In August 2016, in Havana, Cuba, the Colombian Government signed a peace agreement with the Fuerzas Armadas Revolucionarias de Colombia-Ejercito del Pueblo, FARC-EP, after four years of negotiations. The agreement provided a window of hope that Colombia's fifty-year armed struggle, the longest-running conflict in Latin America, would finally come to a close. One actor in these negotiations, whose considerable influence has been underappreciated, is the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). Colombia has been under preliminary examination by the OTP since 2004. (2) In addition to discharging its investigatory function, the ICC prosecutor has actively influenced the negotiation of two peace processes: first, the 2005 peace process with the paramilitaries; and more recently, the tumultuous negotiations with the FARC. This Comment explores the specific pathways of the OTP's influence in the Colombian peace process, and the broader lessons this episode holds for the ICC's work and for the continuing negotiations in Colombia.
The nature of the OTP's engagement, which has evolved over time, can roughly be subdivided into two distinct periods. In the first years of the preliminary examination (2004-2007), the prospect of an ICC intervention in Colombia was perceived within that country as a looming threat, particularly during the peace negotiation with the right-wing paramilitaries in 2005. In this first period, the OTP was an openly influential actor, shaping the deal the government offered to the paramilitaries. However, two dynamics took hold that modulated the influence of the OTP during 2008-2016, the period leading up to the peace agreement with the FARC. First, competition for influence with other actors, especially the Inter-American Commission on Human Rights, meant the ICC was not the only international institution significantly involved with the conflict in Colombia. Second, Colombian institutions and civil society interacted more with the OTP, with numerous consequences. Colombian actors became more knowledgeable with respect to international criminal law and this in turn reduced their fears that they would be blindsided by ICC intervention in the ongoing peace process. Simultaneously, the OTP increasingly gave priority to gaining influence in domestic legal developments regarding the peace process. In this regard, the OTP was remarkably successful--within a certain zone. Colombian actors' increased fluency with international criminal law concepts permitted them to play a more active role, pushing back against some of the OTP's strategies of influence. At the end of this period, the OTP was transformed by Colombia as much as Colombia was transformed by the OTP.
The Colombia case study permits broader observations about the institutional dynamics of complementarity. The mismatch between the breadth of the ICC's mandate and its limited resources is well-known. International criminal law commentators, and even the OTP itself, have suggested that "positive complementarity" provides a means to overcome the ICC's institutional limitations. (3) Some argue that the ICC can deploy complementarity to catalyze (4) domestic institutions into investigating and prosecuting core crimes. While this strategy is indeed illustrated by the Colombia case, that case also illustrates that the OTP's ability to influence the state with primary jurisdiction may diminish over time. This occurs not only because the threat of prosecution becomes less credible as time passes with no such prosecutions, or even the triggering of a formal investigation, but also because domestic institutions learn how to "speak" to the ICC and can ultimately adapt their own strategies to the Court's anticipated agenda. (5) The Colombian case also illustrates the point that the impact of preliminary examinations may differ depending on how these examinations are initiated. As David Bosco demonstrates in a Note that will be published in the April 2017 issue of this Journal, (6) the OTP may be more likely to proceed to a full investigation in cases involving referrals, rather than where preliminary examinations emerge through the prosecutor's proprio motu initiative. Lacking state or UN Security Council cooperation, proprio motu preliminary examinations may also proceed for longer periods of time than those that emerge from referrals, and delay alone may make the initiation of a formal investigation less likely.
In addition to this evolution on the domestic side, the OTP's influence in Colombia was curtailed by other international developments. Specifically, both the Inter-American regime of human rights and the extradition of Colombian nationals to the United States had crucial, albeit distinct, impacts on the OTP's preliminary examination. The capacity for other international or foreign actors to exert influence on domestic developments alongside the ICC, especially as preliminary examinations become protracted, is a variable that has been ignored in most discussions of positive complementarity.
