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International Criminal Law, Transnational Criminal Organizations and Transitional Justice : Transnational Criminal Organizations and Transitional Justice [1 ed.]
 9789004341005, 9789004340992

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International Criminal Law, Transnational Criminal Organizations and Transitional Justice

International Criminal Law, Transnational Criminal Organizations and Transitional Justice By Héctor Olásolo

LEIDEN | BOSTON

Library of Congress Cataloging-​in-​Publication Data Names: Olásolo, Héctor, author. Title: International criminal law, transnational criminal organizations and  transitional justice / by Héctor Olásolo. Description: Boston : Brill, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2018024988 | ISBN 9789004340992 (alk. paper) Subjects: LCSH: International criminal law. | International criminal courts. | Criminal procedure (International law) | Transnational crime. | Organized crime. | Transitional justice. Classification: LCC KZ7000 .O43 2018 | DDC 345—dc23 LC record available at http://​lccn.loc.gov/2018024988​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. ISBN 978-90-04-34099-2 (hardback) ​I SBN 978-90-04-34100-5 (e-book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Acknowledgments To my partner Aida, my parents Valentín and Mercedes and those who have made possible this book: Juan David Albarracín, Nicolás Buitrago Rey, Lucia Carcano, Andrés Contreras, Miguel Fonseca, Pablo Galain Palermo, Laura Mahecha, Andrea Mateus, Carlos Andrés Pinto, Joel Ramirez, Juan Esteban Santamaría, Dalila Seoane and Miguel Zamora.

Note This book is part of the research project: “Principles of harmonization between the function and scope of justice and the demands arising from transitional processes” /​“Principios de armonización entre la función y alcance de la justicia y las demandas que surgen de los procesos de transición”, funded by Universidad del Rosario, Bogotá, Colombia. The book is also part of the works of the Research Network on Ibero-​American Perpectives of Justice, coordinated by the Ibero-​ American Institute of The Hague for Peace, Human Rights and Intenational Justice (IIH).

Contents List of Abbreviations xi Foreword xiv

PART 1 Foundations of International Criminal Law 1 Definition, Protected Values and Goals of International Criminal Law 3 A Definition and Protected Values 3 B Goals 7 2 Historical Evolution of International Criminal Law 12 3 Normative Hierarchy of the Norms Prohibiting International Crimes 21 A Jurisprudence of International and Hybrid Criminal Tribunals 22 B General Comments and Concluding Observations of the Human Rights Committee: The Situations in Spain and Northern Ireland 23 C Jurisprudence of the Inter-​American Court of Human Rights 26 D Jurisprudence of the International Court of Justice and the European Court of Human Rights 29 E Final Remarks 31

PART 2 The Scope of Criminal Proceedings for International Crimes Since the End of the Cold War 4 The Scope of Criminal Proceedings in International and Hybrid Criminal Tribunals 37 A The Scope of Criminal Proceeding in the International Criminal Tribunals for the Former Yugoslavia and Rwanda 37 B The Scope of Criminal Proceedings in the International Criminal Court 41 C The Scope of Criminal Proceedings in Hybrid Criminal Tribunals 46 D Final Remarks 52

viii CONTENTS 5 The Scope of Criminal Proceedings for International Crimes in National Jurisdictions 59 A The Long Struggle for the Investigation and Prosecution of International Crimes Committed in Argentina by the Military Dictatorship (1976–​1983) 60 A.1 The Crimes: 1976–​1983 60 A.2 The Long Struggle for the Investigation and Prosecution of International Crimes in Argentina: 1983–​2005 62 A.3 Criminal Proceedings Since 2005 66 B The Scope of Criminal Proceedings for International Crimes in National Jurisdictions of Territorial States 69 C The Scope of Criminal Proceedings for International Crimes in Foreign National Jurisdictions Acting under the Principle of Universal Jurisdiction 73

PART 3 International Criminal Law and Transnational Criminal Organizations 6

How Do Transnational Criminal Organizations Operate? 79 A Introduction to the Phenomenon of Transnational Crime 79 B Transnational Criminal Organizations 80 C Mexican Drug Cartels and Their Structural Connexion with Public Authorities 82 D Colombian bacrims 87 E Final Remarks: The Situation of the Japanese Yakuza 89 7 Is International Criminal Law an Appropriate Mechanism to Deal with Transnational Criminal Organizations? 91 A Initial Approach to the Problem 91 B The Distinct Nature of Transnational Criminal Law and International Criminal Law 92 C Do Some of the Most Serious Acts of Violence by Transnational Criminal Organizations Constitute Crimes against Humanity and Thus Legitimize an International Criminal Law Response? 97

CONTENTS

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PART 4 International Criminal Law and Transitional Justice 8 Definition and Scope of Transitional Justice: Should It be Applied to Situations of Large Scale Violence by Transnational Criminal Organizations? Special Attention to the Situation in Mexico 105 A Historical Precedents 105 B Definition 106 C The Scope of Transitional Justice: Should Transitional Justice be Applied to Situations of Large Scale Violence by Transnational Criminal Organizations Like in Mexico? 107 9 The Tension between Criminal Proceedings for International Crimes and Truth Commissions as Central Elements of a Liberal Approach to Transitional Justice 110 A Introduction to a Liberal Approach to Transitional Justice 110 B Initial Approach to the Tension between Criminal Proceedings and Truth Commissions: The Reactions to the 2 October 2016 Referendum on the Peace Agreement between the Colombian Government and the FARC 111 C Strengths and Weaknesses of Criminal Proceedings for International Crimes 112 D Strengths and Weaknesses of Truth Commissions 113 D.1 The Treatment of Structural Violence by Truth Commissions: The Armed Conflict in Colombia as a Paradigmatic Example of Structural Violence and Concerns About the Mandate of the Commission for the Clarification of Truth, Coexistence and Non-​Repetition in Colombia 114 D.2 The Tension between Furthering Truth Recovery and Protecting Political Commitment: The Cases of Northern Ireland and Spain 121 E Is It Possible to Articulate Truth Commissions and Criminal Proceedings for International Crimes to Overcome Their Respective Limitations? 124 10 From a Social-​Democratic Approach to Transitional Justice to the Contributions of Critical Theories 127 A Introduction to a Social-​Democratic Approach to Transitional Justice 127 B The Tension between Individual and Collective Elements of Reparation Programs 128

x CONTENTS C The Notion of Superficial Transition 131 D The Main Issues of Transitional Justice: When, How and Why 132 E The Relationship between Transitional Justice and Development: Particular Attention to the UN Millennium Development Goals 134 F Final Remarks 137 11 From the 1984 Naval Club Agreement in Uruguay to the 2016 Colon Theatre Peace Agreement in Colombia 138 A Uruguay 138 A.1 The Crimes: (1973–​1985) 139 A.2 The Transitional Process 140 A.3 The Criminal Proceedings 143 A.4 Final Remarks 145 B Colombia 146 B.1 The Various Transitional Justice Systems Set Up in Colombia in the Last Decade 146 B.2 The 24 November 2016 Peace Agreement between the Colombian Government and the FARC 148 B.3 The Main Elements of the Colombian Integrated System of Truth, Justice, Reparation and Non-​Repetition 150 B.4 Final Remarks 153 12 How should the Normative Dilemma Posed by the Overlapping Scopes of Application of International Criminal Law and Transitional Justice be Addressed? 154 A The Fragmentation of International Law 154 B The Normative Dilemma Posed by the Overlapping Scopes of Application of International Criminal Law and Transitional Justice 155 C Can the Adoption of Transitional Justice Mechanisms that do not Comply with the Legal Regime of International Crimes be the Solution to the Normative Dilemma? Particular Attention to the Special Jurisdiction for Peace in Colombia 157 D Final Remarks 162 Table of Cases 163 Table of Reports and Other Documents 184 Bibliography 200 Index 230

Abbreviations ac achr afrc ap i

Appeals Chamber American Convention on Human Rights Armed Forces Revolutionary Council Additional Protocol i to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflict ap ii Additional Protocol ii to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-​International Armed Conflict aprodeh Asociación para la Protección de los Derechos Humanos car Central African Republic cctcnr Commission for the Clarification of Truth, Coexistence and Non-​Repetition/​Comisión para la Clarificación de la Verdad, la Convivencia y la No Repetición cdf Civil Defence Forces cia us Central Intelligence Agency conadep Comisión Nacional para las Personas Desaparecidas/​National Commission for the Dissapeared Persons drc Democratic Republic of Congo eac s Extraordinary African Chambers eccc Extraordinary Chambers in the Courts of Cambodia echr European Convention on Human Rights ECtHR European Court of Human Rights e.g. For example ed./​s Editor/​s eln Ejército de Liberación Nacional epl Ejército Popular de Liberación et al. And other authors et seq. And following pages eulex European Union Rule of Law Mission in Kosovo farc Fuerzas Armadas Revolucionarias de Colombia fn. Footnote fni Front des Nationalistes et Intégrationnistes fplc Forces Patriotiques pour la Libération du Congo frpi Force de Résistance Patriotique en Ituri gc i, ii, iii & iv Geneva Conventions i, ii, iii and iv hiwg Humanitarian Issues Working Group

xii Abbreviations iachr Inter-​American Commission of Human Rights IACtHR Inter-​American Court of Human Rights icc International Criminal Court iccs Statute of the International Criminal Court icc otp Office of the Prosecutor of the International Criminal Court icc rpe Rules of Procedure and Evidence of the International Criminal Court iccpr International Covenant on Civil and Political Rights icj International Court of Justice icl International criminal law icrc International Committee for the Red Cross ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia Idem. Same ifor Implementation Force ihl International humanitarian law ihrl International human rights law iih Ibero-​American Institute of The Hague or Peace Human Rights and International Justice ilc International Law Commission imt International Military Tribunal imtfe International Military Tribunal for the Far East ksc s Kosovo Specialist Chambers mln-​t Movimiento de Liberación Nacional-​Tupamaros mict International Residual Mechanism for Criminal Tribunals mlc Mouvement de Libération du Congo nato North Atlantic Treaty Organization No. Number p./​pp. Page/​s para./​s. Paragraph/​s pcij Permanent Court of International Justice pri Partido Revolucionario Institucional ptc Pre-​trial Chamber rpf Rwanda Patriotic Front rscsl Residual Special Court for Sierra Leone ruf Revolutionary United Front scsl Special Court of Sierra Leone sjp Special Jurisdiction for Peace/​Jurisdicción Especial para la Paz stl Special Tribunal for Lebanon Suppl. Supplement tc Trial Chamber

Abbreviations tcl Transnational criminal law tj Transitional justice uk United Kingdom un United Nations unamsil United Nations Mission in Sierra Leone unga United Nations General Assembly unhcr United Nations High Commissioner for Refugees unmik United Nations Interim Administration in Kosovo unsc United Nations Security Council unsg United Nations Secretary General untaes United Nations Transitional Authority in Eastern Slovenia untaet United Nations Transitional Administration in East Timor upc Union des Patriotes Congolais us/​u sa United States/​United States of America Vol. Volume § Section.

xiii

Foreword Writing a foreword to Professor Héctor Olásolo’s new book entitled “International Criminal Law, International Criminal Organizations and Transitional Justice” is part of the dialogue we have had since I met him at the International Criminal Court shortly after my appointment in 2006. Héctor had joined the icc shortly after the Court began its work as legal officer of Judge Sylvia Steiner, who was the single judge of the first icc pre-​trial proceedings. He had his office in the same floor as mine and we soon started having long legal debates on different substantive and procedural issued concerning the icc law and icl at large. Once Héctor was appointed to the chair in icl at Utrecht University, we continued enjoying fruitful legal exchanges both in The Hague and Utrecht. Four year afterwards, when he left Utrecht for El Rosario University in Colombia, I thought our on-​going dialogue would come to an end. Nevertheless, Héctor did not stop coming back to The Hague every semester, as he founded in 2011 the Ibero-​American Institute of the Hague for Peace, Human Rights and International Justice (iih), that he currently chairs. As a result, thanks to the various activities that the iih –​with the support of The Hague University of Applied Sciences and El Rosario University  –​organizes every year (including the Ibero-​American Week of International Law and the Polyphonic Day on International Justice), I have had the opportunity to strengthen, since my appointment as President of the Kosovo Specialist Chambers in 2016, the legal exchanges I have always had with Héctor. Prof. Olásolo’s new book is comprised of four parts and twelve chapters. Part i is entitled “Foundations of International Criminal Law”. It first addresses the definition of icl, which, understood in narrow sense, constitutes a response of the international society to those crimes that most seriously undermine its fundamental values. Here, Prof. Olásolo explains that the material scope of the expressions “icl” and “international crimes” in the book is limited to genocide, crimes against humanity and war crimes, because they are the only international crimes that are part of the material jurisdiction of all international criminal tribunals created after 1990. Part i addresses next the values protected as well as the goals pursued by icl. Part i moves then to analyse the evolution of icl. It explains the historical process that led the international society to resort to penal norms to attribute individual criminal responsibility to the perpetrators and accomplices of international crimes. It also explains how the international society has established the following types of icl enforcement mechanisms: (i) direct icl

FOREWORD

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enforcement mechanisms (international criminal tribunals); (ii) indirect icl enforcement mechanisms (national jurisdictions acting under the principles of territoriality, active nationality, passive nationality or universal jurisdiction); and (iii) hybrid mechanisms with national and international components (hybrid criminal tribunals). Part i finalizes with the analysis of the hierarchy of the norms prohibiting international crimes, which is a key aspect of the normative dilemma currently faced by tj. Part ii is entitled “The Scope of Criminal Proceedings for International Crimes since the End of the Cold War”. In light of the fact that international crimes are not an exceptional phenomenon in current international society, part ii analyses the limited scope of criminal proceedings for international crimes in international and hybrid criminal tribunals and national jurisdictions. Special emphasis is made on the International Criminal Court and on some particularly active Ibero-​American national jurisdictions. The important obstacles posed by the immunity from foreign national courts of the highest state representatives are also highlighted. In light of the above-​mentioned, Prof. Olásolo shows the need to elaborate a solid theoretical framework that (i)  defines more precisely which are the ultimate icl goals; (ii) determines which direct, indirect and hybrid icl enforcement mechanisms are the most adequate to achieve them; (iii) establish how the various icl enforcement mechanisms should be articulated so that their actions are more effective; and (iv) elaborates policy criteria setting up clear priorities on what crimes and what type of responsible persons should be the focus of the investigations and prosecutions of national, international and hybrid criminal tribunals. Part iii is entitled “International Criminal Law and Transnational Criminal Organizations”. It first contains an excellent criminological analysis of the main characteristics of transnational criminal organizations, putting particular attention to the Colombian criminal gangs, the Mexican drug-​cartels and the Japanese Yakuza. Part iii then discusses the increasingly pressing question of whether icl is an appropriate mechanism to fight against transnational criminal organizations in a global society. Transnational criminal organizations have availed themselves of cutting-​edge technology and increasing de-​regulation of the financial markets to design global strategies and make inefficient the traditional mechanisms of application of tcl. As a result, the proposal to resort to icl to fight against them comes hand in hand with the acknowledgment that the 1988 un Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 2000 un Convention against Transnational Organized Crime (which develop unga resolutions 39/​ 141, 39/​142 and 39/​143 (1984) in which international anti-​drugs policies were broadened to include the fight against organized crime and to focus law

xvi FOREWORD enforcement activities on the confiscation of profits and the identification of international financial structures used for money-​laundering) have shown to be insufficient. Part iv addresses the normative and political dilemmas resulting from the interaction between icl and tj as a result of their overlapping scopes of application, because the commission of international crimes is a characteristic element of situations of “large-​scale past abuses”. Particular attention is placed to the transitional processes in Colombia, Northern Ireland, Spain and Uruguay. This part begins with the analysis of the notion and historical origins of tj, to later study the reasons that have prevented so far the existence of a minimum degree of consensus on the scope of application, goals and main elements of tj. Special emphasis is made on the unbridgeable differences between liberal, social-​democrat and critical approaches to tj. Part iv analyses next the main policy dilemma faced by the liberal model of tj: the search for an adequate balance between (i)  retributive justice, which looks at the past through the investigation, prosecution and punishment of large-​scale abuses (particularly if they amount to international crimes); and (ii) restorative justice, which aims at restoring victims’ dignity through the search for the truth and the promotion of the perpetrators’ public acknowledgment of responsibility. The strengths and weaknesses of criminal proceedings and truth commissions to address situations of large-​scale past abuses amounting to genocide, crimes against humanity and war crimes are analysed. According to Prof. Olásolo, although a well-​articulated combination of both mechanisms may limit, to some extent, their respective weaknesses, it cannot eliminate them. Part iv finalizes with the analysis of the normative dilemma of tj in light of its limited endorsement by international law (tj is only embraced by non-​ binding soft law, such as the 2004 unsg Report on Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies and the works of some highly qualified authors as reflected, for instance, in the 2013 Belfast Guidelines on Amnesty and Accountability) and the legal uncertainty caused by those measures that are contrary to the legal regime of international crimes. As a consequence, from a normative perspective, current international law requires the investigation, prosecution and punishment of those responsible for genocide, crimes against humanity and war crimes to be part of transitional processes seeking to overcome political regimes characterized by large-​scale past abuses, or aiming at facilitating the transition from armed conflict to peace. Nevertheless, Prof Olásolo considers that, from a policy perspective, it appears necessary to harmonize the current legal regime of international crimes with the need to articulate transitional processes that are capable to effectively overcome authoritarian regimes and armed conflicts. To undertake

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effectively this harmonization process, there is a need to end the “dialogue of the deaf” held for more than two decades between icl and tj scholars. Having icl and tj overlapping scopes of application, icl and tj scholars are called to listen and understand each other in order to avoid, to the extent possible, the legal uncertainty in which the main actors involved in transitional processes are currently being left, because no one can guarantee them that national courts, foreign national jurisdictions acting under the principle of universal jurisdiction, international criminal tribunals (including the icc), hybrid criminal tribunals, human rights monitoring bodies or human rights regional courts, will not apply the legal regime of international crimes It is now time to congratulate Héctor for his excellent new book and Martinus Nijhoff Publishers for its trust in Prof. Olásolo´s work, as this is the third of his books that it publishes along with The Triggering Procedure of the International Criminal Court (2005) and Unlawful Attacks in Combat Situations (2008). Finally, I would also like to invite the reader to get to know in more detail Prof. Olásolo´s diagnosis and proposals. Ekaterina Trendafilova President, Kosovo Specialist Chambers The Hague, 31 January 2018

PA RT 1 Foundations of International Criminal Law



Chapter 1

Definition, Protected Values and Goals of International Criminal Law A

Definition and Protected Values

Forty years after the initial experience of the International Military Tribunals of Nuremberg and Tokyo in post-​World War ii (1945–​1948), the end of the Cold War (1949–​1989) gave way to (i) the establishment of new international criminal tribunals (the icty, the ictr and the icc); (ii) the establishment of several hybrid criminal tribunals (the Special Panels for Serious Crimes in East Timor, the Regulation 64 Chambers in the Courts of Kosovo, the scsl, the eccc, the stl, the eac s and the ksc s); (iii) the unprecedented opening of criminal proceedings for international crimes in national jurisdictions of territorial states (Argentina, Bosnia and Herzegovina, Colombia or Rwanda are just a few examples of this trend); and (iv) the unprecedented investigation of international crimes in foreign national jurisdictions acting under the principle of universal jurisdiction (Belgian and Spanish tribunals have been particularly active in this regard). Consequently, icl is no longer a theoretical discipline because since the end of the Cold War it has been applied by national, international and hybrid criminal tribunals for a prolonged period of time (over two decades). This generates the need to elaborate a solid theoretical framework on what icl is, what values icl protects and what goals icl pursues (Ambos, 2013a: 72). The definition of icl has been addressed from two main approaches (broad and narrow) which are in tension and condition, to a large extent, the analysis of icl structural elements, including its goals, its principles and its sources. Bassiouni (2008: 129 et seq.) and Kress (2008) embrace a broad icl definition. For Bassiouni, international crimes are crimes that: (i) affect important international interests or constitute especially serious crimes that undermine those values shared by the members of the international society; or (ii) involve more than one state, due to the different nationality of the perpetrators or the victims, the means employed or the need to use international law to fight against them effectively. As a result, icl is comprised of up to twenty-​five categories of international crimes (Bassiouni, 2008:  129 et seq.).

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004341005_​0 02

4 Chapter 1 Kress (2008:  paragraphs 1–​14) includes in its broad definition of icl up to four different groups of international norms:1 (i) norms defining the scope of state criminal jurisdiction; (ii) norms establishing state duties to extradite and provide judicial assistance; (iii) norms that are part of tcl (understood as the set of norms created by states through international treaties to regulate and prosecute those economic transactions whose planning, preparation, commission or effects affect to more than one state); and (iv) norms attaching to some human conduct (international crimes) legal consequences (penalties) that are characteristic of national criminal norms and are directly applicable by national, international and hybrid criminal tribunals (Kress, 2008: paragraphs 1–​14). The emergence of Kress’ fourth group of international norms implies a profound transformation of public international law, because it implies an acceptance of the principle of individual criminal responsibility vis-​à-​vis the international society as a whole (Werle & Jessberger, 2014). As a result, public international law is not limited any longer to regulate the actions or omissions of states under the warning that they will incur non-​criminal international responsibility in case of non-​compliance. It also regulates the conduct of human beings under the warning that they will incur international criminal responsibility vis-​à-​vis the international society as a whole in case of engaging in prohibited conduct (Ambos, 2013a: 54; Cassese, 2008: 11–​14). Ultimately, this means that, since the end of World War ii, the international society has established international norms which are also addressed to human beings and forbids them from engaging in conduct that undermines the core values of post-​World War ii international society, under the warning that a penalty will be imposed on anyone who fails to comply with such norms (May, 2005: 72–​75, 82, 83, Van der Wilt, 2014a: 30–​31). Fichtelberg (2008: 11 et seq.), Robinson (2008: 961–​962), Sander (2010: 105 et seq.) and Stahn (2012:  259–​260) remind us that the emergence of Kress’ fourth group of international norms also implies the adoption by public international law of investigative and prosecutorial mechanisms that have been traditionally used by national law, with their basic principles of legality, culpability and due process. With the adoption of the icc Statute in 1998, and its entry into force in 2002, these mechanisms have been institutionalized, moving from ad hoc temporary international or hybrid criminal tribunals to a permanent international jurisdiction (icc) with aspirations of universality (Ambos, 2013a: 55). A narrow approach to the definition of icl is to an important extent related to the notion of peremptory or ius cogens international norm. According to 1 Kress groups in four the six categories of international legal norms that Schwarzenberger (1950: 263 et seq.) identified as belonging to icl.

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article 53 of the Vienna Convention on the Law of Treaties (1969), “[…] a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Hence, peremptory or ius cogens norms protect interests of the international society as a whole and prohibit conduct that has come to be considered intolerable because it represents a threat to the survival of states and their peoples and to most basic human values (ilc, 2001: 112–​113). Although there is no official compendium of ius cogens norms, there is a broad consensus that a number of norms included in Kress’ fourth group of international norms have acquired ius cogens status, including the norms prohibiting aggression, apartheid, enforced disappearances, genocide, slavery, torture, systematic or widespread violations of basic ihrl (crimes against humanity) and grave ihl breaches (war crimes) (icl, 2001: 112–​113; Chetail 2003: 235–​268; Shaw, 2017: 94). A narrow approach to the definition of icl considers that icl is only comprised of Kress’ fourth group of international norms because of their uniqueness with respect to: (i) their ultimate goal (the protection of the essential values of post-​World War ii international society); (ii) their addressees (human beings who must refrain from engaging in prohibited conduct under the warning of incurring in criminal liability vis-​à-​vis the international society as a whole, and states and international and hybrid criminal tribunals that have the duty to investigate, prosecute and punish international crimes); and (iii) the institutions through which they are applied (national, international and hybrid criminal tribunals); and (iv) their status under international law (a number of icl norms are ius cogens norms). As Satzger (2012: 179) has put it, a narrow approach to icl allows equating icl with “the criminal law of the international community.” With regard to the values protected by icl, a distinctive feature of international crimes is that they protect individual and collective values. On the one hand, international crimes protect individual values such as life, physical integrity, sexual autonomy or freedom. On the other hand, as provided for in paragraph 3 of the Preamble of the icc Statute in relation to aggression, genocide, crimes against humanity and war crimes, collective values are also protected by international crimes because their commission constitutes “a threat to the peace, security and well-​being of humanity” (Ambos, 2013a: 55; Luban, 2011: 21; Satzger, 2003: 181; Werle, 2010: 82–​83, 468–​469). International peace and security are protected by the following categories of international crimes: (i) the crime of aggression, as it forbids manifest violations of the prohibition on the use of force under the un Charter; (ii) the crime

6 Chapter 1 of apartheid, insofar as every institutionalized regime of systematic oppression and domination of one or more racial groups, by its very nature, generates a threat to international peace and security; (iii) the crime of genocide, which aims at protecting national, ethnic, racial and religious groups, whose total or substantial destruction endangers international peace and security; (iv) crimes against humanity, as international peace and security are also at risk as a result of systematic or widespread violence against civilian populations; and (v) war crimes, as grave ihl breaches bring about the escalation of armed conflicts. Together with the protection of international peace and security, four of the five above-​mentioned categories of international crimes also aim at protecting a second universal interest which is essential for the international society as a whole: the preservation of national, ethnic, racial and religious groups (genocide and apartheid) and civilian populations (crimes against humanity and war crimes). There is a second group of international crimes, which is comprised of slavery, torture and enforced disappearance, whose protected legal values are neither the maintenance of international peace and security, nor the preservation of national, ethnical, racial or religious groups or civilian populations. As Vanegas (2011: 68–​70), Castro (2006: 81 et seq.) and Orakhelashvili (2006:  pp.  46–​47) point out, they aim at the protection of core aspects of human dignity as an essential pillar of post-​World War ii international society. As opposed to the first group of international crimes, the investigation and prosecution of slavery, torture and enforced disappearance which do not constitute genocide, crimes against humanity or war crimes are not entrusted with international criminal tribunals.2 As a result, for the sake of clarity, the material scope of the expressions “icl” and “international crimes” in this book is limited to genocide, crimes against humanity and war crimes. In doing so, the book follows the approach taken by Cryer et al. (2014: 5) and Olásolo (2017a: 54, 55). The reason for this approach is a practical one: they are the only international crimes that are part of the material jurisdiction of all international criminal tribunals created after the end of the Cold War. 2 The material jurisdiction of the icty and the ictr is limited to genocide, crimes against humanity and war crimes. The crime of aggression has only been included in the icc Statute (articles 5 and 8bis) and the icc will only exercise jurisdiction over it as of 17 June 2018. See icc Press Release (15/​12/​2018):  Assembly activates Court´s jurisdiction over crime of aggression. Available at: https://​www.icc-​cpi.int/​Pages/​item.aspx?name=pr1350 [last visited: 26 December 2017]. With respect to the crime of apartheid, the icc has jurisdiction over it as long as it constitutes a crime against humanity (article 7(1)(h) of the icc Statute). The material jurisdiction of most hybrid criminal tribunals established since the end of the Cold War include genocide, crimes against humanity and war crimes, but not aggression or apartheid.

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B Goals The prolonged application of icl since the end of the Cold War has generated the need to: (i) define more precisely the goals pursued by icl; (ii) determine which national, international and hybrid icl enforcement mechanisms are the most adequate to achieve them; (iii) establish how the several icl enforcement mechanisms should be articulated to enhance their efficacy; and (iv) define a set of policy criteria setting clear priorities on what crimes and what type of responsible persons should be the focus of the investigations and prosecutions of national, international and hybrid criminal tribunals (Ambos, 2013a: 72). As will be seen in greater detail in parts ii, iii and iv of the book, this need is currently more pressing than ever in light of: (i) the limited scope of criminal proceedings for international crimes in national, international and hybrid criminal tribunals; (ii) the steep decline in the number of international and hybrid criminal tribunals; (iii) the notably-​slower-​than-​expected pace of icc proceedings (and their emphasis on crimes committed in Africa); (iv) the adverse impact of the immunity of state officials (in particular, state highest representatives) from foreign criminal jurisdiction on the application of the principle of universal jurisdiction; (v) the frequent recourse of transnational criminal organizations to international crimes (especially, crimes against humanity) against those who interfere with their economic transactions and threaten their social control in the areas in which they operate; and (vi) the increasing tj literature claiming that criminal proceedings for international crimes, regardless of whether they are carry out by national, international or hybrid tribunals, are likely to cause greater political and social division in the midst of open conflicts for which a negotiated solution is sought (Engstrom, 2017: 379–​380). The decentralized development of icl through its national, international and hybrid enforcement mechanisms has led to the recognition of numerous icl goals. They can be classified in two main groups: (i) icl goals related to the maintenance of international peace and security as a collective value protected by international crimes; and (ii) icl goals that have traditionally been considered by national criminal law as goals of punishment. Concerning the first group, Cassese (1998:  6), Hafner et  al. (1999:  111), O’Connor (1999: 929), Osiel (1997) and Scharf (1999: 512) highlight that one of the main icl goals is the creation of a permanent historical record of international crimes, while Burke-​White (2005: 587, 588), Harmon (2009: 179–​182) and Ohlin (2009: 203–​205) make emphasis on the promotion of reconciliation at the end of the conflicts as a one of the most relevant icl goals. With respect to the second group, the following icl goals are often mentioned: (i) retribution (Blewitt, 2008: 39 et seq.; Mettraux, 2005: 345 et seq.;

8 Chapter 1 Harmon & Gaynor, 2007: 691 et seq; Swart, 2008: 87 et seq.); (ii) deterrence (Akhavan, 2001:  85 et seq.; Ambos, 2013a:  70; Harhoff, 2008:  128; Tadros, 2011:  13); (iii) reinforcement of values protected by international crimes (Ambos, 2013a; Damarska, 2008: 329–​331; Drumbl, 2005: 173; Duff, 2008: 85–​ 100; Eiroa, 2009; Stahn, 2012: 251); and (iv) rehabilitation (Cryer et al., 2014). Furthermore, since the establishment of the icc, and in light of the numerous provisions contained in the icc Statute on victims’ participation and reparation, the provision of justice for victims appears as an increasingly relevant icl goal (Pena & Carayon, 2013: 518 et seq., Dwertmann, 2010: 67; Kirchengast, 2017: 109 et seq.). While the above-​mentioned icl goals have found some support in the jurisprudence of icl enforcement mechanisms, they have also received strong criticism. For instance, numerous scholars reject the suitability of icl to; (i)  create a permanent historical record of international crimes; or (ii) promote reconciliation at the end of the conflicts (Álvarez, 1998–​1999:  359 et seq; D’Amato, 1994:  500; Koskenniemi, 2002:  1 et seq; Minow, 1998:  46–​47; Simpson, 1997: 26–​28; Ward, 2004: 131). Furthermore, it is questionable whether the goals of punishment under national criminal law can be also applicable in icl, given: (i) the gravity and systematic or large scale nature of international crimes; (ii) the need to resort for their commission to state institutions or armed groups with sufficient membership, organization and logistical and operational capabilities; and (iii) the emphasis of icl on the most responsible persons (Olásolo, 2016: 134). Moreover, several scholars underscore that an excessive icl emphasis on the provision of justice for the victim may infringe on the adversarial nature of criminal proceedings and on fundamental defence rights (Zappala, 2010: 137 et seq., Johnson, 2010: 489 et seq.; McGonigle, 2011). Faced with this situation, an important part of the doctrine considers that the ultimate goal that icl should pursue is the reaffirmation of its norms and the reinforcement of the values protected by international crimes as a result of sending the message that impunity for those most responsible for international crimes will not be tolerated (Ambos, 2013a; Damarska, 2008: 329–​331; Drumbl, 2005: 173; Duff, 2008: 85–​100; Eiroa, 2009; Stahn, 2012: 251). This approach is also supported, to an important extent, by unsc resolutions 1503 (2003) and 1534 (2004) in relation to the icty and the ictr, article 1 of the Statutes of the scsl and the eca, article 1 of the Law on the Establishment of the eccc and the icc Prosecutor’s policy documents (2003; 2007; 2010; 2013a; 2016a; 2016b). For these scholars, by reaffirming its norms and reinforcing its protected values, icl seeks above all to:  (i) make the most responsible aware of the wrongness of their conduct (Gunter, 2001:  3; Wilson, 2002:  62–​63); and

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(ii) create a universal legal conscience among those who direct power structures that could eventually be used to plan, instigate, order or facilitate the commission of international crimes about (a)  the unacceptable nature of these crimes; and (ii) the will of the international society not to leave them unpunished (Damarska, 2008: 329–​331; Drumbl, 2005: 173; Duff, 2008: 79; Stahn, 2012: 251; Von Hirsch, 1993: 61–​65; Zedner, 2004: 109). Behind this ultimate goal of icl lies an icl motivational function that aims at avoiding the use of state or non-​state power structures to implement systematic or large scale attacks against national, ethnic, racial or religious groups or civilian populations (Ambos, 2013a: 71; Stahn, 2012: 279–​280). Nevertheless, a number of scholars reject this approach. For Fabricius (2016: 226–​227), limiting the enforcement of icl to those most responsible for international crimes, is a way an oversimplification of collective responsibilities by using a sort of “scapegoat” approach. This objection becomes stronger if one considers that: (i) large parts of the population are usually, by action or omission, complicit in the commission of international crimes by unjust regimes; and (ii) those closer to unjust regimes take often economic advantage of the absence of the rule of law. From this perspective, doing justice in a selective way by holding some responsible and exonerating others, not only simplifies the complexity in which the most atrocious crimes are committed through state and non-​state institutions, but also prevents understanding the past to avoid its future repetition. Jescheck (1952) refers to this form of justice as “victors’ justice” because it is not based on the gravity of the crimes, but on a political application of the selectivity principle in light of the personal condition of the alleged perpetrators. A second group of scholars also show concern about an excessive icl emphasis on those most responsible for international crimes, given: (i) the key role played by the United States, along with some of its closest allies, especially the United Kingdom and France, as the driving force behind the establishment of the imt and the imtfe post-​World War ii, and the icty, the ictr and most hybrid criminal tribunals after the end of the Cold War; (ii) the exclusive focus of the Nuremberg and Tokyo tribunals on the political and military leaders of World War ii defeated states (Germany and Japan); (iii) the endemic dependence of international and hybrid criminal tribunals on state cooperation to carry out their functions; and (iv) the existing perceptions of political utilitarianism, pragmatism and even arbitrariness in the enforcement of icl (Del Ponte, 2008; Margalit, 2010; Peskin, 2008: 170–​186; Vilmer, 2011; Zolo, 2007). For these authors, the vulnerability of international and hybrid criminal tribunals to their political use by the most

10 Chapter 1 influential states of the international society is even greater given the political and military primacy of the United States and its nato allies since the end of the Cold War. Nevertheless, these criticisms also present certain vulnerabilities. For instance, the icc does not completely fit into the understanding of international criminal justice presented by these scholars, due to the initial hostility of the United States towards the icc, which, despite having decreased, has never turned into firm support (this helps to explain the difficult circumstances in which the icc has operated since its establishment).3 Furthermore, the risk of political use of criminal proceedings against those most responsible for international crimes also exists in national jurisdictions (Haskell & Waldorf, 2011: 50; 3 In 1998, the United States voted against the approval of the icc Statute. Although it signed the Statute at the end of 2000, the Bush administration declared, two months before the entry into force of the icc Statute, that the us signature had no value, which was considered equivalent to its withdrawal (Israel did the same a few months afterwards) (Cacho, 2009). This was prompted by the new post 11 September 2001 us security and defence policies, including the start of the so-​called “war on terror,” the opening of the Guantánamo detention centre and the launch on a global scale by the cia of a new detention and interrogation program, whose methods were considered constitutive of torture by the us Senate Intelligence Committee in 2014. Moreover, on 24 July 2002, the us Congress approved the American Service Members Protection Act, authorizing the President of the United States to send, if necessary, the us armed forces to “rescue” any us national who could eventually be surrendered to the icc (this authorization remains in force as of 2017) (Murphy, 2002: 975 et seq.; Cacho, 2009). As if this were not enough, the United States conditioned the economic aid to a large number of icc states parties to their signature of bilateral treaties that required the consent of the United States before the said states could surrender us officials to the icc (sometimes this obligation was extended to all us nationals). Furthermore, on 12 July 2002, the unsc approved resolution 1422 (which was renewed by unsc resolution 1487 in 2003) under the threat of the United States not to extend any of the un peacekeeping missions existing at that time. According to resolution 1422, the unsc “Requests, consistent with the provisions of Article 16 of the Rome Statute, that the icc, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-​month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise.” The election in April 2003 of Luis Moreno Ocampo as the first icc Prosecutor, who, in addition to being an assistant prosecutor in the Military Juntas trial in Argentina, had just completed a research stay for several months at Harvard University, reduced the level of us opposition to the icc (all icc preliminary examinations and investigations are under the mandate of the icc Prosecutor). As a result, the unsc did not renew resolution 1487 in 2004 and the next year it referred to the icc Prosecutor the situation in Darfur (Sudan) by resolution 1593 (31/​03/​2005) –​years later the unsc also referred to the icc the situation in Libya by resolution 1970 (26/​03/​2011).

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Clark, 2014: 187), as shown by the almost exclusive focus of Cold War national criminal proceedings for international crimes on those who acted on behalf of World War ii defeated states.4 The situation is even graver with respect to the investigations and prosecutions for genocide, crimes against humanity and war crimes carried out since 1990 by some national jurisdictions, especially in Rwanda.5 Concerns about an excessive icl emphasis on those most responsible for international crimes have also been expressed by numerous tj scholars. Based on the peace processes carried out in recent years in Colombia and Uganda, tj scholars underline the difficulties in reaching peace agreements between adverse parties that have not been militarily defeated, if what awaits their leaders is their prosecution and punishment for the international crimes committed by their subordinates (Branch, 2011: 122–​134; Guembe & Olea, 2006; Moreno Ocampo, 2005). For these scholars, the investigation and prosecution of those most responsible for international crimes is only possible without harming peace processes, when they are no longer necessary because one of the parties to the conflict has been militarily defeated, as happened during World War ii (Branch, 2011: 122–​134). This view is strengthened by the consideration of the preservation of international peace and security as an important icl goal (Cassese, 1998:  6; Hafner et al., 1999: 111; O’Connor, 1999: 929; Osiel, 1997; Scharf .1999: 512). According to this approach, icl can only be enforced on those acting on behalf of the defeated parties. As former Chilean president Patricio Alwyn pointed out, this ultimately means that icl can only offer justice insofar as it is possible. This is consistent with the logic behind the application of tj, in that the latter deploys its mechanisms according to political opportunity in light of the balance of power between the parties to the conflict. The problem with this approach is that criminal proceedings for international crimes cannot only hinder peace negotiations, but can have a similar effect in all situations in which crimes are committed by those holding political power. As a result, any negotiation process to leave political power may be truncated by the possibility of bringing the most responsible for international crimes to justice, regardless of whether this happens in national, international or hybrid criminal tribunals (Branch, 2011: 122–​134; Guembe & Olea, 2006; & Moreno Ocampo, 2005). Consequently, if one follows the approach preferred by most tj scholars, the enforcement of icl on those bearing the greatest responsibility for international crimes would only be possible if they are no longer in power. 4 See infra ­chapter 4. 5 See infra ­chapter 5.

Chapter 2

Historical Evolution of International Criminal Law icl has not had a constant development and application over time. On the contrary, icl has been developed and applied in very specific historical moments, particularly in the five years that followed World War ii (1945–​1950), in the “golden decade” of international criminal justice at end of the Cold War (1993–​2002) and in the subsequent decade (2002–​2011) in which the fruits of the golden decade were collected. Prior to World War ii, it is only possible to find some distant icl precedents, which could not be enforced (e.g. articles 227 to 230 of the 1919 Treaty of Versailles1, which provided for the establishment of an ad hoc international 1 In 1915, the governments of France, the United Kingdom and Russia made a joint declaration stating that the Ottoman Empire, an ally of the German and the Austro-​Hungarian Empires during World War i, had committed crimes that affected the “conscience of humanity” against about 800,000 Armenians who lived in its territory. This statement is included in the Armenian memorandum, submitted on 14 March 1919 by the Greek delegation to the Commission on the Responsibility of the Authors of War and on the Enforcement of Penalties, established by the Allied States at the end of the World War i. Its text can be found in Schwelb (1949: 178–​181). After World War i, the Treaty of Sevres provided for the right of the Allied Powers to prosecute those responsible for the above-​ mentioned crimes, and the obligation of the Ottoman Empire to surrender the members of the Ottoman government and armed forces who had incited them (Matas: 1989). The United States and Japan opposed this provision because in their view the category of crimes against the conscience of humanity had not been internationally defined prior to the violence exerted against the Armenians living in Turkey (Bassiouni, 2011:  88–​89). Despite having been signed by the United Kingdom, France, Italy and Turkey, the Treaty of Sevres never came into force. The absence of any international investigation into those responsible for the Armenian genocide (1925–​1933) gives support to those who claim that the price that the Turkish government had to pay to obtain impunity was the abandonment of the German side to become an ally of the Allied Powers. According to this view, after the 1917 Bolshevik Revolution, the United States and the European Allied Powers decided that Turkey could collaborate as an ally of the West to prevent Communist Russia from gaining access to the Mediterranean Sea. This would explain the absence of international criminal proceedings for the Armenian genocide at the end of World War i (Bassiouni, 2016: 368). At the national level, and due to British pressure, Turkish courts convicted for homicide (a crime that existed under the Penal Code of the Ottoman Empire) some members of the Turkish armed forces (Cassese, 2011:  134). Subsequently, there is only one case in Argentine in which Turkey is declared responsible for the Armenian genocide. See:

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 03

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tribunal to try German Kaiser Wilhelm ii for crimes against international morality and the sanctity of the treaties)2 or were nothing short of a farce (e.g. the war crimes trials carried out in the 1920s by the German Supreme Court in Leipzig) (Mullins, 1921: 98–​112, Becker, 1996).3 These first icl precedents constitute a first attempt to change a long-​lasting tradition that considered unnecessary to prosecute and punish those responsible for atrocity crimes in light of the need to find negotiated resolutions of armed conflicts4. This usually led to forgetfulness and lack of punishment for the atrocities committed during the hostilities. http://​www.infobae.com/​2011/​04/​01/​1022193-​argentina-​un-​juez-​responsabilizo-​turquia-​el​ -gencidio-​del-​pueblo-​armenio/​[last visited: 30 December 2017]. On the genocides committed in the twentieth century, see Brunetau (2006). It is worth noting that the genocides committed during the European colonial expansion have never been acknowledged, as shown by Erichsen’s work (2006) on the German genocide in Namibia against the Herero people (1904–​1908). 2 In particular, article 227 of the Treaty of Versailles provided for the establishment of an ad hoc international criminal tribunal, composed of five judges appointed respectively by France, Italy, Japan, the United Kingdom and the United States, with jurisdiction over the crimes against international morality and the sanctity of the treaties committed by Kaiser Wilhelm ii of Hohenzollern. Nevertheless, the international tribunal could not finally be established because Kaiser Wilhelm ii, after his abdication in the autumn of 1918, took refuge in the Netherlands, which had declared neutrality during World War i and where his aunt Queen Wilhemina reigned. After granting him asylum, the Dutch government refused to hand him over to the Allied Powers that were seeking to prosecute him, claiming that the charges he was accused of did not exist under Dutch law. The conflict for the establishment of an international criminal tribunal was closed in 1920 when Belgium, France and the United Kingdom (the United States had already left beforehand because the crimes charged had not been internationally defined prior to their commission) accepted the German proposal to prosecute in its Supreme Court, located in Leipzig, 45 cases that had been selected by those states, under the supervision of an Allied Powers mission of observers (Mullins, 1921: 98–​112). 3 Between 1921 and 1929 the Penal Chamber of the German Supreme Court prosecuted low-​ level and mid-​level members of the German army who had allegedly engaged in war crimes during World War i. 13 convictions were entered in a total of 861 trials. None of the alleged most responsible persons, including General Ludendorff, General Hinderbug, Admiral von Tirpitz or Foreign Minister Bethmann-​Hollweb, were charged (Becker, 1996). 4 In international armed conflicts, state responsibility for humanitarian disasters resulting from aggressive or unjust wars was assessed in economic terms in favour of the victors. Article 231 of the Treaty of Versailles dealt with the issue of guilt under the section on “reparations,” which shows that economic responsibility for war crimes was more important than criminal liability at that time (Schmitt 1994:  24 et seq.). In non-​international armed conflicts, the notion of “political crimes” committed by the “opposing parties” was frequently used. Since the main goal was to recover the rule of law and political stability, amnesty

14 Chapter 2 It was the horror of World War ii, together with the fact that it directly affected the social, political and economic elites of the states that had dominated the international society since the 18th century, which brought about a minimum consensus on the political opportunity and moral need to prosecute and punish those leaders of the defeated side who were responsible for aggressive wars and atrocity crimes against combatants and non-​combatants (Vormbaum, 2009).5 In this way, the notion of international individual criminal responsibility was born. During the years that followed World War ii (1945–​1950), the foundations of what we know today as icl were laid down (Bassiouni, 2011: 718 et seq.). Genocide (1948) and war crimes –​understood as grave breaches of the 1949 Geneva Conventions –​were regulated by treaty law. The ilc elaborated the so-​called Nuremberg principles (1947 & 1950) and prepared a Draft Code of Crimes against the Peace and Security of Mankind (1951, 1954) and a Draft Statute for an International Criminal Court (1951 & 1953). All of this took place against the backdrop of ihl development and the establishment of ihrl foundations (Cançado Trindade, 2010: 275–​276; Del Arenal, 2002: 32; Marchett Gauche, 2002: 485). Simultaneously, the imt and the imtfe (both established at the request of the United States, whose position with respect to the establishment of international criminal tribunals had completely changed from the opposition it had shown twenty-​five years before at the end of World War i), as well as the military commissions of the four Allied Powers that occupied Germany since 1945 (the United States, the United Kingdom, the Soviet Union and France), sent the following message: those who in leadership positions resort to aggressive wars against third states and use armed force against their own population:  (i) lack moral legitimacy to continue leading their respective was considered as a perfect mechanism to return to institutional life without “winners” or “losers” (Colao, 1986a: 15; Santosuosso 1986: 24; Sobremonte, 1980: 53). The first modern manifestation of the notions of political crime and amnesty in France dates back to 1830 after the July Revolution (Colao, 1986b: 15). In Italy, Santusuoso (1986: 24) counts up to 120 amnesties and pardons prior to 1915. The same policy was followed after World War i (Colao, 1986b: 49). In relation to Germany, during the Weimar Republic, Colao (1986b: 53) refers to some twenty-​five amnesties and as many decisions of grace and clemency. With respect to grace decisions and amnesties for political crimes in Spain, see Sobremonte (1980: 43). For Uruguay, see Devoto (1985: 288). 5 As Werle (2009: 84) underscores, when the change of political system is the result of a complete military defeat of the previous regime or a revolution, there is no reason to enter into any agreement with the previous order. As a consequence, there is no obstacle to undertake criminal proceedings for atrocity crimes.

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national societies; and (ii) incur in individual criminal liability vis-​à-​vis the international society as a whole, due the harm that they have caused to it (Olásolo, 2017a: 101).6 6 The principles contained in the 8 August 1945 London Charter of the International Military Tribunal (known as the ‘The Nurernberg Tribunal’) were approved by the unga in its Resolution 95 (i) of 11 December 1945 on the Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal. Two years afterwards, once the Nuremberg Tribunal handed down its judgment (known as the ‘Nuremberg Judgment’), the United Nations General Assembly in its Resolution 177 (ii) of 21 November 1947 on the Formulation of the Principles Recognized in the Chapter of the Nuremberg Tribunal and in the Judgment of the Tribunal, directed the ilc to “(a) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgement of the Tribunal; and (b) prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above.” The ilc adopted its final formulation of the Nurernberg Principles at its second meeting held between 5 June and 29 July 1950, and submitted them to the unga. The Nuremberg Principles are reproduced in full in the Yearbook of the International Law Commission, 1950, vol. ii. According to the 1950 ilc Report, the following seven principles had been identified by the Commission: Principle i: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Principle ii: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” Principle iii: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.” Principle iv: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” Principle v: “Any person charged with a crime under international law has the right to a fair trial on the facts and law.” Principle vi: “The crimes hereinafter set out are punishable as crimes under international law:  (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (b) War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-​treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory; murder or ill-​treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.” Principle vii: “Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle

16 Chapter 2 Nevertheless, the cases that the imt, the imtfe and the military commissions acting under Allied Control Council Law No. 10 selected also hinted that those leaders who engage in international crimes would only be prosecuted and punished if they acted on behalf of the defeated side (Jescheck, 1952; Norrie, 2009: 187–​231; Christie, 2004; Zolo, 2007).7 The enforcement of icl by national jurisdictions during the Cold War (1950–​1989) reinforced this message because only those who had acted on behalf of the Axis Powers were prosecuted –​the 1984–​1985 trial of the members of the Argentinean Military Juntas and the 1970–​1974 proceedings for the crimes committed by us forces during the My Lai massacre in Vietnam were unusual exceptions to this forty-​ years long practice (Nino, 1991: 2619–​2640; Neier, 1998; Douglas, 1999). The limited enforcement of icl during the Cold War coexisted with the use of traditional conflict resolution techniques in numerous situations. As a result, conflicts were ended through agreements between adverse parties that, at best, undertook the commitment to offer public apologies to victims. This led to forgetfulness and avoided prosecution and punishment for large-​scale atrocities. The Indian-​Pakistani conflict in the early 1970s is a paradigmatic example of public apologies without ulterior legal consequences (Murshid, 1997: 1–​34).8 All this happened despite 18 million deaths, hundreds of thousands of executions and innumerable victims of torture caused by the Cold War as a result of: (i) the desperate attempts of the European colonial powers to avoid, by all possible means, the process of decolonization; and (ii) the dispute between the two new super-​powers (the United States and the Soviet Union) for areas of influence and access to natural resources in very favourable conditions (Bassiouni, 2011: 120–​121). It was in this context that a new form of “modern” warfare, which was designed to confront a “subversive” enemy by widespread and systematic torture, extrajudicial killings and enforced disappearances, was put in place by vi is a crime under international law.” See. ilc, Report of the International Law Commission on its Second Session, 5 June to 29 July 1950, Official Records of the General Assembly, Fifth session, Supplement No.12 (A/​1316), un doc. A/​CN.4/​34. Pp.  374–​377. See also, unga. Resolution 488 (v). Formulation of Nuremberg Principles. 12 December 1950. 7 Werle (2009: 84). For Schmitt (1994: 238, 244), in the Nuremberg and Tokyo trials, together with the expiation of individual guilt, the goal of judicially declaring that Germany and Japan were solely responsible for the war was also pursued. 8 At first, India tried to prosecute for war crimes around 200 Pakistani prisoners. Nevertheless, the Indian government finally agreed to release them as a sign of reconciliation. India also gave back to Pakistan more than 15,000 km2 in the Treaty of Simla with a view to fostering a long-​lasting peace between the two nations (Murshid, 1997: 1–​34).

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the dictatorships of South America (Osiel, 2004: 129–​141). To this end, military and police forces were instructed by members of the French military who had fought in Algeria (Robin, 2005) and by members of the cia, which established military and police bases in the region and counterinsurgency schools in Panama and the United States (Galain Palermo, 2016: 27; Weschler, 1990).9 While the dictatorships in Brazil (1964–​1984), Paraguay (1954–​1989) and Uruguay (1973–​1985) used torture in a wide-​spread and systematic manner, the dictatorships in Argentina (1976–​1983) and Chile (1973–​1990) committed thousands of enforced disappearances as a state terror mechanism (Cardoso, 2017).10 Notwithstanding the foregoing, important legislative developments in ihrl (including the 1966 International Covenants on Civil and Political rights and Economic, Social and Cultural Rights) and ihl (two additional protocols to the Geneva Conventions) were adopted in this period. Furthermore, some icl developments took also place, including the adoption of the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968), the inclusion of provisions on an International Criminal Court in the Convention on the Suppression and Punishment of the Crime of Apartheid (1973), the definition of the acts of aggression (1974), the extension of the material scope of application of the principle of universal jurisdiction to grave breaches of the Additional Protocol i to the Geneva Conventions (1977) and the adoption of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (1984). For the most part, these icl developments took place between 1961 and 1979, when the Movement of Non-​Aligned Countries and the G-​77 had greater influence in the international society. 9

10

Gill (2005: 153); Cockroft (2001). In his book on torture, Di Cesare (2016: 166 et seq.) explains the modalities of cia assistance to the dictatorships in South America. Subsequently, the cia has continued providing the same forms of assistance in other conflicts related to the war against terrorism. With respect to the French case, see: http://​ www.telam.com.ar/ ​ n otas/ ​ 2 01312/ ​ 4 3491- ​ m urio- ​ e l- ​ j efe- ​ d e- ​ e spionaje-frances​ -que-​reivindico-​las-​torturas-​cometidas-​por-​su-​ejercito-​en-​argelia.php [last ­visited: 30 December 2017]. According to the so-​called “Terror Archives,” the Condor Plan caused in South America 50,000 deaths, 50,000 enforced disappearances and 400,000 unlawful imprisonments. See: http://​www.papelesdesociedad.info/​IMG/​pdf/​informes_​secretos-​stroessner.pdf [last visited: 30 December 2017]. On the Condor Plan, see Eichner (2009). According to Straßner (2007: 34 et seq.), the high number of international crimes are a sufficient reason to refer or even abolish the institutions responsible for the implementation of the Condor Plan. The same view is held by Peluso Neder (2017) and Arnold et al. (2006).

18 Chapter 2 The sweeping collapse of the Soviet Union at the end of the Cold War, coupled with the gradual weakening that the Non-​Aligned Movement and the G-​77 had experienced since the early 1980s, gave way to a decade of global dominance of the only superpower that survived the Cold War (the United States) and its nato allies –​the globalization of the economy since the 1970s and the gradual loss of power of the nation-​state imposed nevertheless some limitations on the global dominance by the us-​led coalition (Howsbaum, 1992: 568). The political and economic weakness of Russia (successor of the Soviet Union in the unsc) and the Chinese traditional policy of restraint in the use of its veto power,11 allowed the United States, the United Kingdom and France to push forward a broad teleological interpretation of the unsc functions under article 24(1) and (2) of the un Charter. According to this interpretation, the unsc can assume any function that aims at maintaining international peace and security and respects the Purposes and Principles of the un Charter, even if the unsc is not explicitly entrusted with it by the un Charter (Ortega Carcelén, 1995: 132–​136; Scheffer, 1991: 101–​110).12 In this context, the 1990s witnessed successive international conferences on different ihrl aspects (Salvioli, 2000: 3).13 Furthermore, in 1991 the ilc 11

12

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269 vetoes were presented since the establishment of the unsc in 1945 until 2012. In this period China used its veto power 9 times, France 18, the United Kingdom 32, the United States 89 and Russia/​Soviet Union 128. Approximately two thirds of the Russian/​Soviet vetoes were taken between 1945 and 1955. See Global Policy Forum. (2013). Changing Patterns in the Use of the Veto in the Security Council. Available at: https://​www.globalpolicy​ .org/​images/​pdfs/​Changing_​Patterns_​in_​the_​Use_​of_​the_​Veto_​as_​of_​August_​2012​.pdf [last visited: 30 December 2017]. This interpretation is based on:  (i) the unsc inherent powers doctrine adopted by the icj in its Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations (icj Reports, 1949: 182) (Carrillo Salcedo, 1976: 341–352) (Schermers, 1972: 154–​157); and (ii) the unsc general competence doctrine adopted by the icj in its 1971 Advisory Opinion on Namibia (icj Reports, 1971: 52). Among them are: (i) the un World Summit for Children (New York 1990); (ii) the un Conference on Environment and Development (Rio de Janeiro 1992); (iii) the World Conference on Human Rights (Vienna 1993); (iv) the International Conference on Population and Development (Cairo 1994); (v) the World Summit for Social Development (Copenhagen 1995); (vi) the Fourth World Conference on Women (Beijing 1995); (vii) the Second United Nations Conference on Human Settlements (Istanbul 1996); and (viii) the World Food Summit (Rome 1996). Furthermore, other meetings sponsored by the United Nations were held with a more limited participation of states and/​or ngo s, including: (ix) the Global Conference on the Sustainable Development of Small Island Developing States (Bridgetown 1994); (x)  the World Conference on Natural Disaster Reduction (Yokohama 1994); and (xi) the Ninth un Congress on the Prevention of Crime and the Treatment of Offenders (Cairo 1995).

