Wednesday, March 05, 2008

Venezuela, Colombia and the ICC

Given all of Alvaro Uribe’s talk of charging Hugo Chávez through the International Criminal Court, I thought I would take a look at how the ICC works, especially in the context of this particular case. I am not going to bother analyzing the details of the documents that Uribe says came from the FARC, but obviously Colombia would argue before the court that Chávez was aiding and abetting, with money, shelter, etc.

The ICC is governed by the Rome Statute, which entered into force July 1, 2002.

First of all, let’s dispense with the conventional wisdom that you can’t try a Head of State. From Article 27:

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Now, onto the charges:

From Article 6: the ICC defines genocide in the following manner:

For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.


At issue: I don’t see intuitively what group Uribe intends to show as the victim of genocide, and that is the crux of the legal argument. The FARC is horribly violent, but to my knowledge it has not sought to destroy any particular group, unless Uribe intends to argue that it refers to the entire population of Colombia. In fact, he’d be much better off trying for Article 7 “Crimes Against Humanity,” since it covers the FARC more clearly, especially since it includes kidnapping, which the FARC openly uses as a weapon.

According to Articles 14 & 15, Colombia would refer the case to an ICC Prosecutor, who according to Article 42 is “elected by secret ballot by an absolute majority of the members of the Assembly of States Parties.”

According to Article 17, the Prosecutor will determine the case to be admissible if the state is “unwilling or geniunely unable” to prosecute the case on its own.

At issue: No one in Venezuela has ever charged Chávez with genocide. No one, in fact, outside Venezuela has done so either. The ICC is structured to step in when national courts cannot function. It would seem to me that Uribe would have to prove that Chávez’s genocidal actions not only were widely known, but that all efforts to charge him were being blocked in some manner.

From Article 22: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”

At issue: if there is any ambiguity at all about the genocide charge, the case is dismissed immediately. However, if new evidence comes to light the charge can be revived.

Article 25 lays out how Colombia would likely argue that Chávez should be accountable for the FARC’s activities because it includes language like “aids” and “abets”:

Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;


Bottom line: the basic legal foundation is there, but it is very hard to imagine the case being strong enough to pass the initial prosecutorial phase, no matter what the computer files show.

24 comments:

boz 6:44 PM  

Hypothetically, what if they proved that the FARC wiped out one or more indigenous tribes through massacres, recruitment of child soldiers and forced displacement?

Steven Taylor 7:28 PM  

It struck me from the get-go that the "genocide" charge made no sense.

Greg Weeks 7:42 PM  

You need to prove intent.

boz 8:55 PM  

You need to prove intent.

They could probably prove intent with the FARC, but you're absolutely right that they can't prove intent with Chavez.

Justin Delacour 9:30 PM  

Why do you waste your time with this nonsense, Greg? The ICC garbage is going nowhere. Even U.S. officials are expressing doubt about the "dirty bomb" charges, and not even the lap-dog U.S. press can find any evidence of Venezuelan financial support for the FARC.

Academia hasn't given you much of an eye for a story, has it?

Anonymous,  11:05 PM  

From Venezuelaanalysis:

“Meanwhile, Colombian President Álvaro Uribe will reconsider his threat to summon Venezuelan President Hugo Chávez to the International Criminal Court on charges of "patronage and financing of genocide," according to former Colombian President Ernesto Samper, who is part of Uribe`s foreign relations committee that advised Uribe to put a halt to the effort.”

“A diverse group of Colombian political parties, after pledging support for a peaceful solution to the crisis, decried that Uribe`s accusations would only worsen the crisis, and suggested that going to the ICC is "anti-legal" because, when Colombia ratified the ICC in 2002, Uribe earmarked a seven year waiting period during which international laws against war crimes would not apply to Colombia.”

BTW, Justin are the insults really necessary? Aren't you in academia, or are you in some type of special graduate school that somehow is removed from that environment?

Justin Delacour 11:58 PM  
This comment has been removed by the author.
Justin Delacour 11:59 PM  

BTW, Justin are the insults really necessary?

Insults? I consider it a statement of fact. Academia hasn't given Greg much of an eye for a story.

What kind of serious scholar tag-teams with a Washington propagandist like Boz? Not a very serious one at all.

Anonymous,  12:30 AM  

Justin is just angry at his master's tactical errors.

Don't worry, it won't go away.

Bosque 2:04 AM  

I would say there is no case.

Did he help out the FARC to get some prisoners? Probably.

Did he pay them specifically to kill certain people like Chiquita did? Not probable.

Child soldiers are not uncommon in third world countries. Neither are child workers. That doesn't make it right but is it not uncommon.

FARC is made up of mostly poor and indigenous peoples. There's that 50% poverty of Colombians to remember.

80% of the massacres were done by the AUC, so that leaves the military, FARC, ELN, M19 to split the other 20%.

boz 5:48 AM  

In response to Will, the government announced that it is bringing together a group of lawyers who are experts on the issue to determine all of the legal necessities for bringing the case to the ICC. They believe at the moment that they have enough evidence and the jurisdiction to make it happen.

