The Icc in Latin America: an Old Friend With New Challenges

• Publication year: 2019

THE ICC IN LATIN AMERICA: AN OLD FRIEND WITH NEW CHALLENGES

Naomi Roht-Arriaza^*

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Table OF Contents

I. INTRODUCTION....................................................................................608

II. COLOMBIA: CAREFUL CALIBRATION OF OTP INTERVENTION...........610

III. VENEZUELA: NEED FOR A NEW APPROACH.......................................614

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I. Introduction

Latin America was fundamental to the creation of the Court.¹ The original proposal of an international court came from Trinidad and Tobago, and people involved in Latin American struggles against dictatorship ended up being some of the primary actors supporting the Court in 1998.² Almost all the states in Latin America are States Parties to the Court.³ Most of those states have incorporated the crimes under the Rome Statute into their own criminal statutes, and some have initiated their own national prosecutions for the crimes in the Rome Statute.⁴ Thus, Latin America is a region that has been both influenced by the Court and has influenced the shape and the development of the Court.

There are no cases from Latin America presently before the Court. All of the action is in the preliminary examination stage of ICC procedure. According to the Office of the Prosecutor's (OTP) Policy Paper on Preliminary Examinations, there are a number of issues that the Prosecutor must consider in deciding whether or not to open an investigation.⁵ Article 53(1)(a)-(c) of the Statute establishes the legal framework that ICC prosecutors must consider.⁶ It provides that the Prosecutor shall consider: jurisdiction (temporal, material, and either territorial or personal jurisdiction); admissibility (complementarity and gravity); and the interests of justice.⁷ In considering material jurisdiction, the Prosecutor must consider whether crimes within the jurisdiction of the Court have been committed.⁸ The standard of proof for proceeding with an investigation into a situation under the Statute is a "reasonable basis."⁹

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There have been four recent preliminary examinations of Latin American allegations: two are now closed, two are still open, and there are several requests for additional preliminary examinations. The two closed examinations involved Honduras and Venezuela. The Honduran examination followed the 2009 coup in Honduras.¹⁰ After the coup, there were a number of people killed in demonstrations and many arbitrary detentions.¹¹ Civil society groups provided additional information to the prosecutor focused on killings of peasant activists in the Bajo Aguán region.¹² That case was closed in 2015 on grounds that the information submitted was insufficient to find a reasonable basis of crimes within the Court's remit.¹³

The Venezuelan preliminary examination is discussed in Section III below. However, a case regarding the attacks on government opponents after the 2002 attempted coup against then-President Hugo Chavez was closed in 2006 on grounds that the statutory requirements were not satisfied.¹⁴ The allegations within the temporal jurisdiction of the Court¹⁵ were found not to constitute a "widespread or systematic attack," as required by Article 7 of the Rome Statute.¹⁶ The allegations included "45 victims of murder, 39 to 44 [cases of] imprisonment, 42 of torture and larger numbers of victims of persecution."¹⁷ All allegations were against political opponents. The OTP found that "[e]ven on a generous evaluation of the information provided, the available information did not provide a reasonable basis to believe that the requirement of a widespread or systematic attack against any civilian population had been satisfied."¹⁸

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II. COLOMBIA: CAREFUL CALIBRATION OF OTP INTERVENTION

Colombia is the subject of one of the two pending preliminary examinations before the OTP. The Colombian preliminary examination has been a marathon and illustrates both the utility and the limits of this mechanism. The OTP opened a preliminary examination in 2004 into the armed conflict "between and among government forces, paramilitary armed groups and rebel armed groups . . . ."¹⁹ In 2012, the OTP found there was a reasonable basis to conclude that crimes within the jurisdiction of the court, including war crimes and crimes against humanity, had indeed been committed.²⁰ The OTP found that at the time the Revolutionary Armed Forces of Columbia (FARC) and National Liberation Army (ELN) guerrilla groups and the paramilitaries (and perhaps their successor organizations) were responsible for crimes against humanity and war crimes, and that the military—at least at the level of certain brigades—had developed a policy of "false positives" by which poor young men were killed and then made to appear as though they were dead FARC fighters, in order for the military to increase their bonus pay.²¹ The preliminary examination remains in the phase of considering whether complementarity has been met.²²

