Abstract
The Colombian military and the United Self-Defense Forces of Colombia (AUC) have committed systematic attacks against the Colombian people that violate international law. One such heinous incident took place in May 2003 at the Betoyes Guahibo indigenous reserve in Colombia. Unlike other acts of terror, the attack at the Reserve is well documented. Because of this, the attack on the Reserve is an excellent case for International Criminal Court (ICC) prosecution. This article exposes acts of cruelty and makes a persuasive moral case for ICC prosecution. The ICC has jurisdiction over the attack on the Betoyes people by the AUC and Colombian military. The article further discusses the potential legal exposure of the Colombian government, individual Colombians and US individuals through its military support and training of the Colombian military.
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Notes
See James J. Brittian, Human Rights and the Colombian Government: An Analysis of State-Based Atrocities Against Non-Combatants, 40 New Politics 4. ¶ 8 (Winter 2006), http://www.wpunj.edu/newpol/issue40/Brittain40.htm#r10, Brittian discusses the economist, Lauchlin Currie, who wrote that natural resources throughout Colombia (specifically in rural regions) must be monopolized so Colombia’s potential economic profits can be fully realized. His theory of “accelerating economic development” and ideas of “dampening” socio-political resistance are seen as the primary economic developmental model that have directed decades of Colombian political policy.
The “Sixth Division”, Military–Paramilitary Ties and U.S. Policy in Colombia, Hum. Rts. Watch, Sept. 1, 2001 at 10.
Colombia: Displaced and Discarded, The Plight of Internally Displaced Persons in Bogotá and Cartagena, Hum. Rts. Watch (Vol. 17, No. 4(B)), Oct. 14, 2005 at 5.
See Id. (explaining that the Colombian Government’s provision of humanitarian assistance to displaced populations was administered in such a slow, cumbersome, and discriminatory fashion that the Colombian Constitutional Court declared the Government’s actions unconstitutional).
Timeline Colombia, BBC News, Nov. 20, 2007, http://news.bbc.co.uk/2/hi/americas/1212827.stm. Colombia’s civil war is part of a larger conflict that has flared up intermittently since 1899. In “The War of the Thousand Days (1899–1903)”: around 120,000 people died in the civil war between Liberals and Conservatives. Id. at ¶9. Then in 1948–57 shortly after conservatives gained power during a period known as “la violencia”, 250,000–300,000 are killed in civil war. Id. at ¶13. Colombia’s current civil war began in the mid 1960s when leftist groups, the National Liberation Army (ELN) and the Revolutionary Armed Forces of Colombia (FARQ), are founded and engage the Conservative Colombian Government in a guerrilla war. Id. at ¶15.
U. S. Gov’t Accountability Off., Drug Control [GAO]: Aviation Program Safety Concerns in Colombia are Being Addressed, but State’s Planning and Budgeting Process can be Improved, GAO 04-918 at 5 (2004), http://www.gao.gov/new.items/d04918.pdf.
Q&A: Colombia’s Civil Conflict, BBC News, Nov. 22, 2007, http://news.bbc.co.uk/2/hi/americas/1738963.stm. See also Mariana Pena, An ICC Investigation in Colombia?, The Am. Non-Gov’tal Org. for the Int’l Crim. Ct. [AMICC], Aug. 11, 2005 (In recent years, the guerilla and paramilitary forces have shifted the focus of the conflict from rural communities to more urban locations resulting in increased civilian casualties and displacement).
Audrey Cronin et al., Foreign Terrorist Organizations Congressional Research Service Report for Congress, The Congressional Research Service, RL 32223, Feb. 6, 2004 at 90, http://www.fas.org/irp/crs/RL32223.pdf.
See Timothy Posnanski, “‘Colombia Weeps but Doesn’t Surrender’: The Battle for Peace in Colombia’s Civil War and the Problematic Solutions of President Alvardo Uribe,” 4 Wash. U. Global Stud. L. Rev. 719, at 721 (2005); You’ll Learn Not to Cry: Child Combatants in Colombia, Hum. Rts. Watch, Sept. 2003 at 5; Colombia: Displaced and Discarded, The Plight of Internally Displaced Persons in Bogotá and Cartagena, supra note 3, at 12; see also Pena, supra note 7, at 2 (discussing ICC jurisdiction over acts such as murders, kidnappings, hijacking, rapes, torture and forced displacement committed by the FARC as part of a widespread attack against the civilian population).
