The new chief prosecutor of the International Criminal Court (ICC) recently made his first official trip to Colombia and Venezuela. During the visit to Bogotá, he announced he was moving to reduce the number of cases in the preliminary stage by closing the long-running preliminary examination in Colombia. A few days later, in Caracas, he announced the opening of a formal investigation into crimes against humanity in Venezuela. Both decisions were controversial, featured innovative efforts to advance complementarity through agreements with the respective governments, and created a new panorama in the region going forward.

Colombia: An End to the Longest-Running Preliminary Examination

The Office of the Prosecutor opened a preliminary examination in Colombia back in 2004 to consider allegations of atrocities committed during the country’s five decades of guerrilla warfare. In the 17 years since, however, the Colombian government passed a Justice and Peace Law to demobilize right-wing paramilitary groups that included special judicial procedures, as well as a Legal Framework for Peace, laws on reparations, and an extensive Victims’ Law. It also entered into a complex peace process with the biggest insurgent group (the FARC) and, for a time, with the smaller ELN group. In 2016, the government signed an accord with the FARC. Among its extensive and interlocking provisions, the peace agreement created the Comprehensive System for Truth, Justice, Reparation and Non-repetition. It includes the Special Jurisdiction for Peace (discussed here) (JEP, for its Spanish initials), an intricate scheme to try former combatants on both sides of the country’s 60-year-old civil conflict and administer both retributive and restorative justice. The Comprehensive System also includes a truth commission and a search mechanism for the disappeared.

Through all this, the OTP’s preliminary examination continued, and the peace negotiations were carried out under the shadow of the ICC. Personnel from the Court visited regularly and weighed in on the details of the justice mechanism at key points. Notably, during the peace negotiations, then-Prosecutor Fatou Bensouda sent letters to the state reminding negotiators that a legitimate transitional justice criminal court required a modicum of punishment for crimes under the Rome Statute even under a “restorative justice” approach.

By November 2012, the Office of the Prosecutor (OTP) had found that crimes within the jurisdiction of the Court had been committed by the government, the paramilitaries, the FARC, and the ELN.  Still, the Office also concluded that “there remained a number of gaps or shortfalls which indicated insufficient or incomplete activity in relation to certain categories of persons and certain categories of crimes. This included, inter alia, domestic proceedings relating to the promotion and expansion of paramilitary groups; proceedings relating to forced displacement; proceedings relating to sexual crimes; and, so called ‘false positive’ cases.” The “false positive” cases, involving mostly poor, young men kidnapped or lured to their deaths by the army who then presented them as guerrilla fighters to improve their “kill” statistics, are now the subject of a separate case advancing before the JEP.  The other themes are being incorporated, to some degree at least, into cases organized around certain hard-hit regions of the country, although to the dismay of victims’ groups, there is still no stand-alone case on rape and sexual violence.

By earlier this year, the OTP proposed a “benchmarking” exercise to help prosecutors decide whether to open a full investigation or to maintain or close the preliminary examination. Given the OTP’s good relationship with the JEP, at least, it would have been both legally and politically difficult to open a full investigation, so the choices were to maintain the status quo or to close the case.

While this exercise was taking place, Bensouda’s term ended and a new chief prosecutor, Karim Khan, came on board. Khan faced a large number of complex preliminary examinations, few resources, and an urgent need to prove that cases could move to trial expeditiously, all of which recommended ending the Colombian examination. However, civil society in Colombia was (as usual) divided on the issue, with some cautioning that relaxing the pressure on Colombia’s current government – which opposed the peace accords and has been lukewarm when not actively hostile towards the JEP – would lead to disaster, at least while the JEP is in its early stages.  Others thought a vote of confidence for the JEP’s work, and for complementarity, would be salutary.

In the end, Khan decided to exact a price for ending ICC supervision. In a first-time-ever agreement, signed by Khan and Colombian President Iván Duque on Oct. 28, the Colombian government agreed to preserve and support existing accountability structures, including their constitutional and legal framework, funding and budgets, and independence, and the security of participants and personnel. It also agreed to promote cooperation and collaboration among the various state agencies, including in particular between the Attorney General’s Office and the JEP, which have on occasion been at loggerheads. The agreement notes that the prosecutor may reconsider his assessment in light of significant changes in circumstances, and commits the OTP to maintaining future visits and cooperation with Colombian authorities.  Implementation and monitoring, of course, will be the key to success for the agreement, especially since Colombians elect a new president next year.

Venezuela: Investigation Open, but Narrowly Drawn

Khan’s next stop was Venezuela, where he met with government leaders and civil society. Soon after, he announced that the ICC would open a formal investigation into crimes against humanity. The focus of the investigation, at least for now, is the use of arbitrary detention, torture, rape, other sexual violence, and political persecution against demonstrators and political opponents from 2017 on. This is a big deal: it’s the first time the Office of the Prosecutor has opened an investigation regarding Latin America, a region where governments were early supporters of the Court.

