Has Colombia Self-Referred to the ICC?

by Kevin Jon Heller

El Universal — along with other newspapers — is reporting that one of President Uribe’s final acts in office was to file a complaint with the ICC alleging that Hugo Chavez, the President of Venezuela, is responsible for permitting FARC guerrillas to use Venezuela as a staging area for crimes committed in Colombia:

Jaime Granados, the lawyer of Colombian outgoing president Álvaro Uribe, on August 6 filed a complaint against Venezuelan President Hugo Chávez at the International Criminal Court (ICC) and a lawsuit against the Bolivarian Republic of Venezuela at the Inter-American Commission on Human Rights (IACHR).

[snip]

“Indeed, today (August 6) I forwarded to the headquarters of the International Criminal Court in The Hague, to the office of Luis Moreno Ocampo, the court’s prosecutor, the relevant complaint, and we expect he to take action,” said Granados.

[snip]

This is a “complaint against the Head of State, Hugo Chávez, as a natural person, at the ICC, based on the Treaty of Rome, and the other one is a lawsuit filed with the Inter-American Commission on Human Rights against the Bolivarian Republic of Venezuela,” Granados explained.

Granados said that such human rights violations also have to do with the alleged presence of guerrillas of the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) in Venezuelan territory.

Both the lawsuit and the complaint are reportedly related to the fact that guerrillas are preparing terrorist acts while on Venezuelan soil for implementation in Colombia against people.

Uribe’s move came only hours before handing over power to president-elect Juan Manuel Santos. The decision threatens to stir further tensions with Chávez’s government, which broke diplomatic ties on 22 July after Colombia reported at the Organization of American States (OAS) the presence of guerrillas in Venezuela.

This is an interesting development, one that raises both substantive and procedural questions.  Substantively, on what basis does Colombia think Chavez is criminally responsible for FARC’s actions?  Soliciting or inducing?  Aiding and abetting?  Contributing to a group crime?  Aiding and abetting seems the most likely, given that Article 25(3)(c) singles out “providing the means” for the commission of a crime.  But that would require proof that Chavez is allowing FARC to set up camps in Venezuela “for the purpose of facilitating” FARC’s crimes — a very high standard.

The procedural questions, however, are even more interesting.  Most important, is this is a self-referral by the Colombian government?  It seems like it has to be — Article 25(3) criminalizes participating in a crime within the jurisdiction of the ICC, and here the relevant crimes have been and are being committed in Colombia, not in Venezuela.  Differently put, Colombia is not accusing Chavez of committing a crime in Venezuela; it is accusing Chavez of committing acts in Venezuela (permitting the camps to exist or perhaps even providing the camps) that make him responsible for crimes committed in Colombia.  So the Colombian government can refer Chavez to the Court only by self-referring the situation in Colombia.

That, of course, raises another question: what counts as a self-referral?  Presumably, the Colombian government only wants to refer Chavez to the Court; it doesn’t want to refer the situation in Colombia as a whole, because that would expose government officials and military leaders to prosecution as well as Chavez.  But, of course, a state can only refer situations to the Court, as the text of Article 14 of the Rome Statute makes inordinately clear.  So should the OTP treat the complaint as, in effect, a self-referral of the entire Colombian situation?  If it does, can Colombia “un-self-refer” the situation?  It seems like it should be able to do so, but we don’t let other self-referring states un-self-refer, no matter how much they might like to.  The only difference between, say, Uganda and Colombia would be that it took Uganda longer to regret its self-referral.  Moreover, permitting successive heads of state to use the ICC as a football is a very bad idea under any circumstances.

Unfortunately, the Rome Statute is silent on these issues.  Article 14 simply provides that “[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”  And Rule 45 of the Rules of Procedure and Evidence is even less helpful, stating that “[a] referral of a situation to the Prosecutor shall be in writing.”  (Thanks, Rule 45.  A writing written by whom?  Saying what?  Does it have to be notarized, or will a fax from Kinkos do?)

Readers?  Your thoughts?

http://opiniojuris.org/2010/08/08/has-colombia-self-referred-to-the-icc/

6 Responses

  1. Kevin,

    The substantive issue raised by Granados is fairly straightforward. There is zero evidence of President Chavez’s liability on any of the modes of responsibility envisaged in Art. 25(d).

