The ICC’s Strategy of Positive Complementarity

Since its inception, the ICC has always taken a positive approach to complementarity. In the 2003 Policy Paper of the Office of the Prosecutor the OTP emphasized that one of the key strategies of the OTP is to encourage and facilitate states to carry out their primary responsibility for investigations and proceedings.6 This strategy of positive complementarity7 has been fundamental to the ICC’s approach and has specifically been stated as a strategic goal in the Court’s prosecutorial strategies since 2006.8 There has been much written about the particular definition of positive complementarity, but for the purposes of this comment positive complementarity will be defined as “a proactive policy of cooperation aimed at promoting national proceedings.”9 Defined broadly, positive complementarity entails both cooperative action by the ICC as well as domestic efforts generated by the pressure of an overseeing Court.

The ICC considers the Preliminary Examination stage as vital to its success in fulfilling the two overarching goals of the Rome Statute: “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes, thereby potentially obviating the need for the Court’s examination.”10 As a result, catalyzing positive complementarity is a key strategy. In the OTP’s 2013 Policy Paper on Preliminary Examinations, it states that it can play an active role in catalyzing positive complementarity specifically in the preliminary examination stage by:

[R]eport[ing] on its monitoring activities, send[ing] in-country missions, request[ing] information on proceedings, hold[ing] consultations with national authorities as well as with intergovernmental and non-governmental organisations, participat[ing] in awareness-raising activities on the ICC, exchang[ing] lessons learned and best practices to support domestic investigative and prosecutorial strategies, and assist[ing] relevant stakeholders to identify pending impunity gaps and the scope for possible remedial measures.11

In light of the Court’s strategy of positive complementarity, one effective way to evaluate the performance of the ICC is to measure the amount of positive complementarity catalyzed in a country during the preliminary examination stage.

Why Colombia?

In order to measure the amount of positive complementarity catalyzed as a result of the ICC’s preliminary examination in a particular country, it is important to focus on a country that has been under a preliminary examination for a length of time to ensure the increases in complementarity are consistent with the ICC’s presence and are not simply coincidences. Indeed, a long-term analysis of the ICC’s involvement in Colombia can show consistent and reliable indices of positive complementarity. The preliminary examination in Colombia has been ongoing for more than twelve years, and as such, it is an ideal situation to assess. Furthermore, this particular measurement of performance is more conducive in a country like Colombia that had the resources for judicial progress, but simply lacked the political will.12 Additionally, the situation in Colombia has been subject to much political and academic discourse and ICC correspondence and analysis, thus making data more readily available.

Background on Colombian Conflict

For over fifty years, Colombia has been enveloped in a brutal, internal armed conflict that has resulted in the deaths of at least 220,000 Colombians, of which over 80% are civilians. In addition, since 1985 there have been about 5.7 million victims of forced displacement, giving Colombia the world’s second highest population of internally displaced persons.13 The main actors to the conflict have been between and amongst government forces, paramilitary groups, predominantly the Autodefensas Unidas de Colombia (“AUC”), and guerrilla rebel groups, most notably the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (“FARC-EC”) and the Ejército de Liberación Nacional (“ELN”). Colombia deposited its instrument of ratification to the Rome Statute on August 5, 2002, while at the same time declaring under Article 124 a delay of ICC jurisdiction. Article 124 is a transitional provision in the Rome Statute that allows a country to avoid the ICC jurisdiction regarding war crimes for a seven-year period. As a result, the Court has had jurisdiction in Colombia over crimes against humanity since November 1, 2002 and over war crimes since November 1, 2009.

The OTP decided to open a preliminary examination in the country in June 2004, stating it had a reasonable basis to believe that crimes against humanity had been committed in Colombia since November 1, 2002. According to the OTP, these crimes committed in Colombia under Article 7 of the Rome Statute include inter alia murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape and other forms of sexual violence. The OTP also had a reasonable basis to believe that war crimes under Article 8 of the Statute had been committed since November 1, 2009,14 including inter alia murder, attacks against civilians, torture and cruel treatment, outrages upon person dignity, taking of hostages, rape and other forms of sexual violence, and conscripting, enlisting, and using children to participate actively in hostilities.15 Most recently, the OTP has been investigating alleged false positives cases, in which government military forces have “deliberately killed thousands of civilians, and dressed them in guerilla outfits, to bolster success rates in the context of the internal armed conflict and to obtain monetary profits from state funds.”16 Since 2004, the OTP has been assessing whether Colombia has been genuinely investigating and prosecuting those most responsible for the most serious crimes.