The OTP has been trying to calibrate how to influence domestic processes in Colombia towards greater accountability without having to actually open an investigation. They have worked through multiple channels to do that, issuing continuing reports, conducting multiple visits of OTP staff to Colombia, organizing visits of Colombians to the Hague, and sending correspond-

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ence (public and private) at key moments, especially as the peace process developed, first with the paramilitaries, and most recently with the FARC.²³ For example, the Prosecutor, in two letters addressed to the country's constitutional court, argued that the Rome Statute requires actual incarceration as punishment for international crimes.²⁴ On July 26, 2013, Prosecutor Bensouda wrote that "The decision to suspend a prison sentence would suggest that the proposed judicial process has the purpose of removing the accused from his criminal responsibility," thus potentially triggering the ICC's jurisdiction.²⁵

The most important influence has been, perhaps, indirect. The peace processes in Colombia have bargained in the shadow of the law.²⁶ So, as noted, decisions of the Constitutional Court of Colombia have taken into account the provisions of the Rome Statute when assessing what is legal under Colombian law, especially with respect to the creation of the Special Jurisdiction for Peace.²⁷ The Rome Statute and the correspondence that has become public from the court has also been instrumental in the way all of the political actors of Colombia have used it. There is, however, a complicating factor in trying to understand the influence of the OTP: Colombia is also a party to the American Convention on Human Rights, and is therefore subject to the jurisdiction of the Inter-American Commission and Court on Human Rights.²⁸ In some ways, especially with respect to the rights of victims, the Inter-American system is more demanding than the Rome Statute. In others, it might provide more flexibility. For example, with respect to the need for proportional punishment, the Inter-American Court may take a harder line.²⁹

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The way different Colombian actors have used the Rome Statute has varied over time. At the beginning of the peace process, it was mostly victims' groups that raised the idea that if there is not adequate attention paid to justice for the victims, the Rome Statute will apply and the ICC will step in.³⁰ There was a widely shared understanding that ICC involvement was something to be avoided, especially since Colombia's legal system is quite complex and well-respected.³¹ That meant that a blanket amnesty was off the table. Now however, after the parties reached a peace accord in 2016, the local actors have flipped positions. The victims' groups and their allies are now on the side arguing to give this flexible agreement a chance, while the right-wing government of Iván Duque has argued that no amnesty should apply.³² Duque (and his main backer, former president Alvaro Uribe), the former Inspector General Alejandro Ordoñez, along with the current Prosecutor, have led the opposition to the agreement, especially the provisions involving the Special Jurisdiction for Peace.³³ They argue the peace agreement's provisions on punishment of the FARC leadership are too lenient and that the Rome Statute requires prison time.

In fact, the discussion between Colombia and the ICC on the question of punishment has been key. One of the interesting aspects of the Colombian peace agreement is that it separates investigation and trial from punishment.³⁴

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At first, the OTP was firmly opposed to the lack of prison sentences for those who cooperate, give information and provide reparation to victims, in the name of proportional punishment.³⁵ As was pointed out by supporters of the Special Jurisdiction, the Rome Statute does not say anything about punishment, which is generally left to national law under international treaties.³⁶ The Rome Statute instead prescribes what kinds of punishments the court itself should impose but does not say anything about what national courts are required to do.³⁷ And, through a process of dialogue and several rounds of correspondence, the ICC's position became less rigid, and it had, until recently, taken a wait-and-see attitude on the issue.³⁸

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However, the ICC's deferential approach may change in light of President Duque's blatant hostility towards the whole peace process, and especially the Special Jurisdiction. As Deputy Prosecutor James Stewart said in 2018: the OTP must "satisfy[] [it]self that the array of transitional justice measures applied in the situation in Colombia meet, in a genuine way, the Rome Statute goals."³⁹ The Colombian government's insistence on changes to the Special Jurisdiction's procedural law, and the...