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Comment on the Politics Question: “In what ways, and to what extent, is the International Criminal Court a political institution? In what ways have actors influenced or attempted to influence the ICC? Which ICC organs have been the targets of such efforts? Which actors, or groups of actors, have tried to influence the ICC? To what extent have those attempts succeeded?”

Constructive Politicization: The ICC’s Role in Colombia’s Peace Process

I. Introduction

The International Criminal Court (ICC), conceived under the Rome Statute to prosecute perpetrators responsible for the most serious crimes of international concern,1 is the first permanent international criminal tribunal. Committed to impartiality, it positions itself as an independent and neutral court.2 However, reliant on state cooperation for investigations, arrests, and law enforcement, it has been repeatedly exposed to accusations of politicization.

Understanding the reality of the ICC’s inherent structural limitations is crucial to maximizing its potential within these constraints. While accusations of politicization can have negative consequences—such as eroding member states’ respect for the ICC and undermining the perceived impartiality of its decisions—this comment focuses on the opportunities that the ICC’s inherent politicization can bring.3

Politics, as defined by the Cambridge Dictionary, refers to “the relationships within a group or organization that allow particular people to have power over others.”4 Politicization, therefore, is the act of “making something or someone political, or more involved in or conscious of political matters.”5 A legal authority acts “politically” when its exercise of authority is influenced by pressure from powerful actors, or when the consequences of its acts or omissions influence the relative power of competing external actors. In the context of the ICC, politicization refers to the actual or perceived influence of political agendas on the ICC’s operation.

This comment addresses the question of whether politicization, often seen as detrimental to justice, can serve as a tool to advance justice and peace and achieve judicially desired outcomes. Using the ICC’s engagement with Colombia during its peace process as a case study, I demonstrate how the ICC, despite allowing political influence in the process, achieved such an outcome. Specifically, I answer the question: “How has the ICC’s engagement with Colombia during its peace process demonstrated the constructive potential of politicization in international justice?”

To prove this, in Part II, I examine the ICC’s legal framework, focusing on the principle of complementarity and the concept of interests of justice.6 In Part III, I analyze the Colombian case study to explore how the ICC supported Colombia’s peace process through constructive engagement with political realities, emphasizing the balance between justice and peace. Finally, in Part IV, I reflect on the broader implications of constructive politicization, discussing its potential application and challenges in other contexts.

This comment focuses on the Colombian case to show how politicization, rather than undermining the ICC’s legitimacy, can advance global justice.

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II. Legal Foundation

The ICC operates under the Rome Statute, which defines its structure, jurisdiction, and mandate. Article 1 states that the Court “shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern […] and shall be complementary to national criminal jurisdictions.”7 The Preamble to the Rome Statute further affirms this collective commitment by the States Parties to the Rome Statute to establish an “independent permanent International Criminal Court in relationship with the United Nations system.”8 It follows from its framework that the ICC positions itself as a neutral and independent organ, free from political influences. Official statements from its Prosecutors underscore this commitment to impartiality. For instance, former ICC Prosecutor Fatou Bensouda emphasized the Court’s independence, stating “My mandate as Prosecutor is nonetheless clear: to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality.”9

However, this ideal is challenged by the Court’s surrounding legal framework. Articles 86–89 state that the ICC relies on state cooperation for conducting investigations, executing arrests, and enforcing sentences.10 This structural dependence makes the Court susceptible to political influence.11 Member states can exert significant pressure over the ICC to advance their political agenda by selectively withholding cooperation or imposing conditions on their support. This inherent vulnerability is also reflected in Article 53 of the Rome Statute12 through the application of the “interests of justice” and the principle of complementarity. These mechanisms leave room for significant prosecutorial discretion and external political pressure on the prosecutorial decision.

In the following sections, I examine how the “interests of justice” and the principle of complementarity operate within the ICC’s legal framework, highlighting their role in both reinforcing and challenging the Court’s independence.