Assessment of Colombia

Since opening a preliminary examination in Colombia in 2004, the OTP has been actively involved in the justice and peace process in Colombia. Specifically, the OTP has remained in close contact with the Colombian government, receiving 181 communications pursuant to Article 15 of the Rome Statute.17 The OTP has also made numerous visits to Colombia to speak with government authorities, NGOs, and members of Colombian civil society. This positive approach to complementarity has been constructive in the progress of transitional justice in Colombia. By actively engaging in cooperative efforts with the Colombian government, the ICC appears to have contributed to positive complementarity in Colombia.

At the same time, some of these increases in complementarity can be attributed to the simple fact of the OTP opening a preliminary examination in Colombia. The specter of an ICC investigation, which has been referred to by the Chief Prosecutor of the ICC (“Chief Prosecutor”) as a “sword of Damocles,”18 may account for some of the progress in judicial and legislative developments in Colombia. Whether the increase in complementarity is due to the OTP’s active cooperation in the transitional justice process or is largely a result of the pressure created to avoid an investigation, this comment suggests that the ICC has nonetheless catalyzed positive complementarity in Colombia. The following qualitative analysis attempts to assess these effects of the ICC during the preliminary examination stage in Colombia.

Positive Complementarity in the Transitional Justice Process

Ley de Justicia y Paz: Justice and Peace Law

The ICC’s preliminary examination in Colombia has most notably been influential in the formation and evolution of the justice and peace framework. The enactment of the Justice and Peace Law (“JPL”) in Colombia suggests the ICC played an important role in increasing complementarity. The JPL, also known as Ley 975, was enacted on July 22, 2005. Its goal is to facilitate the peace process and demobilization of paramilitaries as well as to provide truth, reparations, and a measure of justice to the victims of the related crimes.19 Although its legacy at achieving these goals has been criticized, the JPL did not simply provide a blanket amnesty in exchange for peace, as previous legal frameworks did. Rather, the JPL offered paramilitary group members reduced sentences in exchange for demobilizing, confessing the full extent of their crimes, and offering economic reparations to the victims.20

The decision to enact the JPL was catalyzed in part by ICC pressure. At the Review Conference of the Rome Statute, the Assembly of States Parties (“ASP”) stated that the ICC gaining jurisdiction over the crimes in Colombia was explicitly mentioned by Colombian prosecutors, legislators, and members of the Executive Branch as a key reason to implement the JPL.21 This indicates a clear intention to enact legislation that is consistent with Colombia’s obligations to the Rome Statute. Fearing an ICC investigation, Colombia knew it needed to hold accountable those most responsible for these crimes.

During the drafting of the JPL, the OTP stayed in close communication with the Government of Colombia. On one such occasion, the Prosecutor sent a letter to the Colombian Government indicating that the JPL needed to comply with standards of truth, justice, and reparations.22 Catalina Díaz, Director of the Transitional Justice Unit in the Colombian Ministry of Justice, comments that the shadow of the ICC contributed to having the drafting process debated and adopted publicly within the National Congress, instead of in closed political circles.23 This public process of drafting and implementing the JPL, Díaz argues, allowed civil society and international and intergovernmental actors such as the ICC to scrutinize and contribute to the process, leading to language of justice not amnesty.24

Even after its enactment in 2005, the JPL continued to receive harsh criticism because it seemed to “constitute a system of impunity” for the perpetrators.25 As a result, several human rights and victim-survivor groups filed lawsuits in the Colombian Constitutional Court challenging the constitutionality of the JPL.26 While the Constitutional Court upheld the overall constitutionality of the JPL, it did strike portions of it as unconstitutional and instituted revisions to make the JPL more in line with international legal standards of criminal responsibility and victims rights.27 Significantly, in its analysis, the Constitutional Court implemented standards from the Rome Statute in determining the constitutionality of the JPL.28 This explicit application of the Rome Statute in the Constitutional Court’s decision suggests that the ICC has impacted the positive progress of the JPL, a likely example of positive complementarity.

