By Julián Huertas, LL.M. in International Law, Universidad de La Sabana (Colombia); LL.B., Universidad del Rosario (Colombia). Professor and researcher at Universidad de La Sabana. Email: Julian.firstname.lastname@example.org
The current Colombian peace process between the Government and FARC, may deal not only with most visible (national) actors in the conflict, but also with the United States. Since 1998, with the “Plan Colombia” programme, the US has been greatly involved in the Colombian conflict. This fact can be relevant for the purpose of stablishing the jurisdiction of the International Criminal Court (ICC) over US nationals, though it has not been accepted by the United States. In the context of a transitional justice plan within the framework of the Rome Statute, a non-rigid approach to amnesties can be the key to solve many of the US and Colombian concerns. This post will analyze the ICC jurisdiction over US citizens in the context of the Colombian peace process and will propose new approaches for the main fear of the United States towards the ICC.
Last September 13th 2015, the Colombian Government and the Fuerzas Armadas Revolucionarias de Colombia – FARC (Colombian Revolutionary Armed Forces) publicly announced an agreement to establish a ‘Special Jurisdiction for Peace’. This sort of jurisdiction will address the crimes committed during the Colombian armed conflict, a complex mix of confrontations between the State armed forces, leftist guerrillas and right-wing paramilitaries that have caused thousands of atrocities during more than 50 years. The sanctions of those crimes are part of the fifth point of the negotiations agenda: the rights of victims. At the same time, on November 12 of this year, the Office of the Prosecutor (OTP) published the Report on Preliminary Examinations in Colombia. In such Report, Prosecutor Bensouda “expressed her hope that the Agreement on the Creation of a Special Jurisdiction for Peace in Colombia would constitute a genuine step towards ending the decades-long armed conflict while paying homage to justice as a critical pillar of sustainable peace”, but indicated that the OTP will “carefully review and analyse the provisions of the agreement, in particular with respect to the restrictions of liberty in special conditions and the inclusion of state agents”. However, the Colombian peace process may deal not only with most visible actors in the conflict (the guerrillas, the Government and the paramilitaries), but also with the United States. Since 1998, with the “Plan Colombia” programme, the US has been greatly involved in the Colombian conflict and that can be relevant for stablishing the jurisdiction of the International Criminal Court (ICC) over US nationals, even though it has not been accepted by the United States.
Nevertheless, as referred by David Schaffer, the former US Ambassador at Large for War Crimes Issues (1997-2001), when he headed the US delegation to the United Nations negotiations on the International Criminal Court, it is “untenable to expose the largest deployed military force in the world, stationed across the globe to help maintain international peace and security and to defend U.S. allies and friends, to the jurisdiction of a criminal court the U.S. Government has not yet joined”. The concern of having military personnel prosecuted and sanctioned by the International Criminal Court (ICC), a tribunal based on a treaty the USA has not ratified, is the key to understand the USA opposition to the ICC jurisdiction over its nationals. As will be explained through this article, according to Article 12 of the Rome Statute, the ICC is capable of prosecuting American citizens (and other non-party States citizens), even if their home State has not accepted the ICC’s jurisdiction. Considered by some as the “single most fundamental flaw in the Rome Treaty”, the US is right when it fears its troops around the world could face an ICC indictment. One of those possible scenarios considered by the US is the Colombian armed conflict, which has existed for more than 50 years.
Because of the US military presence in Colombia, which is a State Party to the Rome Statute, it is not unreasonable to imagine that American military personnel could be also prosecuted by the ICC in the future. Though it is not possible here to establish the elements of that hypothetical liability, it is plausible to believe that within a complex conflict some US personnel could be involved in violations of human rights and International Humanitarian Law in the context of an armed conflict, that can be classified as one or more of the four core crimes incorporated in the Rome Statute. However, in 2012 the Colombian Government initiated in Havana, Cuba, negotiations with the Fuerzas Armadas Revolucionarias de Colombia (FARC), the main guerilla in the Colombian conflict. As in almost all negotiations aimed to terminate an armed conflict, the Havana negotiations face the challenges posed by transitional justice: achieve peace (which entails incentives in criminal sanctions) and avoid impunity, prohibited by the Rome Statute that is mandatory to Colombia. In this context, the ICC could operate as a limit to impunity in transitional processes or, from another point of view, as an obstacle to achieve peace because of the rebel’s political-practical impossibility of accept prison and abandon the weapons at the same time. The main actors of the Colombian conflict are both the guerrillas, paramilitaries and the State military forces, but may be also the US armed forces whose presence in Colombian territory has been constant since the entry into force of Plan Colombia, the US program intended to support the fight against drug traffic and insurgent groups related to drugs. As History has shown, most of the times it has been necessary to create an amnesty law that precludes the investigation and sanctions of the actors involved in the conflict. As will be development through this post, the US should be able to invoke – or propose – the circumstance of a transitional period as a final justification to prevent the jurisdiction of the ICC over American military members.
