The accomplishment of communitarian parameters: an excuse to violate Human Rights?

by Alejandra Peláez Peñaranda

The European Union continues to provoke controversies in the international arena with regard to the sources of Right that the same one is forced to fulfill. Although questioning ourselves about this characteristic can merely seem of altruistic character it is important that the International Society starts doing it. The reason is simple: the lack of knowledge of these could open the path for violations of Humans Rights. It is exactly this panorama the one we perceive while the EU gives application to the United Nations Security Council´s Resolutions.

The Kahdi affair is a perfect example of this situation. Mr. Yassin Abdullah Kadi, resident of Saudi Arabia, was a victim of the lack of effective protection that the judicial tutelage is offering to the citizens. The importance of this case is the extensive argumentation that the First Instance’s Court and the Court of Justice developed to be able to establish the supremacy of the communitarian norms over the international ones or vice versa. The conclusion of this analysis is that in order to preserve the EU’s vision of their norms system they are sacrifying the effectiveness of the judicial tutelage on which the citizens count to protect their rights.

In order to understand the case we should mention some factual precedents. In 1999 the Security Council of the United Nations, based on the Resolution 1267, created the Sanctioning Committee and took a series of measures towards Al Qaeda and the Taliban. They established basically three penalties: the freezing of assets, the travel and the flight ban. To adopt the resolution, the European Union´s Council adopted the 15 of November 1999 the Common Position 1999/727/CFSP concerning the restrictive measures against this community.

On March 8th, 2001, the Sanctioning Committee published the first list of companies and people who should be subject of funds freezing, as was established by Resolutions 1267 of 1999 and 1333 of 2000 of the Security Council. Such a list has been modified and completed in several occasions, as are the cases of the addends of October 17^th and November 9^th, published by the Sanctioning Committee, in which the name of «Al-Qadi, Yasin (A. K. A. Kadi, Shaykh Yassin Abdullah; A. K. A. Kahdi, Yasin), Jeddah, Saudi Arabia» was added.

In January 2002, the Security Council approved Resolution 1290 of 2002, which determined the measures to be taken against Mr. Osama Bin Laden, the members of the Al-Qaida organization, the Taliban, and other people, groups, companies and entities related to them. Paragraphs 1 and 2 of that Resolution established, essentially, amongst other things, that the funds freezing measures taken in paragraph 4, section b of Resolution 1267 of 1999 and in paragraph 8, section c, of Resolution 1333 of 2000 would remain the same. Such measures would be revised 12 months later by the Security Council, which would decide if the measures would remain the same or be improved.

The Security Council approved on May 27^Th, 2002, the Common Position 2002/402/CFSP. Its article 3 establishes that the funds freezing should continue and broaden its extent to other financial actives or economic resources of people, groups, companies and entities that are part of the list established by the Sanctioning Committee according to Resolutions 1267 of 1999 and 1333 of 2000.

Such measures made Mr. Kadi start a series of suits in the First Instance Tribunal’s Secretary’s Office, seeking the annulment of the rules that allegedly infringed his rights to be heard, the respect of private property, the principle of proportionality and to an effective judiciary control. In effect, the Justice Tribunal annulled those rules, favoring the position of the plaintiff, especially in his allegations concerning his last claim, which is of vital interest of the analysis that this text pretends to do.

To finish the contextualization that we are doing, we need to rapidly revise the basic characteristics of the European Union and of the United Nations and its Charter. The European Union was established on November 1^St, 1993, when the Treaty of the European Union came into application. Its creation had many political consequences that have generated the need to do an analysis of the system of sources of International Law. This is due to the fact that the European Union is a supranational and intergovernmental organization, in which its members share a common legal order, and its functioning is based in the existence of its own Communitarian institutions.

On the other hand, the creation of the United Nations in 1945 and the adhesion of the States to the Letter – international founder treaty of the organism – implied an entailment of these last ones to the future decisions emitted in forms of Resolution by this Organization. This because it is a treaty of constituent character that implies that the States are forced by the total of its content. In consequence, especially in the article 25 of the Letter, it is established that the members of the organization will have to accept and to fulfill the decisions of the Security Council.

It is noticeable that the creation of Resolutions normally should tie the states members of the treaties. The problem is that this fact is not that evident when we are talking about states members of the EU. As it had been mentioned before, this block must guide its performances in agreement with its original Letter and its principles. Even Thus, it is not implied that by sharing membership with the UN, these are tied by the resolutions of the Security Council. On the contrary, it must be understood that in order to apply the Resolutions of the Security Council, an action of the Union, known as a Common Position, is necessary, following what it’s established in the article the 60 and 301 EU.

