowest in Latin America.143

There are several things that account for delays in criminal proceedings. Firstly, jurisdictional disputes between military and ordinary criminal courts contribute to delaying proceedings (some disputes lasting as long as a year), and the transfer of cases from one jurisdiction to another also takes a considerable amount of time.144 Second, as mentioned above, there is little investigation as to patterns of crimes or coordination between investigators and prosecutors of related crimes and hence no sharing of information between cases.145 This results in further delays where mass crimes are investigated as isolated incidents for each new case. Third, there have been frequent changes of prosecutors handling certain cases.146 While often the intended purpose of changing prosecutors has been to make proceedings more effective, this has actually resulted in further delays, as new prosecutors then need to get up to speed on the progress of a particular case or need to develop a new strategy. Fourthly, there have also been allegations that the Office of Military Defense (“DEMIL”), which frequently takes on the defense of military men in cases in which they are accused of violations of human rights and international humanitarian law, has worked to procedurally delay the progress of cases in courts.147 They use delay tactics such as “abusively requesting suspension and postponement of hearings, attorneys of defendants not showing up for hearings (causing the postponement of that court proceeding), or repeated and excessive change of defense counsel, including resigning in the middle of hearings, and improper and abusive lodging of appeals.”148 The OTP does not analyze any of these issues and the extent to which they contribute to unjustified delays in domestic investigations and prosecutions.

C. Domestic Judicial Processes in Colombia Lack Independence and Impartiality.

1. Most Military Suspects are Being or Will be Tried in Military Tribunals Which Do Not have Jurisdiction over Crimes Against Humanity and Will Contribute to Impunity.

The OTP further fails to consider issues that hinder the independence and impartiality of domestic judicial processes, including the broad exercise of jurisdiction of military tribunals. Military courts in Colombia have jurisdiction over war crimes, including enforced disappearance, torture, rape, and other crimes of sexual violence, committed by members of the armed forces.149 However these courts seriously compromise the independence and impartiality of any domestic proceedings for serious international crimes. In December 2012, Congress amended the Constitution to expand the jurisdiction of these military courts.150 This reform gives the military courts greater control over investigations, especially the initial stages of investigations involving members of the security forces and alleged human rights violations.151 This means that many more cases will fall under the jurisdiction of these courts and many cases may be transferred from ordinary courts to military courts.152

From the outset and the way that crimes, especially the false positive cases, are carried out determines that they will fall under military criminal jurisdiction. The way in which soldiers disguise the killings as combat killings, report these incidents as combat killings, destroy evidence such as victims’ identification, and “gather evidence” of the killings after the fact by taking pictures and compiling documentation and statements related to the killings all impair any independent and impartial judicial process.153 Since these cases are reported as combat killings by members of the armed forces, they fall under the jurisdiction of military courts. Even when family members of the victims file complaints in the ordinary court systems, these cases are transferred to the military courts.154 Though many of the crimes have been tried in ordinary criminal courts, as of July 2011, over 400 cases of extrajudicial executions were still before military criminal courts and not all of them have been properly referred to the ordinary jurisdictions.155 Assignees of February 2012, the “Human Rights Unit of the Office Attorney General of the nation reported that among the cases in which a conflict of jurisdiction had been raised, 53 cases had been settled in favor of military justice and 642 cases in favor of the ordinary courts.”156 Even where investigations are carried out by ordinary courts however, members of the military are the first ones to “gather evidence” of false positives (after having already distorted the crime scenes), prejudicing any potential for fair proceedings and proper gathering of evidence for ordinary criminal processes.

Human rights entities such as the Working Group on Extrajudicial Execution of Colombia-Europe-United States Coordination Observatory, the OHCHR, the Special Rapporteur on Extrajudicial Executions, both the Inter-American Court and Commission on Human Rights, and even the Colombian Constitutional Court itself have harshly criticized the Colombian military courts specifically for handling serious crimes especially killings and extrajudicial killings allegedly committed by military members, and rather encourage such crimes to be tried by ordinary courts and judicial mechanisms.157 The OHCHR noted with concern that this reform would “seriously undermine previous efforts taken by the Colombian Government to ensure that human rights violations…are duly investigated, and perpetrators held to account.”158 This would infringe upon “Colombia’s obligations under international humanitarian and human rights law” and would increase the risk for impunity.159

Military courts should have very limited jurisdiction of an exceptional nature and any human rights violations allegedly committed by security forces should be tried in ordinary courts.160 “[I]t is reasonable to believe that officials in the military justice system do not have the impartiality and independence…to investigate effectively and thoroughly human rights violations committed by the military.”161 Military courts in Colombia are not competent to try these serious crimes and lack the independence and impartiality required under international law. It is highly problematic that many of the crimes committed by security forces in Colombia being tried by ordinary courts have become the exception, rather than the rule. This demonstrates unwillingness on the part of the Colombian government to prosecute those responsible for these crimes and indicates an attempt to shield those responsible from criminal responsibility.

2. Threats and Intimidation against Human Rights Defenders, Judges, Prosecutors, Victims, and Witnesses Undermine the Independent and Impartial Administration of Justice.