The OTP opened a preliminary examination into crimes committed in Venezuela in February 2018. In September of that year, the so-called Lima Group (Argentina, Canada, Chile, Colombia, Paraguay, and Peru, although Argentina subsequently withdrew) submitted its own request to the office to open an investigation under Article 14 of the Rome Statute. Because State Parties requested the investigation, it no longer had to be approved by a Pre-Trial Chamber, although the admissibility requirements still had to be satisfied. In December 2020, the OTP found that crimes within the Court’s jurisdiction had indeed been committed; the remaining issues involved whether Venezuelan courts were adequately investigating the crimes. The OTP was under a lot of pressure, including from the Organization of American States (OAS) and civil society, to move forward more quickly.

Venezuela lobbied hard to persuade the Court that it was adequately investigating these cases itself. In the last few months, it opened a number of investigations into deaths at the hands of state agents, released some political prisoners, and passed reforms to the criminal code. It also tried to get a pre-trial chamber to intervene (it declined) and then invited the chief prosecutor to Venezuela to see the advances for himself.

During his visit, Khan met with President Nicolás Maduro several times, as well as with high-ranking political and judicial figures and with civil society groups. As in Colombia, he ended the visit with an agreement with the government, here a Memorandum of Understanding. The memorandum recognizes Venezuela’s support for the ICC, declares that the Office of the Prosecutor decided to open an investigation, and that Venezuela does not agree that the requirements for doing so have been adequately met. Nonetheless, the memorandum commits Venezuela to improving its legal system in order to try cases at home “in accordance with international standards, with the support and active engagement” of the OTP, and to cooperate with the OTP on the Venezuela investigation. The memorandum takes pains to note that at this stage of the investigation, no suspects or targets have been identified, and the purpose of investigation is to get at the truth.

This resolution commits Venezuela to allowing investigators to operate in-country (although not necessarily easily), thus facilitating the OTP’s job. It also provides language that can be used by negotiators seeking to press the issue of the independence of judges and prosecutors as part of (now stalled) talks seeking a political resolution to Venezuela’s crisis. Of course, in other ICC investigations, a pledge to cooperate has not impeded sabotage by powerful putative suspects (see, e.g., Kenya.). Venezuela is also playing offense: it filed its own case at the ICC in February 2020, alleging that the United States is committing crimes against humanity through sanctions on the regime that have created a humanitarian crisis. The Venezuelan government can be expected to continue to showcase one or another occasional prosecution of low-ranking officials for mistreatment of civilians, in an effort to delay and confuse the proceedings.

The OAS, the Inter-American Human Rights Commission, and the U.N. High Commissioner for Human Rights and Human Rights Council have provided extensive reports showing that the alleged crimes referenced in the OTP’s decision are just the tip of the iceberg. Even those reports give short shrift to deprivation of food and medical care, attacks on indigenous peoples, and other potential crimes not directly linked to political opposition to Maduro. As I have written elsewhere, the full scope of crimes against humanity in Venezuela can only be understood in the context of grand corruption and kleptocracy that ties together crimes that on the surface appear disparate, and confirms that these crimes, taken together, meet the requirement of “widespread or systematic.”

New Demands on the ICC

The OTP may choose to focus for now on a smaller, quicker Venezuelan case, but the need to grapple with new contexts and new crimes is not going away. In October, an Austrian environmental group filed a complaint at the ICC against Brazilian President Jair Bolsonaro for ecocide as a result of his encouragement of Amazon deforestation. The Austrian organization  follows in the footsteps of indigenous organizations that filed a similar complaint against Bolsonaro in August for genocide, crimes against humanity, and ecocide. A group of international experts has already proposed adding ecocide to the Rome Statute, while others have done the same for grand corruption. There is also the October 2021 decision of the Brazilian Senate to charge Bolsonaro with crimes against humanity for his mishandling of the Covid-19 pandemic. Those complaints may soon reach the ICC.

In a world increasingly concerned with climate change, kleptocratic states, and rampant inequality, institutions will need to grapple with those issues if international criminal law generally is to retain its expressive function of communicating norms and values. So far, the Court has understandably been reluctant to take on more, given its current problems and limited resources. But eventually, it may not have a choice.

IMAGE: Colombian President Ivan Duque (L) and International Criminal Court Prosecutor Karim Khan exchange signed agreements between the national government and the International Criminal Court at the Nariño presidential palace in Bogota, on October 28, 2021. (Photo by JUAN BARRETO/AFP via Getty Images)