See U.N. High Comm. for Hum. Rts. [UNHCHR], The 2004 Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Colombia, Annex II, ¶ 18, U.N. Doc. E/CN.4/2004/13 (Feb. 17, 2004) (discussing the FARC’s continued and widespread use of gas cylinder “artillery,” which violates the principle of distinction between civilians and combatants).
See at 5. (“Colombia is the source of 90% of the cocaine and 40% of the heroin entering the United States.”).
Cronin, supra note 8, at 69.
Pena, supra note 7, at 2.
You’ll Learn Not to Cry: Child Combatants in Colombia, supra note 9, at 9.
Pena, supra note 7, at 2.
Cronin, supra note 8, at 106.
See Colombia: Displaced and Discarded, The Plight of Internally Displaced Persons in Bogotá and Cartagena, supra note 3, at 27 (explaining that the AUC’s spectacular growth is in part due to the recruitment of children tempted by AUC salaries and in some cases forcibly recruited); see also You’ll Learn Not to Cry: Child Combatants in Colombia, supra note 9, at 9 (citing the experiences of ex-AUC child combatants who recall that child combatants were given adult duties and forced to mutilate and kill captured guerrillas).
Council on Foreign Relations, FARC, ELN, AUC, (November 2005), http://cfrterroism.org/groups/farc_print.-html.
U.N. High Commissioner for Refugees [UNHCR], International Protection Considerations Regarding Colombian Asylum-seekers and Refugees, at 8 (March 2005); see also Pena, supra note 7, at 3 (discussing ICC jurisdiction over murders, massacres and forced displacement committed by the AUC).
The “Sixth Division”, Military-paramilitary Ties and U.S. Policy in Colombia, supra note 2, at 1. The Colombian Army has five divisions, but many Colombians told Human Rights Watch that paramilitaries are so fully integrated into the army’s battle strategy that they effectively constitute a sixth division of the army. Id.
Id.
Jared Kotler, Colombia’s Military Given Sweeping New Powers, Associated Press, August 17, 2001, http://www.commondreams.org/headlines01/0817-02.htm In 2001, Colombia passed laws designating certain areas martial law zones in which local political officials would be subordinate to the military and the military is able to detain suspects longer before handing them over to a judge. The time allowed to complete investigations of human rights abuse by security members was shortened and civilian prosecutors must report to the military on their investigations. Id.
The “Sixth Division”, Military-paramilitary Ties and U.S. Policy in Colombia, supra note 2; see Pena, supra note 7, at 3 (acknowledging the Human Rights Watch report detailing Military complicity with paramilitary human rights violations, and noting that although they occurred before the ICC can establish jurisdiction, Colombia’s inability or unwillingness to prosecute such violations could be weighed in an ICC determination to take up prosecution).
Smoke and Mirrors: Colombia’s Demobilization of Paramilitary Groups, Hum. Rts. Watch, (Vol. 17, No. 3(B)) Aug. 2005 at 2. The new law does not ensure that paramilitaries confess their crimes, disclose information about how their groups operate, or turn over their illegally acquired wealth. Commanders convicted of atrocities or other serious crimes, such as drug trafficking, will get away with sentences little longer than 2 years in agricultural colonies. When they reenter society, their wealth, political power, and criminal networks will be intact. Id.; see Gary Leech, ICC Called to Investigate War Crimes in Colombia, Colombia Journal Online, Jul. 18, 2005, www.colombiajournal.org/colombia213.htm.
Smoke and Mirrors: Colombia’s Demobilization of Paramilitary Groups, supra note 24, at 52. The Government gives the names and spontaneous declarations of those who demobilize to the Attorney General’s office. The Attorney General’s office then has only thirty-six hours after receiving the spontaneous declaration from each paramilitary to bring charges against him for any crimes in which he may be “reasonably inferred” to have participated in. If no charge is brought then the paramilitary will fall within the framework of Law 782, receive a pardon for agreement to commit a crime, and start receiving economic benefits. In the context of mass demobilizations it is unlikely that investigations could be conducted. Id.
Id. at 54. By “accepting the charges” against them, paramilitaries will be able to receive reduced sentences set at 5 to 8 years served concurrently. Even if additional charges are eventually brought, the paramilitary can avoid an increase in his sentence by “accepting” the new charges. In practice the time served could be even lower than five to eight years because eighteen months of the time paramilitaries spent in the concentration zone negotiating the demobilization is computed as time served, and Colombian law allows for a one-third reduction of sentences for work and study.
