Closing the Preliminary Examination in Colombia Should Not Mean Closing the Eyes: Why the Jurisdicción Especial para la Paz Still Faces Challenges in Interpreting ‘Command Responsibility’ in Accordance with the Rome Statute

Jana Kreulach

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6 Closing the Preliminary Examination in Colombia Should Not Mean Closing the Eyes

Why the Jurisdicción Especial para la Paz Still Faces Challenges in Interpreting ‘Command Responsibility’ in Accordance with the Rome Statute

In: Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

Author:

Jana Kreulach

Jana Kreulach
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Type:: Chapter

Pages:: 147–180

DOI:: https://doi.org/10.1163/9789004544796_007

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Abstract

With the closing of the preliminary examination in Colombia by the new Prosecutor of the International Criminal Court (ICC) on 28 October 2021, it was concluded that the complementary principle in Colombia is working. This article shows why the international justice system should not turn its back on the still-progressing work of the Jurisdicción Especial para la Paz (JEP) as the challenges it has been facing for several years in applying a legal standard in consistency with the Rome Statute have not been dissolved by the formal closure of the preliminary examination. This is exemplified by an assessment of the scope of command responsibility applicable to proceedings before the JEP. As the JEP has not yet issued a final judgment on the criminal responsibility of commanders of the FARC-EP or the Colombian armed forces, whether the complementarity principle is indeed working in Colombia is assessed in light of the Colombian legislators’ approach to criminalise command responsibility. By doing so, this article identifies the failure to recognise the JEP as an internationalised hybrid tribunal and the tribunal’s consequent dependence on the jurisprudence of the Colombian Constitutional Court as the main obstacle for applying the rationale of the Rome Statute. It is further argued that the failure to await how the JEP applies its complex legal basis in a final judgment renders the closing of the preliminary examination premature. The Office of the Prosecutor should therefore continue to observe the situation closely and consider the reopening the preliminary examination.

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Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

Series: Hague Yearbook of International Law / Annuaire de La Haye de droit international, Volume: 34

E-Book ISBN:: 9789004544796

Publisher:: Brill | Nijhoff

Print Publication Date:: 19 Jul 2023

Subjects
- International Law
  - Public International Law

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6 Closing the Preliminary Examination in Colombia Should Not Mean Closing the Eyes

Why the Jurisdicción Especial para la Paz Still Faces Challenges in Interpreting ‘Command Responsibility’ in Accordance with the Rome Statute

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Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

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