Historical evolution of international criminal law

19

sent to the unga its first Draft Code of Crimes against the Peace and Security of Mankind since the one prepared in 1954. Strong criticism of the new text made the icl conduct a five years review during which the first international criminal tribunals since the end of World War ii were established in 1993 (the icty) and 1994 (the ictr). By the time the ilc presented a new draft code in 1996, the unga attention was already in the icc Statute negotiation process14 that led to its approval in the Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 1998). In the following years, several hybrid criminal tribunals were also established: the Special Panels for Serious Crimes in East Timor (2000), the Regulation 64 Chambers in Kosovo (2000), the scsl (2002), the eccc (2004) and the stl (2007). In the two decades following the end of the Cold War, national jurisdictions of territorial states have also investigated and prosecuted thousands of international crimes cases, as shown by the proceedings carried out in Bosnia and Herzegovina (The Court of Bosnia and Herzegovina, 2017), Rwanda (Tirrell, 2014:  143) and several Latin-​American countries (Sancinetti & Ferrante, 1999)  (Galain Palermo, 2014b:  123–​124). This has prompted the United Nations to establish specialized investigative bodies, such as the International Commission against Impunity in Guatemala (2007), to increase the capacity of national prosecution offices.15 Criminal proceedings for international crimes have also been undertaken by foreign national tribunals acting under the principle of universal jurisdiction, particularly in the period 1998–​2010 (Carnero Rojo, 2015: 41–​54; Ollé Sesé, 2016; Panakova, 2011: 49 et seq.; Pérez Cepeda, 2015: 10 et seq.; Roth Arriaza, 2005). As a result, in the two decades after the end of the Cold War current icl has been, to a large extent, built by restating and developing its pre-​existing legal regime and by strengthening national, international and hybrid icl enforcement mechanisms. Nevertheless, the second decade of the twentieth century has witnessed the shutting down of the ictr (2015)16 and the icty (2017)17 after the completion of their work –​their few remaining functions have been 14

15

16 17

As a result, the examination of the new draft code was not a priority for the unga. Twenty years after its presentation, the unga examination of the 1996 ilc Draft Code of Crimes against the Peace and Security of Mankind is still pending. The International Commission against Impunity in Guatemala was created by an agreement signed by the unsg and the Government of Guatemala on 12 December 2006. The agreement was ratified by the Guatemalan Congress on 1 August 2007 and entered into force on 4 October 2007. ictr (17/​11/​2015). icty (17/​05/​2017).

20 Chapter 2 entrusted with the mict established by unsc resolution 1966 (2010).18 Moreover, no other international criminal tribunal and only two new hybrid tribunals (the eac s (2012) and the ksc s (2016)) have been established. Furthermore, as discussed in ­chapter 4, despite the approval of the definition of the crime of aggression in the 2010 Kampala Review Conference and the agreement reached in December 2017 to activate the icc jurisdiction over this crime on 17 July 2018,19 the difficult circumstances that surrounded the icc between 2002 and 2011 have increased in the period 2012–​2017. As a result, as we have gone into the second decade of the twentieth century, the number of cases handled by international and hybrid criminal tribunals has declined significantly. A  trend that, as discussed in ­chapter  4 in further detail, it is not likely to change any time soon despite the recent establishment of the eac s and the ksc s and the adoption by the African Union of the Malabo Protocol (2014),20 which aims at extending the jurisdiction of the African Court of Justice and Human Rights to include the investigation and prosecution of international and transnational crimes (Werle & Vormbarum, 2016; Ventura & Bleeker, 2016: 441–​460). Furthermore, although the national jurisdictions of some territorial states, such as Argentina (Parenti & Pellegrini, 2009; Eser & Arnold, 2012), Bosnia and Herzegovina (The Court of Bosnia and Herzegovina, 2017), Colombia (Olásolo & Ramírez, 2017)  and Uruguay (Galain Palermo, 2014:  123–​124; Fornasari, 2016:  199) continue carrying out criminal proceedings for international crimes in a systematic manner, investigations and prosecutions by foreign national tribunals under the principle of universal jurisdiction have decreased significantly (Carnero Rojo, 2015: 41–​54; Panakova, 2011: 49 et seq.).

18

19 20

unsc. (2010). Resolution 1966. The mict has one branch in Arusha (Tanzania) that carries out the ictr remaining functions since 1 July 2012, and a second branch in The Hague (The Netherlands) that carries out the icty remaining functions since 1 July 2013. See supra ­chapter 1, fn. 2. African Union (2014). According to the Malabo Protocol, the African Court of Justice and Human Rights will have jurisdiction to investigate and prosecute the following crimes: genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, human trafficking, drug trafficking, trafficking of dangerous substances, illegal exploitation of natural resources and aggression.

Chapter 3

Normative Hierarchy of the Norms Prohibiting International Crimes As seen in the previous chapter1 during the two decades following the end of the Cold War, icl enforcement mechanisms were strengthened, which led to the jurisprudential development of the legal regime of international crimes.2 This has been complemented by numerous decisions of (i) monitoring bodies and tribunals of the universal and regional human rights protection systems (in particular the Human Rights Committee and the Inter-​American Court of Human Rights); and (ii) the International Court of Justice. As the regulation of genocide and war crimes has an indisputable conventional foundation, the jurisprudence has focused on those serious violations of human rights constituting crimes against humanity (there is no convention on the repression and punishment of crimes against humanity). In particular, it has focused on the norms of general international law regulating to: (i) the prohibition to engage in such crimes by states or individuals; (ii) the attribution of international individual criminal responsibility to those who commit them; (iii) state duties to investigate, prosecute and punish those responsible for their commission, when they take place in its territory or under its jurisdiction; (iv) the non-​applicability of statutory limitations; and (v) the prohibition of amnesty laws. The jurisprudence has also addressed the extent to which these norms have become peremptory or ius cogens norms.3 1 This chapter develops section 4 of the article written by Olásolo, H., Mateus Rugeles, A. & Contreras Fonseca, A.  and entitled:  “The peremptory nature of the principle ‘no peace without justice’ with respect to those most responsible persons for crimes against humanity and the consequences for the scope of application of the so called ‘transitional justice’ ” (eRIDP (Electronic Revue Internationale de Droit Penale), Vol. 6, 2017, Pp. 1–​18. issn: 2522–​2945). 2 As explained in ­chapter  1, the material scope of the expressions “icl” and “international crimes” in this book is limited to genocide, crimes against humanity and war crimes. 3 As seen in ­chapter 1, according to article 53 of the Vienna Convention on the Law of Treaties (1969), peremptory or ius cogens norms have the following characteristics: (i) they must be accepted and recognized as peremptory norms by the international society as a whole; and (ii) they can only be derogated or amended by subsequent general international law norms which have the same character. Hence, as provided for in the ilc commentary to article

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004341005_​0 04

22 Chapter 3 A

Jurisprudence of International and Hybrid Criminal Tribunals

International and hybrid criminal tribunals, especially the icty and the scsl, have referred to the prohibitions of certain categories of criminal conduct that have acquired the character of ius cogens norms. In the Tadić case, the icty Appeals Chamber expressly referred to the section of the unsg report on the icty establishment (1993) in which the latter highlighted the unsc power to depart from general international law in defining those international crimes included in the icty material jurisdiction, as long as such definitions respected ius cogens norms (Tadić, 15/​07/​1999: paras. 48, 296). In the Kupreškić case, the icty Trial Chamber stated that the prohibition under ihl to commit genocide, crimes against humanity and war crimes is a ius cogens norm (Kupreškić et. al., 14/​01/​2000: para. 520). International jurisprudence has particularly focused on the crime of torture, whether considered as an autonomous crime, or as a crime against humanity or a war crime. The icty dealt with this crime for the first time in the case of Delalić et al. (16/​11/​1998: para. 454), in which the Trial Chamber, mentioning the prohibition against torture and quoting the un Special Rapporteur against torture, stated the ius cogens nature of this crime. One month later, in December 1998, icty Trial Chamber ii in the Furundžija case (10/​12/​1998: para. 153) reaffirmed that the prohibition against torture is a norm of ius cogens, this time with greater analysis. It also explained that the ius cogens nature of this prohibition was due to the importance of the values that are protected by it. Trial Chamber ii then specified the consequences of characterizing the prohibition of torture as ius cogens. First, the Chamber indicated that being characterized as an ius cogens norm implied that this prohibition has become one of the fundamental standards of the international community. Second, Trial Chamber ii indicated that this characterization was designed to produce a deterrent effect by sending a message of absolute prohibition (Furundžija, 10/​12/​1998: para. 154). icty Trial Chamber ii also emphasized the effects of characterizing the prohibition of torture as an ius cogens norm with respect to state responsibility and individual criminal liability. As regards state responsibility, the Chamber stated that its proclamation de-​legitimatized “any administrative, legislative, or 40 of the ilc Draft Articles on the International Responsibility of States for Internationally Wrongful Acts, peremptory or ius cogens norms protect the universal interests of the international society as a whole by prohibiting what has come to be considered intolerable because it represents a threat to the survival of states and their peoples and to the most fundamental human values (ilc, 2001: 112–​113).

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23

judicial acts” that authorize torture, including any amnesty law that “authorize, condone or absolve perpetrators of torture.” In addition, it recognized the rights of potential victims to initiate proceedings before any national or international judicial body to obtain a declaration that any national measure authorizing torture is internationally illegal, and to obtain a favorable verdict in a civil suit for damages before a foreign court (Furundžija, 10/​12/​1998: para. 155). With respect to the enforcement of individual criminal responsibility, icty Trial Chamber ii stated that, in light of the universal character of the crime, “every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction” (Furundžija, 10/​12/​1998: para. 156). The Chamber also mentioned that torture is not covered by statutes of limitations and must not be excluded from extradition under any political offence exemption (Furundžija, 10/​12/​ 1998: para. 157). Subsequently, the icty Appeals Chambers in the Delalić et  al. case (20/​ 02/​2001: para. 172, n. 225) and the icty Trial Chambers in the cases against Naletilić & Martinović (31/​03/​2003: para. 336, 454) and Simić et al. (17/​03/​ 2003: para. 34) have expressly upheld the ius cogens nature of the prohibition against torture. Moreover, in the Gbao case, the Appeals Chamber of the stsl referred to the above-​mentioned trial judgment in the Furundžija case for the proposition that the prohibition against torture was a norm of ius cogens (25/​ 05/​2004: para. 9). In conclusion, although the contribution of international and hybrid criminal tribunals (especially, the icty) is notable, it is considerably more limited than the contribution of the IACtHR, both in terms of the number of judgments, and with respect to those conducts that have been considered as being prohibited by ius cogens norms. B

General Comments and Concluding Observations of the Human Rights Committee: The Situations in Spain and Northern Ireland

General comment No. 31 of the Human Rights Committee on the scope of the general obligations contained in article 2 of the iccpr constitutes the most important contribution of the ihrl universal protection system to the international legal regime of crimes against humanity. In particular, paragraph 18 states as follows: Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those

24 Chapter 3 responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). [ ]‌Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law. In accordance with General Comment No. 31, in 2015 the Human Rights Committee addressed the situations in Spain and Northern Ireland where, according to Corradetti, Eisikovits & Rotondi (2014: 5), two of the three types of transitional processes with respect to which it is problematic to affirm the existence of state duties to search for the truth, and declare civil and criminal liabilities for international crimes, have taken place. Nevertheless, analysing it from a strictly normative perspective in light of the current legal regime of international crimes, the Human Rights Committee could not be in greater disagreement with these scholars. In its 14 August 2015 concluding observations on Spain, the Human Rights Committee expressed its concern about:  (i) the decision by Spain that the 1977 Amnesty Act, which hinders the investigation of past human rights violations, particularly acts of torture, enforced disappearances and extrajudicial

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executions, should remain in force; (ii) the shortcomings and deficiencies in the regulation of search, exhumation and identification procedures, in particular by the fact that the localization and identification of disappeared persons are left to the initiative of victims’ families; and (iii) the difficulties in access to archives, in particular military archives (Human Rights Committee, 2015a: para. 21).4 As a result, the Human Rights Committee reiterated its recommendation to Spain that the Amnesty Act should be repealed or amended to bring it fully into line with the provisions of the iccpr. Moreover, it requested Spain to actively encourage investigations into all past human rights violations and to ensure that, as a result of these investigations, the perpetrators are identified, prosecuted and punished in a manner commensurate with the gravity of the crimes committed and that redress is provided to the victims (Human Rights Committee, 2015a:  para. 21). Furthermore, the Human Rights Committee urged Spain to review its legislation on the search for, exhumation and identification of disappeared persons and to implement the 2014 recommendations of the Working Group on Enforced or Involuntary Disappearances of the Human Rights Council (Human Rights Committee, 2015a: para. 22). Similarly, in its 17 August 2015 concluding observations on Great Britain and Northern Ireland, the Human Rights Committee (2015b:  para. 8)  highlighted its concern about: (i) the quality and pace of the process of promoting accountability in relation to the conflict in Northern Ireland; and (ii) the absence of a comprehensive framework for dealing with conflict-​related serious human rights violations.5 As a result, the Human Rights Committee recommended Northern Ireland:  (i) to ensure, as a matter of particular urgency, that independent, impartial, prompt and effective investigations, including those proposed under the Stormont House Agreement, are conducted to provide a full, transparent and credible account of the circumstances surrounding events in Northern Ireland with a view to identifying, prosecuting and punishing perpetrators of human rights violations, in particular the right to life, and providing appropriate remedies for victims; (ii) to ensure the establishment and full operation of the Historical Investigations Unit as soon as possible, and to guarantee (a) its independence, by statute, (b)  its adequate and sufficient funding to enable the effective investigation of all outstanding cases, and (c)  its access to all 4 The Human Rights Committee (2009) had already expressed this type of concern in its previous report on Spain. 5 The Human Rights Committee (2008) had already expressed this type of concern in its previous report on Great Britain and Northern Ireland.

26 Chapter 3 documentation and material relevant to its investigations; (iii) to ensure that the Legacy Investigation Branch and the Coroner’s Court in Northern Ireland are adequately resourced and are well positioned to review outstanding legacy cases effectively; and (iv) to reconsider its position on the broad mandate of the executive to suppress the publication of inquiry reports under the 2005 Inquiries Act (Human Rights Committee, 2015b: para. 8). C

Jurisprudence of the Inter-​American Court of Human Rights

Due to the nature of human rights violations over which the ICtHR has jurisdiction, it has decided several cases, in which the alleged violations took place as part of a systematic or widespread attack against a civilian population that was conducted pursuant to government policy. The case of Almonacid Arellano et al. v. Chile involved the political repression that followed the coup d’état by General Augusto Pinochet in Chile in 1973, which led to the detention, torture, enforced disappearance and execution of hundreds of people by the Chilean security forces. Mr. Luis Alfredo Almonacid Arellano was one of the individuals killed during this period. In its 2006 judgment, the IACtHR not only confirmed that these acts constituted crimes against humanity, but stated that the commission of these crimes in 1973 violated ius cogens because the prohibition against torture was already a ius cogens norm at the time of the violations (Almonacid Arellano et al. v. Chile, 26/​09/​2006: para. 99). Furthermore, the ICtHR affirmed that the norms prohibiting amnesties, as well as the establishment of any statute of limitations, for crimes against humanity, are also ius cogens norms. Hence, the IACtHR stated that the content of these norms cannot be altered by conventional means, and compliance with these norms is mandatory for all states. Finally, the ICtHR asserted that, if the norms prohibiting a conduct and attaching criminal liability are ius cogens norms, the norms imposing on states the obligations to investigate such conduct, prosecute those allegedly responsible, and enforce the sentences imposed upon them, are also ius cogens norms (Almonacid Arellano et al. v. Chile, 26/​09/​2006: paras. 114, 153).6 6 Judge Cançado Trindade had previously developed this position in his concurring opinion in the Advisory Opinion 18/​03 of the ICtHR (17 September 2004). First, he clarified that not all erga omnes obligations imply a ius cogens character, but rather that any erga omnes obligation of a ius cogens character will always have an erga omnes scope. Then, he highlighted the ius cogens nature of the erga omnes protection (including the duties to investigate and to punish) against any conduct prohibited by ius cogens norms. Moreover, Judge Cançado

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Similarly, in the judgments in the cases of Miguel Castro Castro Prison (25/​ 11/​2006:  paras. 402, 404)  and La Cantuta University (29/​11/​2006:  paras. 168, 225), both of which involved repression by state agents during Alberto Fujimori’s presidency in Peru between 1992 and 2001, the ICtHR asserted the ius cogens character of the norms (i) prohibiting crimes against h ­ umanity, (ii) attaching international criminal liability to those who engage in such crimes, (iii) declaring that such liability is not subject to any statute of limitations, and (iv) prohibiting the application of amnesty laws. Furthermore, the ICtHR has repeatedly emphasized in dozen of cases the ius cogens character of the general international law norms that prohibit extrajudicial executions, torture, other cruel, inhumane or degrading treatments or punishments, enforced disappearances and slavery. It has done so, even when such acts were committed in ​​ isolation and not as part of a widespread or systematic attack against a civilian population. The cases of Barrios Altos v. Peru (14/​ 03/​2001: para. 41), Goiburu et al. v. Paraguay (22/​09/​2006), Ibsen Cárdenas e Ibsen Peña v. Bolivia (1/​09/​2010), Chitay Nech et al. v. Guatemala (25/​05/​ 2010), Gomes Lund v. Brasil (24/​11/​2010: para. 147), Gelman v. Uruguay (24/​ 02/​2011: paras. 225–​229, 232); El Mozote and nearby places massacre v. El Salvador (25/​10/​2012: paras. 285–​286); and Río Negro massacres v. Guatemala (4/​09/​2012), are prime examples of this jurisprudential approach. The concurring opinion of former IACtHR President, Diego García Sayán, in the judgment in the case of El Mozote and nearby places massacre v.  El Salvador (25/​10/​2012: paras. 20–​40) calls into question the IACtHR jurisprudence on the state duties to investigate, prosecute and punish those responsible for crimes against humanity and war crimes committed in non-​international armed conflicts, and asserts the need to make a balanced judgment between the interests of peace and the interests of justice in such cases. This position, which was subsequently embraced by the Colombian Constitutional Court (08/​06/​2014), was based on article 6.5 of Additional Protocol ii, which provides that “[a]‌t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” The majority of the ICtHR responded to Judge García Sayán in the judgment by noting that although this provision applies to ordinary crimes committed in non-​international armed conflicts, its application cannot be extended to Trindade added that this erga omnes protection has two dimensions: one horizontal (e.g. it applies to the international society as a whole), and one vertical (e.g. it applies to the state with respect to the individuals who are subject to its jurisdiction).

28 Chapter 3 international crimes prohibited by ius cogens norms, such as war crimes or crimes against humanity. As the Majority of the ICtHr put it: “[…] it may be understood that Article 6.5 of Additional Protocol ii refers to extensive amnesties in relation to those who have taken part in the non-​international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts, such as those of the instant case, that can be categorized as war crimes, and even crimes against humanity.” (El Mozote and nearby places massacre v. El Salvador, 25/​10/​2012: para. 285). Judge García Sayán’s interpretation, in addition to being contradictory with the aforementioned IACtHR jurisprudence, eliminates the incentive for ihl compliance offered by article 6 (5) of ap ii to organized armed groups that confront government forces  –​thus, depriving it of its object and purpose.7 In this regard, it should be emphasized that Article 6 (5) of ap ii intends to incentivize organized armed groups that confront government forces in non-​ international armed conflicts to comply with ap ii (icrc, 1987: para. 4597). To understand how this incentive operates, one must bear in mind that ap ii is mandatory for these armed groups even though they have not participated in its drafting and have not signed it (icrc, 1987: paras. 4437, 4438, 4444). Moreover, the use of armed force by these groups is not legitimate even if it is carried out in compliance with the provisions of ap ii (the notion of “combatant,” which include the right of the members of the armed forces of the parties to the conflict to use armed force against enemy forces, is only applicable in international armed conflicts) (icrc, 1987: para. 4441). This means that ap ii states parties have the power to qualify as ordinary crimes (e.g. murder or kidnapping) those acts of violence that are carried out by organized armed groups in full respect for ap ii (e.g. the killing of members of state armed forces during an exchange of fire) (icrc, 1987: para. 4441). But, what incentive do organized armed groups have of investing resources and putting their personnel at risk to comply with ap ii, if, despite complying with it, their members may incur individual criminal responsibility for ordinary crimes under the national laws of the state they face? The answer is given by Article 6 (5)  of ap ii, which shows the commitment of states parties to “seek” to grant the broadest possible amnesty at the end of the conflict in relation to ordinary crimes committed in the armed conflict by those participating 7 The fact that, despite signing the majority position, judges Leonardo A. Franco, Margarette May Macaulay, Rhadys Abreu Blondet and Alberto Pérez Pérez (none of whom remains at this time on the IACtHR), manifested affinity with Judge García Sayán’ concurring vote, by acceding to it on a personal basis, does not generate adverse legal effects on the long and consistent line of jurisprudence initiated in 2001 with the case of Barrios Altos v. Peru.

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in it or by those deprived of their liberty for reasons related to the armed conflict (icrc, 1987: paras. 4617 and 4618). As a result, unlike Judge García Sayán’ interpretation, Article 6 (5) of ap ii does not allow extending amnesty to crimes against humanity or to serious breaches of ap ii constituting war crimes, because, in addition to contravening current international law, this would leave without effect the incentive given to organized armed groups to comply with ap ii –​the incentive would cease to exist if members of organized armed groups could benefit of an amnesty, regardless of their compliance with ap ii. In other words, article 6 (5) of ap ii aims to promote compliance with ap ii and this is only possible if amnesty is limited to those acts of violence that do not constitute grave breaches of the ap ii (icrc, 1987: paras. 4617 and 4618). The issue addressed in the 2012 IACtHR judgments in the cases of Gudiel Álvarez et  al. (20/​ 11/​ 2012:  para. 232), and García and Family (29/​ 11/​ 2012: para. 131), both versus Guatemala, is slightly different. In these decisions, the ICtHR stated that “[…] since the prohibition of forced disappearance is a norm of jus cogens, the correlative obligation to investigate and to prosecute and punish, as appropriate, those responsible, becomes particularly strong and important, owing to the gravity of the crimes committed and the nature of the rights harmed.” A literal interpretation of this passage may be viewed by some as evidence that, notwithstanding the established IACtHR jurisprudence on this issue, the IACtHR did not fully recognize the ius cogens character of the norm requiring the state to enforce the criminal liability derived from the crime of enforced disappearance. Nevertheless, although the language used by the IACtHR was not the most apposite, when it is read in the context of the consolidated jurisprudence of the IACtHR, this interpretation must be rejected. The rejection of this interpretation was reinforced by the IACtHR’s subsequent discussion of the ius cogens character of the state obligation to enforce such criminal liability in the case of García Lucero et al. v Chile (26/​ 11/​2013: para. 123), which also concerned a crime of enforced disappearance. D

Jurisprudence of the International Court of Justice and the European Court of Human Rights

Unlike the IACtHR jurisprudence, the jurisprudence of the International Court of Justice and the European Court of Human Rights has been quite timid with regard to state obligations to investigate, prosecute and punish international crimes, particularly crimes against humanity. This is due to the fact that both courts have addressed the notion of ius cogens norms, and its relationship with

30 Chapter 3 crimes against humanity, in cases in which such norms were in conflict with the principle of state immunity. In its 2002 judgment in the Arrest Warrant case, the icj endorsed the position of the Democratic Republic of Congo, which claimed that the person accused of crimes against humanity and war crimes was its Minister of Foreign Affairs, and therefore, due to the nature of his position, he enjoyed personal immunity, regardless of the type of crimes charged (icj, drc v. Belgium, 14/​ 02/​2002: para. 59).8 Subsequently, in 2012, the icj endorsed the position of Germany, which claimed state immunity in several proceedings for civil claims carried out against Germany in Italy (Germany v. Italy, 3/​02/​2012: paras. 62, 88–​89, 92). The claimants in these proceedings aimed at obtaining a declaration of the responsibility of Germany for the commission of international crimes during World War ii.9 In the Al-​Adsani case (2001),10 the ECtHR –​after considering the icty jurisprudence stating that the prohibition of torture is a ius cogens norm of international law, and in light of the decisions in the case of Augusto Pinochet and the amendment to the us Foreign Sovereign Immunities Act –​found that in 2001 there was no exception under international law to state immunity in cases of

8

9

10

This case deals with a warrant of arrest issued by the Belgium authorities against the Minister of Foreign Affairs of the drc, due to his alleged participation in the commission of war crimes and crimes against humanity. See icj, drc v. Belgium, 14/​02/​2002: para. 59. Italy claimed that state immunity was not applicable in this case because the case was based on the violations of peremptory norms occurred in Italian territory. Hence, according to Italy, the ius cogens nature of norms that had been violated should make state immunity inapplicable. However, the icj rejected the position of Italy and restated that state immunity was part of international customary law. Moreover, the icj highlighted that, according to international customary law, the nature of the violated norm does not provide the basis for an exception to state immunity. See, icj, Germany v.  Italy, 3/​02/​ 2012: paras. 62, 88–​89, 92. In 1991, Mr Al-​Adsani, a citizen of the United Kingdom and Kuwait, went to Kuwait to serve as a pilot in the Kuwaiti armed forces. During his stay in that country, he came into possession of sex videotapes involving a Sheikh who was related to the Emir of Kuwait. Somehow, these tapes were made public. This situation led to the Sheikh and several other men kidnapping the petitioner and torturing him for several days on two separate occasions after the conclusion of the Gulf War. After his second release, Mr Al-​Adsani returned to the United Kingdom and was treated for various burns and psychological disorders caused by the torture inflicted upon him. After his return to the United Kingdom, the petitioner filed a series of civil actions against the Sheikh and Kuwait, but all actions were dismissed based on the principle of state immunity.

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31

serious violations of human rights (ECtHR, Al-​Adsani v. United Kingdom, 21/​ 11/​2002: paras. 59, 60, 66). This position was confirmed in the decision in the case of Jones et al. v. the United Kingdom (2014). In this case, the ECtHR reiterated that, under general international law, there is no exception to state immunity based on violations of ius cogens norms.11 After analyzing the icj judgments in the cases of the drc v.  Belgium (2001) and Germany v.  Italy (2012), the ECtHR concluded that there was no conflict between the rules of state immunity and the ius cogens character of the prohibition of torture. For the ECtHR, as for the icj, the rules of state immunity are purely procedural in nature and relate to the jurisdiction’s authority to investigate and punish acts of torture, whereas the ius cogens character of the prohibition against torture in international law has a substantive nature (ECtHR, Jones et. al. v. United Kingdom, 2014: para. 79). E

Final Remarks

As icj conventional and jurisprudential regulation has developed since the end of the Cold War, the customary status of its various elements, in particular the international legal regime of genocide, crimes against humanity and war crimes, has been reaffirmed. This includes: (i) the prohibition to engage in such crimes by states or individuals; (ii) the attribution of international individual criminal responsibility to those who commit them; (iii) the state duties to investigate, prosecute and punish those responsible for their commission, when they take place in its territory or under its jurisdiction; (iv) the non-​applicability of statutory limitations; and (v) the prohibition of amnesty laws. Furthermore, there appears to be a broad consensus on the ius cogens nature of the norms containing the first two elements (Olásolo, Mateus & Contreras, 2017). Nevertheless, the jurisprudence of international and hybrid criminal tribunals, regional human rights courts and the International Court of Justice has been uneven in declaring the ius cogens character of the general international 11

The facts of this case are as follows. In 2001, while Mr. Jones was living in Saudi Arabia, he suffered injuries caused by the explosion of a bomb outside a bookstore. Several days later, security agents of that state kidnapped and tortured him for nearly 67 days. The ECtHR simultaneously considered the cases of three other petitioners who were tortured during their detention in Saudi Arabia. British authorities had dismissed all four cases based on the principle of state immunity. See ECtHR, Jones et. al. v.  United Kingdom 2014: para. 79.

32 Chapter 3 law norms containing the other three elements. The IACtHR and, to a certain extent, the international and hybrid criminal tribunals have been more vocal on this issue. As a result, in the cases Almonacid Arellano, Miguel Castro Castro Prison and La Cantuta University, the IACtHR has affirmed the ius cogens nature of the said norms. In turn, the jurisprudence of international and hybrid criminal tribunals, particularly the icty and the scsl, has especially focused on the peremptory nature of the norms relating to the legal regime of the prohibition against torture (whether considered as an autonomous crime or as a crime against humanity or a war crime). In contrast, the jurisprudence of the icj and the ECtHR has been more timid on this issue. When analyzing the normative conflict between the two sets of norms that regulate crimes against humanity and the principle of state immunity, both courts have been silent on the issue of the nature of the norms dealing with the consequences of international crimes. The reason behind this silence is that both the icj and the ECtHR have focused their conclusions on the alleged procedural nature of the principle of state immunity, which would prevent it from entering in any conflict with the substantive regulation of international crimes. The absence of consensus on the ius cogens character of some of the norms regulating the consequences of the prohibition of international crimes does not mean that they are not part of general international law.12 That is why the Human Rights Committee, in its General Comment 31 (para. 18), and in its latest concluding observations on Spain (2015a: para. 21) and Great Britain and Northern Ireland (2015b: para. 8), underscores that the general obligation imposed on states parties by article 2 (1) of the iccpr, makes it necessary to investigate, prosecute and punish all iccpr violations committed under their jurisdiction that are constitutive of genocide, crimes against humanity and war crimes.13 This also means the prohibition of exempting alleged perpetrators from criminal responsibility as part of transitional processes. Similarly, paragraph 6 of the icc Statute explicitly refers to the “duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.” The consequences under general international law of breaching the prohibition against genocide, crimes against humanity and war crimes are the result of understanding these crimes as a sum of atrocities (Osiel, 2000: 121) caused by the carcinogenic pollution of political action (Luban, 2004: 90). Otherwise, 12 13

A different interpretation can be found in:  Acosta, Buchan & Ureña (2015:  291–​318); Malarino (2003: 205–​222); Mallinder (2008). The Human Rights Committee (2015a:  para. 21)  does not limit its statement to these three categories of crimes, but extends it to all “international crimes.”

Normative hierarchy of the norms

33

it is difficult to explain the design and implementation of campaigns of violence that aimed at (i) destroying national, ethnic, racial or religious groups (genocide); (ii) attacking the civilian population in a systematic or large scale manner (crimes of humanity); or (iii) affecting those people and objects that are protected in a situation of armed conflict because they are in a position of particular vulnerability (war crimes). This also explains why the general international law norms prohibiting these crimes protect the core values of the international society as a whole (Bassiouni, 2002: 3 et seq.; Benavides Vanegas, 2011: 24–​25). As a result, wherever these crimes are committed, it will be necessary to carry out a transitional process to (i) put an end to a political regime characterized by the commission of large-​scale past abuses (unsg, 2004; para. 8); or (ii) facilitate the transition from armed conflict to peace. According to current icl, ihlr and ihl, such transitional processes must provide for the investigation, prosecution and punishment of those responsible for international crimes (Cassese, 2005: 241–​245; González Morales, 2013: 264–​2).

PA RT 2 The Scope of Criminal Proceedings for International Crimes Since the End of the Cold War



Chapter 4

The Scope of Criminal Proceedings in International and Hybrid Criminal Tribunals Individual criminal responsibility for international crimes can be enforced by international and hybrid criminal tribunals and national jurisdictions acting under the principles of territoriality, active or passive personality and universal jurisdiction (Cassese, 2008:  11–​14). But, how effective have icl enforcement mechanisms been at investigating and prosecuting those responsible for international crimes since the end of the Cold War? The next two chapters address this issue and provide some reflections on the scope of criminal proceedings for international crimes in the last twenty-​five years. They are relevant for a proper understanding of the interaction among icl, tcl and tj that will be dealt with in parts iii and iv of the book. A

The Scope of Criminal Proceeding in the International Criminal Tribunals for the Former Yugoslavia and Rwanda

In resolution 780 (1992), the unsc established, for the first time since its creation in 1945, a commission of experts to investigate serious ihl violations. Months later, driven to a large extent by the work of that commission,1 the unsc established in resolution 827 (1993) the icty: the first international criminal tribunal since the establishment of the imt and the imtfe at the end of World War ii. Its mission was to investigate and prosecute those responsible for the commission of genocide, crimes against humanity and war crimes in the territory of the former Yugoslavia since 1991.2 One year later, on 1 July 1994, the unsc established in resolution 935 (1994) a new commission of experts to investigate serious ihl violations allegedly committed in Rwanda and its bordering states during the spring of 1994. After

1 un Commission of Experts established pursuant to unsc Resolution 780 (1992) (11/​02/​ 1993). See also the Commission’s final report and annexes presented on 27 May 1994; Bassiouni (1994: 784 et seq.). 2 Articles 1 to 5 of the icty Statute.

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 05

38 Chapter 4 the commission of experts issued its report,3 the unsc established in resolution 955 (1994) a second international criminal tribunal (the ictr) with jurisdiction to investigate and prosecute: (i) those responsible for the commission of genocide, crimes against humanity and war crimes in the territory of Rwanda in 1994; and (ii) Rwandese nationals responsible for the commission of the said crimes in the territory of states bordering Rwanda in 1994.4 The start of the icty proceedings was not easy because the armed conflict in the former Yugoslavia continued until the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina (known as ‘Dayton Agreements’) on 14 December 1995.5 As former icty Prosecutor Carla del Ponte (2008) has pointed out, the lack of cooperation of Croatia and the Federal Republic of Yugoslavia made the icty highly dependent on the support of nato states (Vilmer, 2011: 99–​109). The first arrest took place on 27 June 1997 and was carried out by the untaes.6 This encouraged cooperation by nato-​led ifor and one month later ifor carried out the first of its twenty-​six arrests at the request of the icty.7 ifor arrests and the pressure applied by nato states on Croatia and the Federal Republic of Yugoslavia led to twenty-​four arrests by the national authorities of these two countries and Bosnia and Herzegovina, and encouraged many accused persons (fifty-​four) to negotiate their voluntary surrender to the icty. The last icty fugitive was arrested in 2011 (Mangel, 2018).8 Between 1994 and 2004, the icty accused one hundred and sixty-​one people.9 The average time from the start of a case to the issuance of a trial 3 un Commission of Experts established pursuant to unsc Resolution 935 (1994) (4/​10/​ 1994). See also the Commission’s final report issued on 9 December 1994. 4 Articles 1 to 4 of the ictr Statute. 5 Agreed by the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia in Dayton (Ohio) on 21 November 1995. Signed in Paris on 14 December 1995. Available at:  http://​www.osce.org/​bih/​126173?download=true [last visited: 30 December 2017]. 6 The person arrested was Slavko Dokmanović, former Croatian-​Serb politician and mayor of Vukovar (Croatia), whom the icty Prosecutor convinced to leave Serbia and move to Eastern Slavonia (Croatia). There, he was arrested by untaes and transferred to the icty. 7 Milan Kovačević and Simo Drljača, who were responsible for the management of the Omarska concentration camp in Bosnia and Herzegovina, were the two persons arrested in the first arrest made by nato-​led ifor on 10 July 1997, as part of the so-​called “Operation Tango.” 8 Goran Hadžić, a Croatian Serb wartime leader indicted for crimes against humanity during the 1991–​95 Croatian war, was the last icty fugitive. 9 icty (17/​05/​2017). Available at:  http://​www.icty.org/​sites/​icty.org/​files/​documents/​ 170517_​icty_​progress_​report_​en.pdf [last visited: 30 December 2017].

The scope of international criminal proceedings

39

judgment was six years and four months. Appeal proceedings took an average of two years and four months (Mangel, 2018). Although the first trial judgments against direct perpetrators were issued between 1997 (Tadić case) and 2000 (Kupreškić et al. and Kordić & Čerkez cases), it was only during the first decade of the twenty-​first century that the icty could carry out the bulk of its proceedings (especially, those related to the highest political and military leaders).10 Strong criticism of the duration of the proceedings and the costs of the icty and the icty led to the issuance of unsc resolutions 1503 (2003) and 1534 (2004), in which a completion strategy for both the icty and the ictr was approved. According to it, the proceedings of both international criminal tribunals should concentrate on the “most senior leaders suspected of being most responsible.” Cases concerning mid and low level perpetrators were to be transferred to national jurisdictions.11 On 1 December 2017, the icty completed its work. As for the outcome of its proceedings, 89 accused persons were convicted (13 low-​level, 46 mid-​level and 30 high-​level responsible persons), 19 were acquitted and 2 have to be re-​tried before the mict.12 Furthermore, in cases involving 37 people charges were dropped or the accused persons died. Finally, cases involving 13 persons were transferred to national jurisdictions (Smeulers, Hola & Van der Berg, 2013: 7 et seq.).13 All convicted persons received prison sentences: 23,6% of less than 10 years, 52,81% of 10 to 20 years, 11,24% of 21 to 30 years and 11,24% of more than 30 years or life-​imprisonment. As Mangel (2018) highlights, this outcome is rather surprising in light of the fact that most national jurisdictions provide prison sentences of no less than 20 years for a single homicide. As a result, 56 convicted persons have already served their sentences, and the rest are serving them in Italy, France, Germany, Poland, Denmark, Norway, Sweden, Estonia and Finland.14 The ictr initial situation was more favourable than that of the icty because most potential indictees had been detained by the Rwandan Patriotic Front (“rpf”), led by current Rwandese president, Paul Kagame, after it seized power in Rwanda in July 1994. Moreover, most victims and witnesses were also in Rwanda. This allowed for the issuance of the first trial judgements 10 11 12 13 14

Idem. See rules 11 bis (A)(iii) and 28 (A) of the icty and ictr Rules of Procedure and Evidence. icty (17/​05/​2017). Idem. Idem.

40 Chapter 4 against direct perpetrators by 1998 (Akayesu case) and 1999 (Kayishema & Rutaganda case). Nevertheless, as happened at the tipy, the bulk of ictr proceedings, including those related to the highest political and military leaders, took place during the first decade of the twenty-​first century. Furthermore, the ictr became highly dependent on the cooperation by the us-​backed Rwandese authorities (Del Ponte, 2008), which ultimately meant that international crimes committed by the rpf against hundreds of thousands of people between in mid-​1994 remained unpunished (Haskell & Waldorf, 2011: 50; Del Ponte, 2008: 179, 234–​235; Clark, 2014: 187). On 31 December 2015, the ictr completed its work. In its final report, the ictr Presidency highlighted that the ictr had carried out trials involving 76 accused persons and appeals concerning 55 convicted persons.15 With respect to the duration of ictr proceedings, 12 cases took less than three years until a trial judgment was issued, 8 cases required between three and six years, and the rest took longer. Neither the 9 cases in which the defendants acknowledged their responsibility, nor the 5 cases in which the defendants voluntarily surrendered, meant a significant shortening of the proceedings (Hintjens, 2016). As a result, the number of ictr trial judgments annually issued was five in 2003, 2010, 2011 and 2012, four in 2004 and 2008, three in 1999 and 2009, two in 1998, 2005 and 2006, and one in 2000 and 2001. In 2002, 2007 and 2013 to 2015 no trial judgment was issued.16 Faced with this situation, the ictr Trial Chambers affirmed that their mandate implied that their proceedings could not be as expeditious as national proceedings, due to the number of charges, the length of the allegations and the nature of the crimes (Gatete, 2012:  para. 29; Mugenzi & Mugiraneza, 2013:  para. 32). The Appeals Chamber also held in the Nahimana et  al. (2007:  paras. 1072–​1077) case that seven-​years and eight-​months between detention and trial judgment did not constitute an undue delay. Similar pronouncements can be found in the Mugenzi & Mugiraneza (2013: para. 32) and Gatete (2012: para. 29) cases. The situation is not much better in relation to appeal proceedings. In only 3 cases (Nshogoza, Serushago and Zigiranyirazo) the period between trial and appeal judgments was less than twelve months, in 22 cases took between one

15 16

ictr (17/​11/​2015). With respect to the period 2013–​2015, this can be explained by the establishment of the mict and the completion strategy. See International Criminal Tribunal for Rwanda (17/​ 11/​2015).

The scope of international criminal proceedings

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and two years and in all other cases took more than two years.17 As a result, the number of ictr appeal judgments annually issued was seven in 2014, five in 2011, four in 2007, 2010, and 2012, three in 2001 and 2005, two in 2000, 2004, 2008 and 2013, and one in 2002, 2003, 2009 and 2015 (Hintjens, 2016).18 As for the outcome of ictr proceedings, 62 accused persons were convicted (13 low-​level, 32 mid-​level and 17 high-​level responsible persons), 14 were acquitted and 3 fugitives were referred to the mict.19 Furthermore, in cases involving 4 people charges were dropped or the accused persons died. Finally, cases involving 10 persons were transferred to national jurisdictions (Smeulers, Hola & Van der Berg, 2013: 7 et seq.).20 An important difference with the icty is the length of the sentences imposed by the ictr, because prison sentences longer than 25 years or life imprisonment accounted for approximately two thirds of all sentences imposed by the tipr.21 Since life imprisonment was the penalty most frequently imposed by the ictr, the mict Appeals Chamber (Nyiramasuhuko et al., 2015) made clear that even if life imprisonment were prohibited by ihrl, this would not prevent the mict from imposing it on convicted persons. B

The Scope of Criminal Proceedings in the International Criminal Court

To analyse the scope of the icc proceedings, it is necessary to distinguish between situations and cases. Preliminary examinations22 and investigations23 are carried out with respect to situations to avoid politically motivated investigations.24 Situations are defined through temporal, territorial and/​or personal parameters (e.g. the situation in the territory of Uganda from 1 July 2002, or the situation in the territory of Kenya from 1 June 2005 to 26 November 2009).

17 18 19 20 21 22 23 24

The longest period between trial and appeal judgments was four and a half years in the Butare case. See ictr (17/​11/​2015). Idem. Idem. Idem. Idem. Preliminary Examinations are provided for in articles 15 (2) and 53 (1) of the icc Statute and in rule 104 of the icc rpe. Investigations are carried out under articles 54 to 57 of the icc Statute. See section on “situations and cases” of the icc web site: https://​www.icc-​cpi.int/​Pages/​ Main.aspx [last visited: 30 December 2017].

42 Chapter 4 Cases are only initiated through the issuance of an arrest warrant or a summons to appear in accordance with article 58 of the icc Statute. Unlike situations, cases refer to one or more persons allegedly responsible for a specific set of facts constituting one or several crimes under the icc Statute (Olásolo, 2005: 44). Since its establishment on 1 July 2002, the icc has received, pursuant to articles 13, 14 and 15 (1) of the icc Statute, two referrals from the unsc (situations in Darfur (Sudan)25 and Libya),26 six self-​referrals from states parties (situations in Central African Republic (car) i27 and ii,28 Democratic Republic of the Congo (drc),29 Gabon,30 Mali,31 and Uganda),32 four declarations under article 12 (3) of the icc Statute (situations in Ivory Coast,33 Palestine,34 Uganda35 and Ukraine)36 and more than 11.000 communications concerning numerous situations in which icc crimes have allegedly been committed.37 As a result, preliminary examinations have been initiated with respect to twenty-​four situations to determine whether there is “sufficient basis to open an investigation.” Eleven preliminary examinations have led to the opening of an investigation (Burundi, car i, car ii, Darfur (Sudan), drc, Georgia, Ivory Coast, Kenya, Libya, Mali, and Uganda),38 five have been closed without the opening of an investigation (Honduras, Humanitarian Flotilla, Palestine (i), Republic of Korea and Venezuela (i)) and ten remain open (Afghanistan, 25 26 27 28 29 30 31 32 33 34 35 36 37 38

unsc (31/​03/​2005). Resolution 1593. S/​RES/​1593. unsc (26/​03/​2011). Resolution 1970. S/​RES/​1970. Referral made on 22/​12/​2004. icc: https://​www.icc-​cpi.int/​car [last visited: 30 December 2017]. Referral made on 30/​05/​2014. icc: https://​www.icc-​cpi.int/​carII [last visited: 30 December 2017]. Referral made on 19/​94/​2004. icc: https://​www.icc-​cpi.int/​drc [last visited: 30 December 2017]. Referral made on 21/​09/​2016. icc: https://​www.icc-​cpi.int/​gabon [last visited: 30 December 2017]. Referral made on 12/​07/​2012. icc: https://​www.icc-​cpi.int/​mali [last visited: 30 December 2017]. Referral made on 29/​01/​2004. icc: https://​www.icc-​cpi.int/​uganda [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​cdi [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​palestine [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​uganda [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​ukraine [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​about/​otp [last visited: 30 December 2017]. The information concerning each of the situations under investigation is available at: icc: https://​www.icc-​cpi.int/​pages/​situations.aspx [last visited: 30 December 2017].

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Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine (ii), The Philippines, Ukraine and Venezuela (ii)).39 As part of the eleven situations that are under icc investigation (none of the investigations have been closed so far), 25 cases have been initiated, through the issuance of arrest warrants or summons to appear against 41 suspects with respect to whom “reasonable grounds to believe” that they are responsible for icc crimes have been found.40 Four of the suspects are presumed dead41 and another fifteen remain fugitives.42 The icc has established that four states parties  –​Chad,43 Djibouti,44 drc45 and Uganda46  –​ have failed to comply with icc arrest and surrender requests and has sent the matter to the unsc. Nevertheless, there has been no significant reaction from the unsc. To date, trial has started in only 10 cases. With respect to the other cases, the situation is as follows: (i) eleven cases (mostly related to defendants who remain fugitives) are in proceedings prior to confirmation of the charges;47 (ii) the cases against Abu Garda, Ali, Kosgey and Mbarushimana ended with the non-​confirmation of the charges in the absence of sufficient evidence to 39

40

41

42

43 44 45 46 47

The information concerning each of the situations under preliminary examination is available at: icc: https://​www.icc-​cpi.int/​Pages/​Preliminary-​Examinations.aspx [last visited: 30 December 2017]. The information concerning each of these cases can be found in the case information sheet which is available at: icc: https://​www.icc-​cpi.int/​Pages/​cases.aspx [last visited: 30 December 2017]. The deaths of the Lord`s Resistance Army commanders Raska Lukwiya and Okot Odhiambo are presumed. The deaths of Saleh Mohammed Jerbo Jamus and Muammar Mohammed Abu Minyar Gaddafi have been confirmed. Proceedings against all four have been terminated due to their passing. The following suspects remain currently at large:  Omar Al-​Bashir, Mahmoud Mustafa Busayf Al-​Werfalli, Abdallah Banda, Walter Osapiri Barasa, Saif Al-​Islam Gaddafi, Simone Gbagbo, Paul Gicheru, Philip Kipkoech Bett, Ahmad Harun, Ali Kushayb, Abdel Raheem Muhammad Hussein, Al-​Tuhamy Mohamed Khaled, Joseph Kony, Vincent Otti and Sylvestre Mudacumura. The information concerning each of these cases can be found in the case information sheet which is available at: icc: https://​www.icc-​cpi.int/​Pages/​ cases.aspx [last visited: 30 December 2017]. icc Al Bashir (25/​03/​2014). icc Al Bashir (11/​07/​2016/​Djibuti). icc Al Bashir (9/​04/​2014). icc Al Bashir (11/​072016/​Uganda). The following cases are in proceedings prior to the confirmation of the charges: Al-​Bashir, Al-​Werfalli, Barasa, Gadaffi, Gicheru & Bett, Harun & Kushayb, Hussein, Khaled, Kony & Otti, Mudacumura and Simone Gbagbo.

44 Chapter 4 show reasonable grounds to believe that the suspects were responsible for icc crimes; (iii) the case against Kenyatta & Muthaura concluded with the withdrawal of the charges by the icc Prosecutor after the confirmation stage and prior to the beginning of the trial; and (iv) the case against Banda is at the stage of preparation for trial after the charges were confirmed.48 In relation to the ten cases that have reached the trial stage: (i) three are currently on trial (Gbagbo & Blé Goudé, Ntaganda and Ongwen); (ii) one ended due to insufficient evidence presented by the Prosecutor (Ruto & Sang); (iii) one ended with an acquittal that was confirmed on appeal (Mathieu Ngudjolo); and (iv) four are in the reparation phase after convictions were not appealed (Al Mahdi and Katanga), were confirmed on appeal (Lubanga), or are subject to on-​going appeal proceedings (Jean-​Pierre Bemba). Moreover, Jean-​Pierre Bemba and some members of his defence team were convicted for offences against the administration of justice, as they tried to influence by payment the testimony of some defence witnesses.49 Apart from the obstruction of justice case, in which imprisonment sentences of 6 to 30 months were imposed on the convicted persons, the following four sentences have been imposed by the icc since 2002: (i) 9 years imprisonment for Al Mahdi, former member of a group (Ansar Eddine) associated to Al Quaeda in Northern Mali;50 (ii) 12 years imprisonment for Germain Katanga, former leader of a militia group (frpi) in the Ituri province in the drc;51 (iii) 14 year imprisonment for Thomas Lubanga Dyilo, former governor of the Ituri province in the drc, as well as former president and commander in chief of a political party (upc) and its military branch (fplc);52 and (iv) 18 years imprisonment for Jean Pierre Bemba Gombo, former vice-​president of the drc, as well as former president and commander in chief of a political party

48

49

50 51 52

The information concerning each of these cases can be found in the case information sheet which is available at: icc: https://​www.icc-​cpi.int/​Pages/​cases.aspx [last visited: 30 December 2017]. The information concerning each of these cases can be found in the case information sheet which is available at: icc: https://​www.icc-​cpi.int/​Pages/​cases.aspx [last visited: 30 December 2017]. icc: https://​www.icc-​cpi.int/​mali/​al-​mahdi/​Documents/​al-​mahdiEng.pdf [last visited: 30 December 2017]. icc:  https://​www.icc-​cpi.int/​drc/​katanga/​Documents/​katangaEng.pdf [last visited:  30 December 2017]. icc:  https://​www.icc-​cpi.int/​drc/​lubanga/​Documents/​lubangaEng.pdf [last visited:  30 December 2017].

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45

and its military branch (mlc).53 It is noteworthy that all sentences imposed are lower than 20 years imprisonment. Finally, the icc has issued reparation orders in the Lubanga case in 201554 and in the Katanga55 and Al Mahdi56 cases in 2017. Nevertheless, only collective reparations of a symbolic nature in the Lubanga case have been implemented so far. From the above-​mentioned, it can be concluded that, despite the numerous preliminary examinations initiated by the icc and their impact in some situations (e.g. Colombia (Olásolo 2014b)), the proceedings carried out in the icc since 2002 do not have the scope that was expected when the icc Statute was approved in 1998 (Cassese, 2006:  434–​441; Bensouda (2015); Ambach (2016)). Almost four and a half years were necessary from the start of the first investigations into the drc situation (23 June 2004) until the beginning of the first trial in the Lubanga case (drc situation) on 26 January 2009. Subsequently, it took more than three years until the trial judgment was issued on 14 March 2012, two and half additional years for the appeal judgment (1 December 2014)  and, after an initial reparation order was issued in 2015, almost two more years for the 21 October 2016 approval of the icc Trust Fund reparation programme, which is still on appeal in December 2017.57 A number of factors reinforce this conclusion. Among them, the following are worth-​mentioning:  (i) there are several preliminary examinations that have been carried out for approximately ten years without apparent justification (as in the case of Afghanistan and Guinea);58 (ii) the average number of defendants per situation under investigation is four, despite the fact that several investigations have lasted more than a decade; (iii) approximately one in 53 54 55 56 57 58

icc:  https://​www.icc-​cpi.int/​car/​bemba/​Documents/​bembaEng.pdf [last visited:  30 December 2017]. icc:  https://​www.icc-​cpi.int/​drc/​lubanga/​Documents/​lubangaEng.pdf [last visited:  30 December 2017]. icc:  https://​www.icc-​cpi.int/​drc/​katanga/​Documents/​katangaEng.pdf [last visited:  30 December 2017]. icc:  https://​www.icc-​cpi.int/​mali/​al-​mahdi/​Documents/​al-​mahdiEng.pdf [last visited: 30 December 2017]. icc:  https://​www.icc-​cpi.int/​drc/​lubanga/​Documents/​lubangaEng.pdf [last visited:  30 December 2017]. icc: https://​www.icc-​cpi.int/​pages/​preliminary-​examinations.aspx [last visited: 30 December 2017]. In relation to Colombia, the preliminary examination has been on-​going for thirteen years. Nevertheless, unlike the situations in Afghanistan and Guinea, its length can be somehow justified by the investigations and prosecutions for international crimes carried out at the national level in Colombia (Olásolo, 2014b: 35 et seq.).

46 Chapter 4 three suspects remains a fugitive (15 out of 41); (iv) only ten trials have been initiated and six have been finalized; and (v) only three reparation orders have been issued until December 2017 (their implementation is limited to the collective component of the Trust Fund reparation programme in the Lubanga case) (Olásolo, Carnero, Seoane, Carcano, 2018). C

The Scope of Criminal Proceedings in Hybrid Criminal Tribunals

Hybrid criminal tribunals are those tribunals that are neither international nor national (Nouwen, 2006: 190–​214), as a result of the following elements: (i) the involvement of an international (e.g. the United Nations) or regional (e.g. the African Union or the European Union) organization in their establishment; (ii) their material jurisdiction, which includes national and international crimes, or national crimes that must be interpreted according to international law; and (iii) the personnel working therein, which is made up of a combination of national and international judges, prosecutors and staff. Five criminal tribunals established in the first decade of the twenty-​first century and two in the period 2010–​ 2017 comply with this definition (Williams, 2012). The establishment of hybrid criminal tribunals reflects, to an important extent, the dissatisfaction of the international society with the icty and the ictr. As a result, new icl enforcement mechanisms were designed to decrease the length of criminal proceedings, ensure a greater impact in the communities in which the crimes were committed and obtain a greater financial efficiency (Tortora, 2013: 93). Hybrid criminal tribunals also respond to the tension between state obligations to investigate, prosecute and punish international crimes and state sovereignty, by empowering states to exercise their jurisdiction with the institutional support of international or regional organizations (Williams, 2012). The first hybrid criminal tribunal was comprised of the Special Panels for Serious Crimes of the Dili District Court, which were established by the untaet in 2000, following the violence of by pro-​Indonesian groups after the independence referendum held in East Timor on 30 August 1999. The jurisdiction of the Special Panels included international crimes (genocide, crimes against humanity, war crimes and torture) and some serious offences under national law (murder and sexual violence) committed in the territory of East Timor, or by or against Timorese nationals, between January and October 1999.59 59

untaet (2000). Regulation No. 2000/​15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. un Doc. UNTAET/​R EG/​2000/​15. 6 June 2000.

The scope of international criminal proceedings

47

The year 2000 also witnessed the establishment by the unmik of Regulation 64 Chambers in the Courts of Kosovo. International and national judges and prosecutors worked together in the investigation and prosecution of serious crimes committed during the armed conflict in Kosovo in the late 1990s, that the icty did not have the capacity to assume. The Kosovar penal code, which included some international crimes, such as genocide and war crimes, was the applicable law. In 2003, unmik established that each Regulation 64 Chamber was to be comprised of two international judges and one national judge.60 On 16 January 2002, the unsg and the government of Sierra Leone signed the Agreement on the Establishment of a Special Court for Sierra Leone to prosecute persons who bore the greatest responsibility for serious violations of ihl and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996 (date in which the Abidjan peace agreement failed to end the Sierra Leonean civil war that had started in 1991). The scsl was not part of the un administrative system or the Sierra Leonean national jurisdiction. It had an international prosecutor and a majority of international judges in each of its chambers. Its material jurisdiction included crimes against humanity, war crimes and some serious crimes under Sierra Leonean law, committed in the territory of Sierra Leone since 30 November 1996.61 The scsl was the result of negotiations that had begun in 2000 as a result of a request made by the government of Sierra Leone to the unsc and the subsequent unsc resolution 1315 (2000), which asked unsg to negotiate with the government of Sierra Leone the creation of a special and independent tribunal to investigate and prosecute the most responsible persons for the serious crimes committed in the territory of Sierra Leone against the civilian population and members of the unamsil. After a long negotiation that began at the request of the government of Cambodia in 1997, the Cambodian National Assembly ratified in October 2004 the agreement signed in May 2003 by the unsg and the government of Cambodia for the establishment of the eccc.62 Despite having un 60 61 62

unmik (2000). Regulation No. 2000/​64 on the Assignment of International Judges/​ Prosecutors and/​or Change of venue. UNMIK/​R EG/​2000/​64. 15 December 2000. Articles 1 to 5 of the scsl Statute. United Nations & Government of Cambodia (2003). Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea. 6 June 2003. Available at: https://​www.eccc.gov.kh/​sites/​default/​files/​legal-​documents/​Agreement_​between​ _UN_​and_​RGC.pdf [last visited: 30 December 2017].

