Newsletters of the Observatory on
the JEP

Newsletter No 3. Observatory on the SJP

December 20, 2019

Newsletter # 3

Translated with the support of United Nations Online Volunteering and the volunteers Lilian Kassin, María Alejandra Saldarriaga and Alejandro Gallegos


This newsletter offers information on the issues presented by the Office of the Prosecutor of the International Criminal Court (ICC) concerning the Special Jurisdiction for Peace (SJP), set forth in the Report on Preliminary Examination Activities 2019 published on December 5, 2019.

  1. Colombia: under preliminary examination by the Office of the Prosecutor of the International Criminal Court since 2004

The ICC, founded by the Rome Statute in 1998 and officially instituted in 2002, is the only permanent international court established to investigate, prosecute and try individuals responsible for the most severe crimes of concern for the international community, such as crimes against humanity, the crime of genocide and war crimes. It is complementary to national criminal justice systems, this means, it acts against impunity for perpetrators in the event that States fail to prosecute.

The Office of the Prosecutor of the ICC, for its part, is the responsible body for receiving information, conducting the analysis of the alleged crimes and performing investigations and prosecutions before the Court. Publicly, the work of the Office regarding impunity for alleged crimes begins with a preliminary examination, which allows it to gather the necessary information in order to determine whether there is sufficient grounds to open an investigation based on the information submitted by States, organs of the United Nations, intergovernmental or nongovernmental organizations and other individuals or entities deemed appropriate [1].

The situation in Colombia [2] has been subject to a preliminary examination by the Office of the Prosecutor of the ICC since June l, 2004. The Office of the Prosecutor issued a public statement for the first time on the progress of the preliminary examination in 2012, when it announced in an interim report that,  according to the information received, there were reasonable grounds to believe that crimes against humanity [3] and war crimes [4] had been committed by State actors, such as the public forces, and non-state actors, such as the FARC-EP, the ELN, and paramilitary groups.

Based on these elements and on the available information, the Office of the Prosecutor decided to focus its analysis in the preliminary examination on : i) proceedings relating to the promotion and expansion of paramilitary groups; ii ) proceedings relating to forced displacement; iii ) proceedings relating to sexual crimes; and iv ) proceedings relating to killings and enforced disappearances, commonly known as false positives cases; and v ) follow-up on the Legal Framework for Peace and other relevant legislative developments related to transitional justice. Regarding the latter, with the signing of the Peace Agreement between the State and the FARC-EP, the implementation and operation of the SJP has become one of its focal points.

In order to provide an account on progress of the preliminary examination, the Office of the Prosecutor of the ICC publishes an annually report detailing its findings and next steps. Last December, it published its Report on Preliminary Examination Activities 2019 wherein, along with discussing other legal proceedings in the country, it provided some observations regarding to the functioning and operation of the SJP that are summarized below.

  1. How did the Special Jurisdiction for Peace fare in the preliminary examination report issued by the Office of the Prosecutor of the International Criminal Court?

In the Report on Preliminary Examination Activities 2019, the Office of the Prosecutor addressed the actions that the SJP has carried out to begin operations and carry out its functions in order to investigate, prosecute and punish the severe crimes under the competence of the ICC, some of them object of the preliminary examination, as seen in the following graph:


Graph 1. Legal actions of the SJP recognized by the Office of the Prosecutor of the ICC

i) Proceedings relating to the promotion and expansion of paramilitary groups   ii) Proceedings relating to forced displacement

It indicated that the SJP had accepted the requests of State officials who are not members of the Public Force to participate in proceedings before the jurisdiction, who have been prosecuted or convicted for associations to the paramilitaries. In particular, it referred to the cases of David Char Navas, Ashton Giraldo and Ramiro Suárez.


It referred to the legal proceedings of the SJP in Case 002 (Situation in the municipalities of Ricaurte, Tumaco and Barbacoas in the department of Nariño); Case 004 (Territorial situation in the Urabá region); and Case 005 (Territorial situation in the Cauca region). It mainly focused on the voluntary statements carried out, the identification of eligible and/or accredited victims to participate in the proceedings, preliminary identification of perpetrators and the convening of collective hearings for the dialogic construction of truth carried out in each case.

iii) Proceedings relating to sexual and gender-based crimes   iv) Proceedings relating to “false positives” cases

It referred to the actions of the SJP in Cases 002, 004, 005 and 007 (Recruitment and use of children in the armed conflict) in response to such type of crime: in Case 002, it mentioned the accreditation of a group of victims of sexual violence; in Case 004, a high number of women and members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community were identified as victims of sexual or gender-based violence, whose accreditation process  is ongoing; in Case 005 the review of reports from civil society organizations that report sexual or gender-based crimes; and in Case 007, the identification of cases of children and adolescent victims of sexual slavery, planned and forced abortions, and other forms of violence during their forced recruitment.


It mentioned the actions of the SJP in Case 003 (Illegitimately perpetrated deaths presented as combat casualties by Agents of the State) including:

·         314 accredited victims.

·         The rendering by 119 members of the public forces of 155 voluntary statements who were members of Artillery Battalion No 2 “La Popa”, 10th Brigade, First Division (department of Cesar); 15th Mobil Brigade and Infantry Battalion No. 15 “Francisco de Paula Santander”, 30th Brigade, Second Division (department of Norte de Santander); 16th Brigade, Fourth Division, (department of Casanare); Infantry Battalion No. 21 “Batalla del Pantano de Vargas”, Fourth Division (department of Meta); Infantry Battalion No. 27 “Magdalena”, 9th Brigade, Fifth Division (department of Huila) and; Artillery Battalion No. 4 “Jorge Eduardo Sánchez”, 4th Brigade, First Division until 2005 and  Seventh Division subsequently (department of Antioquia).

