Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

The International Criminal Court and the Transformation of International Law? Maybe not quite yet . . .

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post from Paris)

This week, unexpectedly, the Security Council voted unanimously to refer the situation in Libya to the International Criminal Court. That is cause for celebration; but celebration tempered with a strong dose of caution and even some real pessimism about the future.
On the plus side, the ICC is now becoming an international institution that is increasingly seen as a real partner in the maintenance of international peace and security.
Also, on the plus side, as Diane Marie Amann mentioned in an earlier IntLawGrrls post, the U.S. voted for the Resolution, rather than simply abstaining from vetoing it as the U.S. had done with Resolution 1593, referring to the Court the situation in Darfur.
Finally, I entitled this blog entry after my 2002 book of the same name, because one sees in the Resolution glimmers of change — that war is not the only answer to international conflict, that law is a relevant consideration in its resolution and that justice may be a possibility. That would be cause for celebration indeed.
At the same time, there are many worrisome elements in the Resolution which bode ill for the Court and for the referral. The Resolution itself retains two outrageous Bush-administration provisions (while admittedly discarding a third).
First, while deciding in paragraph 5 that the Libyan authorities “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (even though Libya is not a State Party to the Court) the paragraph continues that “States not party to the Rome Statute have no obligation under the Statute. . . ” and, in paragraph 6, “decides, that national, current or former officials or personnel from a State outside [Libya] . . . shall be subject to the exclusive jurisdiction of that State” for any acts they may commit relating to UN operations in Libya. What an extraordinary display of double standards, given that several members of the Council who voted for the Resolution are not parties to the Rome Statute! Can a rule of law be a rule of law if it applies to some but not all?
The Resolution also provides that the ICC, not the United Nations, shall bear all the expenses relating to the referral, apparently as a way of appeasing the U.S. Congress, many of whose members continue to threaten the Court. So the United States and other non-Party States (China, India, Russia) are using — but not paying for — the ICC as a tool of coercive diplomacy. This is not good news.
Finally, the ICC is already struggling to convince African states that it is not a Court directed at them. The first four referrals all seemed quite sensible; but the fifth, the situation involving Kenya, was far more troublesome, given that the Prosecutor undertook the case on his own initiative, and at least some questioned whether it met the legal standards necessary in terms of subject matter jurisdiction, gravity and complementarity to be pursued at the ICC rather than in Kenya or otherwise. (Prior IntLawGrrls posts available here.) There were also serious questions raised at last summer's ICC Review Conference at Kampala as to whether it would not be preferable to see a proprio motu referral of the Colombia or Afghan situations. A sixth referral involving an African state — even in a case involving the clear commission of atrocities — may encourage the ICC’s detractors in Africa, and the double standards evinced by the Resolution’s text do not assist in this regard.
In the view of this writer, the Libya referral, in and of itself, is a good thing. The atrocities taking place as reported in the media seem clearly to warrant ICC intervention. But the failure of the great powers to fully support this Court, and to use it cynically when and as they please, rather than committing their money, time, energy and political support to helping it grow strong and endure, feeds the perception that this Court is not about justice, but about power, undermining its legitimacy. Thomas Friedman recently opined that President Barack Obama’s 2009 speech in Cairo (above) strengthened the case for democracy in the Arab world as he led others through the salutary example of his own life. Would that Obama will find the same courage to champion the International Criminal Court, and to show the world that Americans believe in accountability too.

(Cross-posted at Leila's An American in Paris blog)

International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to

• personal liberty (Article 7 of the American Convention on Human Rights),
• humane treatment (Article 5),
• life (Article 4),
• freedom of movement and residence (Article 22) and
• judicial protection (Article 25).

Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...

In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

• the legal recognition of human rights organizations;
• the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
• the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.

With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

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 January 4

On this day in ...
... 2011 (today), in Colombia, revelers will take part in a parade, el Desfile de la Familia Castañeda, part of the almost weeklong Carnaval de Negros y Blancos, the year's most important festival in the southern part of the country. Colorful floats, costumes, and customs mark the event, which was designated a part of the national heritage in 2001. (photo credit) In 2009, this Carnaval earned a place on UNESCO's Representative List of the Intangible Cultural Heritage of Humanity.

(Prior January 4 posts are here, here, and here.)

CEDAW comment

Lest it get lost in the mix, we reprint a comment received from reader Rebecca Landy (this Rebecca, we believe), respecting Hope Lewis' weekend post on women's rights.
Rebecca wrote:

"Interesting statement considering the US still has not ratified CEDAW...