The OTP further failed to consider another issue hindering the independence and impartiality of domestic proceedings: the commonplace threats, intimidation, and violence committed against human rights defenders, judges, prosecutors, victims, and witnesses. Members of the media and the government, including President of the Republic Juan Manuel Santos, have made declarations discrediting, stigmatizing, and delegitimizing the work of human rights defenders.162 This has exposed human rights defenders to “various attacks on their lives integrity, and freedom” and even criminal prosecutions.163 Judges, prosecutors, and even military criminal justice officials who forward cases to ordinary courts have faced persecution, harassment, threats, and intimidation.164 Most of these acts have been made publicly and openly including through public statements, publications, the press, and Internet media.165 The targets of these crimes have also experienced excessive surveillance by government intelligence agencies, mail interception, and fabricated legal cases brought against them.166 One judge, Gloria Constanza Gaona, who handled a case of murders of young boys and girls by military officers was even killed in March 2011, allegedly by members of the military.167 The Special Rapporteur on the Independence of Judges and Lawyers stressed that “a climate of fear and insecurity appears to reign over the judicial system because of attacks and threats against judges, prosecutors and lawyers that occur to them as a consequence of the cases they deal with or the functions that they discharge.”168

Witnesses can be bought and sold, further undermining the impartiality and independence of criminal proceedings.169 In addition to corruption, witnesses and victims also face threats and intimidation, particularly to prevent reporting crimes or moving forward with cases.170 Some are even killed. The Special Rapporteur on Extrajudicial Executions even noted that “witnesses fear not only the alleged perpetrators, but also—especially in the more rural and remote areas—government officials such as the local attorney general or prosecutor, whom witnesses suspect of cooperating with the alleged perpetrators or of succumbing to their influence.”171 One colonel who admitted responsibility for false positives also noted that he received threats to try to prevent him from testifying and confessing his crimes.172 The violence under which the Colombian judicial system operates clearly has negative implications for the independence and impartiality of domestic proceedings, and thereby hinders genuine investigations and prosecutions. However, the OTP again does not spend any time acknowledging or analyzing this problem.

D. Paramilitary Suspects Have Enjoyed De Facto Amnesty.

Members of paramilitaries who have committed crimes enjoy de facto amnesty in exchange for “demobilization,” which in many cases has not been genuine. They enjoy either no criminal prosecution or significantly reduced sentences.

The OTP has overlooked is de facto amnesty and immunity that exists for paramilitary groups. One of President Uribe’s proposals granted immunity from criminal prosecution for war crimes and crimes against humanity to paramilitary groups that would demobilize, turn in their weapons, and make symbolic acts of contrition such as turning in portions of their land and paying fines and/or reparations to victims of the conflict.173 Members of the AUC also had to acknowledge their crimes in an open court, in exchange for which they would receive suspended sentences or five years of probation.174 Paramilitary members could thereby escape serving prison sentences entirely.175 This has been strongly criticized by human rights groups and the United Nations.176 The OHCHR criticized President Uribe’s proposals as violating the Universal Declaration of Human Rights.177

Furthermore, the government organized a committee to verify compliance with this decree, regarding the laying down of arms and making symbolic acts of contrition, and to ensure that those persons not be subject to prosecutions of war crimes or crimes against humanity.178 However, at least one human rights group has criticized this committee lacking both the capacity and will to carry out such monitoring, thereby resulting in many people simply enjoying impunity and demobilizations not being fully genuine.179 Indeed, some persons who temporarily demobilized joined new paramilitary groups later on, and some demobilizations have been charged as being fake.

Of about 35,411 demobilized paramilitaries as of August 2011, 86 percent benefitted from this de facto amnesty regime. Only 4,539 of them have applied to the procedures under the Justice and Peace Law and only 2,739 have begun the first procedural stage.180 Ultimately, as of May 2012, sentence ruling had only been obtained under procedures of the Justice and Peace Law for ten persons.181

Furthermore, these attempts at demobilization did not lead to the cessation of atrocities attributable to paramilitaries.182 There have also been allegations of fake demobilizations or paramilitaries re-organizing as new paramilitary groups.183 Though the government tried to sacrifice justice in the name of peace, these policies have only facilitated impunity for continued crimes.

V. Conclusion.

Based on the above evidence, a strong argument can be made that the OTP should initiate a formal investigation into the situation of Colombia. The OTP itself has no doubt that war crimes and crimes against humanity under the jurisdiction of the ICC have been committed and continue to be committed in Colombia. The OTP also notes those most responsible for false positive cases in the State security forces have not been held to account, and that impunity for crimes of rape and other sexual violence and forced displacement is still too widespread. A qualitative analysis of the deficiencies of the Colombian judicial system indicates that the Colombian authorities are unwilling to genuinely investigate and prosecute the highest-level perpetrators of war crimes and crimes against humanity. Colombian authorities have attempted to shield those perpetrators from criminal responsibility, there are unjustified delays in domestic judicial processes, and the judicial system lacks independence and impartiality. Adopting a more qualitative approach to the complementarity test would allow the OTP to more effectively identify situations ripe for investigation in the future, particularly in non-African states, as well as bolster the reputation of the ICC, and eliminate some of the criticisms of the court including the charge of an Africa-bias. Based on these considerations, the OTP should engage in a more qualitative analysis of the situation in Colombia and initiate a formal investigation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Timothy Posnanski, Colombia Weeps but Doesn’t Surrender: The Battle for Peace in Colombia’s Civil War and the Problematic Solutions of President Alvaro Uribe, 4 Wash. U. Global Stud. L. Rev. 719, 721 (2005). ↩

2. 2.