This article will focus on how, even if the United States has not ratified the Rome Statute and has repeatedly rejected the ICC jurisdiction over its nationals, there are plenty of elements to conclude that ICC can prosecute US citizens when they have committed the crimes within the subject matter jurisdiction of the ICC, as could happen in the Colombian conflict; however, I will also argue that in cases of transitional justice, like the Colombian case, there should be a less strict approach to the criminal responsibility of the actors of the conflict – including US personnel – that could even lead to the none prosecution of all the actors, including US personnel. In this sense, the United States would have a circumstance precluding the jurisdiction of the ICC on his nationals that is, at the end of the day, the main concern that has given rise to the US position towards the ICC.
US troops in Colombia and ICC prosecution
Several human rights violations have been documented by governmental authorities. The United States direct participation in the conflict is signaled by the 2000 Plan Colombia, a military and economic strategy aimed to fight drug traffic, drug cartels and left-wing insurgent groups. After the first support, the US help and involvement grew and, for example, in 2004 the US Congress voted to increase American troops to 800 in Colombia. They have provided training to Colombian military forces and intelligence support. In this context is reasonable to consider a possible intervention of the ICC because of the crimes not prosecuted nor sanctioned in Colombia; in fact, the possibility may be closer than expected, as long as the ICC Prosecutor has warned the Colombian General Attorney about the necessity of prison for the responsible of the Rome Statute crimes, as opposed to the desire of FARC (and probably the Government’s too) in the current peace process. This is precisely the situation the US government envisioned when it rejected the ICC jurisdiction.
For the scholars who reject the ICC jurisdiction over citizens of non-party States to the Rome Statute, a first flaw of the ICC is the broad scope of its decisions, because even they concern individuals and not States, particular sanctions can have important consequences for States. When dealing with official-acts cases or stablishing the occurrence of a disputed fact, “the ICC’s function will resemble less that of a municipal criminal court than that of an international court for the adjudication of interstate legal disputes”. Nevertheless, even if it is true that some individual decisions on criminal issues may have diplomatic and political consequences, the mere fact of that possibility cannot undermine the jurisdiction of a tribunal. As stated by the ICJ in the USA v. Iran case, “never has the view been put forward before that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them”. An analogous reasoning should be made on the prosecution by the ICC of a citizen of a non-party State.
Besides such general critique, the main arguments of the US and writers like Madeline Morris refer to the delegation of both universal and territorial jurisdiction. According to Morris, there are no precedents nor custom of delegation of universal jurisdiction to an international tribunal and such situation “precludes the possibility that delegability has been affirmatively entailed within the customary law of universal jurisdiction as it has developed through state practice and opinio juris”. However, it is possible to find an example of such jurisdiction in the Nuremberg tribunals, where no German consent was needed to establish the courts. The Allies – although occupiers – created a tribunal based on collective delegation of universal (mixed with territorial) jurisdiction and not on the application on national law by occupying powers. There can be also found cogent reference to universal jurisdiction delegation in the war crimes trials based on the Nuremberg Charter and conducted under the international authority of Control Council Law No. 10 (“CCL 10”).
A similar precedent of delegation of universal jurisdiction is represented in the International Criminal Tribunals for the Former Yugoslavia and Rwanda, in which the Security Council of the UN (not the States) created the tribunals. And even if it is objected that the covered States have ratified the UN Charter, it is significant that the ICTY has jurisdiction over a non-party State like Serbia (position defended by the US).
Regarding the objections to territorial jurisdiction delegated to an international court, Prof. Morris highlights the fact that such decision would affect the capacity of compromise outcomes in interstate disputes, and would also make difficult to manage the political impact of verdicts, “the role of an international court in shaping the law, and the possible impediments to diplomatic protection of nationals”, leaving aside the lack of precedent on this matter and the possible abuse by the Court. As an answer to the lack-of-precedent objection, the 1972 European Convention on the Transfer of Proceedings in Criminal Matters, indicates that it “permits transfer of proceedings in the absence of the consent of the state of nationality”. And, again, the Nuremberg tribunals provides an example of delegation of territorial jurisdiction (besides the universal jurisdiction discussed above). At the heart of this discussion lays the States’ capacity of setting (and delegating) its jurisdiction to a different State or to an international tribunal. This capacity, delegated by many States to the ICC, has to be understood under the Lotus principle, according to which “restrictions upon the independence of States cannot (…) be presumed”. It is also accepted that States have sovereignty in its own territory and as a general rule does not depend on the consent of a third State:
“[A] state may claim jurisdiction over persons committing crimes on its territory, without regard to the nationality of the person. It is universally recognized that when a state exercises its criminal jurisdiction over persons committing acts on its territory, the state of nationality need not give its consent. Nationality and territoriality are each an independent and sufficient basis for jurisdiction”.