THE WHITE HOUSE

Office of the Press Secretary

____________________________________________________________

FOR IMMEDIATE RELEASE

October 1, 2010

Statement by the NSC Spokesman Mike Hammer on the Resolution on Elimination of Discrimination Against Women at the U.N. Human Rights Council

The United States welcomes the adoption today by the United Nations Human Rights Council of a resolution addressing the elimination of discrimination against women. Most significantly, this resolution establishes a working group of five independent experts from different regions of the world who will work with governments and civil society to identify and promote steps to eliminate laws and practices that discriminate against women, and to advise governments on how to promote gender equality and the empowerment of women. The United States was proud to co-sponsor this resolution with a group of over 70 other countries, which was led by Colombia and Mexico. We look forward to working closely with the new working group and the international community in seeking an end to discrimination against all women everywhere."

* * * *

The resolution to which the United States' National Security Council spokesman referred was adopted last Friday. As described here, via that resolution the U.N. Human Rights Council established a 5-member Working Group on Discrimination against Women in Law and Practise set to operate for 3 years. Many countries spoke in favor of the plan -- many of them that, unlike the United States, are states parties to CEDAW, the 1979 Convention on the Elimination of All Forms of Discrimination against Women.

Heartfelt thanks for the head's up, Rebecca!

On July 22

On this day in ...
... 1956, leaders from across the Americas concluded a multilateral conference by signing the Declaration of the Presidents of the American Republics. The declaration's hemispheric vision:

An America united, strong and benevolent will not only promote the well-being of the Continent but contribute toward achieving for the whole world the benefits of a peace based on justice and freedom, in which all peoples, without distinction as to race or creed, can work with dignity and with confidence in the future.

The conference "helped lay the groundwork for the creation of the Inter-American Development Bank and elements for the Alliance for Progress." (credit for photo of U.S. President Dwight D. Eisenhower signing documents at the 1956 conference) It was held in Panama City in commemoration of the "first collective manifestation of Pan Americanism," an Assembly of Plenipotentiaries of the American States there, "convoked by the Liberator Simón Bolívar" in 1826. The 1956 effort has evolved into the Summit of the Americas process, which features meetings of governmental leaders that conclude with similar declarations. Most recent was the 5th summit, held in 2009 in Trinidad and Tobago; the 6th is set for 2012 in Colombia.

(Prior July 22 posts are here, here, and here.)

Article 124: To Be Or Not To Be?

One item on the agenda of the International Criminal Court (ICC) Review Conference that has received less attention than the aggression negotiations concerns the potential deletion of Article 124 of the Rome Statute, the so-called Transitional Provision. This Article operates as an exception to the Court’s otherwise mandatory jurisdiction and to Article 120’s prohibition on reservations. It reads:

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.

The idea behind this Article was to give states that considered themselves to be disproportionally vulnerable to war crimes charges (due, for example, to their high overseas troop commitments or regular involvement in ameliorating humanitarian crises) time to assess the performance of the Court before opening themselves up to potential prosecution.
The consideration of Article 124 is the only mandatory agenda item for the 2-week Review Conference, set to begin May 31 in Kampala, Uganda.


By way of background, Article 124 was essentially the price paid to have France accept the final package of provisions revealed at the close of the Rome (right) Conference in 1998. During the negotiations, France — along with the United States and other delegations — sought a consent-based approach to jurisdiction over war crimes and crimes against humanity that would allow the ICC to prosecute these crimes only with the consent of the nationality and territorial state, absent a referral by the U.N. Security Council. As an alternative proposal, the United Kingdom, with support from the other P-5, proposed an Optional Protocol that states could ratify to exempt their nationals from war crimes or crimes against humanity prosecutions. Germany proposed an alternative solution that addressed only war crimes, was non-renewable, and allowed states to consent to jurisdiction a la carte over particular war crimes. In the waning days of the Rome Conference, the Bureau released a carefully balanced package of compromises that included Article 124.

The provision was immediately denounced by human rights groups, though their concerns turned out to be unfounded. In the end, only two countries — France and Colombia — have availed themselves of the opt out option to date. France (flag at right), without explanation, withdrew its opt out declaration in August 2008. Colombia’s declaration expired by its own terms in October 2009.

