By ratifying the Rome Statute of the International Criminal Court on 5 August 2002, the Colombian government joined the hundreds of countries around the world that support the efforts by the international community to castigate the perpetrators of crimes against humanity. Yet, there is a minority who believe that allowing the ICC to stop impunity is in itself a crime. Most astonishing of all is the inconsistency of the arguments used to defend the ignoramus position.
The idea of a permanent international criminal court was born thanks to the Nuremberg and Tokyo tribunals after WWII. The Cold War kicked in and calls for the tribunal died out. In 1989 voices in favor of the tribunal grew and in 1998 the United Nations convened in Rome where the vote of 120 nations endorsed formation of the ICC. On 1 July 2002, the ICC was legally formed. The ICC is only a tribunal of last resort that acts in cases where the justice system of member countries is not willing or is unable to investigate and prosecute crimes of concern to the international community as a whole. Currently 110 countries have ratified the Rome Statute. As a result of the nature of their actions, China, Iraq, Israel, Russia, and the United States proudly rejected the Rome Stature.
On 5 August 2002 Colombian President Andres Pastrana ratified the treaty with total consent from Alvaro Uribe, who started his eternal mandate two days later. Since that date the ICC has had the jurisdiction to investigate two crimes in Colombia: genocide and crime against humanity. On Sunday, November 1, 2009 the moratorium, requested by Uribe, to investigate war crimes was lifted. Nevertheless, the court can only investigate and prosecute crimes committed after 2002 in the case of genocide and crimes against humanity or 2009 in the case of war crimes, provided the national justice system fails on its duty to impart justice.
Surprisingly there seems to be a minority voice that believes the ICC is all but a criminal organization and demanded that Colombia leaves the International Criminal Court. Fellow columnist Gustavo Silva Cano represented such a view in his latest column. The arguments proposed are as outrageous as the view they attempt to defend. They reject the ICC because, first, it is the “product of intellectual chimeras of elitist scholars.” Second, the unchecked powers and universal jurisdiction inevitably turned them (ICC prosecutors) into bullies. Third, it’s outrageous that the ICC places Colombia into the same category as the likes of Afghanistan, Kenya, Cote d’Ivoire, Georgia, Guinea, and Palestine. Fourth, the ICC has no legitimacy in the Colombian Constitution. Fifth, the main target of the Court’s actions will be the Colombian government. Sixth, the government representatives did not have the power of stripping the Colombian judiciary off its monopoly of justice. Seventh, since the U.S. does not want the ICC prosecuting U.S. citizens for crimes committed in or from the United States so neither should anyone else.
Now it’s time to examine and refute all the arguments in their respective order.
First, the ICC is a product of consensus by the UN, where most countries in the world have a seat. Moreover, it aims to serve humanity as a whole, especially the defenseless victims that are denied justice by their own governments or national judicial systems. Second, there are not unchecked powers in the ICC or universal jurisdiction. All the member countries vote to elect the 18 judges of the court (divided into the pre-trial, trial and appeals divisions) and the prosecutors can be removed from office with a majority vote of the member countries provided there is misconduct. Third, perhaps Afghanistan, Kenya, Cote d’Ivoire, Georgia, Guinea, and Palestine should be more ashamed to be in a group with a country that has the highest number of trade unionist assassinated and the second highest number of internally displaced as Colombia.
Fourth, the Constitution was amended by Congress and deemed legal by the Constitutional Court with the sentence C-578 of 30 July 2002. Fifth, if the Colombian government commits genocide, crimes against humanity and war crimes, then it should be judged, as should be the guerrilla and the paramilitaries or emergent bands. Often, governments avoid paying for their own crimes and disguise it as a defense of national sovereignty. Sixth, if the government representatives did not have the power of stripping the Colombian judiciary off its monopoly of justice, by the same token, the government does not have the right to sign free trade agreements that destroys Colombian industry or military agreements with the U.S. that prostitutes the sovereignty of the country. Seventh, if all countries behave like the U.S., then all countries would be culpable of crimes against humanity and war crimes, if not genocide.
After exposing the absurdity of the aforementioned arguments it’s important to highlight the benefits of the ICC for Colombia.
Colombia’s past demonstrates how important the ICC is for pressuring the justice system to investigate and prosecute the atrocities perpetrated by all armed groups in the internal conflict as well as signaling the perpetrators that there should be no immunity. For example, the assassination of 1,163 members of the political party “Union Patriotica” in the ‘80s and ‘90s is considered political genocide, yet there have not been prosecutions. Moreover, the assassination of former presidential candidate Luis Carlos Galan Sarmiento in 1989 is considered a crime against humanity, yet the intellectual authors are still at large; and let’s no forget the assassination in 1999 of humorist Jaime Garzon. Naturally, examples of war crimes are abundant in a country that has been in an internal conflict for more than 40 years.
The present also offers evidence of how atrocious crimes that, even though being prosecuted by the Colombian justice, could be investigated and prosecuted by the ICC if there is no justice. For instance, the extrajudicial killings of innocent civilians by the army. In November last year, Navi Pillay, the U.N High Commissioner for Human Rights, said that these killings amounted to crimes against humanity. Seven soldiers accused of extrajudicial killings came close to being free due to delaying tactics by their defense lawyers, but the Supreme Court stepped in on time. Something similar is happening with the para-politics scandal. The Superior Council of Justice (members are elected by Congress) is trying to absolve lawmakers currently under investigation for supporting paramilitary death squads, thus contravening the authority of the Supreme Court. Moreover, the government’s “peace and justice” law offering all but amnesty to the paramilitaries is a prime example of impunity in the making. There has not been anyone sentenced to jail. In addition, the paramilitary bosses were extradited to the U.S. thus avoiding the truth of their links with the power holders to be revealed. Fortunately now, all these and many more crimes committed by the paramilitaries and the FARC are being closely watched by the ICC’s chief prosecutor Luis Moreno-Ocampo.
The premise of the ICC is that no place can achieve lasting peace without first achieving justice. The ICC’s mere observation of the Colombian conflict may not bring rapid changes to the decades-old Colombian conflict, but it does provide a new hope for finding justice and thus the elusive peace that all Colombians can only dream of.