   Id. at 719 nn.1, 15 (citing Garry Leech, Fifty Years of Violence, Colom. J. (May 1999), available online (last visited Mar. 5, 2013); Juan Forero, 11 Killed in Bombing in Colombian City, N.Y. Times, Sept. 29, 2003, at A13). ↩

3. 3.

   Id. at 721 n.16 (citing Leech, supra note 2). ↩

4. 4.

   Id. at 722 n.18. ↩

5. 5.

   International Criminal Court Office of the Prosecutor, Situation in Colombia: Interim Report, at ¶ 41 (Nov. 2012), available online (last visited Mar. 6, 2013) [hereinafter Interim Report]. ↩

6. 6.

   Id. at ¶ 41. ↩

7. 7.

   Posnanski, supra note 1, at 722 n.19. ↩

8. 8.

   Id. at 722 nn.20-1. ↩

9. 9.

   Id. at 722 n.22. ↩

10. 10.

    Id. at 722 n.23. ↩

11. 11.

    Id. at 722 nn.23-4 (citing Leech, supra note 2; Human Rights Watch, War Without Quarter: Colombia and International Humanitarian Law (1998), available online. ↩

12. 12.

    Id. at 722 n.25. ↩

13. 13.

    Id. at 726, n.47 (citing Bureau for International Narcotics and Law Enforcement Affairs, Department of State, Environmental Consequences of the Illicit Coca Trade (Bureau for International Narcotics and Law Enforcement Affairs 2003), available online (last visited Mar. 5, 2013). ↩

14. 14.

    See e.g., International Committee of the Red Cross, Country Report: Colombia, People on War Project (Greenberg Research, Inc. 1999), available online (last visited Mar. 6, 2013); U.S. Department of State, Country Reports on Human Rights Practices for 2011: Colombia (2012), available online (last visited Mar. 6, 2013). ↩

15. 15.

    Interim Report, supra note 5, at ¶ 113. ↩

16. 16.

    Fédération Internationale des Droits de l’Homme, Colombia: The European Parliament can Contribute to End the Commission of International Crimes and to Respect the Work of Human Rights Defenders and Trade Unionists 5, 17 (May 2012), available online (last visited Mar. 6, 2013) [hereinafter FIDH, European Parliament]; Fédération Internationale des Droits de l’Homme, Colombia: The War is Measured in Litres of Blood 8 (May 2012), available online (last visited Mar. 6, 2013) [hereinafter FIDH, Litres of Blood]. ↩

17. 17.

    FIDH, European Parliament, supra note 16; FIDH, Litres of Blood, supra note 16, at 8 n.17 (citing United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, ¶ 26, U.N. Doc. A/HRC/16/22 (Feb. 3, 2011). In a report prepared by the data bank of the Centre for Research and Popular Education (CINEP), a vast majority of the extrajudicial executions reported since the beginning of the conflict occurred between 2002 and 2008. FIDH, Litres of Blood, supra note 16, at 17 n.55; Interim Report, supra note 5, at ¶¶ 93, 104; Human Rights Council, Written Statement Submitted by Amnesty International to 22nd Session of the Human Rights Council, U.N. Doc. A/HRC/22/NGO/174 (Feb. 27, 2013); U.S. Department of State, supra note 14. ↩

18. 18.

    FIDH, European Parliament, supra note 16, at 6, n.4. ↩

19. 19.

    FIDH, Litres of Blood, supra note 16, at 17-8 nn.56-7. ↩

20. 20.

    Posnanski, supra note 1, at 724. ↩

21. 21.

    Interim Report, supra note 5, at ¶ 45. ↩

22. 22.

    Id. at ¶ 45. ↩

23. 23.

    FIDH, Litres of Blood, supra note 16, at 18 nn.58-9. ↩

24. 24.

    Interim Report, supra note 5, at ¶ 47. ↩

25. 25.

    Id. at ¶ 48. ↩

26. 26.

    Id. at ¶ 26 n.108, ¶ 49 nn.42-3, ¶ 83 n.103, ¶ 91 nn.115-7 (citing Oxfam International, Campaign Rape and other Violence: Leave my Body Out of War, First Survey on the Prevalence of Sexual Violence against Women in the Context of the Colombian Armed Conflict 2001-2009, 13-4, 16-7, 19, 20, 24, 25 (Jan. 2011), available online (last visited Mar. 6, 2013)). ↩

27. 27.

    Posnanski, supra note 1, at 725 n.37 (citing Ruth Morris, Colombia Conflict Drawing in More Children; Human Rights Watch Reports that 11,000 Underage Combatants—as Young as 12—are Fighting for Rival Militias in the Civil War, L.A. Times, Sept. 19, 2003, at A3); U.S. Department of State, supra note 14, at 18-9. ↩

28. 28.

    Id. at 725 n.39. ↩

29. 29.