The prosecution of war crimes committed by French nationals or on French territory may seem remote. But the armed conflict in Colombia (flag at left above) — which pits multiple rebel groups against the national armed forces (left) and paramilitaries with ties to the central authorities — has been the subject of a preliminary investigation by the ICC Prosecutor since 2007, as featured in the documentary The Reckoning. (Prior posts here, here, and here.) In the event that the Prosecutor seeks to commence a formal investigation proprio motu, any war crimes committed prior to October 2009 will escape prosecution as such, although such acts may be prosecutable as crimes against humanity if committed within the context of a widespread or systematic attack against a civilian population.
Other states, such as Burundi, contemplated lodging an Article 124 declaration, but declined to take advantage of this option due to internal political dynamics and/or pressure from civil society organizations.
Article 124, it appeared, had more impact at Rome in getting the final package accepted than it did in securing more widespread ratification of the Statute post-Rome.
Although Article 124 has been little used, its potential deletion remains controversial. France, for one, has argued in favor of its retention as a means to assist other hesitant states to join the Court.
Article 124 will no doubt be a topic of intense negotiation in Kampala (left), for a reason related to prior posts available here: Similar solutions are being considered for the jurisdictional regime that may eventually govern the still highly contentious crime of aggression.

Afro-Colombians' plight

(It’s IntLawGrrls’ great pleasure to welcome back alumna Gay McDougall, who guest-posts on her current work as U.N. Independent Expert on Minorities)
　
During my official visit this month to Colombia (flag at left), I had an opportunity to meet with both President Álvaro Uribe and numerous senior government officials and to consult with persons from Afro-Colombian communities. This dialogue was in keeping with my mandate on minority issues, and helped to promote implementation of the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic minorities.
Focusing on communities who identify as Afro-Colombian, Black, Raizal and Palenquero, I visited cities and regions where these communities are prominent.
This post summarizes the preliminary views I set forward here; my findings and recommendations will be fully developed in my report to the U.N. Human Rights Council.

Overview
The story of Afro-Colombians begins with slavery and the massive and gross violations of the rights of African descendants that terrible chapter in history entailed. In Colombia, as slaves escaped, they were forced to find refuge in nearly uninhabitable, geographically remote regions of the Atlantic and Pacific coasts, shown in the darkest color at right. (map credit) There they built communities and livelihoods under conditions of extreme isolation, harsh climate, and often extreme poverty.
As in many other countries, the legacy of slavery endures and is manifested in communities that are socially and economically marginalized, facing racist attitudes and structural discrimination. The Colombian government has made efforts to address certain aspects of the disparities faced by Afro-Colombians, but the legacy of slavery continues to have a profound impact.
New challenges also have emerged.
Afro-Colombian settlements, in rural areas and town ghettos, rival only the reservations for Indigenous peoples as the very poorest in Colombia, with extreme poverty rates of over 60%. Surveys suggest that 80% of Afro-Colombians do not have basic needs met. Infant mortality rates in Chocó and Cauca are 54 per 1,000 of the population. Life expectancy in Afro-Colombian regions is only 55. Illiteracy rates for Afro-Colombians are estimated to be twice the national average. The responses of the national Government and regional authorities have been inadequate and must be addressed as a matter of urgency.
The recent census failed to capture the full demographic and socio-economic picture of the Afro-Colombians, estimated at between 10% and 25% of Colombia’s population. Additionally there is virtually no disaggregation of socio-economic data by race, so government policies are based on faulty data. I often heard from Afro-Colombians that they feel statistically "invisible", and that consequently their issues are ignored, their lives are less valued and that government policies dedicated to their needs are not achieving the desired improvements to their situations.

Legal Framework
Colombia has an impressive and commendable legislative framework that recognises many rights of Afro-Colombians, starting with the Constitution of 1991 which recognizes not only the right to non-discrimination but also the right to equality for all citizens. It also pledges to protect the ethnic and cultural diversity of the country and it promotes the political participation of minorities by establishing two reserve seats in the House of Representatives for Afro-Colombians.
Law 70 of 1993 recognises the right of black Colombians to collectively own and occupy their ancestral lands, and also reinforces rights to education, health and political participation.
While such measures are praiseworthy, the vast majority of communities and organizations that I consulted complain that implementation remains woefully inadequate, limited and sporadic. And where steps have been taken, no real enforcement has followed. As one woman told me:

‘The laws say all the right things but still, nothing has happened.’

