Colombia and the International Criminal Court

Abstract

Abstract The Special Jurisdiction for Peace established in Colombia after the 2016 Peace Agreement with FARC-EP has revealed the virtues of the decision of the International Criminal Court (ICC) to avoid opening a formal investigation in the country. This chapter focuses on the idea that transitional justice contexts allow a positive understanding of the principle of complementarity and seeks to demonstrate how the ICC can work together with a state to achieve a long-lasting peace after an armed conflict. The chapter first outlines the use of a preliminary investigation mechanism as a means adopted by the Office of the Prosecutor (OTP) of the ICC to provide input into the transitional justice processes and peace negotiations in Colombia. It then examines a remarkable moment in which the OTP submitted observations about the Colombian laws that established the framework relating to the Special Jurisdiction for Peace after the invitation of the Colombian Constitutional Court. The chapter highlights areas where the Court accepted the inputs of the OTP but also where it diverged. As well as explaining these differences, the chapter argues for the desirability of a margin of discretion for national authorities in implementing international criminal law. The chapter ends with reflections on how the principle of positive complementarity has played out in Colombia and how it has now ushered in a new era with the signing of a cooperation agreement between the OTP and the government of Colombia in October 2021.