Since its implementation, the JPL has produced some notable results that are in line with the ICC’s strategy of positive complementarity. By the end of 2006, the AUC had completed the first stage of its demobilization process. Eduardo Pizarro Leongómez, Rapporteur on Commission of History of Armed Conflict and its Victims, has talked to many demobilized paramilitary leaders and believes the presence of the ICC has played a vital role in the demobilization process. He argues that the existence of the JPL had two large incentives for members of paramilitary groups to demobilize. First, the JPL offered greatly reduced sentences for demobilized members, and second, the paramilitary members’ would rather serve any prison sentence in Colombia, rather than in an unknown country after an ICC indictment and trial.29

So far, the Dirección de Fiscalía Nacional Especializada de Justicia Transicional—The Office of the Special Prosecutor of Transitional Justice—has made 47 convictions under the JPL.30 Most recently, the former general commander of the AUC, Ramón María Isaza Arango, was convicted for inter alia 91 counts of forced displacement as indirect and co-perpetrator.31 Additionally, the JPL tribunal issued its first macro-judgment in 2014 against Salvatore Mancuso, a paramilitary leader, and eleven other mid-level commanders. Mancuso and the other commanders were charged with, inter alia, 405 counts of forced displacement involving almost 7,000 victims and 175 counts of sexual crimes involving nearly 3,000 victims.32 These two judgments are just a few of examples of the many national proceedings Colombia has been conducting under the JPL, which is in line with the ICC’s principle of targeting those most responsible. From the drafting and implementation of the JPL, to its continued functioning, it is clear that the threat of an ICC intervention in Colombia has contributed to the strengthening of the judicial system and the ending of impunity.

Marco Jurídico para la Paz: Legal Framework for Peace

While the ICC played a constructive role in the drafting, implementation, and revision of the Justice and Peace Law, its influence in catalyzing positive complementarity did not end there. Specifically, the Court’s impact was felt during the implementation of the Legal Framework for Peace (“LFP”). The LFP, a constitutional amendment approved by Congress in June 2012, established a transitional strategy which included “the prioritization and selection of cases against those bearing the greatest responsibility for crimes against humanity and war crimes.”33 With the goal of providing a framework for peace negotiations between the FARC-EC and the Government of Colombia, the amendment conferred on Congress the discretion to determine criteria for prioritizing prosecutions of those most responsible for crimes against humanity, war crimes, and genocide. As a result, Congress was given the power to inter alia reduce and suspend sentences for those less responsible as well as to define which crimes would be labeled as “political,” such that their perpetrators could be eligible for future participation in politics.34

The drafting process of the LFP was influenced by the threat of a potential investigation by the ICC. Seeking to mirror the ICC’s model of criminal liability for those most responsible for crimes, the Colombian Senate referred to the OTP’s prosecutorial strategy as a justification for this standard.35 While not all members of Congress felt the prioritization standards would comply with the Rome Statute, nonetheless, the ICC’s pressure was felt in the process. Subsequent Congressional debates were replete with references to the ICC’s jurisdiction, indicating that avoiding an ICC intervention was a guiding factor in the LFP’s design.36

The LFP was seen by many human rights groups as a “disguised immunity” that promoted the continued system of impunity.37 While discussing the newly enacted LFP, the OTP, in its 2012 Interim Report on Colombia, mentioned its concern that exclusively focusing on those who bear the most responsibility for these crimes may leave an impunity gap for the mid-level and low-level perpetrators.38 The constitutionality of the LFP was subsequently challenged in the Constitutional Court of Colombia. During the Court’s examination, the Chief Prosecutor of the ICC sent two letters to the Chief Justice of the Constitutional Court threatening an ICC intervention if the LFP were to suspend sentences for those most responsible for crimes against humanity, war crimes, and genocide.39 In the letter dated July 26, 2013, the Chief Prosecutor stated:

As a result of this analysis I have come to the conclusion that a conviction that would be grossly or manifestly inadequate in light of the seriousness of the crimes and the type of participation of the accused, would invalidate the authenticity of the national judicial process, even if all previous phases had been considered genuine. Since the suspension of a prison sentence means that the defendant does not spend time in prison, I wish to advise you that this would be manifestly inadequate in the case of those who appear to be the most responsible for committing war crimes and crimes against humanity. A decision to suspend the imprisonment of these persons could suggest that the processes are carried out or with the purpose of shielding the persons in question from criminal responsibility in conformity with Articles 17(2)(a) and 20(3)(a) or alternatively that the processes are implemented in a way that, given the circumstances, are incompatible with the intention of subjecting the persons to the action of justice, in accordance with the provisions in Articles 17(2)(c) and 20(3)(b).40

In its judgment, the Constitutional Court of Colombia mentioned the two letters the Chief Prosecutor of the ICC had previously sent regarding its possible intervention. While the Constitutional Court did uphold the overall constitutionality of the LFP, the opinion implies that the ICC’s threat of intervention played a role in one notable clarification of the amendment. In its conclusion, the Constitutional Court laid out nine parameters for the implementation of the LFP into legislation. One of the parameters explicitly prohibits a total suspension of sentences for those most responsible for crimes against humanity, war crimes, and genocide.41 In addition, the amended LFP gave the exclusive power of prioritizing cases to the Fiscalía General de la Nación (Attorney General) of Colombia, instead of Congress. This shift in authority helped strengthen the judicial system by keeping the decision of crime prioritization away from the more politicized Congress.42 This clarification in the revised LFP that prohibited suspension of sentences for those most responsible for crimes against humanity and war crimes and the grant of exclusive power to the Fiscalía General de la Nación suggest that the ICC again contributed to positive complementarity in Colombia’s transitional justice process.

Final Accord for the End of the Conflict and the Construction of a Stable and Lasting Peace

On November 24, 2016, the Government of Colombia and the FARC-EC signed the Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera (“The Peace Accord”), marking a momentous step towards ending the prolonged Colombian conflict.43 The Peace Accord, which has been under negotiation for the past four years, was initially rejected by the narrowest of margins on October 2, 2016 in a national plebiscite that dashed the hopes of a long-lasting peace for Colombia. Subsequently, the Government of Colombia and the FARC-EC rejoined to modify the agreement. Finally, in November 2016, the new agreement was sent through Congress and approved. The final Accord sets out six key points of agreement between the Government of Colombia and the FARC-EC. Specifically, these are:44

1. the end of the conflict with the FARC-EC,
2. justice for the victims,
3. solution to the illegal drug problem,
4. better opportunities for rural development,
5. open democracy and more participation, and
6. implementation, verification, and endorsement.

The peace process that led to the signing of The Peace Accord, which started on August 26, 2012 in Havana, was made possible by the passage of the LFP. Although there is no available information to indicate that the Government of Colombia and the FARC-EC discussed the possibility of an ICC intervention in their negotiation process (most conversations were confidential), there is strong evidence that the specter of an ICC investigation was influential in this process. In particular, the text of The Peace Accord makes specific reference to the Rome Statute. In the preamble, The Peace Accord states both parties’ adherence to the mandates of the Rome Statute during the negotiation and drafting process.45 Later, in the section that discusses the scope and limits of the amnesty provisions, The Peace Accord states:

There shall be no amnesty or pardon or equivalent benefits for crimes against humanity, genocide, serious war crimes—that is, every violation of International Human Rights committed systematically—the taking of hostages or other serious deprivation of liberty, torture, extrajudicial killings, enforced disappearances, rape and other forms of sexual violence, child abduction, forced displacement, in addition to the recruitment of children, all in accordance with that established in the Rome Statute.46

All of this taken together, reflects the parties’ shared desire to abide by the mandates of the Rome Statute, thus preventing an intervention by the ICC.

