A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:

“I don’t see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done…If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery…We must sequence them.”

I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice.

The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace.

The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:

violent conflict –> negative peace –> justice and accountability –> positive peace

Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.

(more…)

Kate Sheppard has an interesting post at Mother Jones today discussing a series of WikiLeaks cables that detail Chevron’s attempts to convince the Ecuadorian government to end the lawsuit against it.  Here are the two key cables she discusses:

This from a March 2006 cable written by US officials in Quito:

“In previous meetings, Chevron reps have suggested that the [US government] pressure the [Government of Ecuador] to assume responsibility for the environmental damage in the areas once operated by Chevron. Given the complex legal questions and the questions of fact disputed in the case, it does not seem likely that any available inducements would convince the [government of Ecuador] to assume what may amount to billions of dollars of environmental liability.”

Another cable from April 2008 also provides insight into Chevron’s attempts to get the government of Ecuador to help them get rid of the case:

“Meanwhile, Chevron had begun to quietly explore with senior [government of Ecuador] officials whether it could implement a series of social projects in the concession area in exchange for GOE support for ending the case, but now that the expert has released a huge estimate for alleged damage, it might be hard for the GOE to go that route, even if it has the ability to bring the case to a close.”

More cables about Chevron and Ecuador here, here, here, and here.

In contrast to Chevron’s half-baked allegations of judicial corruption in Ecuador, allegations of political corruption by Chevron seem wholly justified.

Fantastic news:

New York – A federal appeals court vacated an order Monday by a New York judge that barred an $18 billion judgment in Ecuador against Chevron Inc. for contaminating the Amazon.

The three-judge panel of the 2nd U.S. Circuit Court of Appeals had previously expressed skepticism that a New York judge could wield jurisdiction outside the U.S.

The lead lawyer for the plaintiffs, Pablo Fajardo, told The Associated Press by phone on Monday that they expected to be able to begin to collect by the first quarter of 2012 the damages that a Lago Agrio, Ecuador, court ordered Chevron to pay.

“We can now at least dream there will be justice and compensation for the damage, the environmental crime, committed by Chevron in Ecuador,” he said, adding that the decision “lets the world see that we are right, not just in Ecuador but in any court in the world.”

Representatives for the oil company did not immediately respond to requests for comment Monday.

Chevron has appealed the Lago Agrio decision, which was issued in February, and Fajardo said he expects an appeals court ruling in Ecuador in the next few months.

In New York, U.S. District Judge Lewis A. Kaplan had barred collection of the award, after determining that Chevron could prove that lawyers had manipulated a corrupt legal system in Ecuador to secure the judgment. The company had argued that the plaintiffs would collect the judgment before an appeals process was completed in Ecuador.

But a lawyer for the Ecuadorean plaintiffs told the appeals court in oral arguments Friday that they would not attempt to recover damages until the appeals process in Ecuador was completed.

The award followed nearly two decades of litigation.

When Kaplan issued his bizarre decision, I wondered what authority a U.S. judge had to interfere with Ecuador’s judicial process.  (Can you imagine what the reaction would have been if the situation was reversed?)  Apparently I wasn’t the only one who was skeptical.

There is still a long way to go legally, but this is an important step in holding Chevron accountable for the massive environmental damage it has caused to the Amazon rainforest.

For more information about what is referred to as Chevron’s “Rainforest Chernobyl” — the company deliberately dumped more than 18 billion gallons of toxic waste-water and spilled approximately 17 million gallons of crude oil in the area — see the ChevronToxico website here.