    FIDH, European Parliament, supra note 16, at 5, 7, 19-20, n.13; see also European Center for Constitutional and Human Rights, Violence Against Trade Unionists in Colombia: Why the International Criminal Court Must Investigate (2012), available online (last visited Mar. 6, 2013). ↩

30. 30.

    FIDH, European Parliament, supra note 16, at 7 n.14. ↩

31. 31.

    Amnesty International, Colombia: Impunity Perpetuates Ongoing Human Rights Violations—Submission to the United Nations Universal Periodic Review 6 (2013), available online (last visited Mar. 6, 2013) [hereinafter Amnesty, Submission to UN Universal Periodic Review]. ↩

32. 32.

    FIDH, European Parliament, supra note 16, at 5, 19-20. ↩

33. 33.

    Id. ↩

34. 34.

    Posnanski, supra note 1, at 726, n.40. ↩

35. 35.

    FIDH, European Parliament, supra note 16, at 7 nn.16-7. ↩

36. 36.

    Interim Report, supra note 5, at ¶ 46. ↩

37. 37.

    Id. at ¶¶ 26, 39. ↩

38. 38.

    FIDH, European Parliament, supra note 16, at n.15. ↩

39. 39.

    Id. at 6 n.12. ↩

40. 40.

    Interim Report, supra note 5, at ¶ 3. ↩

41. 41.

    Id. ↩

42. 42.

    Id. at ¶ 1. ↩

43. 43.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at art. 53(1). ↩

44. 44.

    Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09, ¶ 188 (Int’l Crim. Ct. Mar. 31, 2010) [hereinafter ICC Kenya, Investigation Authorization]. ↩

45. 45.

    Interim Report, supra note 5, at ¶ 23 n.4 (citing ICC Kenya, Investigation Authorization, supra note 44, at ¶ 35), available online (last visited Mar. 6, 2013)). ↩

46. 46.

    Interim Report, supra note 5, at ¶ 5, 51. ↩

47. 47.

    Id. at ¶ 6. ↩

48. 48.

    Id. at ¶ 9. ↩

49. 49.

    Id. at ¶ 10. ↩

50. 50.

    Rome Statute, supra note 43, at art. 17. ↩

51. 51.

    Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, 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, Case No. ICC-01/04-01/07, ¶ 76, 78 (Int’l Crim. Ct. Sept. 25, 2009) [hereinafter ICC Kenya, Katanga Appeal, Admissibility]. ↩

52. 52.

    FIDH, Litres of Blood, supra note 16, at 33 n.107 (citing Prosecutor v. Ruto and Sang, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 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, Case No. ICC-01/09-1/11, ¶ 1 (Int’l Crim. Ct. Aug. 30, 2011), available online (last visited Mar. 6, 2013)). ↩

53. 53.

    ICC Kenya, Investigation Authorization, supra note 44, at ¶ 188. ↩

54. 54.

    Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Case No. ICC-01/09-02/11, ¶ 50 (Int’l Crim. Ct. May 30, 2011). ↩

55. 55.

    ICC Kenya, Katanga Appeal, Admissibility, supra note 51, at ¶ 50. ↩

56. 56.

    Id. at ¶¶ 75, 78. ↩

57. 57.

    ICC Kenya, Katanga Appeal, Admissibility, supra note 51, at ¶ 78. ↩

58. 58.

    Id. at ¶ 79. ↩

59. 59.

    See e.g., M.J. Midtbø, The Principle of Complementarity: Admissibility to the International Criminal Court 9-11 (2006), available online (last visited Mar. 6, 2013). ↩

60. 60.

    Jennifer S. Easterday, Deciding the Fate of Complementarity: A Colombian Case Study 60 (2009), available online (last visited Mar. 6, 2013). ↩

61. 61.

    Rome Statute, supra note 43, at art.17(2)(c). ↩

62. 62.

    Id. at preamble. ↩

63. 63.

    ICC OTP, Informal Expert Paper: The Principle of Complementarity in Practice 28-31 (2003), available online (last visited Mar. 6, 2013) [hereinafter OTP Expert Paper on Complementarity]. ↩

64. 64.

    Midtbø, supra note 59, at 15. ↩

65. 65.

    OTP Expert Paper on Complementarity, supra note 63; Caroline Fransson, The Principle of Complementarity in the Rome Statute 44 (2004), available online (last visited Mar. 6, 2013). ↩

66. 66.

    OTP Expert Paper on Complementarity, supra note 63. ↩

67. 67.

    Id.; Fransson, supra note 65. ↩

68. 68.

    OTP Expert Paper on Complementarity, supra note 63. ↩

69. 69.

    Id.; Kai Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court: Is there Sufficient Willingness and Ability on the Part of the Colombian Authorities or Should the Prosecutor Open an Investigation Now? 6 (2011), available online (last visited Mar. 6, 2013) [hereinafter Ambos, Colombian Peace Process]; Fransson, supra note 65, at 43. ↩

70. 70.

    Midtbø, supra note 59, at 15. ↩

71. 71.

    Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity, 7 Max Planck Y.B. U.N. L. 591, 610 (2003). ↩

72. 72.

    OTP Expert Paper on Complementarity, supra note 63; Fransson, supra note 65, at 43. ↩

73. 73.

    OTP Expert Paper on Complementarity, supra note 63. ↩

74. 74.

