A New Path for the International Criminal Court and Peace Processes?

By Nelson Camilo Sanchez Leon*

 

In a year where there have been plenty of bad news, the world received the culmination of the negotiation process to end the armed conflict in Colombia as refreshing news. Not only because of the fact that two armies that have fought each other for more than 50 years have agreed to end the armed conflict, but because of the positive developments throughout the negotiations.

Some of them could be very relevant when looking at the relationships between international law and peace processes. For example, the use of the humanitarian accords established by international humanitarian law (article 3) as a tool to give the peace accord normative force, beyond its traditional role to humanize hostilities.

But the issue that has generated most debate and interest is the relationship between the justice and accountability component of the peace accord and the State’s duties in terms of international criminal law.

President of Colombia Juan Manuel Santos gives a speech during the opening of the 9th Assembly of States Parties to the Rome Statute of the International Criminal Court. Photo by: Coalition of the ICC

President of Colombia Juan Manuel Santos gives a speech during the opening of the 9th Assembly of States Parties to the Rome Statute of the International Criminal Court. Photo by: Coalition of the ICC

This is not a minor question since there is currently a doubt of how a State facing an internal armed conflict could reach a peace accord following the strictest justice standards that international criminal law has been developing in recent years.

In cases under the jurisdiction of the Rome Statute, the tensions are obvious, like in Kenya and Uganda. Different sectors have argued that the ICC’s Office of the Prosecutor (OTP) has been very inflexible regarding the possible obstacles that its actions imposed in the search for peace and that it should have used the “interest of justice” clause, which would allow it to abstain from intervening if it puts a peace process at risk.

The ICC’s response was to defend the strict interpretation of this principle that compares the “interest of justice” to the interest of the victims in justice, in which there is little room to abstain from intervening in specific situations, even if this puts a peace process at risk.

With this situation, an old dilemma regarding the polarization between peace and justice has emerged. This is understandable since, as Rodrigo Uprimny has explained, “peace and justice can go in the same direction in the long term, but in the short term they are in conflict: crimes against humanity deserve severe sentences, but this type of sanctions make it impossible to negotiate peace.”

This is where the Colombian case can offer an interesting contribution to show that the discussion can advance without falling on extremes that sacrifice one or the other principle.

Since 2004, the OTP has undergone a preliminary examination given the horrific crimes committed during the conflict. Although it has not decided to open an investigation, it has worked with the national authorities supervising the progress of local investigations under the principle of positive complementarity.

Nonetheless, the question of whether the Colombian peace accords could change this relationship lingers. The accord establishes a combined accountability mechanism, which creates a special jurisdiction to process the violations that happened during the conflict, especially for those most responsible of the most severe cases. But this system, being the product of a peace negotiation, establishes that whoever participates in good faith in satisfactory measures for victim’s rights, like truth and reparation, and at the same time confesses their participation in past crimes, will be subject to a penalty of restriction on freedom that guarantees that the accused fulfill activities with a restoring and repairing nature. These activities, which include the construction of public infrastructure, the humanitarian removal of mines in rural areas, or rural development measures, will then replace the measures to deprive someone of liberty in penitentiary centers.

ICC Prosecutor Fatou Bensouda. Phoyo by: Coalition for the ICC

ICC Prosecutor Fatou Bensouda. Phoyo by: Coalition for the ICC

Some analysts have claimed that said sanction is insufficient to fulfill the standards established by the Rome Statute and have predicted an imminent OTP intervention in Colombia. However, in a press release issued a few days ago, the Prosecutor Fatou Bensouda seems to trace the lines of a more conciliatory intervention model. The highlights of this declaration include:

  • First, she congratulates the accord since promoting disarmament contributes to the prevention of international crimes.
  • Second, she recognizes and congratulates the parties for having put victims at the center of the debate and given them an important role in the accord.
  • Third, Bensouda shows her satisfaction that crimes established in the Rome Statute have been excluded from amnesties and pardons, reiterating that not all amnesties are prohibited under international law, only those that prevent the processing of international crimes.
  • Fourth, emphasizes that the commitment of the States, and in this case, of Colombia, is the imposition of “effective sanctions” and not necessarily of jail.
  • Fifth, reiterates that the State’s duty is to bring the perpetrators to justice and finds that a special jurisdiction (complementary to the national ordinary justice) is an adequate path for this.
  • Sixth, accepts that special justice is concentrated on those “most responsible for the most severe crimes,” through which she seems to accept the nationally based selection.
  • Finally, she ends the press release with a general satisfactory tone regarding the design, but warns that she will be attentive to the implementation so that what was promised becomes reality. In other words, the Prosecutor announces that she will continue her preliminary examination to oversee the domestic developments in the spirit of positive complementarity.
A mural and men on a Pamplona street corner. (1984-1985). Photo by: The Real Estreya

A mural and men on a Pamplona street corner. (1984-1985). Photo by: The Real Estreya

With this vision, we could be dealing with a case that offers an alternative to the discussion of whether we should apply the principle of peace as a measure of the interest of justice or of the victim’s justice even if this is against peace. Applying the principle of positive complementarity, the Prosecutor accepts the States’ margin of appreciation and assumes a detailed tracking strategy on the fulfillment of the State’s commitments.

As expressed in the Prosecutor’s press release, it is still early to assess whether the model fulfills its promises, but if it does, it would be a good indication of a possible path to be explored.

 

*Nelson Camilo Sanchez Leon  is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).

Photo Credit: Photo by: Juan Carlos Pachón