Id. Under Colombian law extradition is unconstitutional for political crimes. In addition, all crimes committed in furtherance of paramilitaries’ political goals could also be considered “political”. This shields the paramilitaries from extradition to both the United States and the International Criminal Court.
Hum. Rts. Watch, Smoke and Mirrors: Colombia’s Demobilization of Paramilitary Groups, at 36, Vol. 17, No. 3(B) (August 2005). As of April 2005, only twenty-five of the five thousand demobilized paramilitaries had been under investigation or convicted for atrocities committed before the demobilization.
Gary Leech, The U. S. War on Terror in Colombia, Colombia Journal Online, Dec. 2, 2002, http://www.colombiajournal.org/colombia142.htm. Always looking for increased U.S. Military aid, Colombian officials are willing to portray the guerrillas in whatever light they believed coincides with U.S. foreign policy interests. For example, during the cold war, the rebels were called “communist insurgents,” during the late 1990s, they were called “narco-guerrillas” or “narco-terrorists,” and since 9/11, the guerrillas have simply been called “terrorists.” Id. See also Joshua Goodman, Colombia Busts Ring Linked to al-Qaida, Associated Press, January 26, 2005 (reporting that the Colombian Government had busted a gang responsible for supplying counterfeited passports to citizens from middle eastern countries to facilitate their entry into the U.S. and Europe).
Continuation of the National Emergency with Respect to Significant Narcotics Traffickers Centered in Colombia, H.R. Doc. No. 109-61, at 5 (2005).
GAO, supra note 6, at 5 (2004).
Leech, supra note 29. The FARC was placed on the U.S. State Department’s list of Foreign Terrorist Organizations in 1997 and the AUC in 2001. The ELN does not finance its organization through the drug trade but instead funds itself through kidnapping and extortion of the oil industry. They represent a threat to Colombian and U.S. economic interest and were placed on the U.S. State Department’s list of Foreign Terrorist Organizations in 1997. Id.
The War Against Drugs and Thugs: A Status Report on Plan Colombia’s Successes and Remaining Challenges, Hearing before the Committee on Government Reform, 108th Cong. 214 (June 17, 2004).
Connie Veillette, Andean Counterdrug Initiative (ACI) and Related Funding Programs: FY 2006 Assistance, The Congressional Research Service, RL 33253, Jan. 27, 2006, http://fpc.state.gov/documents/organization/60720.pdf.
Foreign Operations, Export Financial and Related Programs Appropriations Act of 2006, Title II, Department of State (allowing for $734,500,000 to remain available until September 30, 2008).
Kristen McCallion, War for Sale! Battlefield Contractors in Latin America & the ‘Corporatization’ of America’s War on Drugs, 36 Miami Inter-Am L.Rev 317, at 322 (2005).
Posnanski, supra note 9, at 721. Congress’ first substantial attempt to prevent international anti-narcotics funds from going to members of foreign security forces that violate human rights was the 1996 “Leahy Provision” to the Foreign Operation Appropriations Act. Id. See also Ignacio Gomez G., The Risks of U.S. Aid: U.S. Forces Trained Human Rights Violators in Colombia, The Center for Public Integrity (Feb. 17, 2000) (Senator Patrick Leahy obtained information that Colombian Col. Lino Sanchez was working on a “military planning” exercise with American Green Berets at the same time that he was involved in planning the Mapriripan Massacre of 49 Colombians); The “Sixth Division”, Military-paramilitary Ties and U.S. Policy in Colombia, supra note 2, at 85 (Later appropriations acts expanded the Leahy Provision to cover a broader range of military activity; however, it does not yet cover intelligence-sharing. This is a problem for human rights violations when U.S. intelligence is used to commit violence against civilian populations); Gomez, Ignacio, Attack on Colombian Civilians Linked to U.S. Bomb, The Center for Public Integrity, (Sept. 22, 2000).
Foreign Operations, Export Financial and Related Programs Appropriations Act of 2006, supra note 35. An additional 12.5% becomes available after the Secretary of State certifies that Colombia has suspended, and is investigating and prosecuting, those credibly alleged to have committed human rights violations, or aided or abetted in a violation of human rights. The 12.5% balance is available after July 31 if the Secretary of State certifies and reports that Colombia is continuing to meet these requirements. Id.