The fact that the US has negotiated bilateral agreements with other countries, in order to assure immunity of US nationals from prosecution by the Court, does not minimize the issue. Moreover, the American Congress enacted in the 2002 the so called “Hague Invasion Act” (officially, the American Service-Members’ Protection Act – ASPA), a measure aimed to avoid the prosecution of US citizens by the ICC. One of the provision of ASPA, states that “[t]he President is authorized to use all means necessary and appropriate to bring about the release of any person [US national or ally] who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. Nevertheless, it shall be seen not as legal argument against the jurisdiction of the ICC, but rather as a controversial instrument of the US Foreign Policy towards the Court.
The exception of transitional justice processes and the Colombian conflict
As professor Scharf affirms, “since the ICC can legitimately indict U.S. officials for crimes committed in the territories of state parties to the Rome Treaty, the United States actually preserves very little by remaining outside the treaty regime—and could protect itself better by signing the treaty”. The involvement of US troops in the Colombian conflict can be a proof of that reasoning. Having established that the American position towards the ICC jurisdiction lacks soundness, there can be found an approach that could limit the intervention of the ICC on internal conflicts, like the Colombian one. A relevant flaw of the Rome Statute highlighted by some scholars is the absence of reference to peace processes and amnesties: “the Rome Statute omits any direct account of the problem of amnesties, and the failure to acknowledge the legitimacy of considering local amnesties under the Statute may prove troublesome”. As consequence, situations like the Colombian peace process could be affected by the ICC: “it is hard to see how the Rome Statute will accommodate the danger to democratic transitions in a principled way, when the issue was left sublingual [by the Preparatory Committee of the Statute]”. Though some authors affirm that such scenario would be unlikely in practice, as “the Statute itself provides sufficient safeguards against excessive prosecutorial latitude”, the wording of the Rome Statute is clear on having no reference to amnesties nor transitional situations.
Cryer has weighed the obligation of prosecuting and the hypothetical necessity of amnesties in cases of armed conflicts:
“At first sight the case of a crime covered by an amnesty would clearly be admissible before the Court in that there would have been no national investigation or prosecution or, if there had been, it would have been ‘for the purpose of shielding the person concerned from criminal responsibility’. It has been argued however that if amnesties are accompanied by some form of inquiry (as with the South African Truth and Reconciliation Commission) that would constitute an investigation sufficient to render the case inadmissible before the Court”.
Nonetheless, Article 17 of the Rome Statute says that the Court shall determine that a case is inadmissible where “(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” and where “(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3”. According to those provisions, Cryer raises the point of some scholars, who affirm that:
“(…) the wording of Article 17(2) (a) and (c) makes clear that the investigation must be for the purpose of bringing the person concerned to justice. It would only be if the term ‘justice’ could be interpreted so as to include forms of justice alternative to criminal justice that such a case might be inadmissible; in view of the reference to ‘national judicial system’ in Article 17(3) and the wording of the fourth and sixth preambular paragraphs of the Statute, such an interpretation would seem unlikely”.
That reasoning shows the necessity of a flexible approach to the ICC jurisdiction in transitional justice periods that could require amnesties or similar measures to achieve peace. A possible way to reach that flexible approach is provided by complementarity and Article’s 53 consideration of the interest of justice. This alternative has been defended by some scholars who recognize that “given its mandate, [the ICC] must generally insist on prosecution, but there may be exceptional circumstances where it would be not in the interests of justice to interfere with a reconciliation mechanism”. Because of the limited length of this article, it is not possible to examine in depth the scope and requirements under which the prosecution of the ICC should not be activated, but it is sufficient to propose such alternative regarding the termination of armed conflicts like the Colombian. As a procedural matter, the Prosecutor has no absolute discretion to decide the opening of an investigation:
“The Prosecutor may however decide, having regard to a particular amnesty, that there would be ‘substantial reasons to believe that an investigation would not serve the interests of justice’, taking into account ‘the gravity of the crime and the interests of victims’. But if a decision not to initiate an investigation is taken solely on the ground that it would be against the interests of justice, the Prosecutor must inform the Pre-Trial Chamber, which may decide to review the decision”.