48 Chapter 4 administrative support, the eccc are part of the Cambodian national jurisdiction (Cohen, 2007:  27). They have two chief prosecutors (one national and one international) and a majority of national judges in each of its chambers (no decision can be taken, however, without the support of at least one international judge).63 The eccc have jurisdiction over senior leaders of the Democratic Republic of Kampuchea and those most responsible for serious crimes under Cambodian criminal law (e.g. murder), serious breaches of conventional and customary ihl and serious violations of other international conventions recognized by Cambodia (including, torture, religious persecution, genocide and crimes against humanity), committed in Cambodia between 17 April 1975 and 6 January 1979.64 The establishment of the stl on 30 May 2007 by unsc Resolution 1757 put an end to the creation of hybrid international tribunals in the first decade of the twenty-​first century. Despite the agreement reached between the government of Lebanon and the United Nations in January 2007, the president of the Lebanese Parliament refused to convene the debate on the ratification of the agreement. This prompted the Lebanese government to request the unsc to establish the stl by a resolution adopted under chapter vii of the un Charter.65 Concerning its nature, the stl is a sui generis international institution because it is neither an international tribunal based on an international treaty nor a judicial body integrated in the Lebanese national jurisdiction (Tabbarah:  2014, 49; Jurdi, 2014:  73). The stl and Lebanese national courts have concurrent jurisdiction over persons responsible for (i)  the assassination of Lebanese Prime Minister Rafiq Hariri on 14 February 2005; and (ii) crimes related to Hariri´s murder that were committed between 1  October 2004 and 12 December 200566 (the stl has primacy over Lebanese national tribunals concerning these cases).67 The stl has an international prosecutor and a majority of international judges in each of its chambers. It applies Lebanese criminal law and international law is only used for its interpretation.68 63

64 65 66 67 68

Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Doc. No. NS/​R KM/​1004/​006. 27 October 2004. Articles 9, 10 and 14. Idem. See in particular articles 1 to 6. stl:  https://​www.stl-​tsl.org/​en/​about-​the-​stl/​636-​creation-​of-​the-​stl [last visited:  30 December 2017]. Articles 1 to 4 of the stl Statute. Article 4 of the stl Statute. Articles 8 and 11 of the stl Statute.

The scope of international criminal proceedings

49

The five hybrid criminal tribunals created in the first decade of the twenty-​first century have given way to two new manifestations in its second decade:  the eac s (2012) and the ksc s (2016). With respect to the former, on 22 August 2012, the African Union and Senegal signed an agreement to establish the eac s within the Senegalese judicial system (they were inaugurated on 8 February 2013).69 Comprised of Senegalese investigating judges and Senegalese and international judges in the trial and appeals chambers, the eac s have jurisdiction to investigate and prosecute those most responsible for international crimes (genocide, crimes against humanity and war crimes) committed in the territory of the Republic of Chad between 7 June 1982 and 1 December 1990.70 Following the publication of the report of the European Union Special Investigation Unit on the information handed over in 2011 to the Council of Europe about the alleged commission of war crimes and trafficking of human-​ organs by members of the Kosovar Liberation Army during the Kosovar-​Albanian armed conflict that took place in the late 1990s, the Kosovar Parliament approved in 2014 the establishment of the sck s as part of its national jurisdiction to investigate and prosecute the said crimes.71 After the 2015 constitutional reform, the Kosovar government signed on 30 March 2016 an agreement with the government of The Netherlands, so that the sck s could have their seat in The Hague. In October 2016, the European Union Special Investigation Unit became the new Prosecution Office of the sck s.72 National and international judges were subsequently elected in early 2017. In August 2017, they finalized the sck s Rules of Procedure and Evidence.73 No case has started yet.74 Regarding the scope of criminal proceedings in hybrid criminal tribunals, it is noteworthy that the Special Panels for Serious Crimes in East Timor, the Regulation 64 Chambers in Kosovo and the stl have investigated and prosecuted all types of alleged perpetrators (direct perpetrators, mid-​level superiors

69

70 71 72 73 74

African Union & Government of Senegal. (2012). Accord entre le Gouvernement de la République de Sénégal et l’Union Africaine sur la création de Chambres Africaines Extraordinaires au Sein des Juridiction Sénégalaises. 22 August 2012. Idem. ksc s: https://​www.scp-​ks.org/​en/​background [last visited: 30 December 2017]. ksc s:  https://​www.scp-​ks.org/​en/​specialist-​prosecutors-​office/​role-​spo [last visited:  30 December 2017]. ksc s: https://​www.scp-​ks.org/​en/​documents/​rules-​procedure-​and-​evidence-​kosovo​ -specialist-​chambers-​including-​rules-​procedure [last visited: 30 December 2017]. ksc s: https://​www.scp-​ks.org/​en/​background [last visited: 30 December 2017].

50 Chapter 4 and high-​level leaders). In contrast, the scsl and the eccc, as required by their respective Statutes, have limited their investigations and prosecutions to “persons who bear the greatest responsibility,” that is, high-​level representatives of states and organised armed groups involved in the commission of the crimes. With respect to the outcome of the proceedings of hybrid criminal tribunals, it varies greatly from tribunal to tribunal. Despite having accused 400 people, the Special Panels for Serious Crimes in East Timor could only complete 55 trials involving 88 defendants between 2001 and 2005, since Indonesian authorities refused to surrender their nationals. Most of the 84 convicted persons (there were 4 acquittals) were low-​level perpetrators who were given sentences of 7 to 15  years for murder (the Los Palos case was an exception as all ten defendants were convicted for crimes against humanity and most of them were given sentences of 21 to 33 years of imprisonment). The cases against 13 defendants were dismissed by the Special Panels or withdrawn by the Prosecution. More than five hundred investigations were pending when in 2005 the United Nations withdrew its support and the Special Panels proceedings were permanently suspended (Caitlin & Wierda, 2006). Regulation 64 Chambers of the Courts of Kosovo completed six cases of war crimes between 2002 and 2007. This was due, among other reasons, to: (i) their excessive emphasis on corruption and organized crime issues; (ii) the small number of international prosecutors and judges and their lack of ihl training; and (iii) the lack of cooperation by Serbia, where most accused persons had taken refuge (Sriram, Martín Ortega & Herman, 2014: 203–​204). In the following two years the number of war cases completed increased to 21. During the same period, 158 cases were closed due to insufficient evidence and numerous procedural violations committed during the investigation and presentation of charges (Amnesty International, 2012). By the time the authority to investigate was transferred from unmik to eulex, 1,187 possible war crimes cases had not been yet investigated by unmik. eulex closed around 300 cases between 2010 and 2011, leaving some 700 to 750 cases to be investigated (San Juan, 2018). The scsl Presidency indicated in its final report (12/​ 31/​ 2013) that between 2003 and 2013 the scsl completed four cases involving 10 persons. Three of these cases took place in Freetown against high-​level members of the three armed factions that clashed in the civil war in Sierra Leone:  the Civil Defence Forces (Norman, Fofana and Kondewa), the Revolutionary United Front (Sesay, Kallon and Gbao) and the Armed Forces Revolutionary Council (Brima, Kamara and Kanu). The fourth case was carried out in The Hague (Netherlands) against former president of Liberia, Charles Taylor, for funding

The scope of international criminal proceedings

51

and assisting in the crimes committed by the ruf. The length of the proceedings from the filing of the indictment to the issuance of the appeal judgement was around 5 years in all cases, save for the Taylor case that lasted 10 years. Concerning the sentences, two-​thirds of the convicted persons were sentenced to over 40 years in prison, while Kondewa, Fofana and Gbao were sentenced to 15, 20 and 25 years in prison respectively (Norman died during trial).75 After the scsl closure in 2013, a residual mechanism (the rscsl) was established to manage the on-​going residual functions.76 The eccc has concluded two cases between 2006 and 2017: (i) case 001 against Kaing Guev Eav, alias Duch (director of the S-​21 detention centre where more than 12,000 victims were tortured and executed); and (ii) case 002/​1 against Khieu Samphan (former head of state of the Democratic Republic of Kampuchea) and Nuon Chea (former Secretary-​General of the Communist Party of Kampuchea). From the start of the investigation to the appeal judgement, case 001 lasted 4.5 years (July 2007-​February 2012). In turn, 7 years were necessary to reach a trial judgment in case 002 (July 2007-​August 2014) and four years afterwards the appeal judgment is still pending. Moreover, there is a second case against Khieu Samphan and Nuon Chea (Case 002/​2),77 which started in September 2011 and, after the end of the trial in June 2017, no trial judgment has been yet issued. Furthermore, as of December 2017, the investigation of cases 003 and 004, which started in September 2009, is still pending. Finally, concerning the sentences, alias Duch was convicted to 35 years imprisonment, while Samphan and Chea received a life imprisonment sentence. (Corrias, 2016; Bonilla-​Tovar, Buitrago & Canosa, 2018). With respect to the stl (03/​13/​2017), it started its activities on 1 March 2009. Since then, the stl has focused its proceedings on the case against Ayyash et al., in which the four co-​accused (Ayyash Merhi, Oneissi and Sabra) have been charged with conspiracy to commit a terrorist act and various other

75

76 77

There were other cases initiated by the scsl that could not be carried out due to external circumstances. Foday Sankoh and Sam Bockarie (ruf highest leaders) were indicted on 7 March 2003. Nevertheless, Sankoh died of natural causes on 29 July 2003 and Bockarie was killed in Liberia on 5 May 2003. Jhonny Paul Komora (afrc highest leader) was also indicted on 7 March 2003 and an INTERPOL red notice was issued for him on 20 December 2003. His current whereabouts is unknown. See scsl: http://​www.rscsl.org/​ Other-​Cases.html [last visited: 30 December 2017]. See scsl: http://​www.rscsl.org/​RSCSL-​Mandate.html [last visited: 30 December 2017]. The alleged genocide against the Cham and the Vietnamese, as well as systematic rape and forced marriage, are the core crimes of this second case against the defendants. See eccc: https://​www.eccc.gov.kh/​en/​case/​topic/​2 [last visited: 30 December 2017].

52 Chapter 4 related crimes.78 The original indictment in this case was submitted on 17 January 2011, the trial started on 16 January 2014 and in December 2017 the trial is still on-​going.79 The stl has also undertaken two contempt proceedings against two Lebanese companies and their respective directors in relation to reports about alleged confidential witnesses in the Ayyash et al case. As a result, the stl has convicted Akhbar Beirut s.a.l and its director (Al Almin) to fines of 20,000 and 6,000 Euros respectively.80 Finally, the cases concerning the attacks on Lebanese politicians Hamadeh, Hawi and El-​Murrm were found to be related to the assassination of Lebanese Prime Minister Rafik Hariri by a stl Pre-​Trial Judge in August 2011. In December 2017, they are still under investigation (Bonilla-​Tovar, Buitrago & Canosa, 2018).81 The eac s were ultimately established to fulfil the 2006 African Union request to have former Chadian president Hissène Habré prosecuted in Senegal “on behalf of the whole of Africa.” This request was made after Senegal had refused to extradite Habré to Belgium, where criminal proceedings had been initiated under the principle of universal jurisdiction. The eac s started their activities on 8 February 2013. Four years later, on 27 April 2017, the appeal judgement in the Habré case confirmed the life imprisonment sentence imposed on him by the 30 May 2016 trial judgement.82 Finally, by December 2017 no case has been yet initiated at the ksc s.83 D

Final Remarks

International and hybrid criminal tribunals established after the end of the Cold War have been able, for the first time in history, to enforce icl during a prolonged period of time. This has prompted the jurisprudential development 78

79 80 81 82

83

On 11 July 2016, following reports that the fifht co-​accused (Mustafa Amine Badreddine) had been killed, the stl Appeals Chamber considered that there was sufficient evidence to conclude that he was deceased. See stl: https://​www.stl-​tsl.org/​en/​the-​cases/​stl-​11-​01 [last visited: 30 December 2017]. Idem. Idem. Idem. eac s [Chambre africaine extraordinaire d’assises à la Cour d’Appel de Dakar]. Ministère public contre Hissein Habré. Jugement rendu par la Chambre Africaine Extraordinaire d’Assises dans l’affaire ministère public contre Hissein Habré. 30 May 2016. See also eac s [Chambre africaine extraordinaire d’assises à la Cour d’Appel de Dakar]. Ministère public contre Hissein Habré. Arret de la Chambre d’Appeal. 27 April 2017. ksc s: https://​www.scp-​ks.org/​en/​background [last visited: 30 December 2017].

The scope of international criminal proceedings

53

of icl, as shown, for instance, by the early ictr jurisprudence in which, for the first time in history, the crime of genocide was applied, serious ihl breaches in non-​international armed conflicts were considered to be constitutive of war crimes and rape and other forms of sexual violence were considered as a crime against humanity of torture (Akayesu, 1998; 2001; Kayishema & Ruzindana, 1999; Rutaganda, 1999; Musema, 2000). Unlike the cases investigated and prosecuted at the end of World War ii and during the Cold War, post-​Cold War criminal proceedings for international crimes have not been directed exclusively against those who were previously militarily or politically defeated or acted on behalf of the vanquished. Some cases in the icc, the icty, the ictr, the scsl and Colombian national tribunals are examples of this novel phenomenon (Ambos, 2014; Bautista, 2017; Schultze-​Kraft, 2017). Moreover, as reflected in unsc resolutions 1503 (2003) and 1534 (2004) in relation to the icty and the ictr, article 1 of the Statutes of the scsl and the eca, article 1 of the Law on the Establishment of the eccc and the icc Prosecutor´s policy documents (2003; 2007; 2010; 2013a; 2016a; 2016b), icl enforcement by international and hybrid criminal tribunals has progressively concentrated on high-​level perpetrators, who are usually referred to as “senior leaders suspected of being most responsible” or “persons who bear the greatest responsibility.” Furthermore, the activities of the icc, the icty and the ictr have also prompted criminal proceedings for international crimes in national jurisdictions of territorial states. The cases of Bosnia, Colombia and Rwanda are good examples of this situation.84 Nevertheless, not everything has been good news, because even in its peak period the scope of the proceedings in international and hybrid criminal tribunals has been very limited. For instance, in more than twenty years and with a total budget of approximately $4,400 million us dollars ($2,500 million for the icty85 and $1,900 million for the ictr),86 the icty and the ictr only completed cases involving 184 persons: 33 were acquitted and 151 were convicted (47 high-​level, 78 mid-​level and 26 low-​level perpetrators).87 This took place against the backdrop of situations in which there were millions of victims of 84 85 86 87

See infra ­chapter 5. icty (17/​05/​2017). Figures combined from the various annual reports of the ictr. Furthermore, the cases involving 5 persons were referred to the mict, the cases involving 23 persons were transferred to national jurisdictions and in 41 cases the charges were withdrawn by the Prosecution or the accused persons died.

54 Chapter 4 international crimes and tens (if not hundreds of thousands) of alleged perpetrators (Wierda & Triolo, 2012). Moreover, especially at the ictr, it is noteworthy the invisibility of victims, since of a total of nearly one million victims of genocide, barely 300 were individualized in ictr proceedings (only 78 of them were girls and women despite the systematic nature of acts of sexual violence proven at the ictr) (Gamboa, 2018). The situation is even more complex with respect to the icc because in fifteen years and with a total budget of around €1,600 euros,88 the icc has only:  (i) conducted confirmation hearings in cases involving 17 suspects; (ii)  concluded trials in cases involving 6 accused persons (one was acquitted, four were convicted (a member of an organized armed group, a leader of a regional militia, a governor and the former drc vice-​president) and one trial ended due to insufficient evidence presented by the icc Prosecutor);89 and (iii)  ordered reparations to victims in three cases (in only one has the Trust Fund reparation programme been partially implemented). The lack of state cooperation with the icc (15 out of 41 suspects remain at large) and the several preliminary examinations and investigations undertaken by the icc (preliminary examinations into 16 situations have been completed and 11 investigations and 8 additional preliminary examinations are on-​going) can only explain this situation to a limited extent. The results of hybrid criminal tribunals are not significantly better. While the Special Panels for Serious Crimes in East Timor conducted 55 trials involving 88 defendants between 2001 and 2005 (in the large majority of cases low level defendants were charged with murder under national law), Regulation 64 Chambers of the Courts of Kosovo could only complete 21 war crimes cases between 2001 and 2009. In turn, the eccc have completed one case (Case 001), issued one trial judgement (Case 002/​1) and finalised one trial (Case 002/​1) between 2006 and 2017 (cases 003 and 004 are being investigated since 2009). Furthermore, the eac s have completed their first and only case between 2013 and 2017, the stl has not yet finalized its first trial after nine years of work90 and no case has been yet initiated at the ksc s. Therefore, .

88 89

90

Figures combined from the various annual reports of the icc Committee on Budget and Finances. Jean-​Pierre Bemba and some members of his defence team were convicted for offences against the administration of justice, as they tried to influence by payment the testimony of some defence witnesses. The stl has only finalized two contempt proceedings against two Lebanese companies and their respective directors in relation to reports about alleged confidential witnesses in the Ayyash et al case.

The scope of international criminal proceedings

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only the scsl appears to have been, to a certain extent, effective in fulfilling its mandate to prosecute those bearing the greatest responsibility (three high-​ level members of each of the three parties to the Sierra Leonean armed conflict and former Liberian president, Charles Taylor, were prosecuted by the scsl) in a reasonable period of time (10 years) and with a limited budget (250 million us dollars) (Tortora: 101–​102). From the above-​mentioned it can be concluded that the number of cases investigated and prosecuted by all international and hybrid criminal tribunals since the end of the Cold War barely reaches 300. This falls short of the number of cases dealt with by any of the several national jurisdictions (e.g. Argentina, Bosnia and Herzegovina, Colombia and Rwanda) in which criminal proceedings for international crimes have taken place with certain continuity during the same period of time.91 International and hybrid tribunals have also shown other weaknesses. First, they have not applied consistently selection criteria to determine which international crimes and what type of alleged perpetrators should be prioritized. On the contrary, while the icc, the scsl, the eccc and the eac s have focused from the beginning their investigations and prosecutions on those bearing the greatest responsibility, the icty and the ictr only took this approach after unsc resolutions 1503 (2003) and 1534 (2004). Furthermore, some hybrid criminal tribunals, such as the Timorese Special Panels for Serious Crimes, the Kosovar Regulation 64 Chambers and the stl have brought criminal proceedings against all types of responsible persons (direct perpetrators, mid-​level superiors and high level leaders). Second, some international and hybrid international tribunals have treated the crimes committed by the different parties to the conflict in an unequal manner. The case of the ictr, where the crimes committed against hundreds of thousands of victims by members of the Rwandan Patriotic Front have remained unpunished since 1994, is particularly striking (Haskell and Waldorf, 2011: 50, Del Ponte, 2008: 179, 234–​235, Clark, 2014: 187). As a result, icl enforcement is perceived today by a number of scholars as grounded on political utilitarianism, pragmatism (those whose custody can be obtained are the ones prosecuted) and even mere arbitrariness (Del Ponte, 2008, Margalit, 2010, Peskin, 2008: 170–​186, Vilmer, 2011, Zolo, 2007). Third, there is a significant disparity among international and hybrid criminal tribunals with respect to the sentencing practice. While all sentences imposed by the icc and 75% of the sentences imposed by the icty are below 20 years

91

See infra ­chapter 5.

56 Chapter 4 imprisonment, all sentences imposed by the eccc and the eac s and most sentences imposed by the ictr are of life-​imprisonment. Moreover, two-​thirds of the sentences imposed by the scsl range from 35 to 50 years imprisonment. Fourth, international and hybrid tribunals have showed their high degree of dependence on cooperation by states and international and regional organizations. In the absence of such cooperation, they have faced great difficulties to carry out their investigations and prosecutions. The high number of icc suspects that remain at large (the Al-​Bashir case is the most significant in this regard), the difficulties experienced by the icty during its early years and the constant tension between the eccc and the Cambodian government, are good examples of this situation. As a result, some scholars have highlighted the vulnerability of international and hybrid criminal tribunals to political use by those states on whose cooperation are dependant to effectively carry out their functions (Margalit, 2010, Peskin, 2008: 170–​186, Vilmer, 2011, Zolo, 2007). Finally, the system of voluntary contributions of hybrid criminal tribunals has not worked as expected, which generated important financial crisis in the scsl and the eccc. The United Nations had to make additional financial contributions to assist the scsl and eccc to overcome their financial crisis. The stl financing system is working better because it is based on mandatory contributions by Lebanon and the role of voluntary contributions is much smaller (Tortora, 2013, p. 93, 124). As we have gone into the second decade of the twentieth century, the completion of the icty and ictr proceedings and the end of the activities of most hybrid criminal tribunals (only the eccc, the stl and the ksc s remain active) have led to a significant decrease in the number of cases. The recent establishment of the ksc s (2016) and the adoption by the African Union in June 2014 of the Malabo Protocol (Werle & Vormbarum, 2016), which aims at extending the jurisdiction of the African Court of Justice and Human Rights to the investigation and prosecution of international and transnational crimes (Ventura & Bleeker, 2016: 441–​460), are not sufficient indicia to show that this trend may change any time soon. Finally, with respect the icc, it is important to highlight the lack of support, disengagement or even opposition to the icc by three of the five members of the unsc (China, the United States and Russia), seven of the nine nuclear powers (China, the United States, India, Israel, North Korea, Pakistan and Russia) and several regional powers (Egypt, Indonesia and Turkey, just to give some examples) have significantly limited the scope of icc proceedings since its inception. The decision of the icc Prosecutor (2003; 2007; 2010; 2013a; 2016a; 2016b) to focus on the investigation and prosecution of those most responsible for icc crimes increased the difficulties faced by the icc during its first years.

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Despite the approval of the definition of the crime of aggression in the 2010 Kampala Review Conference and the agreement reached in December 2017 to activate the icc jurisdiction over this crime on 17 July 2018,92 the difficult circumstances that surrounded the icc between 2002 and 2011 have increased in the period 2012–​2017. First, the number of states that have become states parties to the icc Statute has been reduced from an average of 6 states per year between 2002 and 2011, to an average of 1 state per year since 2012. Second, some African countries have decreased their support and cooperation with the icc as a result of the almost exclusive focus of the icc investigations and cases on the most responsible persons for icc crimes committed in Africa, including some incumbent heads of state, such as Omar Al-​Bashir (Sudan) and Uhuru Kenyatta (Kenya). As a result, between 2014 and 2016, the icc has declared that Chad,93 Djibouti,94 drc95 and Uganda96 failed to comply with the icc requests for the arrest and surrender of Omar Al-​Bashir. Furthermore, South Africa and Burundi started in October 2016 the process provided for in article 126 of the icc Statute to denounce it.97 In the end, only Burundi continued with such process98 and regained non-​party state status on 27 October 2017.99 Third, Russia withdrew its signature of the icc Statute on 16 November 2017, following the decision of the icc Prosecutor to: (i) open an investigation into the situation in Georgia in January 2016;100 and (ii) consider the crisis in Crimea as a situation of occupation by Russia (icc Prosecutor, 2016c: para. 158).

92 93 94 95 96 97

See supra ­chapter 1, fn. 2. icc Al Bashir (25/​03/​2014). icc Al Bashir (11/​07/​2016/​Djibuti). icc Al Bashir (9/​04/​2014). icc Al Bashir (11/​072016/​Uganda). See icc press release (22/​10/​2016):  President of Assembly Regrets Withdrawal of any State Party from the Rome Statute and Reaffirms the Court´s Fight against Impunity. Available at:  https://​www.icc-​cpi.int/​Pages/​item.aspx?name=pr1248 [last visited:  30 December 2017]. In November 2016, the Gambian government also declared its intention to denounce the icc Statute. Nevertheless, the newly elected Gambian president declared months later that Gambia was not going to initiate the process to denounce the icc Statute. See icc press release (17/​02/​2017):  asp President welcomes Gambia’s ­decision not to withdraw from the Rome Statute. Available at:  https://​www.icc-​cpi.int/​ legalAidConsultations?name=PR1274 [last visited: 30 December 2017]. 98 See icc press release (11/​ 03/​ 2017):  asp President welcomes the revocation of South  Africa’s  withdrawal from the Rome Statute. Available at:  https://​www.icc-​cpi.int/​ legalAidConsultations?name=pr1285 [last visited: 30 December 2017]. 99 icc: https://​www.icc-​cpi.int/​burundi [last visited: 30 December 2017]. 1 00 icc: https://​www.icc-​cpi.int/​georgia [last visited: 30 December 2017].

58 Chapter 4 These difficult circumstances in which the icc has been operating have slowed down its proceedings significantly (Peskin & Boduszynski, 2016: 272 et seq.). Moreover, it does not seem that they will disappear any time soon as shown by: (i) the adoption in the United States by the new Trump administration of a whole series of policies that move away from multilateralism and respond to the slogan “America First”; (ii) the political and military resurgence of Russia in the wake of the conflicts in Eastern Ukraine and Syria; (iii) China’s expanding role in the international economy and geo-​strategy; (iv) the growing weakness of the European Union (to which the host state and the main icc financial contributors after Japan belong) as a result of the deep economic crisis suffered since 2008 and the political crisis manifested in the foreseeable departure of the United Kingdom from the European Union; (v) the growing reluctance towards the icc of a large number of African countries, as reflected in recent events in South Africa and Burundi; and (vi) the progressive scepticism towards the icc by some Latin American countries, including Colombia, Mexico and Venezuela (Olásolo, Carnero, Seoane, Carcano, 2018).

Chapter 5

The Scope of Criminal Proceedings for International Crimes in National Jurisdictions The international legal regime of genocide, crimes against humanity and war crimes includes the state obligations to investigate, prosecute and punish those responsible for the said crimes when they are committed in its territory or under its jurisdiction (Olásolo, 2017b: 83–​87). Paragraph 6 of the icc Statute refers to these obligations when recalls that “[…] it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.” Several treaties on international crimes –​including the Geneva Conventions (1949) and their Additional Protocol i (1977), the Convention against Torture (1984) and the Convention against Enforced Disappearance (2006) –​contain also the state obligation to carry out criminal proceedings under the principle of universal jurisdiction or, alternatively, to extradite the suspect to a third country in which charges have been filed. While articles 5 (2) of the Convention against Torture and 9 (2) of the Convention against Enforced Disappearances require the presence of the suspect in the territory of the state concerned, this is not necessary under the Geneva Conventions.1 Moreover, as established by the Permanent International Court of Justice in the Lotus case (France v. Turkey, 1927), states are empowered to carry out criminal proceedings for international crimes committed outside their territory or jurisdiction, unless international law explicitly provides otherwise. Nevertheless, when national law so requires, the exercise of this power by states must be explicitly regulated by domestic law (Hall, 1999: 407). During the four-​decades-​long Cold War, criminal proceedings for international crimes in national jurisdictions were almost exclusively limited to those who acted on behalf of the defeated States in World War ii. The cases concerning the My Lai Massacre (Vietnam) in the United States (1970–​1974) and the Military Juntas in Argentina (1984–​1985) were the exception. The situation started changing in the second part of the 1990s with the case against Chilean dictator, Augusto Pinochet. The relevance of the defendant, the involvement of three different countries in the proceedings (Chile, Spain, United

1 See articles 49 of gc i, 50 of gc ii, 129 of gc iii and 146 of gc iv.

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 06

60 Chapter 5 Kingdom)2 and its broad international media coverage, made the Pinochet case an emblematic case for the investigation and prosecution of international crimes (Brito, 2003: 225; Brody & Ratner, 2000; Brotóns, 2003: 250; Panokova, 2011: 50–​51; Pion-​Berlin, 2004: 486, 503; Roth Arriaza, 2005: 170). Nevertheless, in most cases, criminal proceedings for international crimes in national jurisdictions have been the result of a long struggle between: (i) those who (a) committed the crimes (e.g. high state representatives, state security forces and organized armed groups) and used all available means to obtain impunity or (b)  considered impunity the necessary “prize” to be paid for achieving social peace and democracy; and (ii) those others (usually, human rights organizations and victims’ associations) who found this situation unbearably unjust and held that no peace and democracy could be achieved without justice in the form of criminal proceedings. The tension between both sides can be observed with particular intensity in the literature on tj in which, without sufficient evidence, all sorts of speculations are made about the counterproductive effects of justice demands. For these scholars, criminal proceedings for international crimes, regardless of whether they are carry out by national, international or hybrid tribunals, are likely to cause greater political and social division in the midst of open conflicts for which a negotiated solution is sought (Engstrom, 2017: 379–​380). To better understand this situation that is at the heart of most national proceedings for international crimes, the paradigmatic case of Argentina is explained in detail in the following section. A

The Long Struggle for the Investigation and Prosecution of International Crimes Committed in Argentina by the Military Dictatorship (1976–​1983)3

A.1 The Crimes: 1976–​1983 Argentina was ruled between 1930 and 1983 by several governments controlled by the military, with only two democratically elected presidents who were not overthrown before the end of their term (Verbitsky, 1998:  39). On 2 The case was initiated in 1996 by the Spanish Audiencia Nacional under the principle of universal jurisdiction, continued in the United Kingdom between 1998 and 2000 with respect to the extradition request made by Spain and, after the British government rejected such request and sent Pinochet back to Chile, was completed in Chile between 2000 and 2006. 3 The author would like to thank Dalila Seoane (Argentina) for her invaluable research assistance in relation to this section.

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24 March 1976, a new military coup d’etat took place after the escalation of violence as a result of political polarization and confrontation with guerrilla groups (Nino, 1996: 50–​53). The Military Junta, which was comprised of the commanders in chief of the army, the navy and the air force, stayed in government for the alleged purpose of protecting national security (Mignone, 1998: 51–​54). During the military dictatorship (1976–​1983), dissidents were considered internal enemies who had to be defeated through a dirty war, following the French and us anti-​insurgency manuals (Robben, 2005: 186–​189; Pion-​ Berlin, 1989: 99). All those who participated in groups with social or political demands were seen as “subversives” by the regime (Robben, 2005: 187; Nino, 1996: 54). There was also a deep anti-​Semitic feeling in the regime (Kaufman, 1995) and an explicit support from the ecclesiastical authorities. The dehumanization of the “subversives” was the preliminary step to “legitimize” their extermination. The ideologists of the dirty war considered them as “irrecoverable” from an ideological perspective. This meant to give up any purpose of punishment and apply the death penalty without due process (Mignone, 1998: 51–​54). As a result, the Argentinean dictatorship caused fear, trauma and terror in the population through kidnapping and deprivation of liberty in clandestine prisons, torture and, above all, the forced disappearance of people (Robben, 2005: 213–​281). Extrajudicial executions as an extermination method responded to four fundamental reasons: (i) effectiveness and promptness in eliminating subversion; (ii) avoidance of publicity and external intervention; (iii) protection of direct perpetrators; and (iv) spreading uncertainty and terror in society (Erland Hagelin, 1998:  185). Requests for habeas corpus were systematically rejected by the judges who collaborated with the regime (Nino, 1996: 58). Although some “death squads” linked to the extreme right participated in the commission of the crimes, all orders were given by the highest commanders of the armed forces. As a result, this is a clear case of state terrorism (Mignone, 1998: 52). In 1977, a group of mothers and grandmothers of disappeared persons began to protest silently and systematically in the Plaza de Mayo, demanding the return of their relatives (Nino, 1996:  59). The iachr visited Argentina in 1979 and prepared a report that confirmed the military regime´s serious human rights abuses, especially in relation to the rights to life, personal integrity, freedom, security and fair trial provided for in the American Declaration on the Rights and Duties of Man (Nino, 1996: 60). According to the National Commission for the Dissapeared Persons/​Comisión Nacional para las Personas Desaparecidas (conadep, 1984), approximately 9,000 enforced disappearances took place during the military dictatorship. Nevertheless, victim’s

62 Chapter 5 associations consider that the number of enforced disappearances was as high as 30,000 (Barnes de Carlotto, 1998: 54). The Long Struggle for the Investigation and Prosecution of International Crimes in Argentina: 1983–​2005 The political transition towards democracy took place between 1980 and 1983 as a result of the economic crisis in which Argentina was plunged and the military defeat in the war against the United Kingdom for the Falkland Islands (Nino, 1996: 61). Unlike in other neighbouring countries, it was not based on a political agreement between the Military Juntas and the political parties to transfer power. Furthermore, Raúl Alfonsin, who won the 1983 presidential election, promised during his campaign that those members of the Argentinean military who had committed crimes would be brought to civilian justice and would not be protected by due obedience, error or coercion (Nino, 1996: 62).4 Consequently, international crimes were not dealt with impunity because the recovery of democracy came hand in hand with political promises to prosecute the crimes committed during the military dictatorship. In light of this situation, in April 1983, the military presented a final document on the “war on subversion and terrorism,” in which it admitted that the methods used during the dirty war were an unprecedented necessary response to a previous aggression by guerrilla groups (Nino, 1996: 62; Ramos Padilla, 2011: 45; Pérez Barbera, 2014: 46). According to the military, its actions should not be judged by men but by God (Nino, 1996: 62, Ramos Padilla, 2011: 45).5 As a result, a month before the presidential election, the last Military Junta issued a self-​amnesty (Law No. 22,924 of 23 September 1983) to achieve peace and reconciliation (Nino, 1996:  64–​65). This amnesty covered all counter-​ insurgency actions carried out between 25 May 1973 and 17 June 1983, including those constituting crimes under the civilian or military Argentinean penal codes in force at that time. A.2

4 Alfonsín proposed to classify those responsible for the crimes of the military dictatorship in three groups:  (i) those commanders who planned the repressive policies and gave the orders; (ii) those subordinates who acted with cruelty, perversity or for an economic benefit; and (iii) those subordinates who acted strictly according to the orders given by superiors. He proposed to investigate, prosecute and punish those falling in the first two categories (Nino, 1996: 63). 5 In the said document, the military also acknowledged that the responsibility for the actions undertaken lied with the members of the three Military Juntas that were in charge of the Argentinean government between 1976 and 1983. By doing so, the military accepted the notion of superior responsibility for subordinates’ conduct.

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The self-​amnesty (also known as ‘national pacification law’) was repealed on 22 December 1983 and declared void by Law No. 23,040. Furthermore, Decree No. 158/​83, issued by the newly elected President, ordered the trial of the Military Juntas that governed de facto Argentina (Ramos Padilla, 2011: 50). Investigations and prosecutions were organized according to the following strategy: (i) distinction between different levels of responsibility so as to focus criminal proceedings on those most responsible for state crimes; (ii) promotion of a self-​purge in the armed forces; and (iii) conclusion of trials in a relatively short time (Parenti /​Pellegrini, 2009: 136). As a result, on 9 December 1985, the Federal Court of Appeals of Buenos Aires (case 13/​84) convicted five of the nine members of the three Military Juntas as indirect perpetrators of illegal detention, torture and homicide (Rafecas, 2016:  213). The following year, the Argentinean Supreme Court confirmed the convictions as “necessary participants” in the crimes (indirect perpetrators was not considered by the Supreme Court an applicable form of responsibility because it was no part of Argentinean criminal law) (Malarino, 2012: 140; Sancinetti, 1988: 28 et seq.). Jorge Videla (who was the de facto president of Argentina between 1976 and 1981) and Eduardo Massera (who was a member of the first Military Junta between 1976 and 1978)  were sentenced to life imprisonment. Viola, Lambruschini and Agosti were respectively sentenced to 16, 8 and 4 years of imprisonment. Almost simultaneously, on 24 December 1986, after threats of military uprising, Law No. 23492 (known as ‘full stop law’/​ley de punto final) was passed, which established a time limit for the prosecution of crimes committed during the dictatorship (Ramos Padilla, 2011:  63–​64). Soon afterwards, Law No. 23521 (known as ‘due obedience law’/​ley de obediencia debida) was also passed. Moreover, in 1989, the new President Carlos Menem provided full impunity to state terrorists by Decree 1002/​89, in which military members convicted for crimes committed during the dictatorship were pardoned. Approximately, 1,195 members of the Argentinean military benefited from the two above-​mentioned laws and Menem’s presidential pardon, including the members of the Military Juntas who were in prison. As a result, by 1990 only ten people remained in prison for the crimes committed during the dictatorship (Micus, 2015: 204). While the threat of a military rebellion had placed a limit on criminal ­proceedings (except with respect to the crimes of rape, robbery and abduction of children) (Micus, 2015:  202), the iachr found in its report 28/​92 of 2 October 1992 that the full stop and due obedience laws and Menem´s Pardon Decree violated articles 1, 8 and 25 of the achr. As a consequence, it recommended Argentina to:  (i) grant fair compensation to victims; and

64 Chapter 5 (ii) adopt the necessary measures to clarify the facts and identify those responsible for the human rights abuses that took place during the military dictatorship (Eiroa, 2013:  29–​30). The same year, the Argentinean Supreme Court, in the Ekmekdjian v.  Sofovich case, affirmed the primacy of human rights treaties over national law (Ramos Padilla, 2011: 106). Two years afterwards, a constitutional reform granted constitutional status to international human rights treaties, thereby establishing the so-​called bloque de constitucionalidad doctrine. In 1996, the IACtHR issued its first judgment against Argentina in the case of Garrido & Baigorria, and in 1997, the iachr issued report 30/​97, in which it found Argentina responsible for breaching its duties under articles 8 and 25 of the achr. As a result, the full stop and due obedience laws were repealed by the Argentinean Congress in 1998, but not annulled, thus maintaining the legal effects that they had already had in Argentina (Micus, 2015: 203). During the time in which the investigation and prosecution of international crimes committed during the military dictatorship was forbidden, the so-​ called “trials for the knowledge of the truth” were held in order to implement victims’ right to truth.6 In these trials, former members of the military, such as Adolfo Scilingo, publicly acknowledged and gave details about the “death

6 While some have stated that, due to teleological, methodological and political difficulties, the “trials for the knowledge of the truth” are not an adequate mechanism to review history (Maculan /​Pastor, 2013: 43 et seq.), others have emphasized that these trials assisted in the definition of victims’ right to truth as an autonomous right (Galain Palermo, 2013b) (Mocoroa, 2016:  161). Victims’ right to truth had been recognized in the 1985–​1986 iachr annual report, and in the 1988 IACtHR judgment in the Velázquez Rodríguez v. Honduras case (Parenti /​Pellegrini, 2009: 140–​141). Due to the large number of missing persons, truth has always been an urgent need and a constant victims’ demand. The CONADEP was created by president Alfonsín to publicize the facts, identify those responsible and set a precedent by means of a final report (“Never Again”) that intended to clarify the situation of thousands of disappeared people (Novaro, 2014: 48). Therefore, it could be argued that the Argentinean transitional process aimed from its earliest stages to (i) establish the criminal liability of those most responsible for international crimes during the military dictatorship; and (ii) obtain an “official truth” in relation to a broader set of facts. The combined application of these two goals offered a sort of complementarity between different mechanisms (legal and political) to review the past. As a consequence, in the friendly agreement reached in 2000 between Argentina and the iachr in the “Carmen Aguiar de Lapacó” case, it was highlighted that victims’ right to truth requires states to take all available means to find out what happened to missing persons (Parenti & Pellegrini, 2009: 141).

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flights,” in which victims were thrown alive into the waters of De la Plata River (Bartolomei, 1998:  205).7 These statements led to the opening of criminal proceedings in the Spanish Audiencia Nacional by judge Baltasar Garzón, who ordered in 1997 the arrest of Scilingo, who had travelled voluntarily to Spain. Scilingo was accused of terrorism and torture under the Spanish Penal Code. He was sentenced in 2005 to a penalty of 640 years in prison for the illegal detention, torture and death of 30 people (Micus, 2015: 224–​225). During the late 1990s, criminal proceedings were also initiated in various European countries against Argentinean military members pursuant to the principles of passive personality and universal jurisdiction. As a result, several extradition requests were made by Spain, Germany, Italy, France and Sweden with respect to cases related to the alleged forced disappearance of nationals of these countries. In 2001, Fernando De la Rúa issued Presidential Decree No. 1581/​01, which prevented the extradition of the requested military personnel. As a consequence, several in absentia trials took place in European tribunals, even though this type of trials was prohibited by the Argentinean Constitution for being contrary to defence rights (Micus, 2015: 218–​219, 230). Although victims had been repaired monetarily by various democratic governments that succeeded the military dictatorship8 and symbolically with conadep´s final report and various commemoration sites that recalled the clandestine detention and torture centres (Parenti /​Pellegrini, 2009: 143–​149; Micus, 2015: 213–​214), victims’ organizations continued denouncing impunity and sought strategies to circumvent these obstacles. Consequently, at the end of the 1990s, they started promoting criminal proceedings for crimes committed by military personnel during the dictatorship, that were not covered by the full-​stop and due obedience laws (especially, kidnapping and minors’ change of identity through falsification of public documents). As a result, in 1998, new investigations were opened against Videla, Massera and other military commanders, which eventually led to their conviction in 2012 (Micus, 2015: 216–​218). Three years afterwards, in 2001, Judge Cavallo affirmed that the full-​stop and due obedience laws lacked any legal effect because they were contrary to international ius cogens standards, articles 1, 2, 8 and 25 of the achr, article 18 of the Vienna Convention on the Law of Treaties and articles 29 and 118 7 Likewise, Army Chief of Staff, Martin Balsa, acknowledged that the due obedience law did not provide for any legal excuse with respect to criminal liability for international crimes committed in execution of superiors’ orders. 8 See inter alia Law No. 23466 of 1986, Law No. 23043 of 1991 and Laws No. 24411 and 24321 of 1994.

66 Chapter 5 of the Argentinean Constitution. In 2003, the Argentinean Congress declared the ab initio nullity of both laws. The Argentinean Supreme Court reached the same conclusion in its 2005 judgment in the Simón case in light of the ICtHR judgment in the Barrios Altos v.  Peru case (2001:  41), which had declared inadmissible amnesties laws and laws establishing statutes of limitations for international crimes (Yanzon, 2014: 155). Subsequently, in the Mazzeo case in 2007, the Supreme Court also declared the ab initio nullity of presidential pardons concerning international crimes because they were contrary to the international obligations of Argentina (Micus, 2015: 231–​240). A.3 Criminal Proceedings Since 2005 Since the Supreme Court ruling in the Simón case (2005) until 2017, 593 cases –​referred to by civil society as “Memory, Truth and Justice” cases –​have been initiated against 2780 persons for crimes against humanity.9 175 trial judgments have been issued so far, 16 cases are at trial, 118 are close to the start of the trial and 284 are still at the investigation phase (Procuraduría por Crímenes de Lesa Humanidad, 2017: 6). In all these cases, the underlying crimes against humanity have been analysed in light of the Argentinean penal code in force at the time of their commission. Consequently, conduct that according to the current penal code constitutes a crime of enforced disappearance has been considered a crime of unlawful deprivation of liberty in application of the penal code in force between 1976 and 1983 (victims’ persecution on political grounds constitutes an aggravating circumstance).10 Criminal proceedings have faced numerous obstacles. First, there has been a significant tension between Argentina’s obligations under ihrl to end impunity and punish those responsible for international crimes, and some principles of national criminal procedure which aim at limiting punishment and safeguarding individual rights and freedoms against state application of criminal law (Sancinetti & Ferrante, 1999: 406 et seq,; Eiroa, 2013: 48). This has brought about an intense debate among scholars. For some, icl is directly applicable in the domestic legal order and, therefore, its lack of application generates state responsibility under international law (Méndez, 1997:  255–​ 282; Micus, 2015: 31). For others, national sovereignty, as well as the legality 9 10

On the strategy followed by the Argentinean Office of the Prosecutor for International Crimes, see: Parenti (2009: 13 et seq.). The specific torture techniques applied to victims (beatings, electric prod or impalements, just to give some examples) are irrelevant to proof the crime of torture, since the conditions of detention to which victims were generally subjected in the clandestine detention centres caused per se serious physical and/​or psychological harm.

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and democratic principles, require that national criminal law takes precedence over icl (Malarino, 2012: 73) Second, several scholars have opposed the application in the domestic legal order of the icl principle according to which no statute of limitations is applicable to international crimes. They have put forward in support of their positions both rule of law and humanitarian arguments (Pastor, 2004: 119). Furthermore, the need for respect of the ne bis in idem principle has also been underscored by some scholars (new facts and fraudulent res judicata are the only exceptions to the application of this principle admitted by these scholars) (Eiroa, 2013: 49; Pérez Barbera, 2014: 66). Third, the investigation of crimes committed several decades ago has generated significant difficulties in gathering evidence (victims have rarely provided documentary evidence of torture or unlawful deprivation of liberty). Moreover, during the trial against Miguel Etchecolatz (high commander of the Buenos Aires Police during the military dictatorship), the first case of enforced disappearance after the return to democracy in 1983 came out in the testimony of one of the witnesses (Julio López) –​this prompted former President Néstor Kirchner to claim that the past had not been yet left behind (Micus, 2015: 244). Fourth, in those cases in which investigations for crimes committed in one detention centre have led to “mega-​cases” (megacausas), significant procedural and logistical problems have arisen. For instance, in 2012, the hearings of the third case concerning the Army Mechanized School (known as ‘esma iii’) began. 54 defendants were charged for the alleged kidnapping, torture and homicide of 798 victims. The case also included the alleged criminal liability of the pilots who participated in the death flights used by the military dictatorship to throw in the De la Plata river unlawfully arrested persons who were still alive. The hearing lasted almost five years.11 Finally, due to the way in which investigations have been organized from the beginning –​that is, mostly divided on the basis of clandestine centres –​ there are different cases concerning the same detention centre with different victims and defendants. Beyond these difficulties, the Argentinean jurisprudence has embraced many of the latest icl developments, including the legal regimen of acts of sexual violence and the notion of civil liability for crimes against humanity. In recent years, the jurisprudence of Argentinean tribunals on sexual violence

11

See: https://​www.fiscales.gob.ar/​lesa-​humanidad/​esma-​unificada/​ [last visited: 30 December 2017].

68 Chapter 5 committed in a widespread or systematic manner pursuant to state policy has evolved to make it more visible by treating it as an autonomous crime. Before this change of paradigm, acts of sexual violence were considered to be a crime of torture (a very similar situation to one faced by the icty and the ictr during its first years). The judgement issued in 2010 by the Federal Criminal Tribunal of Mar del Plata in the Molina case was the first one that treated rape and other forms of sexual violence systematically suffered by unlawfully detained women in clandestine detention centres as an independent crime against humanity. In relation to the trial of civilian accomplices of the military dictatorship, it should be noted that 70 civilians have been indicted so far. Former judges, prosecutors and defence attorneys have been conflicted in the Menéndez Sánchez et  al. case, known as ‘the justices trial’ (Federal Criminal Tribunal No. 1 of Mendoza, 2017). In this judgment, the tribunal found the defendants criminally liable for their involvement in numerous unlawful detentions, acts of torture and assassinations as a result of their systematic rejection of habeas corpus requests and their deliberate omissions when investigating what happened to disappeared persons. With respect to corporate civil liability for aiding and abetting the crimes of the military dictatorship, 2 persons have been convicted for their alleged responsibility in crimes against humanity and 19 are currently under investigation (Procuraduría por Crímenes de Lesa Humanidad, 2017). Especially relevant is the judgment issued in May 2016 by the Federal Criminal Tribunal No. 1 of Buenos Aires, which found the existence of the so-​ called “Condor Plan” (the case started in 1999). In its judgment, the tribunal highlighted the existence of a transnational criminal organization aimed at exchanging intelligence information and committing persecution, kidnapping, torture, homicide and/​or enforced disappearance against political dissidents. This transnational criminal organization was orchestrated by the military dictatorships of Argentina, Bolivia, Chile, Paraguay, Peru and Uruguay in the 1970s and the 1980s. Months afterwards, Italian tribunals sentenced to life-​imprisonment eight members of the Peruvian, Bolivian, Chilean and Uruguayan militaries for the enforced disappearances of 23 citizens of those countries who also held Italian citizenship.12 Finally, it is also necessary to highlight the judgment of the Federal Criminal Tribunal No. 6 of Buenos Aires (2012) on the systematic plan of abduction

12

19 defendants were acquitted. Among them, the Uruguayan Jorge Tróccoli, who was the only accused person who appeared in the trial.

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of children implemented by the military dictatorship. As part of this practice, pregnant detainees, who were in clandestine detention centres, gave birth in terrible conditions and were subsequently killed. The macabre plan was intended to deliver babies born in captivity to military personnel or people close to them. The implementation of the plan, which defendants tried to justify as a “counter-​insurgency” measure, also involved the intervention of medical personnel (both civilian and military) who were in charge of the births and other officials responsible for fabricating birth certificates to erase all connections of the new-​borns with their biological parents. Jorge Videla was sentenced in this case to 50 years imprisonment (one of the several sentences he received before his death in 2013). Due to the work of civil society, in particular the Grandmothers of Plaza de Mayo, 124 out of approximately 500 grandchildren who were born in captivity have been identified. In most cases, they have only known their true identity thirty years after their birth.13 B

The Scope of Criminal Proceedings for International Crimes in National Jurisdictions of Territorial States

If there has been a region of the world where national jurisdictions of territorial states have been particularly active in the investigation and prosecution of international crimes it has been Latin America, where the impact of the jurisprudence of the IACtHR on the duties of Latin-​American states to carry out criminal proceedings for international crimes has been very significant in the twenty-​first century.14 As a result, criminal proceedings have been brought against the following former heads of state: Augusto Pinochet (Chile, 2000–​ 2006), Juan María Bordaberry (Uruguay, 2007–​2011), Alberto Fujimori (Peru, 2007–​2010), Jorge Videla (Argentina, 2009–​2012) and Efraín Ríos Montt (Guatemala, 2012–​2015). The first two died facing criminal proceedings for international crimes in Chile and Uruguay, Ríos Montt’s conviction was overturned in 2013 by the Guatemalan Constitutional Court that ordered a retrial which could not be carried out for health reasons, Jorge Videla was sentenced in 2012 to 50  years imprisonment and died in prison in 2013, and Alberto Fujimori was sentenced in 2009 to 25 years imprisonment (he was released on alleged humanitarian grounds in December 2017). Furthermore, several 13 14

Vid: https://​www.abuelas.org.ar/​caso/​buscar?tipo=3 [last visited: 30 December 2017]. See the case of Almonacid Arellano et al. v. Chile (26/​09/​2006: paras. 114, 153). See also the following two cases against Peru:  Miguel Castro Castro Prison (25/​11/​2006:  paras. 402, 404); La Cantuta University (29/​11/​2006: paras. 168, 225).

70 Chapter 5 Latin-​American national jurisdictions have carried out criminal proceedings for international crimes in a systematic manner. As seen in the previous section, the Argentinean jurisdiction has been especially incisive in the fight against impunity. Despite the many obstacles to such an undertaking, it has been possible to investigate and prosecute hundreds of persons responsible for international crimes committed during the military dictatorship, including the members of the three different Military Juntas that governed Argentina between 1976 and 1983. Another good example is Colombia, where more than 800 members of Colombian security forces have been convicted, and several thousand are currently being investigated, for the extrajudicial executions (known as ‘falsos positivos’) of at least 3,000 civilians, who were killed to make them appear as farc´s casualties for internal promotion purposes. According to the icc Prosecutor (2016c), these extrajudicial executions were committed on a systematic manner by some Colombian Army Brigades in several areas of the country between 2002 and 2008. Furthermore, between 2006 and 2017, Colombian criminal tribunals: (i) have convicted around 60 senators and congressmen, and 15 governors, for links with paramilitary groups; (ii) have convicted, or at least prosecuted, 43 of the 46 highest paramilitary commanders in 2006 who are still alive (the specialized jurisdiction for Justice and Peace has also opened cases against around 3,000 demobilized mid-​level and low-​level members of paramilitary groups); and (iii) have entered numerous convictions against members of the two main Colombian guerrilla groups (the farc and the eln), including against their highest leaders (although the penalties imposed on the latter have not been yet carried out).15 The establishment of the Special Jurisdiction for Peace (“sjp”) in November 2016 (Government of Colombia & farc, 2016:  152), and the approval of Legislative Act 01/​2017 on 4 April 2017 and the sjp Law in November 2017, make it likely that in the coming years criminal proceedings for international crimes committed by the parties to the Colombian armed conflict will continue in Colombia (Olásolo & Ramírez 2017). The impact of the on-​going preliminary examination of the icc into the situation in Colombia reinforces this conclusion. Criminal proceedings for international crimes in national jurisdictions of territorial states have also taken place outside Latin-​America. In particular, as 15

After the 24 November 2016 peace agreement between the Colombian government and the farc is very unlikely that farc leaders will serve their prison sentences (Olásolo 2017b).

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seen above in Chapter 4, the activities of the icty and the ictr have prompted national proceedings in Bosnia and Herzegovina and Rwanda. As seen above, between 2004 and 2017, around 300 cases for crimes committed during the 1992–​1995 armed conflict have been completed at the trial or appeal level in Bosnia (in more than half of these cases, the defendant pleaded guilty).16 In turn, in Rwanda around 1,300 cases of genocide took place in national criminal tribunals between 1996 and 2001 (Tirrell, 2014: 243). As seen in these examples (which are not intended to be exhaustive), high-​ level, mid-​level and low-​level perpetrators have been investigated and prosecuted by a number of national jurisdictions of territorial states since the end of the Cold War. For the first time in history, some of them, such as Argentina, Bosnia and Herzegovina, Colombian and Rwanda, have carried out criminal proceedings for international crimes in a systematic way for a rather prolonged period of time. Although the number of criminal proceedings for international crimes in any of the above-​mentioned national jurisdictions is higher than in all international and hybrid criminal tribunals together, it is also true that, as shown by the case of Argentina, they have experience significant difficulties of a political and legal (both substantive and procedural) nature. Indeed, in three of the four above-​mentioned national jurisdictions (Bosnia, Colombia and Rwanda), national proceedings were, to an important extent, prompted by the activities of the icc, the ictr and the icty. Furthermore, in the case of Argentina, the role played by the iachr and the IACtHR in the 1990s and early 2000s was essential. The larger scope of criminal proceedings for international crimes in national jurisdictions of territorial states also prompted the United Nations to establish specialized investigative bodies that act in support of national prosecutors, as is the case, in particular, of the un International Commission against Impunity in Guatemala (2007).17 In 2016, the Organization of American States established, at the request of the Honduran government, the Support Mission against Corruption and Impunity in Honduras.18 Nevertheless, even in those national jurisdictions that have been most active, the number of persons investigated and prosecuted for genocide, crimes against humanity and war crimes, barely reaches a very small percentage of the alleged perpetrators (usually less than 1%), including a limited 16 17 18

The Court of Bosnia and Herzegovina:  http://​www.sudbih.gov.ba/​stranica/​31/​pregled [last visited: 30 December 2017]. See supra Chapter 2, fn. 15. oea:  https://​www.oas.org/​es/​sap/​dsdme/​maccih/​new/​mision.asp [last visited:  30 December 2017].

