The return of “positive complementarity”

The (new) Prosecutor of the International Criminal Court (ICC), Karim A. A. Khan Q.C., on 28 October announced the closure of the preliminary examination of the Situation in Colombia after well-nigh two decades (exactly 17 years without opening a formal investigation, let alone filing charges). However, the announcement comes with an unprecedented quid pro quo arrangement: the Colombian government has signed a Cooperation Agreement with the Office of the Prosecutor (OTP) in which it commits itself to continuously support the national judiciary and the other extraordinary transitional justice (TJ) mechanisms, particularly the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), and, further, to cooperating closely with the Office. This is remarkable, given that the current government under President Iván Duque and its political mentor, the former President Alvaro Uribe, with their political party, the Centro Democrático (CD), have long opposed the final peace agreement (see here, here and here) that gave rise, inter alia, to the JEP. Now – apparently in return for the conclusion of the preliminary examination – this very government has committed itself to supporting the JEP, and in very concrete terms indeed, by, inter alia, providing sufficient financial resources and guaranteeing the security of the JEP’s personnel and participants in the proceedings. And the JEP, quite unsurprisingly, considers itself strengthened by this move, emphasising in particular the “direct and efficient communication channel” with the OTP now in place that allows it to report any non-compliance with the Agreement so that the OTP can act accordingly (including exercise ‘its full powers of international criminal prosecution’).

A pledge of confidence without any binding effect

Khan’s legal justification for concluding the examination is that Colombia has shown itself willing and able – within the meaning of the complementarity provision of Article 17 of the Rome Statute – to investigate and, if necessary, try or otherwise deal with the international crimes committed there. This assessment has been celebrated by both the government and the JEP. The former sees it as a confirmation of the State’s institutionality, the latter explains it with the mere fact of its existence and activity of only three years.

Leaving this self-praise aside, the sober fact of the matter is that the closure decision has no binding effect. Indeed, the OTP can resume investigations at any time and can also always receive (new) submissions under Article 15 (1) of the Statute. The non-binding effect of the closure decision is also rightly stressed in the Cooperation Agreement, which states that it is based on the current situation (with the JEP operating more or less efficiently) and subject to constant review. Colombia thus remains under observation, and the country’s relationship with the ICC is indeed entering a new phase as a result of this Agreement.

Different narratives and a new strategic direction?

The Cooperation Agreement also demonstrates that the new Prosecutor wants not only to resolve pending tasks, but also to enter into a more positive cooperative relationship with those States that are fundamentally willing and able to conduct national criminal prosecutions and work with his Office to this end. This breathes new life into the concept known as “positive complementarity”, and the Prosecutor rightly highlights the uniqueness of the Colombia Agreement, which may well have a trailblazing effect. The JEP even speaks of Colombia as an “invaluable laboratory” of transitional justice, from which “important lessons” are emerging that can later be “replicated” elsewhere. Of course, one will need to wait and see whether and to what extent the Agreement’s concrete obligations actually are implemented. One will also have to watch carefully whether President Duque sticks to his word and is able to control his political party, which is still trying to dismantle the JEP (see for example here) – and whether he actually wants to control it. It would be naïve to believe that a mere agreement of this sort can do away with the CD’s deep resentment towards the Peace Agreement and the TJ structure, especially the JEP, arising from it. In fact, the counter-narrative has already started calling Khan an audacious prosecutor who has too much faith in the JEP, which will not deliver and thus be, instead of the remedy, the primary cause of non-compliance. This is the old song of the JEP as an impunity tribunal, a song that is untrue and unfair, but still very much alive among its inveterate enemies in Colombia. 

At any rate, in more general terms of prosecutorial strategy this new development seems to indicate that Prosecutor Khan wants, on the one hand, to more closely involve State Parties that are willing to cooperate, especially by supporting their national efforts to come to terms with their past, but, on the other hand, be uncompromising with (former) State Parties that refuse to cooperate and even show a hostile attitude towards the Court (such as the Philippines). Against this background, however, the now (effectively) closed (preliminary) investigations into the NATO operation in Afghanistan and possible British war crimes in Iraq also raise critical questions, in particular of whether Khan may not perhaps be yielding too easily to pressure from more powerful States.