In her statement on the conclusion of the peace negotiations in Colombia, the Chief Prosecutor of the OTP expressed her commendations towards the Government of Colombia, the FARC-EC, and the people of Colombia for this historic achievement. In particular, the Prosecutor conveyed her satisfaction that the final text of The Peace Accord expressly prohibits amnesties or pardons for crimes against humanity and war crimes under the Rome Statute.47,48 This stamp of approval bodes well for a future of peace in Colombia and is another clear example of the Court’s catalyzing of positive complementarity.

Positive Complementarity with Regard to Sexual Crimes

Sexual and Gender-Based Crimes

While it is clear that the ICC can and does play a vital role in catalyzing domestic action and progress in the overall emergence and development of the Colombian transitional justice process, there is also strong evidence that the Court catalyzes positive complementarity with regard to the prosecutions of particular crimes. Specifically, the ICC has stimulated the prioritization of investigations and proceedings against sexual and gender-based crimes (“SGBC”) in Colombia. With a particular focus on the developments in SGBC prosecutions in Colombia, this section will explore how the ICC has contributed to an increase in complementarity.

SGBC in Colombia

During the bloody Colombian conflict, there have been an indeterminate number of SGBC committed, leaving thousands of victims without recourse. The available data on the total number of SGBC during the Colombian conflict is largely varied. Acknowledging the inherent difficulties in determining the exact number of victims, such as underreporting by victims, the Centro Nacional de Memoria Histórica in its comprehensive report found there to be 1,754 victims of sexual violence from 1985 to 2012.49 On the other hand, in its 2012 Interim Report, the OTP says that at least 33,960 women in Colombia have been victims from 2001–2009. It lists some of the most prevalent SGBC, including rape, sexual mutilation, forced prostitution, sexual slavery, forced pregnancy, and forced abortion.50 While the exact number of victims is unclear, what is apparent is the widespread epidemic of sexual violence that has occurred during the Colombian conflict. Under Article 7 of the Rome Statute, crimes against humanity include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.51 Similarly, Article 8 lists as war crimes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.52

Reform and Development of SGBC Prosecutions

Although the ICC has been monitoring the situation in Colombia since it opened its preliminary examination in 2004, it was not until 2012 that the OTP began a proactive strategy of encouraging domestic prosecutions of SGBC in Colombia. Highlighting that as of May 2012 there had only been four individuals convicted of rape and other SGBC, the OTP stated that “the level of prosecutorial and judicial activity pertaining to the commission of rape and other forms of sexual violence appears disproportionate to the scale of the phenomenon, the devastating consequences of the crimes and the number of victims.”53 In concluding its 2012 report, the OTP listed five new areas of focus, one of them being the proceedings related to sexual crimes.54

Since setting the proceedings of sexual crimes as one of its key areas of focus, the OTP has engaged in a positive approach to complementarity with the Colombian government. In 2013, the OTP sent a delegation to Colombia to meet with Colombian authorities, international organizations, and civil society organizations. These talks and discussions were aimed at addressing the five key areas of focus from the 2012 Interim Report.55 Subsequently, in 2013, a draft bill regarding sexual violence made its way through the Colombian Congress. On June 18, 2014, Law 1719 was enacted, marking a significant step the development of SGBC proceedings. Specifically, Law 1719 recognizes that sexual violence can constitute a crime against humanity, war crimes, or genocide, and established that there is no statute of limitations for such crimes. The law also codified the crimes of enforced sterilization, forced pregnancy, and forced nudity into the Colombian Penal Code—crimes falling under the jurisdiction of the ICC.56

Following the implementation of Law 1719, the ICC began to see progress made in the fight against SGBC in Colombia. In a 2014 macro-judgment from the Bogotá JPL tribunal, paramilitary leader Salvatore Mancuso and other mid-level commanders were convicted for 175 charges of SGBC, including rape, sexual slavery, enforced prostitution, enforced sterilization, enforced abortion, and sexual violence which affected 2,906 victims.57 Similarly, in February 2016, Ramón María Isaza Arango, former commander of the AUC and a notorious drug trafficker, was convicted of twelve counts of rape, four counts of sexual violent acts, two counts of enforced prostitution or sexual slavery, and one count of forced abortion.58 The OTP also notes that the Sub-Directorate of Public Policies and Corporación SISMA Mujer finalized a protocol in 2015 for the investigation and prosecution of SGBC.59