    Id. ↩

75. 75.

    Ambos, Colombian Peace Process, supra note 69. ↩

76. 76.

    OTP Expert Paper on Complementarity, supra note 63; Midtbø, supra note 59, at 17. ↩

77. 77.

    OTP Expert Paper on Complementarity, supra note 63. ↩

78. 78.

    Id. ↩

79. 79.

    OTP Expert Paper on Complementarity, supra note 63; Ambos, Colombian Peace Process, supra note 69. ↩

80. 80.

    OTP Expert Paper on Complementarity, supra note 63. ↩

81. 81.

    Id.; Ambos, Colombian Peace Process, supra note 69. ↩

82. 82.

    OTP Expert Paper on Complementarity, supra note 63, at ¶ 46. ↩

83. 83.

    See e.g., Easterday, supra note 60, at 84. ↩

84. 84.

    Interim Report, supra note 5, at ¶ 4. ↩

85. 85.

    Id. at ¶ 12-3, 160-96, Annex pp. 70-80. ↩

86. 86.

    Id. at ¶ 15, Annex pp. 80-7. ↩

87. 87.

    Id. at ¶ 16-8, 19, Annex pp. 88-93. ↩

88. 88.

    Kai Ambos, ICC OTP Report on the Situation in Colombia—A Critical Analysis, Blog of the European Journal of International Law (Feb. 1, 2013), available online (last visited Mar. 6, 2013). ↩

89. 89.

    Interim Report, supra note 5, at ¶ 211-2. ↩

90. 90.

    Id. at ¶ 216; see also Press Release, Amnesty International, Colombia: Conviction for Conflict-Related Rape and Murder a Rare Victory (Aug. 28, 2012), available online (last visited Mar. 6, 2013). ↩

91. 91.

    Interim Report, supra note 5, at ¶ 196. ↩

92. 92.

    Id. ↩

93. 93.

    Id. at ¶ 183-4, 187-90, 192, 194-5. ↩

94. 94.

    FIDH, Litres of Blood, supra note 16, at 36; FIDH, European Parliament, supra note 16; International Center for Transitional Justice, ICTJ Program Report: Colombia—Interview with Maria Camila Moreno (2012), available online (last visited Mar. 6, 2013). ↩

95. 95.

    FIDH, European Parliament, supra note 16; In the Shadow of the ICC: Colombia and International Criminal Justice 43 (2011), available online (last visited Mar. 6, 2013). ↩

96. 96.

    Id. ↩

97. 97.

    Interim Report, supra note 5, at ¶ 88. ↩

98. 98.

    FIDH, European Parliament, supra note 16, at 17 n.65 (citing United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia, ¶ 33, U.N. Doc. A/HRC/19/21/Add.3 (Jan. 31, 2012)). ↩

99. 99.

    Id. at 25. ↩

100. 100.

     Id. ↩

101. 101.

     Id. at 25 n.84. ↩

102. 102.

     Id. ↩

103. 103.

     Id. ↩

104. 104.

     Id. at 31. ↩

105. 105.

     Id. at 36-7. ↩

106. 106.

     Id. at 36 n.117. ↩

107. 107.

     Id. at 29 nn.96-98; 30-31 n.101. ↩

108. 108.

     Id. at 31 n.100. ↩

109. 109.

     Id. at 30. ↩

110. 110.

     Interim Report, supra note 5, at ¶ 100. ↩

111. 111.

     Id. at 31 n.103. ↩

112. 112.

     Id. at 31. ↩

113. 113.

     Id. at 30. ↩

114. 114.

     Id. at 31. ↩

115. 115.

     Id. at 37. ↩

116. 116.

     Id. at 38. ↩

117. 117.

     Id. ↩

118. 118.

     Id. at 31. ↩

119. 119.

     Id.; see also Amnesty International, The Human Rights Situation in Colombia: Amnesty International’s Written Statement to the 22nd Session of the UN Human Rights Council, Doc. AMR 23/011/2013 (Feb. 25, 2013), available online (last visited Mar. 6, 2013) (the military justice system “has a record of closing such investigations [of extrajudicial killings by military forces] without holding those responsible properly to account”). ↩

120. 120.

     FIDH, Litres of Blood, supra note 16, at 34; International Center for Transitional Justice, supra note 94; In the Shadow of the ICC: Colombia and International Criminal Justice, supra note 95, at 43. ↩

121. 121.

     FIDH, Litres of Blood, supra note 16, at 35. ↩

122. 122.

     Id. at 34 n.111. ↩

123. 123.

     Id. at 34. ↩

124. 124.

     Id. at 35 n.112; International Center for Transitional Justice, supra note 94. ↩

125. 125.

     Interim Report, supra note 5. ↩

126. 126.

     FIDH, European Parliament, supra note 16, at 16. ↩

127. 127.

     Id.; Amnesty, Submission to UN Universal Periodic Review, supra note 31. ↩

128. 128.

     Interim Report, supra note 5, at ¶ 202. ↩

129. 129.

     FIDH, European Parliament, supra note 16, at 16; Amnesty, Submission to UN Universal Periodic Review, supra note 31. ↩

130. 130.