A. The “Interests of Justice”

Article 53 of the Rome Statute outlines the criteria for the initiation of an investigation by the ICC Prosecutor. Following Article 53(1), when deciding whether to initiate an investigation, the Prosecutor shall consider whether

  1. there is reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

  2. the case is or would be admissible under Article 17; and

  3. taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.13

While the first two requirements—jurisdiction and admissibility—are positive requirements, Article 53(2) defines interests of justice as a negative requirement.14 The Prosecutor is not required to establish that an investigation or prosecution is in the interests of justice. Instead, he shall proceed with the investigation unless specific circumstances provide substantial reasons to believe it is not in the interests of justice to do so.15

The term “interests of justice” is inherently broad and subject to interpretation, allowing significant discretion on the part of the Prosecutor. In its Policy Paper on the Interests of Justice, the ICC outlines the OTP’s interpretation of “interests of justice”, asserting that a prosecution is not in the interests of justice when considering all relevant circumstances, such as the gravity of the crime, the interests of the victims, the age or infirmity of the alleged perpetrator, and their specific role in the crime.16 This legal term allows the Prosecutor to exercise discretion in deciding whether to open an investigation, introducing the potential for political influence,17 and leaving room for a biased perception of the Court.

To address this issue, the OTP has repeatedly emphasized the non-political conception of the legal term “interests of justice”. In fact, the Prosecutor has made clear that the interests of justice differ from the interests of peace, meaning that the Prosecutor cannot refer to the interests of justice for political reasons. For this, the ICC created a balancing test.18 Following this balancing test, a prosecution is considered not to be in the interests of justice when it is determined that proceeding with the case would undermine these principles or fail to align with the ICC’s mandate. Considerations to make include:

  1. the exceptionality of ICC activity, which operates only under the principle of complementarity when national systems are unwilling or unable to act;

  2. a presumption in favor of the investigation, reflecting the ICC’s mandate to pursue accountability; and

  3. the overarching objectives of the Rome Statute, such as preventing crimes and ensuring impunity is addressed.

Explicit criteria outlined by the Office of the Prosecutor (OTP) include the crime’s gravity, the victims’ interests, the personal circumstances of the accused, and the potential application of alternative justice mechanisms or peace processes.19

Despite this distinction, it is worth considering whether the interests of justice and peace might sometimes align. At first glance, they appear to be in tension: while the interests of justice seek to uphold legal accountability, the interests of peace prioritize sustainable societal stability.20 However, sustainable peace often requires justice. So, when accountability and reconciliation mechanisms contribute to the long-term stability of a society, the interests of justice can align with the interests of peace. In those cases, while peace considerations may exceed the OTP’s legal mandate, they can indirectly support the interests of justice.

B. The Complementarity Principle

The ICC operates on complementarity, a principle that acknowledges state sovereignty and positions the ICC as the court of last resort.21 Beyond respecting sovereignty, the principle of complementarity recognizes the effectiveness of domestic judicial proceedings. Local authorities conducting investigations and prosecutions are often better positioned to conduct investigations and prosecutions due to their proximity to the crime scenes, victims, witnesses, and other key aspects of the case.

The complementarity principle is implemented by the ICC through Articles 17 and 53 of the Rome Statute, which provides that:

[A] case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it. [It] allows for ICC jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith. 22, 23

To determine the unwillingness of the state in a case, under Article 17(2) of the Rome Statute, the ICC can consider, for instance, if the proceedings were undertaken for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, or if there has been an unjustified delay in the proceedings. To determine inability, under Article 17(3) of the Rome Statute, the Court shall consider situations of total or substantial collapse of the national judicial system. This framework means that the ICC has jurisdiction over a case only when the national systems fail and has to “refrain from taking the place of states that are already adequately investigating and prosecuting crimes within the jurisdiction.”24

The concept of complementarity has expanded to include an additional role for the Court: positive complementarity. Former ICC Prosecutor Luis Moreno-Ocampo highlighted this in 2003, stating:

The effectiveness of the ICC should not be measured only by the number of cases that reach the Court. On the contrary, the absence of trials before the ICC, as a consequence of the regular functioning of national institutions, would be a major success.25

III. The Colombian Case Study

Given that the ICC, by its very nature, is connected to political dynamics, how can this structural challenge be transformed into an opportunity to advance justice? Is all politicization inherently detrimental to justice, or can it serve as a tool to achieve judicially desirable outcomes? In this part, I explore these questions. The goal is not to reshape the ICC’s structure but to demonstrate how, despite its vulnerabilities to politicization, the ICC can still positively impact global justice. In other words, the political involvement of the Court need not undermine its legitimacy.

The Colombian case serves as an ideal lens for this exploration because it highlights the interaction between national sovereignty and the Rome Statute’s mandate to prosecute international crimes. Colombia’s approach to transitional justice is one of the most comprehensive in modern history. It addresses the aftermath of a 60-year armed conflict involving multiple actors, including the state, paramilitaries, and guerrilla groups like the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (Revolutionary Armed Forces of Colombia or FARC). The ICC’s involvement in the successful conclusion of peace processes makes Colombia a case worth analyzing.

Constructive politicization refers to the productive alignment of the ICC’s legal mandate with political considerations to achieve judicially desirable outcomes, such as accountability, victim reparations, and long-term peace.26 The concept aligns with theories of normative legitimacy, which argue that international institutions or organizations gain legitimacy by adapting to the specific political and cultural contexts in which they operate.27

This case study provides a roadmap for utilizing the ICC’s inherent politicization to address transitional justice challenges. In Section III(A), I first give a concise overview of Colombia’s armed conflict, setting the context for the ICC’s involvement. In Section III(B), I then present a chronological account of the ICC’s preliminary examination in Colombia and conclude with an in-depth analysis of constructive politicization in practice in Section III(C).

A. Background on Colombia’s Armed Conflict

Colombia endured over six decades of internal armed conflict involving guerrilla forces, paramilitary groups, and state agents. Each of these stakeholders had a different political agenda. The long-lasting and widespread violence profoundly affected the civilian population and included military actions, attacks on villages, selective assassinations, massacres, terrorist attacks, kidnappings, forced disappearances, sexual violence, damage to civilian property, recruitment and use of children and adolescents, etc.28 The conflict claimed approximately 262,197 lives, with civilians comprising about 82% of the victims.29 Of the total deaths recorded, 94,754 are attributed to paramilitary groups, 35,683 to guerrilla forces, and 9,804 to state agents.30 The distribution intensity of the violence varied over time, peaking between 1996 and 2004, with more than half of the total deaths occurring during these eight years.

After years of negotiations, the Colombian government and the FARC signed a peace deal on November 24, 2016, which was ratified on November 29–30, 2016. This agreement marked the end of the conflict and introduced a comprehensive framework for transitional justice. A key aspect of this agreement was chapter 5 on victims,31 which introduced the Jurisdicción Especial para la Paz (JEP).

The JEP is the judicial component of Colombia’s Comprehensive System of Truth, Justice, Reparation, and Non-Repetition, established by the 2016 Peace Agreement between the Colombian government and the FARC and operating since March 2017.32 Its mission consists of administering transitional justice by investigating and adjudicating crimes committed during the armed conflict prior to December 1, 2016,33 with key objectives that include providing justice for victims by holding perpetrators accountable for their actions during the conflict, uncovering the truth, facilitating reparative measures for victims and promoting restorative justice, combating impunity, and preventing future occurrences of such conflicts.34

The JEP’s creation demonstrates the inherently political nature of transitional justice mechanisms because it balances the tension between “grant(ing) amnesties to those who committed political and politically related crimes,35 and impos(ing) sanctions on those responsible for atrocious crimes.”36 It reflects the common effort between Colombian authorities and FARC leaders to uphold accountability through justice mechanisms without jeopardizing the fragile peace process. The ICC’s involvement in Colombia further illustrates this.

