Guest Blogger: Elizabeth Santalla

It's IntLawGrrls' great pleasure to welcome Elizabeth Santalla (right) as today's guest blogger.
Currently a visiting professional at the International Criminal Court, Elizabeth was graduated from the School of Law at Universidad Católica Boliviana and obtained her masters’ degree at the University of San Francisco, California. She has pursued postgraduate courses: on international human rights law, at the University of Helsinki, the Inter-American Institute of Human Rights, the Hague Academy of International Law; on international humanitarian law, at the Geneva Academy of International Humanitarian Law, the International Committee of the Red Cross-Colombia, and the University of Rosario, Colombia; on international criminal law, at the Grotius Centre, Leiden University, the Netherlands.
She is a member of the Latin American Group of Studies on International Criminal Law, chaired by Goettingen Law Professor Kai Ambos and coordinated by the Foundation Konrad Adenauer. In her guest post below, Elizabeth discusses her article on the codification of genocide in Latin America, part of the 2010 special issue of the International Criminal Law Review, on the subject of "Latin American and International Criminal Law," that Ambos edited. Elizabeth also has published on universal jurisdiction and on torture in connection with the exclusion clause of the Refugee Convention.
Having taught international law subjects at Universidad Privada Boliviana and Universidad Católica Boliviana, Elizabeth is now engaged with Educatis, a long-distance university based in Switzerland.
She has worked as a consultant, inter alia: for a Bolivian ombudsman on national implementation of the Rome Statute of the ICC; with the ICRC on international humanitarian law and the use of force; and for Bolivia office of the U.N. High Commissioner of Human Rights. She's also been a legal adviser at the Implementing Agency in Bolivia of the U.N. High Commissioner for Refugees and an associate legal officer at the International Criminal Tribunal for the former Yugoslavia.

Heartfelt welcome!

Genocide and crimes against humanity in the national systems of Latin America

(Many thanks to IntLawGirls for inviting me to present my latest article in in this guest post)

As opposed to the other so-called core crimes under international law, genocide is one of the few to be codified in the national judicial systems of most Latin American states long before the adoption of the Rome Statute system. Indeed, the codification process took place from the 1970s onwards and, in some instances, even before. As I discuss in my latest article, "An Overview of the Crime of Genocide in Latin American Jurisdictions", 10 International Criminal Law Review 441 (2010), this history generated disparities between the international and the national definitions.
In general terms, the dolus specialis -- the requisite "intent to destroy, in whole or in part," as stated in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) -- is inherent to all national provisions on genocide analyzed in my article.
The deviations from the international definition thus revolve around the actus reus, understood as encompassing two other aspects of the Genocide Convention definition:
►The modalities of commission, encompassing, in Article III, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide; and
► The protected groups included in Article II, namely, "a national, ethnical, racial or religious group, as such."
Deviations from the Genocide Convention definition found in Latin American codes present a common feature: the enlargement of the scope of the protected groups, by including the political group and other, even more general groups.
Such a disparate outcome may be attributed, in my view, to the several decades of confrontation, in many cases amounting to non-international armed conflicts, that were experienced in various countries in Latin America. (In Colombia, the armed conflict, although reduced, is still ongoing.) Such conflicts generally involved a state policy of systematic attack against civilian populations, and in many instances against political groups. By the same token, the so-called "doctrine of national security" that served as a justification for the emergence of repressive regimes in the 1970s was politically motivated and targeted.
Jurisprudence in this area is incomplete.
Notwithstanding the fact that the most relevant Latin American deviations from the international definition refer to the protected groups, jurisprudence has not shed much light either on the underlying rationale or justification for such a deviation or on the scope of interpretation of the deviation. In this connection, my article pays particular attention to constitutional challenges that have been lodged against some of the elements incorporated in the Colombian and Bolivian provisions on genocide. Also receiving attention is a conviction for genocide rendered by the Bolivian Supreme Court (above).
In my view, understanding the status of other international offences is critical to understanding the status of genocide as it is codified in Latin America.
Crimes against humanity were generally unknown in national legislation. Arguably, this did not begin to change until the 2002. The entry into force that year of the Rome Statute of the International Criminal Court (below right) paved the way for serious consideration of the proscription of crimes against humanity in national systems. This situation may explain why some Latin American countries adopted definitions of genocide that deviated from the international standard.
Also significant is the fact that conviction for genocide has historically provoked a strong moral condemnation.
The time is ripe to reflect on the reasons behind the intention to label a particular situation as genocide, given that the codification of the other core crimes has gained momentum.
Some consideration should be devoted to the national implementation of the Rome Statute.
In this vein, it is worth noting that the current trend on implementation in Latin America offers mixed signals as to whether states will opt:
► To maintain the enlarged scope of genocide, on the one hand; or,
► To avoid, on the other hand, perilous juxtapositions that may arise -- mainly with respect to crimes against humanity -- by creating clearer parameters between crimes.
Blending of Latin American history, of the customary aspects of crimes against humanity and its momentum of codification, and of societal perspectives towards the crime of genocide lead to a complex and challenging interaction.