72 Chapter 5 number of senior leaders suspected of being most responsible. A paradigmatic example is the case of Rwanda, in which, according to Tirrell (2014: 143), the 130,000 suspects of genocide who were arrested in 1994 were dealt with in the following manner: 93 were tried by the ictr, 1,300 were prosecuted in Rwandan criminal tribunals and 128,700 were sent to the gacaca community justice mechanism. In turn, in Bosnia, while the icty completed trials against 110 accused persons (although not all cases dealt with crimes committed in Bosnia), 300 accused persons have been tried at the national level. Nevertheless, according to the un Commission of Experts investigating the war crimes in the former Yugoslavia, the 1992–​1995 armed conflict in Bosnia caused 200,000 deaths (151 mass graves, some of them containing up to 3,000 bodies were identified by the Commission). Moreover, around 800 prison camps and detention facilities were set up, in which about half a million people were detained and 50,000 detainees were tortured. The Commission also estimated that around 20,000 cases of rape took place. (un Commission of Experts, 1994)(Bassiouni, 1994, 1995). Furthermore, according to the United Nations High Commissioner for Refugees, 41% of the 4,4 million people living in Bosnia in 1991 became refugees or internally displaced persons in 1992 (unhcr, 1996) (hiwg, 1997). In Colombia, where over 8 million persons (around 15% of the Colombian population) have been a victim of international crimes during the decades-​ long armed conflict, around 200 high-​level, mid-​level and low-​level members and associates (including several dozens of congressmen and governors) of paramilitary groups (responsible for approximately 58% of the crimes; Centro de Memoria Histórica, 2013) were convicted in the last decade. Nevertheless, more than 16,000 requests for the investigation of Colombian security forces members, Colombian State agents and private individuals, that were made in the last decade by the Justice and Peace specialized jurisdiction, are still pending at the Colombian Prosecution Office. Moreover, the convictions for falsos positivos are so far limited to mid-​level and low-​level members of the Colombian security forces (icc Prosecutor 2016c). For this reason, on 7 July 2017, the icc Prosecutor requested the Colombian government to investigate and prosecute twenty-​three generals and six colonels in relation to the alleged falsos positivos committed by their subordinates.19 Finally, the scope of criminal proceedings for international crimes in Argentina, although larger than in Bosnia, Colombian and Rwanda, is also rather limited when compared with: (i) the overall number of international crimes committed during the seven-​years-​long military dictatorship, including 19

See nsnbc (01/​27/​2017). [last visited: 30 December 2017].

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the thousands (or even tens of thousands) of acts of unlawful deprivation of freedom, torture and enforced disappearances (as well as the systematic practice of abduction of new-​borns); (ii) the widespread participation of members of the Argentinean security forces in the execution of a policy designed from the highest levels of command; and (iii) the complicity of broad sectors of the public administration (judges, prosecutors and medical personnel, among others) and civil society (including inter alia businesses, public media and the Catholic church). C

The Scope of Criminal Proceedings for International Crimes in Foreign National Jurisdictions Acting under the Principle of Universal Jurisdiction

By early 1990s, article 23 (4) of the Organic Law of the Judicial Power in Spain (1985) and article 7 of the Law for the Punishment of Serious Violations of the Geneva Conventions and their Additional Protocols in Belgium (1993) included the principle of universal jurisdiction with respect to genocide, crimes against humanity, war crimes and other international crimes, such as torture. On this legal basis, the Spanish Audiencia Nacional initiated the Pinochet case, which together with the approval of the icc Statute and the subsequent process of its implementation in the states parties’ domestic legislation, led to a notable increase in the number of states that adopted the principle of universal jurisdiction (Amnesty International, 2012: 2). As a result, the period 1998–​2008 experienced a significant increase of criminal complaints in foreign national courts against high state representatives for genocide, crimes of crimes against humanity and war crimes (Carnero Rojo, 2015:  41–​54; Ollé Sesé, 2016). Criminal complaints were even filed against several incumbent heads of state or government, including Laurent Kabila of the drc (in Belgium, 1998), Hassan ii of Morocco (in Spain, 1998), Fidel Castro of Cuba (in Spain, 1999, 2007), Hissène Habré of Chad (in Senegal, 2000, and in Belgium, 2005), Ariel Sharon of Israel (in Belgium, 2001), Saddam Hussein of Iraq (in Belgium 2001), Muammar Gaddaffi of Libya (in France, 2001), George Bush of the United states (in Belgium, 2002), Hugo Chávez of Venezuela (in Spain, 2003), Jiang Zemin of China (in Argentina, 2006, and in Spain, 2003) and Paul Kagame of Rwanda (in Spain, 2008), (Carnero Rojo, 2015: 41–​54; Ollé Sesé, 2016; Panakova, 2011: 49 et seq.; Roth Arriaza, 2005). Nevertheless, national criminal proceedings for international crimes under the principle of universal jurisdiction have been, to a large extent, halted by the personal (ratione personae) immunity in foreign criminal tribunals of

74 Chapter 5 incumbent heads of state, heads of government and foreign affairs ministers (icj, drc v. Belgium, 02/​14/​2002: para. 58; ilc, Draft Articles 2014: 229–​237; 2015:  115–​129; 2016:  341–​363; 2017:  177–​187). This type of immunity covers all conduct of state highest representatives while they are in office, regardless of their official or private nature (Akande & Shah, 2011:  817; Damgaard, 2008; Papillon, 2010: 278; Van Alebeek, 2008; Werle 2011). Furthermore, after they leave office, all official activities that heads of state, heads of government and foreign affairs ministers undertook on behalf of the state are covered by their functional (ratione materiae) immunity in foreign national jurisdictions (Akande & Shah, 2011: 826) (Cervell Hortal, 2013). According to the icj judgment in the Yerodia case (icj, drc v. Belgium, 02/​14/​2002: para. 61), there is no customary exception to this rule with respect to international crimes –​ the decision taken by the ilc Plenary on 30 May 2017 to send to its Drafting Committee a draft provision stating that international crimes are an exception to states representatives’ functional immunity in foreign criminal tribunals can be seen as a first step towards overcoming the icj ruling in the Yerodia case.20 Consequently, the question arises as to the meaning of imposing on states the duty to investigate and prosecute international crimes committed by foreign officials (in particular, the highest state representatives), if jurisdictional immunities prevent them from adopting the necessary measures to comply with such duty and provide reparations to victims (Bianchi, 1999: 262–​265). In light of the foregoing, it can be affirmed that, as shown by the rejection of most of the above-​mentioned criminal complaints (only the criminal complaints filed against Augusto Pinochet, Hissène Habré and, to a lesser extent, Jiang Zemin led to actual criminal proceedings) (Panakova, 2011: 49 et seq.; Pérez Cepeda, 2015: 10 et seq.), the investigation and prosecution of heads of state, heads of government and ministers of foreign affairs in foreign criminal tribunals is currently unfeasible in most cases. In this way, recourse to the principle of universal jurisdiction, as a core icl indirect enforcement mechanism

20

The debates held between 2014 and 2016 in the ilc have shown the division between: (i)  those who reject any customary exception to functional immunity because it could undermine international relations, induce accusations based on political motives and raise doubts about the respect of procedural guarantees; and (ii) those others, including Prof. Concepción Escobar (current ilc Rapporteur on Immunity of State Officials from Foreign Criminal Jurisdiction), who affirm the existence of a customary exception to the said rule that renders functional immunity inapplicable with respect to international crimes (ilc, 2014: 229–​237; 2015a: 115–​129; 2016a: 341–​363). Despite this division, on 30 May 2017, the ilc Plenary (21 votes in favour, 8 against and 1 abstention) sent Draft Article 7, which embraces this exception, to the ilc Drafting Committee (ilc, 2017a: 177).

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has, to a large extent, been rendered ineffective (Olásolo, Martínez Vargas & Fernández Polonia, 2016). Furthermore, although article 5 of the International Convention for the Protection of All Persons from Enforced Disappearance (2006), which includes the principle of universal jurisdiction, was approved not that far ago, several national laws that allowed a broader application of the principle of universal jurisdiction (especially, in Spain and Belgium) were reformed in 2003, 2009 and 2014 to severely limit the scope of its application (Canero Rojo, 2015: 55 et seq.; Pérez Cepeda, 2015: 10 et seq.; Panakova, 2011: 61–​64). Faced with the impunity that the highest state representatives enjoy in their own states, international and hybrid criminal tribunals appear as the main, if not the only, operative instance for their investigation and prosecution (Akande, 2004: 417; Ambos, 2013b; Cassese, 2008: 312; Cryer, et al., 2014; Gaeta, 2009: 321; Schabas, 2010). The problem is the limited scope of their criminal proceedings in light the magnitude of international crimes sponsored, or at least consented, by state authorities since the end of the Cold War. Moreover, international and hybrid criminal tribunals have not always aimed at the investigation and prosecution of the highest state representatives, as the cases against high-​level perpetrators have only been a limited part of their case load. Furthermore, the involvement of the states where the crimes have been committed in the establishment and daily activities of hybrid criminal tribunals is likely to constitute an additional obstacle to the investigation and prosecution of their highest representatives by this type of tribunals. This situation, together with the limitations of the personal, temporal and territorial jurisdiction of international and hybrid criminal tribunals, which, except for the icc, cannot extend their investigations and prosecutions beyond the international crimes committed in a given crisis situation, have led to the impunity of most of the above-​mentioned incumbent heads of state or government. The only exceptions are Muammar Gaddafi against whom charges were filed at the icc before he died, Saddam Hussein who was convicted by the Iraqi Special Tribunal in 2006 and Hissène Habré who was convicted by the eac s in 2016 (Carnero Rojo, 2015: 41–​54; Ollé Sesé, 2016; Panakova, 2011: 49 et seq.; Pérez Cepeda, 2015: 10 et seq.; Roth Arriaza, 2005). Furthermore, despite the consistent jurisprudence since 1998 of the icc,21 the icty22 and the scsl23 (Akande, 2009:  342; Ambos, 2013b; 21 22 23

icc Al-​Bashir (3/​04/​2009: paras. 42–​43); Al Bashir (13/​12/​2011: para. 18). icty Blaškić (29/​10/​1997: para. 41); Furundžija (10/​12/​1998: paras. 140 et seq.); Karadžić et al. (16/​05/​1995: para. 24); Milošević (8/​11/​2001: para. 28). scsl Taylor (31/​05/​2004: paras. 50–​54).

76 Chapter 5 Cassese, 2008; Gaeta, 2009: 321; Papillon, 2010: 285) and the ilc’s debates on the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction (current draft article 7 provides for the obligation of states to cooperate with international criminal tribunals as an exception to the immunity of state officials (ilc, 2017:  177), a number of states continue holding that customary international law provides for the personal immunity of incumbent heads of state, heads of government and ministers of foreign affairs in international and hybrid criminal tribunals.24 As a result, the immunity of the highest state representatives continues being a powerful workhorse for icl enforcement with respect to those most responsible for international crimes.25 24

25

The African Union has deeply regretted these decisions since, in its opinion, they are an attempt to: (i) change customary international law on personal immunity; and (ii) make article 98 of the icc Statute redundant and inoperative. Several arguments have been put forward to justify this situation, including the protection of the principle of state sovereignty and international relations, by preventing, to the greatest extent possible, any interference with the exercise of state sovereign functions by its highest representatives (icj, Germany v.  Italy, separate opinions of judges Keith and Benouna). Nevertheless, it is no less true that by privileging these interests one is also favouring the impunity of the highest state representatives in the face of the carcinogenic contamination of their political action, as shown by their involvement in genocide, crimes against humanity and war crimes. Consequently, both the interest of the international society as a whole to investigate and prosecute them and victims’ rights to truth, justice and reparation are left unsatisfied (Cervell Hortal, 2013).

PA RT 3 International Criminal Law and Transnational Criminal Organizations



Chapter 6

How Do Transnational Criminal Organizations Operate? A

Introduction to the Phenomenon of Transnational Crime

Globalisation has generated a global financial system beyond national laws and states control. Financial deregulation has provided an important boost for the expansion of illegal economic transactions, which generate impressive capital flows within the global financial system. In this context, the distinction between lawful and criminal economic activities has become increasingly difficult (Leroy, 1990: 6; Blovich, 2004; Domine, 2007: 83, 87). In today’s global capitalism, networks of capital, labour, information and markets operate by linking people around the world through technology. Those populations and territories deprived of value and interest for modern capitalism are disconnected from its networks (Castells, 1998: 371). As a result, large parts of our cities and regions, and sometimes entire countries (known as the ‘fourth world’), suffer socio-​economic exclusion. Attempts to escape marginality by populations living in these areas have allowed transnational criminal organizations to develop a global criminal economy, which aims at providing illegal goods and services to those who are part of global capitalism (Castells, 1998: 369 et seq.). The only prospect for those living in marginalised environments is to join organised crime, strengthen insurgent groups and participate in global wars, such as those promoted by the United States against terror and drugs. The border regions of many states, far from developing their potential for trade, economic and human exchange, play this role because they have fallen outside the networks of global capitalism (Mantilla, 2009: 581). In these areas, resources, motivations, strategies and discourses of global players converge with the suffering caused by their social, political and economic actions and a high level of violence (Mantilla 2009: 586–​7). The situation in Colombia, as well as the cases of the border regions between Afghanistan and Pakistan, Iraq and Syria, and Algeria and Mali, are good examples of this situation. According to Ramírez (2006:  140) and Mantilla (2009: 589), Venezuela is the state affected most by the armed conflict in Colombia. The border zone between Colombia and Venezuela is the area in which the presence of illegal armed groups is more prominent and the

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 07

80 Chapter 6 actions of the eln against Colombian pipelines have a greater impact. In turn, in the border zone between Colombia and Ecuador the smuggling of weapons, ammunition and explosives has notably increased due to pressure from Colombian illegal armed groups and corruption of Ecuadorian authorities and private companies. Finally, in the Colombian-​Brazilian border, trafficking of chemical precursors and money laundering has become a major economic activity. Brazilian drug traffickers provide weapons and logistical resources to Colombian illegal armed groups in exchange for drugs and protection. Moreover, they buy gold from settlers, gold-​seekers and Amerindians in the gold-​areas of the Vichada and Amazon departments. In this context, as Aristizábal (2007:  95) has stressed, war is fuelled with money, technology, weapons, ideologies and policies coming from outside. Some features and turnarounds of the war waged in Colombia can only be explained by transnational interests that have to do with the post-​cold war order and Colombia’s articulation within the globalised world economy. B

Transnational Criminal Organizations

As economic transactions in banned markets are the epicentre of transnational crime, it is not surprising that organisations dealing with illegal goods and services, such as the Chinese triads, the Colombian criminal gangs (“bacrims”), the Italian Cosa Nostra, the Japanese yakuza, the Mexican drug cartels or the Russian mafia, have become genuine clandestine business structures. They are hierarchically organised and their members cooperate permanently under the principle of division of tasks to operate for profit in banned markets (Ritch, 2002: 571) and achieve stated business goals (Williams, 1996).1 Consequently, transnational criminal organizations consist of professional organisations which carry out illegal transactions for a living and are very familiar with the area in which they operate (Zaffaroni, 1999: 65; Hagan, 1983: 29). They make use of the latest technology and the increasing deregulation of global financial markets. While traditional control mechanisms have become ineffective, they have increased their scope of action so as to be in a position to design authentic global strategies. As a result, at a time where 50 of the top 100 economies in the world are transnational corporations, it is not surprising that transnational criminal organizations have annual profits exceeding the gross domestic product of many states in the world (Aronowitz, 2003: 89;

1 See also, Williams, P. (1996).

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Obokata, 2006: 29). It is estimated that they annually reintroduce in the legal economic flows between 2.17 and 3.61 trillion dollars through money laundering processes. This means between 3% and 5% of the global gross domestic product (Obokata & Payne, 2017: 1). Transnational criminal organizations have been explained through the following four theoretical models: (i) the external conspiracy model, which sees transnational criminal organizations as belonging to immigrant groups alien to the society in which they act; (ii) the bureaucratic model, which describes transnational criminal organizations as pyramidal structures with strict hierarchies that operate according to the principle of division of tasks and apply severe external and internal sanctions for breaches in their codes of conduct; (iii) the illegal company model, which highlights the similarities between transnational criminal organizations that trade with illegal goods and services and companies that operate transnationally in lawful markets; and (iv) the protection model, which emphasizes the control of transnational criminal organizations over some markets and territories, thus acting as de facto alternative governments given the weakness of the states in which they operate (Kleemans, 2014: 33–​37). Although article 2 of the Palermo Convention only requires criminal organizations to have at least three members, transnational criminal organizations usually have the following characteristics. First, they try to present themselves as licit economic enterprises in search for an economic profit (Paoli & Vander Beken, 2014:  14–​15; Obokata & Payne, 2017:  11). Second, they require a structural connection with public authorities (administrative, legislative and judicial) in the business sector in which they operate, as well as with private companies (especially in the financial sector). Due to their close links with political and financial actors in charge of designing and enforcing regulations, transnational criminal organizations need not to resort to legal gaps to carry out their illicit transactions (Kleemans, 2014: 38). As a result, corruption has become an essential element of their activities (Domine, 2007: 96). Third, transnational criminal organizations act through networks so that their members can rely on a web of contact points in a number of states to develop their activities safely. Such networks are characterised by their long-​ lasting structures and the standardisation of their functioning (some scholars have equated them with state bureaucracy) (Domine, 2007: 96). Fourth, transnational criminal organizations have a high processing capacity, which relies heavily on their extensive and flexible networks of contact points. Fifth, they safeguard their business activities by routinely resorting to threats and violence, thus engaging on a daily basis in serious crimes (that is, those punished with a penalty of at least four years of imprisonment). Therefore, it is common

82 Chapter 6 for transnational criminal organizations to have paramilitary structures that undertake threats, extortions, destruction of property, physical assaults and murders against those who interfere with their economic transactions (Paoli & Vander Beken, 2014: 14–​15; Obokata & Payne, 2017: 11). To understand adequately the challenge posed by transnational criminal organizations, the next two subsections engages in a detailed analysis of two of its main manifestations in Latin-​America: Mexican drug cartels and Colombian bacrims. The analysis is made against the backdrop of the substantial and constant changes that transnational criminal organizations are undergoing in Latin-​America. This allows them to position themselves as key strategic actors in the hemisphere with the capacity to reconfigure territorial borders, have an important role in the economy, penetrate political and social structures and threat the progress made in building democratic systems (Garzón: 2012). C

Mexican Drug Cartels and Their Structural Connexion with Public Authorities2

Inter-​ethnic connections or family ties do not explain the trustworthy social relations that have been built between Mexican drug cartels and public authorities in charge of securing social control and administering state coercion. These relationships: (i) have developed over time following a pattern of widespread and normalized corruption, which has allowed Mexican drug cartels to act without the need to use violence until the beginning of the twenty-​ first century; and (ii) are based on stable and illegal agreements, according to which drug cartels provide payments to public authorities or allow them to participate in drug-​trafficking activities. As a result, drug cartels operate in Mexico together with corrupt public officials in a framework of acquiescence, non-​intervention or inadequate state intervention (Paternostro, 1995: 43). Since the activities of drug cartels are transnational, corruption also includes: (i) public officials from across the northern border, as shown by the case of Margarita Crispin, customs inspector in El Paso (us), who was sentenced to 20 years in prison for being involved in cannabis trafficking into the

2 This section is based on section 2.2.3 of the book written by Olásolo, H. & Galain Palermo, P. and entitled “Los desafíos del Derecho internacional penal ante su encrucijada actual: atención especial a los casos de Argentina, Colombia, España, México y Uruguay.” Tirant lo Blanch, Ibero-​American Institute of The Hague for Peace, Human Rights and International Justice & Joaquín Herrera Flores Institute (Valencia: 2018) (in print).

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United States (Medel & Thoumi, 2014: 212); and (ii) us banking and financial entities, which directly participate in money laundering (Paternostro, 1995: 42). This type of situation, where politicians, members of security forces and financial institutions aid drug traffickers, and law enforcement is only superficial, is often referred to as “drug trafficking democracy” (Paternostro, 1995: 43) or “narco-​state” (Rexton, 2016: 49; Brown, 2013: 33). In a narco-​democracy (a notion that has also been used for the situation in Colombia), it is as if there were a state within the state (Paternostro, 1995: 43). As a consequence, the legal and illegal economies are so linked that their disaggregation is likely to cause serious damage to national economy (Rexton, 2016: 53) –​it is estimated that while drug trafficking between Mexico and the United States generates between $18,000 and $39,000 million us dollars per year, legal tourist industry only generates in Mexico around $11,000 million us dollars (Rexton: 2016: 54). The problems posed by drug trafficking is nothing new for Mexico because throughout the twentieth century Mexico has been an exporter of illegal substances to the United States (the world’s largest consumer of contraband substances) (Astorga, 2015; O’Neil, 2009; Medel & Thoumi, 2014:  196). Historically, Mexican policies against drug-​trafficking were based on the “external or foreign conspiracy” theory. In the 1917 Mexican Constitution, which was drawn up in the context of the Mexican Revolution, eugenics and racist ideas were included, which led to the creation of the Department of Health. This institution pursued preventive policies to avoid the “degeneration of the race,” due to existence of different flows of migrants that were bringing a more ethnically-​mixed society about, in which the mestizo was said to have a lower intellectual and moral capacity and a higher tendency to the consumption of drugs (Rodrígues & Labate, 2016: 19). An example of this situation is the 1920 Public Health Department legislation on the use of psychoactive substances, which was entitled “Provisions on the cultivation and trade of products that degenerate the race” (Rodrígues & Caiuby, 2016: 20). Over time, drugs “evolved” from being a problem of “racial degeneration,” to becoming a national security issue, due to the influence of us politics and internal needs. The first international convention on drugs held in the 1960s combined health issues with public security concerns and established the foundations of an overall international prohibition of drugs. This was followed by the so-​called war against drugs, which was unleashed by Nixon in the early 1970s (Andreas et al., 1991: 106) and was later developed by Reagan in the 1980s, intensified military aid and financial support to producing countries. The problem gained geopolitical notoriety with the end of the Cold War. In light of the end of the ideological affinity and political links of Central and

84 Chapter 6 South American guerrilla groups with a disintegrated Soviet Union, large parts of the areas held, or previously held, by these groups were dedicated to growing illicit drugs. This led to a change in the us security policy in relation to Latin America, which focused more on the militarization of the war against drugs in the Andean countries and the implementation of the “shared responsibility” notion during the Clinton administration (1992–​2000). As a result of this approach, the so-​called “Plan Colombia” (1999) emerged to fight Colombian guerrilla groups (especially, the farc) for their participation in drug trafficking (Rodríguez & Caiuby, 2016: 25). This militarized combat against the production and trafficking of drugs in Colombia boosted the activities of Mexican drug cartels, which, due to their connections in Bolivia, Colombia and Peru (O’Neil, 2009: 67), were already us market  already cocaine suppliers, as well as cannabis and heroin producers (Medel & Thoumi, 2014: 206). The decline of the Colombian cartels allowed Mexican cartels to gain control of drug trafficking routes to the us market (Rodríguez & Caiuby, 2016: 26). As a result, Colombian cartels acknowledged in the 1990´s that Mexican cartels imposed the conditions of trade (Medel & Thoumi, 2014: 207). For Paternostro (1995: 42), this has an explanation: the Mexican authorities collaborated and offered protection to Mexican cartels, but not to Colombian ones. Violence has been historically controlled in Mexico by the system of institutional corruption established by the pri, which stayed in power at the national and departmental levels for almost a century (Medel & Thoumi, 2014:  197, 206, 212; Paternostro, 1995). This system has been referred to as “the perfect dictatorship” due to its power to silence dissenting voices through repression (O’Neil, 2009:  65). Until the beginning of the twenty-​first century, the “official” protection offered by the pri to Mexican cartels was subject to two conditions: (i) avoidance of visible violence; and (ii) commercialization of drugs outside Mexico (Ríos, 2015: 1434). In order to implement this “protection for money” agreement, basic rule of law principles were neglected and replaced by a series of political, economic, social and legal arrangements between drug cartels and public authorities. The lack of coordination among the numerous local, state and federal police forces, and between the latter and judicial institutions, facilitated the consolidation of this system. As a result, drug traffickers enjoyed impunity in exchange for maintaining minimum levels of violence and supplying only the us market (O’Neil, 2009). The loss of political power by the pri at the beginning of the twenty-​first century led to the scattering of political power among different political forces with limited control over federal, state and local institutions. This in turn led

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to: (i) the loss of “validity” of former agreements with drug cartels; and (ii) the temporary absence of the corrupt institutional apparatus that for decades had coordinated the actions of state agents in charge of organized crime prevention and repression. This situation, along with the declaration of war on drug cartels by President Felipe Calderón (2006–​2012), caused violence to become the means to “restore order” (Medel & Thoumi, 2014: 212; Ríos, 2015: 1447) with respect to:  (i) the conditions of new agreements between drug traffickers and new public authorities; and (ii) the new distribution of territories and drug trafficking routes (O’Neil, 2009: 65, Ríos, 2015: 1448). As happened in Colombia, Mexican drug cartels created their own paramilitary groups or private armies. As a result, around 10,000 former members of the Mexican armed forces have joined the cartels since 2000 (Medel & Thoumi, 2014: 208). A paradigmatic example of this situation is Los Zetas cartel (known by its extreme forms of violence), which is mostly comprised of former military personnel. The hard-​line policies of President Calderón (2006–​2012) and the implementation by the us and Mexico of the so-​called “Plan Mérida” (2008), which militarized the fight against production and trafficking of drugs in Mexico, served as a breeding ground for the escalation of violence.3 As a result, during Calderón presidency, the number of murders increased from 8,867 in 2007 to 27,199 in 2011 (the average number of murders in 2012 was 21.5 per 100,000 inhabitants, while, until 2007, it had only been 8.1).4 In the Zacatecas region, where different Mexican cartels competed for the control of production zones and distribution routes, the increase of murders during that period reached 405%.5 Furthermore, Mexican Security Forces have directly participated in the “war on drugs” and have engaged in numerous international crimes. 4,841 complaints for torture and ill-​treatment were filed between 2007 and 2011 with the National Human Rights Commission against Mexican Security Forces. 3,855 additional complaints were filed with the Attorney General’s Office between 2012 and 2014. This situation led Amnesty International to affirm the existence of a “torture epidemic” in Mexico. Faced with this unprecedented 3 Some argue that these plans (Colombia and Merida) include: (i) military objectives for the “war on drugs”; and (ii) non-​military objectives for the reconstruction of the rule of law (Paley 2014: 84). 4 See:  https://​justiceinmexico.org/​wp-​content/​uploads/​2015/​04/​2015-​Drug-​Violence-​in-​Mexico​ -final.pdf [last visited:  30 December  2017]. The number of enforced disappearances during Calderón presidency is at least of 12,500. 5 See:  https://​justiceinmexico.org/​wp-​content/​uploads/​2017/​03/​2017_​DrugViolenceinMexico​ .pdf [last visited: 30 December 2017].

86 Chapter 6 escalation of violence among Western states with no armed conflict (Díaz, 2016: 136–​139), the Mexican criminal justice system was barely able to solve 5% of the crimes (Rexton, 2016: 54). The information provided by the Sinaloa cartel to the Mexican authorities during Calderón presidency led to the arrest, murder or extradition of the leaders of several other Mexican cartels. As a result, the Sinaloa cartel gained a dominant position that brought about a slight decrease in violence between 2012 and 2014 (by 2014 the number of murders had fallen to 15,649) (Galen, 2015: 17–​18). Furthermore, in 2012 a new pri government was elected at the federal level which resumed the old policy of furthering agreements with drug cartels to achieve, insofar as possible, a new “pax mafiosa” (Ríos, 2015: 1436). As the heavy-​handed policy of Calderón had caused an uncontrolled increase of violence, the pri returned to a policy of “mediation” between the different actors involved in the large scale violence. Nevertheless, the number of murders increased again in 2015 (7%) and in 2016 (22%).6 Between a third and half of the murders can be attributed to the cartels due to their characteristics, the weapons used, the signs of torture in the corpses and the dismemberment of the bodies (these are methods often used by the cartels to send messages to public authorities and competitors in the drug market).7 Moreover, almost half (48.4%) of the murders were committed in 5 states where the drug trafficking routes are in dispute: Chihuahua, Guanajuato, Guerrero, Michoacán and the State of Mexico.8 This new increase in violence since 2015 may have also contributed to the extradition of the head of the Sinaloa cartel, Joaquín “El Chapo” Guzmán, to the us on 19 January 2017. 89% of the respondents in the 2016 Justice-​Barometer thought that with the implementation of the 2008 criminal justice reform, in which an adversarial procedural system was adopted, some positive change could be reached from a rule of law perspective. Nevertheless, a change of procedural system is very unlikely to bring about per se an improvement in democratic practices and social peace, especially in light of the absence of the economic, social, political and cultural changes that are necessary to stop considering the arrangements between public authorities and drug cartels as a “legitimate” tool. For there to be a justice system that contributes to a long-​lasting social peace, society´s 6 See:  https://​justiceinmexico.org/​wp-​content/​uploads/​2017/​03/​2017_​DrugViolenceinMexico​ .pdf [last visited: 30 December 2017]. 7 See:  https://​justiceinmexico.org/​wp-​content/​uploads/​2015/​04/​2015-​Drug-​Violence-​in-​Mexico​ -final.pdf [last visited: 30 December 2017]. 8 See:  https://​justiceinmexico.org/​wp-​content/​uploads/​2017/​03/​2017_​DrugViolenceinMexico​ .pdf, pp. 22–​23 [last visited: 30 December 2017].

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trust must be deposited in a state that, besides having a monopoly on the use of force that uses with full respect for human rights, acts by means of legitimate bodies, and not in collusion with organized groups that operate outside the law in a system of apparent legality (Paley, 2014: 119).9 D Colombian bacrims The Colombian criminal gangs, known as ‘bandas criminales’ or ‘bacrims’, originated after the partial demobilization of Colombian paramilitary groups between 2003 and 2006. The most significant ones are: (i) the Rastrojos, with close to two thousand members in the departments of Valle del Cauca, Cauca, Nariño, Santander, Norte de Santander, Córdoba, Antioquia, Chocó, Cesar, Bolívar, Sucre, Magdalena and La Guajira; and (ii) the Urabeños, with a similar number of members in the departments of Bolívar, Santander, Norte de Santander, Antioquia, Chocó, Córdoba, Cesar, Sucre, Magdalena and La Guajira (Human Rights Watch, 2015: 168). A first approach to the Colombian bacrims can be found in their definition by the International Crisis Group (2012: 2). According to it, the bacrims are criminal structures with a high corrupting, intimidating and armed power, that combine the production and commercialization of drugs with the violent breach of the rights and freedoms of Colombian citizens in rural areas and in the periphery of some urban centres.: 358) explains that, while not seeking political power, the main goals of Colombian bacrims are to gain economic power and social control in those areas in which they operate through targeted violence. Prieto (2013a) elaborates the characteristics of the bacrims in more detail. For him the Colombian bacrims are: (i) transnational criminal organizations; (ii) built around drug trafficking and other licit and illicit economic activities, such as mining, micro-​extortion and micro-​trafficking; (iii) apparently detached from the Colombian armed conflict; (iv) with a low profile in the urban areas in which they mostly operate; (v) comprised of mostly non-​ military structures, but with the capacity to administer territories and exercise broad social control at the local level; (vi) with the capacity to make transient alliances with guerrilla groups at the national level and with drug cartels and criminal networks at the international level; (vii) with the capacity to infiltrate 9 Corruption continues to be widespread in Mexico, which has a very negative impact on the level of society`s trust in Mexican institutions. The 2016 annual report of Transparency International placed Mexico in the 123rd position out of 176 countries in relation to corruption level. See: https://​www.transparency.org/​country/​MEX [last visited: 30 December 2017].

88 Chapter 6 institutions and corrupt public officials and members of the Colombian Security Forces; and (viii) responsible for a significant number of massacres, homicides, forced displacements, extortion and acts of forced recruitment of minors, among other crimes. With respect to their transnational scope, Prieto highlights that members of the armed and financial structures of the bacrims are constantly present in bordering countries with significant weaknesses in keeping control of their borders, such as Venezuela, Ecuador or Peru (Prieto, 2013b: 187–​194). The bacrims also have close ties with local criminal organizations in countries with a significant role in drug trafficking, as is the case of Mexico. Their contacts and networks also extend to other countries in Central America (Honduras and Panama) and South America (Argentina, Bolivia and Paraguay), where they carry out drug trafficking, arms trafficking, smuggling and money laundering operations. They also have contact points for drug trafficking purposes in Brazil and Chile (Prieto, 2013b:  187–​194). Furthermore, the scope of the activities and influence of the bacrims also include countries in which transnationally traded prohibited goods and services are consumed, in particular the usa and Spain. This is shown, for instance, by the fact that until 2011 more than a hundred members of the bacrims, including some holding leadership positions, have been prosecuted in the south of Florida (Prieto, 2013b: 187–​194). The transnational scope of the bacrims is a real threat to the communities that live in the border areas and cities where they are an important factor of insecurity and a major cause of violence and social control (Prieto, 2013b: 197). According to Human Rights Watch (2015: 168), only in 2014, the bacrims caused the displacement of more than 20,000 people. Consequently, they are considered a major threat to institutions, since their socio-​economic power allows them to bribe officials, interfere in democratic processes, affect the way in which citizens and communities relate to institutions (perpetuating illegal scenarios) and promote backward state policies in social issues, administration of justice and local governance. Moreover, the human and social costs of the activities of the bacrims are very high, due to the high number of homicides, kidnappings for ransom, acts of terror against the civilian population and forced displacement in which they engage, in addition to the public health problems caused in the communities in which they operate by the micro-​trafficking of drugs. The activities of the bacrims have increased in such a way during the last decade that even in the midst of the armed conflict between the Colombian government and various guerrilla groups, the bacrims have been the cause of the highest rates

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of violence in the country. As a result, Rodríguez (2010) includes this type of organizations among the main threats facing Latin America at this time. In light of this situation, Rojas (2011: 358) considers that the bacrims have a direct impact in all aspects of life in the communities in which they operate as shown by: (i) the deterioration of the quality of life due to increasing fear and lower degrees of trust among community members; (ii) the deterioration of democratic coexistence due to greater political disaffection; (iii) the abandonment of the public space; (iv) the increasing sense of urgency and lack of effectiveness of public decisions; (v) the increasing complexities of management and institutional designs; (vi) the withdrawal of private investments; (vii) the privatization of risk-​responses; (viii) the increase of public and private spending on security; and (ix) the reduction of opportunities for development, especially human and sustainable development. E

Final Remarks: The Situation of the Japanese Yakuza

To adequately address the challenges posed by transnational criminal organizations, it is important to bear in mind the real dimensions of their structures, networks and activities, as well as their systemic connection with public authorities, security forces and private companies (especially in the financial sector). Furthermore, one should not forget that while not seeking political power, their main goals are to gain economic power and social control in those areas in which they operate. For these purposes, transnational criminal organizations have paramilitary structures that commit serious crimes (e.g. threats, extortions, destruction of property, physical assaults and murders) against those who interfere with their economic transactions. Given their agreements with public officials and security forces, they operate in a framework of acquiescence, non-​intervention or inadequate state intervention. Despite the high level of violence employed by Mexican drug cartels and Colombian bacrims, their structures, networks and activities are significantly smaller than those of other transnational criminal organizations, such as the Japanese yakuza, the Chinese triads or the Russian mafia, just to give a few examples. In this regard, it is worth-​mentioning to end this chapter the situation of the Japanese yakuza. According to Reynolds (2006) and Smith (2008–​2009: 1116–​1118), by the end of 2006, the yakuza were comprised of around 85,000 members, including 18,000 members of the Yamaguchi-​Gumi, more than 6,000 members of the Simiyoshi-​Kai and more than 5,000 members of the Inagawa-​Kai. The yakuza have a hierarchical and pyramidal structure, which is very similar to

90 Chapter 6 the structure of military organizations and other transnational criminal organizations. They have one supreme leader with his principal adviser, several regional chiefs with their respective assistants and a multiplicity of minor regional sub-​chief with their own assistants. Yazuka members start their ­membership in the organization through a ritual of kinship by which they swear to become “brothers” of the other members. They make a loyalty commitment to the organization through a pact of blood. Once they are members of the organization, they must strictly comply with the own traditions and code of conduct of the yazuka, which means that they do not consider themselves to be antisocial, undisciplined, or even criminal (Gragert, 1997:  162; Kaplan & Dublo, 2003; Seymour, C., 1996). The yakuza can generate up to 50 billion dollars a year in profits through a variety of prohibited activities, including drug trafficking, human trafficking, money laundering, extortion, gambling and a number of lawful businesses. As a result, they have become an important economic power that runs parallel to virtually every institution and industry in Japan. Furthermore, they have been able to directly or indirectly manipulate Japanese politics for decades, having connections to the highest levels of government and bribing officials and members of the state security forces Smith (2008–​2009: 1116–​1118). For a long time, the yakuza enjoyed wide tolerance (and even general acceptance) by the Japanese people, which allowed them to wield their logos openly outside their headquarters. Although the legislation passed in the 1990s tried to stop the expansion of the yakuza, there has not been much progress in identifying their existence as a social problem and the need to design measures to confront them (Kaplan & Dublo, 2003; Reynolds, 2006; Smith, 2008–​2009: 1116–​1118).

Chapter 7

Is International Criminal Law an Appropriate Mechanism to Deal with Transnational Criminal Organizations? A

Initial Approach to the Problem1

Transnational criminal organizations use the latest technology and financial markets deregulation to design global strategies that make inefficient tcl enforcement mechanisms, including:  (i) the harmonization at the national level of the definitions of transnational crimes; (ii) the establishment of dispute resolution mechanisms to resolve conflicts over the extraterritorial reach of national jurisdictions; and (iii) the design of new procedural cooperation mechanisms (Smith, 2008–​2009: 1111 et seq.; Paulose, 2013: 66 et seq.). The 1988 un Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 2000 un Convention against Transnational Organized Crime –​which expanded international policy against drug trafficking to cover new areas, such as confiscation of profits and identification of transnational financial structures for money laundering –​have shown their limitations (Diez Ripolles, 1989: 11; Galain Palermo, 2015: 321 et seq.). As a result, an increasing number of scholars highlight the need to use direct and indirect icl enforcement mechanisms (international and hybrid international criminal tribunals and national jurisdictions acting pursuant to the principle of universal jurisdiction) to investigate and prosecute transnational crimes (Smith, 2008–​2009: 1111 et seq.; Paulose, 2013: 66 et seq.). The Malabo Protocol (2014) follows this approach by providing the African Court of Justice and Human Rights with criminal jurisdiction over a number of transnational crimes (e.g. corruption, money laundering, trafficking of human beings, trafficking of dangerous substances, drug trafficking and illegal exploitation of natural resources) and international crimes (e.g. genocide, crimes against humanity and war crimes).

1 This chapter is an updated version of: Olásolo, H. (2017) ‘Is international criminal law and appropriate mechanism to deal with organised crime in a global society?’ In Van der Wilt; H. & Paulussen, C.  (Eds.) Legal Responses to Transnational and International Crime: Towards an Integrative Approach. Cheltenham: Edward Elgar Publishing. Pp. 50–​70.

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 08

92 Chapter 7 Nevertheless, a second group of scholars reject this position due to the different social values protected by international and transnational crimes, the different characteristics of icl and tcl and the limited reach of current icl enforcement mechanisms (Van der Wilt, 2017: 16–​22). As a result, they underscore the need to strengthen the responses traditionally offered by tcl to deal with transnational crimes (Boister 2017: 48–​49). B

The Distinct Nature of Transnational Criminal Law and International Criminal Law

Transnational crimes involve economic transactions prohibited by law, which concern the supply and demand of illicit goods (e.g. drugs, weapons, cultural property, natural resources, polluting materials and intellectual property), human beings (immigrants, women and children) and services relating to these transactions (money laundering and corruption) (Smith, 2008–​2009:  1111 et seq.). The ban on these goods and services is usually due to their potential economic impact on the states that promote the ban (Boister, 2003: 953 et seq.). Consequently, transnational crimes affect state interest in keeping the regulatory control of goods and services (what can be produced, what can be traded, who can do it, and how transactions should be carried out). Even in relation to the trafficking of human beings, the central aspect of the prohibition lies in the purpose of obtaining, directly or indirectly, a profit, and not in the exercise of rights of property over human beings. 2 This last aspect is only a core element of the definition of the international crime of slavery (Tavakoli, 2009: 77–​98). 3 The second distinctive element of transnational crimes is the transnational element. Bassiouni (2008: 119, 123) defines it as conduct that has transnational

2 See article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, adopted by General Assembly resolution 55/​25, which entered into force on 25 December 2003. See also article 3 of the Protocol against the Smuggling of Migrants by Land, See and Air, adopted by General Assembly resolution 55/​25, which entered into force on 28 January 2004. Both complement the un Convention against Transnational Organized Crime (known as the ‘Palermo Convention’), adopted by General Assembly resolution 55/​25 of 15 November 2000, which entered into force on 19 September 2003. 3 See icty Kunarac et al. (12/​06/​2002: paras. 117, 119, fn. 63). See also Women’s International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery, The Prosecutors and the Peoples of the Asia-​Pacific Region v.  Emperor Hirohito et  al. and the Government of Japan (31/​01/​2002: para. 624).

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implications because it affects more than one state in its planning, preparation or commission, due to the different nationality of the perpetrators or the victims, or because the means employed transcend national borders. According to the definition of the transnational element provided for in article 3 (2) of the un Convention against Transnational Organized Crime, transnational crimes are (i) crimes committed in more than one state; or (ii) crimes committed in a single state as long as:  (a) a substantial part of their preparation, planning, direction or control takes place in another state; (b)  they involve an organized criminal group that engages in criminal activities in more than one state; or (c) they have substantial effects in another state. Nevertheless, save for some exceptions such as article 3 of the 1999 International Convention for the Suppression of the Financing of Terrorism,4 states have not limited themselves to only coordinate their actions in relation to crimes whose commission or effects transcend their borders. On the contrary, through a series of international treaties, states have extended the coordination of their responses to other crimes that, despite not having a transnational element, present a transnational interest.5 Only for the purpose of activating the cooperation obligations of states parties, the effective concurrence of the transnational element is required. As a result, as Boister (2017) underlines, what is intended is to maintain within the scope of tcl those crimes that have the same nature as transnational crimes, but do not exceed the borders of a single state. As transnational crimes affect regulatory controls over certain goods and services (what can be produced and traded, who can do it, and how transactions are to be carried out), tcl is primarily aimed at controlling crime (Nadelmann, 1990: 479). Moreover, it does not limit, in principle, state sovereignty. On the contrary, it seems to reaffirm it because states are particularly jealous of their power to ban those economic transactions that become threatening (Boister, 2003: 953).

4 Article 3 of the 1999 International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations in resolution 54/​109 of 9  December 1999, says as follows:  “This Convention shall not apply where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those cases.” 5 For instance, no transnational element is required by article 3 of the 2003 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, that complements the un Convention against Transnational Organized Crime.

94 Chapter 7 As a consequence, international treaties contain very flexible definitions of transnational crimes (Scholoenhardt, 2005: 345–​353), which allow states to accept them while retaining the ability to interpret and adapt them according to their own national interests (Jenks, 1953: 401). Furthermore, the commission of transnational crimes does not entail criminal liability in the absence of national legislation implementing the relevant international treaty (these treaties are not the basis of criminal liability as they only impose on states an obligation to include transnational crimes in their national legislation) (Enck, 2003: 369–​385; Fijnaut, 2002). From the above it follows that tcl does not establish universal concepts (Nadelmann, 1990).6 By contrast, it contains a number of policy options aimed at controlling transactions of goods and services, which may have an undesirable effect on the interests of some states or certain groups within them. As a result, tcl can be defined as a set of rules without hierarchy that states have specifically created to regulate and prosecute those economic transactions that are of interest for more than one state, because they transcend national boundaries (Boister, 2003).7 As its main purpose is to strengthen the prosecution of transnational transactions through procedural cooperation between states, tcl resorts to international law for three reasons: (i) to secure greater harmonisation of the definitions of crimes at the national level, as a necessary precondition for procedural cooperation between states; (ii) to establish mechanisms to facilitate the resolution of disputes on the extraterritorial application of national jurisdictions; and (iii) to design new mechanisms for procedural cooperation (Boister, 2017).8 Ultimately, what is at issue is to overcome the difficulties of controlling cross-​border economic transactions, because national penal systems are reluctant to tolerate the existence of other national penal systems operating in

6 Outside the Single Convention on Narcotic Drugs (1961)  –​approved on 30 March 1961 and in force since 13 December 1964  –​, the Preambles of these international treaties do not include references to universal moral condemnation or the protection of humanity as a whole, to justify their bans. 7 For Gless & Vervaele (2013), tcl includes all substantive and procedural criminal laws which aim to regulate cross-​border transactions. Nevertheless, this definition is too broad, because it also includes various modalities of international crimes. 8 As Van der Wilt (2014: 318 et seq.) has noted, the extraterritorial application of criminal law is one of the most important instruments against transnational crime, since it allows joint investigations and prosecutions by national jurisdictions of a plurality of crimes committed in, or affecting, several states.

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the same space with regard to the same activity (Boister, 2017) (Braithwaite, 1985).9 This differs fundamentally from icl. According to Osiel (2000: 121), icl aims at prohibiting atrocities, which, for Luban (2004: 90), are the result of the carcinogenic pollution of political action. Otherwise, it is difficult to explain the design and implementation of campaigns of violence that aimed at destroying national, ethnic, racial or religious groups (genocide), launching widespread or systematic attacks against civilians (crimes against humanity), or affecting vulnerable protected persons and objects in armed conflicts (war crimes).10 According to Cassese (2013: 23), these situations of deep crisis of those state institutions in charge of regulating socio-​political interaction, justify the disregard for state sovereignty to end impunity for those who are responsible for the most serious attacks against the essential values of the international society.: 72–​75) justifies the overcoming of state sovereignty on the basis of the application of the principles of security and international harm. According to the security principle, if a state does not fulfil its main function of ensuring the life and physical integrity of its own citizens, it would lose the privileges derived from its sovereignty, and, consequently, the international society would have the right to intervene on behalf of the betrayed population. Nevertheless, the intervention of the international society to ensure icl enforcement can only take place if it has been harmed as a result of very serious crimes, and therefore has an interest in their investigation and prosecution. For May (2005:  83, 83), genocide, crimes against humanity and war crimes comply with this second principle because they are collective crimes insofar as they are committed by institutions or organizations against large groups of victims. For Van der Wilt (2014: 30–​31), the international harm principle is not independent of the security principle. As a result, both the oppression of the state against its own population, and the state inability to protect its population 9 10

Resistance is much greater when there are significant disparities in the protection of human rights, in particular in relation to the scope of due process guarantees. The problem that is rarely mentioned is that despite the current level of scientific and technological development, the twenty-​first century continues witnessing a shocking reality: the majority of states in the international society suffer routinely from these types of situations at the national or regional levels. The fact that half of the population of the world lives on less than three dollars a day has a lot to do with it. See World Bank, ‘World Bank Sees Progress against Extreme Poverty, But Flags Vulnerabilities’, 29 February 2012: http://​ www.worldbank.org/​en/​news/​press-​release/​2012/​02/​29/​world-​bank-​sees-​progress​ -​against-​extreme-​poverty-​but-​flags-​vulnerabilities [accessed 30 December  2017]. See also, World Bank, PovcalNet:  http://​iresearch.worldbank.org/​PovcalNet/​index.htm?1 [accessed 30 December 2017].

96 Chapter 7 against the oppression of organized armed groups, generate the concern of the international society, because it is necessarily harmed by the destruction of the political system of the concerned state (Van der Wilt, 2014a: 35). Consequently, the distinctiveness of icl is the nature of the social values harmed by international crimes, as a result of their violence, their intensity, their scale, their systematic nature, and the vulnerability of those victimised. Other hallmarks of icl are the following:  (i) the response to internationals crimes is provided by the international society as a whole (it is not the sovereign activity of a state, or a group of states acting in concert); and (ii) such response is specifically directed against those leaders who use the power structures at their disposal to plan, instigate, order, facilitate and commit international crimes (referred to as most responsible persons) icl is ultimately distinct from tcl, because it is concerned neither with the use of regulatory powers to ban certain markets, nor with the existence of cross-​border elements.11 As a result, the responses given by icl to international crimes (creation of international and hybrid criminal tribunals and establishment of the principle of universal jurisdiction), are very different from the responses given by tcl to transnational crimes (harmonisation of national penal systems, prosecution in national courts with sufficient connection with the relevant cross-​border transaction and inter-​state judicial assistance) (Esser & Lagodny, 1992). Hence, as Boister (48–​49) and Van der Wilt (2017:  16–​22) point out, it would be a mistake to import into tcl the responses given by icl to international crimes. What is needed is to coordinate the responses that icl and tcl can provide to deal with the criminal activities of transnational criminal organizations in a global society.

11

Genocide, crimes against humanity and war crimes can be found in internal situations, which do not contain any transnational element. For example, an attack on the village of Bogoro (drc) by the fni and frpi militias on 24 February 2003 constitutes the factual basis for the first conviction for crimes against humanity at the icc (icc Katanga, 7/​03/​2014: paras 427 et seq.) Transnational, and even global, campaigns of international crimes can also be found. An example is the world-​wide programme of unlawful arrest and torture implemented by the cia between 2002 and 2006 in detention centres of at least four continents (Poland and Romania in Europe, Egypt in North Africa, Iraq and Afghanistan in Asia, and the Guantanamo base in America). See us Senate Select Committee on Intelligence (2014). See also the dissenting opinion of Judge José Ricardo de Prada in the 17 December 2014 Judgment of Section ii of the Penal Chamber of the Spanish Audiencia Nacional (cia flights case).

Is international criminal law an appropriate mechanism

C

97

Do Some of the Most Serious Acts of Violence by Transnational Criminal Organizations Constitute Crimes against Humanity and Thus Legitimize an International Criminal Law Response?

Given the need to articulate icl and tcl, and in the light of the modus operandi of transnational criminal organizations like the Mexican drug cartels, the Colombian bacrims or the Japanese yakuza, the question arises as to whether some of the most serious acts of violence exerted by these organizations amount to crimes against humanity, and thus legitimize an appropriate icl response. According to Article 7 of the icc Statute, crimes against humanity are characterised by the existence of a course of conduct involving widespread or systematic commission of serious acts of violence pursuant to a state or organisational policy (Gil Gil, 2002: 94). The serious acts of violence referred to in Article 7 of the icc Statute are murder, extermination, enslavement, deportation, forcible transfer of population, arbitrary detention,12 torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, other forms of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on grounds prohibited by international law,13 enforced disappearance, apartheid and other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health. All of these affect with particular intensity one or more essential interests of the victims, such as life, limb, health or freedom (Vanegas, 2011: 60 et seq.). Furthermore, for a serious act of violence to become a crime against humanity, it must be part of a broader context of widespread or systematic violence against a civilian population, carried out pursuant to the policy of a state or an organisation with significant presence in the area in which the violence occurs. When this context is present, the very foundations on which the international society is built begin to crumble dangerously (Ambos, 2013b: 99; Luban 2004). 14 12 13

14

Article 7(1)(e) of the icc Statute refers to: “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.” Article 7(1)(h) of the icc Statute refers to: “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” The need for this context was established for the first time in the Justice case, in which the defendants were found guilty, inter alia, for their participation in the design of the Nacht

98 Chapter 7 Article 7(1) of the icc Statute defines “attack” as a course of conduct involving the multiple commissions of the afore-​mentioned acts of violence in a widespread or systematic manner. Different types of serious acts of violence can be part of the same attack, provided that they share their nature, objectives or consequences.15 The widespread nature of the attack has to do with its quantitative aspect (Werle & Jessberger, 2014), in particular, the number of acts of violence and victims.16 According to the icc (Katanga & Ngudjolo Chui, 1/​10/​2008:  para. 395), an attack is widespread when it either takes place in a wide geographic area, or occurs in a smaller geographical area but a large number of civilians is affected. Furthermore, the widespread nature of an attack may also result from the cumulative effect of a series of inhumane acts, or the impact of a singular inhumane act of extraordinary magnitude.17 When an attack cannot be characterised as widespread, it could still constitute a crime against humanity if it has a systematic nature, because it is comprised of a pattern of violence that aims to achieve a stated goal.18 Serious acts of violence occurring randomly do not meet the requirements of crimes against humanity.19 The victim of the violence is the civilian population, understood as a group of individuals who share certain distinctive features, and whose human

15 16

17 18

19

und Nebel plan, which was subsequently mainly executed by the Gestapo. See Justice Case in Trials of War Criminals before the Nuremberg Military Tribunals under Allied Control Council Law No. 10 (1947–​1953). Vol. 3. ictr Kayishema & Ruzindama (15/​05/​2003: para. 326); Kalijeli (1/​12/​2003: para. 686); icc Bemba (21/​03/​2016: para. 149); Situation in Kenya (31/​03/​2010: para. 98). icc Katanga & Ngudjolo (1/​10/​2008:  para. 397); icc Situation in Kenya (31/​03/​ 2010: para. 96); icc Situation in Ivory Coast (3/​10/​2011: para. 53); icc Gbagbo (23/​11/​ 2011: para. 30); icty Tadić (7/​05/​1997: para. 648); ictr Kayishema & Ruzindama (21/​ 05/​1999: para. 123). icc Situation in Kenya (31/​03/​2010:  para. 24); icty Blaškić (3/​03/​2000:  paras. 203–​ 206); icty Kunarać (12/​06/​2002: para. 95). icc Al Bashir (4/​03/​2009: para. 81); icc Katanga (7/​03/​2014: para. 1113); icty Kordić & Čerkez (22/​02/​2001: para. 179); ictr Akayesu (2/​09/​1998: para. 580); ictr Kayishema & Ruzindana (21/​05/​1999: para. 123); ictr Nahimana et al. (27/​11/​2007: para. 920). The Trial Chambers in the ictr Akayesu (3/​09/​1998:  para. 589)  and icty Blaškić (3/​ 03/​2003:  para. 203)  cases required additional elements such as the use of significant resources or the participation of high-​level state officials. Nevertheless, they are isolated decisions setting too high a threshold for the systematic nature of an attack (Ambos, 2007: 239–​240). See also icc Katanga (7/​03/​2014: para. 1105); icc Situation in Kenya (31/​03/​2010: para. 89); icty Kordić & Čerkez (17/​12/​2004: para. 94); icty Blaškić (29/​ 07/​2004: para. 101); icty Kunarac et al. (12/​06/​2002: para. 94); ictr (Ntakirutimana, 21/​02/​2003: para. 804).

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dignity is at stake (there is no requirement that they specifically share a particular condition, such as nationality or ethnicity) (Luban, 2004: 33). Serious acts of violence against victims randomly chosen do not constitute crimes against humanity.20 The expression “civilian population” shows the collective nature of any crime against humanity, and the defencelessness of victims, who are attacked by states or organisations (icty Tadić, 7/​05/​1997: para. 644). It is not necessary to attack the civilian population as a whole; it is sufficient that the violence is directed against a part of it.21 Article 7(2)(i) of the icc Statute speaks of the need for the attack to be conducted “pursuant to or in furtherance of a state or organizational policy to commit such attack.” The icty Appeals Chamber denied that customary international law required the existence of a policy for the commission of crimes against humanity (icty Kunarac et  al., 12/​06/​2002:  para. 95). Several scholars have also criticized its inclusion in the icc Statute (Ambos & Wirth, 2002:  33; Heller, 2009:  45). Nevertheless, in its Introduction to the Crimes against Humanity, the icc Elements of Crimes elaborate on this requirement by establishing that “ ‘policy to commit such attack’ requires that the state or organisation actively promote or encourage such an attack against a civilian population.” Moreover, the icc Elements of Crimes establishes that “[a]‌policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.” Hence, according to the icc, the policy requirement means that the attack must: (i) be thoroughly organised; (ii) follow a regular pattern; and (iii) be carried out in furtherance of a common policy involving public or private resources.22 Nevertheless, the icc has also stressed that the policy need not be specifically defined or formalised.23 Not only state structures at their national, regional or local levels, but also organisations may design a crime against humanity policy (icc Katanga, 20 21 22 23

icc Katanga (7/​03/​2014: para. 1105); tipy Stakić (31/​07/​2003: para. 627); icty Kunarac (12/​06/​2002: para. 90). icty Tadić, 7/​05/​1997:  para. 644; icty Kunarac, 2/​11/​2001:  para. 425. See also Cryer et al. (2014); Werle & Jessberger (2014). icc Situation in Kenya (31/​03/​2010: paras. 84–​86); icc Situation in Ivory Coast (3/​10/​ 2011: para. 43). icc Bemba (21/​03/​2016: para. 160); icty Kunarac et al. (12/​06/​2002: para. 95).

