Global Insider: Shadow of ICC Playing Important Role in Colombia-FARC Negotiations

Early this month, Colombia’s inspector general said that if the Colombian government grants impunity to FARC guerillas as part of a peace deal, the International Criminal Court (ICC) should intervene. In an email interview, Alejandro Chehtman, an assistant professor at the Law School of the Torcuato Di Tella University specializing in international criminal law and international humanitarian law, explained the ICC’s involvement in Colombia. 

WPR: What is the extent of the International Criminal Court’s involvement in Colombia at present?

Alejandro Chehtman: The relevance of the ICC in Colombia has slightly decreased since it first announced that Colombia was a situation under preliminary examination. At that time, from 2003 to 2005, the ICC prosecutor was personally involved in influencing the first attempts at what became the Justice and Peace Law, Colombia’s main transitional justice mechanism directed at the paramilitary forces. More recently, the ICC’s Office of the Prosecutor (OTP) has kept official and unofficial connections with Colombia’s governmental authorities and civil society, reflected in its reports on preliminary examinations (2011, 2012 and 2013). The ICC’s capacity to open an investigation into the Colombian situation is an important element in the ongoing negotiations with the FARC. Furthermore, the ICC is also involved in Colombia indirectly. Namely, local actors have used the potential involvement of the ICC as a tool to steer not only domestic policy concerning the peace process with the guerrillas, but also the ongoing judicial proceedings under the Justice and Peace Law or ordinary criminal jurisdiction, including cases against government officials, particularly the “false positives” cases involving members of the army allegedly murdering civilians and then dressing their bodies in rebel uniforms. 

WPR: How is the prospect of ICC involvement influencing the peace process between Colombia and the guerrillas?

Chehtman: Under the principle of complementarity, the involvement of the ICC in Colombia essentially works as a threat against domestic actors that if they do not satisfy certain accountability standards the ICC may open an investigation. The ICC was one of the relevant international actors responsible for turning the Justice and Peace Bill into a transitional justice tool providing some level of accountability, albeit limited. These changes were critical in breaking the agreement between the Uribe administration and the paramilitary leaders, and this, in turn, significantly contributed to the scandal known as “parapolitics”; to the subsequent extradition of several paramilitary bosses to the U.S. under drug charges; and ultimately to the relative failure of the attempted demobilization of the paramilitary groups. (Some argue that the rate of recidivism in this context is more than 85 percent.) This experience with the paramilitaries has been very influential in the ongoing negotiations with the FARC. Avoiding all prospects of accountability is therefore a critical aim of the FARC leaders, and the ICC poses a threat to this aim. In this context, the court has a very difficult role to play. If it gets too involved it may well derail the peace negotiations; if it does not exert enough pressure, the process may likely end with no accountability for mass atrocities. 

WPR: What does the ICC’s involvement in Colombia indicate about the court’s ability to play a role in justice processes worldwide, particularly outside of Africa?

Chehtman: The court seems to have a structural problem in dealing with situations of ongoing conflict. Under the policy of the OTP known as positive or proactive complementarity, the court uses its “threat” of opening an investigation to enhance domestic responses that include accountability. Even after opening an investigation, part of the court’s job is to create the right incentives in order to enhance prosecutions before domestic courts. Yet relevant incentives do not necessarily work in the expected direction. If the court opens an investigation, it is often the case that state authorities will “free ride” on the work of the court. If, by contrast, the ICC decides not to open an investigation, the domestic authorities will lose an important incentive pushing for accountability. 

The more interesting scenario is when the OTP keeps a country in its list of situations under preliminary examination. If the court takes a more “distant” approach, the mere threat of an intervention will usually be rendered less credible as time passes, and with it the capacity of the court to influence domestic policy will diminish considerably. By contrast, if the court takes steps toward building significant pressure on the local authorities, its actions may ultimately lead to the failure of peace negotiations.