B. ICC’s Preliminary Examination in Colombia

The ICC’s preliminary examination in Colombia, its longest-running investigation, exemplifies the interplay between justice and political realities.37 Through this process, the OTP played a pivotal role in monitoring Colombia’s compliance with international standards of justice and accountability. The preliminary examination reflects the complexity and significance of the country’s armed conflict and peace process.

Colombia’s accession to the Rome Statute in August 2002 granted the ICC jurisdiction over crimes committed from November 1, 2002 onwards. However, upon ratification of the Rome Statute, Colombia invoked Article 124,38 allowing the country to suspend ICC jurisdiction over war crimes for seven years after the entry into force of the Rome Statute for Colombia.39 This strategic decision incentivized the armed groups to engage in dialogue by offering assurances regarding accountability measures and underscores the inherent political considerations in Colombia’s transitional justice process.

In June 2004, the OTP, led by Luis Moreno-Ocampo, officially started a preliminary examination process in Colombia to assess whether Colombia’s judicial system addressed these crimes adequately.40 The preliminary examination focused on alleged crimes against humanity and war crimes, including murder, forced displacement, torture, and sexual violence, committed by state agents, paramilitary groups, and guerrilla forces.41 These findings put pressure on the Colombian authorities to address those issues through national proceedings to avoid opening a formal investigation.

The ICC’s annual reports on Colombia illustrate the evolution of its involvement and influence and highlight its dual role as a watchdog and a partner.42 For example, the 2013 Report first acknowledged the peace talks between the Colombian government and the FARC while documenting crimes by all parties to the conflict, including extrajudicial executions (“false positives”) by state forces. 43, 44 These findings significantly increased pressure on the Colombian authorities to act and implement national mechanisms like the JEP to address impunity and align their efforts with international standards. The 2015 Report focused on potential gaps in prosecuting military leaders,45 while the 2016 Report detailed the JEP’s structure, jurisdiction, and procedures, and emphasized the need to address “command responsibility” to ensure genuine accountability for grave crimes.46 The 2017 Report continued to identify significant deficiencies in prosecuting military commanders linked to extrajudicial executions.47

By 2018, the ICC’s influence became evident: the JEP prioritized extrajudicial executions, aligning with the OTP’s findings.48 This significant step denotes the impact of the OTP in shaping national justice mechanisms.49 In the 2018 Report, the ICC reported progress with commanders voluntarily appearing before the JEP.50 The 2019 Report showcased further development, documenting thousands of pledges by FARC and Armed Forces members to comply with the JEP.51 Finally, the 2020 Report reflected the JEP’s operational maturity, highlighting meaningful national efforts to address impunity. 52, 53

This approach reflects the concept of constructive politicization. The ICC used its preliminary examination to influence and strengthen Colombia’s national mechanisms while respecting state sovereignty.

In Bogota, on October 28, 2021, ICC Prosecutor Karim Khan noted: “the demonstrated ability and willingness of Colombia to date to genuinely administer justice related to crimes under the jurisdiction of the International Criminal Court,”54 and therefore considering that the national proceedings about these crimes were genuine and fulfilled the principle of complementarity, concluded a Cooperation Agreement with the Government of Colombia and closed the preliminary examination. 55, 56 The closure of the preliminary examination marked a significant milestone in the ICC’s use of positive complementarity. This oversight, however, was not free from political implications.57

C. Constructive Politicization in Action

Although other stakeholders—such as the Colombian government, the FARC, the Inter-American Court of Human Rights, and the civil society—also played a prominent role in the process, this comment focuses on the role of the ICC. The ICC exercised its authority and positively impacted Colombia’s transitional justice process by shaping the legal and political framework surrounding accountability and peacebuilding. Its involvement highlights the relationship between the interests of justice and the interests of peace and the application of the principle of complementarity in a decision that reflects both legal and political considerations.