Greg Weeks 6:59 AM  

Given the conflicting reports, it seems that Uribe doesn't have a plan--he may have picked the genocide charge off the top of his head. I didn't know there was a 7 year stipulation involved as well.

boz 7:14 AM  

From Greg's original post:
It would seem to me that Uribe would have to prove... that all efforts to charge him were being blocked in some manner.

Interestingly, TeleSur reports this morning that a Venezuelan prosecutor is requesting the data from the laptop so they can begin an investigation into the alleged $300 million that Chavez gave the FARC.

It could be the prosecutor is independent and following the lead, but it could also be an effort to take away the argument that an investigation is being blocked.

Greg Weeks 7:24 AM  

To me, that looks more like an effort to get hold of the laptop than to try Chavez.

Anonymous,  9:01 AM  

"It could be the prosecutor is independent and following the lead"
You know that is plainly impossible

Paul 11:57 AM  

Wow, Justin sure has a weird interpretation of reality:

"Even U.S. officials are expressing doubt about the "dirty bomb" charges, and not even the lap-dog U.S. press can find any evidence of Venezuelan financial support for the FARC."

Read the articles he linked and see if they bear any resemblance to his claims.

----------------------
"So it's just false to suggest that Chavez has rhetorically supported the guerrillas' armed struggles."
~Justin Delacour

Justin Delacour 12:03 PM  

They believe at the moment that they have enough evidence and the jurisdiction to make it happen.

Suuure they do, Boz.

Uribe would never ever knowingly spew a bunch of hot air at a critical moment so as to divert attention from his violation of international law.

You're quite the joker, Boz.

Now, imagine this for an ICC case. In the process of violating international law by raiding another country, Uribe's forces supposedly acquire some guerrilla laptops. According to our resident hack, Uribe has an ICC case on the basis of "evidence" acquired via Colombia's own acknowledged violation of international law. Suuure they do, Boz.

That's not to mention the fact that, according to the U.S. press itself, the documents don't corroborate Uribe's incriminating charges.

I'm sorry, but for Greg to even dignify this garbage with a post on "Venezuela, Colombia and the ICC" is frigging absurd. Any Latin Americanist scholar would have to be borderline retarded to take this garbage seriously.

And I'm sorry, Greg, but professors don't get a free pass when they dignify garbage. If anything, scholars should be held to a higher standard than Washington hacks, which is what makes this spectacle so utterly pitiful.

Paul 12:16 PM  

Can everyone see Justin really really really wants this story to go away?
-----------------------
"So it's just false to suggest that Chavez has rhetorically supported the guerrillas' armed struggles."
~Justin Delacour

Justin Delacour 12:26 PM  

Can everyone see Justin really really really wants this story to go away?

Oh, it might not go away, but it will end up being an embarrassment to all those who've propagated and dignified this ICC garbage.

Colombia's paramilitary president going to the ICC with non-evidence acquired via an extra-legal raid on another country's soil? If this outlandish scenario doesn't send you into hysterical laughter, you've got some screws loose in your noggin.

Paul 12:55 PM  

In your link, the "lapdog press" say the seized "Laptop Shows Chavez's Rebel Ties."

They also say, "One communication said Chavez told a rebel contact that this public support may have contributed to his loss of a Dec. 2 referendum that would have consolidated his power."

So even your master Chavez admitted what you still refuse to and were actively denying less than a week ago.

And the article states, "In a document dated Feb. 9, Marquez passes along Chavez's thanks for a $150,000 gift when he was imprisoned from 1992-94 for leading a failed coup — and indicates Chavez's desire to smear Uribe."

This, from your own links.

It's getting bad, Justin.
-----------------------
"So it's just false to suggest that Chavez has rhetorically supported the guerrillas' armed struggles."
~Justin Delacour

Justin Delacour 1:41 PM  

It's getting bad, Justin.

Indeed, it is. For Uribe.

Anonymous,  2:01 PM  

Unrelated to the merits, or lack thereof, in this particular context, the term "genocide" has taken on a meaning somewhat different from its original one in recent years in Latin America. It is increasingly being used to denote mass murder. It's what many Mexicans want to charge Echeverria with in relation to Tlatelolco, and what Bolivians want to charge Goni with in relation to protester deaths 2003. I know that at least some international human rights groups have tried to dissuade the overuse of this term, both because it robs it of its widely understood meaning and because it creates confusion in international venues such as the ICC. Indeed, it offers a form of defense to someone like Echeverria, who bears responsibility for hundreds of deaths but could plausibly argue that there was nothing "genocidal" about his conduct.

Paul 2:14 PM  

"Indeed, it is. For Uribe."

And even worse for "true revolutionary" Raul Reyes.

Easy tradeoff: Uribe kills one of the FARC's top terrorists and a whole cache of info showing collaboration between Chavez, Correa, and the FARC. The only catch is he gets his knuckles rapped by a toothless body.

Surprisingly, Uribe has managed to supress his smile during the contrition.

Anonymous,  2:16 PM  

Do what I do now.

Since it isn't polite to use "Nazi" in refering to someone as evil, I call them a Godwin. If Mr. Godwin is to be enshrined forever as preventing the use of this word, I feel Godwin is an acceptable substitute.

And therefore, if you need a term, I propose, "Godwinization" to replace Genocide.

  © Blogger templates The Professional Template by Ourblogtemplates.com 2008

Back to TOP