Taken together, this back-and-forth engagement between the OTP and the Government of Colombia seems to have increased the amount of domestic investigations and proceedings of SGBC in Colombia, suggesting the ICC has contributed to positive complementarity. Amrita Kapur, Senior Associate of the Gender Justice Program at International Center for Transitional Justice, notes that these positive changes in SGBC reform are in part, the result of Colombia’s altering of practices and policies so as to avoid an ICC investigation.60 At the same time, she posits that the Rome Statute standards along with the jurisprudence of the Court and the OTP identification of focus areas help to “empower norm entrepreneurs such as advocates, prosecutors and judges to incorporate international conceptions of SGBV61 into national practice.”62 In this context, though the OTP continues to advocate for more comprehensive progress in SGBC proceedings, there is a strong inference that the presence and participation of the ICC have been a catalytic force in positive complementarity.

Counterfactual Analysis

The available data on the impact of the ICC on Colombia during the preliminary examination stage strongly suggests that the ICC has catalyzed positive complementarity. While this finding is significant, it should be noted that the ICC is just one of many actors operating within the complex political-legal realities of a country transitioning out of conflict. As such, this section will attempt to isolate the effects of the ICC on Colombia by implementing a counterfactual analysis. Stated another way, this analysis will try to determine how the situation in Colombia would have unfolded without the intervention of the ICC.

Without Colombia’s ratification of the Rome Statute in 2002, and the ICC’s subsequent opening of a preliminary examination in 2004, the situation in Colombia would have undoubtedly been different. Faced with international pressure from other countries and organizations, such as the Inter-American Court of Human Rights, it is likely that Colombia would still have made progress in peace and justice, possibly to the same extent as it has now reached. However, without the intervention of the ICC, this progress would likely have taken a lot longer, resulting in thousands of more victims and an even more protracted human rights crisis in Colombia. At every step of the process, the ICC has exerted pressure to reform and conform to international human rights standards. Although a preliminary examination that has so far lasted over twelve years may seem like a long time, it is almost certain that the presence of the ICC sped up the peace and justice process in Colombia.

More specifically, without the ratification of the Rome Statute and intervention of the ICC, the implementation of justice may have suffered at the cost of peace. For a country that has experienced more than a half-century of internal armed conflict, peace at any cost could have seemed tempting. During the drafting and implementation of the JPL and the LFP, the drafters would likely have relied heavily on amnesty provisions. As a result of the ICC’s involvement in Colombia, the OTP advised and even threatened the Government of Colombia, warning that language of amnesty in the legislation could trigger a full-scale investigation by the ICC. Fearing an ICC investigation, Colombia continued to make sure it did not grant amnesty for those most responsible for the most serious international crimes.

Lastly, without the ICC, the transitional process in Colombia would have likely suffered with regard to legitimacy and mobilization. The implementation of the Rome Statute and the opening of a preliminary examination by the ICC likely gave domestic actors in Colombia confidence and hope in internalizing and advocating for international human rights standards and laws. Because the ICC was seen as the guarantor of human rights, civil organizations and NGO’s were emboldened to mobilize during the transitional justice process. Without this legitimacy of human rights and mobilization, the transitional justice process would likely have dragged on for many more years.

Key Findings/Conclusion

Measuring the positive complementarity catalyzed by the ICC is an effective way to evaluate the Court’s overall success. Applying this measurement to the situation in Colombia, it is apparent that the ICC has contributed to positive complementarity. During the entire preliminary examination, the OTP has remained in close contact with the Government of Colombia and other domestic actors. Though the examination has continued for over twelve years, the ICC has skillfully maneuvered through the complexities of the transitional process in Colombia, intervening when necessary and encouraging the Government of Colombia to continue in its transitional justice efforts. While the ICC has been able to catalyze positive complementarity by actively engaging with Colombia, the greatest catalytic force has been derived from the mere presence of the ICC and the threat of an ICC investigation. Under the shadow of the ICC, Colombia has taken huge steps towards both justice and peace. As The Peace Accord was just approved by the Constitutional Court to be implemented on a fast-track, the world watches in anticipation that justice will be done and long-lasting peace will be achieved in Colombia. Perhaps, as a result of positive complementarity, the ICC will soon end its preliminary examination in Colombia. That would truly be a success for the Court.