On August 12

On this day in ...
… 1833, Lillie Devereux Blake (left) was born in Raleigh, North Carolina. In 1857, she began writing short stories for Harper's Weekly and the Knickerbocker. After her husband’s death, she supported herself and her 2 children with her writing, working as a war correspondent during the Civil War as well as writing novels and short articles. In 1869 she joined IntLawGrrls' foremothers Susan B. Anthony and Elizabeth Cady Stanton to fight for women’s suffrage. She was president of the New York State Woman Suffrage Association from 1879 to 1890 and of the New York City Woman Suffrage League from 1886 to 1900. Blake died in 1913. (image credit)
… 1825, Simón Bolívar (below right), known as "The Liberator," became the 1st president of the Republic of Bolivia. (image credit) A descendant of rich Spanish aristocrats, Bolívar was one of the major architects of South American independence from Spain. He consolidated the independence of several South American countries through multiple military campaigns over the course of the early 1820s. In 1821, Gran Colombia (a federation covering much of modern Venezuela, Colombia, Panama, and Ecuador) was created, and Bolívar became its president. Then followed the presidenc of Bolivia on this day.

(Prior August 12 posts are here and here.)

A blow to democracy & human rights

This week the armed forces of Honduras overthrew democratically elected President Manuel Zelaya (left), arresting him at home and bundling him off to Costa Rica in his pyjamas. The army then installed its own president, with the thin legal veneer of the Honduran Supreme Court's blessing. The Organization of American States, the Obama administration, and human rights groups protested and called for Zelaya's reinstatement.
The coup is a direct violation of the OAS's Santiago Commitment to Democracy and the Renewal of the Inter-American System. By adopting that Commitment during a 1991 meeting in Chile's capital, countries of the hemisphere established a mechanism for collective action in the case of a sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization's member states.
This commitment was reaffirmed in 2001, in the Inter-American Democratic Charter, which requires the suspension from the OAS of states where elected governments have been found to be illegally overturned.
So why did the Honduran armed forces, backed by the legislature and the supreme court, take what they knew would be a much-criticized action? The U.S. press has stressed the attempt by President Zelaya to change the rules on re-election and the close ties between Venezuela and Honduras.
But that's only a small piece of the story.
The re-election effort was part of a larger package. Its centerpiece was a call for a popular referendum on whether or not to call a Constitutional Convention. Had the referendum, which was supported by labor, peasant, environmental, and human rights groups, passed, Honduras would have joined Latin American countries including Colombia, Ecuador, and Bolivia, that had rewritten their constitutions after a broad-based (more or less) constitutional rewriting process.
These processes have been tumultuous and highly controversial elsewhere. But on the positive side, they have:
► Broken existing political logjams and dysfunction;
► Established broad rights for indigenous communities; and
► Set the stage for institutional reforms to protect land and the environment and to give the government greater control over resource policies, especially mining and forest projects. These projects, many sponsored by U.S. and Canadian companies, have affected water and other resources and generated widespread local opposition.
Indeed, there are movements afoot in other countries, like Chile, to use upcoming elections to push for a constitutional convention to remake the Pinochet-era constitution there (not to mention efforts in California to call a constitutional convention to remake our own dysfunctional, gridlocked and almost-broke system of government!).
That's what was at stake in Honduras, and why the powers supporting the status quo were willing to brave international criticism to try to derail a new constitution-building initiative.