·         Participation by 16 victims and 8 social organizations in voluntary statements hearings.

·         Presentation in public hearings of observations by victims regarding 31 voluntary statements.

Own elaboration based on Report on Preliminary Examination Activities 2019  of the Office of the Prosecutor of the ICC


In the report’s conclusions, the Office of the Prosecutor of the ICC noted, “The Colombian authorities appear to have made progress towards the fulfilment of their duty to investigate and prosecute conduct amounting to war crimes and crimes against humanity under the Rome Statute, and thereby also addressing the forms of conduct underlying the potential cases identified by the Office. During 2020, the Office will continue assessing the genuineness of the proceedings carried out under the ordinary justice system, the JPL tribunals and the SJP, as well as contextual and legislative developments that may impact the effective conduct of their operations” (par. 132). And it stated it will follow closely the individual proceedings in the framework of the SJP’s macro cases. It also announced it would establish some benchmarks that would enable it to complete the preliminary examination, subject to the continued fulfilment of certain conditions, such as: the absence of manifest gaps in the scope of national proceedings or factors vitiating the genuineness of the investigation, prosecution and sentencing and the imposition of effective penal sanctions that serve appropriate objectives in terms of  retribution, rehabilitation, restoration and deterrence nationwide.


The Office of the Prosecutor of the ICC’s mention of the efforts and activities of the SJP in the advancement towards fulfilling the duty to prosecute and sanction war crimes and crimes against humanity committed in the context of the armed conflict, especially under the ICC’s jurisdiction, is an important acknowledgment that promotes to the commitment of this jurisdiction in the fight against impunity in the country, and endorses the pursuit of results concerning justice and truth for the victims. This contributes to strengthening the legitimacy and functioning of the SJP in an environment that constantly poses obstacles both to the internal and external operations, and in the face of charges by its opponents of encouraging impunity.

However, this recognition does not imply that we can disregard that the reasons for the Office of the Prosecutor of the ICC’s preliminary examination of Colombia persist, as the SJP’s operation is only just beginning. There are as yet no legal verdicts regarding those responsible; the scale, nature, form, or impact of the crimes nor the policies or plans that were part thereof, remain to be clarified; and the victims expect themselves to be at the center of the legal proceedings, so it is necessary to wait and see how the proceedings and the actual sanctions will play out. This means that, although the SJP has shown signs progressing in the right direction, it is too early to declare that it has managed to overcome impunity, and therefore the Office of the Prosecutor of the ICC’s preliminary examination on the crimes under its competence should not end.

Additionally, the SJP has had to avoid various political and legal attempts to affect its operation or alter its structural elements. During the time that the SJP has been operational, for example, the next initiatives were presented: the Legislative Bill 087 of 2018, whereby the House of Representatives sought to restrict the SJP from accessing confidential or sensitive public information related to “national security”; the objections raised by the President to the statutory law for the SJP, which would have impacted its ability to prosecute; the Legislative Bill 38 of 2019 which proposed, whereby sexual offenses against minors could not be prosecuted by the SJP; the Legislative Bill 12 of 2019, which seeks to create four special chambers in the SJP’s Peace Tribunal, comprised of magistrates appointed by the President of the Republic and validated by the Congress, and a Special Investigation and Prosecution Unit is for members of the Public Forces. Such initiatives demonstrate that, although the SJP is directing it efforts in a positive direction, there are constant risks undermining its work.

For these reasons, it is important that, notwithstanding the due recognition offered to the advancements of the SJP, the Office of the Prosecutor of the ICC must be especially alert to the activities of the State concerning upholding conditions of impunity, which might affect the SJP’s procedures and activities, as well as the status of its internal operations concerning the rights of victims, and continue its preliminary examination on Colombia until that jurisdiction has been able to make progress with specific outcomes regarding justice, and the situation is less risky for its proper operation. Currently, the conditions are not in place to conclude the preliminary examination.



[1] See Rome Statute, Article 15.

[2] Colombia deposited its instrument of accession to the Rome Statute on August 5, 2002, along with a declaration pursuant to Article 124 that excluded war crimes from the jurisdiction of the ICC for a period of seven years. Consequently, the ICC can exercise its jurisdiction over war crimes committed in the territory or by Colombian nationals as of November 1, 2009, and over other crimes listed in the Rome Statute, such as crimes against humanity, committed since November 1, 2002.

[3] The Office of the Prosecutor of the ICC specifically refers to the following crimes against humanity: murder, forced displacement of the population, imprisonment or other severe deprivation of physical liberty in violation of fundamental norms of international law, torture, enforced disappearance and rape and other forms of sexual violence. The distribution of crimes by armed actor is on page 48 of the interim report.

[4] The Office of the Prosecutor of the ICC specifically refers the following war crimes: homicide, attacking civilians, torture and cruel treatment, outrages upon personal dignity, hostage-taking, rape and other forms of sexual violence, and the conscripting, enrolment and use of children to participate actively in hostilities. The distribution of crimes by armed actor is on page 48 of the interim report.

[5] In its annual Report on Preliminary Examination Activities 2015, the Office of the Prosecutor of the ICC took into consideration that, within the negotiation framework of point 5 on Victims, the creation of a “Special Jurisdiction for Peace” (SJP) had been agreed. In the reports that followed (2016, 2017, 2018 ) it focused on progress in the implementation and operation of the SJP.