The ICC does not look so interventionist after all

In late October, Karim Khan, the new chief prosecutor at the International Criminal Court (ICC) in The Hague, announced that his office will close its probe into alleged civil-war-related abuses in Colombia. 

The court had been considering abuses related to the long-running conflict since 2002, when Colombia became an ICC member, before launching a preliminary examination into the case two years later. Khan's decision concludes the court's longest-running preliminary examination to date.

During a preliminary examination—the phase that precedes a full investigation, when specific individuals are indicted—the prosecutor looks for evidence of suspected crimes within the court's jurisdiction and evaluates whether domestic authorities have taken genuine steps toward accountability. 

If the prosecutor finds evidence of criminal activity in addition to domestic negligence, the ICC has a mandate to intervene—a standard known as "complementarity."

The ICC was established in 1998 after 120 countries signed the Rome Statute, its founding treaty and governing document. Photo: Reuters

The ICC's first chief prosecutor, Luis Moreno Ocampo, invoked complementarity in Colombia, opening a preliminary examination in 2004 when he determined that the country had not made any notable progress toward addressing conflict-related abuses since it joined the court in 2002. 

But now, for the first time in the ICC's two-decade history, the prosecutor's office has changed its mind about domestic justice efforts in a country of concern. The 2016 peace agreement between the Colombian government and guerrillas of the Revolutionary Armed Forces of Colombia (FARC) dramatically overhauled Colombia's domestic justice system, and Khan's office has deemed it satisfactory.

More than trust is at play. With Khan's decision, the government in Bogotá is legally bound to investigate abuses via a cooperation agreement with the ICC. If it does not comply, the ICC can reconsider its decision and reopen the preliminary examination.

At present, all this is uncharted territory, and it remains to be seen how domestic proceedings in Colombia unfold. 

What we do know, however, is that the ICC's decision to withdraw from Colombia suggests it is not the interventionist institution some have accused it of being. This should bolster the court's reputation and authority in other contexts where it is involved around the world.

The ICC is the world's first and only permanent international criminal tribunal. It was established in 1998 after 120 countries signed the Rome Statute, its founding treaty and governing document. 

The court became operational in 2002 and since then has been responsible for holding individuals criminally accountable for atrocity crimes—including genocide, war crimes, and crimes against humanity.

This effort is guided by the Office of the Prosecutor, the ICC's most public-facing body. The office decides which countries and conflicts (or, to use the ICC's terminology, "situations") to probe and which cases and individuals to investigate and prosecute. 

After a preliminary examination, the Office of the Prosecutor may request authorisation from the court's judges to open a full investigation. At this second stage, the office builds cases against specific atrocity crimes suspects.

Since the ICC opened its doors in 2002, the prosecutor's office has issued 46 indictments. Five cases have been terminated due to suspects' deaths (four at the pretrial phase and one at the trial phase), while nine others have been terminated due to unconfirmed charges or charges being withdrawn. 

The court has issued eight convictions and four acquittals. Eight suspects are currently in ICC custody, while 12 others, including former Sudanese President Omar al-Bashir, remain at large.

Any country that has ratified the Rome Statute and failed to hold its nationals accountable for atrocity crimes is fair game. For example, Colombia and Palestine—both ICC members—came under the court's consideration this way. 

The prosecutor's office can also investigate a country that is not a party to the ICC if that country's nationals are accused of atrocity crimes on the territory of an ICC member state. This is how suspected abuses perpetrated by U.S. military and intelligence personnel in Afghanistan or by Israeli forces in Palestine became subject to ICC scrutiny. 

Both nonmembers, the United States and Israel reject the court's jurisdiction. By contrast, the ICC does not have jurisdiction over countries like Syria and China—non-members whose atrocity crimes have for the most part been confined to their borders.

Though the ICC's rules and operating procedures are straightforward, this has not insulated the institution from criticism and even backlash. 

The court has for years been accused of being a neo-colonial institution, as most of its investigations are in the global south—especially in Africa.

This is a fair criticism in some ways and an unfair one in others. It is true that all of the ICC's early investigations were into African countries, and that all people subject to ICC arrest warrants up to this point have been Africans. 

Likewise, only Africans have stood trial to date. But, as the second ICC chief prosecutor—and Khan's immediate predecessor—Fatou Bensouda would often highlight, the victims of crimes investigated by the court in African countries are also African. 

If the ICC is biased against atrocity crimes suspects from Africa, then, by that same token, it is also biased in favor of atrocity crimes victims from Africa. Nevertheless, African countries, from Kenya to South Africa, have threatened to withdraw their ICC membership. But only one, Burundi, has actually followed through.

Bensouda, a West African jurist from Gambia herself, worked hard to push back against the accusations of neo-colonialism levied against the ICC. 

During her tenure, she broadened the range of situations under consideration by the court, opening several preliminary examinations and investigations outside Africa while continuing those she inherited from her predecessor, Moreno Ocampo. 

Though two-thirds of the court's current full investigations are focused on African countries, the majority of preliminary examinations deal with other parts of the world. 