100 Chapter 7 7/​03/​2014: paras. 1106 et seq.).24 When defining the characteristics that organisations must have for this purpose, the icc has stated that they need not be quasi-​states. It is sufficient if they comply with some of the following characteristics: (i) having a responsible command or a hierarchy properly established; (ii) having the necessary means to launch a widespread or systematic attack against a civilian population; (iii) exercising control over part of the territory of a state; (iv) conducting criminal activities against the civilian population as their main goal; (v) expressing, explicitly or implicitly, their intent to attack a civilian population; and (vi) being part of a larger organisation that meets some of the above-​mentioned criteria.25 Hence, the key criterion for a group to become an organisation within the meaning of Article 7(2)(i) of the icc Statute is its ability to implement policies that aim to commit serious acts of violence against a civilian population in a widespread or systematic manner.26 Therefore, it is not necessary for the group to have a well-​established hierarchical structure, as long as it has 24

25

26

Article 21 of the 1991 ilc Draft Code of Crimes against the Peace and Security of Mankind attributed criminal responsibility without requiring that those incurring in large scale or systematic serious violations of human rights act under the authority of a state. The ilc’s own commentary emphasised this issue by stating that it did not exclude the possibility that private individuals, or organised crime groups, could make the kind of systematic or massive violations contained in its draft code. This understanding of crimes against humanity in light of the nature, intensity, scale and systematic nature of the violence against the civilian population remained in its 1996 ilc Draft Code of Crimes against the Peace and Security of Mankind. Article 18 of the latter expressly referred to acting at the instigation or direction of a government or of any organisation or group. icc Bemba (21/​03/​2016: para. 158); icc Katanga (7/​03/​2014: paras. 1119–​1129); icc Situation in Kenya (31/​03/​2010: para. 43). In his dissenting opinion in the decision authorizing the opening of an investigation into the situation in Kenya, Judge Hans-​Peter Kaul highlighted that the expression ‘organisation’ in Article 7(2)(a) of the icc Statute should be interpreted restrictively. In his view, it should include only those groups that could be considered as quasi-​states because they meet, among other, the following requirements: (1) a plurality of persons; (2) acting with a common purpose; (3) for an extended period of time; (4) with a responsible command or a hierarchical structure; (5) capable of imposing its policy to its members and with the power to punish them; and (6) with the capacity and means to launch a widespread attack against any civilian population. As a result, groups of uncontrolled armed civilians and organised crime groups would not be included within the notion of ‘organisation’ in Article 7(2)(1) of the icc Statute. See icc Situation in Kenya (Dissenting Opinion of Judge Hans-​Peter Kaul, 31/​03/​2010: para. 51). icc Katanga (8/​03/​2014:  1119–​1120); icc Situation in Kenya (31/​03/​2010:  paras. 84–​86); icc Situation in Ivory Coast (3/​10/​2011:  para. 43). See also Kress (2010: 855–​873); Werle & Burghardt (2012: 1151 et seq.).

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a sufficient degree of organisation and coordination, which provides it with the necessary operational capacity to pursue its criminal goals (icc Katanga, 8/​03/​2014: paras. 1119–​1120) (Luban 2004: 31). As seen in the previous chapter with respect to the Mexican drug cartels, the Colombian bacrims and the Japanese yakuza, transnational criminal organizations that engage in economic transactions in banned markets share, among others, the following features:  (i) they use the latest technology, as well as the expansion and deregulation of global financial markets; (ii) they have annual revenues that exceed the gross domestic product of many states; (iii) they try to appear as legitimate economic enterprises; (iv) they actively seek a structural connection with public authorities and private companies; (v) they resort to corruption as an essential element of their activities; (vi) they have the ability to act through networks in multiple states; (vii) they have a high processing capacity; and (viii) they safeguard their economic interests and gain economic power and social control in those areas in which they operate, by routinely resorting to the commission of serious acts of violence, such as murder, serious injury, destruction of property, forced displacement, threats and extortion (Rojas, 2011: 358; Prieto, 2013b: 187–​194). As a consequence, as Smith (2009:  1131) and Kim (2003:  101) have underlined, transnational criminal organizations may constitute ‘organisations’ within the meaning of Article 7(2)(i) of the icc Statute. Moreover, as they routinely resort to the commission of serious acts of violence against those who interfere with their economic transactions, some of their usual ways of proceedings may also amount to crimes against humanity (icc Situation in Kenya, 31/​03/​2010:  paras. 90–​93; Ivory Coast, 3/​10/​ 2011: para. 46) and should receive an appropriate icl response, thus legitimising their investigation and prosecution by international and hybrid criminal tribunals because: (i) states are too weak to shield large groups of its own population against the collective crimes committed by such organisations; and (ii) the resulting destruction of the political system of the states concerned will have an evident impact on the international society as a whole.

PA RT 4 International Criminal Law and Transitional Justice



Chapter 8

Definition and Scope of Transitional Justice: Should It be Applied to Situations of Large Scale Violence by Transnational Criminal Organizations? Special Attention to the Situation in Mexico A

Historical Precedents

Gowder (2014:  226–​228) finds the first tj historical precedents more than 2,400 years ago in Athens, by comparing the different treatment given after their fall to the members of:  (i) the oligarchic regime of the four hundred that governed Athens in 411 b.c.e. (prosecution and imprisonment); and (ii) the regime of the thirty established seven years later by Sparta (amnesty in exchange for leaving power). For Gowder (2014:  232), some of the most relevant policy issues addressed by tj were already at the top of the political agenda in that historical context, including: (i) the need of a nascent democracy to choose between the following two options: (a) the punishment of those who collaborated with the old regime; or (ii) their reintegration in society through forgiveness and forgetfulness; and (iii) the establishment of the rule of law by creating institutions to implement over time of the option that has been chosen. For Arthur (2009: 326), the tj origin can be found in the short-​term measures for institutional reconstruction that were taken as part of the democratic revolutions that took place in Latin America and Europe in the 1970s and 1980s. Roth-​Arriaza (2014: 193) underlines that the type of measures referred to by Arthur were consolidated in the 1990s. By then, such measures were connected to the field of development. According to Roth-​Arriaza (2014: 191), this explains why before 2000, the large majority of tj scholars and professionals did not pay attention to the economic roots of conflicts and the interrelation between distributive justice and other forms of justice. Nevertheless, for McAuliffe (2009: 97), traditional tj discourse has always had a social component because tj has always focused on promoting stable societies, regardless of their economic system.

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106 Chapter 8 B Definition With respect to the definition of tj, UNSG (2004:  para. 8)  has stated that it “[…] comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-​scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-​judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-​seeking, institutional reform, vetting and dismissals, or a combination thereof” (Cárdenas et al., 2014: 34). Consequently, tj scope of application is limited to situations in which large scale abuses have been committed. Therefore, the definition of what is meant by the expression “large scale abuses” is key to (i) determine when tj is applicable; (ii) define tj objectives; and (iii) identify the most suitable measures to achieve them. As discussed in the next chapters, the expression “large scale abuses” has been interpreted in very different ways. For supporters of a liberal approach to tj, large-​scale abuses are only comprised of serious violations of civil and political rights and grave ihl breaches (Arthur, 2009: 326; Dicklitch & Malik, 2010: 515–​530; Little, 1999: 65–​80; Lundi & McGovern, 2008: 104; Rubli, 2012:  3; Waldorf, 2012:  1–​16), whereas for supporters of a social-​ democratic approach to tj, there are other several forms of violence that should also be covered by the expression “large scale abuses,” including serious violations of economic, social and cultural rights, as well as systemic ethnic, racial and gender discrimination (Arbour, 2007: 3; De Greiff, 2012; Fuller, 2012: 369–​386; Oosterveld, 2009: 73–​98; Roth, 2004: 63–​65; Miller, 2008: 266–​291). In turn, critical theory on tj underlines that human rights abuses are the symptom through which structural violence is manifested, and therefore the notion of large scale abuses should also encompass structural disparities in terms of life opportunities among members of a society, which are the result of power relations manifestly unequal among them (McAuliffe, 2014: 93–​94; Nagy, 2014: 216–​217; Thomason, 2014: 71; Young, 2011: 52). In light of the fundamental differences among the various approaches to tj, un Human Rights Council Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-​repetition has highlighted that there is very little consensus among tj supporters on the nature, objectives, scope of application and elements of tj (De Greiff, 2012: 32). This explains the broad and general definition of tj adopted by the unsg.

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The Scope of Transitional Justice: Should Transitional Justice be Applied to Situations of Large Scale Violence by Transnational Criminal Organizations Like in Mexico?

For Benavides (2013: 9), there is an alternative explanation to the lack of specificity of the definition of tj. For him, tj is an ambiguous notion because it applies equally to transitional processes:  (i) from authoritarian regimes to democratic governments; and (ii) from armed conflicts to peace situations (Rodríguez Montenegro, 2011: 53; Teitel, 2003: 69; Uprimny & Saffon, 2005: 214). The consequence of extending the situations in which tj is applicable is that criminal proceedings for international crimes are no longer the corollary of restoring the rule of law and democracy. They are also closely related to the achievement of an authentic social peace through an improvement of victims’ life-​conditions (reparation). Moreover, large parts of the population are now considered as victims because they have been victimized by the structural violence that is at the roots of the conflict (Galain Palermo, 2016: 393; Reátegui, 2011: 36). As a result, for Bickford (2004: 1045), Ambos et al. (2009: 26) and Uprimny et al. (2006: 13), tj also aims at turning forms of social, political and economic organization that in the past have caused large-​scale abuses into new forms of organization of society in which such abuses are not any longer present, or at least do not constitute one of its structural elements. In this context, disagreements among tj scholars are caused by the inclusion in the notion of tj of political, social, economic and cultural elements that go far beyond the legal sphere (Osiel, 2005: 67 et seq.) because, as Fabricius (2016: 227) underlines, prosecution and punishment cannot be the only reaction when there are scarce resources to meet the urgent needs for truth and reparation. The ambiguity of the notion of tj is even greater in light of recent proposals to also include within its realm situations in which, as in Colombia, peace agreements are only reached by some of the parties to the conflict (Benavides, 2013: 9).1 Furthermore, there is an even more recent trend that advocates the application of tj to situations of large scale violence generated by transnational 1 This is the situation in Colombia as a result of the 24 November 2016 peace agreement between the Colombian government and the farc. Peace agreements between some of the parties to the Colombian conflict are nothing new. In the first decade of the twenty-​first century a similar situation took place with respect to the demobilization of a number of the paramilitary groups pursuant to Law 975 of 2005 on Justice and Peace. In the later 1980s and early 1990s similar situations occurred in relation to several guerrilla groups such as the Popular Liberation Army (Ejército Popular de Liberación –​ epl), the M-​19 and the Quintin Lame Front.

108 Chapter 8 criminal organizations (Galain Palermo, 2016). The case of Mexico is a paradigmatic example of this last type of situations (Björnehed, 2004; Medel & Thoumi, 2014; O’Neil, 2009; Rios 2015). In Mexico, there is no internal armed conflict at the national level. Nevertheless, rule of law and democracy are weak nation-​ wide (O’Neil, 2009:  64) because of institutional endemic corruption and significant foreign intervention as part of the “war on drugs” to fight against transnational criminal organizations (Plan Mérida). Therefore, although there is no official acknowledgement of the existence of an internal armed conflict in Mexico, there is a context of violence, with multiple actors that confront each other and commit serious human rights violations (Medel & Thoumi, 2014: 206 et seq.). Under these circumstances, Mexico cannot provide effective physical and legal protection to its citizens.2 According to Carranza (2017:  471 et seq.), state reaction to international crimes committed in Mexico cannot be limited to the punishment of those who bear the greatest responsibility. It should also include a systematic plan against endemic corruption and serious violations of socio-​economic rights with the ultimate aim of rebuilding socially and economically affected communities. For Carranza, this requires the treatment of international crimes in connection with transnational related crimes (such as drug trafficking, money laundering or corruption). Furthermore, they should be dealt with as part of tj because of (i) the crimes committed by state structures with the involvement of state officials as a result of implementing systematic violence against certain groups of the civilian population; and (ii) the existence of a close relationship between state security forces and transnational criminal organizations that control illegal markets (such as Mexican drug cartels),3 and between the 2 In the case of the forced disappearance of 43 students in Ayotzinapa (state of Guerrero) on 26 September 2014, former Uruguayan president, José Mujica, highlighted that in Mexico corruption has been established as a tacit social custom because the corrupt are not frowned upon; they are seen as a winners and splendid gentlemen. Paternostro (1995:  42) had reached the same conclusion twenty years earlier. 3 On the close relation between drug-​trafficking and political and economic power in Latin-​ America, see Bergman (2016). The relationship between state officials and members of transnational criminal organizations follow two main patterns. First, transnational criminal organizations pay state officials for (a) their active participation in the commission of violent crimes; or (b) their inactivity in carrying out their functions of prevention and punishment (e.g. absence of controls at the time of commission of crimes, omissions in their investigation, unjustified delays, transfers of official information to criminals or disappearances of incriminating evidence). Second, state officials may also become true partners of transnational criminal organizations and integrate their criminal structures. The IACtHR

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latter and national information agencies, as shown by the fact that exchanges of weapons for drugs have become a common practice (Galain Palermo, 2016; Fabricius, 2016; Malamud Goti & Beade, 2016).4 Even in the absence of a close relationship between state officials and Mexican drug cartels, the unbearable situation of violence and the serious human rights violations generate a permanent sense of insecurity and terror that paralyzes state structures. As a consequence, when the state intervenes, it seems to have the hidden goal of furthering impunity because, as the IACtHR has underlined in the case of Gonzalez et al. v. Mexico (2009), it is only able to provide a mere appearance of justice.5 In light of this situation, some scholars like Carranza (2017: 491), Fabricius, (2016); Galain Palermo (2016) and Malamud Goti & Beade (2016) are of the view that situations such as Mexico should be included in the scope of application of tj. For them, the combination of criminal proceedings and restorative justice, as well as legal (e.g. administrative dismissals of state officials) and political (truth commissions) mechanisms, seems to provide a better human rights protection than the symbolic claim of prosecution and punishment of all parties to the conflict. underlined in its judgment in the case of González et al. v. Mexico (11/​16/​2009: paras. 274 et seq.), that state obligations to investigate and punish not only include those directly responsible for the crimes, but also corrupt state officials who fail to comply with the duties inherent to their functions of prevention and punishment. In this case, the ICtHR looked into the responsibility of Mexico for the disappearances and deaths of Claudia Ivette González, Esmeralda Herrera Monreal and Laura Berenice Ramos Monárrez, whose bodies were found on 6 November 2011 in a cotton field in Ciudad Juarez. According to the ICtHR, the deaths occurred in a context of systematic violence against women, as shown by the murder of 264 women until 2001 and 379 until 2005. The vast majority of these murders had not been properly investigated by the Mexican criminal justice system. 4 An analysis of the connections between us, British and French intelligence agencies and transnational criminal organizations can be found in Escohotado (1996; 130 et seq.). See also Astorga (2016). 5 The state offers the appearance of prevention by creating institutions and issuing regulations, such as the establishment in the Office of the Attorney General of Chihuahua of the Special Prosecutor for the Investigation of Homicides of Women in Ciudad Juarez. For the IACtHR, these are not sufficient and effective measures to fulfil the state duty of prevention (González et al. v. Mexico, 11/​16/​2009: paras. 279, 282).

Chapter 9

The Tension between Criminal Proceedings for International Crimes and Truth Commissions as Central Elements of a Liberal Approach to Transitional Justice A

Introduction to a Liberal Approach to Transitional Justice

According to Arthur (2009:  326), Dicklitch & Malik (2010:  515–​530), Little (1999: 65–​80), Lundi & McGovern (2008: 104), Rubli (2012: 3) and Waldorf (2012: 1–​16), a liberal approach to tj is based on understanding that situations of large-​scale abuses are those in which serious violations of civil and political rights and grave ihl breaches occur. Only these situations justify transitional processes that aim at ending, or at least, limiting this type of ihrl and ihl breaches. As a result, transitional processes should focus on: (i) the abandonment of those forms of socio-​political organization that prevent the satisfaction of civil and political rights; (ii) the establishment of the rule of law; (iii) the establishment of democratic representation mechanisms; and (iv) the search for an adequate balance between retributive and restorative justice. For these scholars, the debate on the content of the justice component in transitional processes aims to achieve an appropriate balance between: (i)  measures of retributive justice that look into the past to (a)  seek for the truth, (b)  investigate, prosecute and punish those criminally responsible for serious large-​scale abuses; and (c) declare and enforce civil and administrative liabilities; and (ii) measures of restorative justice that aim at promoting a common future that must be based on: (a) the acknowledgment by society of victims’ suffering; (b) victims’ psycho-​social rehabilitation; (c) perpetrators’ acknowledgment of responsibility and request for forgiveness; (d) victims’ forgiveness; (e) perpetrators’ reintegration into communities; and (f) commemorations by society of what happened so that it does not happen again (David & Choi, 2009: 165; Ibarra Padilla, 2016: 245 and 258). Consequently, for a liberal approach to tj, the adoption of measures of distributive justice that aim specifically at providing individual reparations to large groups of victims or at generating socio-​economic changes, exceeds the scope of application of tj (Arthur, 2009: 326; Lundy & Mcgovern, 2008: 104). Moreover, Waldorf (2012: 1–​16) hopes that profound disparities in access to resources and endemic

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marginalization of some human groups will decrease progressively in the medium and long term as a result of the establishment of a more democratic form of socio-​ political organization.: 326) emphasizes that tj cannot include measures for long term socio-​economic transformation because tj should be consistent with its original conception as a set of short-​term measures for institutional reconstruction as part of the democratic revolutions that took place in Latin America and Europe in the 1970s and 1980s. In turn, Rubli (2012: 3) and Lundy & McGovern (2008: 104) consider that tj is an integral part of the liberal model of peace building and therefore it should aim at promoting a neoliberal system of market economy that is contrary to redistribution of wealth or economic equality. A paradigmatic example of this approach is the Spanish transitional process (1975–​1982), which gave rise to the 6 December 1978 Spanish Constitution. Despite defining Spain as a social and democratic state based on the rule of law (article 1), the Spanish Constitution provides a very different treatment for civil and political rights on the one hand, and economic, social and cultural rights on the other hand. The former are enshrined in chapter ii of title ii on “rights and freedoms” and are protected by the administrative and judicial mechanisms contained in chapter iv of that same title. In turn social, economic and cultural rights (including inter alia, the public social security system and the rights to access to health, decent housing, culture and a healthy environment) are not recognized as rights, nor are they protected by the administrative and judicial mechanisms provided for the protection of civil and political rights. They are only included in chapter iii of title ii of the Spanish Constitution as mere “guiding principles of social and economic policy.” B

Initial Approach to the Tension between Criminal Proceedings and Truth Commissions: The Reactions to the 2 October 2016 Referendum on the Peace Agreement between the Colombian Government and the Farc

The tension between retributive and restorative justice can be observed in the different reactions to the unexpected result of the 2 October 2016 referendum on the peace agreement that had been signed a few days earlier between the Colombian government and the farc: 50.2% of the voters rejected its content. Among the reasons given by the “no” supporters, the impunity allegedly granted by the peace agreement to farc leaders stands out (bbc, 10/​10/​2016). According to the “no” supporters, the peace agreement provided for alternative sentences that were significantly lower than the alternative sentences provided in Law No. 975 of 2005 on Justice and Peace (5 to 8 years imprisonment, plus

112 Chapter 9 four additional years of probation) for those members of “outside-​the-​law” armed groups (mainly, but not only, paramilitary groups) responsible for large-​ scale human rights abuses constituting international crimes, who acknowledged their responsibility, collaborated with justice and apologized to victims. “No” defenders reached this conclusion when they realized that, according to the peace agreement, farc leaders (as well as members of Colombian security forces) involved in international crimes would only serve: (i)  “restriction-​of-​rights” sentences consisting of community work for 5 to 8 years; or (ii) “restriction-​of-​freedom” sentences preventing them from leaving a given geographical area (e.g. a municipality) during the said period time. Furthermore, the imposition of any of these two types of sentences on farc leaders did not entail their disqualification to participate in politics or run for office (Colombian government & farc, 09/​26/​2016: 147–​148). Days after the referendum, the first proposals for the renegotiation of the peace agreement were made by the “no” defenders. As a result, consultations were held between the latter and the Colombian government, on the one hand, and the Colombian government and the farc on the other hand, which led to the signature of a new peace agreement between the Colombian government and the farc on 24 November 2016. Nevertheless, despite the rejection of the new peace agreement by the main representatives of the “no” supporters (Clarín, 11/​22/​2016), the Colombian government decided to use its parliamentary majorities to obtain the approval of the agreement by the Colombian Chamber of Representatives and Senate in a record time. Alleging a strong disagreement with what was happening, the members of the main opposition group, the Democratic Centre, left Congress at the time when the last vote in Congress took place on 1 December 2016. This situation of great political uncertainty and deep social division, that has continued in 2017, has been generated largely by the rising tension with respect to the appropriate balance between retributive and restorative justice on the one hand, and criminal proceedings and truth commissions as their core elements, on the other hand. This constitutes the main policy dilemma faced by a liberal approach to tj because both criminal proceedings for international crimes and truth commissions have different strengths and weaknesses. C

Strengths and Weaknesses of Criminal Proceedings for International Crimes

There are several strengths of criminal proceedings vis-​à-​vis truth commissions with respect to the treatment of international crimes. First, the enforcement of

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criminal (and civil) liabilities arising from genocide, crimes against humanity and war crimes, as requested by ihrl, ihl and icl. Second, ending impunity for those responsible for the most serious crimes for the international society as a whole, thus reinforcing trust in the rule of law. Furthermore, new democratic systems need credibility and legitimacy. This can be achieved best by fair and transparent judicial proceedings that aim to establish what happened and who is responsible for what happened. Judicial truth offers greater legitimacy with respect to the determination of individual responsibilities because it is the result of an adversarial process with procedural guarantees, in which strict rules are applied regarding the admission of evidence, the rights of the defence, the principle of presumption of innocence and the standard of proof (Hafner, 1999:  111; O’Connor, 1999:  929; Scharf, 1999: 512; Malamud Goti, 2009: 92). Criminal proceedings also have significant weaknesses vis-​à-​vis truth commissions. First, as seen in previous chapters, their scope of application is rather limited at the national and international levels (Minow, 2014: 208). Second, a number of scholars have shown their concern for an excessive icl emphasis on the investigation and prosecution of the most senior leaders suspected of being most responsible, due to the risk of political use of national, international and hybrid criminal tribunals. This concern is greater in light of their high level of dependence on the cooperation of: (i) national security forces at the domestic level; and (ii) states and international organizations at the international level (Del Ponte, 2008; Margalit, 2010; Peskin, 2008: 170–​186; Vilmer, 2011; Zolo, 2007). Third, focusing criminal proceedings on the most responsible for international crimes creates all sorts of difficulties to successfully conclude peace negotiations and political agreements between parties that have not been defeated politically or militarily (Guembe & Olea, 2006; Moreno Ocampo, 2005; Branch, 2011: 122–​134). Furthermore, as Haskell & Waldorf (2011: 50) and Clark (2014: 187) remind us, these problems are not exclusive to international and hybrid criminal tribunals, but also extend to criminal proceedings for international crimes in national jurisdictions. D

Strengths and Weaknesses of Truth Commissions

Truth commissions also have several strengths vis-​à-​vis criminal proceedings with respect to the treatment of international crimes. First, the broader role given to victims as shown by the listening of their accounts, the acknowledgment of their suffering and the search for restoration of their dignity. Second, the promotion of individual and collective reparations, as well as educational

114 Chapter 9 programs, memorials and projects that strengthen democratic institutions. Third, the identification of social, political and economic circumstances that contributed to the degradation of the society in which international crimes were committed. Fourth, the promotion of a collective memory and a cultural commitment that condemns the crimes (Akhavan, 1996: 271; Hayner, 2001; Minow, 2014: 208–​211; Nagy, 2014: 22; Tamarit, 2012: 74; Wiebelhauss-​Brahm, 2010). In particular, truth commissions facilitate access to a broader knowledge of the circumstances surrounding international crimes because they do not focus on the search for incriminating and exonerating evidence in relation to specific individuals (Fabricius, 2016: 231). Moreover, perpetrators are at a lesser risk of being convicted when they appear before truth commissions and therefore adopt less rigid strategies in their testimony (Malamud Goti & Beade, 2016: 290). Nevertheless, truth commissions also present significant weaknesses vis-​à-​vis criminal proceedings. First, they offer an inadequate treatment of: (i) the structural violence that caused the social degradation in which international crimes were committed; (ii) the socio-​economic effects of violence and their “legalization” through transitional processes (transitional processes rarely reverse the systematic and large-​scale appropriation of resources and property by force or coercion); and (iii) the important role played by foreign intervention (particularly, by the most influential states of the international society) (Jolly, 2001: 623; Hayner, 2001: 75–​76; Nagy, 2014: 224–​226; Mamdani, 1996; Rehn & Sirleaf, 2002). Furthermore, truth commissions do not dispel opposition by influential social, political and economic actors in transitional processes (especially, the leaders of the parties involved in the commission of international crimes), who see the analysis of the past as a latent threat to their position (De Greiff, 2014:  45, 102; Farran & Amago, 2010; Hamber, 1998:  56 et seq.; Lundy, 2010: 101–​133). As a result, as Lawther (2014a: 29–​37) and Rotondi & Eisikovits (2014: 13–​24) remind us, truth commissions often avoid a comprehensive analysis of the past. The Treatment of Structural Violence by Truth Commissions: The Armed Conflict in Colombia as a Paradigmatic Example of Structural Violence and Concerns About the Mandate of the Commission for the Clarification of Truth, Coexistence and Non-​Repetition in Colombia1 Numerous scholars, including Arbour (2007:  3), De Greiff (2012), Fuller (2012: 369 –​386), Oosterveld (2009: 73 –​98), Roth (2004: 63 –​65) and Miller (2008: 266 –​291), argue that in situations of large-​scale abuses of civil and

D.1

1 This section is based on section 3 of the article written by Olásolo, H., Santamaría, J.E., Pinto, C.A. & Zuñiga, M.  and entitled “La tensión entre las dimensiones individual y social del

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political rights there are several forms of violence that take place simultaneously. One of them is the socio-​economic violence that generates serious difficulties to meet the basic needs of the most vulnerable family members of a large part of the population (Arbour, 2007: 3; Fuller, 2012: 369–​386). Another is the endemic social exclusion suffered by numerous racial and ethnic groups, which, as Theidon (2004: 48) points out in relation to the Quechua-​speaking population in Peru, can be noticed as soon as one gets in contact with Peruvian society. Oosterveld (2009: 73–​98) also emphasizes the profound gender differences that afflict numerous societies, which have a significant impact on the narratives of socio-​political conflicts. Sierra Leone and Peru are two good examples of this situation (Theidon, 2004: 143, 145 –​ 146). In light of these multiple forms of violence, McAuliffe (2014: 93–​94), Nagy (2014:  216–​217) and Thomason (2014:  71) have elaborated their notion of “structural violence” in situations of large-​scale abuses. For these scholars, large-​scale abuses are the symptom of structural violence, which is caused by forms of socio-​political organization that are based on power relations manifestly unequal among its members, thus generating significant disparities in terms of life opportunities (Galtung, 1969: 167–​191).: 52) prefers to use the expression “structural injustice” to refer to situations of large-​scale abuses because these situations are the result of social processes that: (i) place large groups of people under the systematic threat of domination or deprivation of those means that they need to develop their abilities; and (ii) place a privileged and small minority in a situation of domination or, at least, provide its members with a wide variety of means to train their talents. Despite the scientific and technological progress experienced since the advent of the Enlightenment and the Industrial Revolution in the second half of the eighteenth century, situations of structural violence are not exceptional in the twenty-​first century. Furthermore, as McAuliffe (2014:  93–​94), Nagy (2014:  216–​217), Thomason (2014:  71) and Young (2011:  52) have pointed out, structural violence often causes violent reactions by those who suffer it, which usually generate even more violent counter-​reactions by those who administer the structural violence (Thomanson, 2014:  71). This often leads to armed conflicts in which the structural violence that generates the conflict and the violence caused by military operations take place simultaneously (McAuliffe, 2014: 93–​94).2: 623) and Rehn & Sirleaf (2002) emphasize perdón a la luz de la superfluidad de las víctimas y los victimarios: Atención especial a la situación en Colombia” (Estudios Socio-​jurídicos, Vol. 21 (2018) (in print)). 2 According to the Uppsala Conflict Data Program 2014, there are around a hundred armed conflicts of low, medium and high intensity in the world nowadays.

116 Chapter 9 that many truth commissions do not address patterns of socio-​economic and gender structural violence –​the final report of the Truth and Reconciliation Commission of Sierra Leone is for Nagy (2014: 224–​225) an exception to this trend, because it addressed gender structural violence in an unusual systematic way.3 Mamdani (1996) also underscores that the South African Truth and Reconciliation Commission constitutes a paradigmatic example of self-​ restriction in the analysis of racial structural violence, because it tried at all times to limit the racial question by treating apartheid policies as a mere backdrop against which individual acts of violence were portrayed as the actual crimes.4 Furthermore, there are very few truth commissions that address the key role of third States in the structural violence leading to international crimes –​e.g. in East Timor, independence from Portugal in 1974 was followed by a 25 years (1974–​1999) military occupation by Indonesia, with the support of Australia, Japan, the United Kingdom and the United States (Nagy: 223). With respect to the situation in Colombia, half of the twelve reports prepared in 2015 by the members of the Comisión Histórica del Conflicto y sus Víctimas used the notion of structural violence (or structural injustice) to explain the causes of the armed conflict in Colombia.5 They did so despite

3 Sierra Leone Truth and Reconciliation Commission:  http://​www.sierraleonetrc.org/​index​ .php/​view-​the-​final-​report [last visited: 30 December 2017]. 4 Mamdani reaches this conclusion after acknowledging other positive elements of the South African Truth and Reconciliation Commission, such as the sectorial hearings held inter alia in medical, legal and religious communities. The value of these hearings has also been highlighted by Dyzenhaus (1998), Boraine (2000) and Rolston (2002). 5 Fourteen scholars were appointed in 2015 by the Colombian Government and the farc as members of the Comisión Histórica del Conflicto y sus Víctimas. Of the 12 reports prepared by them, the notion of structural violence, or structural injustice, was used in the following six reports: De Zubiría (2015). Dimensiones Políticas y Culturales en el Conflicto Colombiano; Estrada (2015). Acumulación Capitalista, Dominación de Clase y Rebelión Armada; Fajardo (2015). Estudio sobre los orígenes del conflicto social armado, razones de su persistencia y sus efectos más profundos en la sociedad colombiana; Giraldo Moreno (2015). Aportes Sobre el Origen del Conflicto Armado en Colombia, su Persistencia y sus Impactos: Pécaut (2015). Un Conflicto Armado al Servicio del Status Quo Social y Político; and Vega (2015). Injerencia de los Estados Unidos, Contrainsurgencia y Terrorismo de Estado. The notion of structural violence was also used by one of the two rapporteurs:  Moncayo Cruz (2015). Hacia la verdad del conflicto:  insurgencia guerrillera y orden social vigente. Nevertheless, there is no reference to such notion in the other six reports of the Commission: Duncan (2015). Exclusión, insurrección y crimen; Giraldo Ramírez (2015). Política y guerra sin compasión; Gutiérrez (2015). ¿Una historia simple?; Molano (2015). Fragmentos de la historia del conflicto armado (1920–​2010); Torrijos (2015). Cartografía del conflicto: pautas interpretativas

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the different interpretations regarding the starting date of the armed conflict, because while some reports place its beginning as early as the 1930s, others delay it until the 1980s, with some intermediate positions that place the start of the conflict at the end of the 1940s or in the early 1960s. As Pécaut (2015: 2) underlines, the armed conflict in Colombia is multi-​ causal. Its start and persistence over time are the result of a deeper social conflict, which is the consequence of an economic and political model imposed by an exclusionary and structurally violent society (Giraldo Moreno, 2015:  42). Although its beginning dates back to the times after the war of independence against Spain  –​where political adversaries were persecuted through national and regional wars (Wills, 2015:  5) –​, its structural nature emerged in the early twentieth century. As political and economic power concentrated in fewer hands, trade unions, which claimed better working conditions, were established at that time in Colombia. The threat posed to the establishment by trade unions, together with the emergence of communism in the international society, led to the design of a so-​called “counterinsurgency” strategy, whose main purpose was to restrain trade unions and peasant socio-​political movements to keep power in the hands of the ruling class (Vega, 2015: 5). The murder of Jorge Eliécer Gaitán, leader of the agrarian reform movement, in 1948 constitutes a central episode in Colombian political history, because it consolidates the armed struggle as a mechanism of social protest for peasant communities (Estrada, 2015: 9; Fajardo, 2015: 30). The political instability of the subsequent period (1948–​1954), known as ‘The Violence’ (La Violencia), led traditional political parties (Liberal and Conservative) to agree on the military government of General Rojas Pinilla (1954–​1957) to regain legitimacy and political stability in the country. This was followed by a period of almost twenty years (1958–​1974), known as ‘National Front’ (Frente Nacional), in which the said political parties agreed to rotate in the presidency (Pécaut, 2015: 18) as a strategy of political and economic control of the nation. The progressive concentration of power, the failure of the agrarian reform and the systematic exclusion and criminalization of the peasant population under the counterinsurgency strategy created the breeding ground for the establishment of the eldest guerrilla groups in Colombia (the farc, the eln sobre la evolución del conflicto irregular colombiano; and Wills (2015). Los tres nudos de la guerra colombiana. The second rapporteur of the Commission did not use the notion of structural violence:  Pinzón Leongómez (2015). Una lectura múltiple y pluralista de la historia.

118 Chapter 9 and the epl) (Estrada, 2015: 28; Pécaut, 2015: 24).6 Their birth in the 1960s was not spontaneous, but a consequence of the historical circumstances of peasant movements and independent republics established in marginal areas of the country with no state presence.7 According to Molano (2015: 50), these guerrilla groups were the main defence mechanism of peasant communities until the 1980s. They promoted peasant representation and political participation.8 The Colombian government resorted to paramilitary groups as a defence strategy against the threat posed by guerrilla groups.9 Since their inception, paramilitary groups have been armed organizations designed to counteract the impact of the activities of the “insurgency.” They have enjoyed the approval of national elites and have had legal coverage (Giraldo Moreno, 2015:  37–​ 39; Centro de Memoria Histórica, 2013: 158–​161). The consequences of their 6 Despite its various ideologies (farc:  Marxism; eln:  Cuban-​ foquism; epl:  Maoism), the political activities of the Communist Party were also an important factor in the creation of these guerrilla groups because they encouraged the struggle of peasant communities living in remote regions of the country. 7 It is important to highlight that other insurgent movements, such as the M-​19, the Quintín Lame Front and the Workers Revolutionary Party (Partido Revolucionario de los Trabajadores, prt), were second-​generation guerrillas that resorted to armed violence as a political tool. 8 During this period there were alliances between communist guerrillas and political parties, such as the Patriotic Union (Unión Patriótica, up). The political representation gained by these alliances in numerous municipalities and remote rural areas was considered a threat by the Colombia state. 9 The rise of paramilitary groups dates back to 1962 with the arrival to Colombia of the Yarborough Mission. In this mission, the United States recommended the establishment of mixed groups of civilians and military personnel to preserve national security. These groups were given a legal status in 1965 and 1968. They were only temporarily suppressed twenty years afterwards by President Barco. Nevertheless, given the Colombian security forces’ limited strength and the threat to national security posed by the several guerrilla groups operating in Colombia, Presidents Gaviria (1990–​1994) and Samper (1994–​1998) provided paramilitary groups with a new legal status by regulating the Peasant Associations for Rural Vigilance (known as ‘CONVIVIR’). Their members were granted the right to use long-​range weapons and carry out intelligence work. In 1997, the Colombian Constitutional Court declared that the Decree establishing the legal framework of the CONVIVIR was unconstitutional. This decision led a large part of these groups (more than 400 CONVIVIR had been established since 1994)  to become illegal. The demobilization of an important part of Colombian paramilitary groups took place during the first mandate of President Uribe (2002–​2006) under Law No. 975 of 2005, on Justice and Peace, that established a system of alternative sentences (5 to 8 years imprisonment, plus four additional years of probation) for those who acknowledged their responsibility, collaborated with justice and apologized to victims.

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actions, often in collaboration with the Colombian security forces, are numerous massacres, kidnappings, extortions and acts of persecution carried out against the civilian population (Centro de Memoria Histórica, 2013: 48).10 The expansion of guerrilla and paramilitary groups since the 1980s is directly related to drug trafficking. Guerrilla groups transformed their political ideology after the arrival of marijuana and coca crops in the country. As a result, the initial legitimacy of the insurgent struggle was followed by a model of economic and military growth that did not correspond to the political and social interests initially represented by guerrilla groups (Giraldo Moreno, 2015: 20–​21). Paramilitary groups also went from a “counterinsurgency” struggle to their involvement in drug trafficking, which in turn was related to the defence of the land of large landowners interested in profiting from this new business. This allowed paramilitary groups to consolidate their terror structures, expand on a national scale, strengthen their political and military relations with state institutions and enjoy high levels of impunity for their acts of violence under a national security paradigm (Centro de Memoria Histórica, 2013:  161–​165; Giraldo Moreno, 2015: 38). Since the 1980s, the persecution of the civilian population and the commission of widespread atrocities against its members became a key element of the Colombian armed conflict, because guerrilla and paramilitary groups fought for: (i) territorial expansion; and (ii) the subjection, on pain of being stigmatized, displaced and massacred, of peasant communities to their economic and military interests, (Giraldo Moreno, 2015: 36–​37). As a consequence, the massacres perpetrated by the farc, the eln, various paramilitary groups and the Colombian Security Forces against the peasant population, as well as the kidnappings and attacks against the civilian population at large, are, according to the Centro de Memoria Histórica (2013: 170–​ 178), the result of drug trafficking and the struggle for territory. Unfortunately, despite the partial demobilization of paramilitary groups in 2005 and the farc in 2017, drug trafficking continues to be the most important source of revenues for those guerrilla groups that continue to be 10

Between 1998 and 2012, almost 2000 massacres occurred in Colombia. In light of the consequences they had on the civilian population, the most representative are the massacres that took place in El Salado (Department of Bolívar), Bojayá (Department of El Chocó), Segovia, Remedios and San Carlos (Department of Antioquia), El Tigre and El Placer (Department of Putumayo), Trujillo (Department of Valle del Cauca), and La Rochela (Department of Santander). They had a severe impact on the social, economic, cultural, religious and political conditions of the affected communities.

120 Chapter 9 mobilized. Drug trafficking is also the main source of income, power and territorial control of the various Colombian criminal gangs (bacrims),11 which, due to the indifference, when not connivance, of Colombian security forces, have recently occupied areas previously held by demobilized paramilitary groups or the farc (Giraldo Moreno, 2015: 39). More than eight million victims of serious crimes12 (most of them amounting to crimes against humanity and war crimes; icc, 2012, 2013, 2014, 2015, 2016b) committed by the parties to the Colombian armed conflict have been registered in the Registro Único de Víctimas  –​this represents approximately 15% of the overall Colombian population –. Furthermore, the armed conflict has ultimately served to accentuate the profound social and political inequalities existing in Colombia. As a result, violence has ultimately favoured the consolidation of economic and political power in the hands of the ruling elite (Pécaut, 2015: 52–​53). The synergy between Colombia and the United States, and their respective ruling classes, has undoubtedly played a very important role in the Colombian armed conflict and its outcome. According to Vega (2015: 54), this synergy has generated a strategic alliance that mutually benefits both sides, while harming a large majority of the Colombian population. As a result, the armed conflict in Colombia responds to an economic rationality that aims at preserving specific economic interests. The increase of the institutional capacity for political and military coercion has proven to be a very effective tool to achieve this goal. In light of this situation, one should be concerned with the limitation to a maximum term of three years of the work of Commission for the Clarification of Truth, Coexistence and Non-​Repetition/​Comisión para la Clarificación de la Verdad, la Convivencia y la No-​Repetición (cctcnr), provided for in the 11

12

The bacrims are paramilitary structures that emerged as a result of the demobilization of paramilitary groups under Law No. 975 of 2005, on Justice and Peace. Their main goal is to gain the necessary territorial control to protect illicit crops and drug trafficking ­networks. At the social level, the effects generated by these criminal gangs are similar, and even worse, to those caused by the parties to the Colombian armed conflict. The reports by Schwam-​Baird (2015), López (2015), Caro & Vélez (2013), Prieto (2013b), Rico (2013) and Pérez & Montoya (2013) give an account of: (i) the impact of the activities and violence of the bacrims on the civilian population; (ii) their growth at a national and international levels; (iii) the threat posed by the bacrims in the Andean region; and (iv) the failure of Law No. 975 of 2005, on Justice and Peace, to bring about the complete demobilization of paramilitary groups. According to the Registro Único de Víctimas, in December 2017 there were in Colombia 8,604,210 victims of serious crimes. The large majority of them (8,270,812) are victims of the armed conflict.

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24 November 2016 peace agreement between the Colombian government and the farc (24/​11/​2016: 138). Such a three years term is very likely to be insufficient to address the patterns of structural violence and foreign intervention that are characteristic of the Colombian armed conflict (Olásolo & Ramírez, 2017). This concern is even greater if the following four circumstances are taken into account. First, the exceptionally long duration of the armed conflict in Colombia and the high number of parties involved in it. Second, the broad territorial scope and high intensity of the violence carried out against the civilian population, which caused over eight million victims. Third, the cctcnr’s mandate to carry out its work on the basis of: (a) a territorial approach, with a view to achieving a better understanding of the regional dynamics of the conflict; and (b) a gender approach that aims at identifying specific characteristics of patterns of violence suffered by girls, adolescents and adult women. Finally, the cctcnr’s mandate to show the various ways in which violence affected different groups in Colombia, placing particular attention on specific forms of violence against children, teenagers, elderly, persons with disabilities, indigenous peoples, peasant communities, religious groups, political groups, afro-​Colombians, Roma population, lgtbi population, internally displaced persons, refugees, human rights defenders, trade unionists, journalists, farmers, cattle breeders, traders and entrepreneurs, among others (Colombian government & farc, 11/​12/​2016: 132, 134–​138; Olásolo, Ramírez and Varón, 2017). The Tension between Furthering Truth Recovery and Protecting Political Commitment: The Cases of Northern Ireland and Spain Lawther (2014a: 29–​37) and Rotondi & Eisikovits (2014: 13–​25) reject the proposition that truth commissions facilitate a look into large-​scale past abuses without constituting a latent threat for senior leaders of the parties involved in the violence. They acknowledged the lack of scientific studies on the correlation between the amount of information revealed by truth commissions and the level of threat experienced by senior leaders during the negotiations leading to a transitional process. Nevertheless, they also underline the likelihood of an increase in the level of threat felt by senior leaders as a result of a more systematic analysis by truth commissions of: (i) the structural violence that caused the social degradation in which international crimes were committed; (ii) the socio-​economic effects of such crimes; and (iii) the key role of foreign intervention.: 56 et seq.), Lundy (2010: 101–​133) and Lawther (2014a:  29–​37) underline the extensive and controversial debates held in transitional institutions (Northern Ireland Affairs Committee, 2005; Consultative Group on the Past, 2009) and in civil society, on the need D.2

122 Chapter 9 to establish a general mechanism for seeking the truth to overcome the political violence experienced in Northern Ireland since the end of 1960s (McEvoy, 2006). If one bears in mind that key actors of the transitional process in Northern Ireland maintain completely different visions of the causes of the violence and the responsibilities that it generated, it is not surprising that the process of recovering the truth is seen more as a scenario of sectarian battle for truth and memory, than as an instrument of reconciliation with the past (Lawther, 2014b). The Human Rights Council Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-​repetition highlighted, in his 22 July 2014 report on Spain, the need to (i) urgently take care of victims’ requests for truth; (ii) establish some mechanisms to make the search for truth official; and (iii) resolve the excessive fragmentation that characterizes the construction of memory in Spain. The Special Rapporteur was especially concerned with the lack of any official registration mechanism for victims and the inability of Spain to provide official data (or official estimates) about the total number of victims of the Civil War and the subsequent dictatorship. (De Greiff, 2014: paras. 45, 102). Furthermore, according to the Special Rapporteur, several issues are still under-​investigated in Spain, including inter alia: (i) prisoners’ forced labour; (ii) stolen children, (iii) different forms of repression, including against women; (iv) the responsibilities of private companies for their active participation or complicity in the commission of serious violations of human rights; (v) deaths in bombardments; and (vi) the consequences of war. In trying to identify the causes of this situation, the Special Rapporteur noted with concern that several representatives of the Spanish Government framed the discussion in the following terms: “either we all agree that we are fully reconciled, or the only alternative is the resurgence of underlying hatreds, which would entail too high a risk” (De Greiff, 2014: paras. 45, 102). The transitional processes in Northern Ireland and Spain also illustrate the strong opposition to acknowledge the “dark truths” about the activities of state institutions and state-​sponsored paramilitary structures (Aguilar, 2001: 92 et seq.). In Spain, the suspension after an attempted military coup on 23 February 1981 of the exhumations of unidentified bodies buried in mass graves during the period 1936–​1975 (the exhumations had been initiated by private initiative of victim’ relatives in 1979) clearly shows this situation (Farran & Amago, 2010). The exhumations only resumed, again by private initiative, almost twenty years later, and despite the elaboration of a Mass Graves Map, following the approval of Law No. 52 of 2007 on Historical Memory, only 500 of the approximately 2,500 identified mass graves had been opened by 2014

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(De Greiff, 2014: paras. 61–​65) –​half of the identified mass graves have been yet opened in December 2017. Furthermore, according to the Special Rapporteur, the “privatization of exhumations” as a result of having left them with the private initiative of victims’ relatives generates the indifference of state institutions, causes Spanish judicial authorities not to go to mass graves locations when their new discovery is reported and impedes the existence of official records of exhumations (De Greiff, 2014 para 66). This situation raises even greater concern if one takes into account that according to the latest report on Spain by the Working Group on Enforced or Involuntary Disappearances of the Human Rights Council (2014:  para. 6):  “Gross violations of human rights were committed in Spain during the Civil War (1936–​1939) and the dictatorship (1939–​1975). As yet there is no official figure for the number of persons who disappeared, since Spain does not have a central database in this area. According to the criminal investigation carried out by Criminal Investigation Court No. 5 of the National High Court, the number of victims of enforced disappearance from 17 July 1936 to December 1951 is 114,226. Since this criminal investigation was for all intents and purposes blocked or undermined, that number could not be reliably confirmed by a court enquiry.” The gravity of this situation is evident when compared with the 9,000 to 30,000 enforced disappearances accounted for in Argentina between 1976 and 198313 and the 3,500 that took place in during the dictatorship of Augusto Pinochet between 1973 and 1989.14 It is in this context that Leebaw’s view can be best understood. For him, the tension between the goal of ending denial and exposing the scope of complicity with international crimes, on the one hand, and the importance of protecting political commitment, on the other hand, is inherent to tj (2008:  95 et seq.). Similarly, Gowder (2014: 232) considers that some of the most relevant policy issues to be addressed by tj are: (i) the need of a nascent democracy to choose one of the following two options: (a) punishing those who collaborated with the old regime; or (b) reintegrating them in society through forgiveness and forgetfulness; and (ii) the establishment of the rule of law by creating institutions to implement over time the option that has been chosen. Furthermore, Lawther (2014a: 29–​37) recounts the political, sociological and practical reasons that justify the opposition to truth recovery processes, including the conflicting views of who the victims are, the importance of honouring past sacrifices and the need to maintain political and social stability. 13 14

conadep (1984). Comisión Nacional de Verdad y Reconciliación de Chile (Rettig Commission) (1991).

124 Chapter 9 For this reason, Roth-​Arriaza (2006) argues that truth commissions are much better designed to find out what happened than to generate common understanding, reconciliation or social change. E

Is It Possible to Articulate Truth Commissions and Criminal Proceedings for International Crimes to Overcome Their Respective Limitations?

Given the limitations of criminal proceedings and truth commissions with respect to the treatment of international crimes, the question arises whether recourse to both types of mechanisms could resolve some of the difficulties described in the previous section. A  number of scholars, including Tejan-​ Cole (2003: 139), Schabas (2006a: 38–​40), Horowitz (2006: 54–​55), Burgess (2006:  200–​201), Cueva (2006:  85–​89), Lutz (2006:  325–​327) and Minow (2014:  210–​211), answer this question affirmatively, underlining that this practice can:  (i) further the restoration of victims’ dignity; (ii) avoid non-​ compliance with ihrl, ihl and icl; and (iii) promote complementarity between a judicial truth that provides greater legitimacy with respect to the determination of individual responsibilities and a broader social, political and economic knowledge of the circumstances surrounding the commission of international crimes. Nevertheless, in order for these beneficial effects to be generated, it is necessary to adequately coordinate the goals and procedures for the exchange of information between criminal proceedings and truth commissions. In South Africa, there was no limitation to the information, which was gathered by the South African Truth and Reconciliation Commission, to be used subsequently in civil and criminal proceedings. In fact, the final report of the South African trc recommended the investigation and prosecution of gross human rights violations for which amnesty was not granted or sought (Olásolo & Ramírez, 2017). The Peruvian case also shows that truth commissions and criminal proceedings may be articulated in a way that truth commissions collect documentation that can later be used in criminal proceedings (Cueva, 2006: 85–​89). The Sierra Leone and East Timor systems show that truth commissions and judicial proceedings may also take place simultaneously in a coordinated manner. In Sierra Leone, such coordination was based on the limitation of criminal proceedings to those most responsible for genocide, crimes against humanity and war crimes (Horowitz, 2006: 54–​55). In turn, in East Timor, there was a clear distinction between the goals of criminal proceedings, namely, declaring

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criminal liability and enforcing sentences, and the goals of truth commissions, namely, furthering the restoration of victims’ dignity and fostering reconciliation through a deeper understanding of the social, political, economic and cultural causes of international crimes (Burgess, 2006: 200–​201). In contrast to the first, a second group of scholars stresses that the articulation of truth commissions and criminal proceedings for international crimes cannot overcome the limitations shown by both mechanisms. Freeman (2006), Maculan & Pastor (2013), Gil Gil (2016) and Nesbitt (2007: 977 et seq.) highlight the need to avoid that any information provided by those responsible for international crimes to truth commissions can later be used in criminal proceedings against those who gave such information. Otherwise, the rights of the defence would be breached and nobody would come forward to give a statement before truth commissions. Following this position, the 24 November 2016 peace agreement between the Colombian government and the farc provides for a strict separation between the Commission for the Clarification of Truth, Coexistence and Non-​ Repetition and the Special Jurisdiction for Peace. The peace agreement highlights the extra-​judicial nature of the truth commission and its activities, which do not consist of the prosecution of those responsible for international crimes. Moreover, the information received or produced by the truth commission cannot be sent to, nor requested by, judicial authorities, including the sjp bodies. Furthermore, such information cannot be used as evidence in civil or criminal proceedings (Colombian government & farc, 12/​11/​2016:  133, 134). Nevertheless, the peace agreement and Legislative Act 01/​2017 do not explicitly prevent the Investigation and Prosecution Unit of the Special Jurisdiction for Peace from using the final report issued by the truth commission for the purpose of generating new evidence (Olásolo & Ramírez, 2017). As a result, if for Tejan-​ Cole (2003:  139), Schabas (2006a:  38–​ 40), Horowitz (2006: 54–​55), Burgess (2006: 200–​201), Cueva (2006: 85–​89), Lutz (2006:  325–​227) and Minow (2014:  210–​211), joint recourse to truth commissions and criminal proceedings for international crimes can allow to overcome some of their respective limitations, provided that they are adequately coordinated, for Freeman (2006), Maculan & Pastor (2013), Gil Gil (2016) and Nesbitt (2007: 977 et seq.) this practice will bring about the end of both mechanisms. In turn, Lawther (2014a:  29–​37), Rotondi & Eisikovits (2014:  13–​25), Hamber (1998: 56 et seq.) and Lundy (2010: 101 et seq.) underline that joint recourse to truth commissions and criminal proceedings do not always allow to overcome the main limitation shown by both mechanisms: the opposition by influential social, political and economic actors in transitional processes

126 Chapter 9 (especially, the leaders of the parties involved in the commission of international crimes), who see truth commissions and criminal proceedings as latent threats to their leadership position Moreover, joint recourse to truth commissions and criminal proceedings does not address the concerns expressed by Hayner (2001: 75–​76) and Nagy (2014: 224–​226) about the inadequate treatment by both truth-​finding mechanisms of: (i) the structural violence that underlies the commission of international crimes; (ii) the socio-​economic effects of international crimes; and (iii) the important role played by foreign intervention. The evidence introduced at trial to proof the contextual elements of crimes against humanity and war crimes could theoretically offer a good opportunity to overcome this last problem. Nevertheless, as Minow (2014: 208–​2011) highlights, the types of documentary evidence and expert testimony that are used to prove the said contextual elements in national, international and hybrid criminal tribunals does not add anything to the information that can be obtained by truth commissions. Consequently, when seeking a broader historical and contextual truth, criminal proceedings will serve, at most, as an alternative truth seeking mechanism in those cases in which truth commissions are not established (this was the case with Law No. 975 of 2005, on Justice and Peace, in Colombia), or chose not to analyse in depth the social, political and economic circumstances leading to the commission of international crimes. Furthermore, with respect to the determination of the role played by the most influential states of the international society in the commission of international crimes, the contribution that can be expected from criminal proceedings carried out by international and hybrid criminal tribunals is uncertain, given the concerns expressed by Del Ponte (2008), Margalit (2010), Peskin (2008: 170–​186), Vilmer (2011) and Zolo (2007) about the risks of their political use by the said states.

Chapter 10

From a Social-​Democratic Approach to Transitional Justice to the Contributions of Critical Theories A

Introduction to a Social-​Democratic Approach to Transitional Justice

For Reátegui (2011: 36), the challenges that societies emerging from authoritarianism or armed violence face are not only those related to the establishment of the rule of law and democratic political institutions. For him, they also extent to the provision of justice for victims of large scale past abuses, the collective and critical acknowledgment of the past and, ultimately, the establishment of material conditions for sustainable peace. In a similar vein, Arbour (2007: 3), Duttie (2008: 292–​309), Mani (2012: 10), Miller (2008: 266–​291), Roth (2004: 63–​65), Addisson (2009: 114) and Musila (2010: 104–​106) do not believe that the establishment of democratic institutions will be sufficient to reduce structural disparities in access to resources and endemic marginalization of some human groups. For them, this can only be achieved if measures of distributive justice specifically designed to address socio-​economic structural violence are taken.1 These scholars find support in the works of Piketty (2013) on the patterns of concentration of wealth in the last two hundred years. He emphasizes that the increase in inequality occurs when the accumulation of capital grows faster than the economy. As a result, it calls into question Kuznets findings (1955, 1973)  on the existence of a direct link between economic development and income redistribution. Piketty also highlights the need for political and fiscal institutions that intervene in the distribution of wealth by: (i) imposing a global tax on wealth; and (ii) taking measures to ensure progressivity in taxes. The works of Aguirre & Pietropaoli (2008: 356), Oosterveld (2009: 73–​98) and Buckley-​Zistel & Stanley (2012) with respect to gender discrimination reinforce the view of those who affirm that the establishment of democratic institutions as provided for in a liberal approach to tj, far from reverting structural violence, consolidates it. Consequently, as Galain Palermo (2016: 393) and Benavides (2013:  9) have highlighted, tj should go beyond the law to 1 See also International Centre for Justice Transitional & International Cooperation Agency of Japan 2008: 7; Muvingi, 2009: 168–​169.

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128 Chapter 10 address a number of political, social, economic and cultural issues, as required by the challenges put forward by the situation in which it is applied. As a result, tj should aim at: (i) strengthening the rule of law; (ii) acknowledging large-​scale past abuses; (iii) healing the wounds generated in society by such abuses; (iv) promoting reconciliation processes with a view to enhance social coexistence through the recovery of trust and cooperation; (v) guaranteeing the rights of victims and society to truth, justice and integral reparation; (vi) fighting against impunity by enforcing criminal and civil responsibilities for the commission of international crimes and other serious violations of ihrl and ihl; (vii) identifying the economic, political, social, religious and cultural circumstances that caused large-​scale abuses and international crimes; and (viii) eliminating progressively these circumstances and the value-​systems associated with them (Ardila, 2007). B

The Tension between Individual and Collective Elements of Reparation Programs

Among supporters of distributive justice as an integral part of tj, there are different views on the scope of the measures that should be adopted to address the socio-​economic causes of large-​scale past abuses. Addison (2009: 114), De Greiff (2009: 28) and Duttie (2008: 292–​309) are of the view that distribute justice measures should be articulated in a sensitive way to market economy development processes. Therefore, programs of individual reparations to large groups of victims and measures of long-​term socio-​economic transformation should be avoided because they are likely to have a negative impact on such development processes. Otherwise, the probable lack of effective implementation of this type of distributive justice measures is likely to generate a general loss of trust in tj mechanisms. Nevertheless, a second group of scholars underlines the insufficiency of this “sensitive articulation” between distributive justice measures and market economy development processes. For Arbour (2007:  3), tj should aim at turning oppressed societies into free societies by showing the systematic violation of economic, social and cultural rights and the long-​standing discrimination practices that take place before and during armed conflicts. Miller (2008: 266–​291) is also of the view that tj should aim at achieving economic justice by (i) addressing the economic roots of the conflicts; and (ii) limiting liberalization processes through distributive justice measures and development programs. Finally, Muvingi (2009:  168–​169) emphasizes the need for tj to comprehensively address the various types of injustices suffered by societies emerging from conflict.

