04 Aug Colombia, the ICC — and a Twist!
I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture. Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):
In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.
Apparently Judge Garzon, now consulting with the ICC, agrees with me. He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:
Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.
The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something – there will be claims and the court will have to say something.”
Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” – a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.
The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.
I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I. (See, for example, this excellent article by Jennifer Easterday at Berkeley.) To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.” Here is the AMICC’s assessment:
The Prosecutor of the International Criminal Court, by pressuring Colombia through statements and visits, seems to have boosted Colombia’s historically ineffective justice system. The Colombian Supreme Court is making an unprecedented effort and has had success in bringing to justice those responsible for the worse atrocities against human rights. Although the UN and human rights NGOs continue to report crimes against humanity, for the first time in decades the Colombian judiciary appears to be an effective institution. Thus, under the complementarity principle, the ICC is unlikely to intervene because Colombia, at least for the time being, appears willing and able to hold accountable those who bear the ultimate responsibility for crimes under the Court’s jurisdiction.
Such stark disagreement between Colombia experts may explain the OTP’s reluctance to open a formal investigation. In the end, though, the issue may turn out to be moot — because Colombia itself is now suggesting that the ICC should investigate crimes committed by FARC rebels allegedly based in Venezuela:
Colombia’s Prosecutor General Guillermo Mendoza Diago said Thursday that the Andean nation is considering whether to take evidence of numerous FARC and ELN camps in Venenzuela to the International Criminal Court (ICC), given that the guerrillas commit crimes against humanity and then seek refuge over the border.
“If we manage to establish that and we have information that the people who attack seek refuge in Venezuela and the authorities don’t do anything, but instead support them, then we would be able confirm that we could take the case to the International Criminal Court,” Mendoza said.
According to Mendoza, high-ranking Venezuelan officials, including Venezuelan President Hugo Chavez, could hypothetically be called to testify before the court.
“If the International Criminal Court prosecutor – after we were to have presented the corresponding complaint, well founded in evidence were to be able to establish that Venezuelan authorities were co-participants in these acts, they could all be called to respond,” Mendoza said.
The prosecutor general said that the Colombian government had handed him a file documenting at least 60 attacks against Colombians, committed by FARC guerrillas, who had then fled to Venezuela.
Mendoza is correct that the ICC could investigate FARC crimes committed in Colombia — but he needs to remember that states can only refer situations to the Court, not individual cases or groups of cases. So if Colombia wants to refer FARC’s crimes, it will have to accept the possibility that it will end up under the OTP’s microscope, as well.
I, for one, would very much like that to happen.
Not going to happen. If nothing else, the United States have too much of a stake in Colombia (in the form of various naughty things they allegedly did there), and I don’t think anyone feels like picking a fight with the US over this.
(Not to mention that, at this point in his career, Garzon’s advocacy feels distinctly like a kiss of death.)
If they look at one and not the other it just reinforces the problem many Americans have with the ICC – one word: hypocrisy.
@AdamR: In my experience, that is not the problem most Americans have with the ICC. The problem they tend to have is that it is conceivable that an American might end up in the dock some day. Hence the demands for special exceptions for US citizens (or at least US officials). When it comes to international law, Americans don’t tend to mind hypocricy very much, as long as they’re on the receiving end.
Baltasar Garzón seems to gloss over the whole complementarity issue. Art. 17 does not measure complementarity according to the number of sentences. It is ridiculous to measure an effort to prosecute and punish in such a simplistic way. To quote Kai Ambos, the same unfair assessment could be made of the ICC itself. So far, it has been in place longer than the Justice and Peace Law, and so far it has managed to get zero convictions (and Lubanga is close to being effectively released). The article that you cite to is constructed from a fundamental confusion. Article 17 speaks about attempts to shield the criminals from liability. The article’s author tries to argue that, since the Justice and Peace Law was deliberately crafted to avoid ICC jurisdiction, then it is a bad faith attempt covered by that Art. 17 provision. Those are two completely different concepts, “shielding from liability” and “shielding from ICC prosecution”. The Justice and Peace Law does not shield individuals from liability, it only lowers their sentences subject to certain continuing requirements. The sentences are schokingly low when compared to the regular sentences in Colombian law, and shockingly average when compared to the ones handed down… Read more »
Guillermo is completely misrepresenting Easterday’s article. She does not claim that “since the Justice and Peace Law was deliberately crafted to avoid ICC jurisdiction, then it is a bad faith attempt covered by that Art. 17 provision.” She argues that although the Colombian government is entitled to argue that the JPL is an alternative to ICC prosecution, the JPL’s provisions — combined with deficiencies in the Colombian criminal justice system — do not withstand a complementarity analysis.
It is perfectly fair to contest Easterday’s interpretation of Article 17. Caricaturing it, however, is not.
Kevin, we might have a different reading of Easterday’s argument. I might have oversimplified it. So let’s look at her conclusions at page 104: “In the case of Colombia, the sum total of the evidence suggesting Article 17 has been violated consists of the following: (i) There was explicit use of the Justice and Peace Law as a buffer against the ICC in negotiations between the AUC and the government; (ii) The law provides for minimum standards of soft punishment; (iii) There is a de facto exclusion of guerilla groups from the amnesty process; (iv) The application of the law violates Colombia’s Constitutional Court ruling on its constitutionality, in favor of leniency towards the paramilitaries; (v) There is strong evidence to show extensive control by the AUC of the government, even possibly the President; (vi) Many paramilitary leaders may avoid prosecution in Colombia through extradition to the U.S.; and (vii) There are potentially many government and military actors who are responsible for mass atrocities that may be granted impunity for their crimes.” In my opinion, point (i) is irrelevant. There is nothing in the Rome Statute that prevents a State from enacting provisions deliberately crafted to avoid ICC jurisdiction by… Read more »
I don’t believe that there’s an entire misrepresentation of Easterday’s article, because it’s clear from the text that sometimes the author uses the concept of avoiding criminal liability interchangeably with the concept of avoiding ICC jurisdiction. Take for instance this passage of the introduction: “This paper focuses on the political context in which Colombia has deliberately crafted mechanisms of transitional justice to avoid ICC jurisdiction.” This is quite literally what you are saying she’s not doing… However, it is clear that her main argument rests upon two conclusions: (1) Colombia is unable to prosecute domestically; and (2) Colombia is unwilling to do so (and by saying “unwilling” she actually accuses the State of bad faith when implementing domestic mechanisms of transitional justice). Herein lies my general disagreement. As for the application of Article 17, I find it unfortunate that the Rome Statue makes specific reference to the criteria of “shielding” from ICC jurisdiction as to determine whether there is unwillingness from a State. Quite frankly, the problem is not the shielding per se – I would find it entirely desirable that a State shields ICC jurisdiction by actually prosecuting domestic crimes – the problem only exists if “shielding” is understood… Read more »