By Rodrigo Uprimny, EL ESPECTADOR, October 31, 2021
(Translated by Eunice Gibson, CSN Volunteer Translator)
The agreement that the Duque government made with the prosecutors of the International Criminal Court (ICC) may seem inappropriate, which explains the opposition of certain human rights and victims’ organizations, but paradoxically, it could have positive effects on the consolidation of peace with justice.
To understand the agreement it’s necessary to remember that, since 2004, the ICC has been investigating war crimes and crimes against humanity committed in Colombia. That investigation has only been “preliminary” because of the principle of complementarity, according to which, the ICC can only open a formal case, which could lead to a conviction, if the country involved is not capable, or is not willing, to punish such crimes. Since Colombia has shown some progress in punishing those atrocities, the ICC did not open a formal case. But, as impunity continues to be extremely high, especially because investigations have not reached those who were most responsible, the ICC has kept the preliminary investigation open for all these years, with the threat of opening a formal case.
This year, essentially because of the JEP, which has filed charges against high-ranking individuals with responsibility for kidnapping and false positives, the ICC found that there was significant progress, so that the preliminary investigation could be closed, if and only if, there were guarantees that the progress would continue. And that is the essence of the agreement: The ICC will close the preliminary investigation, in exchange for the government’s agreement that it not only will not interfere with the judicial procedures that are investigating those crimes, especially with the JEP, but also, besides providing the necessary financial support, it will avoid any attempt whatsoever to modify the JEP’s legal framework. Besides that, the ICC will continue its interest in Colombia, because the agreement points out that if these commitments are not carried out, or the progress doesn’t continue, the ICC can reconsider its decision. That means that the ICC could open formal cases on the crimes that have been committed in this country.
The agreement could be premature, as the progress of the JEP, in spite of being very significant, is not really consolidated. There still are no convictions, nor effective punishments, and there are attempts to abolish or deconstruct it. Besides that, there are some atrocities that are not within the JEP’s jurisdiction, such as crimes committed after the signing of the Peace Agreement. The Colombian Attorney General’s Office has not made sufficient progress on those. The agreement also runs the risk of being trapped in the midst of election controversies, which is a negative. Because of all that, I understand and share in part the views of those who asked the ICC to consider their views and their demands, but without closing the preliminary investigation, at least for another year or two, while the progress of the JEP is consolidated.
In spite of the fact that it might be untimely, the agreement still has some very positive elements. In particular, it shows that the Peace Agreement, far from being the monster of impunity as painted by its detractors, is peace with justice, because it has essentially been the progress of the JEP and the perspective it follows that has led the ICC to close the preliminary investigation. The ICC has also endorsed the kind of restorative penalties that the JEP will impose, if those are carried out strictly, which ought to put an end to the debate about the alleged incompatibility of those penalties with international law. At the same time, when this agreement was signed, President Duque accepted the legitimacy of the JEP and the importance of its progress. He promised to preserve it and to give it effective support, so that he is required to oppose any attempt to counter-reform it. Thus the first step in complying with the agreement with the ICC will be to ask his party to withdraw the bill that would dismantle the JEP.