Lesley-Ann Daniels joins JiC for this post on the role of the International Criminal Court in the ongoing struggle for peace in Colombia. Lesley-Ann is a post-doctoral researcher at the Barcelona Institute for International Studies (IBEI). Her doctoral thesis examined the effects of amnesty on civil wars termination and her research interests are civil war and post-conflict peacebuilding. This is the fourth piece in JiC’s ongoing symposium on peace and justice in Colombia. You can find links to all of the contributions here.

(Photo: ABC)

On 4 October, the people of Colombia voted on whether to support the peace agreement signed only a few weeks previously by President Santos and the FARC rebel group leader, known as Timochenko. The peace accord had the potential to end a conflict that has lasted 52 years and resulted in a quarter of a million dead and many millions displaced, and it earned President Santos the Nobel peace prize.

While a popular referendum on the accord was not necessary, Santos had been promising for many years to put any agreement to a popular vote, as a way to ensure buy-in and gain legitimacy for the agreement. In the end, it was the government who lost, with a paltry turn-out (37.41% of the voters) and a wafer-thin majority rejecting the agreement (50.2% against). In the midst of the anguish and soul-searching, some themes are emerging that try to explain the defeat. One is that old favourite of peace versus justice. Voters in Colombia did not feel that “criminals” should be rewarded with “injustice, money and political representation”.

The question that remains is why the idea that justice will be sacrificed for peace still has so much resonance in a world where the International Criminal Court (ICC) exists, and especially in a country that is a state party to the Rome Statute. Surely, with the ICC as the backstop of international criminal justice, voters should be sure that anyone guilty of war crimes, crimes against humanity or genocide will end up in court. Voters should have felt reassured that either the deal meets ICC requirements (in order to avoid a post-agreement ICC intervention) or that the deal did not meet ICC requirements, in which case they could rely on the ICC to intervene. Why was the threat of ICC action not enough to reassure voters that rebels would face justice, even if the government was prepared to make concessions?

If the ICC is going to work anywhere, it should work in Colombia. The country has a long-standing support for international norms. For example, Colombia jealously promotes its reputation for signing international treaties and following international norms – “we are not some pariah”. Also, Colombia has a strong track record of conforming with rulings against it at the Inter-American Court of Human Rights. This is important because the ICC has no independent enforcement powers and much of its effects are through moral traction.

Furthermore, the ICC has had its eye on Colombia for some time; the Office of the Prosecutor (OTP) opened a preliminary examination in 2004, which makes Colombia one of the earliest and longest-running cases at the court. A preliminary examination is the step before opening a formal investigation; however, a case need not move forward to that next stage. The OTP will not act if the crimes are being sufficiently investigated by national authorities, and the maintenance of an open preliminary examination has enabled the OTP to keep up this pressure on the Colombian government and justice system.

Throughout the peace negotiations, which started in 2012, the OTP has sent letters to the Colombian government, made visits and given speeches all with the same message – “justice must be done and must be seen to be done, or else…” A letter in 2013 stated that inadequate punishment would “invalidate the authenticity of a national transitional justice process” and activate an ICC intervention. The Deputy Prosecutor has stated that the government should negotiate “a peace agreement that was compatible with the Statute”. Furthermore, he added that “[the Prosecutor] is not driven by considerations of peace or security”, a position consistent with the ICC’s long-standing position that “the interests of peace” are not within its remit and fall to other institutions. Observers of the negotiations feared international norms could become a “straitjacket”, restricting the government’s ability to offer rebels flexible solutions on justice in order to strike a deal.

With such an active interest by the OTP in Colombia and so many clear statements that peace could not trump justice, why were these reassurances from the ICC insufficient for the Colombian voters? The problem is that the Colombian public do not see the ICC as a backstop for justice. Despite the OTP’s interventions, the final peace accord provides a short term of “alternative punishment”, which will not mean prison, for those who admit to serious crimes (consequences are harsher for those who refuse to cooperate). Thus, the people do not see the fingerprints of the ICC on the peace agreement. Rather than prison for the most responsible of the worst crimes, all perpetrators will have the possibility of avoiding imprisonment. This does not seem like a deal the ICC would endorse.

Yet the people of Colombia are also not confident that they can rely on an ICC intervention. The issue of “alternative punishments” is a grey area, and there are no guidelines as to whether it is sufficiently punitive according to the Rome Statute. The “No” campaign argued that the deal was against the Rome Statute. But the OTP did not comment, saying only that they would have to react to any legislative bill and consider whether to act on a case-by-case basis. A second source of doubt is that the ICC did not act in the earlier settlement with the paramilitaries, even though the maximum punishment was a mere 8 years. For the paramilitaries, US extradition was considered the bigger threat.

Viewed from the outside, the ICC case selection seems inconsistent, particularly when opening a case proprio motu, as any investigation in Colombia would be. Furthermore, the ICC is seen as distant, compared to the Inter-American Court of Human Rights, which holds sessions in Colombian and where people can view the cases. Thus, the Colombian people were not sure that the ICC would act to prevent a circumvention of justice. This lack of certainty is unfortunate, because perhaps a clearer belief that the worse perpetrators would not escape with their dirty hands — if not under the peace agreement, then under an ICC intervention — would have reassured voters in the referendum that justice would be well served.

Justice can be accomplished not only by court actions but also by credible threats of court actions. It is a mark of the weakness of the ICC that the shadow of the ICC in the background of the Colombian peace deal was insufficient to inspire confidence in the voters that the interests of justice would be met.