Pena, supra note 7, at 6.
The War Against Drugs and Thugs: A Status Report on Plan Colombia’s Successes and Remaining Challenges, Hearing before the Committee on Government Reform, supra note 33, at 214 (Statement of Congressmen Kucinich). See also Curtis Marez, Drug Wars: The Political Economy of Narcotics, 259 (University of Minnesota Press 2004). South American officials use drug-war money and military support to contain indigenous forms of dissent. Although they account for only a small percentage of Colombian coca production, Indian settlements are more likely to be raided than are the big, non-Indian producers. Id. See also Colombia: Country Report on Human Rights Practices, U.S. Dep’t of State (Feb. 28, 2005), http://www.state.gov/g/drl/rls/hrrpt/2004/41754.htm (acknowledging that in 2004 members of Colombia’s security forces continued to commit serious abuses and continued to collaborate in the AUC’s commission of human rights abuses).
Foreign Operations, Export Financial and Related Programs Appropriations Act of 2006, supra note 35.
22 C.F.R. §120.8. See also Clive Walker, Contracting Out War?: Private Military Companies, Law and Regulation in the United Kingdom, 55 Int’l. & Compar. L. Qutr. 651, at 667 (2005). The Arms Export Control Act 1968 and the International Traffic in Arms Regulations (ITAR) require State Department approval for the sale of military equipment and related services (including training) between US companies and foreign States. Manufacturers and providers of defense goods or services for export must register with and obtain a license from the Office of Defense Trade Controls in the Department of State. Any letter of offer to sell defense articles or services for $50million or more must be notified by the State Department to Congress. However, private military firms can also contract directly through the Defense Department’s Foreign Military Sales (FMS) program that does not require any licensing. Instead the Department of Defense serves as an intermediary, arranging procurement, logistics and delivery and often providing product support and training to the relevant foreign government, which in turn reimburses the Pentagon for its payments to the private contractor. Id. See also Colombia: Outsourcing War, The Center for Public Integrity, www.pulbicintegrity.org/report.aspx?-aid=261, The scope of Private Military Firm contracts in Colombia is unclear. Documents supplied by the Pentagon in response to a Freedom of Information request seeking information on all MPRI contracts in Latin America did not reveal the Colombian contract. Neither did a search of the government’s database of federal contracts. Both refused to release a copy of the contract, as did the US State and Defense departments, citing proprietary reasons. Id.
Ruth Jamieson, State Crime by Proxy and Juridical Othering, 45 Brit. J. Criminology 504, (July 2005); see Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 Wash. U.L.Q. 1001, at 1008 (2004). With stringent limitations imposed by Congress regarding the number of US Armed Forces personnel and the scope of their activities in Colombia, the Clinton administration turned to contractors to train local enforcement agents in counter narcotics work, fly sensitive reconnaissance missions, patrol the skies to turn back smugglers, and pilot crop-dusters to destroy coca fields. These efforts are often challenged, resulting in firefights with guerillas and paramilitaries. Id.
UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, preamble and arts. 1 and 12, U.N. Doc. A/CONF. 183/9 (July 17, 1998), reprinted in 37 I.L.M. 99 (1998) [hereinafter Rome Statute], http://www.un.org/law/icc/statute/romefra.htm. See generally Roger S. Clark, Crimes Against Humanity and the Rome Statute of the International Criminal Court, In Essays in Honor of George Ginsburgs 152 (Eds. Roger Clark, Ferdinand Feldbrugge and Stanislaw Pomorski 2001). World War II’s unprecedented brutality toward civilian populations motivated the international community to establish the Nuremburg Tribunal to punish those individuals responsible for using the state as an instrument of inhumanity. Id. at 40. Following these tribunals an effort was made to establish a permanent criminal court to punish the crime of genocide. Id. In addition, the General Assembly of the United Nations asked the International Law Commission to investigate the possibility of establishing an international criminal penal code. The ILC concluded that it was feasible and the UN General Assembly created a committee to prepare the Draft Code Against the Peace and Security of Mankind, which became the basis of the Rome Statute.
Rome Statute art. 5. See Roger S. Clark, The Crime of Aggression and the International Criminal Court, in The Legal Regime of the International Criminal Court: Essays in Honor of Professor Igor Pavlovich Blishchenco (Eds. Jose Doria, Hans-Peter Basser & M. Cherif Bassiouni) 2006 (The crime of aggression will also be included once a definition is accepted).