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The different views held by supporters of a social-​democratic approach to tj can also be observed with respect to individual and collective elements of reparation programs for large-​scale past abuses. The individual elements involve the acknowledgment of the specific damage inflicted on each of the victims as a subject of rights, which is particularly important when victims have been treated as undifferentiated masses. The collective elements aim at acknowledging the damage inflicted on certain communities, including the deterioration of their social cohesion and collective identity. They also aim at re-​establishing trust, cooperation and solidarity among community members (Roth-​Arriaza, 2014: 194, 195). The icc Prosecutor has sought to extent the collective elements of reparation programs to groups of victims who only have in common:  (i) the type of violence that they have suffered (e.g. victims of sexual crimes committed during an armed conflict or child soldiers); or (ii) the locality or region in which they reside (icc, Lubanga, 3/​3/​2015: para. 33). The individual elements of reparation programs have a number of strengths vis-​à-​vis their collective elements. The following have been highlighted in icc proceedings: (i) they acknowledge the individual harm caused to victims and attend to their personal needs; (ii) they are especially appropriate for: (a) victims participating in judicial proceedings because they acknowledge the risk assumed by them; (b) victims suffering long-​term serious physical or mental damage or endemic marginalization; and (c) victims who do not form cohesive groups or communities; (iii) they reinforce victims’ feeling that justice has been done; (iv) they promote the use of the existing resources to repair the specific harm suffered by victims (resources are not thus diverted for other purposes); (v) they avoid several problems posed by the collective elements of reparation programs, including management problems and inequitable distribution or resources; and (vi) they restore a balance of power in the family and in social relations at the local level, by empowering members of marginalized groups such as women and indigenous people.2 The collective elements of reparation programs have also a number of strengths vis-​à-​vis their individual elements. The following have been mentioned in icc proceedings: (i) they are more appropriate when only a small number of victims are participating in judicial proceedings because they avoid granting reparations only to such victims; (ii) they avoid tensions in communities in which only some have received individual reparations; (iii) they save 2 icc Lubanga (7/​08/​2012: paras. 42–​51); icc Katanga [Registry] (15/​12/​2014: para. 30); icc Katanga [Legal Representatives of Victims] (27/​01/​2015: paras. 30, 41); icc Katanga [Office of Publica Counsel for the Defense] (15/​05/​2015: para. 99).

130 Chapter 10 the time and resources needed to identify individual victims; (iv) they promote reconciliation among community members; (v) they facilitate the reintegration of perpetrators in the communities; and (vi) they avoid the risk of re-​victimization as a consequence of the shame and social stigma that victims requesting individual reparations may suffer.3 As Roth Arriaza has highlighted, one should not focus on choosing between individual and collective elements of reparation programs (Roth Arriaza 2014:  194). On the contrary, the emphasis should be on understanding their respective strengths and weaknesses and combining them in a sensitive way to the cultural identity of victimized communities. Consequently, an excessive emphasis on either of the two elements is problematic (Roth Arriaza, 2014: 194). Nevertheless, the high number of victims, together with the scarcity of resources made available to reparation programs (which is due, to a large extent; to the lack of enforcement of civil liabilities for large-​scale past abuses, the absence of tax measures aiming at obtaining such resources and the refusal of the international society to provide resources for individual reparations), have led to a greater emphasis on the collective elements of reparation programs. As a result, the individual elements have lost relevance and sometimes have even been relegated to oblivion. Rules 97 (1)4 and 98 (3) 5 of the icc rpe are a good example of this situation. This situation can also be observed at the domestic level, as shown by the Comprehensive Reparations Policy in Peru (which was designed to address the destruction of infrastructures and traditional power structures in indigenous communities and villages)6 and the Colombian Integrated System of Truth, Justice, Reparation and Non-​Repetition provided for in the 24 November 2016 peace agreement between the Colombian government and the farc (24/​ 11/​2016:  180–​181) (Olásolo & Ramírez, 2017). Other national reparation programs, such as those established in Guatemala (Roth-​Arriaza & Orlovsky, 2011:  551–​552) and Morocco (International Centre for Transitional Justice, 2008) also follow this trend. 3 icc Katanga (7/​08/​2012: paras. 44–​49, 64); icc Lubanga (9/​03/​2016: paras. 38–​39). 4 Rule 97 (1) of the icc rpe provides as follows: “Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.” 5 Rule 98 (3) of the icc rpe provides as follows: “The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.” 6 Article 7 of Law No. 28592 of 2005 sobre la Creación del Plan Integral de Reparaciones.

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The Notion of Superficial Transition

Not all scholars agree with the social-​democratic paradigm of distributive justice. As seen in c­ hapter  9, it finds strong opposition among supporters of a liberal approach to tj because it exceeds the scope of application of tj (Waldorf, 2012: 1–​16, Arthur, 2009: 326, Rubli, 2012: 3, Lundy 2010: 104). It is also rejected by critical theories because they consider that distributive justice measures are insufficient to deal with situations of structural violence, and thus their application often leads to “superficial transitions” (McAuliffe, 2014: 103–​105; Nagy, 2014: 216 -​217; Thomanson, 2014: 78–​80; Young, 2011: 52). Supporters of a critical theories approach to tj claim that transitional processes should be used to abandon those forms of organization of society that create social, political, economic, religious and cultural structures that perpetuate violence and injustice (McAuliffe, 2014: 103–​105; Nagy, 2014: 216–​217; Thomanson 2014: 78–​80; Young, 2011: 52). Furthermore, for these scholars, situations of structural violence do not only take place in authoritarian regimes and armed conflicts, but they can also be found in democratic systems and developed societies, despite their higher technological development. As Young underlines, despite the “high standards” of life that an important part of the population enjoys in these societies, a significant percentage is unable to access decent housing (Young, 2011: 52). The same can be said of those who suffer daily discrimination for reason of their gender, age, nationality, ethnicity, sexual orientation or disability. The works of Aguirre and Pietropaoli (2008: 356), Oosterveld (2009: 73–​98) and Buckley-​Zistel & Stanley (2012) with respect to gender discrimination and the adoption of tj measures by Australia and Canada to redress decades-​ long ill-​treatment of aboriginal communities confirm this situation (Anker, 2014:  245–​268; Philips 2014:  81–​92; Nagy, 2013:  52)  –​among the tj measures adopted by Australia and Canada the following are worth mentioning: (i) public requests for forgiveness made by the Australian and Canadian prime ministers in 2008;7 (ii) legal recognition of aboriginal collective 7 The speech given by Prime Minister of Australia Kevin Rudd on 13 February 2008 in the Federal Parliament of Australia, in which he offers his apologies to the aboriginal peoples can be found at: http://​www.australia.gov.au/​about-​australia/​our-​country/​our-​people/​apology-​to​ -australias-​indigenous-​peoples [last visited: 29 December 2017]. The text of the public apology offered on 11 June 2008 by the Canadian Prime Minister, Stephen Harper, to the indigenous peoples of Canada, can be found at: https://​www. aadnc-​aandc. gc. ca/​eng/​1100100015644/​ 1100100015649 [last visited: 29 December 2017].

132 Chapter 10 property in Australia8; and (iii) the 2015 final report of the Canadian Truth and Reconciliation Commission on the Indian residential school system that operated between 1870 and 1996.9 Hence, for McAuliffe (2014:  103–​105), Thomanson (2014:  78–​80) and Young (2011. 52), the main goal of transitional processes is not to move from authoritarian systems or armed conflicts to democratic systems or peace situations. On the contrary, for these scholars, the ultimate goals of transitional processes are:  (i) to reform, or even abolish, those institutions and power structures that are at the roots of structural violence; and (ii) to establish and consolidate new institutions that put an end to economic, social, political, cultural and religious marginalization (McAuliffe, 2014: 103–​105; Thomanson, 2014:  78–​80). Otherwise, “superficial transitions” will be the best result that could be achieved through transitional processes (McAuliffe, 2014: 103–​105). D

The Main Issues of Transitional Justice: When, How and Why

Nagy (2014: 218, 224) emphasizes that the main issues that tj should address are the following: (i) when is someone responsible?; (ii) who is responsible?; and (iii) why is someone responsible? With respect to the first issue, tj is, in principle, applied when situations of large-​scale abuses come to an end. tj works as a bridge between a repressive past and a peaceful and participatory future. The expressions “breaking with the past” and “never again” are indicative of this situation. Nevertheless, for Nagy (2014: 219), this approach is problematic because as shown by the South African case: (i) the continuity of violence and exclusion is relegated to the background (the “new South Africa” promoted by the Truth and Reconciliation Commission was very resistant to acknowledge that police human rights violations, political violence, huge socio-​ economic disparities between the white minority and the black majority and generalized racism and xenophobia, continued in the 1990s) (Lalloo, 1998: 438; Nagy, 2004: 709); and (ii) the consideration of transitional processes as a break with the past denies the domestic violence suffered by 8 See:  Native Title Act (1993). Available at:  http://​www. austlii. edu. au/​au/​legis/​cth/​consol​ _act/​nta1993147/​. See also the amendments introduced in 1998, available at: http://​www​ .austlii. edu. au/​au/​legis/​cth/​consol_​act/​ntaa1998227/​. 9 Truth and Reconciliation Commission of Canada: http://​nctr. ca/​reports. php [last visited: 30 December 2017].

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many women in militarized societies, which increases after their military partners return home (the latter’s need to retake control at home and their feeling of displacement, disempowerment and unemployment explains this situation) (Dugan & Abusharaf, 2006: 627; Ní Aoláin, 2006: 848; Chinkin & Charlesworth, 2006: 946). In relation to the second issue, Nagy (2014: 220) underlines that tj is almost always applied to non-​Western countries, and thus it is vulnerable to criticism about the alleged universalism of human rights, which is nothing other than the consideration of the Western perspective as a universal one and its imposition on the rest of the world (Smith & Fitzpatrick, 2002: 1–​15). As a result, the role of foreign (often Western) intervention in situations of large scale abuses and international crimes is not dealt with by truth commissions and criminal proceedings carried out during transitional processes (Nagy, 2014:  223).:  863) highlights the erroneous impression given by the majority of the doctrine when portraying that large scale abuses and international crimes are exceptional and concluding that genocide and crimes against humanity are not an issue in liberal and democratic states. Nevertheless, this approach does not correspond to reality as shown by the 1997 report on the separation of Aboriginal children from their families in Australia entitled Bringing Them Home (Orford, 2006:  854). Similar systems of ill-​treatment are found in more recent reports of the Canadian Truth and Reconciliation Commission (2015) and the Maine-​Wabanaki State Child Welfare Truth and Reconciliation Commission (2015). Finally, in relation to the third issue, Nagy argues that, as human rights theory and practice tend to leave economic, social and cultural rights in the background, in the same way structural violence is usually peripheral to tj (Nagy, 2014:  223–​224). The case of South Africa is again a good example of this situation, because the deliberate depoliticized chronicle of acts of violence contained in the trc final report left in the background: (i) legally accepted practices of apartheid, such as torture, murder and terror; and (ii) daily victims of poverty and racism (Nagy, 2004: 1).) have also highlighted with respect to gender violence that an excessive emphasis on the most serious incidents of political violence (which usually undermine the most basic civil and political rights) makes invisible: (i) the violence experienced by women on a daily basis in unequal societies with a high degree of militarization; and (ii) the innumerable economic and social damages suffered by women, especially widows both during situations of political repression and armed conflict and once they have ended (Franke, 2006:  822; Park, 2006: 316).

134 Chapter 10 E

The Relationship between Transitional Justice and Development: Particular Attention to the Un Millennium Development Goals

The high number of victims of large-​scale past abuses and the scarcity of resources available for reparation programs, have not only generated a greater emphasis on their collective elements, but have also provoked in turn, a gradual shift from collective reparations to measures that imply the provision of services for large groups of the population. As a result, reparation programmes overlap with governmental development efforts (Roth-​Arriaza, 2014: 189; icc Lubanga, 12/​7/​2012: 42, 44, 47). Several examples of this overlap can be found in the reparation measures agreed between the Colombian government and the farc. For instance, the implementation of plans and programs that develop the Comprehensive Rural Reform is considered a form of reparation. Furthermore, collective processes of return and relocation of displaced people must be carried out in coordination with the Integral Rural Reform (Government of Colombia & farc, 12/​11/​ 2016: 179–​181). Likewise, in application of the Comprehensive Reparations Policy in Peru, sums of one hundred thousand Peruvian soles (about $33,500 us dollars at the time) were delivered to about 450 indigenous communities and villages, so that they could carry out development projects such as the improvement of irrigation and water infrastructures, electrification, schools, roads and the establishment of computer and tourist information centres (Law No. 28592 of 2005:  article 7; aprodeh & International Centre for Transitional Justice, 2009). Similarly, the Equality and Reconciliation Commission of Morocco has provided funding for the implementation of infrastructure projects in victimized communities and the building of schools, clinics and women centres (International Centre for International Justice, 2008). Moreover, Guatemalan reparation programs provide funding for:  (i) women’s creation of new economic project; and (ii) projects for the improvement of health, education and housing services in affected communities (Roth-​Arriaza & Orlovsky, 2011: 551–​552). From a social-​democratic approach to tj, Hamber (2006:  580) warns against the risk of using goods and services (which are not exclusively aimed at victims who have the right to reparation) as the main or even the only reparation measure. In particular, he warns against the risk that victims may not consider that their right to reparation have been satisfied, because the goods and services provided also benefit groups of the population that, although

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historically neglected, have not been victimized by political repression or armed conflict. Likewise, De Greiff (2006:  451) warns against the risk of allowing states to label as “reparations” what they have to do anyway as part of their development agenda.:  194) is of the view that the overlap between collective reparations and development programs is generating various conflicts. First, economic theories that see in free trade and free capital markets the true engine of development require the elimination of tariffs and the adoption of fiscal balance and austerity programs that generate favourable conditions for foreign investment. This, however, often comes into conflict with the additional revenues that are necessary to implement reparation programs for large-​scale past abuses. Second, given the limited resources available, tensions arise between: (i) the urgency of adopting public spending measures to activate economic activity and renovate deteriorated infrastructures; and (ii) the impossibility of implementing reparation programs if resources are not preserved for this specific goal (Roth-​Arriaza, 2014: 194). Critical theories do not advocate a strict separation of development agendas and individual and collective reparation programs. The overlap between them is seen as positive as long as it can promote the necessary transformations in the economic, social, political, cultural and religious institutions that are at the roots of structural violence (Roth-​Arriaza & Orlovsky, 2011: 523–​528; United Nations Entity for Gender Equality and the Empowerment of Women, 2012: 8–​11, 16–​18). Nevertheless, what critical theories fully reject is to link reparation programs and tj to neoliberal development agendas, such as the un Millennium Development Goals (Rittich, 2014: 165–​185). For financial institutions, development is understood as the process of integrating local and national actors into global markets through strategies that promote trade, liberalization of capital markets, and legal regimes that treat well investors. Only in this way, they affirm, will economic growth be generated. Without economic growth, the social issues addressed by the un Millennium Development Goals cannot be adequately addressed (Sachs & Warner, 1995: 1–​118). However, Stiglitz (2008), Rodrik (2008) and Ohnesorge (2007:  219) have stressed that this approach is very controversial among economists today. The comparison between the results achieved with the orthodox measures adopted in Latin America in the 1980s, and the protectionist experiences of countries like Japan and South Korea in North-​eastern Asia, have weakened the position of those claiming that market-​centred development policies automatically bring about economic growth and improvement in social welfare. Consequently, these scholars are of the view that, although greater market liberalization can increase economic growth, the benefits derived from it are

136 Chapter 10 sometimes oversized and at other times they are simply erroneous. Therefore, the relationship between economic growth and the goals of reducing poverty, increasing gender equality and promoting environmental sustainability is uncertain (Stiglitz, 2008; Rodrik 2008). In this context, Rittich (2014: 174) warns against the likelihood that trade liberalization and financial transactions will not only be neutral, but will have adverse effects on some of the millennium social goals. In his view, this conclusion can be reached from the following two conditions: (i) the Asian markets crisis in 1997 and 1998 showed the contagion risk existing in liberalized financial markets; and (ii) despite the numerous studies made on this issue in the last twenty years, no change has been made in the formulation and assessment of the un Millennium Development Goals (Cornia, Rolly & Stewart, 1987; Stiglitz, 2002). For this reason, Thakura (2008) highlights that it is understandable how countries like India, where impressive economic growth has come hand in hand with a significantly greater economic insecurity for large sectors of its population, have avoided decreasing agricultural subsidies for fear of the negative consequences it can have for those who depend on production in this sector. In turn, Mickelson (2000: 52) and Roberts & Parks (2003) are of the view that the lack of progress in establishing binding international environmental protection has been mainly caused by the following two reasons: (i) the suspicion with which proposals for new regulations are seen in a context of international deregulation; and (ii) the priority that is being given to the exploitation of natural resources as a strategy for economic growth (Shihata 1997).10 Nevertheless, the content and measurement standards of the un Millennium Development Goals do not seem to have been altered by these results. According to Rittich (2014: 177), this situation is due to fact that the actual relationship between growth, on the one hand, and poverty, inequality and the environment, on the other hand, is irrelevant. What really matters is the adoption in the un Millennium Development Goals of the standard understanding of global governance to promote economic growth through greater market liberalization and deregulation of financial transactions. The same happens, in his view, with the measurement indicators, and their selection process (Rittich, 2014: 177). Hence, the fact that this situation generates strong internal tensions between the different Millenniums Goals, and excludes a 10

Sell (2003) also reminds us that the standardization of intellectual property rules at the request of the pharmaceutical industry in 1994 has made the fight against aids much more difficult and expensive.

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wide range of heterogeneous rules, institutions and strategies that have shown their potential, becomes totally irrelevant (Rittich, 2014: 174–​175). It is in this specific context that tj critical theories reject any link between reparation programs, or any other tj measure, and the un Millennium Development Goals. F

Final Remarks

There are significant differences among the various approaches to tj, which start from the interpretation of what is understood by situations of large-​scale past abuses in which tj is applicable. While for a liberal approach to tj, the notion of “large-​scale abuses” is limited to serious violations of civil and political rights and grave ihl breaches, a social-​democratic approach to tj extends this notion to include other forms of violence that take place simultaneously, such as socio-​economic, ethnic-​cultural and gender violence. Finally, critical theories on tj consider the existence of large-​scale abuses as a mere symptom of a much broader structural violence which is due to manifestly unequal power relations among members of society. Each of these interpretations has led to a fundamentally different approach to tj that has impeded any kind of consensus on its scope of application, goals and content of its elements. This, in turn, has led unsg to adopt a broad and general definition of tj. In light of the above-​mentioned, a lot of dialogue and openness to reach compromises is required to achieve a minimum degree of consensus. Nevertheless, if as Rittich (2014: 177) underlines, what is at issue here is not the analysis of the merits (or demerits) of the results obtained with the application of different approaches to tj, but to make tj fit into a neoliberal model of economic growth and global governance, the most that could be achieved in the short term is an “imposed consensus,” under which even greater differences will continue developing.

Chapter 11

From the 1984 Naval Club Agreement in Uruguay to the 2016 Colon Theatre Peace Agreement in Colombia After having analysed in the previous chapters the different approaches to tj, this chapter looks into the tj systems adopted in Uruguay and Colombia over a thirty-​year interval. The Uruguayan tj system, which was developed as part of the democratic revolutions that took place in Latin-​America and Europe in the 1970s and 1980s, is characterized by the tension between criminal proceedings and truth commissions as core elements of a liberal approach to tj. In turn, the Colombian tj system, which is currently trying to implement the peace agreement reached at the end of 2016 between the Colombian government and the farc, is more sensitive to the proposals made by scholars favouring a social democratic approach to tj, and at times even shows an attempt to deal with structural violence, as proposed by critical theories. Nevertheless, at the same time, the Colombian transitional process presents the drawback of its enormous complexity and the large amount of resources and deep political commitment that is needed to implement it effectively over time. A Uruguay1 The Uruguayan transitional process forms part of the democratic revolutions that took place in Latin America and Europe in the 1970s and 1980s (Arthur, 2009: 236). Consequently, it follows, to a large extent, a liberal approach to tj as it is mainly comprised of short-​term measures for the re-​establishment of the rule of law and the reconstruction of democratic institutions. In this context, the tension between retributive and restorative justice has been evident throughout the whole process. Over time, there has been a confrontation of antagonistic ways of seeing the world that has not stopped at any time during 1 This section is based on section 1.5.1.2. of the book written by Olásolo, H.  & Galain Palermo, P. and entitled “Los desafíos del Derecho internacional penal ante su encrucijada actual:  atención especial a los casos de Argentina, Colombia, España, México y Uruguay.” Tirant lo Blanch, Ibero-​American Institute of The Hague for Peace, Human Rights and International Justice & Joaquín Herrera Flores Institute (Valencia: 2018) (in print).

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the Uruguayan transitional process and that, in some way, keeps the conflict alive (Galain Palermo 2013a:  405–​406). Without going any further, in May 2017, thousands of people demanded more truth and more punishment in the streets of Montevideo as a form of reparation for the victims. A.1 The Crimes: (1973–​1985) Uruguay can be considered the country with the greatest democratic tradition in South America, sometimes known as the ‘Switzerland of America’ for its stability (Fernández, 2007: 469) and the constant use of popular consultation mechanisms to resolve core social and political conflicts (González, 1991: 1 et seq). Four years before the 1973 coup d´etat, Uruguay had ratified and introduced in its national legal system (Law No. 13,751 of 1969) the International Covenant on Civil and Political Right and its Optional Protocol, as well as the International Covenant on Economic, Social and Cultural Rights, both approved in 1966 (Galain Palermo, 2013b: 402). The military acquired prominence in the early 1970s in the struggle against the Movimiento de Liberación Nacional-​Tupamaros (mln-​t ), a guerrilla group that, inspired by the Cuban revolution, tried to overthrow by armed force the existing political system to end corruption and establish an egalitarian society (Aldrighi, 2001: 24 et seq.). They committed kidnappings and assassinations of politicians and public authorities. They also attacked symbols of economic power by engaging in the robbery of banks, financial institutions and state casinos (Fornasari, 2016: 173–​174). Once the mln-​t was defeated, the military took the lead to defend national security and free market economy. The Uruguayan Constitution and individual rights and freedoms therein contained were suspended. As in Brazil (1964–​ 1984), a dictatorial government seized power and redefined human rights and economic development as part of a broader national security strategy. In this context, the dictatorship started in 1973 a process of national reorganization based on an on-​going fight against internal and external enemies, a policy of widespread repression against political opponents and the promotion of new social values through education (rural life were praised to the detriment of those of urban life). This process was the result of a state policy based on widespread terror and constant violation of human rights and civil liberties, which brought about approximately 200 enforced disappearances and 6,000 political detainees (Uruguay, Comisión Investigadora Parlamentaria, 2008). The Uruguayan dictatorship was one of the most incisive of the region in terms of “systematic repression,” as around 20% of all Uruguayans were legally or illegally arrested by the security forces or the military justice system and the vast majority of them were tortured.

140 Chapter 11 The atrocities committed against citizens were trivialized using everyday language to name them. In a way, the dirty war was also a war of words, in which speech played a role of destruction and re-​construction (Mahlke, 2017: 85). The situation reached such a point that Amnesty International denounced that Uruguay had become in the first half of the 1970s the “torture chamber” of Latin America (Linz/​Stepan, 1996: 152).2 Decades later the Uruguayan tribunals found that this process was a form of state terrorism. A.2 The Transitional Process To rebuild the rule of law, a negotiation process led to the Naval Club Agreement (3 August 1984) in which a transactional transition was agreed. According to the agreement, the handover of power and the return to the rule of law was accepted in exchange for the promise of no investigations and prosecutions of crimes committed by the Uruguayan security forces (Corbo, 2007:  36 et seq.). Victims and international human rights bodies and organizations denounced this agreement and demanded truth and justice for victims and prosecution and punishment for those responsible for the crimes. Once democracy was restored, the Uruguayan Parliament enacted a general amnesty law for all political prisoners (Law No. 15. 737 of 8 March 1985). According to this law, non-​military courts were given the mandate to review the cases tried by military tribunals to: (i) decide whether convictions based on political or related crimes should be substituted for acquittals; and (ii) reduce two-​thirds of the sentences already imposed on convicted military personnel (Fernández, 2007: 547 et seq; Galain Palermo, 2013b: 402). Civilian and police officials who had committed human rights violations were left out of the amnesty, because they did not accept amnesty as a negotiated solution. For them, acceptance of amnesty meant recognizing the commission of crimes when they were convinced they had “saved the homeland” from internal and external threats against the social, political and economic values of Western civilization (Lessa, 2011: 188). As a result of the amnesty law, victims went to the criminal justice system to denounce the former state terrorists, who in turn threatened to destabilize 2 Amnesty International (1973–​1974) (1974–​1975). Uruguay was the first country investigated by Amnesty International due to the pressure exerted by:  (i) more than 300,000 Uruguayans who had to go into exile to escape from the brutal repression of the dictatorship; and (ii) on-​site visits of the International Commission of Jurists and the International Committee of the Red Cross, among other human rights organizations. On the extent of torture in Uruguay, see Ruiz (2006: 51 et seq.).

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the newly acquired democracy. In the face of a threat to social peace, the Uruguayan Parliament approved in December of 1986 the Ley de Caducidad de la Pretensión Punitiva del Estado (Law for the Expiration of the State Penal Action –​“the Expiration Law”). According to this law, the Uruguayan government had to approve, on a case by case basis, the launch of any investigation against members of the Uruguayan security forces for human rights violations committed during the dictatorship. Hence, the initiation of criminal proceedings on any given case was dependant on a political decision by the government, which could also decide to protect the perpetrators with a mantle of impunity on the basis of the alleged lack of public interest in their prosecution (Fernández, 2007: 559 et seq.). In 1988, the Constitutional Chamber of the Supreme Court declared the constitutionality of the Expiration Law by a 3 to 2 vote. The majority argued that the law did not violate the constitution because (i) its effects were similar to an amnesty law; and (ii) it had been passed in compliance with all constitutional requirements to approve amnesty laws. For the minority, the Expiration Law was not an amnesty law, but a political mechanism that allowed the Uruguayan government to determine on a case-​by-​case basis the lack of public interest in the investigation of the truth through criminal proceedings and the prosecution of those allegedly responsible for the crimes. Victims continued fighting against this policy of impunity and forgetfulness, and in 1989, after an arduous task of collection of signatures carried out by Uruguayan civil society, forced the government to convene a referendum on the Expiration law. In a popular vote, the Expiration Law received the backing of 56.65% of the voters against the 43.34% that voted for its repeal. At that time, the government tried to put an end to the transitional process arguing that Uruguayans, acting as a sovereign people, had endorsed the state policy for the elaboration of the past. Nevertheless, what the majority of voters had really been in favour of was the establishment of tj mechanism other than criminal proceedings to satisfy victims’ rights to truth and justice. The search for the truth was not a goal of the Uruguayan transition process until 2000, when the government created the so-​called “Peace Commission” with the mandate to receive information on enforced disappearances and uncover the truth. However, the Peace Commission did not have coercive powers to investigate, as it could only receive documents and testimonies under the obligation not to reveal the sources of information (Galain Palermo, 2009: 399). It was only after a left-​wing government was elected in 2005 that the most responsible persons for large-​scale past abuses committed during the dictatorship were subject to criminal proceedings in Uruguay (Galain Palermo,

142 Chapter 11 2010: 610 et seq.). The absence of crimes against humanity in the Uruguayan Penal Code did not prevent first instance judges from resorting to icl to justify crimes against humanity charges against accused persons (Galain Palermo, 2013b: 416). As a result, in almost all cases, the criminal law principles of legality and non-​retroactivity were subject of controversy. Moreover, in some investigations of enforced disappearances the nemo tenetur principle may have been breached, as some judicial authorities requested the self-​incrimination of the accused persons or valued their silence against them (Galain Palermo, 2014: 426–​427; Fornasari, 2016: 201). Furthermore, a problem of interpretation of the applicable law arouse between:  (i) first instance judges who directly applied icl to consider the crimes of the dictatorship as crimes against humanity; and (ii) judges of higher courts who were more inclined to follow the conservative position of the Supreme Court, which considered the crimes of the dictatorship as common crimes subject to statute of limitations. As a result, the decision of judges in the first instance of cases constituting enforced disappearance, resulted in convictions for a particularly aggravated homicide on appeal, even when the body of the victim had not been recovered (Galain Palermo, 2010: 615). Until 2009, the Supreme Court had made clear that the Constitution had normative prevalence over international treaties to which Uruguay was a party. Nevertheless, the Supreme Court changed its position in the Sabalsagaray case (2009), and declared that the Expiration Law was unconstitutional because it breached international law. The Supreme Court made particular emphasis on article 27 of the Vienna Convention on the Law of Treaties, which forbids state parties from invoking domestic norms to justify non-​compliance with a treaty. In the meanwhile, victims started again collecting signatures to submit the Expiration Law to a new referendum that would modify the Constitution and annul the law. Nevertheless, despite the Supreme Court´s announcement of its judgment in the Sabalsagaray case a week before the second referendum, 53% of the voters backed the Expiration Law again as a political tj mechanism. The support for the Expiration Law by the majority of Uruguayan voters motivated the 24 February 2011 ruling of the IACtHR against Uruguay in the Gelman case, concerning the forced disappearance of an Argentinean citizen in Uruguay and the abduction and change of identity of her daughter, to whom she gave birth in captivity. In its decision, the ICtHR highlighted the historical significance of the case because of the way in which the events took place and reaffirmed its jurisprudence on the state obligations to investigate, prosecute and punish those responsible for serious violations of human rights, in particular when they constitute international crimes. The IACtHR also emphasized the prohibition against amnesty laws and similar legal mechanisms, such

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as the Expiration Law. Following a fight-​against-​impunity approach to satisfy victims’ rights, the IACtHR ordered Uruguay to clear the way to criminal proceedings by removing all legal obstacles, such as the statute of limitations, the principle of non-​retroactivity of criminal norms, the res judicata principle, the ne bis in idem principle and any similar ground for exclusion of responsibility that had impeded criminal proceedings in the Gelman case (Galain Palermo, 2013b: 415 et seq). As a consequence of the ICtHR ruling in the Gelman case, the Uruguayan Parliament approved Law No. 18,831 of 2011, in which the crimes committed during the dictatorship were considered as crimes against humanity, and therefore no statute of limitations was applicable. Nevertheless, in February 2013, the Supreme Court declared the unconstitutionality of this law and stated that the non-​application of the statute of limitations was contrary to the principle of non-​retroactivity of criminal norms (Chaves, 2015: 89 et seq,).3 For the Supreme Court, although the statute of limitations was not applicable to crimes against humanity committed after the approval of Law No. 18,831, this situation could not be extended to prior crimes (Chaves, 2015: 111). In 2015, a Working Group on Truth and Justice was established by Decree No. 131/​015 to elaborate a Global Memory Plan and intensify cooperation with judicial authorities:  (i) to carry out archaeological searches of the remains of the disappeared persons in military locations; and (ii) the promote civil proceedings to declare the economic responsibility of military personnel for the crimes committed during the dictatorship. Some additional laws were also approved to repair, both economically and symbolically, victims of state terrorism.4 A.3 The Criminal Proceedings The Expiration Law did not prevent criminal proceedings (as an amnesty would do), but left the decision regarding admissibility in the hands of the government. Consequently, while the conservative and liberal governments that were in power in Uruguay from 1985 to 2005 interpreted the Expiration Law so as to impede criminal proceedings against members of the Uruguayan security forces, the left-​wing government that has been in power since 2005 has taken a different approach (Galain Palermo, 2010: 610 et seq.).

3 Critically, Galain Palermo:  http://​www.kas.de/​wf/​doc/​9176-​1442-​4-​30.pdf [last visited:  30 December 2017]. 4 See: https://​desaparecidos.org.uy/​wp-​content/​uploads/​2016/​09/​CIJUruguayluchaVerdad​ Justicia​Encrucijada.pdf [last visited:30 December 2017].

144 Chapter 11 As a result, former civilian dictator Juan María Bordaberry (1973–​1976) was convicted on 9 February 2010 for an attack on the constitutional order, nine crimes of enforced disappearance and two political homicides. He was sentenced to 30  years imprisonment, the highest possible penalty in the Uruguayan penal system (Fornasari, 2016: 199, Fernández, 2007: 574 et seq.). Judge Motta justified his conviction for having broken the legal and political system and becoming a dictator after reaching an agreement with the military (Galain Palermo, 2014:  122–​123). Likewise, the only military dictator, Gregorio Álvarez (1981–​1985), was also convicted to 25 years imprisonment for the disappearance of 37 people between 1977 and 1978 (Judgment 1,142 of 2007). The conviction was based on arguments taken from ihrl (Galain Palermo, 2014: 123–​124). On appeal, a conviction for reiterative aggravated homicides, as opposed to enforced disappearances, was entered (Judgement 352 of 23.10.2008). Both judgements applied the notion of command responsibility (Galain Palermo:  2014, 125). Both Bordaberry and Álvarez died in prison. Former Foreign Minister Juan Carlos Blanco (1973–​1976) was also convicted in 2006 for the aggravated homicides of two members of Congress (Zelmar Michelini and Héctor Gutiérrez Ruiz) and two members of the mln-​t (Rosario Barredo and William Whitelaw), which occurred in May 1976 in Buenos Aires (Fernández, 2007: 577 et seq.). He was also sentenced to 20 years imprisonment for the disappearance and death of Elena Quinteros in 1976. On 17 January 2017, an Italian court sentenced him to life imprisonment for the death of several Italian citizens in execution of the Condor Plan.5 It is also worth mentioning the convictions of high-​ranking military officers, such as José Gavazzo, who faced approximately 140 criminal complaints for crimes against humanity, and was finally convicted for 28 counts of aggravated homicides.6 In addition to the most responsible persons, other persons who participated in the commission of crimes during the dictatorship have also

5 All cases for crimes committed during the Uruguayan dictatorship can be found in: http://​ www.observatorioluzibarburu.org/​causas/​[last visited: 30 December 2017]. 6 More recently, Manuel Cordero, who together with Gavazzo was identified by numerous victims as one of the main direct perpetrators of acts of torture, was convicted to 25 years imprisonment in Argentina for being part of an illicit association to commit crimes against humanity (he had initially fled to Brazil where he was able to remain for years due to his Brazilian nationality). Cordero was accused of participating in eleven cases of unlawful detention and the enforced disappearance of María Claudia García, daughter-​in-​law of Juan Gelman and mother of Macarena Gelman, current congresswoman for the Frente Amplio in Uruguay.

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been subject to criminal proceedings. Nevertheless, Uruguay has been far less incisive than Argentina in the fight against impunity because, after more than forty years, no more than 200 cases have been initiated and only 14 final convictions have been entered.7 A.4 Final Remarks For ihlr, ihl and icl scholars, the legal and political tj mechanisms established in Uruguay have not adequately satisfied victims’ rights to truth, justice and reparation (Fried Amilivia, 2011: 157 et seq.; Lessa & Flores, 2016: 235 et seq.). Nevertheless, from a socio-​political perspective, a second group of scholars considers that: (i) since the recovery of democracy there has been no more breaches of the rule of law in Uruguay (Engelhart, 2016: 35–​70); and (ii) criminal law must always be a last resort mechanism because the imposition of penalties should aim at the preservation and restoration of social peace on the basis of freedom and security (Eser, 2016: 77). The Expiration Law, which only enables the investigation and prosecution of specific cases if the Uruguayan government expressly authorizes it (Fernández, 2007: 546 et seq.; Arnold, 2012: 242 et seq.; Chaves, 2015: 89 et seq.; Galain Palermo, 2011a), is based on the 1984 Naval Club Agreement, which aimed at avoiding the likely uprising of the Uruguayan military (as happened in Argentina in 1984)  (Fernández, 2007:  557 et seq.; Chaves, 2015: 93). Furthermore, the Expiration Law was subsequently legitimized at the national level by a decision of the Supreme Court in 1989 and by two popular consultations within a period of twenty years of difference (1989 and 2009). In addition to aiming at protecting the newly established democracy, the Expiration Law did not prevent criminal proceedings, but left the decision to open them in the hands of the government. As a result, it has not prevented the investigation, prosecution and punishment of the most responsible for the international crimes committed during the dictatorship. Despite of this, the Expiration Law has consistently been rejected by the victims, whose claims have been upheld by the IACtHR that considered the Expiration Law as a “permanent obstacle to justice” in the Gelman case. As happened in Argentina, the investigation and prosecution of international crimes during the Uruguayan transitional process has been strongly

7 See: http://​rlajt.web2403.uni5.net/​wp-​content/​uploads/​2016/​05/​Justic%CC%A7a-​de​ -Transic%​CC%A7a%CC%83o-​e-​Justicia-​de-​Transicion-​WEB-​FINAL.pdf [last visited: 30 December 2017].

146 Chapter 11 linked to the political forces in power. Nevertheless, this situation is not only limited to the scope of criminal proceedings, but also cover other truth seeking mechanisms which are characterized by a strong political influence in the construction of official accounts. In this regard, it is worth-​mentioning the report of the Peace Commission (2003), which purported to offer an official truth. According to this report, there were no extrajudicial executions in Uruguay and the enforced disappearances were the result of excesses in implementing torture. Nevertheless, this alleged official account was denied in 2011 as a result of the archaeological discoveries resulting from criminal proceedings (Uruguayan procedural law offered some tools to assist in the search for the truth, such as the possibility of digging in military locations, whose access would have been otherwise forbidden, to search for the remains of disappeared persons). These archaeological discoveries were contrary to the official thesis about the crimes of the dictatorship because they showed their systematic and widespread nature (Galain Palermo, 2013a: 401–​402). Consequently, for some scholars, the process of uncovering the truth is an on-​going process (Galain Palermo, 2014). B Colombia8 The Various Transitional Justice Systems Set Up in Colombia in the Last Decade The armed conflict in Colombia, spanning several decades, has involved numerous armed actors. Armed forces and groups include the Colombian Armed Forces, the farc, the eln and a number of paramilitary groups.9 In order to encourage the demobilization of these armed groups, various systems of tj have been implemented over time in Colombia (Olásolo & Ramírez, 2017). Falling amongst these is the system of tj laid down by Law No. 975 of 2005 on Justice and Peace (“the Justice and Peace Law”), which applies to B.1

8 This section is based on sections 1 and 2 of the article written by Olásolo, H. & Ramírez, J. and entitled “The Colombian Integrated System of Truth, Justice, Reparation and Non-​Repetition.” In Journal of International Criminal Justice. Oxford University Press:  Oxford. Vol. 15. Issue 5 (1 December 2017). issn 1478-​1387; eissn 1478-​1395. Pp. 1011–​1047 https://​doi.org/​ 10.1093/​jicj/​mqx057. 9 See Comisión Histórica del Conflicto y las Víctimas (2015). Available at http://​ www​ .altocomisionadoparalapaz.gov.co/​ m esadeconversaciones/​ P DF/​ I nforme%20Comisi​ _​n%20Hist​_rica%20del%20Conflicto%20y%20sus%20V_​ctimas.%20La%20Habana,%20 Febrero%20de%202015.pdf [last visited: 29 December 2017].

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armed groups falling outside the law, defined as mainly, but not exclusively, paramilitary groups. The Justice and Peace Law, inter alia, governs judicial proceedings concerning:  first, establishing truth, as complemented by the forum of the National Commission for Reparation and Reconciliation; second, the determination of civil and criminal responsibilities; and finally, reparation awarded to victims. Furthermore, the Justice and Peace Law provides for a special criminal procedure for demobilized individuals based on acknowledgment of responsibility. The Justice and Peace Law lays down a system of imprisonment penalties ranging from five to eight years, together with four additional years of parole, for those convicted individuals complying with its requirements.10 Subsequent decrees issued by the government of Colombia,11 and Law No. 1424 of 2010 on the criminal liability of low-​level and mid-​level members of paramilitary groups,12 introduced a significant administrative component into this system.13 A second system of tj was established in Colombia by the so-​called “Legal Framework for Peace,” approved by Legislative Act No. 01 of 2012, which amended the Constitution of Colombia to introduce Transitory Article 66 and Transitory Article 67.14 This second system applies to both state officials and members of armed groups falling outside the law. It provides for a comprehensive strategy on tj, which held an essentially administrative nature with limited judicial involvement. The core elements of this second system are outlined as follows. It creates a truth commission as well as an administrative reparation regime. In addition, the system establishes a set of criteria for the selection of cases, which empowered Congress to prevent the Attorney-​General from prosecuting individuals who cannot be classified as the most responsible for “grave” acts of genocide, crimes against humanity and war crimes “committed in a systematic manner.” 10

11 12 13

14

The said requirements include, inter alia, acknowledgment of responsibility, asking for forgiveness to victims, identification and demobilization of child soldiers recruited by the relevant armed group, cooperation with justice and handing over goods for the purposes of reparation for the victims. See articles 10, 11 and 29 of Law No. 975 of 2005. See Decrees Nos. 690 (2006), 315 (2008), 1290 (2008), 3570 (2007) and 3011 (2013). See Law No. 1424 of 2010. In turn, Law No. 1448 of 2011 establishes an administrative programme of reparations and a land restitution programme with administrative and judicial components, which is not stricto sensu part of the tj system on justice and peace. Nevertheless, the application of Law No. 1448 of 2011 and the case law that it generated highlighted several overlapping areas within this system, which were subsequently regulated by Law No. 1592 of 2012 and Decree No. 3011 of 2013. Legislative Act No. 01 of 2012.

148 Chapter 11 Legislative Act No. 1 of 2012 sets up a system of alternative penalties to imprisonment, which do not carry a specified length. Moreover, a special regime for the enforcement of penalties initially provided for the suspension of penalties until the Constitutional Court declared this option as unconstitutional.15 Finally, Legislative Act No. 1 lays down a system of non-​judicial sanctions for those cases that have not been selected for prosecution.16 Despite forming part of the Constitution of Colombia,17 this second system has not been implemented due to rejection by the farc given their lack of involvement in the negotiation process (Semana, 6/​08/​2013) In light of this situation, and considering that the farc also rejected the application of the tj system established under Law 975 of 2005 due to alleged harshness of its alternative penalties (El Espectador, 6/​10/​2016), the Final Agreement to End the Conflict and Establish a Stable and Long-​lasting Peace/​ Acuerdo Final para la Finalización del Conflicto y una Paz Estable y Duradera (“the Peace Agreement”) was signed on 24 November 2016 by the government and the farc in the Colon Theatre of Bogotá. As a result, Colombia has become in recent years a laboratory for different tj systems, whose compliance with current international law has always been questionable, as discussed in the next chapter. The 24 November 2016 Peace Agreement between the Colombian Government and the Farc The Peace Agreement, which entered into force after its approval by Congress on 30 November 2016, is complex. It has over 300 pages and contains six interconnected agreements. The first constitutive agreement, entitled “Towards a New Colombian Countryside:  Comprehensive Rural Reform,” aims at the structural transformation of rural areas in order to close the gap between them and urban areas, eradicate poverty, promote equality and improve living conditions for the rural population (Colombian government & farc, 2016:  paras. 7, 10). The second constitutive agreement is entitled “Political Participation: Democratic Openness to Build Peace,” and holds that the abandonment of violence as a way of political action by the farc would contribute B.2

15 16 17

Constitutional Court, Judgment (C-​579/​13), 28 August 2013. Transitory article 66 of the Constitution of Colombia (approved by Legislative Act No. 01 of 2012). Transitory article 67 of the Colombian Constitution, on offences which are not related to crimes of a political nature, was recently derogated by Legislative Act No. 01 of 2017. Nevertheless, transitory article 66 of the Constitution of Colombia, which contains the bulk of the regulation introduced by the Legal Framework for Peace, remains applicable.

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to establishing a democratic setting with broader political participation and full guarantees for those participating in politics. A democratic setting is essential for peace-​building as it allows new forces to emerge on the political scene to enrich the debate on the main national problems and strengthens pluralism and political inclusion, ensuring the representation of the different visions and interests that coexist in society (Colombian government & farc, 2016: paras. 7, 35 et seq.). The third constitutive agreement, entitled the “End of the Conflict,” is divided into four parts. The first part concerns the definitive termination of hostilities between the government and the farc by addressing the ceasefire, bilateral truce, and also, disarmament procedures. The second part deals with return to civilian life by members of the farc. The underlying assumption is that in order to build an enduring peace in Colombia, farc members must make an effective return to Colombian society and participate in its social, economic and political dimensions. This also shows farc’s commitment to: (i) end the internal armed conflict; (ii) become a legitimate democratic actor; and (iii) contribute decisively to the consolidation of peaceful coexistence and the transformation of the socio-​economic and political conditions that brought about long-​lasting violence. The third part creates an obligation on farc commanders to found a political party. Finally, the fourth part emphasizes the struggle to eliminate those criminal organizations designated as successors of paramilitary groups and the prosecution of criminal conduct that threatens the implementation of the Peace Agreement and efforts towards peace-​building. To this end, numerous measures are established, including (i)  a  national political alliance; (ii) a national commission for security safeguards; (iii) a special investigation unit; (iv) a national police elite unit; (v) a comprehensive system of security for political participation; (vi) a comprehensive programme on security and protection for communities and organizations in the territories (where criminal organizations are located); and (vii) measures on prevention and the fight against corruption (Colombian government & farc, 2016: paras. 8, 68, 77 et seq.). The fourth constitutive agreement is entitled “Solution to the Illicit Drugs Problem” and creates various measures designed to address drug consumption, illicit use of crops and organized crime associated with drug trafficking (Colombian government & farc, 2016: paras. 8, 98). The sixth constitutive agreement, entitled “Mechanisms for Implementation and Verification,” creates a Commission to follow-​up, promote and verify the implementation of the Peace Agreement, which is composed of representatives of the government and the farc. This Commission holds the competence to settle differences over the implementation of the Peace Agreement.

150 Chapter 11 In addition, a monitoring mechanism has been set up to ensure that the international community –​in particular, those states involved in the negotiation process since its early stages –​are able to verify and foster the implementation of the Peace Agreement (Colombian government & farc, 2016: paras. 9, 10, 193 et seq.). Closely connected with the above-​mentioned agreements, the fifth agreement, known as the ‘Agreement on Victims’, lays down the goals of the Integrated System of Truth, Justice, Reparation and Non-​Repetition with respect to victims and Colombian society as a whole. These objectives are as follows. First, the fulfilment of victim rights through judicial and non-​judicial mechanisms. Second, accountability for individuals who directly or indirectly participated in the armed conflict and committed gross human rights violations or grave breaches of international humanitarian law. Third, guaranteeing the non-​ repetition of violence by preventing re-​victimization, promoting the rejection by society of armed conflict and its effects, consolidating the end of the armed conflict as well as prevention of new forms of violence. Fourth, the adoption of a territorial, group-​based and gender-​based approach by treating territories, vulnerable groups and populations as well as women according to their needs and in light of the specific ways in which violence has affected them. Fifth, guaranteeing legal certainty for those individuals who directly or indirectly participated in the armed conflict. The guarantee of legal certainty, however, carries the prerequisite of compliance with the conditions laid down by the Integrated System, in particular, those falling under the Special Jurisdiction for Peace/​Jurisdicción Especial para la Paz. Sixth, strengthening coexistence and reconciliation by building trust on the basis of those positive transformations in Colombian society generated by the Peace Agreement and the opportunity to build a better future based on social justice, respect and tolerance. Finally, achieving legitimacy through fulfilment of victims’ and Colombian society’s expectations as well as compliance with those obligations held by Colombia at both the national and international levels (Colombian government & farc, 2016: paras. 128, 129). The Main Elements of the Colombian Integrated System of Truth, Justice, Reparation and Non-​Repetition In order to achieve the goals of the “Agreement on Victims,” the Peace Agreement provides for a third tj system, entitled the “Integrated System of Truth, Justice, Reparation and Non-​Repetition”/​Sistema Integrado de Verdad, Justicia, Reparación y No-​Repetición (Integrated System). The Integrated System is a mixed tj system. It provides for several judicial and non-​judicial mechanisms. First, amnesty and pardon for farc members and special treatment for B.3

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state officials, which does not cover ihlr or ihl breaches amounting to genocide, crimes against humanity and serious war crimes (defined as systematic ihl breaches) (Colombian government & farc, 2016: paras. 8, 127, 130, 131, 151).18 Second, the establishment of the Commission for the Clarification of Truth, Coexistence and Non-​Repetition as well as the Special Jurisdiction for Peace with material jurisdiction over those crimes for which amnesty, pardon or special treatment cannot be granted. Furthermore, the Integrated System lays down a regime of alternative penalties to imprisonment, including mandatory community work and restrictions prohibiting movement outside a specified geographical area for a period of time between five to eight years. Furthermore, while serving alternative penalties, convicted individuals are not prevented from carrying out political activities or being members of representative bodies, including Congress or the Senate. In contrast to previous systems of tj, the Integrated System excludes the penalty of imprisonment for convicted individuals complying with the requirements laid down by the Peace Agreement, including those determined as the most responsible for genocide, crimes against humanity and war crimes. Furthermore, it limits the penalty of imprisonment to a maximum of 20 years imprisonment for those who do not comply with such requirements (Colombian government & farc, 2016: paras. 164, 165, 172, 173, 174) (Gil Gil, 2016) (Loyo Cabezudo, 2017: 43–​45). Third, numerous measures for victims’ comprehensive reparation, which can be divided in seven groups. Except for individual restitution of land and emotional recovery, most reparation measures are of a collective nature. Notably, individual compensation to victims is not specifically referred to in any of these measures. Moreover, although reparation measures should not be confused with the sanctions programmes approved by the Special Jurisdiction for Peace, they may overlap as both are partially related to some of the undertakings contained in the agreements on rural reform, political participation and solution to the problem of illegal drugs (Colombian government & farc, 2016: paras. 172, 178). The first group of reparation measures consists of acts of forgiveness that took place before the Peace Agreement was signed. The second group is 18

Other crimes for which amnesty, pardon or special treatment cannot be granted are kidnapping or other severe deprivations of physical liberty, torture, extrajudicial executions, enforced disappearance of persons, rape and other forms of sexual violence, abduction of minors, forcible displacement and the recruitment of children (Colombian government & farc, 2016: paras. 130, 131, 151). See also Law No. 1820 of 2016 and Legislative Act No. 01 of 2017.

152 Chapter 11 comprised of reparation programs to be established by the Colombian government, and to be implemented by state officials responsible for gross human rights violations or grave ihl breaches. Likewise, the farc have undertaken to provide reparations to victims as part of their members’ return to civilian life. Nevertheless, at this stage, the specific content of farc’s reparation measures remains unclear (Government of Colombia & farc, 2016: paras. 178, 179). The third group entails measures of collective reparation, including the so-​called ‘Rural Development Plans with Territorial Approach’, ‘Collective Reparation Plans with Territorial Approach’, and ‘National Plans for Collective Reparation’. The fourth group consists of measures for social rehabilitation, which are divided in two sub-​groups: (i) those measures aiming at emotional recovery at the individual level; and (ii) the implementation of psycho-​social rehabilitation plans to further coexistence and non-​repetition. The fifth group includes the implementation of processes of collective return to their land of forcibly displaced victims (in particular, peasants), and other measures of reparation for victims living outside Colombia. The sixth group entails land restitution measures. Finally, the seventh group consists of measures for the strengthening of a policy of victims’ comprehensive care and material reparation (Colombian government & farc, 2016: paras. 179–​184). Fourth, the Peace Agreement also provides for a Special Unit for Finding Missing Persons/​Unidad Especial para la Bùsqueda de Personas Desaparecidas, which is an extrajudicial mechanism, whose main purpose is to coordinate humanitarian efforts to search and locate missing persons who are still alive and find and identify the remnants of missing persons who are dead, and deliver their remains to their families. In both scenarios, the Special Unit provides a report on the information that has been gathered to the missing persons’ family members. As in the case of the truth commission, the information received or produced by the Special Unit for Finding Missing Persons cannot be shared with, nor requested by, judicial authorities, including the different bodies of the Special Jurisdiction for Peace. Moreover, such information cannot be used in civil or criminal proceedings. The only exception to this rule refers to forensic reports and material elements associated with the corpses, which can be requested by judicial authorities, including the Special Jurisdiction for Peace, and used in civil and criminal proceedings (Colombian government & farc, 2016: 129, 130, 139–​141). Fifth, the Peace Agreement also provides for non-​repetition guarantees that aim at: (i) ending impunity; and (ii) ensuring that no political party or movement is victimized again (Colombian government & farc, 2016:  129, 130, 187). Finally, other judicial mechanisms in the Attorney-​General’s Office have been created by the Peace Agreement, which do not stricto sensu form part of

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the Integrated System. In particular, the Special Unit for the Investigation and Dismantling of Criminal Organizations deals with those organizations and their support networks continuing the activities of former paramilitary groups (Government & farc, 2016: 127). B.4 Final Remarks The multiple mechanisms of the Integrated System cannot be assessed in isolation. The elements detailed above form part of one tj system, which seeks to provide a comprehensive response to victims. As a result of this interconnection, according to the Peace Agreement, a number of conditions on disclosure of truth and acceptance of responsibility must be met prior to accessing amnesty, pardon or special treatment under the Integrated System. The Special Jurisdiction for Peace verifies compliance with such conditions. Furthermore, no mechanism can override another one. Hence, each mechanism must fulfil its own functions in the most effective manner, avoiding duplications with other mechanisms and setting up cooperation protocols (Colombian Government & farc, 2016: para. 130). All in all, as Olásolo & Ramírez (2017) have underlined, the main challenge that the 24 November 2016 Peace Agreement and its Integrated System face in a polarized political environment in Colombia, is to set into motion, in a harmonious way, its several judicial and non-​judicial mechanisms, and to coordinate their work with the activities of domestic judicial and administrative bodies, in particular those in charge of implementing the tj system of justice and peace. Furthermore, the political uncertainty and deep social division furthered by the reactions to the “no” vote in the 2 October 2016 referendum generates serious concerns about the real existence of the necessary political and financial commitment to implement them effectively over time.19 19

See supra ­chapter 9, section B.