     FIDH, Litres of Blood, supra note 16, at 46; Human Rights Watch, Colombia: Amend ‘Legal Framework for Peace’ Bill (May 31, 2012), available online (last visited Mar. 6, 2013). ↩

131. 131.

     Interim Report, supra note 5, at ¶ 205. ↩

132. 132.

     Id. at ¶ 205. ↩

133. 133.

     Id. at ¶ 206. ↩

134. 134.

     Ambos, supra note 88. ↩

135. 135.

     FIDH, European Parliament, supra note 16, at 15. ↩

136. 136.

     Id.; Interim Report, supra note 5, at ¶ 170. ↩

137. 137.

     Ambos, supra note 88. ↩

138. 138.

     Id. ↩

139. 139.

     FIDH, Litres of Blood, supra note 16, at 33. ↩

140. 140.

     Id. at 33 n.106, 49. ↩

141. 141.

     Id. at 33. ↩

142. 142.

     Interim Report, supra note 5, at ¶ 213. ↩

143. 143.

     U.S. Office on Colombia, Impunity: Has Implementation of the Accusatory Legal System been an Effective Response to the Fight Against Impunity in Colombia? 4 (2012), available online (last visited Mar. 6, 2013). ↩

144. 144.

     FIDH, Litres of Blood, supra note 16, at 50 n.182. ↩

145. 145.

     Id. at 34. ↩

146. 146.

     Id. at 50 nn.183-4; Interim Report, supra note 5, at ¶ 172. ↩

147. 147.

     FIDH, Litres of Blood, supra note 16, at 50 n.186. ↩

148. 148.

     Id., at 51 nn.189-91. ↩

149. 149.

     Amnesty International, Colombia: Reform Will Boost Impunity for Military and Police Human Rights Abusers (Dec. 6, 2012), available online (last visited Mar. 6, 2013). ↩

150. 150.

     Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Follow-Up Country Recommendations: Colombia, ¶ 12 U.N. Doc. A/HRC/20/22Add.2 (May 15, 2012) [hereafter UN Special Rapporteur]. ↩

151. 151.

     Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; UN Special Rapporteur, supra note 150, at ¶ 25. ↩

152. 152.

     Amnesty, Submission to UN Universal Periodic Review, supra note 31, at 6; UN Special Rapporteur, supra note 151, at ¶ 25. ↩

153. 153.

     FIDH, Litres of Blood, supra note 16, at 39. ↩

154. 154.

     Id. at 40 n.128. ↩

155. 155.

     Id. at 42 n.142. ↩

156. 156.

     Id. ↩

157. 157.

     Id. at 39 n.127, 40 n.128-30, 41 n.133-4, 139; UN Special Rapporteur, supra note 151, at ¶ 12; U.N. High Commissioner for Human Rights, Annual Report of the U.N. High Commissioner for Human Rights, ¶ 79, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013); Press Release, Inter-American Commission on Human Rights, IACHR Expresses Concern over Constitutional Reform in Colombia (Jan. 4, 2013), available online (last visited Mar. 6, 2013). ↩

158. 158.

     U.N. High Commissioner for Human Rights, UN Human Rights Office Concerned Over Colombia’s Military Justice Reform Bid, U.N. News Centre (Nov. 27, 2012), available online (last visited Mar. 6, 2013). ↩

159. 159.

     Id. ↩

160. 160.

     FIDH, Litres of Blood, supra note 16, at 41 nn.135-7 (citing Observations and Recommendations of the Human Rights Committee to Colombia, ¶ 5-6, U.N. Doc. CCPR/C/79/Add.2 (Sept. 25, 1992); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 8, U.N. Doc. CCPR/C/79/Add.8 (Sept. 25, 1992); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 12, U.N. Doc. CCPR/C/79/Add.67 (July 25, 1996); Observations and Recommendations of the Human Rights Committee to Peru, ¶ 11, U.N. Doc. CCPR/CO/70/PER (Nov. 15, 2000); Observations and Recommendations of the Human Rights Committee to Venezuela, ¶ 7, 10, U.N. Doc. CCPR/C/79/Add.13 (Dec. 28, 1992); Civil Liberties Organization v. Nigeria, Comm. No. 151/96 (African Comm’n on Human and Peoples’ Rights 1999); Annette Pagnoulle (on behalf of Abdoulaye Mazou) vs. Cameroon, Comm. No. 39/90 (African Comm’n on Human and Peoples’ Rights 1997); Int’l Pen and Others v. Nigeria, Comm. Nos. 137/94, 139/94, and 161/97 (African Comm’n on Human and Peoples’ Rights 1998)); UN Special Rapporteur, supra note 31, at ¶ 24. ↩

161. 161.

     FIDH, Litres of Blood, supra note 16, at 40 n.131 (citing Case of Radilla Pacheco v. Mexico, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 209, ¶ 273 (Nov. 23, 2009); Rosendo Cantú et al. v. Mexico, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 216, ¶ 16 (Aug. 31, 2010)). ↩

162. 162.

     FIDH, European Parliament, supra note 16, at 21; Human Rights Council, Written Statement Submitted by Amnesty International to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/26 (Feb. 16, 2012). ↩

163. 163.

     Id. ↩

164. 164.

