Has Colombia Self-Referred to the ICC?
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).
“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.
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?