On 28 October 2021, in Bogota, the Prosecutor of the International Criminal Court (“ICC” or the “Court”), Mr Karim A.A. Khan QC, concluded a Cooperation Agreement with the Government of Colombia that renews the commitment of the Office to Colombia’s national accountability processes. This agreement reinforces and further defines the mutual roles the Office and the Government will undertake to ensure that the significant progress achieved by domestic prosecutorial and judicial entities, and in particular by the Special Jurisdiction for Peace, is sustained and strengthened.
Following a thorough assessment, the Prosecutor is satisfied that complementarity is working today in Colombia. The Government of Colombia, together with the ordinary courts, the Justice and Peace Law Tribunals, the Special Jurisdiction for Peace, civil society and the people of Colombia are to be commended for their resilience and determination in demanding justice and accountability in their quest for peace. The progress made has led the Office to determine that the national authorities of Colombia are neither inactive, unwilling nor unable to genuinely investigate and prosecute Rome Statute crimes.
In the course of his engagement with stakeholders, the Prosecutor emphasised that an assessment of complementarity should not, and cannot, be postponed indefinitely pending the completion of all possible domestic proceedings. To the contrary, the Statute and the Court’s case law are clear that the admissibility assessment must be carried out on the basis of the facts as they exist.
In light of this, the Prosecutor has determined that the preliminary examination must be closed. The absence of a preliminary examination does not, however, mean an end to the Office’s engagement with Colombia or its support to the accountability processes underway. To the contrary, it marks the beginning of a new chapter of support and engagement – an example of positive complementarity in action.
The closure of the preliminary examination does not detract from the reality that significant work is still required and that the institutions established must continue to be given the space to perform their constitutional responsibilities. The Government of Colombia commits itself to such continued support in the Agreement concluded today.
The signature of this Agreement – the first of its kind concluded by the Office and a State Party – breaks new ground by entering into a series of mutual undertakings to ensure that domestic transitional justice processes in Colombia remain on track.
On the part of the Government of Colombia, these commitments include: 1) safeguarding the established constitutional and legislative framework; 2) preserving and supporting existing structures operating to ensure accountability; 3) continuing to properly fund these structures and safeguarding their budgets; 4) protecting their independence and preventing any interference with their functions; 5) ensuring the safety and security of judicial and prosecutorial personnel as well as participants appearing before the different accountability mechanisms; and 6) promoting full cooperation and coordination between the different State entities involved, including between the Attorney General’s Office and the Special Jurisdiction for Peace. The Government of Colombia has also committed to informing the Prosecutor of the progress of domestic investigations and prosecutions. Colombia has also undertaken to facilitate access to relevant records and documentation in accordance with the Rome Statute and Colombian law.
For its part, the Office of the Prosecutor commits to support Colombia’s accountability efforts. Such efforts include continued dialogue and interaction with the Government of Colombia and State institutions, annual visits to Colombia, exchanging of lessons learned and best practices with national justice mechanisms.
Crucially, because the ICC is a permanent institution, the Agreement recalls that the Prosecutor may reconsider his assessment of complementarity in light of any significant change in circumstances. The Agreement is binding and of indefinite duration.
The signature of the Agreement and the consequent closing of the preliminary examination marks a new beginning, and also a paradigm shift, outside the preliminary examination, to allow Colombia and the Office of the Prosecutor to build upon a long lasting, sustainable relationship within the framework of the Agreement.
The Office of the Prosecutor of the ICC conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Since 2003, the Office has been conducting investigations in multiple situations within the ICC’s jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d’Ivoire; Mali; Georgia, Burundi; Bangladesh/Myanmar, Afghanistan (pending judicial authorization to resume investigation following initial article 18 deferral request) Palestine and the Philippines. The Office is also currently conducting preliminary examinations relating to the situations in Bolivia; Guinea; Venezuela I and Venezuela II; and has completed its preliminary examinations of the situations in Ukraine and Nigeria, which are pending requests to seek authorisation to proceed to investigation.