     FIDH, Litres of Blood, supra note 16, at 45 nn.157-8, 47; UN Special Rapporteur, supra note 151, at ¶ 18, 20. ↩

165. 165.

     FIDH, Litres of Blood, supra note 16, at 47 n.162; see e.g., Fédération Internationale des Droits de l’Homme, Colombia: Illegal Activities Perpetrated by the DAS (May 2010); Human Rights Watch, World Report 2012—Colombia, available online (last visited Mar. 6, 2013); Human Rights Council, Written Statement Submitted by the Jubilee Campaign to 18th Session of the Human Rights Council, U.N. Doc. A/HRC/18/NGO/68 (Sept. 12, 2011); Human Rights Council, Written Statement Submitted by the International Fellowship of Reconciliation to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/154 (Mar. 22, 2012); U.N. High Commissioner for Human Rights, Annual Report of the U.N. High Commissioner for Human Rights, ¶ 74, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013). ↩

166. 166.

     FIDH, Litres of Blood, supra note 16, at 47 n.162; see e.g., Fédération Internationale des Droits de l’Homme, Colombia: Illegal Activities Perpetrated by the DAS (May 2010); Human Rights Watch, World Report 2012—Colombia, available online (last visited Mar. 6, 2013); Human Rights Council, Written Statement Submitted by the Jubilee Campaign to 18th Session of the Human Rights Council, U.N. Doc. A/HRC/18/NGO/68 (Sept. 12, 2011); Human Rights Council, Written Statement Submitted by the International Fellowship of Reconciliation to 19th Session of the Human Rights Council, U.N. Doc. A/HRC/19/NGO/154 (Mar. 22, 2012); U.N. High Commissioner for Human Rights, Annual Rep. of the U.N. High Commissioner for Human Rights, ¶ 74, U.N. Doc. A/HRC/22/17/Add.3 (Jan. 7, 2013). ↩

167. 167.

     Id. ↩

168. 168.

     U.N. Office of the High Commissioner for Human Rights, Colombia: U.N. Expert on Independence of Judges and Lawyers Expresses Need for Judicial Strengthening (Dec. 17, 2009), available online (last visited Mar. 6, 2013). ↩

169. 169.

     FIDH, Litres of Blood, supra note 16, at 52 n.198. ↩

170. 170.

     Easterday, supra note 60, at 99. ↩

171. 171.

     FIDH, Litres of Blood, supra note 16, at 48 nn.171-2. ↩

172. 172.

     Id. at 49 n.175. ↩

173. 173.

     Posnanski, supra note 1, at 727, nn.52-4. ↩

174. 174.

     Id. at 728, nn.59-60. ↩

175. 175.

     Id. ↩

176. 176.

     Id. at 720 n.9, 730 n.75, 735 n.99-101, 740 n.130. ↩

177. 177.

     Id. at 735 n.100. ↩

178. 178.

     FIDH, European Parliament, supra note 16, at 14 nn.47-50. ↩

179. 179.

     Id. ↩

180. 180.

     Id. at 15 nn.53-4. ↩

181. 181.

     Id. at 15 n.54. ↩

182. 182.

     Id. at 14. ↩

183. 183.

     Id. ↩

III. Articulating the ‘Gravity’ Test

In determining what are the ‘most serious crimes’ one guiding principle offered by the Rome Statute is that of ‘gravity’ found in Article 17. This provides that a case will be inadmissible where it “is not of sufficient gravity to justify further action by the court.” In an internal policy paper in 2003, the OTP made clear that “the concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission.”10 In the same policy paper, the OTP further asserted that it should “focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.”11 The OTP has been keen to emphasize that “it would be an error of law to inject rigid requirements into the legal standard for ‘sufficient gravity’ in Article 17(1)(d),” and that ‘gravity’ is intended as a jurisdictional barrier “intended to establish a basic standard for gravity, excluding offenders and crimes that do not warrant the exercise of jurisdiction.”12

The criteria that the OTP has adopted in Regulation 29(2) to assist it in making its determination of gravity include “the scale of the crimes; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes.”13 These are both “quantitative and qualitative considerations based on the prevailing facts and circumstances.”14

The OTP have expanded upon these criteria in its Draft Policy Paper on Preliminary Examinations.15 With regard to the first criteria—scale of crime—the OTP looks to the “number of direct and indirect victims, the extend of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread.” In determining the nature of the crimes the Office examines the specific elements of each offense committed, while they assesses the manner of commission of the crimes in a number of ways, including:

(T)he means employed to execute the crime, the degree of participation and intent in its commission, the extent to which the crimes were systematic or result from a plan or organized policy or otherwise resulted from the abuse of power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination, or the use of rape and sexual violence as a means of destroying communities.

Finally, in evaluating the impact of the crimes, the Office looks to the consequences of the crimes on the local or international community, whether the crimes in question were committed with the aim or consequence of increasing the vulnerability of civilians, and whether the primary purpose of the acts was to spread terror among the civilian population.16

In articulating this ‘sequenced’ approach to selection of cases and in adopting a ‘gravity’ test, the OTP has applied the above criteria flexibly, making case-by-case determinations. Understandably, there is no minimum requirement of X number of killings, rapes or forced disappearances to meet the gravity test. Indeed, the Appeals Chamber of the ICC has recognized that “the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formulistic grounds.”17 That there is no hardline quantitative requirement is a fact to be applauded, as putting a figure on the amount of human suffering required to be considered of ‘sufficient gravity’ for the crimes to come before the court would be callous and not allow for the ever-changing face of conflicts and situations in which the commissions of the ‘most serious crimes’ take place.