The necessity of the Common Positions becomes evident because of the fight against terrorism which implies the restriction of certain Human Rights. So, considering the hierarchy of the norms under which the Union is guided, it would not be possible to think that just the emission of a Resolution would be enough to presume its mandatory in a communitarian level and by the way their legality. Thus, with respect to the sanctions that the Security Council has created to face the problem of terrorism, questions have emerged concerning the constitutional frame of the European Union. It is true that the EU emits Common Positions to assure the legality of the acts that are applied. It is also true that the citizens count with the possibility of asking for an indemnification in the case in which the inclusion of its names in the respective lists is erroneous. Even though, the problem appears when the individuals that are directly affected do not count with the mechanisms to evaluate the legality of the restrictive measures of their fundamental rights.

The international system, as structured at the moment, does not count with an international organization or, in its defect, international mechanisms that serve like mediums of control over the Resolutions of the Security Council. This characteristic of the International System is quite questionable since it leaves open a gap for the Resolutions to be unquestionable, and therefore it is lent for abuses by those who make part of the Security Council, and to which the other states cannot defend their opinions because they are forced by the binding character of the Letter.

But equally or even worse than what is mentioned before is the fact that the citizens affected by these measures are turning to the courthouses –community court houses in this case- to verify that their rights are being respected. From there that, in cases like the Kahdi affair, the First Instance´s Court is being forced to analyze the relationship between two juridical orders that are being superimposed and whose primacies are not explicit. These juridical orders are, in first place the one created by the United Nations Letter and, the second, produced from the creation of the European Union.

In the Kahdi affair, the Court of Justice of the European Union argues that the decisions that froze his account where adopted by communitarian acts. They also argue that these decisions can be object of judicial control by the Court whenever the test of direct and individual reach is fulfilled. However, from my point of view, this conclusion is controverted with the argumentative development with which the Court continues. So, having said the above, shows that the Court makes no movement towards the defense of the Human Rights of the affected and on the contrary is routed towards an argumentative line according to which it’s necessary primarily the respect for the decisions made by the United Nations, establishing that it may be considered as ius cogens.

In this sense, the reasoning that is made is that the members of the European Union, as mentioned before, are linked by the Resolutions of the Security Council. According to this and bearing in mind the 307 article CE, the obligations deriving from the Letter of the United Nations should override those that derive from its belonging to the Union. Is at this time when the argument becomes difficult and weak because the Court emphasizes that the Union is not a member of the United Nations and that therefore its letter is not binding. Nevertheless it directs itself to revise the constitutive Treaty of the union to establish that in virtue of this the states members established their intention of meeting the obligations reflected in the Letter, which is binding to each one of them for being members of the United Nations.

From the above a monumental contradiction is unpinned that highlights even more the questioning of the sources of Right of the EU. From one side there’s the 6 article TUE that establishes the obligatoriness of the European Union of respecting the human rights and the individual freedoms. On the other side there’s the weakness that without a doubt characterizes the judicial tutelage in regard to topics of the Common Foreign and Security Policy. This due to the fact that, thanks to the supremacy that the Court gives to the Letter of the United Nations, it is auto-exempted of the revision of the regulations challenged. This due to the fact that for it, the suppression of the communitarian norms or the taint of them to be violator of the human rights would imply trespassing the mentioned decision to the Resolutions of the Security Council. In this order of ideas, establishing that the Common Positions violate human rights would be preaching the same to the Resolutions, and as it had been stated before, the Court doesn’t have that competence.

However, it should be borne in mind what the Grand Chamber of the Court says when it deals with the Joined Cases C 402/05 P and 415/05 P. The Court mentioned that the European Union is a community of law, because neither its states members nor its institutions can avoid the control of the conformity of their acts with the fundamental Letter created by the Treaty. It is stated that this last one has established a complete system of resources and procedures destined to entrust the Court of Justice on the legality of acts of the institutions. An international agreement can’t affect the order of powers established by the Treaties and, therefore, the autonomy of the Union´s legal system. This last one is warranted by the Court of Justice in virtue of its exclusive jurisdiction under article 220 EC.

In this sense, the Grand Chamber noted, Fundamental Rights are part of the general principles of law whose observance the Court ensures. In this regard, the Court get inspired from the constitutional traditions common to the states members as well as the guidelines supplied by the international instruments relative to the protection of human rights in which states members have helped or of which they are signatories. Following this order of ideas, respect for Human Rights is also a requirement of legality of Community acts, and it’s inacceptable in the Union any incompatible measure with the respect for them.

In this way, it’s important to warn that the principles governing the international legal order created by United Nations does not imply that it is impossible to conduct a judicial review, from the point of view of fundamental rights, of the internal legality of the regulations that are imposing certain specific restrictive measures directed against certain people and entities associated with Usama bin Laden, the Al Qaida and the Taliban.

The Article 307 EC could not allow in any case putting into question the principles that constitute the very foundations of Community law, among them the principles of freedom, democracy and respect for human rights and fundamental freedoms, consecrated as the basis of the Union. It should also be noted that the effective tutelage is and must be considered as a general principle of the Communitarian law. Therefore, the Communitarian Courts must ensure the review of the lawfulness of every Communitarian act in terms of the following of fundamental rights. This review must also extend to those Communitarian acts destined to implement approved Resolutions adopted by the Security Council.