    As for the self-referral, I would agree that once a State refers itself it cannot turn back on its decision, and that the State cannot shape the referral to explicitly include certain groups while excluding others (as in the Uganda LRA referral). But this is a completely different situation. The ‘complaint’ filed by Granados shows a complete misunderstanding of the Rome Statute, as he seems to believe that the ICC works on the basis of individual criminal complaints. Even if he were acting on behalf of Colombia, this should not be taken as a self-referral, as it is just a specific complaint against the purported actions of one person. The necessary response would be a clarification that the OTP will initiate an investigation on the situation in Colombia as a whole, if it finds enough evidence to do so. As I discussed in your previous post, I disagree that the Article 17 threshold has been met in the Colombian situation.

    In any case, this communication has not been sent on behalf of the Government of Colombia. The referral needs to be done by someone enjoying full powers as per the VCLT, or authorized by such a person. Granados is not acting on behalf of Colombia, he is the private attorney of the former President. His authorization to act stems from his private relationship with Uribe, and Granados is not even a member of the Government. Thus, his ‘criminal complaint’ needs to be taken as information received by the Prosecutor on the basis of Article 15, not a self-referral.

  2. Guillermo,

    You make some excellent points.  But you admit that “[t]he referral needs to be done by someone enjoying full powers as per the VCLT, or authorized by such a person.” Uribe was still the head of state when the complaint was filed, so why could he not authorize Granados to act on Colombia’s behalf?  Nothing in the Rome Statute or the VCLT says that the authorized person has to part of the government to enjoy “full powers.”  A formal document authorizing that person is not even necessarily required (VCLT, art. 7(1)(b)). So on what basis do you claim so categorically that “this communication has not been sent on behalf of the Government of Colombia”?

    As for the Article 17 point, we obviously disagree on the substance of the issue.  Regardless, that question would be determined by the Court once the OTP decided to open an investigation into the situation, not before.

  3. Kevin,

    The point is moot. I have just read in the Colombian press that Granados filed the ‘complaint’ on his own behalf, and was not requested by Uribe to do so.

    In any case, however, I believe he would have been acting pursuant to a power of attorney, representing Uribe as a private citizen. The surrounding circumstances would not have lent themselves to believe that Uribe authorized him to represent Colombia before the ICC. Granados regularly takes care of Uribe’s private business, is not employed by the Government, and has never represented the Government abroad. Colombia’s relations with the ICC are regularly handled by the Embassy in The Hague. This prior practice would, in my view, have been a relevant factor to take into account in order to determine who the communication may be attributed to.

    However, as pointed out above, the point is moot. This is apparently a communication by a Colombian citizen (Granados), which the Prosecutor may take into account in order to exercise his Article 15 powers.

    An interesting aspect of the situation is that the only set of crimes which have not been prosecuted are those related to the material support allegedly given by Venezuelan officials to the guerrillas. Would lack of prosecution in this case satisfy the Art. 17 threshold for admissibility of the situation?

  4. I guess that one of the purposes of article 13, when they opted for situations and not individual cases, was to avoid that the ICC were used as a political instrument to create political tension between political opponents.

    This is precisely what this whole thing is about. Uribe has been publicly talking about filing a “suit” against Chavez in the ICC for quite some time now to meet domestic political concerns.

    Instead of being loud within the ICC, Colombia should attempt to go completely unnoticed. After all, our art. 17 discussion is not a discussion that Colombia wants to see discussed by real judges… These efforts are a huge mistake by the Colombian government for the exact same reason which you point out, Kevin. If they keep trying to retaliate against an old political enemy with the ICC as their weapon, they might just end up in the stand themselves.

    Your country has good international/criminal lawyers Kevin. Ours doesn’t. We just try to ignore these unsubstantiated international acts because we know there’s no informed decision behind them.

  5. I’m going to state the obvious, but at the moment, we (the public) do not know enough to be able to establish whether Uribe through his personal lawyer acted as head of state or as a private individual. I do find it suspicious however that he would do so during his last day in office. If he wanted to attract the OTP’s attention on Chavez in his capacity as a private Colombian citizen, why did he not wait until he was out of office to lift any ambiguity?

    And let’s not forget that parallel to this “referral” (for lack of a better word) to the ICC, a procedure has also been engaged before the Inter-American Court of Human Rights against the State of Venezuela.

    In any case, this could develop into something interesting.

    An interesting information to mention is that the ICC staff is currently thinking over its budget, meeting with NGOs and academics to discuss it, before submitting it to a vote by the ASP in December. I’m not sure the ICC will manage to handle so many investigations without a budget increase, and from what I’m hearing, that is NOT on the table, at least as far as the OTP is concerned.

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