On May 26

On this day in ...
... 1969 (40 years ago today), in Colombia, diplomats from that country plus Bolivia, Ecuador, Peru, and Venezuela signed the Cartagena Agreement (formally titled the Andean Subregional Integration Agreement) "in order to jointly improve their peoples’ standard of living through integration and economic and social cooperation." Today the subregional organization established by this and related agreements, la Comunidad Andina/the Andean Community (flag at right), has 4 members: Bolivia, Colombia, Ecuador, and Peru. Chile withdrew in 1976, and Venezuela, which had joined in 1973, withdrew in 2006.
... 2001, the Constitutive Act of the African Union entered into force. The agreement, by which the 53-state-party-member African Union (flag at left) replaced the 38-year-old Organization of African Unity as the primary regional organization for the continent, had been adopted at Lomé, Togo, on July 11, 2000.

(Prior May 26 posts are here and here.)

When Is Prosecution Persecution?

This, of course, is a central question in refugee and asylum law -- when does prosecution by a state cross the line from legitimate investigation into persecution, thus rendering the accused eligible for refugee status? We've recently seen an abundance of examples of this phenomenon, which illustrates the complex relationship between refugee law and global politics.

In some cases, the prosecuting state's motives are obviously illegitimate, seeking to punish dissidents for engaging in activities protected by international law.

So, we saw yesterday, in Burma, Aung San Suu Kyi was arrested and charged with "violating the rules of her house arrest" after an American man entered her home; under Burmese law, she could face five years in prison for this infraction. Not only is the underlying house arrest an attempt to silence a political critic, but the charges seek to punish Suu Kyi for exercising her right to freedom of association.

The same day, in Zimbabwe, human rights lawyer Alec Muchadehama was arrested outside Harare's Magistrates Court for "obstruction of justice"; his "crime" was speaking to the court clerk in an attempt to free three political prisoners.

These examples illustrate one end of the prosecution/ persecution spectrum, with obviously politically motivated charges in countries that lack any pretense of the rule of law, and make for relatively straightforward refugee claims.

Determining the existence of persecutory prosecution can be significantly more complicated, however, as illustrated by Monday's spat between Bolivia and Peru. Bolivian President Evo Morales, who seeks extradition of three former government officials accused of genocide, was angered by Peru's grant of asylum to one of these officials (and review of asylum claims by the other two). Morales has charged these and other officials, as well as the former Bolivian president, with genocide for their role in soldiers' killing of 63 anti-government demonstrators in 2003. The officials argue that the charges are a "political witch hunt" and that they can't get a fair hearing. Presumably on similar grounds, the former president, Gonzalo Sanchez de Lozada, was granted asylum in the United States in 2007. So are these criminal charges persecution? The other side would argue that the former government's security forces violently gunned down indigenous protesters demanding political representation, and should be held accountable for their crimes.

A similarly complex story unfolded in England last month, when the High Court held that four accused génocidaires from Rwandans could not be extradited because they would not receive a fair trial in Rwanda. The decision relies on extensive evidence, including expert testimony from Filip Reyntjens and Philippe Sands on behalf of the accused and William Schabas on behalf of the Rwandan government, to analyze whether the accused would face an independent and impartial tribunal and whether there would be adequate protection for their witnesses in Rwanda. Is the lack of procedural safeguards in Rwandan courts so dire that trials before them would constitute persecution? This was not, of course the precise question before the court, which was, rather, deciding whether or not to extradite. But its opinion amply illustrates the heavily politically contested nature of this point. In such situations, where assertions of fact are diametrically opposed and an offer of asylum can itself be viewed as a politically aggressive act, is there any hope that refugee determination processes can remain apolitical, impartial, and fair?

On June 12

On this day in ...
... 1935, a ceasefire was reached in the Chaco War between Bolivia (flag at right) and Paraguay (flag at left). The 3-year conflict had resulted in 100,000 casualties. In a landmark decision respecting the roles of Congress and the President, the U.S. Supreme Court in United States v. Curtiss-Wright Export Corp. (1936), would find constitutional the government's prosecution of the defendant corporation on charges that it had illegally conspired to sell machine guns to Bolivia.
... 1963 (45 years ago today), an assassin shot civil rights activist Medgar Evers dead outside his home in Jackson, Mississippi. Evers had moved there several years earlier with his wife, Myrlie, to begin work as the NAACP's 1st field secretary. He was buried in Arlington National Cemetery in Washington, D.C. Conviction for his murder finally came in 1994, decades after the defendant, Byron De La Beckwith, had avoided conviction in 2 separate trials. From 1995 to 1998 Myrlie Evers-Williams, who had pressed for the retrial, served as the 1st woman chair of the NAACP. (credit for photo of Evers family)