Last week Julian Ku and I had the pleasure of working with Business Roundtable and a wonderful group of international law scholars–Rudolf Dolzer, Burkhard Hess, Herbert Kronke, Davis Robinson, Christoph Schreuer, and Janet Walker–on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law. The amicus brief addresses an appeal of Judge Kaplan of the Southern District of New York’s preliminary injunction enjoining Ecuadorians and their lawyers from enforcing the $18 billion Ecuadorian judgment, concluding that their was a substantial likelihood that Chevron would prevail in its argument that the judgment was procured by fraud. Here’s our summary argument:

Antisuit injunctions are well-established judicial devices recognized by countries around the world. Contrary to the position of Defendants’ amici International Law Professors (“Anton Professors”), use of such injunctions does not violate public international law principles of non-intervention in the affairs of other states. Nor does the District Court’s injunction implicate the “exhaustion of remedies” requirement or exceed international law limits on adjudicatory jurisdiction.

While antisuit injunctions do require sensitivity to concerns for international comity, recourse to an antisuit injunction in order to prevent fraud and injustice does not offend principles of international comity. International comity as applied in this Court is designed to protect amicable working relationships with other countries. The fact that New York is the natural forum and the court first seized with an enforcement action, and that there are no concurrent proceedings or objections from countries where other enforcement actions might be brought, supports a finding that the antisuit injunction does not offend international comity. Nor is international comity offended if the District Court refuses to recognize and enforce an Ecuadorian judgment that was procured by fraud or that otherwise does not satisfy the traditional grounds for recognition and enforcement of foreign judgments.

The propriety of antisuit injunctions under international law and comity, especially to prevent fraud and injustice, is confirmed by the acceptance of such injunctions in jurisdictions around the world. Every major common law country in the world allows antisuit injunctions. These countries all recognize the legitimacy of issuing antisuit injunctions to prevent injustice, including measures to prevent the enforcement of foreign judgments procured by fraud.

Today civil law countries are inclined to recognize the use of antisuit injunctions by courts in common law countries to restrain proceedings in civil law countries. Civil law countries also have developed their own tools to achieve the equivalent of an antisuit injunction. To the extent courts in civil law countries are called upon to address an antisuit injunction such as that issued by the District Court in this case, they are well within their authority to recognize such an injunction under the balancing test that their doctrine of comity employs. EU law preventing antisuit injunctions as between Member States does not preclude recognition of antisuit injunctions issued by a court in a non-EU Member State.

This brief was written largely in response to another amicus brief written by a group of international law professors supporting the Ecuadorian defendants-appellants, led by Donald Anton of the Australian National University College of Law. Here’s their summary of argument:

This case involves important international legal issues associated with the exercise of adjudicatory jurisdiction by the District Court in this case. The District Court’s failure to consider and apply international legal obligations binding on the United States has resulted in reversible error. The preliminary injunction should be dissolved and the case dismissed.

First, the preliminary injunction granted in this case is framed in such a way so as to violate the ancient customary international law principle of nonintervention. It does this by illegally intruding into Ecuador’s external domestic affairs by, in essence, prohibiting any other state from independently ruling on the issue of recognition and enforcement of the Ecuadorian judgment against Chevron.

Second, the assertion of jurisdiction by the District Court is prohibited by the customary international law limitation of reasonableness because the defendants in this case lack any internationally legally significant contact with the United States.

Third, the District Court’s preliminary injunction cannot stop Ecuadorian defendants from seeking to enforce the judgment outside the United States. It cannot compel any other state from assuming jurisdiction and deciding for itself the issues of recognition and enforcement. It is accordingly a futile order and should be dissolved as improvidently granted.

Fourth, the District Court’s injunctive relief offends basic standards of international comity because the preliminary injunction high handedly purports to stake out exclusive world-wide jurisdiction.

Fifth, the exhaustion of local remedies by Chevron in Ecuador is required by international law. Because the judgment in Ecuador is not final, the District Court should not have accepted jurisdiction.

Of course, the central focus of the Second Circuit’s decision will not be international law, but rather the proper application of Second Circuit precedent on antisuit injunctions. Peter “Bo” Rutledge of Georgia Law School has a great amicus brief on behalf of the U.S. Chamber of Commerce addressing that issue. The brief of the Ecuadorian defendants-appellants is here and Chevron’s brief is here.