International Criminal Court Website, Assembly of States Parties: Colombia, http://www.icc-cpi.int/asp/statesparties/country&id=29.html.
Rome Statute arts. 11, para. 2, and 12, para. 2.
Declarations Made by Colombia upon Ratification of the ICC Statute, http://www.amicc.org/docs/Columbia_decl.pdf. “Availing itself of the option provided in article 124 of the Statute and subject to the conditions established therein, the Government of Colombia declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by Colombian nationals or on Colombian territory”; See also Rome Statute art. 124 (“Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.”).
Rome Statute art. 7. See Roger S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 Crim. L. Forum 291, at 327 (2001); Darryl Robinson, The Elements of Crimes Against Humanity, in The International Criminal Court Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee 2001) (citing ILC Draft Code of Crimes 1996, the disjunctive test was intended to exclude isolated crimes of individuals acting in the absence of any direction or encouragement by a State or organization).
Remigius Chibueze, United States Objection to the International Criminal Court: A Paradox of “Operation Enduring Freedom”, 9 Ann. Surv. Int’l & Comp.L. 19, at 43 (2003) (citing Prosecutor v. Akayesu, Case No. ICTR-96-4-, Judgments Int’l Criminal Trib. Rwanda Trial Chamber 1, at 580 (Sept. 2, 1998)).
Id.
Rome Statute art. 7, para. 2(a).
Clark, supra note 44, at 152. This reinforces the ICTY’s interpretation in Tadic that crimes against humanity as widespread and systematic acts directed against a civilian population in a manner that is not random or isolated. Id. See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, at para. 644 (May 7, 1997). “It is now well established that the requirement that the acts be directed against a civilian ‘population’ can be fulfilled if the acts occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.” See also Mohamed Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 San Diego Int’l L.J. 73, at 90 (2004) (explaining that ICTY Statute does not require that the acts be committed on a “widespread or systematic” basis to constitute “crimes against humanity,” however the Yugoslav Tribunal stated that the term “widespread or systematic” constitutes an essential element of the notion of “crimes against humanity”); William A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26 Fordham Int’l L.J. 907, at 920 (citing Tadic at paras. 128–36, “it is now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conflict at all”). Cf. Rome Statute art. 8, para. 2(e) and (f).
Clark, supra note 44, at 145.
Rome Statute art. 30.
Clark, supra note 49, at 301–02. Intent and knowledge are defined in an overlapping manner; intent can mean “that person means to engage in the conduct”, or “that person means to cause that consequence or is aware that it will occur in the ordinary course of events”. Id. at 302. Knowledge is defined as “awareness that a circumstance exists or a consequence will occur in the ordinary court of events.” Id. Whether only one must be proven or both intent and knowledge must be shown has not been settled. Id. See also Badar, supra note 53, at 90. The structure of Article 7 is divided in two parts: the general elements and the specific crimes. Id. The general elements are intended to be the international or jurisdictional elements needed to make this category of crimes an international one. Id These general elements are defined as “widespread or systematic attack against any civilian population.” Id The term “attack” and the subsequent international requirement that it be “with knowledge” reflect the particular nature of the overall conduct that leads to the commission of the specific crimes described in (a) to (k). Id The “acts” must be carried out in a “widespread or systematic” manner, reflecting “the policy element.” Id Lastly, there is the general requirement that the attack as characterized by its “widespread or systematic” nature and manner must be directed against a “civilian population.” Id.
Pena, supra note 7 at 10. The Office of the Prosecutor began monitoring crimes committed in Colombia for in June of 2003. In March 2005, the Prosecutor sent a letter to the Colombian Government requesting information on steps taken by the authorities to investigate and prosecute those most responsible for the crimes against humanity committed in Colombia. Id.
Eric Fichtl, The Massacre at Betoyes, The Colombia Journal Online (August 4, 2003), http://www.colombiajournal.org/colombia164.htm. See also Colombia: Covering events from January to December 2003, Amnesty Int’l, (2004), http://web.amnesty.org/report2004/col-summary-eng; Colombia: Scarred Bodies, Hidden Crimes, Sexual Violence Against Women in the Armed Conflict, Amnesty Int’l, (October 13, 2004) http://web.amnesty.org/library/index/engamr230402004.