Displaced & dispossessed
Displacement was highlighted as the highest priority issue for many Afro-Colombians. Those lands onto which runaway slaves were forced to retreat, while isolated and neglected for centuries, have in recent years been identified as the most fertile and resource rich of Colombia’s territory. This has placed these once isolated, largely self-sufficient communities directly in harm’s way.
These are also some of the most strategically important regions for guerrillas, former paramilitaries and other armed groups currently involved in narcotics production and trafficking. While the government has adopted a political position that the armed conflict has ended and paramilitary groups have demobilized, in many rural black communities that I visited I heard emotional and credible stories of murders and threats to the lives of community leaders.
The number of internally displaced persons ranges from an official tally of 3.073 million to civil society estimates as high as 4 million -- constituting the world’s second largest internal displacement situation. Those few who returned have found that others have claimed ownership or rights of usage in their absence.
Victims and communities believe that there is complete impunity for all of those who commit crimes against them.
I was pleased to meet with the Vice Minister of Defense and representatives of the police and the military during my visit. I was told of important steps being taken to build armed services that are aware of and responsive to the rights of Afro-Colombian communities and to break with the pattern of past violations. These efforts are welcome. However, more must be done to protect vulnerable communities and their leaders.
I would like to commend the work of the Ombudsman’s office in establishing a system of early warning and risk assessment for communities and leaders under threat. But the office’s alerts must be assessed by a committee of the security forces and civil institutions at the national level, which has frequently discounted the credibility of the alerts.
Displacement has particularly affected women, who have been displaced to urban areas in greater numbers than black men, and who suffer extreme vulnerability when they are. Ancestral lands from which Afro-Colombians are displaced are not only the source of livelihood and survival for communities, they are also essential for the preservation of Afro-Colombian culture, livelihood, language, tradition and for maintaining the social fabric of communities. (credit for 2007 Fiesta Palenque photo) The effects of displacement require solutions for both rural and urban communities, as recognized in a landmark decision of the Constitutional Court, Order 005 of 2009. The Court concluded that Government must act comprehensively to address the rights and needs of Afro-Colombians who are displaced and ordered specific measures; to date these have not been effectively implemented.
I welcome the establishment of the Intersectoral Commission for the Advancement of the Afro-Colombian Population, and hope that its recommendations will quickly move from the planning phase to the phase of actually impacting the lives of those who are suffering.


Women & violence
Afro-Colombian women spoke to me of their experiences, the violence committed against them, including sexual violence, the fear and trauma that they have endured on a daily basis and the challenges of their lives as women and mothers living under conditions of conflict, displacement and poverty. The rights of women to return to their community lands in security must be considered a priority.
When men have been killed, disappeared or forced to flee, women have assumed leadership roles in their communities and have shown remarkable resilience and resistance. However they do not receive the necessary recognition as community leaders and are not afforded the protection measures that they require. Mothers also spoke of losing children to forced recruitment into guerrilla and illegal armed groups.

Economic interests & "inconvenient rights"
Many Afro-Colombians have been displaced by "megaprojects", large-scale economic operations, often involving national and multinational companies, promoted by the government as bringing development and economic gain to the whole of Colombia. The communities have grave concerns about encroachment on their land rights and adverse environmental impacts; however, in the face of such economic interests and megaprojects it appears that the rights of communities are "inconvenient rights" and that the laws put in place to protect them are equally inconvenient.
Decree 1320 of 1998 requires that "prior informed consultation" must take place with Afro-Colombian and indigenous communities for the exploitation of natural resources within their territories. However I was informed that projects have been implemented without consultation or with consultations held with people who do not legitimately represent communities. Consultations must be meaningful and effective; importantly, International Labour Organisation Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, which this decree purports to incorporate into domestic law, requires that prior and informed consent of communities before projects are implemented on their lands.



Participation in decision-making
Despite the importance of political participation (prior post), Afro-Colombians are extremely poorly represented in political structures and institutions in Colombia and consequently the voices and issues of Afro-Colombians are not being sufficiently heard or given the attention that they deserve.

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.)

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

'I took a decision that led me to be kidnapped and there's no point crying about it. I was held captive for six years because I went along with a friend at a moment when I thought I could change the world. Would I do it again? Never.'

-- Clara Rojas (left), in a San Francisco Chronicle interview. Rojas once was a candidate for Vice President of Colombia, on a ticket with Presidential candidate Ingrid Betancourt (right); both were abducted by the Revolutionary Armed Forces of Colombia (FARC). Rojas spent 6 almost years as a hostage of the before her release to the Red Cross last January. (photo credit) Betancourt was freed by a commando raid half a year later.