The ICC’s primary goal was to respect national judicial processes and support the framework surrounding Colombia’s peace process. Thus, its role was both difficult and important. It sought to balance accountability through national mechanisms while maintaining the political sensitivity required to avoid jeopardizing the peace process.

A key area of ICC involvement was the principle of complementarity, particularly as it intersected with Colombia’s narrower definition of command responsibility under Legislative Act 01 of 2017.58 Under Provisional Article 24 of the Legislative Act 01 of 2017, commanders are only held responsible if they had effective control over their subordinates, actively participated in planning, executing, or covering up crimes, and there was direct knowledge of the crimes being committed. In contrast, under Article 28 of the Rome Statute, command responsibility applies to both military and civilian superiors. It establishes accountability if they knew or should have known that subordinates were committing or about to commit crimes and they failed to take all necessary and reasonable measures to prevent the crimes or punish those responsible. From these definitions, command responsibility under Colombia’s Legislative Act 01 of 2017 has narrower criteria than the Rome Statute’s definition because Colombian law requires direct involvement and explicit knowledge.

The ICC submitted an amicus curiae brief to the Colombian Constitutional Court59 during its review of the laws governing the Legislative Act 01 of 2017, where it expressed concern over the potential for impunity in Colombia’s definition of command responsibility.60 In particular, the ICC urged a broader definition of command responsibility to ensure accountability for military leaders and FARC members.61 The Colombian Constitutional Court upheld Colombia’s narrower definition of command responsibility as stated in Provisional Article 24 of the Legislative Act 01 of 2017. 62, 63

Despite acknowledging that the country’s definition of command responsibility left potential for impunity, the ICC’s decision to close its preliminary examination of Colombia can be understood through complementarity. Under Article 88 of the Rome Statute,64 states have no express obligation to replicate its provisions word by word in their domestic frameworks. So, by prioritizing national accountability efforts over direct intervention, the ICC recognized the genuine progress made by the JEP in addressing war crimes and crimes against humanity.

Indeed, the JEP has taken significant steps in this regard: the decisions in 2021 and 2022 underscore the effectiveness of the domestic mechanisms within Colombia, where members of the Armed Forces were charged with war crimes and crimes against humanity.65 So, while Colombia’s legal framework differed from international standards, it demonstrated genuine efforts to prosecute grave crimes.

Had the ICC decided to open a formal investigation in Colombia, it could have posed significant threats to the peace process. Such a move might have jeopardized Colombia’s commitment to the Rome Statute, potentially leading to its withdrawal, and it could have destabilized the peace agreement. Historically, Colombia’s peace negotiations had failed multiple times.66 In that sense, the ICC’s decision to refrain from opening a formal investigation underscores its recognition of the political realities shaping Colombia’s peace process.

By closing the preliminary examination, the ICC emphasized the importance of complementarity as a bridge between peace and justice, ensuring that the JEP continued addressing accountability.67 The ICC also proved a flexible application of complementarity, focusing on practical results rather than strict adherence to the Rome Statute’s text. This decision demonstrates the idea of constructive politicization: the ICC adapted its actions to the political context, aligning the interests of justice with the interests of peace.

It can be argued that the OTP’s decision to close the preliminary examination prioritized peace over immediate international prosecution. However, this decision was based on the Rome Statute and therefore grounded on legal principles. Furthermore, the outcome was judicially desired, since the ICC made sure that Colombia had accountability, in particular, through the JEP. The JEP demonstrated progress in holding accountable those most responsible for war crimes and crimes against humanity, mainly through its decisions in 2021 and 2022.68

In transitional justice contexts, such as for Colombia, justice cannot be isolated, nor can it exist without pursuing peace. This decision demonstrates that peace and justice are not mutually exclusive, but rather complement each other. Similarly, the ICC’s acceptance of Colombia’s transitional justice framework, despite the possibility of impunity up to a certain degree, reflects a broader understanding of justice: justice must be achieved in ways that support, rather than hinder, long-term stability and reconciliation.

