Colombian president sues Venezuelan counterpart before ICC

Outgoing Colombian President Alvaro Uribe filed a complaint with the International Criminal Court (ICC) against his Venezuelan counterpart Hugo Chavez, a counsel for Uribe confirmed Friday.

Jaime Granados told reporters at the presidential office that he sent Friday the “corresponding complaint” to ICC Chief Prosecutor Luis Moreno Ocampo in the hope that “action would be taken.” Uribe wants to testify as a civilian if the ICC wants him to.

Uribe, who leaves office on Saturday, has accused Venezuela of harboring Colombian guerrilla chiefs on its territory, a charge firmly rejected by Caracas. Colombian President Alvaro Uribe’s office said in a statement that

“Colombia has gone to the channels of international law and will continue insisting on those mechanisms so there is an instrument to make the Venezuelan government comply with its obligations not to harbour Colombian terrorists.”

Heller comments at Opinio Juris:

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?

Granados added that another lawsuit was filed to the Inter-American Commission on Human Rights (IACHR), demanding Venezuela answer for what he called “very serious” violations of human rights by the country.

In the meantime Colombian journalist Felipe Zuleta announced that he plans to take Colombian President Alvaro Uribe to the  International Criminal Court over the army’s extrajudicial killings of  civilians who they then reported as rebels killed in combat, known as  “false positives,” in the town of Soacha, central Colombia. Zuleta made the announcement after a prosecutor sent by the Colombian Supreme Court shelved an investigation into Colombian President-elect Juan Manuel Santos’ alleged responsibility for the Soacha false positives. Santos was Colombian defense minister at the time of the murders.

In an effort to end the conflict, the Colombian government claims it is  turning to transitional justice and with the Justice and Peace Law,  creating accountability and providing reparations for victims. According to one observer.

Yet, upon careful examination of the politics of justice in Colombia, it appears as though the passage of the Justice and Peace Law may be merely an attempt to shield human rights abusers from criminal liability and evade ICC intervention. How the ICC interprets and evaluates the actions of Colombia will determine the application of complementarity and the future of international criminal law. In this paper, I focus on the need for an interpretation of complementarity as found in Article 17 of the Rome Statute, and propose a method of interpreting Article 17 that will reduce states’ exploitation of ambiguities in the Rome Statute. I argue that ICC involvement in Colombia will solidify the tenuous principle of complementarity, and will provide a much needed “guiding principle” to this emerging intersection between domestic and international law. By using Colombia as an example of a state genuinely unwilling to prosecute, the ICC will not only provide justice to Colombians, but it will also reduce the likelihood of mimicry from other states that may follow in the footsteps of Colombia’s impunity if it is allowed to succeed.

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