Constitutional changes in Latin America - apropos Chávez' loss

In all the brouhaha over President Hugo Chávez' loss in the referendum Sunday in Venezuela, several things have been missing from the coverage, at least in the English-speaking press. First, while it's probably a good thing that permanent re-election and the ability to single-handedly impose unlimited states of exception have been defeated, there were lots of other proposals in the constitutional reform that got almost no press and that are now left in limbo. These include everything from a shorter work week to the creation of a process for community audits of local budgets and input on budgeting priorities at the local level -- something those concerned with democracy and transparency ought to be in favor of. There were also provisions on food security and sustainable agriculture, and on a potpourri of other subjects. It's not clear how those changes now get made.
Second, while all the focus has been on Venezuela, events in Bolivia have been even more dramatic (if that's possible). After the landowner-led separatist opposition decided to boycott a constitutional convention, the government and its supporters in the convention decided to post their own draft constitution, and threatened to pass it in December even without opposition votes. Meanwhile, the opposition is staging hunger strikes and threatening boycotts, and the majority (largely highland indigenous people) have threatened land seizures. The draft constitution itself is very interesting: it starts with a catalog of rights largely taken from human rights conventions and the UN declaration on indigenous peoples. It provides for a plurinational state, makes the indigenous languages official, and provides extensive protections for children, the elderly, and consumers as well as state control over natural resources. It has extensive provisions on environmental protection, and a series of provisions that would bring Bolivia into direct conflict with the WTO regime. On the legal front, it recognizes as equally valid western-style courts and traditional indigenous justice, and creates a Constitutional Court made up of judges half of whom come from the western court system and half from the indigenous court system. It's not clear how much of this will survive any negotiation process, should the two sides manage to engage in one. It's also not clear what happens if the assembly pushes through this or another draft in the teeth of opposition from the lowland wealthy. For updates on the situation, two good sites in English: Center for the Study of the Americas (CENSA) and The Democracy Center, Cochabamba, Bolivia.

On the 40th anniversary of Che's death

As noted below and in the press, today is the 40th anniversary of the death of Ernesto Che Guevara in Bolivia. Che (pictured at right addressing the U.N. General Assembly in 1964) was killed leading what he thought would be a revolution in the heart of Latin America, a revolution brought about by armed struggle. Today, much of what he fought for is again on the table, but this time through peaceful, political means. Bolivia's new government has passed sweeping agrarian reform laws, forced the renegotiation of oil and gas contracts to give the government a larger share of royalties, passed laws on popular participation and social audits of mining and oil projects, and is trying to remake the country through a Constituent Assembly that recognizes the rights -- and communal decision-making processes -- of the country's indigenous groups. Ecuador is embarking on its own Constituent Assembly, with a similarly sweeping agenda, at the end of the month. The question will be whether large landowners, left-out oil multinationals, and their allies in the U.S. will manage to demonize and derail these efforts before they can show concrete results. The history of reform movements in Latin America is filled with aborted attempts (Allende in Chile, Arbenz in Guatemala, etc.) but the huge social movements backing change in both Bolivia and Ecuador may make it harder to turn these latest efforts back.

On October 9, ...

... 1950, Jody Williams, who shared the 1997 Nobel Peace Prize with the International Campaign to Ban Landmines, for which she was the founding coordinator, was born in Putney, Vermont. Her advocacy contributed to adoption of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, which now has 153 states parties. The United States is not a member state. (photo of Williams, right, courtesy of Nobelprize.org)
... 1967 (40 years ago today), the 39-year-old Argentinian physician who'd been given the birth name Ernesto Rafael Guevara de la Serna but was widely known by his nom de guerre, Che Guevara, was executed by Bolivian troops a day after his capture during a gun battle, part of the insurgency he had been leading in Bolivia. (Initially Bolivia claimed that his death took place during the battle.) Buried in an unmarked grave near La Paz, Che's remains were not found for 30 years; thereafter, they were transferred to Cuba, where he was "a member of Fidel Castro's '26th of July Movement' which seized power in Cuba in 1959," and was "ultimately Minister of Industries, and many saw him as the intellectual force behind Castro's government. " A Los Angeles Times item on Che's legacy is here.