I have today published a benchmarking consultation with respect to the Office’s ongoing preliminary examination into the Situation in Colombia.
In December 2019, at the annual session of the Assembly of States Parties to the Rome Statute, I stated that before the end of my term as Prosecutor of the International Criminal Court (“ICC” or the “Court”), I would aim at reaching determinations on all situations that have been under preliminary examination during my tenure, as far as I was able to do so. Specifically, I announced that I intended to decide: (1) whether the criteria had been met to open investigation, (2) whether a decision should be taken not to proceed with an investigation if the statutory criteria had not been met, or (3) if, exceptionally, a situation was simply not ripe for a determination, to explain why I believe that a particular situation should remain under preliminary examination and to introduce a benchmarking framework.
The report issued today explains why the Situation in Colombia remains under preliminary examination and what remains to be done before a final determination can be reached: either to open investigations, or to conclude the preliminary examination subject to its re-opening upon a change in circumstances. In particular, it examines the role the Office should play in a preliminary examination that faces a long-term, multi-layered domestic accountability process and proposes the development of a benchmarking framework moving forward.
I wish to stress that the report issued today is not the benchmarking framework itself, but an invitation to consult on the development of such a framework. The report suggests that this could focus on three key areas: (i) the national legislative framework, (ii) domestic proceedings, and (iii) the enforcement of sentences. This is because of the impact of these three areas on cases over which the ICC could potentially exercise jurisdiction in the context of the Situation in Colombia. Such focus could provide the means for the incoming Prosecutor to reach a decision on whether to move to open an investigation or to close the preliminary examination. To set the context for this process, the document explains briefly how the preliminary examination has unfolded, notes key milestones in the process, and draws potential lessons from the Office’s experience.
Over the course of the preliminary examination, the Office has conducted numerous missions, meetings, exchanges and roundtable discussions with the Colombian authorities, members of the judiciary, as well as with members of civil society, international organisations and academia. Throughout these engagements, the Office has enjoyed the support and cooperation of the Government of Colombia. The Office has received multiple updates from the judicial authorities on national proceedings addressing ICC crimes, while also hearing the views of civil society. The Office has also participated in consultations on a range of issues relevant to its admissibility determination, including on the impact of legislative and other developments upon domestic investigations and prosecutions of conduct constituting crimes under the Rome Statute. Throughout, the Office has been mindful of the delicate peace process in Colombia and the efforts being made to achieve justice in that context in line with the obligations arising from the Statute. The report builds on the Office’s past institutional experience and seeks to chart a way forward as it transitions to the incoming Prosecutor.
It is hoped that the proposed benchmarking framework introduced in skeletal form at the end of the report will enable the Office, on the basis of consultations with affected stakeholders, and under the leadership of my able successor, Mr Karim A. A. Khan, to develop a roadmap for reaching a determination on whether the time has come to proceed with investigations or close the preliminary examination, by articulating the indicators that might guide such an assessment as well as the factors that might trigger a re-assessment based on a change in circumstances.
Given the complexity of the situation, the Office seeks an open and inclusive consultative process that invites the participation of all relevant stakeholders in a learning process, as the Office seeks to identify relevant benchmarks and indicators that should guide the assessment in reaching a determination on the preliminary examination. This is strengthened by our common awareness that, given the enormity of the challenges facing transitional justice and accountability in Colombia, an inclusive process that seeks meaningful participation of affected stakeholders in the formulation of relevant benchmarks is more likely to generate the legitimacy necessary to achieve appropriate outcomes.