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.