On November 10

On this day in ...

... 1821, the 1st grito de independencia -- cry for independence -- was heard in the town of Los Santos, in Panama. The cry was taken up elsewhere in what was then a colony of Spain, and by the end of the month separation from Spain and joinder with the Confederation of Gran Colombia , which Simón Bolívar had founded a couple years earlier, was achieved. This date is now a national holiday in Panama. (photo credit)

... 1975, the U.N. General Assembly adopted Resolution 3379, entitled "Elimination of all forms of racial discrimination," by which it "determine[d] that zionism is a form of racism and racial discrimination." A decade and a half later, by its tersely worded Resolution 4686, the General Assembly (left) "decide[d] to revoke the determination."

Of International Crimes and Memory Sticks

Perhaps my favorite news story of late (apart from the pirate spokesperson that Diane blogged about here) is the Colombian government's seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, "I KNOW I had that memory stick around here somewhere." And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.
While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for war criminals but also for those interested in prosecuting international crimes.
Of course, the Evidence professor in me is skeptical about the admissibility of such data without proper authentication. While the authentication of computerized data is very much a live question before American courts, the evidentiary rules applied in international criminal tribunals are generally derived from civil law jurisdictions and therefore allow broad admissibility under the assumption that the judge can determine whether the evidence is reliable and weigh it accordingly. While this approach may be sensible in its inclusiveness, judges should trace the chain of custody carefully and rely on techie experts to ensure that nobody has tampered with computerized data. Particularly in the complex political situations that give rise to international crimes, it would be all too tempting for political foes to create a memory stick full of false information . . .

Cross-posted at Concurring Opinions

P.S. on Colombia/Ecuador

Anyone whose interest's been piqued by posts on counterrorism activities in Colombia and Ecuador -- which IntLawGrrl Naomi Norberg criticized yesterday and for which Luz Estella Nagle articulated possible justifications in an April guest-post -- will want to look at a recent ASIL Insight on the subject.
The author is Tatiana Weisberg, formerly an Associate Professor of International Law at the Catholic University of Minas Gerais, Brazil, and now an LL.M. student at the Center for Advanced Legal Studies, Buchman Faculty of Law, Tel Aviv University, Israel. Her Insight focuses on the March 5, 2008, resolution by the Permanent Council of the Organization of American States that Colombia's entry into Ecuador a week earlier

constitutes a violation of the sovereignty and territorial integrity of Ecuador and of principles of international law ...

With some understatement, Weisberg observes that the OAS resolution "is in tension with the declared policy and practice on this issue of the United States, an OAS Member State, and with the UN Security Council’s post-September 11th willingness to consider that terrorist violence can trigger the right to use force in self-defense."

(credit for map of Colombian incursion -- courtesy of The Economist)

(Illegal) US operations in Pakistan

On Thursday (September 11th), 7 years after the Bush administration launched an unsuccessful "war" against terrorism, I read Karima Bennoune's excellent post on countering terrorism by enforcing human rights, then went on to read in the Herald Tribune that

President George W. Bush secretly approved orders in July that for the first time allow American Special Operations forces to carry out ground assaults inside Pakistan without the prior approval of the Pakistani government ....

Just as I asked myself, "isn't that illegal?" I saw that "[i]t was unclear precisely what legal authorities the United States has invoked to conduct even limited ground raids in a friendly country." Indeed. Colombia's cross-border military attack on FARC rebels in Ecuador in March was considered by the Organization of American States (OAS) to be a violation of principles of international law, as well as of Ecuador's sovereignty and territorial integrity.
But more than illegality, at a time when the world is remembering and honoring the victims of the 9/11 attacks and the soldiers from numerous nations fighting and dying in Afghanistan because of those attacks, it seems to me the important issue is that "last week's raid achieved little except killing civilians and stoking anti-Americanism in the tribal areas." As Husain Haqqani, Pakistan's ambassador to the US so succintly put it: "Unilateral action by the American forces does not help the war against terror because it only enrages public opinion." So as we voters go to the polls in November, please let us heed Karima's words and vote in favor of secularism and women's rights rather than militarism as a way to counter terrorism. As our favorite French newpaper, Le Canard Enchaîné (which does not publish a full electronic version) reminds us with respect to candidate McCain's appreciation of Teddy Roosevelt's famous "big stick," (image of Thomas Nast's 1904 cartoon recreating an episode in Gulliver's Travels) it can hit hard--like a boomerang (image credit)!