Eric Fichtl, supra note 58 (citing Reuters correspondent Jason Webb’s interview of a survivor of the May attack on Betoyes).
Colombia: Fear for safety/possible “disappearance”, Amnesty Int’l, (June 4, 2003) http://web.amnesty.org/library/Index/ENGAMR230432003?open&of=ENG-COL.
Rome Statute arts. 13 and 15. See also Pena, supra note 7, at 7 (Investigation by the ICC can also begin by a State Party referring the situation to the ICC or by the UN Security Council referring the situation).
Rome Statute art. 17. See Roger S. Clark, The ICC Statute: Protecting the Sovereign Rights of Non-Parties, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court 216 (Ed. Dinah Shelton). See also Pena, supra note 7, at 7 (Discussing the limited resources of the Office of the Prosecutor to investigate and prosecute. Crimes committed in Colombia are objectively serious. However, if Colombia is compared with the conflict in Darfur, then the Prosecutor is likely to conclude, not that crimes in Colombia are not serious enough, but rather that situation with higher crime rates and violence levels have priority over the Colombian situations).
Rome Statute art.17. See also Pena, supra note 7, at 7.
Pena, supra note 7, at 7.
Leech, supra note 24.
Declarations Made by Colombia upon Ratification of the ICC Statute, http://www.amicc.org/docs/Columbia_decl.pdf. “None of the provisions of the Rome Statute concerning the exercise of jurisdiction by the International Criminal Court prevent the Colombian State from granting amnesties, reprieves or judicial pardons for political crimes, provided that they are granted in conformity with the Constitution and with the principles and norms of international law accepted by Colombia.”
International Criminal Court: Declarations Amounting to Prohibited Reservations to the Rome Statute, Amnesty Int’l, (November 24, 2005). See also Christian De Vos, Updates from the Regional Human Rights Systems, Hum. Rts. Brief (12 No.3) Spring 2005 at 29. The Inter-American Commission on Human Rights report emphasizes that whenever crimes against humanity occur in the course of armed conflict, customary international law and treaty law require the state to investigate the facts and prosecute and punish those responsible. Because these crimes constitute serious violations of international law, they are not subject to amnesty and the state is required to establish the individual criminal liability of the persons involved. Id.
Pena, supra note 7, at 5.
See Press Release, United States Mission to the United Nations, Statement by Nicholas Rostow, General Counsel, on Agenda Item 154: the International Criminal Court, in the Sixth Committee (October 23, 2003); Press Release, United States Mission to the United Nations, Statement by Nicholas Rostow, General Counsel, in the Sixth Committee (October 14, 2002).
Kircher, supra note 44, at 268 (2005). The argument that the Prosecution’s ability to independently initiate and undertake an investigation will result in politicized trials is unfounded due to the safeguards the Rome Statute places on prosecutorial power. The Assembly of State Parties elects the prosecutor, controls the budget, and can dismiss anyone who politicizes the office. Also, the Prosecutor must receive authorization by the Pre-trial Chamber who determines whether there is a reasonable basis for investigation and prosecution before he can proceed. Id.
Id. at 270. United States concerns over protecting their sovereignty and providing US persons with the level of due process afforded by the Constitution are safeguarded by the principle of complementarity which protects national sovereignty by allowing the State to proceed with its own investigation. Id. In order for the ICC to take jurisdiction, the US would have to be unwilling and unable to proceed with the prosecution on its own. Id. The United States has an effective judicial system capable of investigating and prosecuting these crimes and as long as the US informs the ICC of its desire and willingness to investigate the allegation, the ICC must defer to the U.S. Id.
Ann K. Heindel, The Counterproductive Bush Administration Policy Toward the International Criminal Court. 2 Sea. J. 345, at 360 (Spring 2004).
Clark, supra note 62, at 215.
Id. at 214.
Rome Statue art. 16. See also Clark, supra note 62, at 214.
Chronology of U.S. Opposition to the International Criminal Court, AMICC, (May 6, 2002). The Under Secretary for Arms Control and International Security John Bolton sends a letter to the United Nations to nullify its signature of the Rome Statute. August 2, 2002 the American Service-members’ Protection Act is signed into law as an amendment to the Supplemental Appropriations Act for 2002 (HR 4775). Id.