The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy.

The Shafis argue that “the [Palestinian Authority's] conduct violated universally recognized and applicable norms of international customary law prohibiting torture by a public official .” App. Br. 22. That argument cannot prevail. Appellants are advancing a theory that nonstate actors can nonetheless be public officials. We need not decide whether that is a possibility, as there is clearly no sufficiently universal norm of international law supporting such a concept to support the creation of an ATS cause of action for torture against a nonstate actor, even if that actor falls into the appellants’ proposed expanded category of “public official.”

The Court recognized the some actions by non-state actors could be actionable, such as piracy and infringements of rights of ambassadors. It also seemed to accept Kadic v. Karadzic’s rationale that genocide by a non-state actor could be actionable. Nonetheless, the Court held that “in 2011 it remains the case that appellants have shown us no such consensus. The complaint does not state a claim cognizable within the jurisdictional grant of the Alien Tort Statute.”

The Safis argued that Common Article 3 of the Geneva Conventions provided the requisite consensus, but the Court rejected that argument, finding that the status of the PLO and the nature of Israeli relations with the Palestinian territory are subjects of continuing debate. In other words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision).

The Court also upheld the district court’s decision to dimiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so.

One of the more interesting parts of the opinion came from Senior Judge Stephen Williams. In his concurring opinion, Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty:

“It seems to me that the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war. Piracy involves a rejection of the Westphalian system itself—pirates remove them-selves from the national building blocks of interna-tional society (and hence are enemies of all mankind). … As to cases against foreigners, violations of the law of nations would be actionable under the ATS if they matched piracy as an affront to Westphalian sovereignty itself, or if the foreign perpetrator were linked to the United States by residence or by some other feature such that American disregard of the offense might cause serious blame to fall on the United States.”

Curiously, Senior Judge Williams failed to apply his analysis to the question at hand: whether a Palestinian who is serving as an Israeli spy and is tortured by the Palestinian Authority because he is a spy in any way implicates the Westphalian system such that his claim should be actionable.

The slow, quiet demise of the ATS continues. Without further support from the Supreme Court, it appears that the statute is in free fall.

A class action complaint filed this week by Guatemalans has all the ingredients for a blockbuster case not unlike the syphilis experiments of Tuskegee, Alabama. Regardless of the outcome of the case, it is a public relations nightmare for the United States. As the complaint alleges, “It has been revealed that despite … global attention to medical ethics following the Nuremberg Trials that had concluded eight months prior, the [United States Public Health Service] … sanctioned a VD [venereal disease] medical study in Guatemala…. This decision to move to Guatemala was part of a deliberate plan to continue the Tuskegee testing offshore, where it would not be subject to the same level of oversight as in the United States.” (p. 2-3).

The complaint raises ATS, constitutional, and state law claims. The ATS claims allege that the United States engaged in unlawful medical experimentation on non-consenting adults in violation of international law and violated international law prohibitions against cruel, inhuman and degrading treatment. The constitutional arguments raise Fifth Amendment substantive due process claims and Eighth Amendment cruel and unusual punishment claims.

In October of last year, Secretary of State Hillary Clinton and HHS Secretary Kathleen Sebelius apologized to the victims:

“The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical ,… Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices.”

However, according to recent reports, efforts to reach a settlement have failed.

As a legal matter the claim is weak. The statute of limitations has long since run on the claims, the United States enjoys sovereign immunity, and the Guatemalan victims are not within the class of individuals that enjoy constitutional protections. The U.S. Constitution simply does not travel abroad to protect foreigners against the foreign misdeeds of the United States. The Eighth Amendment is not applicable because the experiments were not part of a “punishment” in a constitutional sense. Nor is it even clear that the substantive due process claims that the plaintiffs rely upon were recognized at the time these medical experiments were conducted. The state law claims are not alleged with sufficient specificity to judge their merits. (Claims under the FTCA are not raised and would be unsuccessful anyway as that statute bars claims arising in foreign countries).