While criticisms of impunity persist, the Colombian experience shows that constructive politicization enables collaboration and accountability. In this regard, the ICC’s decision to close its preliminary examination of Colombia is a nuanced example of how the principle of complementarity, the interests of justice, and the interests of peace interact in a transitional justice context. By closing the preliminary examination, the ICC emphasized the potential of complementarity to act as a bridge between peace and justice.

IV. Broader Implications: Challenges and Opportunities for Constructive Politicization

The Colombian case highlights unique factors that enabled the ICC to engage in constructive politicization. A unique constellation of inter-institutional interactions shaped the prosecutorial strategy in Colombia.69

These aspects provide valuable lessons for other international criminal cases and support the ICC’s stated goal of using the Colombian experience as a model “that may be replicated in other situations around the world.”70 The longstanding nature of the conflict was also a unique characteristic that contributed significantly to Colombia’s active engagement with the ICC’s assessment process. All stakeholders in the peace process, including civilians, the government and armed groups, demonstrated an interest in resolving the conflict on a national level, thus paving the way for an environment allowing transitional justice.71 The situation in Colombia also benefited from preexisting norms and institutions regarding human rights, including a well-established judicial system capable of undertaking complex prosecutions.72

The Inter-American Court of Human Rights (IACHR) also played a significant role in shaping this environment.73 The IACHR, having the authority to overturn the peace agreement if found inadequate to hold perpetrators accountable, ensured that transitional justice mechanisms like the JEP, met international accountability standards.74 This interplay between the ICC and the Inter-American human rights regime notably influenced the preliminary examination. This demonstrates how regional human rights bodies can effectively complement the ICC’s work under the principle of complementarity.75

Despite its success in Colombia, the principle of complementarity presents several challenges. For instance, the ICC’s reliance on complementarity raises questions about its potential to tolerate impunity. Critics argue that the ICC’s willingness to accept deviations from the Rome Statute’s standards, such as Colombia’s narrower definition of command responsibility, could set a precedent for weaker accountability in other states.76 This balancing act—avoiding impunity while respecting national sovereignty—remains one of the ICC’s most significant challenges.

The ICC’s approach in Colombia demonstrates how constructive engagement with national systems can facilitate the development of robust accountability mechanisms. Similar processes could be replicated in narrow collaboration with other regional human rights systems, such as the European Court of Human Rights or the African Court on Human and Peoples’ Rights. However, replication of this model depends on strong national institutions and a political commitment to justice. Countries with weak judicial systems and a lack of established norms and institutions related to human rights may face more significant challenges in achieving this outcome.77

The Colombian peace process is part of the transitional justice mechanism and reflects the inherent tension between accountability and reconciliation. The ICC’s decision to conclude the preliminary examination rather than open a formal investigation reflected the recognition that a certain degree of lack of accountability was preferable to disrupting fragile peace processes.78

While the decision underpinned the peace process, it was based on political considerations, though founded on legal principles. This decision highlights the nuanced nature of constructive politicization: the ICC must consider political realities without compromising its legal mandate. By carefully balancing the interests of justice and peace, the ICC can promote accountability while supporting sustainable peace efforts in transitional justice contexts.

V. Conclusion

The Colombian case exemplifies how the ICC can use its structural frameworks, such as the principles of complementarity and the “interests of justice” to integrate peace and justice in post-conflict societies. By concluding its preliminary examination without starting a formal investigation, which could potentially undermine Colombia’s ongoing peace process, the ICC has demonstrated a nuanced and pragmatic approach to the long-awaited and fragile peace process. This decision reflects a practical application of the principle of complementarity, guided by the dual imperatives of justice and peace. The ICC should seek to replicate such successes, using its inherent political dynamics to advance global justice.

However, while constructive politicization can advance justice, it poses risks, such as impunity, particularly when national mechanisms deviate from international standards, as seen in Colombia’s narrower definition of command responsibility. The ICC should create distinct guidelines outlining when and how political factors may influence its decisions to reduce these risks.