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

1. 1.

   See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5, available online. ↩

2. 2.

   Id. art. 17. ↩

3. 3.

   See About, ICC, available online (last visited Jul. 8, 2017). ↩

4. 4.

   Office of the Prosecutor, International Criminal Court, The Principle of Complementarity In Practice (2003), available online. ↩

5. 5.

   See Office of the Prosecutor, International Criminal Court, Report on Prosecutorial Strategy (Sep. 14, 2006), available online.

   (stating that positive complementarity is “that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”) ↩

6. 6.

   See Office of the Prosecutor, International Criminal Court, Paper on Some Policy Issues Before the Office of the Prosecutor (Sep. 2003), available online. ↩

7. 7.

   See Report on Prosecutorial Strategy, supra note 5. ↩

8. 8.

   See Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (Nov. 16, 2015), available online; Office of the Prosecutor, International Criminal Court, Strategic Plan June 2012–2015 (Oct. 11, 2013), available online; Office of the Prosecutor, International Criminal Court, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010), available online; Report on Prosecutorial Strategy, supra note 5. ↩

9. 9.

   Prosecutorial Strategy 2009–2012, supra note 8. ↩

10. 10.

    Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2016 (Nov. 14, 2016), [hereinafter Preliminary Exam 2016], available online. ↩

11. 11.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations (Nov. 2013), available online. ↩

12. 12.

    According to the Rome Statute, issues of admissibility are determined by a State’s unwillingness or inability to genuinely carry out investigations or prosecutions. See Rome Statute, supra note 1, art. 17. For states that are unable to genuinely carry out investigations or prosecutions, it is less likely that an ICC intervention will lead to positive complementarity. ↩

13. 13.

    See Centro Nacional de Memoria Histórica, ¡BASTA YA! Colombia: Memorias de Guerra y Dignidad (Aug. 2013) [hereinafter Memorias de Guerra y Dignidad], available online. ↩

14. 14.

    Because the paramilitaries were for the most part demobilized by 2006, the allegations of war crimes do not concern them. ↩

15. 15.

    See Preliminary Exam 2016, supra note 10. ↩

16. 16.

    Nelson Camilo Sánchez León, Acceptance of International Criminal Justice: Country Study on Colombia (Int’l Nuremberg Principles Acad. 2016), available online. ↩

17. 17.

    See Preliminary Exam 2016, supra note 10. ↩

18. 18.

    Fatou Bensouda, Reflections from the International Criminal Court Prosecutor, 45 Case W. Res. J. Int’l L. 505, 507 (2012), available online. ↩

19. 19.

    L. 975/05, julio 25, 2005, Diario Oficial (Colom.). ↩

20. 20.

    See Colombia: The Justice and Peace Law, The Center for Justice & Accountability, available online (last visited Jul. 8, 2017). ↩

21. 21.

    See International Criminal Court, The Importance of Justice in Securing Peace (May 30, 2010), available online. ↩

22. 22.

    See Alejandro Chehtman, The ICC and its Normative Impact on Colombia’s Legal System, DOMAC (Oct. 16, 2011), available online. ↩

23. 23.

    Éadaoin O’Brien, Par Engstrom & David James, In the Shadow of the ICC: Colombia and International Criminal Justice (May 26, 2011) [hereinafter In the Shadow], available online. ↩

24. 24.

    See id. ↩

25. 25.

    Corte Constitucional [C.C.] [Constitutional Court], mayo 18, 2006, Sentencia C-370/06 (translated into English), Gaceta de la Corte Constitucional [G.C.C.] (Colom.). ↩

26. 26.

    See Colombia: The Justice and Peace Law, supra note 20. ↩

27. 27.

    See Corte Constitucional, Constitucional Claim Decision C-370 de 2006, available online. ↩

28. 28.

    See Corte Constitucional, supra note 25. ↩

29. 29.

    See In the Shadow, supra note 23. ↩

30. 30.