However, as a moral and ethical matter the United States should reach an appropriate settlement and compensate the victims. It is simply scandalous to conduct medical experiments on unsuspecting Guatemalans to test the effects of untreated sexual diseases. If the facts alleged in the complaint are true, the United States intentionally injected syphilis in Guatemalan prison inmates and mental patients. At precisely the same time Telford Taylor was prosecuting twenty-three German medical doctors at Nuremberg, the United States was conducting clandestine syphilis experiments of its own.

On March 7, a federal court in New York issued an anti-suit injunction order enjoining Ecuador plaintiffs from enforcing the $9 billion Ecuador judgment against Chevron. The injunction applies to all Ecuador plaintiffs and their counsel, including “directly or indirectly funding, commencing, prosecuting, advancing in any way, or receiving benefit from any action or proceeding, outside the Republic of Ecuador, for recognition or enforcement of the judgment.” (p. 125)
The most interesting part of the injunction is the Court’s analysis of international comity. It is, of course, a significant issue of international comity for a court in the United States to enjoin parties with respect to their litigation conduct in other jurisdictions. Applying Second Circuit precedent of China Trade v. M.V. Choong Yong, Judge Kaplan concluded that there were five comity factors in determining whether to issue an anti-suit injunction:

(1) frustration of a policy in the enjoining forum; (2) [whether] the foreign action would be vexatious; (3) [any] threat to the issuing court’s in rem or quasi in rem jurisdiction; (4) [whether] the proceedings in the other forum prejudice other equitable considerations; or (5) [whether] adjudication of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.

In analyzing those criteria, the Court found that an injunction was appropriate: (more)

As I discussed yesterday, an Ecuador Court has issued an $8.6 billion judgment against Chevron. I just got off a press conference call with plaintiff’s chief lawyer in Ecuador, Pablo Fajardo. He stated that the plaintiffs will seek enforcement of the Lago Agrio judgment throughout the world as soon as the Ecuador appeals process is complete. (At least two levels of appeal are anticipated). No specific countries were mentioned as preferred venues to enforce the judgment, although he seemed to believe that the judgment might still be enforceable in the United States.

He stated that Judge Kaplan does not have jurisdiction over the non-American lawyers or plaintiffs, and therefore he felt no obligation to comply with his order. He admits that his American co-counsel will be prevented from assisting in the enforcement of the judgment as a result of Judge Kapalan’s order, but suggested that there are plenty of other lawyers or third-party funders who will facilitate enforcement and recognition of the judgment. He also stressed that Judge Kaplan’s order is now on appeal, and therefore it is not yet binding.

As for the BIT arbitral tribunal’s injunction ordering Ecuador to prevent recognition and enforcement of the judgment at home and abroad, he stated that the private plaintiffs are not parties to that arbitration and that the Ecuador courts are constitutionally protected from any such attempts at interference by the Ecuador government. When I asked about the prospect of the tribunal ordering Ecuador to pay Chevron for damages it incurs in the recognition and enforcement of the Lago Agrio judgment, he seemed unconcerned about the possibility. He viewed the entire BIT arbitration as an illegitimate attempt by Chevron to undermine the Ecuador litigation.

Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore native species, $150 million to transport water, and $100 million to create a community cultural reconstruction program. The judgment in Spanish is available here. (English translation forthcoming)

Chevron responded to the judgment with the following statement:

The Ecuadorian court’s judgment is illegitimate and unenforceable. It is the product of fraud and is contrary to the legitimate scientific evidence. Chevron will appeal this decision in Ecuador and intends to see that justice prevails. United States and international tribunals already have taken steps to bar enforcement of the Ecuadorian ruling. Chevron does not believe that today’s judgment is enforceable in any court that observes the rule of law. Chevron intends to see that the perpetrators of this fraud are held accountable for their misconduct.