In developing these non-exhaustive criteria the OTP have been sufficiently vague to allow broad application and interpretation of the factors to the situation under consideration. The question is, therefore, how this approach has led to the exclusive indictment of African leaders: have other situations failed to meet the gravity test or has there been a biased application of the gravity test to African situations? Why has an application of this test led only to the indictment of African leaders?

IV. Applying the Gravity Test

In its Draft Policy Paper on Preliminary Examinations the OTP outlined the application of the gravity test in the situations in Kenya and Iraq. Obviously, in the Situation in the Republic of Kenya an application of the gravity test led to a decision to proceed with the prosecution, whereas the OTP has decided not to proceed in the Situation in Iraq.

In the situation of Kenya, relevant factors to making a determination of sufficient gravity included the scale of the crimes “(1,200 persons allegedly killed, at least 1000 reported rapes and 450,000 persons displaced) and the nature of the post-election violence, which resulted in large scale killings of civilians, rape and other forms of sexual violence, serious injury and forcible displacement; while there occurred widespread looting and wanton destruction of residential and commercial areas in six out of eight Kenyan regions, including the country’s most populated areas.” In reference to the manner of the commission of the crimes, the Office highlighted that “in many instances, the crimes were organized and planned within the context of a widespread and systematic attack against selected segments of the Kenyan civilian population, based on ethnicity and/or presumed political affiliation [and] Perpetrators often displayed particular cruelty by cutting off body parts, hacking or burning civilians to death, or using gang rape and general mutilation.” In looking at the impact of the crimes the OTP emphasized an array of results including “infection with HIV/AIDS and other sexually transmitted diseases,” the fact that “many displaced persons lost both their home and means of subsistence,” and that “the crimes also hand an impact on local communities in terms of security, social structure, economy and persistence of impunity.”18

Conversely, regarding Iraq, the OTP has concluded “the available information in relation to crimes allegedly committed by state Party nationals revealed a limited scale of conduct constituting war crimes of willful killing and inhumane treatment by members of national armed forces.” The Office has indicated that while it was declining to open an investigation, it “could revisit its assessment in the light of new facts or evidence.”19

V. Conclusion

An interpretation and application of the criteria for determining ‘gravity’ does not prima facie lead to the inevitable conclusion that only investigations against African nationals will proceed before the ICC. Of course, application of these criteria doesn’t exclude Africa nationals, but neither should it exclude nationals from other States. The fundamental issue is the level of information and evidence available to the OTP in making their determination of the ‘gravity’ of crimes within a given situation. Without sufficient evidence, the Office is unable to make a determination on whether there is a reasonable basis to proceed with an investigation and for the Court to determine that an arrest warrant should be issued under Article 58.

In conclusion, an analysis of the internal policies of the OTP does not give rise to allegations of overt bias towards Africa, rather the Office is confined to working within the scope of evidence available to it. In order dispel the allegation of bias States Parties and other actors should work together in assisting the OTP in its evidence gathering to allow it to proceed with investigations outside of the African continent.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The ICC is currently dealing with 18 cases in 8 situations. Those situations are all in the African continent: Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic; the Republic of Kenya; Libya; Côte d’Ivoire; Mali. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9, Preamble. The Statute entered into force on 1 July 2002. ↩

3. 3.

   ICC OTP, Paper on some policy issues before the Office of the Prosecutor (September 2003), available online. Archived, [hereinafter Policy Issues]. ↩

4. 4.

   Id. at 7. ↩

5. 5.

   FIDH, The Office of the Prosecutor of the ICC—9 Years On: Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011), Recommendations to the Next ICC Prosecutor (December 2011), available online. Archived. ↩

6. 6.

   ICC OTP, Report on Prosecutorial Strategy 4 (September 14, 2006), available online. Archived, [hereinafter Prosecutor Report]. ↩

7. 7.

   Id. at 5. ↩

8. 8.

   Id. ↩

9. 9.

   FIDH Report, supra note 5, at 10; “This policy also means that the Office selects a limited number of incidents and as few witnesses as possible are called to testify. This allows the Office to carry out short investigations and propose expeditious trials while aiming to represent the entire range of criminality.” Prosecutor Report, supra note 6. ↩

10. 10.

    Policy Issues, supra note 3, at 7. ↩

11. 11.

    Id. ↩

12. 12.

    ICC OTP, Policy Paper on Preliminary Examinations, Draft 7 (October 4, 2010), available online. Archived. [hereinafter Policy Paper]. ↩

13. 13.

    Prosecutor Report, supra note 6, at 5. ↩

14. 14.

    Policy Paper, supra note 12, at ¶ 70. ↩

15. 15.

    Id. ↩

16. 16.

    Id. at ¶ 70. ↩

17. 17.

    Id. at ¶ 69. ↩

18. 18.

    Id. at ¶ 71. ↩

19. 19.

    Id. at ¶ 72. ↩