This Comment explores these issues first, in Section I, by providing some historical context for Colombia's ratification of the Rome Statute. Section II explores the period of 2004-2007, including the peace process with the paramilitaries. Section III discusses a turning point in the peace process: the large-scale extradition, in 2008, of paramilitaries to the United States. Section IV turns to the more recent negotiations with the FARC, in 2009-2017, with a focus on the evolving role of the ICC. This section also comments briefly on the outcome of the popular referendum rejecting the peace agreement, the adoption of the deal by the Colombian Congress, and the first steps of its implementation. Finally, Section V concludes with some suggestions for ICC institutional reforms.
COLOMBIA'S RATIFICATION OF THE ROME STATUTE: CONTEXT AND IMPLICATIONS
From the outset, Colombian lawmakers approached the possibility of ratifying the Rome Statute with one overarching concern in mind: how would acceding to the ICC treaty affect the ongoing peace process? (7) Their concern made perfect sense. Colombians had endured fifty years of intense violence, and as the probability of a definitive military winner became less and less likely, peace negotiations assumed an ever-greater significance. (8) More to the point, all five peace processes that had been attempted since 1982 considered some measure of amnesty for crimes that would fall under the jurisdiction of the ICC.
Congress' consideration of the Rome Statute in 2001 was preceded by a convergence of factors that changed the dynamics of the conflict. First, the Colombian government entered into the highest stakes phase in its negotiations with the FARC. In 1998, the government agreed to demilitarize an area the size of Switzerland in the south of the country, leaving it under the control of the FARC--a move that considerably strengthened the military position of the guerrilla group. A year later, the U.S.-led "Plan Colombia"--a civil and military aid package of USD 1.5 billion--was officially announced. Meanwhile, right-wing paramilitaries were at the height of their power as a result of the decision, in 1996, to merge independent groups and create an organization called United Self-Defenses of Colombia (Autodefensas Unidas de Colombia, or AUC). By 2001, the resulting gains in military capability and political coherence meant that AUC, which commanded a force of eight thousand soldiers, had become an independent, self-funded actor in the conflict. (9)
The result was an increase in military capacity on all sides--a development which, predictably, had far-reaching consequences. Noncombatants became, for the first time, the main victims of the conflict. Whereas in 1996, the guerrillas and the paramilitaries produced roughly two hundred civilian casualties each, there was a sharp increase in 1998, when the paramilitaries and the guerrilla forces collectively caused 1,100 civilian casualties, and again in 2001, when the number surged to 1,600. (10) The size of the displaced population peaked in this period of time as well."
By 2002, when Colombia joined the Rome Statute, the conflict had become a veritable humanitarian crisis. Thousands of civilians were being killed and displaced; indeed, the scale of the conflict was such that a huge area in the middle of South America was in effect lawless. Thus, in the context of hitherto unseen violence, and desperate for a peace deal, Colombia embraced the ICC. However, joining gave rise to a structural tension. On the one hand, the ICC gave the government a sorely needed additional tool to induce the guerrillas to join negotiations. (12) On the other, it constituted a threat to the government's ability to credibly offer amnesty to the rebels. At the time, an amnesty offer was the central--if not the only--negotiating chip the Colombian government had at its disposal. Mindful of this reality, Colombia entered a declaration stating that the Statute could not prevent it from granting amnesties for political crimes, and availed itself of the possibility of suspending the ICC's jurisdiction over war crimes for seven years, as provided for in Article 124 of the Statute.
WHO'S AFRAID OF THE ICC? THE OTP'S INFLUENCE IN COLOMBIA, 2004-2007
Just two years after Colombia's ratification of the Rome Statute, in 2004, the OTP opened a preliminary examination regarding that country. The OTP's intervention was framed as an instance of "positive complementarity," (13) reflecting former ICC Prosecutor Moreno-Ocampo's general approach during his tenure in office. (14) This was not just an academic gloss on the OTP's actions: as leaked State Department cables show, Moreno-Ocampo acknowledged that his strategy in Colombia was to spur domestic institutions to act in compliance with international norms, including through domestic prosecution of war criminals. (15)