Amazon Watch responded with its own statement:

Today’s case is historic and unprecedented. It is the first time Indigenous people have sued a multinational corporation in the country where the crime was committed and won. Today’s historic ruling against Chevron is a testament to the strength of the Ecuadorian people who have spent 18 years bringing Chevron to justice while suffering the effects of the company’s extensive oil contamination.

To give one perspective, Ecuador’s GDP is $42 billion, so the award exceeds 20% of Ecuador’s total annual GDP. The total amount awarded by the United Nations Compensation Commission against Iraq for the environmental damage to Kuwait and other neighboring countries resulting from the 1991 Persian Gulf war was $5.3 billion. Exxon paid just over $4.3 billion for the damage caused by Exxon Valdez.

The next step for Chevron is to appeal the judgment in Ecuador and then challenge enforcement abroad. The plaintiffs have been ordered by a U.S. federal court to cease further litigation of the case and have been enjoined from benefiting from recognition or enforcement of any judgment. Ecuador has been ordered by an BIT tribunal to “take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron].” Given the orders of the United States federal court and the arbitral tribunal, the plaintiffs will have an extraordinarily difficult time executing judgment. If they do, I would strongly suspect that the federal court would hold the plaintiffs in contempt of court and the arbitral tribunal would hold Ecuador liable for any damage Chevron suffers in paying on the judgment.

The stakes just became larger in the ongoing battle over alleged environmental damage in Ecuador. Chevron just filed a lawsuit in the Southern District of New York against Steven Donziger and forty-seven lawyers, experts, consultants and named plaintiffs alleging RICO, fraud, tortious interference with contract, trespass and unjust enrichment. The Complaint is available here.

The Complaint alleges that Donziger and his co-conspirators “have sought to extort, defraud, and otherwise tortiously injure plaintiff Chevron by means of a plan they conceived and substantially executed in the United States.” Among the co-conspirators are (1) environmental consultants; (2) Ecuadorian lawyers and plaintiffs; (3) U.S. law firms Patton Boggs, Motley Rice, and Kohn Swift & Graf; (4) and environmental activists Amazon Watch and Rainforest Action Network.

“… [T]he RICO Defendants initiated a sham litigation in Lago Agrio, Ecuador … claiming to seek money damages for ‘collective environmental rights’ of the ‘affected’ ‘communities’ to remediate alleged petroleum contamination in Ecuador’s Oriente region…. In prosecuting the Lago Agrio Litigation, the RICO Defendants have engaged in a series of corrupt acts. For example, … they arranged the appointment of Richard Stalin Cabrera Vega … as the Ecuadorian court’s sole expert, … then secretly met with Cabrera to plan … and … ghostwrite the report…. To pressure Chevron in the United States, RICO Defendants have cited … fabricated evidence, Cabrera’s supposed ‘independent’ report and … trumped-up criminal charges in false statements to U.S. Congress, the U.S. Department of Justice, state and federal regulatory agencies, … the U.S. media, and Chevron shareholders…. The RICO Defendants’ conduct violates [RICO] with predicate acts of extortion, mail and wire fraud, money laundering, obstruction of justice, and witness tampering, among others.”

The Complaint seeks general damages, treble damages against the lawyers under New York Judiciary Law § 487, and a declaratory judgment that any judgment rendered in Ecuador is “unenforceable and non-recognizable.”

“By no means should Google Maps be used as a reference to decide military actions between two countries.” That’s the official response from Google to news reports that Nicaragua invaded Costa Rica based on Google’s improper drawing of the border. Details from the Tico Times. And no, the link is not to the Onion.

The more serious question is what policy should Google have for disputed borders? The Nicaragua Foreign Minister said that “the contentious map is ‘absolutely correct’ and that Google shouldn’t make ‘any modifications’ to the border coordinates.” Google explains how it got the border wrong here. Basically they relied on an inaccurate map issued by Arbitrator Grover Cleveland in an 1888 boundary dispute.

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?