Until Khan closed the preliminary examination in Colombia, there were preliminary examinations in three South American countries—Colombia, Bolivia, and Venezuela (where there are two probes)—and one European country, Ukraine. 
There, the Office of the Prosecutor has probed the ongoing conflict with Russia, including suspected crimes by the Ukrainian military, pro-Russian separatist groups, and Russian forces in occupied Crimea and Ukraine's eastern provinces.

In addition to being labeled anti-African and neocolonial, the ICC has been accused of being interventionist, failing to give due deference to relevant domestic institutions to handle their own business—in other words, violating the principle of complementarity. 

The ICC is meant to be a court of last resort, intervening only when domestic authorities fail to act. 

But some academics and court skeptics claim that the prosecutor's office often tries to compete with local justice institutions rather than support—let alone defer to—them.

Philippine President Rodrigo Duterte, for example, rejects the court's jurisdiction over his so-called war on drugs on precisely these grounds.

Khan's October announcement about Colombia, however, should put arguments about interventionism to bed.

The Colombian judicial body in which Khan has placed his trust is known as the Special Jurisdiction for Peace. 

It is one of the fruits of the 2016 peace accords between the Colombian government and the FARC—a hard-fought victory for justice advocates that required 18 months of intense negotiations and earned Juan Manuel Santos, Colombia's president at the time, the 2016 Nobel Peace Prize.

The deal ended the longest-running civil war in the Western Hemisphere, which began in 1964 as an ideological conflict between the Colombian government and a coalition of Marxist groups that ultimately coalesced into the FARC. 

It reached new heights in the 1980s and early 1990s, fueled by a booming cocaine industry and the rise of far-right paramilitary groups who massacred and forcibly displaced thousands of civilians.

The Colombian government and the FARC attempted to negotiate peace several times throughout the conflict—most recently between 1999 and 2002—but those efforts foundered. 

However, the end of Cold War-era politics and a series of defeats on the battlefield helped bring the FARC to the negotiating table, first secretly in 2010, then publicly in 2012.

The 2016 accords were meticulously crafted, with the purpose of ensuring that all parties to the conflict faced accountability for wartime offenses. They also made sure that domestic leaders had some degree of control over the peace and justice process. 

This design was due to domestic concerns about Colombia's international legal obligations and the prospect of further intervention by the ICC. Colombian leaders on both sides wanted to prevent the Office of the Prosecutor from escalating the then-ongoing preliminary examination into a full investigation.

The Colombian case provides evidence that complementarity is not just a lofty idea.

The Special Jurisdiction for Peace is not Colombia's first experience with conflict-related justice. 

After a conglomerate of right-wing paramilitary organisations demobilised in 2005, the government established the Justice and Peace process, providing shortened criminal sentences to paramilitary members in return for truth telling and reparations. 

In regular courts, FARC insurgents were subject to criminal trials and faced decadeslong prison sentences, while members of the military occasionally faced similar charges when caught committing abuses. 

But both the nature of the conflict and the scale of atrocities—with more than 200,000 civilians killed and millions more displaced—meant that many crimes went unpunished. In a 2012 report, the ICC prosecutor's office noted that senior military officials in particular managed to avoid accountability.

The Special Jurisdiction for Peace is a unique tribunal, responsible for collecting evidence and holding accountable combatants from all sides of the Colombian conflict. Defendants first have the opportunity to voluntarily appear before the tribunal and testify about their involvement in wartime abuses. 

If they do so, they are eligible for a five-to-eight-year reduced sentence that can include house arrest or community service. If defendants do not volunteer their testimony, they face a traditional criminal trial where, if found guilty, they can face up to 20 years in prison.

The tribunal became operational in 2018 and has since that time issued rulings against high-level members of both the Colombian military and the FARC, forcing both groups to take responsibility for the atrocities they committed. 

In July, the tribunal formally accused 10 members of the Colombian military of murdering 120 civilians and disappearing 24 others as part of what has come to be known as the "false positives" scandal—during which the military killed civilians and dressed their bodies as FARC combatants to boost body counts. 

Earlier in February, the tribunal had determined that more than 6,400 civilians were killed as part of the scheme. Still, the tribunal has not yet issued any convictions for participants in the scandal, raising concerns among human rights organisations that the ICC is releasing its pressure on the Colombian government too quickly.

The Colombian case nonetheless provides evidence that complementarity is not just a lofty idea. It also indicates that the ICC may not be interventionist. 

Khan's withdrawal from Colombia—where he saw meaningful progress at the domestic level—is a milestone for the country, the ICC, and international criminal justice more generally. 

If other countries follow Colombia's lead, cleaning up shop at home, they, too, may see the ICC withdraw—proving that it really is a court of last resort.

Genevieve Bates is an assistant professor of political science at the University of British Columbia. 

Kelebogile Zvobgo is an assistant professor of government at the College of William & Mary and founder and director of the International Justice Lab.

Disclaimer: This article first appeared on Foreign Policy, and is published by special syndication arrangement.