This PhD research, funded by the NWO, aims to determine to what extent sanctioning is part of the ICC’s complementarity assessment, particularly during peace processes.
The International Criminal Court (ICC) has jurisdiction over genocide, crimes against humanity and war crimes. Under the ICC’s principle of complementarity, states have primary responsibility to prosecute such atrocities and the ICC should step-in only if national states are “unable or unwilling” to do so. In the context of peace negotiations, the issue of future prosecutions and sanctions (e.g. imprisonment, fines or alternative sanctions) is often pivotal. (High-level) perpetrators of international crimes often agree to sign peace accords conditional on amnesty or minimal retributive measures. It is unclear whether this could lead to the ICC determination that a State is “unwilling” to genuinely prosecute crimes and a subsequent ICC intervention: the Rome Statute lacks explicit legal regulation on the role of sanctions in this respect. This lacuna can complicate or even paralyze peace processes.
After sixty years of war, the Colombian government is negotiating peace with the main guerrilla group (FARC-EP). Guerrilla leaders have expressed their openness to investigations, but any potential punishment remains contentious. The key element that can tilt the scale is the possible intervention of the ICC if it determines that international crimes are going unpunished. This study synthesizes doctrinal analysis of this ‘complementarity principle’ with empirical analysis of sanctions negotiated during peace processes – focusing on Colombia. The findings contribute to the legal authority of the ICC and provide guidelines for practitioners. As such, it generates a basis for future conclusion of durable peace accords.
- Barbora Hola and Catrien Bijleveld