In summary, the Colombian situation demonstrates the ICC’s ability to address its structural challenges and effectively use constructive politicization to reach favorable judicial results. Nonetheless, attaining comparable results necessitates a careful consideration of each case’s specific circumstances and the conditions within each member state. Ultimately, the ICC’s efforts in Colombia highlight an essential lesson: the interests of justice and peace are not inherently opposing but should be aligned to realize significant and lasting outcomes in transitional justice contexts.

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

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    About the Court, ICC, available online (last visited Dec. 5, 2024). ↩

  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, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, Rome Statute], Art. 1, available online. ↩

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    William A. Schabas, An Introduction to the International Criminal Court 154 (6th ed. 2020), paywall. ↩

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    Politics, Cambridge Dict., available online (last visited Dec. 3, 2024). ↩

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    Id. Art. 1. ↩

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    Id. at Preamble. ↩

  9. 9.

    Fatou Bensouda, ICC Prosecutor, Statement on ICC’s Jurisdiction Over Palestine (Sep. 2, 2014), available online. ↩

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    Rome Statute, supra note 2, at Arts. 86–89. ↩

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    Rome Statute, supra note 2, at Art. 53. ↩

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    Id. Art. 53(2). ↩

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    Natalia Silva Santaularia, Colombia and the International Criminal Court: A Case of Positive Complementarity in Transitional Justice, Distributive Justice, and Transformative Constitutionalism 443 (David Bilchitz & Raisa Cachalia eds., Dec. 21, 2023), paywall. ↩

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    Id. at 454. ↩

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    Santaularia, supra note 36, at 448. ↩

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    Report on Preliminary Examination Activities 2017, supra note 47. ↩

  64. 64.

    Rome Statute, supra note 2, at Art. 88. ↩

  65. 65.

    Jurisdicción Especial Para La Paz [Special Jurisdiction for Peace], Auto 033 de 2021, Muertes ilegítimamente presentadas como bajas en combate por agentes del Estado [Deaths illegitimately presented as combat casualties by state agents] (Feb. 12, 2021) (Colom.), available online; Jurisdicción Especial Para La Paz [Special Jurisdiction for Peace], Auto 125 de 2021, Asesinatos y desapariciones forzadas presentados como bajas en combate por agentes del Estado—Subcaso Norte de Santander [Murders and forced disappearances presented as combat casualties by State agents—Norte de Santander Subcase] (Jul. 2, 2021) (Colom.), available online. ↩

  66. 66.

    Santaularia, supra note 36, at 442. ↩

  67. 67.

    Office of the Prosecutor, ICC, Final Report on the Situation in Colombia (Nov. 30, 2023), available online. ↩

  68. 68.

    Caso 03: Asesinatos y Desapariciones Forzadas Presentados Como Bajas en Combate por Agentes del Estado [Case 3: Murders and Forced Disappearances Presented as Casualties in Combat by State Agents], JEP (Colom.), available online (last visited Dec. 14, 2024); Caso 01: Toma De Rehenes, Graves Privaciones de la Libertad y Otros Crímenes Concurrentes Cometidos por las FARC-EP [Case 1: Taking Hostages, Serious Deprivations of Liberty and Other Concurrent Crimes Committed by the FARC-EP], JEP (Colom.), available online (last visited Dec. 14, 2024). ↩

  69. 69.

    Urueña, supra note 39. ↩

  70. 70.

    Cooperation Agreement, supra note 54. ↩

  71. 71.

    Id. ↩

  72. 72.

    Urueña, supra note 39. ↩

  73. 73.

    Id. at 105. ↩

  74. 74.

    Inter-American Court of Human Rights, Advisory Opinion OC-23/17, The Environment and Human Rights (Nov. 15, 2017), available online. ↩

  75. 75.

    Id. ↩

  76. 76.

    Schabas, supra note 3, at 190–93. ↩

  77. 77.

    Teitel, supra note 20. ↩

  78. 78.

    Policy Paper, supra note 15. ↩

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