Assessing complementarity: the ICC and human rights policy in Colombia

The International Criminal Court (ICC) began in July 2002 as a complementary court, designed to supplement and not simply replace national jurisdictions for the prosecution of grave international crimes. This thesis examines how the ICC’s complementary jurisdiction has functioned in the context of the Court’s preliminary examination in Colombia, which was initiated in 2004. Scholarly literature on the ICC suggests that the Court has the potential to influence member states through positive complementarity. Policy documents produced by the Court indicate that preliminary examinations may be used to encourage states to comply with their obligations under the Rome Statute. Drawing on constructivist theories about the dissemination of norms, this thesis investigates if the Court has functioned as an agent of state socialisation to encourage Colombia to honour its obligations. Past national experiences of transitional justice in Latin America are reviewed in order to identify key domestic institutions which have been essential in determining the scope of accountability processes at the national level. Then the key institutions in Colombia are examined in detail to assess how the Court has influenced their operation. The findings of this thesis show that individual criminal accountability has become more important in Colombia since Colombia ratified the Rome Statute in 2002, and it now forms a central part of national debates about transitional justice mechanisms. However, different domestic institutions demonstrate variable levels of normative acceptance of Colombia’s obligations under the Rome Statute. The nation’s Constitutional Court has acted most consistently with these obligations, and the Prosecutor (the Fiscal) has used the statute to advocate the need for investigations into crimes committed by state forces. In contrast, the military has developed a discourse of legal insecurity to argue for reduced civilian oversight of military justice reform. While the executive and the legislature have come to recognise the importance of being seen to act on human rights issues, individual criminal accountability is still contested through the use discourses such as restorative justice and the legal insecurity of the nation’s security forces.