Volume 48
Issue 3
Spring '17

Contextual Complementarity: Assessing Unwillingness and “Genuine” Prosecutions in Colombia’s Special Jurisdiction for Peace

Written By: Caroline D. Kelly


The November 2016 peace agreement in Colombia is an historic achievement for the country after a fifty-year conflict. One crucial aspect of this deal is the Special Jurisdiction for Peace–the accountability framework established by the parties to prosecute violations of international criminal law. The situation in Colombia is still under a preliminary examination by the International Criminal Court (ICC). While the ICC is precluded from prosecuting individuals in Colombia for Rome Statute violations if the country is willing to genuinely prosecute them, the ICC makes the determination of whether or not the prosecutions are “genuine.” This Note analyzes the ICC’s complementarity assessment to determine whether the Special Jurisdiction for Peace will be considered a “genuine” prosecution. It then considers the range of goals and accountability mechanisms that a country emerging from conflict may pursue in its transitional justice process and how those may differ from those of the ICC. This Note concludes that the Office of the Prosecutor of the ICC should consult with Colombian actors, provide clearer guidance on sentencing, and exercise its prosecutorial discretion to provide countries flexibility in pursuit of a transitional justice process that best fits the context of the transition and the goals of the country.

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