Chapter 12

How should the Normative Dilemma Posed by the Overlapping Scopes of Application of International Criminal Law and Transitional Justice be Addressed? A

The Fragmentation of International Law

International law has suffered in the twentieth century a series of transformations of great significance as a result of; (i)  attributing legal personality to human begins and various types of legal persons (e.g. international organizations, non-​governmental organizations, transnational corporations and peoples); and (ii) extending its regulation to areas other than war and peace, territorial and personal sovereignty, diplomatic protection and international trade (today international law covers almost all aspects of human life, including, inter alia, human rights, environment, economy, investment, communications, technological and bioethical development and activities on the seabed and outer space). Among the changes undertaken by international law, its growing regional, normative and sectorial fragmentation stands out (Focarelli, 2011:  522–​525). The fragmentation of international law has come hand in hand with the establishment of a plurality of new international jurisdictions (mostly regional or sectorial), which have contributed significantly to the expansion of this phenomenon (Shaw, 2014: 46–​47). With respect to regional fragmentation, states that achieved their independence as a result of decolonization have put forward new approaches to the regulation of international relations and have entered into regional integration processes. As a result, regional particularisms have been accentuated. A first manifestation of this phenomenon can be found in the debates held in the first half of the 20th century by Seijas, Álvarez and Sa Vianna, among other scholars, on the existence of a Latin-​American international law or, at least, a Latin-​American particularism (Esquirol, 2012: 562–​566). As Fisch (2012:  30–​31) underlines, this is a consequence of decolonized states’ perception of international law as a system of European origins that was imposed by former colonial powers and has caused them serious problems of internal organization due to two main reasons. First, their traditional systems of organization in communities or tribes do not fit in the notion of state as a political entity. Second, a strict application of the uti possidetis principle, which aims at maintaining the border limits established during the colonial

© Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/​9 789004341005_​0 13

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era, has caused the separation of communities with a millenary tradition in various bordering states. The fragmentation of international law has also had an impact on its system of sources because the second half of the twentieth century has seen the emergence of peremptory or ius cogens norms and soft law standards. While the former are at the top of the normative hierarchy of international law, the latter are the bottom, as they are based on self-​regulation for the attainment of certain goals and lack external enforcement mechanisms in case of non-​compliance. Non-​binding unga resolutions and international norms regulating the conduct of states and transnational corporations in areas as important as the preservation of the environment or the fight against poverty are prime examples of soft law norms (Fernández Liesa, 2013: 429 et seq.). This is in sharp contrasts with the proliferation of external enforcement mechanisms in the field of foreign investment and international trade, in which the main addressees of international norms are also states and transnational corporations (Focarelli, 2011: 522–​525). Finally, the characteristics of the new subjects and areas of regulation of international law have also led to its sectorial fragmentation, as shown by the strong tensions between ihrl and international economic law. As Fernández Liesa (2013: 429) underscores, the international regime of multinational corporations and international economic organizations have hardly considered human rights in their activities. Similarly, there are clashes between the international protection of cultural diversity and international trade, as well as between the international regulation of state sovereign debt and human rights. B

The Normative Dilemma Posed by the Overlapping Scopes of Application of International Criminal Law and Transitional Justice

A paradigmatic example of the sectorial fragmentation of international law is the construction in parallel, without the necessary connections, of, on the one hand: (i) the state obligations to investigate, prosecute and punish those responsible for serious ihrl and ihl violations, especially when they constitute international crimes (Cassese, 2005:  241–​245; González Morales, 2013: 264–​291); and on the other hand (ii) the scope of application, goals and elements of tj. As seen in c­ hapters 3, 8 and 9, international crimes are usually committed in situations of “large-​scale abuses” in which tj is applicable. As a result, despite of the lack of connection between their respective regulation under international law, state obligations to conduct criminal proceedings for international

156 Chapter 12 crimes and tj are applicable in the same situations. This has a significant impact on those transitional processes in which the parties negotiating the end of authoritarian regimes or armed conflicts request to be exempted from responsibility for international crimes (Olásolo, Mateus & Contreras, 2017). Faced with this situation, some tj scholars, among whom Elster (2004) is the most representative, deny that criminal proceedings for international crimes are normatively binding for states undertaking transitional processes. For Elster, all mechanisms that could be used in transitional processes to overcome situations of large-​scale past abuses have a purely descriptive nature, because their role is to be a non-​binding guide for the design of specific tj systems. Similarly, Murphy underlines that the particularities of the theory of punishment in transitional processes merit greater flexibility with respect to the enforcement of criminal liability for international crimes (Murphy, 2014: 59–​68). As Vacas Fernández (2013:  575) and Tamariz (2012:  74–​93) emphasize, the elements of a specific transitional process depend exclusively on what was agreed by the negotiating parties, without imposition by international law of mandatory standards that must be respected and cannot be renegotiated by them. With this, what is sought is a greater political manoeuvrability when designing tj mechanisms for each specific situation (Vacas Fernández, 2013: 575). In a similar vein, Nagy (2014:  215) warns against the international society’s trend to impose monolithic (one size for all), technocratic and decontextualized solutions. A similar approach is taken by Corradetti, Eisikovits & Rotondi (2014: 5) who, on the basis of the political, sociological and practical experiences of the transitional processes in Spain, Northern Ireland and Mozambique, underline that there are at least three types of situations in which it is problematic to affirm the binding nature of truth commissions and civil and criminal proceedings for international crimes. First, post-​conflict societies that show a cultural ambivalence towards policies of enforcement of responsibilities for large-​scale past abuses (e.g. Mozambique). Second, post-​ conflict societies in which there is a complex division of guilt between the various parties involved in the violence (e.g. Northern Ireland). Third, post-​conflict societies in which insisting on the establishment of truth-​seeking mechanisms and civil and criminal proceedings for large-​scale past abuses entails a serious risk of reactivating violence or conflict (e.g. Spain in the 1980s). Nevertheless, for Teitel, (2000) forgetting large-​scale past abuses without analysing what happened and without enforcing the responsibilities arising from them, impedes authentic transitional processes and generates a greater division between victims and perpetrators. Moreover, as seen in c­ hapter  3,

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from a normative perspective, current general international law provides for (i) the prohibition to engage in international crimes by states or individuals; (ii) the attribution of international individual criminal responsibility to those who commit them; (iii) the state duties to investigate, prosecute and punish those responsible for their commission, when they take place in its territory or under its jurisdiction; (iv) the non-​applicability of statutory limitations; and (v) the prohibition of amnesty laws. There also appears to be a broad consensus on the ius cogens nature of the norms containing the first two elements (Olásolo, Mateus & Contreras, 2017). Furthermore, unlike the consolidated legal regime of international crimes, neither general international law nor conventional law regulates tj. Only a broad definition of tj can be found in a non-​binding soft law norm, such as the 2004 unsg Report on the Rule of Law and Transitional Justice in Conflict and Post-​Conflict Societies. Beyond this general definition, one can only find the work of tj scholars and professionals, including the 2013 Belfast Guidelines on Amnesty and Accountability (Mallinder & Hadden, 2013). This situation is the result of what the Human Rights Council Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-​repetition has described as the absence of a minimum consensus on the scope of application, goals and elements of tj (De Greiff, 2012: 32). Nevertheless, from a policy perspective, it would be a mistake to reject outright all concerns expressed by tj scholars, because of the difficulties in reaching peace agreements between adverse parties that have not been militarily defeated, if what awaits their leaders is their prosecution and punishment for the international crimes committed by their subordinates (Branch, 2011: 122–​134; Guembe & Olea, 2006; Moreno Ocampo, 2005). For this reason, Clamp & Doak (2012: 330 et seq.) point out that even for those scholars that follow Teitel´s approach, it is necessary to seek a compromise between the demands for exemption of civil and criminal liability by the parties negotiating the end of authoritarian regimes or armed conflicts, and the current international regulation of international crimes. C

Can the Adoption of Transitional Justice Mechanisms that do not Comply with the Legal Regime of International Crimes be the Solution to the Normative Dilemma? Particular Attention to the Special Jurisdiction for Peace in Colombia

Faced with the normative dilemma posed by the overlapping scopes of application of icl and tj, Northern Ireland and Spain have adopted, as seen in

158 Chapter 12 ­chapter 3, tj mechanisms that do not comply with the legal regime of international crimes.1 The same dynamic can also be observed in recent years in Colombia, as shown by the concerns expressed by the icc Prosecutor (2012; 2013a; 2014a; 2015) and the Inter-​American Commission of Human Rights (2013:  185–​194) in relation to the following elements of the 2012 Legal Framework for Peace2: (i) empowerment of Congress to prevent the Colombian Attorney-​General from prosecuting individuals who cannot be classified as the most responsible for “grave” acts of genocide, crimes against humanity and war crimes “committed in a systematic manner”; (ii) setting up a system of alternative penalties to imprisonment, which do not carry a specified length; and (iii) establishment of a special regime for the enforcement of penalties (which includes inter alia home detention), which initially provided for the suspension of penalties until the Constitutional Court declared this option as unconstitutional (Olásolo, 2014b: 35–​46).3 The 24 November 2016 peace agreement between the Colombian government and the farc is an effort to overcome the opposition of the farc and of a significant part of the Colombian security forces to the application of the previous tj mechanisms provided for in Colombia. As a result, farc’s demand for the recognition of the notion of “political offence,” which is comprised of conduct aimed at harming the Colombian state and constitutional order without gaining any economic profit, was met through the provision of a system of amnesty and pardons for farc members. Furthermore, a system of special treatment to Colombian security forces and other state officials, which aims to be “balanced and equitable” with respect to the treatment offered to farc members, was also put in place. Finally, a Special Jurisdiction for Peace was established, with material jurisdiction over gross human rights violations and grave ihl breaches amounting to genocide, crimes against humanity, serious war crimes, kidnapping or other severe deprivations of physical liberty, torture, extrajudicial executions, enforced disappearance of persons, rape and other forms of sexual violence, abduction of minors, forcible displacement and recruitment of children (Colombian Government & farc, 2016:  paras. 130, 131, 151).4 Nevertheless, several elements of this new tj mechanism raise serious concerns when analysed from the perspective of: (i) the application of the legal regime of international crimes; (ii) the achievement of icl goals (specially the 1 2 3 4

See supra ­chapter 3. The Legal Framework for Peace was approved by Legislative Act No. 1 of 2012. Constitutional Court, Judgment (C-​579/​13). 28 August 2013. See also Law No. 1820 of 2016, and Legislative Act No. 1 of 2017.

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reinforcement of those values protected by international crimes as a result of sending the message that impunity for the most responsible will not be tolerated); (iii) the emphasis of international and hybrid criminal tribunals on the investigation, prosecution and punishment of those most responsible for international crimes; and (iv) the decades-​long consistent practice of international and hybrid criminal tribunals to impose prison sentences commensurate to the gravity of the crimes and the convicted persons’ involvement in their commission (Olásolo & Ramírez, 2017). First, the sjp material jurisdiction does not encompasses all war crimes, as it is limited to serious war crimes constituting systematic ihl breaches. Moreover, gross human rights violations amounting to crimes against humanity, which are not committed on occasion, because of, or in direct or indirect relation to, the armed conflict, are also left out of the sjp material jurisdiction (Colombian Government & farc, 2016: para. 145). Second, the sjp can only exercise personal jurisdiction over heads of state with the consent of the Accusations Commission of Congress (Colombian Government & farc, 2016:  para. 149). Over the previous 25  years, the Commission has only once permitted criminal proceedings against a high-​ level state official, namely former President of the Constitutional Court, Jorge Pretelt, in 2015 (Semana, 24/​08/​2016). It follows that the sjp may never exercise personal jurisdiction over any Colombian head of state. Third, the peace agreement and Legislative Act No. 1 of 2017, which incorporates the peace agreement into Colombian Law, contain a restrictive definition of superior responsibility in relation to state officials, which does not include any reference to article 28 of the icc Statute or international law (Colombian Government & farc, 2016:  paras. 151, 152). According to this definition, superiors, in addition to having effective control over their subordinates, must also have effective control over the specific criminal conduct of their subordinates.5 This requirement is characteristic of principal liability theories. As a result, and as highlighted by the icc Prosecutor (Semana 30/​01/​ 2017), the Inter-​American Commission on Human Rights (El Espectador, 21/​ 5 See Transitory Article 24 of Legislative Act No. 1 (2017). Although the judgement of the Colombian Constitutional Court on the constitutionality of Legislative Act No. 1 (2017), issued on 14 November 2017, amended seven of its articles, transitory article 24 was not among them. See Constitutional Court of Colombia, Judgment (C-​674/​2017) (14/​11/​ 2017). Furthermore, the 30 November 2017 Law on the Special Jurisdiction for Peace (Ley Estatutaria que regula la administración de justicia de la Jurisdicción Especial para la Paz) does not include any provision on the definition of superior responsibility for Colombian Security Forces’ superiors.

160 Chapter 12 03/​2017) and Human Rights Watch (2017), it is unclear whether the sjp holds personal jurisdiction over a high-​level state official removed from the scene of his or her subordinates’ crimes (Olásolo & Ramírez, 2017). Finally, one of the most controversial aspects of the peace agreement, which is not addressed by Legislative Act No. 1 of 2017, is the exclusion –​where the requirements set out by the peace agreement are met –​of imprisonment as an alternative penalty. As a result, the available alternative penalties in these cases are limited to restrictions of rights other than those relating to political participation and representation (e.g. mandatory community work), and restrictions on freedom of movement outside a specified geographical area for a time period ranging from five to eight years (Colombian Government & farc, 2016: paras. 164–​165; 172–​174). Although crimes against humanity and war crimes found to have been committed in Colombia by the icc Prosecutor (2012) do not have a substantial different nature from the atrocity crimes under the jurisdiction of international and hybrid criminal tribunals, the system of alternative penalties provided for in peace agreement does not appear to be consistent with these tribunals’ constant and uniform practice of relying on imprisonment as the appropriate penalty for such international crimes. In this regard, it must be noted that imprisonment and death were the main penalties imposed by the Nuremberg and Tokyo Tribunals after the Second World War.6 Subsequently, imprisonment for a number of years proportional to the seriousness of the crimes and the degree of involvement of the convicted individual, has become the main penalty imposed by the international and hybrid criminal tribunals established since 1990 (D’Ascoli, 2011), such as the icty,7 the ictr,8 the Special Panels for Serious Crimes in East Timor,9 the Regulation 64 Panels in the Courts of Kosovo,10 the scsl,11 the eccc,12 the stl,13

6 7 8 9

10 11 12 13

See article 27 of the Charter of the International Military Tribunal of Nuremberg. See also article 16 of the Charter of the International Military Tribunal for the Far East. Article 24 of the icty Statute. Article 23 of the ictr Statute. untaet (2000). Regulation No. 2000/​15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. un Doc. UNTAET/​R EG/​2000/​15. 6 June 2000. Section 10. unmik (2000). Regulation No. 2000/​64 on the Assignment of International Judges/​ Prosecutors and/​or Change of venue. UNMIK/​R EG/​2000/​64. 15 December 2000. Article 19 of the scsl Statute. Articles 38 and 39 of Law to Amend the 2001 Law on the Establishment of the eccc. Article 24 of the stl Statute.

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the eac s,14 and the ksc s.15 Likewise, article 77 of the icc Statute establishes an imprisonment penalty for a maximum of 30 years, with the possibility of extending it to reviewable life imprisonment if two or more aggravating circumstances take place. Under this provision, fines and confiscation may be complementary, but not alternative, penalties to imprisonment. In light of the above-​mentioned, and considering that the system of alternative penalties provided for in the peace agreement is the result of one of the main political demands made by the farc leadership during the negotiation process (El Espectador, 31/​10/​2016), the icc Prosecutor should determine whether the icc Statute imposes any limitation on the Colombian government to accept the farc’s position on this issue. If so, the icc Prosecutor should also assess whether complementarity must be deemed exhausted with regard to those cases in which the alternative penalties do not satisfy the goals of punishment under the icc Statute (Olásolo & Ramírez, 2017). Furthermore, given that the 14 November 2017 judgement of the Colombian Constitutional Court on the constitutionality of Legislative Act No. 1 of 2017,16 and the 30 November 2017 Law on the Special Jurisdiction for Peace,17 have not addressed any of the above-​mentioned concerns, complementarity assessments carried out by the icc Prosecutor may be also necessary in relation to other cases, such as those against high level state officials, in which some of the controversial issues referred to above are particularly relevant. As a result, the strategy adopted by Colombia of establishing tj mechanisms which do not comply with the legal regime of international crimes in order to address the normative dilemma posed by the overlapping scope of application of icl and tj is rather problematic. This strategy, which as seen in c­ hapter 3 has also been adopted by Northern Ireland and Spain, in addition to not having the necessary international-​legal legitimacy, places the negotiating the end of authoritarian regimes or armed conflicts in a situation of permanent legal uncertainty. Nobody can guarantee that the national tribunals of the concerned states, foreign national courts that may act pursuant to the principle of universal jurisdiction, international and hybrid criminal tribunals (in particular, the icc) and monitory bodies and tribunals of the universal and regional systems for the protection human rights, will give up on applying the current legal regime of international crimes. 14 15 16 17

Article 24 of the Statute of the eac s. Article 44 of Law No. 05/​L-​053 on ksc s and Specialist Prosecutor´s Office. See Constitutional Court of Colombia. Judgment (C-​674/​2017) (14/​11/​2017). Ley Estatutaria que regula la administración de justicia de la Jurisdicción Especial para la Paz. 30 November 2017.

162 Chapter 12 The 2015 Human Rights Committee concluding observations on Spain and Great Britain and Northern Ireland, the 2013 Inter-​American Commission of Human Rights report on the Legal Framework for Peace in Colombia and the concerns shown by the icc Prosecutor in relation to the regulation of superior responsibility in the 24 November 2016 peace agreement between the Colombian government and the farc, reinforce this conclusion. D

Final Remarks

The normative dilemma posed by the overlapping scope of application of icl and tj has its origin in the fact that, unlike the consolidated legal regime of international crimes under ihrl, ihl and icl, neither general international law nor conventional law regulates tj. Faced with this situation, Colombia, Northern Ireland and Spain have established tj mechanisms which do not comply with the legal regime of international crimes. This approach is rather problematic because, in addition to not having the necessary international-​ legal legitimacy, places relevant parties in a situation of permanent legal uncertainty. Nevertheless, from a policy perspective, it appears necessary to harmonize the current legal regime of international crimes with the need to articulate transitional processes that are capable to effectively overcome authoritarian regimes and armed conflicts. To undertake effectively this harmonization process, the following two steps should be previously taken. First, supporters of the current regulation of international crimes should recognize the serious material limitations shown by national, international and hybrid icl enforcement mechanisms and redefine consequently the goals pursued by icl. Second, tj scholars should make an effort to reach a minimum level of consensus on the scope of application, goals and elements of tj. The differences between icl and tj scholars are so profound that, unless dogmatisms are left aside and a process of dialogue and openness is entered into, it will not be possible to carry out a comprehensive review of the current legal regime of international crimes in order to integrate, as far as possible, their core demands. Furthermore, as critical theories point out, this process should be based on a throughout analysis of the results obtained with the application of the different approaches to tj (liberal, social-​democratic and critical theories-​based). Needless to say, situations like Mexico, which may cause the extension of the scopes of application of icl and tj to situations of large scale violence by transnational criminal organizations, increase the challenge even more.

Table of Cases A International Cases

Cases under Law No. 10 of the Allied Control Council (1947–​1953)



European Court of Human Rights

Einsatzgruppen Case. Trials of War Criminals before the Nuremberg Military Tribunals under Allied Control Council Law No. 10. 1947–​1953. Vol.4. Justice Case. Trials of War Criminals before the Nuremberg Military Tribunals under Allied Control Council Law No. 10. 1947–​1953. Vol. 3.

ecthr. S.W. v. United Kingdom. Judgment. 22 November 1995. ecthr. Aksoy v. Turkey. Judgment. 18 December 1996. ecthr. Selmouni v. France. Judgment. 28 July 1999. ecthr. Streletz, Kessler and Krenz v. Germany. Judgment. 22 March 2001. ecthr. Al-​Adsani v. United Kingdom. Judgment. 21 November 2002. ecthr. Kalogeropoulou v. Greece and Germany. Judgment. 12 December 2002. ecthr. Ayder and Others v. Turkey. Judgment. 8 January 2004. ecthr. Jorgic v. Germany. Judgment. 12 July 2007. ecthr. Korbely v. Hungary. Judgment. 19 September 2008. ecthr. Kononov v. Letonia. Judgment. 17 May 2010. ecthr. Jones et al. v. United Kingdom. Judgment. 14 January 2014.

Extraordinary African Chambers Habré Case

E0CAs [Chambre africaine extraordinaire d’assises à la Cour d’Appel de Dakar]. Ministère public contre Hissein Habré. Jugement rendu par la Chambre Africaine Extraordinaire d'Assises dans l'affaire ministère public contre Hissein Habré. 30 de mayo de 2016.

Extraordinary Chambers in the Courts of Cambodia Samphan Case

eccc [tc]. The Prosecutor v. Samphan. Case 002/​01. Judgment. 7 de agosto de 2014.



Inter-​American Commission on Human Rights

iachr (1999). Third Report on Human Rights in Colombia. 26 February 1999. iachr (2013). Country Reports:  Colombia, Truth, Justice and Reparation. 31 December 2013.

164 

TABLE OF CASES

iachr. Rafael Ferrer-​Mazorra et al. v. United States. Merits. Report No. 51/​01. 4 April 2001. Case No. 9.903 iachr. Jorge, José and Dante Peirano Basso v. Uruguay. Admissibility. Report No. 35/​ 06. 14 March 2006. Petition. No. 1109-​04. iachr. Jorge, José and Dante Peirano Basso v.  Uruguay. Merits. Report No. 86/​09. 6 August 2009. Case No. 12.553.



Inter-​American Court of Human Rights

IACtHR. Velásquez Rodríguez v.  Honduras. Preliminary Objections. Judgment of 26 June 1987. IACtHR. Advisory Opinion OC-​9/​87. Judicial Guarantees in States of Emergency. 6 October 1987. IACtHR. Velásquez Rodríguez v. Honduras. Merits. Judgment of 29 July 1988. IACtHR. Velásquez Rodríguez v. Honduras. Separate Opinion of Judge Piza Escalante to the Judgment of 29 July 1988. IACtHR. Godínez Cruz v. Honduras. Merits. Judgment of 20 January 1989. IACtHR. Fairén Garbi and Solís Corrales v.  Honduras. Mertis. Judgment of 15 March 1989. IACtHR. Advisory Opinion OC-​10/​89. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights. 14 July 1989. IACtHR Advisory Opinion OC-​11/​90. Exceptions to Exhaustion of Domestic Remedies. 10 August 1990. IACtHR. Aloeboetoe et  al. v.  Surinam. Reparations and Costs. Judgment of 10 September 1993. IACtHR. Garrido and Baigorria v. Argentina. Merits. Judgment of 2 February 1996. IACtHR. El Amparo v.  Venezuela. Reparations and Costs. Judgment of 14 September 1996. IACtHR. Genie Lacayo v.  Nicaragua. Merits, Reparations and Costs. Judgment of 29 January 1997. Separate Opinion of Judge Cançado Trindade. IACtHR. Villagrán Morales et  al. v.  Guatemala. Preliminar Objections. Judgment of 11 September 1997. IACtHR. Loayza Tamayo v. Perú. Merits. Judgment of 17 September 1997. IACtHR. Suárez Rosero v. Ecuador. Merits. Judgment of 12 November 1997. IACtHR. Garrido and Baigorria v.  Argentina. Reparations and Costs. Judgment of 27 August 1998. IACtHR. Castillo Páez v. Perú. Reparations and Costs. Judgment of 28 November 1998. IACtHR. Blake v. Guatemala. Reparations and Costs. Judgment of 22 January 1999. IACtHR. Castillo Petruzzi v.  Perú. Merits, Reparations and Costs. Judgment of 30 May 1999.

TABLE OF CASES

165

IACtHR. Aguilera La Rosa (“Caracazo”) v.  Venezuela. Merits. Judgment of 11 November 1999. IACtHR. Villagrán Morales et al. v. Guatemala. Merits. Judgment of 19 November 1999. IACtHR. Bamaca Velasquez v. Guatemala. Merits. Judgment of 25 November 2000. IACtHR. Bamaca Velázquez v.  Guatemala. Merits. Judgment of 25 November 2000. Concurring Opinion of Judge García Ramírez. IACtHR. Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of 2 February 2001. IACtHR. Olmedo Bustos et  al. v.  Chile. Merits, Reparations and Costs. Judgment of 5 February 2001. IACtHR. Barrios Altos v. Peru. Merits. Judgment of 14 March 2001. IACtHR. Hilaire, Constantine, Benjamín et  al. v.  Trinidad & Tobago. Preliminary Objections. Judgment of 1 September 2001. Concurring Opinion of Judge Cançado Trindade. IACtHR. Barrios Family v.  Venezuela. Merits, Reparations and Costs. Judgment of 24 November 2001. IACtHR. Cantoral Benavides v. Peru. Reparations and Costs. Judgment of 3 December 2001. IACtHR. Las Palmeras v. Colombia. Merits. Judgment of 6 December 2001. IACtHR. Aguilera La Rosa et al. (“El Caracazo”) v. Venezuela. Reparations and Costs. Judgment of 29 August 2002. IACtHR. Cantos v. Argentina. Merits, Reparations and Costs. 28 November 2002. IACtHR. Juan Humberto Sánchez v.  Honduras. Preliminary Objections, Merits, Reparations and Costs. Judgment of 7 June 2003. IACtHR. Advisory Opinion OC-​18/​03.Juridical Condition and Rights of Undocumented Migrants. 17 September 2003. Concurring Vote of Judge Cançado Trindade. IACtHR. Bulacio v. Argentina. Merits, Reparations and Costs. 18 September 2003. IACtHR. Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of 25 November 2003. IACtHR. Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of 25 November 2003. Concurring Vote of Judge Cançado Trindade. IACtHR. Maritza Urrutia v.  Guatemala. Merits, Reparations and Costs. Judgment of 27 November 2003. IACtHR. Molina Theissen v. Guatemala. Merits. Judgment of 4 May 2004. IACtHR. 19 Merchants v.  Colombia. Merits, Reparations and Costs. Judgment of 5 July 2004. IACtHR. Gómez Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of 8 July 2004. IACtHR. Ricardo Canese v.  Paraguay. Merits, Reparations and Costs. Judgment of 31 August 2004.

166 

TABLE OF CASES

IACtHR. “Institute of Reeducation of Minors” v.  Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of 2 September 2004. IACtHR. Tibi v.  Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of 7 September 2004. IACtHR. De la Cruz Flores v.  Peru. Merits, Reparations and Costs. Judgment of 18 November 2004. IACtHR. Lori Berenson Mejía v. Peru. Merits, Reparations and Costs. Judgment of 25 November 2004. IACtHR. Huilca Tecse v.  Peru. Merits, Reparations and Costs. Judgment of 3 March 2005. IACtHR. Caesar v. Trinidad & Tobago. Merits, Reparations and Costs. Judgment of 11 March 2005. IACtHR. Moiwana Community v. Suriman. Preliminary Objections, Merits, Reparations and Costs. Judgment of 15 June 2005. IACtHR. Yakye Axa Indigeous Community v. Paraguay. Merit, Reparations and Costs. Judgment of 17 June 2005. IACtHR. Fermín Ramírez v. Guatemala. Merits, Reparations and Costs. Judgment of 20 June 2005. IACtHR. Mapiripán Masacre v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of 15 September 2005. IACtHR. Palamara Iribarne v.  Chile. Merits, Reparations and Costs. Judgment of 22 November 2005. IACtHR. García Asto and Ramírez Rojas v.  Peru. Merits, Reparations and Costs. Judgment of 25 November 2005. IACtHR. García Asto and Ramírez Rojas v.  Peru. Merits, Reparations and Costs. Judgment of 25 November 2005. Separate Opinion of Judge Medina Quiroga. IACtHR. Acevedo Jaramillo et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of 7 February 2006. IACtHR. Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of 29 March 2006. IACtHR. Ximenes Lopes v. Brasil. Merits. Judgment of 4 July 2006. IACtHR. Servellón García et al. v. Honduras. Merits. Judgment of 21 September 2006. IACtHR. Goiburu et  al. v.  Paraguay. Merits, Reparations and Costs. Judgment of 22 September 2006. IACtHR. Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 September 2006. IACtHR. Vargas-​Areco v.  Paraguay. Merits, Reparations and Costs. Judgment of 26 September 2006. IACtHR. Penal Miguel Castro v. Peru. Merits, Reparations and Costs. Judgment of 25 November 2006.

TABLE OF CASES

167

IACtHR. Nogueira de Carvalho et  al. v.  Brasil. Preliminary Objections and Merits. Judgment of 28 November 2006. IACtHR. La Cantuta University v. Peru. Merits, Reparations and Costs. Judgment of 29 November 2006. IACtHR. La Rochela Massacre v. Colombia. Merits, Reparations and Costs. Judgment of 11 May 2007. IACtHR. Zambrano Vélez et al. v. Ecuador. Merits, Reparations and Costs. Judgment of 4 July 2007. IACtHR. Saramaka People v. Surinam. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28 November 2007. IACtHR. Five Pensioners v. Peru. Merits. Judgment of 28 February 2008. IACtHR. Kimel v.  Argentina. Merits, Reparations and Costs. Judgment of 2 May 2008. IACtHR. Bayarri v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of 30 October 2008. IACtHR. Tiu Tojín v.  Guatemala. Merits, Reparations and Costs. Judgment of 26 November 2008. IACtHR. Valle Jaramillo et al. v. Colombia. Merits, Reparations and Costs. Judgment of 27 November 2008. IACtHR. Ticona Estrada et al. v. Bolivia. Merits, Reparations and Costs. Judgment of 27 November 2008. IACtHR. González et  al. (“Cotton Field”) v.  México. Preliminary Objections, Merits, Reparations and Costs. Judgment of 16 November 2009. IACtHR. Radilla-​Pacheco v. México. Preliminary Objections, Merits, Reparations and Costs. Judgment of 23 November 2009. IACtHR. “Las Dos Erres” Massacre v.  Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of 24 November 2009. IACtHR. Chitay Nech et al. v. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of 25 May 2010. IACtHR. Ibsen Cárdenas and Ibsen Peña v.  Bolivia. Merits, Reparations and Costs. Judgment of 1 September 2010. IACtHR. Gomes Lund et al. (Guerrilha do Araguaia) v. Brasil. Preliminary Objections, Merits, Reparations and Costs. Judgment of 24 November 2010. IACtHR. Gelman v. Uruguay. Mertis and Reparations. Judgment of 24 February 2011. IACtHR. Torres Millacura et al. v. Argentina. Merits, Reparations and Costs. Judgment of 26 August 2011. IACtHR. Blanco Romero et al. v. Venezuela. Merits, Reparations and Costs. Judgment of 28 November 2011. Separate Opinion of Judge Cançado Trindade. IACtHR. Fontevechio and D’amico v.  Argentina. Merits, Reparations and Costs. Judgment of 29 November 2011.

168 

TABLE OF CASES

IACtHR. Caso Fornerón and daughter v.  Argentina. Merits, Reparations and Costs. Judgment of 27 April 2012. IACtHR. Caso Furlán and Family Members v. Argentina. Merits, Reparations and Costs. Judgment of 31 August 2012. IACtHR. Río Negro Massacres v.  Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of 4 September 2012. IACtHR. El Mozote and Nearby Places Massacres v. El Salvador. Merits, Reparations and Costs. Judgment of 25 October 2012. IACtHR. El Mozote and Nearby Places Massacres v. El Salvador. Merits, Reparations and Costs. Judgment of 25 October 2012. Concurring Vote of Judge Diego García-​Sayán. IACtHR. Gudiel Álvarez et al. v. Guatemala. Merits, Reparations and Costs. Judgment of 20 November 2012. IACtHR. García and Family Members v.  Guatemala. Merits, Reparations and Costs. Judgment of 29 November 2012. IACtHR. Osorio Rivera and Family Members v.  Peru. Merits, Reparations and Costs. Judgment of 26 November 2013. IACtHR. García y Lucero et al. v. Chile. Merits, Reparations and Costs. Judgment of 26 November 2013. IACtHR. Kaliña and Lokono Peoples v.  Surinam. Merits, Reparations and Costs. Judgment of 25 November 2015.



International Court of Justice

icj. Reparation for Injuries Suffered in the Service of the United Nations. Advisory Opinion. 7 December 1948. icj. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisory Opinión. 5 August 1970. icj. Belgium v. Spain. Barcelona Traction Light and Power Company Limited. Judgment. 5 February 1970. icj. Nicaragua v. United States of America. Military and Paramilitary Activities in and against Nicaragua, Judgment. 27 June 1986. icj. Portugal v. Australia. Case concerning East Timor. Judgment. 30 June 1995. icj. Democratic Republic of Congo v.  Belgium (Yerodia Case). Arrest Warrant. Judgment. 14 February 2002. icj. Democratic Republic of Congo v.  Belgium (Yerodia Case). Arrest Warrant. Judgment. 14 February 2002. Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal icj. Djibuti v.  France. Certain Questions of Mutual Assistance in Criminal Matters. Judgment. 4 June 2008. cij. Germany v. Italy. Jurisdictional Immunities. Judgment. 3 February 2012.

TABLE OF CASES

169

cij. Germany v. Italy. Jurisdictional Immunities. Judgment. 3 Feburary 2012. Separate Opinion of Judge Cançado Trindade. cij. Germany v. Italy. Jurisdictional Immunities. Judgment. 3 Feburary 2012. Separate Opinion of Judges Keith and Benouna.



International Criminal Court Abu Garda Case

icc [ptc i]. The Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges. ICC-​02/​05-​02/​09-​243-​Red. 8 February 2010.



Al Bashir Case



Banda and Jerbo Case

icc [ptc i]. The Prosecutor v.  Omar Hassan Ahmad Al Bashir. Decision on the Prosecution´s Application for a Warrant of Arrest against Omar Al Bashir. ICC-​02/​ 05-​01/​09-​3. 4 March 2009. icc [ptc i]. The Prosecutor v.  Omar Hassan Ahmad Al Bashir. “Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir.” ICC-​ 02/​05-​01/​09-​139-​Corr. 13 December 2011. icc [ptc ii]. The Prosecutor v. Omar Hassan Ahmad Al Bashir. Decision Regarding Omar Al-​Bashir's Potential Visit to the Republic of Chad. ICC-​02/​05-​01/​09-​194. 25 March 2014. icc [ptc ii]. The Prosecutor v.  Omar Hassan Ahmad Al Bashir. Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al-​Bashir’s Arrest and Surrender to the Court. ICC-​02/​05-​01/​09-​195. 9 April 2014. icc [ptc ii]. The Prosecutor v. Omar Hassan Ahmad Al Bashir. Decision on the Non-​ Compliance by the Republic of Djibouti with the Request to Arrest and Surrender Omar Al-​Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute. ICC-​02/​05-​01/​ 09-​266. 11 July 2016. icc [ptc ii]. The Prosecutor v. Omar Hassan Ahmad Al Bashir. Decision on the Non-​ Compliance by the Republic of Uganda with the Request to Arrest and Surrender Omar Al-​Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute. ICC-​02/​05-​01/​09-​ 267. 11 July 2016.

icc [tc i]. The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus. Corrigendum of the “Decision on the Confirmation of Charges.” ICC-​ 02/​05-​03/​09-​121-​ Corr-​Red. 7 March 2011.

170 

TABLE OF CASES

Bemba Case

icc [ptc ii]. The Prosecutor v. Jean Pierre Bemba Gombo, Decision pursuant to Article 67 (a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean Pierre Bemba Gombo. ICC-​01/​05-​01/​08-​424. 15 June 2009. icc [tc iii]. The Prosecutor v.  Jean Pierre Bemba Gombo. Judgment pursuant to Article 74 of the Statute. ICC-​01/​05-​01/​08-​3343. 21 March 2016.

Gadaffi et al. Case

icc [ptc i]. The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-​ Islam Gaddafi and Abdullah Al-​Senussi, Decision on the “Prosecutor´s Application pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-​ Islam Gaddafi and Abdullah Al Senussi.” ICC-​01/​11-​01/​11-​1. 27 June 2011. icc [ptc i]. The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-​ Islam Gaddafi and Abdullah Al-​Senussi. Decision on Libya´s Submissions regarding the Arrest of Saif Al-​Islam Gaddafi. ICC-​01/​11-​01/​11–​72. 7 March 2012.

Gbagbo Case

icc [ptc iii]. The Prosecutor v. Laurent Koudou Gbagbo, Public Redacted Version of the “Decision on the Prosecutor´s Application pursuant to Article 58 for a Warrant of Arrest against Laurent Koudou Gbagbo.” ICC-​02/​11-​01/​11-​1. 23 November 2011.

Katanga Case

icc [tc ii]. The Prosecutor v. Germain Katanga. Jugement rendu en application de l´article 74 du Statut. ICC-​01/​04-​01/​07. 7 March 2014. icc [tc ii]. The Prosecutor v. Germain Katanga. T. Décision relative à la peine (article 76 du Statut). ICC-​01/​04-​01/​07-​3484. 23 May 2014. icc [Registry]. The Prosecutor v. Germain Katanga. Registry Report on Applications for Reportations in Accordance with Trial Chamber ii’s Order of 27 August 2014. ICC-​01/​04-​01/​07-​3512. 15 December 2014. icc [Legal Representatives of Victims]. The Prosecutor v. Germain Katanga. Redacted Version of Observations des Victimes sur les Réparations (Articles 68(3) et 75 Du Statut; Règles 89 à 93 et 97 du Règlement de Procédure et de Preuve). ICC-​01/​04-​ 01/​07-​3514-​Red. 27 January 2015. icc [Office of Public Counsel for Victims]. The Prosecutor v. Germain Katanga. Annex to Observations des Victimes sur les Principes et la Procédure en Réparation. ICC-​ 01/​04-​01/​07-​3555-​Anx. 15 May 2015.



Katanga and Ngudjolo Case

icc [ptc i]. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-​ Trial Stage of the Case. ICC-​01/​04-​01/​07-​474. 13 May 2008.

TABLE OF CASES

171

icc [ptc i]. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. Pre-​Trial Chamber I Decision on the Confirmation of the Charges. ICC-​01/​04-​01/​07-​717. 1 October 2008. icc [ac], The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. Decision of the Presiding Judge of the Appeals Chamber in the appeal of Germain Katanga against the Decision of Trial Chamber ii of 12 June 2009 on the Admissibility of the Case. ICC-​01/​04-​01/​07-​1286. 10 July 2009.

Kenyatta Case

icc [tc i]. The Prosecutor v.  Uhuru Muigai Kenyatta. Decision on Variation of Summons Conditions. ICC-​01/​09-​02/​11–​38. 4 April 2011. icc [tc i]. The Prosecutor v. Uhuru Muigai Kenyatta. Decision on the withdrawal of charges against Mr Kenyatta. ICC-​01/​09-​02/​11–​1005. 13 March 2015.

Lubanga Case

icc [ptc i]. The Prosecutor v Thomas Lubanga Dyilo. Corrigendum of Decision on the Prosecutor’s Application for a Warrant of Arrest: Art. 58. ICC-​01/​04-​01/​06-​l-​U S-​ Exp-​Con. 10 February 2006. icc [ptc i]. The Prosecutor v. Thomas Lubanga Dyilo. “Decision on the Final System of Disclosure and Establishment of a Time Table.” ICC-​01/​04-​01/​06-​102-​Annex I. 15 May 2006. icc [ptc i]. The Prosecutor v. Thomas Luganga Dyilo. Decision on the Confirmation of the Charges. ICC-​01/​04-​01/​06-​803-​tEN. 29 January 2007. icc [ptc i]. The Prosecutor v. Thomas Luganga Dyilo. Décision sur les Demandes de Participation à la Procédure Déposées dans le Cadre de l’Enquête en République Démocratique du Congo par a/​0004/​06 à a/​0009/​06, a/​0016/​06 à a/​0063/​06, a/​ 0071/​06 à a/​0080/​06 et a/​0105/​06 à a/​0110/​06, a/​0188/​06, a/​0128/​06 à a/​0162/​ 06, a/​0199/​06, a/​0203/​06, a/​0209/​06, a/​0214/​06, a/​0220/​06 à a/​0222/​06, a/​0224/​ 06, a/​0227/​06 à a/​0230/​06, a/​0234/​06 à a/​0236/​06, a/​0240/​06, a/​0225/​06, a/​ 0226/​06, a/​0231/​06 à a/​0233/​06, a/​0237/​06 à a/​0239/​06 et a/​0241/​06 à a/​0250/​ 06. ICC-​01/​04-​423. 24 December 2007. icc [tc i]. The Prosecutor v. Thomas Luganga Dyilo. Decision on Victim’s Applications. ICC-​01/​04-​01/​06-​1119. 18 January 2008. icc [tc i]. The Prosecutor v. Thomas Lubanga Dyilo. Redacted Version of “Decision on ‘Indirect Victims’ .” ICC-​01/​04-​01/​06-​1813. 8 April 2009. icc [tc i]. The Prosecutor v. Thomas Lubanga Dyilo. Decision on the Consequences of Non-​Disclosure of Exculpatory Materials Covered by Art. 54 (3)(b) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain Other Issues Raised at the Status Conference on 10.06.2008. ICC-​01/​04-​01/​06-​1401. 13 June 2009. icc [tc i]. The Prosecutor v. Thomas Lubanga Dyilo. Judgement. ICC-​01/​04-​01/​06-​ 2842. 14 March 2012.

172 

TABLE OF CASES

icc [tc i]. The Prosecutor v.  Thomas Lubanga Dyilo. Decision Establishing the Principles and Procedures to be Applied in Reparations. ICC-​01/​04-​01/​06-​2904. 7 August 2012. icc [tc ii]. The Prosecutor v. Thomas Lubanga Dyilo. Request for Leave to Appeal Against the “Ordonnance Enjoignant au Fonds au Profit des Victimes de Compléter le Projet de Plan de Mise en Oeuvre.” ICC-​01/​04-​01/​06-​3200. 9 February 2016. icc [tc ii]. The Prosecutor v. Thomas Lubanga Dyilo. Order Instructing the Trust Fund for Victims to Supplement the Draft Implementation Plan. ICC-​01/​04-​01/​06-​3198-​ tENG. 9 March 2016. icc [ac]. The Prosecutor v.  Thomas Lubanga Dyilo. Judgment on the Prosecutor’s Appeal against the Decision of Pre-​Trial Chamber I  Entitled “Decision on the Prosecutor’s Application for Warrants of Arrest.” ICC-​01/​04-​169, 13 July 2007. icc [ac]. The Prosecutor v.  Thomas Lubanga Dyilo. Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18.01.2008. ICC-​01/​04-​01/​06-​1432. OA9 OA10. 11 July 2008. icc [ac]. The Prosecutor v.  Thomas Lubanga Dyilo. Judgement on the Appeal of the Prosecutor against the Decision of Trial Chamber I Entitled ‘Decision on the Consequences of Non-​Disclosure of Exculpatory Materials Covered by Art. 54 (3)(b) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain Other Issues Raised at the Status Conference on 10.06.2008’ .” ICC-​01/​ 04-​01/​06 OA 13. 21 August 2008. icc [ac]. The Prosecutor v.  Thomas Lubanga Dyilo. Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction. ICC-​01/​04-​01/​06-​ 3121-​Red. 1 December 2014. icc [ac]. The Prosecutor v.  Thomas Lubanga Dyilo. Judgment on The Appeals Against the “Decision Establishing the Principles and Procedures to Be Applied to Reparations” of 7 August 2012 with Amended Order for Reparations (Annex A) and Public Annexes 1 and 2. ICC-​01/​04-​01/​06-​3129. 3 March 2015. icc [Trust Fund]. The Prosecutor v.  Thomas Lubanga Dyilo. Observations on Reparations in Response to the Scheduling Order of 14.03.2012. ICC-​ 01/​04-​01/​ 06-​2872. 25 April 2012. icc [Justice Plus, Terre des Enfants, Centre Pélican-​Training for Peace and Justice/​ Journalistes en Action pour la Paix, Fédération des Jeunes pour la Paix Mondiale and Avocats Sans Frontières]. The Prosecutor v.  Thomas Lubanga Dyilo. Observations Relatives au Régime de Réparation. ICC-​01/​04-​01/​06-​2877. 10 May 2012. icc [Office of Public Counsel for Victims]. The Prosecutor v. Thomas Lubanga Dyilo. Observations concerning reparations by the Office of Public Counsel for Victims. ICC-​01/​04-​01/​06-​2863. 18 April 2012.

TABLE OF CASES

173

Mbarushimana Case

icc [ptc i]. The Prosecutor v. Callixte Mbarushimana. Decision on the Confirmation of the Charges. ICC-​01/​04-​01/​10-​465-​Red. 16 December 2011.

Muthaura Case

icc [ptc ii]. The Prosecutor v. Francis Kirimi Muthaura Uhuru Muigai Kenyatta and Mohammed Hussein Ali. Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. ICC-​01/​09-​02/​11-​01. 8 March 2011. icc [ptc ii]. The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. Decision on the Confirmation of the Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute. ICC-​01/​09-​02/​11-​382-​Red. 23 de enero de 2012.



Ngudjolo Chui Case

icc [tc ii]. The Prosecutor v. Mathieu Ngudjolo Chui. Jugement Rendu en Application del´Article 74 du Statute. ICC-​01/​04-​02/​12–​3. 18 December 2012.

Ruto et al. Case

icc [ptc ii]. The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang. Decision on the Prosecutor's Application for Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang. ICC-​01/​09-​01/​ 11-​01. 8 March 2011. icc [ptc ii]. The Prosecutor v.  William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang. Decision on the Confirmation of the Charges pursuant to Article 61 (7)(a) and (b) of the Rome Statute. ICC-​01/​09-​01/​11–​373. 23 January 2012.



Situation in Burundi



Situation in the Democratic Republic of the Congo

icc [ptc iii]. Situation in the Republic of Burundi. Public Redacted Version of “Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi,” ICC-​01/​17-​X -​9-​U S-​Exp. No. ICC-​01/​17-​X . 25 October 2017.

icc [ptc i]. Situation in the Democratic Republic of the Congo. Decision on the Applications for Participation in the Proceedings of vprs 1, vprs 2, vprs 3, vprs 4, vprs 5 and vprs 6. ICC-​01/​04-​101-​tEN-​Corr. 17 January 2006. icc [ac]. Situation in the Democratic Republic of the Congo. Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the opcd against the Decision of Pre-​Trial Chamber i of 07.12.2007 and in the Appeals

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TABLE OF CASES

of the opcd and the Prosecutor against the Decision of Pre-​Trial Chamber i of 24.12.2007. ICC-​01/​04-​556 oa4, oa5, oa6. 19 December 2008.



Situation in Ivory Coast



Situation in Kenya



Situation in Uganda

icc [ptc ii]. Situation in the Republic of Ivory Coast. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte d'Ivoire. ICC-​02/​11–​14. 3 October 2011.

icc [ptc ii]. Situation in Kenya. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya. ICC-​01/​09-​19. 31 March 2010. icc [ptc ii]. Situation in Kenya. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya. Dissenting Opinion of Judge Hans-​Peter Kaul. ICC-​01/​09-​19. 31 March 2010.

icc [ptc ii]. Situation in Uganda. Decision on Victim’s Applications for Participation a/​0010/​06, a/​0064/​06 to a/​0070/​06, a/​0081/​06 to a/​0104/​06 and a/​0111/​06 to a/​ 0127/​06. ICC-​02/​04-​101. 10 August 2007.

International Criminal Tribunal for Rwanda Akayesu Case

ictr [tc]. The Prosecutor v.  Jean-​ Paul Akayesu. Judgement. ICTR-​96-​4-​T. 2 September 1998. ictr [ac]. The Prosecutor v.  Jean-​Paul Akayesu. Judgement. ICTR-​96-​4-​A. 1 June 2001.

Gatete Case

ictr [ac]. The Prosecutor v. Jean-​Baptiste Gatete. ICTR-​00-​61-​A. Judgment. 9 October 2012.

Kalelijeli Case

ictr [tc]. The Prosecutor v. Juvenal Kajelijeli. Judgement. ICTR-​98-​44A-​T. 1 December 2003.

Kambanda Case

ictr [tc]. The Prosecutor v. Jean Kambanda. Judgement. ICTR-​97-​23-​S. 4 September 1998.

TABLE OF CASES



Kayishema & Ruzindana Case



Mugenzi & Mugirazena Case (Government ii)

175

ictr [tc]. The Prosecutor v. Clement Kayishema and Obed Ruzindana. Judgement. ICTR-​95-​1-​T. 21 May 1999.

ictr [ac]. The Prosecutor v.  Justin Mugenzi & Prosper Mugiraneza. ICTR-​99-​50-​A. Judgment. 4 February 2013.

Muhimana Case

ictr [tc]. The Prosecutor v.  Mikaeli Muhimana. Judgment. ICTR-​95-​1B. 28 April 2005.

Musema Case

ictr [tc]. The Prosecutor v. Alfred Musema. Judgment and Sentence. ICTR-​96-​13-​T. 27 January 2000.

Nahimana et al. Case

ictr [ac]. The Prosecutor v.  Ferdinand Nahimana, Jean-​Bosco Barayagwiza and Hassan Ngeze. Appeals Judgement. ICTR-​99-​52-​A. 28 November 2007.

Ntagerura et al. Case

ictr [ac]. The Prosecutor v.  Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe. Appeals Judgment. ICTR-​99-​46-​A. 7 July 2006.

Ntakirutima Case

ictr [tc]. The Prosecutor v.  Elizaphan Ntakirutima and Gerard Ntakirutimana. Judgement. ICTR-​96-​17-​T. 21 February 2003.

Ruggiu Case

ictr [tc]. The Prosecutor v. George Ruggiu. Judgment and Sentence. ICTR-​97-​32. 1 June 2000.

Rutaganda Case

ictr [tc]. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda. Judgment and Sentence. ICTR-​96-​3-​T. 6 December 1999.

Rutaganira Case

ictr [tc]. The Prosecutor v. Vincent Rutaganira. Judgment and Sentence. ICTR-​95-​1C. 14 March 2005.

176 

TABLE OF CASES

Semanza Case

ictr [tc]. The Prosecutor v. Laurent Semanza. Judgement. ICTR-​97-​20-​T. 15 May 2003.

Nyiramasuhuko et al. Case (Butare)

ictr [ac]. The Prosecutor v.  Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje. Judgment. ICTR-​98-​42-​A. 14 December 2015.

International Criminal Tribunal for the Former Yugoslavia Aleksovski Case

icty [ac]. The Prosecutor v.  Zlatko Aleksovski. Judgment. IT-​95-​14/​1-​A. 24 March 2000.

Blaškić Case

ictr [tc]. The Prosecutor v. Tihomir Blaškić. Judgment. IT-​95-​14-​T. 3 March 2000. icty [ac]. The Prosecutor v, Tihomir Blaškić. Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997. IT-​95-​14-​ AR108bis. 29 October1997. icty [ac]. The Prosecutor v. Tihomir Blaškić. Appeals Chamber Judgment. IT-​95-​14-​ A. 29 July 2004.

Brđanin Case

icty [ac]. The Prosecutor v. Radoslav Brđanin. Appeals Chamber Judgement. IT-​99-​ 36-​A. 3 April 2007.

Delalić et al. Case

icty [tc]. The Prosecutor v Zejnil Delalić et  al. Judgement. IT-​26-​21-​T. 16 November 1998. icty [ac]. The Prosecutor v. Zejnil Delalić et al. Appeals Judgement. IT-​26-​21-​A. 20 February 2001.

Erdemović Case

icty [ac]. The Prosecutor v. Dražen Erdemović. Sentencing Judgment. IT-​96-​22-​Tbis. 5 March1998. icty [ac]. The Prosecutor v. Dražen Erdemović. Appeals Chamber Judgement. IT-​96-​ 22-​A. 7 October 1997.

Furundžija Case

icty [tc]. The Prosecutor v. Anto Furundžija. Judgment. IT-​95-​17/​1-​T. 10 December 1998.

TABLE OF CASES

177

Galić Case

icty [tc]. The Prosecutor v.  Stanislav Galić. Judgment. IT-​98-​29-​T. 5 December 2003.



Hadžihasanović & Kubura Case

icty [tc]. The Prosecutor v. Enver Hadžihasanović and Amir Kubura. Judgment. ICTY-​ 01-​47-​T. 15 March 2006. icty [ac]. The Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility. IT-​01-​47-​A R 72. 16 July 2003.

Halilović Case

icty [tc]. The Prosecutor v.  Sefer Halilović. Judgment. IT-​01-​48-​T. 16 November 2005.



M. Jokić Case

icty [tc]. The Prosecutor v. Miodrag Jokić. Judgment. IT-​01-​42/​1. 18 March 2004.

Karadžić Case

icty [tc]. The Prosecutor v. Radovan Karadžić. Decision on the Accused´s Holbrooke Agreement Motion. IT-​9S-​SI18-​P T. 8 July 2009.

Karadžić et al. Case

icty [tc]. The Prosecutor v. Radovan Karadžić et al. Trial Chamber Decision on the Bosnian-​Serb Deferral Proposal. IT-​95-​5-​D. 16 May 1995.



Kordić & Čerkez Case

icty [tc]. The Prosecutor v. Dario Kordić and Mario Čerkez. Judgement. IT-​95-​14/​2-​T. 26 February 2001. icty [ac]. The Prosecutor v. Dario Kordić and Mario Čerkez. Judgement. IT-​95-​14/​2-​A. 17 December 2004.

Krstić Case

icty [ac]. The Prosecutor v. Radislav Krstić. Judgment. IT-​98-​33-​A. 19 April 2004.

Kunarac et al. Case

icty [tc]. The Prosecutor v. Dragoljub Kunarac. Radomir Kovać and Zoran Vuković, Judgment. IT-​98-​30/​1-​T. 2 November 2001. icty [ac]. The Prosecutor v. Dragoljub Kunarac, Radomir Kovać and Zoran Vuković. Appeals Judgement. IT-​96-​23/​1-​A. 12 June 2002.

178 

TABLE OF CASES

Kupreškić et al. Case

icty [tc]. The Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić. IT-​95-​16-​T. Judgment. 14 January 2000.

Kvočka et al. Case

icty [tc]. The Prosecutor v. Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlado Radić and Zoran Zigić. Judgment. IT-​98-​30/​1-​T. 2 November 2001.



D. Milošević Case



Caso Milutinović et al. Case



Naletilić (alias Tuta) and Martinović (alias Štela) Case



D. Nikolić Case



M. Nikolić Case

icty [Office of the Prosecutor]. The Prosecutor v. Dragomir Milošević. Croatia: Second Amended Indictment. ICTY-​02-​54-​T. 28 July 2004. icty [tc]. The Prosecutor v. Dragomir Milošević. Decision on Preliminar Motions. IT-​ 02-​54-​T. 8 November 2001.

icty [ac]. The Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić. Decision on Dragoljub Ojdanic’ Motion Challenging Jurisdiction-​Joint Criminal Enterprise. IT-​99-​37-​AR72. 21 May 2003.

icty [tc]. The Prosecutor v. Mladen Naletilić and Vinko Martinović. Judgement. IT-​ 98-​34-​T. 31 March 2003.

icty [tc]. The Prosecutor v.  Dragan Nikolić. Sentencing Judgment. IT-​94-​2. 18 December 2003.

icty [tc]. The Prosecutor v. Momir Nikolić. Judgment. IT-​02-​60/​1. 2 December 2003.

Orić Case

icty [tc]. The Prosecutor v. Naser Orić. Judgment. IT-​03-​68-​T. 30 June 2006.

Plavšić Case

icty [tc]. The Prosecutor v. Biljana Plavšić. Sentencing Judgment. IT-​00-​39 & 40/​1. 27 February 2003.

Simić et al. Case

icty [tc]. The Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić. Judgment. IT-​95-​9-​T. 17 October 2003.

TABLE OF CASES

179

icty [ac]. The Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić. Appeals Chamber Judgment. IT-​95-​9-​A. 28 November 2006.

Stakić Case

icty [tc]. Prosecutor v. Milomir Stakić. Judgment. IT-​97-​24-​T. 31 July 2003.

Strugar et al. Case

icty [tc]. Prosecutor v.  Pavle Strugar et  al., Judgment. IT-​01-​42-​T. 31 January 2005. icty [ac]. The Prosecutor v. Pavle Strugar et al. Decision on Interlocutory Appeal. IT-​ 01-​42-​AR72. 22 November 2002.

Tadić Case

icty [tc]. The Prosecutor v. Duško Tadić. Judgment. IT-​94-​1-​T. 7 May 1997. icty [ac]. The Prosecutor v. Duško Tadić. Decision (Appeals Chamber) on the Defence Motion for Interlocutory Appeal on Jurisdiction. IT-​94-​1. 2 October 1995. icty [ac]. The Prosecutor v. Duško Tadić. Appeals Chamber Judgment. ICTY-​94-​1-​A. 15 July 1999. icty [ac]. The Prosecutor v Duško Tadić. Judgment in Sentencing Appeals. IT-​94-​1-​A & IT-​94-​1-​Abis. 26 January 2000.

Todorović Case

icty [tc]. The Prosecutor v Stevan Todorović. Sentencing Judgment. IT-​95–​9/​1-​S. 31 July 2001.



International Military Tribunal –​Núremberg



International Military Tribunal for the Far East –​ Tokyo



Permanent Court of International Justice

imt. Judgment. 1 October 1946.

imtfe. Judgment. 4 November 1948. imtfe. Judgment. 4 November 1948. Separate Opinion of Judge Röling. imtfe. Judgment. 4 November 1948. Separate Opinion of Judge Bernard. imtfe. Judgment. 4 November 1948. Separate Opinion of Judge Pal.

pcij. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City. Advisory Opinion. Serie A/​B. No. 65. 4 December 1935. pcij. The Case of the “S.S. Lotus.” France v.  Turkey. Serie A.  No. 10. Judgment. 7 September 1927.