    See Sentencias Ley de Justicia y Paz, Dirección de Fiscalía Nacional Especializada de Justicia Transicional, available online (last visited Jul. 10, 2017). ↩

31. 31.

    See Preliminary Exam 2016, supra note 10. ↩

32. 32.

    See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2015 (Nov. 12, 2015) [hereinafter Preliminary Exam 2015], available online. ↩

33. 33.

    Office of the Prosecutor, International Criminal Court, Situation in Colombia Interim Report (Nov. 2012) [hereinafter Colombia Interim], available online. ↩

34. 34.

    See Carlos Bernal-Pulido, Transitional Justice within the Framework of a Permanent Constitution: The Case Study of the Legal Framework for Peace in Colombia, 3 CJICL 1136, 1140 (2014), HeinOnline paywall. ↩

35. 35.

    See Grace Boffey, Assessing Complementarity: The ICC and Human Rights Policy in Colombia (unpublished Ph.D. thesis, University of Western Australia) (2015), available online. ↩

36. 36.

    See id. ↩

37. 37.

    Graciela Rodriguez-Ferrand, Colombia: Congress Approves Framework Law for Peace, Global Legal Monitor, Jun. 25, 2012, available online. ↩

38. 38.

    See Colombia Interim, supra note 33. ↩

39. 39.

    See Corte Constitucional [C.C.] [Constitutional Court], agosto 28, 2013, Sentencia C-579/13 (translated into English), Gaceta de la Corte Constitucional [G.C.C.] (Colom.). ↩

40. 40.

    Id. § 3.16.1. ↩

41. 41.

    See id. § 9.9.8. ↩

42. 42.

    See Boffey, supra note 35. ↩

43. 43.

    See Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera (Nov. 24, 2016) [hereinafter Acuerdo Final], available online. ↩

44. 44.

    See Conozca Los Puntos del Acuerdo, Acuerdo de Paz, available online (last visited Jul. 15, 2017). ↩

45. 45.

    See Acuerdo Final, supra note 43. ↩

46. 46.

    See id. ↩

47. 47.

    See Office of the Prosecutor, International Criminal Court, Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia—People’s Army (Sep. 1, 2016), available online. ↩

48. 48.

    The Chief Prosecutor’s statement was directed towards The Peace Accord before it was renegotiated in October and November 2016. Changes made to The Peace Accord, which was approved on November 24, 2016, tightened up some of the provisions for members of the FARC-EC. This increased focus on justice is surely in line with the OTP’s strategy of positive complementarity. See Washington Office on Latin America, Key Changes to the New Peace Accord (Nov. 15, 2016), available online. ↩

49. 49.

    See Memorias de Guerra y Dignidad, supra note 13. ↩

50. 50.

    See Colombia Interim, supra note 33. ↩

51. 51.

    See Rome Statute, supra note 1, at art. 7. ↩

52. 52.

    See id. art. 8. ↩

53. 53.

    Colombia Interim, supra note 33. ↩

54. 54.

    See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2012 (Nov. 2012), available online. ↩

55. 55.

    See Press Release, ICC, ICC Office of the Prosecutor Concludes Visit to Colombia (Apr. 19, 2013), available online. ↩

56. 56.

    See Zainab Hawa Bangura, United Nations, Columbia: Historic New Law Offers Survivors of Sexual Violence Hope for Justice and Redress (Jun. 24, 2014), available online. ↩

57. 57.

    See Preliminary Exam 2015, supra note 32. ↩

58. 58.

    See Preliminary Exam 2016, supra note 10. ↩

59. 59.

    See Preliminary Exam 2015, supra note 32. ↩

60. 60.

    See Amrita Kapur, The Value of International-National Interactions and Norm Interpretations in Catalysing National Prosecutions of Sexual Violence, 6 Oñati Socio-Legal Series 62, 62–85 (2016), available online. ↩

61. 61.

    In her article, Kapur uses SGBV to stand for sexual and gender-based violence. This comment uses SGBC, the functional equivalent of SGBV. SGBC stands for sexual and gender-based crimes. ↩

62. 62.

    Kapur, supra note 60. ↩