Getting away with murder: Can Latin America become a safe haven for Libyan war criminals?
Article co-written by Salvador Herencia Carrasco and Mariana Rodriguez Pareja, originally published on the blog Justice in Conflict on September 7, 2011.
Reports of human rights violations in Libya since the beginning of 2011 prompted the United Nations (UN) Security Council to adopt Resolution 1970 in February 2011, requesting the International Criminal Court (ICC) to investigate the possible perpetration of international crimes in the country . On June 27, the ICC issued a warrant of arrest against M. Muammar Gaddafi, his son, M. Saif Al-Islam Gaddafi, and the head of Military Intelligence, M. Adhullah Senussi, for the alleged perpetration of crimes against humanity, namely murder and persecution.
This is the second time the ICC issues a warrant of arrest against an acting Head of State. The first time was in the situation of Darfur, when the ICC issued a warrant on arrest against the President of Sudan, M. Omar Al-Bashir in 2009 and 2010, for the counts of genocide, crimes against humanity and war crimes. The entry into force of the Rome Statute on July 1, 2002 has made possible what was unthinkable not too long ago: nobody is above the law vis-à-vis the perpetration of international crimes.
Despite the deterrent effect of the Rome Statute and the obligation of State Parties to fully cooperate with the ICC, there are questions of what could happen if potential war criminals try to seek haven on non-State Parties or to State Parties that politically chooses to ignore the authority of the Court.
Some months ago, M. Al-Bashir, was likely to visit Venezuela, raising some concerns. Although Venezuela is a State Party to the Rome Statute, the government had opposed the ICC investigation in Darfur. In their view, the Security Council referral caused a politically motivated action prosecution, refusing to cooperate with the ICC. In the end, M. Al-Bashir never visited Venezuela nor left the African continent.
In the past few days, the media had reported that M. Muammar Gaddafi might seek asylum in Nicaragua, Venezuela or Cuba. This hypothetical visit opens big questions for jurists in the region: What would happen if Al-Bashir, Gaddafi or any other criminal pursued by the ICC would come to Latin America? In there a system in place to surrender those who are under a warrant of arrest to the ICC?
Cooperation, cooperation...
This situation presents two concrete things: First, the obligation to cooperate with the ICC is a binding obligation to the 15 Latin American countries that have ratified the Rome Statute, including the surrender of individuals. Secondly, the national prosecution of former Heads of State and Senior State officials for human right violations, enforced disappearances or torture along with the jurisprudence of the Inter-American Court of Human Rights has created a legal framework that would prevent suspects of international crimes to seek haven in Latin America.
This last point is important because although Nicaragua, Cuba, El Salvador and Guatemala have not ratified the Rome Statute, they are members to the UN and have the obligation to arrest M. Gaddafi, or any other subject to an ICC arrest warrant for the Libya and Darfur situation, which stems from Security Council Resolutions that refer the Darfur and Libya situation to the ICC and requires the cooperation of all UN Member States.
It is a duty of States Parties to arrest and surrender those who are suspected of committing crimes under for the ICC, and those who are under an arrest warrant. Furthermore, seven arrest warrants issued for the ICC at the moment of this writing, are orders sending by INTERPOL, so the states are obliged to attend them. If the suspected of committing a crime is arrested, the judiciary organ should decide whether to deliver to the ICC. In the case of Darfur and Libya- both referred to the ICC via- resolution of the UN Security Council- then, all states members to the UN should comply and arrest those indicted by the ICC .
The most important challenge is to achieve the cooperation from the States Parties: in order to be effective and truly fight against global impunity, the Court needs be able to rely on the cooperation it can receive from states. But the cooperation needed is not solely for the execution of arrest warrants, it means much more than that. We will not argue on each of the aspects of cooperation, but we will only concentrate on one aspect.
Cooperation is one of the cornerstone principles for its operations. The ICC has no police force and no prisons. According to the Rome Statute, states are responsible for arresting and surrendering ICC suspects to the Court. In addition, the ICC needs cooperation from states in gathering evidence, providing security to victims, gaining access to crime sites, among many others.
So, Is this enough? No. First, it is necessary to fix some legal deficiencies
By adopting cooperation mechanisms, States will ensure the enforcement of the Court’s work, decisions, and rulings. Effective cooperation mechanisms have to be implemented at a national level and can be also promoted at a regional level.
Throughout all these years, the OAS has supported the ICC by resolutions and special working groups, but in our opinion it will be pertinent to include in the following resolutions or schedules of the groups, specific actions with regards to the execution of the ICC arrest warrants and request of cooperation. One of the proposals could be to tackle the issue as a regional question between the members of the UNASUR, MERCOSUR and the Andean Community of Nations, just as the European Union (EU) works in cases related with universal jurisdiction.
The Rome Statute does not violate any principle of Law of treaties and has not created any other right or obligation non-existent in international law. Cooperation is a conventional and a specific obligation of the States to the Rome Statute, in accordance with the provisions of Article 86.
So, the success of the Court depends on the cooperation of the states, and in order to reach it, it will be necessary to activate all the mechanisms available to execute the orders or cooperation needs issued by the Court. It also provides that national legislation is ready, with the Rome Statute at various levels, including criminal procedure level. If this happens then it would be possible to realize factual or provisional arrests, delivery people and other ways of cooperation inter alia.
Most of the countries in the region still are putting into practice the Rome Statute in their domestic legislation; however it does not mean that the implementation of the Statute could reach our codes of criminal procedure, specifically in those items referred to extradition and delivering people. Commonly those items are managed as synonym or similar, and it is a very seriously confusion of terminology, which should be tackled by our legislators.
Latin America Should not be Safe Haven
This new system of international justice, established by the Rome Statute and represented by the ICC, has increased the global impetus to fight impunity and represents a promise made to future generations, a vow to help turn the words “Never again” into a reality. It also puts forward high standards for gender crimes, fairness of proceedings, and victims’ rights.
Not having in place mechanisms of cooperation does not exclude or exempt the international obligation of our countries to the ICC. Our legislations cannot leave the current situation aside and should be updated in order to achieve that our region never more could become in a shelter for war criminals, as happened 60 years ago.