In conclusion, according to this proposal, and considering that – regardless of its rejection to the ICC jurisdiction – US troops could hypothetically be prosecuted by the ICC in a context like the Colombian armed conflict, it should be suggested a new exception to the ICC jurisdiction, or at least a less stringent interpretation. Of course, that would imply previously the acceptance of the Rome Statute by the US, which is highly convenient for the American purposes, as has been suggested before. As the main practical concern of US representatives towards the ICC is the prosecution of its troops overseas, this proposal could result successful. If there could be a limitation to the ICC jurisdiction in cases where transitional justice is operating in States parties to the Rome Statute, then many of the US worries could be tamed.
 A recent entry commenting this Report, by Nicolás Córdoba and Julián Huertas, can be found here: El silencio de la Corte Penal Internacional frente a la Jurisdicción Especial para la Paz del Gobierno y las FARC: Informe de 2015
 Scheffer, David, The United States and the International Criminal Court, 93 American Journal of International Law, 12, 19 (1999), p. 18.
 Scheffer, David, International Criminal Court: The Challenge of Jurisdiction, address at the Annual Meeting of the American Society of International Law 2 (Mar. 26, 1999). Cited in Scharf, M., ‘The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position’, Law and Contemporary Problems, (2001), p. 69, note n. 11.
 Grupo de Memoria Histórica. Informe ¡Basta Ya! Colombia: memorias de guerra y dignidad, 2013. Available at http://www.centrodememoriahistorica.gov.co/descargas/informes2013/bastaYa/BYColombiaMemoriasGuerraDignidadAgosto2014.pdf.
 Cfr. Fajardo, Luis Eduardo. From the Alliance for Progress to the Plan Colombia: A retrospective look at U.S. aid to Colombia. Working Paper no.28. Crisis States Programme, Development Research Centre, DESTIN, London School of Economics and Political Science, April 2003. P. 27-31. Available at http://eprints.lse.ac.uk/28249/1/WP28LF.pdf.
 Forero, Juan. Colombian peace process. Congress Approves Doubling U.S. Troops in Colombia to 800. New York Times, October 10, 2004. Available at http://www.nytimes.com/2004/10/11/international/americas/11colombia.html.
 Reynolds, Phillip W, Persistent Conflict and Special Operations Forces. Military Review; May/Jun2014, Vol. 92 Issue 3, p. 66.
 In a 2014 interview, Mr. Eduardo Montealegre, Colombia’s General Attorney, confirmed that Prosecutor Bensouda told him that effective justice demands prison in the Rome Statute context: “en criterio de la Fiscal de la Corte Penal Internacional, sin prisión efectiva no hay justicia”. Available at http://www.eltiempo.com/politica/justicia/corte-penal-insiste-en-carcel-para-jefes-de-farc/14743117.
 Morris, Madeline, High Crimes and Misconceptions: The ICC and Non-Party States, Law and Contemporary Problems, vol. 64 (2001), p. 15.
 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, no. 37.
 Morris, op. cit., p. 43.
 Cfr. Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, Law and Contemporary Problems, (2001), p. 103.
 Cfr. Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, op. cit. p. 107.
 Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, op. cit. p. 108-110.
 Morris, op. cit. p. 45.
 Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, op. cit., p. 13.
 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser. A), par. 44.
 Hafner, Boon, et al, A response to the American view as presented by Ruth Wedgwood, European Journal of International Law (1999), p. 117.
 American Service Members’ Protection Act, U.S.C. § 2008(a).
 See Orentlicher, Diane, Unilateral Multilateralism: United States Policy Toward the International Criminal Court, 36 Cornell International Law Journal 415 (2004).
 Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, op. cit. p. 117.
 Wedgewood, Ruth, The International Criminal Court: An American View, European Journal of International Law vol. 10 (1999), p. 96.
 Ibid., p. 97.
 Hafner, Boon, et al., op. cit., p. 112.
 Cryer, Robert, at al, An Introduction to International Criminal Law and Procedure (Cambridge, 2005), p. 131-132.
 Article 20 of the Rome Statute affirms that no person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless those proceedings: (a) Were for the purpose of shielding the person concerned from criminal responsibility; or (b) Otherwise were not conducted independently or impartially (…) and were conducted in a manner which was inconsistent with an intent to bring the person concerned to justice.
 Cryer, ‘An Introduction to International Criminal Law and Procedure’, p. 132.
 See Zwanenburg, Marten, The statute for an international criminal court and the United States: peacekeepers under fire?, European Journal of International Law, vol. 10 (1999), p. 130-132.
 Robinson, Darryl, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, European Journal of International Law, vol. 14 (2003), p. 483.
 Cryer, ‘An Introduction to International Criminal Law and Procedure’, p. 132.