180 

TABLE OF CASES

Special Court for Sierra Leone

scsl [ac]. Prosecutor v.  Augustine Gbao. Decision on Preliminary motion on the invalidity of the agreement between the United Nations and the Government of Sierra Leone on the establishment of the Special Court. SCSL-​2004-​15-​AR72 (E). 25 May 2004. scsl [ac]. Prosecutor v. San Hinga Norman. Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment). SCSL-​2004-​14-​AR72(E). 31 May 2004. scsl [ac]. Prosecutor v. Charles Taylor. Decision on Inmunity from Jurisdiction. SCSL-​ 2003-​01-​1-​AR72 (E). 31 May 2004.

B National Cases Argentina

Supreme Court. Simón et al. case. Judgment. 14 July 2005. Tribunal Oral en lo Criminal Federal de la Plata. Von Wernich et  al. Trial Judgment. 1 September 2007. Tribunal Oral en lo Criminal Federal No. 1 de Córdoba. Luciano Menéndez. Óscar Rodríguez and six of their subordinates case. Trial Judgment. 24 July 2008. Tribunal Oral en los Criminal Federal de Tucumán. Senator Vargas Aignasse et al. case. Trial Judgment. 4 September 2008. Tribunal Oral en lo Criminal de Mar de la Plata. Gregorio Rafael Molina case. Trial Judgment. 16 June 2010. Tribunal Oral en lo Criminal Federal No. 1 de Mendoza. Luciano Menéndez et al. case. Trial Judgment. 27 July 2017. Tribunal Oral en lo Criminal Federal No. 1 de Buenos Aires. Jorge Rafael Videla et al. case. Trial Judgment. 2016. Tribunal Oral en lo Criminal Federal No. 6 de Buenos Aires. Rubén O. Franco et al. case. Judgment. 17 September 2012.

Austria

Supreme Court. W. v. Prince of Liechtenstein. 7 Ob 316/​00x. 14 February 2001.

Belgium

Civil Tribunal of Brussels. Mobutu v. sa Cotoni. 19 December 1988.

Canada

Ontario Supreme Court. Arara v. Jordania. Judgment. 28 February 2006. Ontario Supreme Court. Bouzari v. Iran. Judgment. 1 May 2002.

TABLE OF CASES

181

Colombia

Constitutional Court. Judgment C-​562/​2005. 9 June 2005. Constitutional Court. Judgment C-​370/​2006. 18 May 2006. Constitutional Court, Judgement C-​579/​13. 28 August 2013. Constitutional Court. Auto 073. 27 March 2014. Constitutional Court. Judgment C-​577/​2014. 6 August 2014. Constitutional Court, Judgement C-​674/​2017. 14 November 2017. State Council. Sentencia Rad. No. 11001 0324 000 2004 00227 01. 13 December 2013. Tribunal Superior de Bogotá. Sala de Conocimiento de Justicia y Paz. Edgar Ignacio Fierro Flores, alias Don Antonio case. Trial Judgment. 7 December 2011. Case No. 110016000253-​200681366.

France

Cour de Cassation. Penal Chamber. Federation Nationale des Desportes et Interns Resistants et Patriotes v. Barbie. 20 December 1985. Cout de Cassation. Penal Chamber. Papon case. 23 January 1997. Cout de Cassation. Civil Chamber. Immunité civile pour la Libye de Kadhafi. 13 March 2001. Cour de Cassation. Civil Chamber. Boucheron v. rfa. 16 December 2003. Cour de Cassation. Civil Chamber. Giménez Espósito v. rfa. 2 June 2004. Appeals Tribunal of Paris, Touvier case. Judgment. 13 April 1992. 100 i.l.r. 338. Appeals Tribunal of Paris. État Allemand. 9 September 2009.

Germany

Federal Supreme Court (1994). Honecker case. In International Law Reports. Vol. 80.

Greece

Supreme Court. Distomo case. 4 May 2000.

Guatemala

Constitutional Court. Case No. 1904–​2013. Judgement of 20 May 2013. Tribunal Primero A de Mayor Riesgo. Caso contra José Efraín Ríos Montt. Judgment of 10 May 2013.

Israel

Supreme Court. Eichmann case. Judgment on Appeal. 29 May 1962. Jerusalem District Court. Eichmann case. Judgment. 12 December 1961.

182 

TABLE OF CASES

Italy

Supreme Court. Ferrini case. 11 May 2001. Third Court of Rome. Plan Condor Case. Judgment. 17 January 2017.



New Zealand

Supreme Court. Sam Fang and others v. Zemin Jiang et al. case. 21 December 2006.

Peru

Supreme Court, Penal Chamber. Case No. 5385-​200 (concerning Abimael Guzman, leader of Light Path Movement). Judgment. 14 December 2007. Supreme Court. Special Penal Chamber. Case No. Núm. AV 19–​2001 (concerning former Peruvian president Alberto Fujimori). Judgment. 7 April 2009. Supreme Court. Transitory First Penal Chamber. Case No. AV 19–​2001 (concerning former Peruvian president Alberto Fujimori). Appeals Judgment. 30 December 2009. Tribunal Superior de Lima. Salazar Monroe case (former director of the National Intelligence Service of Peru during the Presidency of Alberto Fujimori). Judgment. 8 April 2008.

Spain

Audiencia Nacional. Penal Chamber. Hassan ii case. Decision. 23 December 1998. Audiencia Nacional. Penal Chamber. Caso Fidel Castro i. Decision. 4 March 1999. Audiencia Nacional. Penal Chamber. Caso Fidel Castro ii. Decision. 13 December 2007. Audiencia Nacional. Investigating Tribunal No. 4. Kagame case. Decision. 6 February 2008. Audiencia Nacional. Penal Chamber. cia Flights case. Decision. 17 December 2014. Dissenting Opinion of Judge José Ricardo de Prada.

Switzerland

Federal Tribunal. Fernidand et Imelda Marcos v.  Office Fédéral de la Pólice. 2 November 1989.



United Kingdom

Appeals Court. Jones v. Ministry of Interior Al-​Mamlaka Al-​Arabiya as Sudiya. 28 de Octubre de 2004. Bow Street Magistrates Court. General Shaul Mofaz case. 12 February 2004. Bow Street Magistrates Court. Bo Xilai case. 8 November 2005. House of Lords. R.  v. Bow Street Stipendiary Magistrate, ex part Pinochet (No. 3). Judgment. Enero 1999. House of Lords. R.  v. Bow Street Stipendiary Magistrate, ex part Pinochet (No. 3). Judgment. Opinions of Lord Steyn, Lord Nicholls of Birkenhead, Lord Hutton and Lord Phillips of Worth Matravers. Enero 1999.

TABLE OF CASES



United States of America

183

Appeals Tribunal of the Second Circuit. Filartiga v.  Pena-​Irala. 630 F.2d 876 (2nd Cir. 1980). Appeals Tribunal of the Ninth Circuit. Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986). Federal Supreme Court. In re Yamashita 327 U.S. 1 (1946). State of New  York. District Tribunal. Tachiona v.  Mugabe. 169 F.Supp.2d 259. 31 October 2001. State of New York. District Tribunal. Lafontant v. Aristide. 27 de febrero de 1994. State of New York. Supreme Court. Kline v. Kaneko. 141 Misc.2d 787. 31 October 1988. State of Oregon. District Tribunal. Fotso v. Republic of Cameroon. 6:12CV 1415-​T C. 22 February 2013.

Uruguay

Supreme Court. Constitutional Chamber. Judgment 148. 12 May 1988. Supreme Court. Constitutional Chamber. Judgment 365. 19 October 2009 Supreme Court. Constitutional Chamber. Judgment 20/​2013. 22 February 2013.

Table of Reports and Other Documents Abuelas de Plaza de Mayo (2005). El Porvenir de la Memoria. 20 September 2005. Available at: https://​www.abuelas.org.ar/​archivos/​publicacion/​coloquio2.pdf. Abuelas de Plaza de Mayo (2007). Las Historias de Abuelas:  30 Años de Búsqueda. 17 October 2007. Available at:  https://​www.abuelas.org.ar/​archivos/​publicacion/​ abuelas30.pdf. African Union (2014). AU Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. June 2014. African Union & Government of Senegal (2012). Accord entre le Gouvernament de la Republic de Senegal et l’Union Africaine sur la Creation de Chambres Africaines Extraordinaires au Sein des Jurisdiction Senegalaises. 22 August 2012. Available at: http://​www.chambresafricaines.org/​pdf/​Accord%20UA-​Senegal%20Chambres%20 africaines%20extra%20Aout%202012.pdf. Amnesty International (1973–​ 1974). Annual Report. 1 January 1974. Available at: https://​www.amnesty.org/​es/​documents/​pol10/​001/​1974/​en/​. Amnesty Intenational (2010). Indagan Primeras Denuncias de Ejecuciones Durante la Dictadura. 3 June 2010. Available at: http://​web.archive.org/​web/​20111204100914/​ h t t p : / / ​ w w w. a m n i s t i a . c l / ​ we b / ​ e n t % C 3 % A 9 r a te / ​ i n d a g a n - p r i m e r a s​ -denuncias-​de-​ejecuciones-​durante-​la-​dictadura. Amnesty International (2012). Preliminary Survey of Legislation around the World –​ Report 2012. Amnesty International, (2012). Kosovo:  Time for EULEX to prioritize war crimes. Available at:  https://​www.google.nl/url?sa=t&rct=j&q=&esrc=s&source=web&cd=​ 2&cad=rja&uact=8&ved=0ahUKEwiNv4fjgdnVAhXRUlAKHdGbA64QFgg1MAE&​ url=https%3A%2F%2Fwww.amnesty​ . org%2Fdownload%2FDocuments​ %2F24000%2Feur700042012en​.pdf&usg=AFQjCNGYGFh0DxuAAIavXvEuFoVsKtVLtw. Amnesty International (2015). Amnesty International Report 2014/​15:  The State of the World´s Human Rights. Available at:  https://​www.amnesty.org/​es/​documents/​ ­document/​?indexNumber=pol10%2f0001%2f2015&language=en. aprodeh (Asociación para la Protección de los Derechos Humanos) & International Centre for Transitional Justice (2009). Sistema de Vigilancia de Reparaciones: Reporte Nacional de Vigencia del Programa de Reparaciones Colectivas –​Etapa II. April 2009. Argentina. Comisión Nacional sobre la Desaparición de Personas (conadep) (1984). Nunca Más: Informe Final de la Comisión Nacional sobre la Desaparición de Personas. Buenos Aires: Eudeba. Argentina. Procuraduría de Crímenes contra la Humanidad (2017). El Estado de las Causas por Delitos de Lesa Humanidad en Argentina.

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185

Balkan Transitional Justice. (2015). Over 500 Indicted for War Crimes in Bosnia. Obtenido de Balkan Transitional Justice. 7 October 2015. Available at: http://​ www.balkaninsight.com/​en/​article/​state-​​prosecution-​​500-​accusations-​of-​war​ -crimes-​235-​indictments-​10-​06-​2015. BBC (2012). Dispute over War Crimes Court Settled. 12 July 2002. Available at: http://​ news.bbc.co.uk/​2/​hi/​americas/​2125829.stm. BBC World (2016). Las Razones por las que el “No” se Impuso en el Plebiscito en Colombia. 3 October 2016. Available at:  http://​ www.bbc.com/​ mundo/​ noticias​ -america-​latina-​37537629. Belfast Telegrahp (2008). Eames: The Speech in Full. 29 May 2008. Available at: https://​ www.belfasttelegraph.co.uk/​news/​eames-​the-​speech-​in-​full-​28390171.html. Brecha. (2016). La Verdad Secuestrada. 13 May 2016. Available at: http://​brecha.com​ .uy/​la-​verdad-​secuestrada/​. Buenos Aires Herald. (2016). 669 People Convicted for Dictatorship Crimes. 24 March 2016. Available at:  http://​www.buenosairesherald.com/​article/​211319/​ 669-​people-​convicted-​for-​dictatorship-​crimes. Canada. Truth and Reconciliation Commission (2015). Reports. Available at:  http://​ nctr.ca/​reports.php. Chile. Comisión Asesora para la Calificación de Detenidos Desaparecidos, Ejecutados Políticos y Víctimas de Prisión Política y Tortura (2011). Información Comisión Valech. 18 August 2011. Available at:  https://​www.indh.cl/​destacados/​comision​ -​valech/​. Chile. Comisión Nacional de Verdad y Reconciliación de Chile (1991). Informe Retting. 8 February 1991. Clarín (1/​04/​2016). El Gobierno Promulgó la Ley de Pago a los Holdouts. 1 April 2016. Available at: https://​www.clarin.com/​politica/​Gobierno-​promulgo-​ley-​pago-​holdouts​ _​0_​4JFnrHPRe.html. Clarín (22/​11/​2016). Colombia: La Oposición Rechaza el Nuevo Acuerdo de Paz y Pide una Reunión con las FARC. 22 November 2016. Available at:  https://​www.clarin​ .com/​mundo/​colombia-​oposicion-​acuerdo-​reunion-​farc_​0_​S14hh6-​zg.html. Colombia. Centro de Memoria Histórica. (2013). Basta Ya. Colombia Memorias de Guerra y Dignidad. Available at:  http://​ www.centrodememoriahistorica.gov.co/​ micrositios/​informeGeneral/​descargas.html. Colombia. Comisión Asesora para la Política de Drogas en Colombia (2015). Comunicado de Prensa. 13 May 2015. Available at: http://​www.odc.gov.co/​Portals/​1/​ comision_​asesora/​docs/​comunicado_​prensa_​comision_​asesora_​13mayo2015.pdf. Colombia. Comisión Histórica del Conflicto y de las Víctimas (2015). Contribución al Entendimiento del Conflicto Armado en Colombia. February 2015. Colombia. Defensoría del Pueblo (2002). La Ejecución de la Estrategia de Erradicación Aérea de los Cultivos Ilícitos, con Químicos, desde una Perspectiva Constitucional.

186 

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Colombia. Gobierno de Colombia & FARC (26/​09/​2016). Acuerdo Final para la Terminación del Conflicto de una Paz Estable y Duradera (initial versión). Colombia. Gobierno de Colombia & FARC (24/​11/​2016). Acuerdo Final para la Terminación del Conflicto de una Paz Estable y Duradera. 24 de Noviembre de 2016 (final versión). Available at:  http://​ www.altocomisionadoparalapaz​ .gov.co/ ​ p rocesos- ​ y - ​ c onversaciones/ ​ D ocumentos%20compartidos/ ​ 2 4-11​ -2016NuevoAcuerdoFinal.pdf Colombia. Gobierno de Colombia & FARC (2015). Borrador Conjunto. Acuerdo sobre las Víctimas del Conflicto:  Sistema Integral de Verdad, Justicia, Reparación y No Repetición. 15 December 2015. Colombia. Gobierno de Colombia & FARC (2014). Comunicado Conjunto Núm. 16 entre el Gobierno de Colombia y las Fuerzas Armadas Revolucionarias de Colombia –​ FARC –​sobre la Solución al Problema de las Drogas Ilícitas. 16 May 2014. Colombia. Ministerio de Salud. Instituto Nacional de Salud (1984). Reunión del Comité de Expertos en Herbicidas. Programa de Tóxico-​Vigilancia en Personas que Pudieran estar Expuestas al Glifosato por el Programa de Erradicación Aérea. Colombia. Ministerio de Salud. Instituto Nacional de Salud (1986). Comité de Expertos en Herbicidas, Implicaciones del uso de herbicidas en la erradicación de cultivos ilícitos. Ministerio de Salud -​Instituto Nacional de Salud. Bogotá. Colombia. Observatorio de Drogas de Colombia (2015). Paso Histórico hacia una Nueva Política de Drogas. Se Suspende la Aspersión con Glisofato. 14 de mayo 2015. Commission of Experts established pursuant to UNSC Resolution 780 (1992). Interim Report. un. Doc. S/​25274. 11 February 1993. Commission of Experts established pursuant to Security Council Resolution 780 (1992). Final Report Commission of Experts established pursuant to Security Council Resolution 780 (1992). u.n. Doc. S/​1994/​674 (1994); and Annexes to the Final Report. 24 May 1994. u.n Doc. S/​1994/​674 (1994). Commission of Experts established pursuant to Security Council Resolution 935 (1994). Interim Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994). 1 October 1994. Commission of Experts established pursuant to Security Council Resolution 935 (1994). Final Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994). u.n. Doc. S/​1994/​1405. 7 December 1994. Daily News (29/​12/​2011). Ex-​dictator of Argentina Reynoldo Bignone Convicted of Kidnapping and Torture. Available at:  http://​www.nydailynews.com/​news/​world/​ ex- ​dictator-​argentina-​reynoldo-​bignone-​convicted-​kidnapping-​torture-article​ -​1.998576. East Timor. Commission for the Reception, Truth and Reconciliation for Timor-​ Leste (2005). Chega! The Report of the Comission for the Reception, Truth and

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187

Reconciliation for Timor-​Leste. Available at:  http://​www.cavr-​timorleste.org/​en/​ chegaReport.htm. El Espectador (4/​05/​2015). Santos Reconoce el Conflicto Armado y Uribe lo Controvierte. Available at: https://​www.elespectador.com/​noticias/​politica/​santos​ -reconoce-​conflicto-​armado-​y-​uribe-​controvierte-​articulo-​267421. El Espectador (31/​10/​2015). Los Detalles del Pacto de Justicia con las Farc. Available at: https://​www.elespectador.com/​noticias/​politica/​los-​detalles-​​del-​pacto-​de-​justicia​ -farc-​articulo-​596443. El Espectador (21/​03/​2017). CIDH Tiene Dudas sobre la Justicia para la Paz. Available at: https://​colombia2020.elespectador.com/​politica/​cidh-​tiene-​dudas-​sobre-​la-​justicia​ -para-​la-​paz. El País. (24/​03/​2016). A 40 Años del Golpe de Estado en Argentina, los Juicios en Cifras. Available at: https://​elpais.com/​internacional/​2016/​03/​24/​argentina/​ 1458840802_​572867.html. El País de Cali (2/​2/​2015). Las Bacrim Ponen la Cuota de Violencia Más Alta en Colombia. Available at: http://​www.elpais.com.co/​judicial/​las-​bacrim-​ponen-​la-​cuota-​de​ -​violencia-​mas-​alta-​en-​colombia.html. El País de Cali (25/​06/​2015). Más de Cinco Mil Agentes del Estado son Investigados por Falsos Positivos. Available at:  http://​www.elpais.com.co/​judicial/​mas-​de-​cinco-​mil​ -​agentes-​del-​estado-​son-​investigados-​por-​falsos-​positivos-​fiscalia.html. El Tiempo (27/​03/​2016). Acuerdo con las FARC es Jaque Mate para la Justicia Colombiana. Available at: http://​www.eltiempo.com/​archivo/​documento/​CMS-​16547551. European Union. European Union Council (2009). Report of the Technical ad hoc African Union-​Europea Union Expert Group on the Principle of Universal Jurisdiction. Doc. Núm. 8672/​1/​09 Rev. 1. 16 April 2009. Extraordinary Chambers in the Courts of Cambodia (2016). The Court Report of the Extraordinary Chambers in the Courts of Cambodia No. 94. February 2016. Avalaible at:  https://​www.eccc.gov.kh/​sites/​default/​files/​publications/​Court%20Report%20 on%20February%202016.pdf. Food and Agriculture Organization (2015). The State of Food Insecurity in the World. Available at: http://​www.fao.org/​3/​a-​i4646e.pdf. Food and Agriculture Organization (2009). 1.02 People Hungry. One Sixth of Humanity Undernourished  –​More than Ever Before. Available at:  http://​www.fao.org/​news/​ story/​en/​item/​20568/​icode/​. Global Policy Forum. (2013). Changing Patterns in the Use of the Veto in the Security Council. Available at:  https://​www.globalpolicy.org/​images/​pdfs/​Changing​ _Patterns_​in_​the_​Use_​of_​the_​Veto_​as_​of_​August_​2012.pdf. Human Rights Committee (2004). General Comment No. 31. The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. u.n. Doc. HRI/​G EN/​1/​ Rev.7: 225.

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Human Rights Committee. (2008). Concluding Observations on the Sixth Periodic Report by the United Kingdom of Great Britain and Northern Ireland. CCPR/​C /​G BR/​ CO/​6. 21 June 2008. Human Rights Committee (2009). Concluding Observations on the Fifth Periodic Report by Spain. CCPR/​C /​E SP/​C O/​5. 5 January 2009. Human Rights Committee (2015a). Concluding Observations on the Sixth Periodic Report by Spain. CCPR/​C /​E SP/​C O/​6. 14 August 2015. Human Rights Committee (2015b). Concluding Observations on the Seventh Periodic Report by the United Kingdom of Great Britain and Northern Ireland. CCPR/​C /​G BR/​ CO/​7. 17 August 2015 Human Rights Watch (2015). World Report 2015. Available at: https://​www.hrw.org/​ sites/​default/​files/​wr2015_​web.pdf. Human Rights Watch. (2016). Letter to President Santos on the New Peace Agreement with the FARC. 23 November 2016. Available at: https://​www.hrw.org/​news/​2016/​ 11/​23/​letter-​president-​santos-​new-​peace-​agreement-​farc. Human Rights Watch (2017). Carta sobre “Responsabilidad de Mando” en la Legislación de Implementación del Acuerdo de Paz. Available at:  https://​www.hrw.org/​es/​ news/​2017/​01/​25/​carta-​sobre-​responsabilidad-​de-​mando-​en-​la-​legislacion-​de​ -implementacion-​del-​acuerdo. Humanitarian Issues Working Group (1997). United Nations High Commissioner for Human Rights. Bosnia and Herzegovina Repatriation and Return Operation. Núm. 97/​7. Ibero-​American Institute of The Hague for Peace, Human Rights and International Justice (2017). Modelos de Justicia Transicional (by Prof. Héctor Olásolo). January 2017. Available at: http://​www.iberoamericaninstituteofthehague.org/​actividades/​ materiales-​audiovisuales-​para-​uso-​docente. Institut de Droit International (2001). Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law. Institut de Droit International. (2009). Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes. International Agency for Research on Cancer (2015). Evaluation of five Organophosphate Insecticides and Herbicides. World Health Organization. Monographs Volume 112. 20 March 2015. Available at:  http://​www.iarc.fr/​en/​media-​centre/​iarcnews/​pdf/​ MonographVolume112.pdf. International Center for Transitional Justice (2008). Truth-​Seeking and Reparations in Morocco. International Center for Transitional Justice & International Cooperation Agency of Japan (2008). Enhancing Socio-​Economic Justice in Sócieties in Transition: Case Studies on the African Continent.

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International Committee of the Red Cross (1987). Commentary to Additional Protocol II to the Geneva Conventions of 1949. Available at: https://​ihl-​databases.icrc.org/​ applic/​ihl/​ihl.nsf/​INTRO/​475?OpenDocument. International Committee of the Red Cross (2005). Customary International Humanitarian Law (Vol. I). New York: Cambridge University Press. International Committee of the Red Cross (2008). ‘Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’. In International Review of the Red Cross. Vol 90. International Committee of the Red Cross (2009). Direct Participation in Hostilities: Questions and Answers. Available at: https://​www.icrc.org/​eng/​resources/​ documents/​faq/​direct-​participation-​ihl-​faq-​020609.htm. International Committee of the Red Cross (2010). Protection of the Civilian Population. Available at:  https://​www.icrc.org/​eng/​what-​we-​do/​protecting-​civilians/​overview​ -​protection-​civilian-​population.htm. International Conference on Human Rights (1968). Proclamation of Tehran. 12 May 1968. International Court of Justice (2016). List of Advisory Proceedings Referred to the Court since 1946 by date of introduction. Available at:  http://​www.icj-​cij.org/​en/​ advisory-​proceedings. International Criminal Court. Assembly of States Parties (2010). Resolution RC/​ Res.6. 11 June 2010. Available at: https://​asp.icc-​cpi.int/​iccdocs/​asp_​docs/​RC2010/​ AMENDMENTS/​CN.651.2010-​ENG-​CoA.pdf. International Criminal Court. Assembly of States Parties (2016) States Parties Chronological List. Available at:  https://​asp.icc-​cpi.int/​en_​menus/​asp/​states%20 parties/​Pages/​states%20parties%20_​%20chronological%20list.aspx. International Criminal Court. Office of the Prosecutor (2003). Paper on Some Policy Issues before the Office of the Prosecutor. 5 September 2003. Available at:  https://​ www.legal-​tools.org/​en/​doc/​f53870/​. International Criminal Court. Office of the Prosecutor (2006). Report on Prosecutorial Strategy. 12 September 2006. Available at:  https://​www.icc-​cpi.int//​Pages/​item​ .aspx?name=otp-​rep-​strategy-​2006. International Criminal Court. Office of the Prosecutor (2007). Policy Paper on the Interests of Justice. 1 September 2007. Available at: https://​www.icc-​cpi.int//​Pages/​ item.aspx?name=otp-​policy-​int-​just. International Criminal Court. Office of the Prosecutor (2010). Draft Policy Paper on Preliminary Examinations. 4 October 2010. Available at:  https://​www.icc​-cpi​ .int/​NR/​rdonlyres/​9FF1EAA1-​41C4-​4A30-​A202-​174B18DA923C/​282515/​OTP​ _​Draftpolicypaperonpreliminaryexaminations04101.pdf. International Criminal Court. Office of the Prosecutor (2012). Situation in Colombia: Interim Report. 14 November 2012. Available at:  https://​www.icc-​cpi.int//​Pages/​ item​.aspx?name=Situation-​in-​Colombia-​Interim-​Report.

190 

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International Criminal Court. Office of the Prosecutor (2013a). Policy Paper on Preliminary Examinations. 1 November 2013. Available at:  https://​www.icc-​cpi​ .int//​Pages/​item.aspx?name=otp-​policy-​pe-​11_​2013. International Criminal Court. Office of the Prosecutor (2013b). Report on Preliminary Examinations Activities. 25 November 2013. Available at: https://​www.icc-​cpi.int//​ Pages/​item.aspx?name=report-​on-​preliminary-​examination-​activities-​2013. International Criminal Court. Office of the Prosecutor (2014). Report on Preliminary Examinations Activities. 2 December 2014. Available at:  https://​www.icc-​cpi.int//​ Pages/​item.aspx?name=pre-​exam2014. International Criminal Court. Office of the Prosecutor (2015). Report on Preliminary Examinations Activities. 12 November 2015. Available at: https://​www.icc-​cpi.int//​ Pages/​item.aspx?name=otp-​rep-​pe-​activities-​2015. International Criminal Court. Office of the Prosecutor (2016a). Draft Policy Paper on Case Selection and Prioritisation. 29 April 2016. Available at: https://​www.icc-​cpi.int//​ Pages/​item.aspx?name=Draft-​Policy-​Paper-​on-​Case-​Selection-​and-​Prioritisation. International Criminal Court. Office of the Prosecutor (2016b). Policy Paper on Case Selection and Prioritisation. 15 September 2016. Available at: https://​www.icc-​cpi​ .int//​Pages/​item.aspx?name=policy-​paper-​on-​case-​selection-​and-​prioritisation. International Criminal Court. Office of the Prosecutor (2016c) Report on Preliminary Examination Activities. 14 November 2016. Available at: https://​www.icc-​cpi.int//​ Pages/​item.aspx?name=161114-​otp-​rep-​PE. International Criminal Court. Office of the Prosecutor (2017). Statement of ICC Prosecutor, Fatou Bensouda, Regarding her Decision to Request Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan. 3 November 2017. Available at:  https://​www.icc-​cpi.int//​Pages/​item​ .aspx?name=171103_​OTP_​Statement. International Criminal Court. Preparatory Committee. (1998). Final Report of the Preparatory Committee on the Establishment of an International Criminal Court. 14 April 1998. un Doc. 183/​2/​Add.1. International Criminal Tribunal for Rwanda (17/​11/​2015). Report on the Completion of the Mandate of the International Criminal Tribunal for Rwanda as at 15 November 2015. Available at:  http://​unictr.unmict.org/​sites/​unictr.org/​files/​legal-​library​/​ 151117_​ictr_​final_​report_​en.pdf. International Criminal Tribunal for the former Yugoslavia (17/​05/​2017). Assessment and report of Judge Carmel Agius, President of the International Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security Council resolution 1534 (2004) (18 November 2016 to 17 May 2017). Available at: http://​ www.icty.org/ ​ s ites/ ​ i cty.org/ ​ f iles/ ​ d ocuments/ ​ 1 70517_ ​ i cty_ ​ p rogress ​ _ report ​ _en.pdf.

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International Criminal Tribunal for the former Yugoslavia (16/​11/​2015). Assessment and Report of the Judge Theodor Meron, President of the ICTY Provided to the Security Concil Pursuant to Paragraph 6 of Security Council Resolution 1534 (2004) Covering the Period From 16 May to 16 November 2015. Available at:  http://​www.securitycouncilreport​ .org/​atf/​cf/​%7B65BFCF9B-​6D27-​4E9C-​8CD3-​CF6E4FF96FF9%7D/​s_​2015_​874.pdf. International Criminal Tribunal for the former Yugoslavia. Office of the Prosecutor (2000). Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. 13 June 2000. Available at: Yugoslavia: http://​www.icty.org/​x/​file/​Press/​nato061300.pdf. International Crisis Group (2005). War on Drugs in Colombia. International Crisis Group (2012). ‘Desmantelar los Nuevos Grupos Armados en Colombia: Lecciones de un Sometimiento’. In Informe sobre América Latina. No. 41. International Labour Organization (1919). Origins and History. Available at:  http://​ www.ilo.org/​global/​about-​the-​ilo/​history/​lang-​-​en/​index.htm. International Law Commission (1950a). ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’. In Report of the International Law Commission on its Second Session, 5 June to 29 July 1950. Official Records of the General Assembly. Fifth Session. Supplement No.12 (A/​1316). International Law Commission (1950b). ‘The Question of International Criminal Jurisidiction0. In Report of the International Law Commission on its Second Session, 5 June to 29 July 1950. Official Records of the General Assembly. Fifth Session. Supplement No.12 (A/​1316). International law Commission (1951). ‘Draft Code of Crimes against the Peace and Security of Mankind’. Report of the International Law Commission on its Third Session, 16 May to 27 July 1951. Official Records of the General Assembly. Sixth Session. Supplement No.9 (A/​1858). International law Commission (1954). ‘Draft Code of Crimes against the Peace and Security of Mankind’. Report of the International Law Commission on its Sixth Session, 3 June to 28 July 1954. Official Records of the General Assembly. Nixth Session. Supplement No.9 (A/​2693). International Law Commission (1982). Report of the International Law Commission on the Work of its Thirty-​Fourth Session, 3 May–23 July 1982. Official Records of the General Assembly, Thirty-​Seventh Session, Supplement No. 10. u.n. Doc. A/​37/​10. International Law Commission (1988). Report of the International Law Commission on the Work of its Fortieth Session, 9 May–29 July 1988, Official Records of the General Assembly, Forty-​Third session, Supplement No. 10. u.n: Doc. A/​43/​10. International Law Commission (1990). Report of the International Law Commission on the Work of its Forty-​Second Session, 1 May–20 July 1990. Official Records of the General Assembly. Forty-​Fifth Session. Supplement No. 10. u.n. Doc. A/​45/​10.

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International Law Commission (1991a). Report of the International Law Commission on the Work of its Forty-​Third Session, 29 April–19 July 1991. Official Records of the General Assembly. Forty-​Sixth Session. Supplement No. 10. u.n. Doc. A/​46/​10. International Law Commission (1991b). ‘Draft Code of Crimes against Peace and Security of Mankind’. In Yearbook of the International Law Commission. Vol. 1991/​2. International Law Commission (1996a). Report of the International Law Commission on the Work of its Forty-​Eighth Session, 6 May–26 July 1996. Official Records of the General Assembly. Fifty-​First Session. Supplement No.10. u.n. Doc. A/​51/​10. International Law Commission (1996b). ‘Draft Code of Crimes against Peace and Security of Mankind’. In Yearbook of the International Law Commission. Vol. 1996. International Law Commission (2001). Report of the International Law Commission on the Work of its Fifty-​Third Session, 23 April–1 June and 2 July–10 August 2001. Official Records of the General Assembly. Fifty-​Sixth Session. Supplement No.10. u.n. Doc. A/​56/​10. International Law Commission (2011). Report of the International Law Commission on the Work of its Sixty-​Third Session, 26 April–3 June and 4 July–12 August 2011. Official Records of the General Assembly. Sixty-​Sixth Session. Supplement No.10. u.n. Doc. A/​66/​10. International Law Commission (2012a). Report of the International Law Commission on the Work of its Sixty-​Fourth Session, 7May–1 June and 7 July–3 August 2012. Official Records of the General Assembly. Sixty-​Seventh Session. Supplement No.10. u.n. Doc. A/​67/​10. International Law Commission (2012b). ‘Preliminary Report on the Immunity of State officials from foreign criminal jurisdictions’. In Report of the International Law Commission on the Work of its Sixty-​Fourth Session, 7May–1 June and 7 July–3 August 2012. Official Records of the General Assembly. Sixty-​Seventh Session. Supplement No.10. u.n. Doc. A/​67/​10. International Law Commission (2013). Report of the International Law Commission on the Work of its Sixty-​Fifth Session, 6 May–7 June and 8 July–9 August 2013. Official Records of the General Assembly. Sixty-​Eighth Session. Supplement No.10. u.n. Doc. A/​68/​10. International Law Commission (2014). Report of the International Law Commission on the Work of its Sixty-​Sixth Session, 5 May–6 June and 7 July–8 August 2014. Official Records of the General Assembly. Sixty-​Ninth Session. Supplement No.10. u.n. Doc. A/​69/​10. International Law Commission (2015a). Report of the International Law Commission on the Work of its Sixty-​Seventh Session, 4 May–5 June and 6 July–7 August 2015. Official Records of the General Assembly. Seventieth Session. Supplement No.10. u.n. Doc. A/​70/​10.

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International Law Commission (2015b). ‘First Report on Crimes against Humanity of the Special Rapporteur on Crimes against Humanity’. In Report of the International Law Commission on the Work of its Sixty-​Seventh Session, 4 May–5 June and 6 July–7 August 2015. Official Records of the General Assembly. Seventieth Session. Supplement No.10. u.n. Doc. A/​70/​10. International Law Commission (2016a). Report of the International Law Commission on the Work of its Sixty-​Eighth Session, 2 May–10 June and 4 July–12 August 2016. Official Records of the General Assembly. Seventy-​First Session. Supplement No.10. u.n. Doc. A/​71/​10. International Law Commission (2017b). ‘Second Report on Crimes against Humanity of the Special Rapporteur on Crimes against Humanity’. In Report of  the International Law Commission on the Work of its Sixty-​Eighth Session, 2 May–10 June and 4 July–12 August 2016. Official Records of the General Assembly. Seventy-​First Session. Supplement No.10. u.n. Doc. A/​71/​10. International Law Commission (2017a). Report of the International Law Commission on the Work of its Sixty-​Ninth Session, 1 May –​2 June and 3 July–4 August 2017. Official Records of the General Assembly. Seventy-​Second Session. Supplement No.10. u.n. Doc. A/​72/​10. International Law Commission (2016b). ‘Third Report on Crimes against Humanity of the Special Rapporteur on Crimes against Humanity’. In Report of the International Law Commission on the Work of its Sixty-​ Ninth Session, 1 May–2 June and 3 July–4 August 2017. Official Records of the General Assembly. Seventy-​Second session. Supplement No.10. u.n. Doc. A/​72/​10. La Nación (10/​07/​2012). 10 Años de la Entrada en Vigor del Estatuto de Roma. Available at:  https://​www.nacion.com/​archivo/​10-​anos-​de-​la-​entrada-​en-​vigor-​del-​estatuto​ -​de-​roma/​QYNEY2C255BWDM37TMQWHKEW2A/​story/​. La Silla Vacía (18/​05/​2014). Lo bueno, lo revolucionario y lo invisible del acuerdo de drogas con las FARC. Available at:  http://​lasillavacia.com/​historia/​lo-​bueno-​lo​ -​revolucionario-​y-​lo-​invisible-​del-​acuerdo-​de-​drogas-​con-​las-​farc-​47429. La Vanguardia (5/​05/​2016). Comienza juicio por operativo que inició el terrorismo de Estado en Argentina. Available at: http://​www.lavanguardia.com/​politica​/20160505​ /401591803334/​comienza-​juicio-​por-​operativo-​que-​inicio-​el-​terrorismo-​de-​estado​ -en-​argentina.html. Le Monde (31/​05/​2016). Hissenè Habré: une peine exemplaire pour un procès historique. Available at:  http://​www.lemonde.fr/​afrique/​article/​2016/​05/​31/​hissene-habre​ -une-​peine-​exemplaire-​pour-​un-​proces-​historique_​4929306_​3212.html. League of Nations (1929). General Treaty for Renunciation of War as an Instrument of National Policy. Available at:  https://​treaties.un.org/​doc/​Publication/​UNTS/​LON/​ Volume%2094/​v94.pdf.

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Maine (USA). Truth and Reconciliation Commission. (2015). Beyond the Mandate  -​ Continuing the Conversation: Maine Wabanaki-​State Child Welfare Truth and Reconcilia­ tion Commission. Available at: http://​www.mainewabanakitrc.org/wp-content​/uploads​/​ 2015/​07/​TRC-​Report-​Expanded_​July2015.pdf. Movimiento Ambiental Colombiano (1992). Comunicado:  Emergencia Ambiental a Causa de Fumigación con Glifosato. Bogotá (Colombia). New  York Times (16/​11/​2016). Russia Cuts Ties with International Criminal Court, Calling It ‘One-​Sided’. Available at:  https://​www.nytimes.com/​2016/​11/​17/​world/​ europe/​russia-​withdraws-​from-​international-​criminal-​court-​calling-​it-​one-​sided​ .html?_​r=0. Northern Ireland. Consultative Group on the Past of Northern Ireland (2009). Report of the Consultative Group on the Past. Belfast. Northern Ireland. Northern Ireland Affairs Committee (2005). Ways of Dealing with Northern Ireland's Past:  Interim Report -​Víctims and Survivors. London: The Stationary Office. NSNBC (01/​27/​2017). ICC Chief Prosecutor Bensouda Threatens with Intervention in Colombia. Available at: https://​nsnbc.me/​2017/​01/​27/​icc-​chief-​prosecutor-​bensouda​ -threatens-​intervention-​in-​colombia/​ Nueva España (1/​10/​2008). Hubo 114.266 Desaparecidos entre 1936 y 1951 según el Auto del Juez Garzón. Available at:  http://​www.lne.es/​espana/​2008/​10/​16/​espana​ -hubo-​114266-​desaparecidos-​1936-​1951-​auto-​juez-​garzon/​686147.htm. RCN Radio (13/​04/​2016). ¿Se Volverá a Fumigar con Glisofato? Available at:  https://​ www.rcnradio.com/​colombia/​se-​volvera-​a-​fumigar-​con-​glifosato. Semana (4/​05/​2011). ¿Qué Significa el Reconocimiento del Conflicto por parte del Gobierno? Available at:  http://​www.semana.com/​nacion/​articulo/​que-​significa​ -reconocimiento-​del-​conflicto-​armado-​parte-​del-​gobierno/​239313-​3. Semana (6/​08/​2013). Las FARC Rechazan el Marco Jurídico para la Paz. Available en: http://​www.semana.com/​nacion/​articulo/​las-​farc-​rechazan-​marco-​juridico-​para​ -paz/​353307-​3. Semana (24/​08/​2016). Pretelt, suspendido de la Corte Constitucional. Available at:  http://​www.semana.com/​nacion/​articulo/​caso-​jorge-​pretelt-​el-​magistrado-​fue​ -suspendido-​de-​la-​corte-​constitucional/​491095. Semana (30/​01/​2017). El Acuerdo de Paz de Colombia Demanda Respeto pero también Responsabilidad. Available at:  http://​www.semana.com/​nacion/​articulo/​deseo​ -corte-​penal-​internacional-​justicia-​transicional-​en-​colombia/​512820. Sierra Leone. Sierra Leone Truth and Reconciliation Comission (2004). Sierra Leone Truth and Reconciliation Comission Reports. Available at: http://​www.sierraleonetrc​ .org/​index.php/​view-​the-​final-​report. South Africa. Truth and Reconciliation Commission of South Africa (1998). Report of the Truth and Reconciliation Commission. Available at:  http://​www.justice.gov.za/ trc/​report/​index.htm.

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Special Court for Sierra Leone. (2013). Eleventh and Final Report of the President of the Special Court for Sierra Leone. 31 December 2013. Available at: http://​www.rscsl​ .org/​Documents/​AnRpt11.pdf. Special Tribunal for Lebanon (2017). Special Tribunal for Lebanon:  Eight Annual Report (2016–​2017). No. 7.  March 2017. Available at:  https://​www.stl-​tsl.org/​en/​ ­documents/​president-​s-​reports-​and-​memoranda/​5580-​eighth-​annual-​report. United Nations. Entity for Gender Equality and Empowerment of Women (2012). Reparations, Development and Gender. October 2012. Available at:  http://​www​ .dealingwiththepast.ch/​fileadmin/​user_​upload/​2013_​Course/​Readings_​2013/​UN​ _Women-​_​Reparations_​_​Development_​and_​Gender.pdf. United Nations. General Assembly (1946). Resolution 85 (I) Affirmation of the principles of international law recognized by the Charter of the Nurnberg Tribunal. 11 December 1946. United Nations. General Assembly (1947). Resolution 177 (II). Formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal. 21 November 1947. United Nations. General Assembly (1948). Resolution 260 A  (III). Adoption of the Convention on the Prevention and Punishment of f the crime of genocide, and text of the Convention. 9 December 1948. United Nations. General Assembly (1948). Resolution 217 A (III). Universal Declaration of Human Rights. 10 December 1948. United Nations. General Assembly (1950a). Resolution 488 (V). Formulation of the Nurnberg Principles. 12 December 1950. United Nations. General Assembly (1950b). Sixth Committee. Report of the Sixth Committee to the General Assembly. 5th Session. U.N. Doc. A/​1639. United Nations. General Assembly (1952). Committee on an International Criminal Jurisdiction (1952). Report of the Committee on an International Criminal Jurisdiction. 7th session. Suppl. 11. U.N. Doc. A/​2136 (1952). United Nations. General Assembly (1954a). Resolution 898 (IX). International criminal jurisdiction. 14 December 1954. United Nations. General Assembly (1954b). Committee on a Code of Crimes against Peace and Mankind. Third Report on a Code of Crimes against Peace and Security of Mankind. 9th Session. u.n. Doc. A/​C N.4/​85. United Nations. General Assembly (1954c). Committee on an International Criminal Jurisdiction (1954). Report of the Committee on an International Criminal Jurisdiction. 9th Session. Suppl. No. 12. u.n. Doc. A/​2645. United Nations. General Assembly (1965). Resolution 2106 A  (XX). International Convention on the Elimination of all Forms of Racial Discrimination. 21 December 1965. United Nations. General Assembly (1968). Resolution 2391 (xxIII). Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 26 November 1968.

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United Nations. General Assembly (1970). Resolution 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations. 24 October 1970. United Nations. General Assembly (1973). Resolution 3068 (XXVIII). International Convention on the Suppression and Punishment of the Crime of Apartheid. 30 November 1973. United Nations. General Assembly (1974). Resolution 3314 (XXIX). Definition of Aggression. 14 December 1974. United Nations. General Assembly (1981). Resolution 36/​106. Draft Code of Offences against the Peace and Security of Mankind. 10 December 1981. United Nations. General Assembly (1981). Resolution 39/​45. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 10 December 1984. United Nations. General Assembly (1989). Resolution 44/​25. Convention on the Rights of the Child. 20 November 1989. United Nations. General Assembly. (1989). Resolución 44/​39. International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities. 4 December 1989. United Nations. General Assembly (1990). Resolution 45/​158. International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. 18 December 1990. United Nations. General Assembly (1994). Resolution 49/​53. Establishment of an International Criminal Court. 9 December 1994. United Nations. General Assembly (2005). Resolution 60/​147. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. 16 December 2005. United Nations. General Assembly (2006). Resolution 61/​106. Convention on the Rights of Persons with Disabilities. 13 December 2006. United Nations. General Assembly (2014). Resolution 69/​124. The scope and application of the principle of universal jurisdiction. 10 December 2014. United Nations. High Commissioner for Refugees (1996). UNHCR Information Notes. No. 3–​4/​96. United Natons. Human Rights Commission (1983). United Nations. Special Rapporteur on the Situation of Human Rights in Chile. Report for the General Assembly's 38th Session. United Nations. Human Rights Commission (1990). United Nations. Report on the Consequences of Impunity.

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Index Afghanistan 42, 45, 79, 96 African Court of Justice and Human Rights 20, 56, 91 African Union 20, 46, 49, 52, 56, 76 Malabo Protocol 20, 56, 91 aggression 5, 6, 15, 17, 20, 57, 62 Algeria 17, 79 amnesty laws 21, 27, 31, 141, 142, 157 Argentina 3, 10, 17, 20, 55, 59, 60, 61, 62, 63, 64, 66, 68, 69, 70, 71, 72, 73, 82, 88, 123, 138, 144, 145 Argentinean Supreme Court 63, 64, 66 Army Mechanized School 67 Decree No. 158/​83 63 Decree No. 1002/​89 63 dirty war 61, 62, 140 Federal Court of Appeals of Buenos Aires 63 Law No. 22,924 of 23 September 1983 or national pacification law 62 Law No. 23,040 63 Law No. 23492 or full stop law 63 Law No. 23521 or due obedience law 63 Memory, Truth and Justice cases 66 military dictatorship 60, 61, 62, 64, 65, 67, 68, 70, 72 Military Juntas 10, 16, 59, 62, 63, 70 Never Again report 132 Plaza de Mayo 61, 69 Presidential Decree No. 1581/​01 65 armed conflicts 6, 13, 27, 28, 53, 95, 107, 115, 128, 131, 132, 156, 157, 161, 162 Australia 116, 131, 133 Bolivia 27, 68, 84, 88 Bosnia and Herzegovina 3, 19, 20, 38, 55, 71 Dayton Agreements 38 Brazil 17, 88, 139, 144 Canada 131, 132 Canadian Truth and Reconciliation Commission 132, 133

Chile 17, 26, 29, 59, 60, 68, 69, 88, 123 China  chinese triads 80, 89 collective memory 114 collective reparations 45, 113, 134, 135 Colombia  bacrims 80, 82, 87, 88, 89, 97, 101, 120 Colon Theatre Peace Agreement 138 Comisión Histórica del Conflicto y sus Víctimas 116 Commission for the Clarification of Truth, Coexistence and Non-​ Repetition 114, 120, 125 Comprehensive Rural Reform 134, 148 Integrated System of Truth, Justice, Reparation and Non-​Repetition 130, 150 Law No. 975 of 2005 on Justice and Peace 111, 146 Law No. 1448 of 2011 147 Legal Framework for Peace 147, 148, 158, 162 National Front 117 peace agreement between the Colombian government and the farc 70, 107, 111, 112, 121, 125, 130, 158, 162 Plan Colombia 84 Rastrojos 87 Special Jurisdiction for Peace 70, 125, 150, 151, 152, 153, 157, 158, 159, 161 Urabeños 87 crime of apartheid 6 crimes against humanity 5, 6, 7, 11, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 37, 38, 46, 47, 48, 49, 50, 59, 66, 67, 68, 71, 73, 76, 91, 95, 96, 97, 98, 99, 100, 101, 113, 120, 124, 126, 133, 142, 143, 144, 147, 151, 158, 159, 160 criminal proceedings for international crimes 7, 11, 37, 60, 69, 71, 113, 156

Index Democratic Republic of the Congo 30 Patriotic Forces for the Liberation of Congo (fplc) 44 Patriotic Resistance Front of Ituri (frpi) 44, 96 Movement for the Liberation of the Congo (mlc) 45 Union of Congolese Patriots (upc) 44 distributive justice 105, 110, 127, 128, 131 drug trafficking democracy 83 Extraordinary African Chambers (eac s) 3, 20, 49, 52, 54, 55, 56, 75, 161 East Timor 3, 19, 46, 49, 50, 54, 116, 124, 160 Extraordinary Chambers in the Courts of Cambodia (eccc) 3, 8, 19, 47, 50, 51, 53, 54, 55, 56, 160 Ecuador 80, 88 enforced disappearances 5, 16, 17, 24, 27, 61, 68, 73, 85, 123, 139, 141, 142, 144, 146 European Court of Human Rights 29 external conspiracy model 81 extrajudicial killings 16 foreign national jurisdictions 3, 73, 74 fourth world 79 fragmentation of international law 154, 155 genocide 5, 6, 11, 12, 20, 21, 22, 31, 32, 37, 38, 46, 47, 48, 49, 51, 53, 54, 59, 71, 73, 76, 91, 95, 113, 124, 133, 147, 151, 158 Guatemala 19, 27, 29, 69, 71, 130 Human Rights Committee 21, 23, 24, 25, 32, 162 hybrid criminal tribunals 3, 4, 5, 6, 7, 9, 11, 19, 22, 23, 31, 37, 46, 49, 50, 52, 53, 54, 55, 56, 71, 75, 76, 96, 101, 113, 126, 159, 160, 161 International Criminal Court (icc) 3, 4, 5, 6, 7, 8, 10, 19, 20, 32, 41, 42, 43, 44, 45, 53, 54, 55, 56, 57, 58, 59, 70, 71, 72, 73, 75, 76, 96, 97, 98, 99, 100, 101, 120, 129, 130, 134, 158, 159, 160, 161, 162 International Criminal Tribunal for Rwanda (ictr) 3, 6, 8, 9, 19, 20, 38, 39, 40, 41, 46, 53, 55, 56, 68, 71, 72, 98, 160

231 International Criminal Tribunal for the former Yugoslavia (icty) 3, 6, 8, 9, 19, 20, 22, 23, 30, 32, 37, 38, 39, 41, 46, 47, 53, 55, 56, 68, 71, 72, 75, 92, 98, 99, 160 International Law Comission (ilc) 5, 14, 15, 19, 21, 74, 76, 100 Rapporteur on Immunity of State Officials from Foreign Criminal Jurisdiction 74 illegal company model 81 individual criminal responsibility 4, 14, 21, 23, 28, 31, 157 Indonesia 56, 116 Inter-​American Commission of Human Rights 158, 162 Inter-​American Court of Human Rights 21, 26 International Court of Justice 21, 29, 31 international crimes 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, 17, 19, 20, 21, 22, 24, 28, 29, 30, 32, 33, 37, 40, 45, 46, 47, 49, 53, 54, 55, 59, 60, 62, 64, 65, 66, 67, 69, 70, 71, 72, 73, 74, 75, 76, 85, 91, 94, 96, 107, 108, 110, 112, 113, 114, 116, 121, 123, 124, 125, 126, 128, 133, 142, 145, 155, 156, 157, 158, 160, 161, 162 international criminal justice 10, 12 international criminal law 3, 12, 91, 92, 97, 154, 155 International Crisis Group 87 international harm principle 95 International Military Tribunals 3 International Residual Mechanism for Criminal Tribunals (mict) 20, 39, 40, 41, 54 Iraq 43, 73, 79, 96 ius cogens 4, 5, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 65, 155, 157 Japan 9, 12, 13, 16, 58, 90, 92, 116, 127, 135 Inagawa-​Kai 89 Japanese yakuza 80, 89, 97, 101 Simiyoshi-​Kai 89 Yamaguchi-​Gumi 89 Kosovo Specialist Chambers (ksc s) 3, 20, 49, 52, 54, 56, 161

232 Index large scale violence 86, 105, 107, 162 Mali, 42, 44, 79 Ansar Eddine 44 Mexico  Los Zetas cartel 85 Mexican drug cartels 80, 82, 84, 85, 89, 97, 101, 108, 109 National Human Rights Commission against Mexican Security Forces 85 Plan Mérida 85, 108 pri 84, 86 Sinaloa cartel 86 Morocco 73, 130 Equality and Reconciliation Commission of Morocco 134 most responsible for international crimes 8, 11, 159 most responsible persons 13, 21, 47, 57, 96, 141, 144, See also most responsible for international crimes Mozambique 156 narco-​democracy 83 national criminal law 7, 8, 67 North Atlantic Treaty Organization (nato) 10, 18, 38 Implementation Force (ifor) 38 Northern Ireland 23, 24, 25, 32, 121, 122, 156, 157, 161, 162 Pakistan 16, 56, 79 pax mafiosa 86 peace agreements 11, 107, 157 peace negotiations 11, 113 Permanent International Court of Justice 59 Lotus case 59 Peru 27, 28, 66, 68, 69, 84, 88, 115, 130, 134 Comprehensive Reparations Policy 130, 134 political commitment 121, 123, 138 Portugal 116 principle of universal jurisdiction 3, 7, 17, 19, 20, 52, 59, 73, 74, 75, 91, 96, 161 Regulation 64 Chambers in the Courts of Kosovo 3, 47 retributive justice 110

Russia  Russian mafia 80, 89 Rwanda 3, 11, 19, 37, 39, 40, 53, 55, 71, 72, 73 gacaca community justice mechanism 72 Rwanda Patriotic Front (rpf) 39, 40 Special Court for Sierra Leone (scsl) 3, 8, 19, 22, 32, 47, 50, 51, 53, 55, 56, 75, 160 security principle 95 shared responsibility 84 Sierra Leone 47, 50, 115, 116, 124 Armed Forces Revolutionary Council (afrc) 50 Civil Defence Forces (cdf) 50 Revolutionary United Front (ruf) 50 slavery 5, 6, 27, 92, 97 South Africa 57, 58, 124, 132, 133 South African Truth and Reconciliation Commission 116, 124 Spain 13, 23, 24, 25, 32, 59, 60, 65, 73, 75, 88, 111, 117, 121, 122, 123, 156, 157, 161, 162 Law No. 52 of 2007 122 Spanish transitional process 111 Special Panels for Serious Crimes of the Dili District Court 46 Special Tribunal for Lebanon (stl) 3, 19, 48, 49, 51, 52, 54, 55, 56, 160 structural injustice 115, 116 structural violence 106, 107, 114, 115, 116, 121, 126, 127, 131, 132, 133, 135, 137, 138 superficial transitions 131, 132 Syria 58, 79 territorial states 3, 19, 20, 53, 69, 70, 71 torture 5, 6, 10, 16, 17, 22, 23, 24, 26, 27, 30, 31, 32, 46, 48, 53, 61, 63, 65, 66, 67, 68, 73, 85, 86, 96, 97, 133, 140, 144, 146, 151, 158 transitional justice 21, 105, 107, 110, 127, 132, 134, 146, 154, 155, 157 critical theories on 137 liberal approach to 106, 110, 112, 127, 131, 137, 138 social-​democratic approach to 106, 127, 129, 134, 137

233

Index transnational crimes 20, 56, 91, 92, 93, 94, 96 transnational criminal organizations 7, 79, 80, 81, 82, 87, 89, 90, 91, 96, 97, 101, 105, 107, 108, 109, 162 transnational related crimes 108 truth commissions 109, 110, 111, 112, 113, 114, 116, 121, 124, 125, 126, 133, 138, 156 truth recovery 121, 123 United Kingdom 9, 12, 13, 14, 18, 30, 31, 58, 59, 62, 116 United Nations  Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 91 Convention against Transnational Organized Crime 91, 92, 93 Millennium Development Goals 134, 135, 136, 137 United Nations Mission in Sierra Leone (unamsil) 47 United Nations Interim Administration in Kosovo (unmik) 47, 50, 160 United Nations Transitional Authority in Eastern Slovenia (untaes) 38

United States 9, 10, 12, 13, 14, 16, 17, 18, 56, 58, 59, 79, 83, 116, 118, 120 Maine-​Wabanaki State Child Welfare Truth and Reconciliation Commission 133 Uruguay  Condor Plan 17, 68, 144 Decree No. 131/​015 143 Law for the Expiration of the State Penal Action 141 Law No. 13,751 of 1969 139 Law No. 15. 737 of 8 March 1985 140 Law No. 18,831 of 2011 143 Movimiento de Liberación Nacional-​Tupamaros 139 Naval Club Agreement 138, 140, 145 Uruguayan transitional process 138, 139, 145 Working Group on Truth and Justice 143 Venezuela 42, 58, 73, 79, 88 war crimes 5, 6, 11, 13, 14, 16, 20, 21, 22, 27, 28, 29, 30, 31, 32, 37, 38, 46, 47, 49, 50, 53, 54, 59, 71, 73, 76, 91, 95, 96, 113, 120, 124, 126, 147, 151, 158, 159, 160