American Service-members’ Protection Act of 2002, H.R. 4775 (September 30, 2002). See also U.S. Senate Committee on Foreign Relations, Impact on Latin America of the Servicemembers’ Protection Act, 109th, 2nd Sess., (March 8, 2006), http://foreign.senate.gov/hearings/2006/hrg060308p.html (During the Senate Armed Services Committee hearing, several Senators mentioned the negative impact of ASPA, including Democratic Senators Levin and Clinton, as well as Republican Senators McCain, Warner, and Inhofe).
John Bolton, American Justice and the International Criminal Court, U.S. Department of State (Nov. 3, 2003), http://www.state.gove/t/us/rm/25818.htm. “The United States is engaged in a global campaign to conclude bilateral agreements that will ensure U.S. persons are not subjected to the ICC’s jurisdiction.” Id. “This broad scope of coverage is essential to ensuring that the ICC will not become an impediment to U.S. activities around the world. We must guarantee the necessary protection to our media delegations of public and private individuals traveling to international meetings, private individuals accompanying official personnel, contractors working alongside official personnel (particularly in the military context), participants in exchange programs, former government officials, arms control inspectors, people engaged in commerce and business abroad, students in government sponsored programs, to name just a few categories of persons.” Id.
Presidential Determination, Waiving Prohibition on United States Military Assistance to Parties to the Rome Statute Establishing the International Criminal Court, No. 2004-30, (October 6, 2003). Shortly after the Bilateral Immunity Agreement came into force, President Bush waived the suspension of military aid to Colombia under the American Service-members Protection Act, for as long as the agreement is in force.
Agreement Between the Government of the United States of America and the Government of the Republic of Colombia Regarding the Surrender of Persons of the United States of America to the International Criminal Court, Treaty (Sept. 17, 2003). See also General Agreement for Economic, Technical and Related Assistance Between the Government of the United States of American and the Government of Colombia, 13 U.S.T. 1778, Articles I & III (1962); Agreement between the Government of the United States of America and the Government of the Republic of Colombia concerning the Program for the Suppression of Illicit Aerial Traffic in Narcotic Drugs and Psychotropic Substances (Air Bridge Denial), State Dept. No. 03-53, Articles I & XIII (2003). Throughout the US relationship with Colombia, the United States has required that Colombia give up jurisdiction over the people sent to administer US aid. The United States has sought to protect their military and civil personnel from Colombian criminal jurisdiction through agreements which grant the personnel diplomatic immunity, which normally only extended to diplomatic delegates under international law. In 1962, the Colombian Government accepted a special mission from the United States to assist Colombia in its national development and efforts to achieve economic and social progress. This special mission would be considered a diplomatic mission for the purposes of receiving the privileges and immunities accorded to personnel of comparable rank. This agreement was followed by a Status of Forces Agreement signed in 1974. In the 2003 agreement, this type of diplomatic immunity was extended to US personnel sent to Colombia under the Program for the Suppression of Illicit Aerial Traffic in Narcotic Drugs and Psychotropic Substances.
Id.
Rome Statute art. 89, para. 1.
Rome Statute art. 97.
J. Crawford, P. Sands, and R. Wilde, Human Rights First, In the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the State, Joint Opinion, at 25 (June 5, 2003). The finding of the Court is determinative under Article 119(1), providing that any dispute concerning the judicial functions of the Court shall be settled by a decision of the Court. A ‘dispute’ within the meaning of Article 119(1) would relate to the question of whether or not a potential request by the ICC would be precluded by a bilateral non-surrender agreement. Id.
Roger S. Clark, Challenges Confronting the Assembly of States Parties of the International Criminal Court, 14 Remarks at International Criminal Law Network conference, The Hague, 18–20 December 2002 (criticizing the United States’ overbroad interpretation of the Article 98 of the Rome Statute).
David Scheffer, Article 98(2) of the Rome Statute: America’s Original Intent, 3 J. Int’l Crim. Just. 333, (May 2005) (“[T]he scope of non-surrender is, and was intended to be, limited by explicit use of the term ‘sending State’”).
Acknowledgement
I would like to thank Prof. Roger S. Clark for his mentorship and helpful comments on the original draft of this article.
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Bolletino, A. Crimes Against Humanity in Colombia: The International Criminal Court’s Jurisdiction Over the May 2003 Attack on the Betoyes Guahibo Indigenous Reserve and Colombian Accountability. Hum Rights Rev 9, 491–511 (2008). https://doi.org/10.1007/s12142-008-0066-2
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DOI: https://doi.org/10.1007/s12142-008-0066-2