The eyes of the International Criminal Court focused on Colombia

By María Mónica Morris and Andrés Zammata

The eyes of the International Criminal Court (ICC) are already looking at Colombia and promise not to move for a while. Since November 2002 the ICC has had the legal capacity to investigate crimes against humanity and the crimes of genocide that have occurred from that day on. From November 2009, the ICC can investigate crimes of war. These conditions based on different crimes are due to the safeguard present in the article 124 of the Rome Statute, which excludes the ICC from investigating war crimes for a period of seven years from the initial date the treaty came into force. Hence, crimes such as enforced disappearance of persons, torture and conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate in hostilities, among other crimes, can only be know by the ICC until November 2009.

The armed conflict within Colombia that has lasted for more than four decades and the need of the State to try to regain tranquility and peace no matter the means can explain the existence of the article 124 of the Rome Statute. The law 975 of 2005, famously known as the Law of Justice and Peace, illustrates the attempt of Colombia to pacify the armed conflict through the use of incentives of minor penalties for atrocious crimes. The purpose of the law has been criticized and has adopted the nickname of the “Law of Impunity” that only favors the offenders.

Given the above, this essay tries to analyze the consequences that derive from the full entry into force of the ICC in Colombia, from the cases that are being slightly penalized with the Law of Justice and Peace, emphasizing specially in the conscription of minors and on the currently infamous false positives.

1. Precedents of the ICC

Before analyzing the effects of the ICC in Colombia, it would be prudent to explain the context and apparition of the ICC in the international environment, and determine its competence in the countries that ratified its jurisdiction.

Penalizing crimes internationally is an idea that has long ago developed, beginning with the Hague Treaties in 1889. But only until the end World War II was the idea seriously developed achieving the first definitions of critical human right violations that had to be punitively prosecuted. This attempt was finalized when the allies won the War, and the greatest Nazi criminals were taking into the famous Nuremberg Trials. From these trials, three great crimes were notably established: Crimes against Peace, Crimes against Humanity and Crimes of War.

After the Nuremberg Trials, the United Nations General Assembly ordered the creation of the International Law Committee in charged of establishing and developing international laws and creating a Court that would be able to have international jurisdiction over these crimes. This project gave birth to ad hoc tribunals, the first one in 1993, created to judge the atrocities that had occurred in Yugoslavia. Later, the second ad hoc tribunal in 1994 in charged of judging the Crime of Genocide that occurred in Rwanda.

In 1998, a UN Conference in Rome discussed the creation of an International Criminal Court, which was to be permanent, and would judge crimes of the interest of all States. The result of this conference led to the Rome Statute, which was signed July 17^th 1998 by 120 countries, and would serve as a guideline to the newly created International Criminal Court.

2. When does the Court have competence?

Since the ICC was meant to be an International Instance, it would initially violate the principle of state sovereignty, that’s why its competition was limited. Firstly, its competition by subject, therefore it established, competition ratione temporis, ratione loci and ratione personae. On the other hand, it was established that the ICC would function as a subsidiary organism, which means that the party State had lack capacity to judge its individuals or that the State would refuse to do it. These two conditions legitimize the competence of the ICC given that it relies on the party state to act and prevent the intervention of the ICC.

Competence of the ICC according to the crime

The Rome Statute describes what the international community describes as mayor crimes relevant for the ICC to intervene with the sovereignty of a State, given the crimes affect the peace, security and well being of humanity. The Rome Statute gave jurisdiction to the ICC over four particular types of crimes: Crime of Genocide, Crime against Humanity, War Crime and Crime of Aggression.

The Crime of Genocide was defined by article 6 of the Convention for the Prevention and Repression of Genocide. Four key points are worth noting from the analysis of the given definition. Firstly, the crime includes a subjective element, such being the “intentionality.” In other words, the material execution of the crime is not the only element necessary for its punishment; the intention of attempting genocide against a certain group will be punished as well. Secondly, if the act of genocide is committed not against a specific group, but instead it was directed to a general group of people, the crime would classify under crime against humanity, or war crime. Thirdly, the “destruction” of a certain group can be physical, biological or cultural. Finally, the article included the difference between total destruction and partial destruction of a certain group, which demonstrates, not only the intention but also the necessity of a motive. These elements are not the same, and complicate further the punishment of the act.

The list of the crimes against humanity helps protect the human dignity of all individuals and the civil population from systematic attacks. The Statute defines the crimes against humanity in its article 7. This conception of crime does not imply the necessity that such crimes are committed by military attacks, and that the crime can also be done by actors that do not belong to the state.

War Crimes. These crimes originate from the four Conventions of Geneva of 1949 and the two additional protocols of 1977, which have serves as instruments to international humanitarian law. It is necessary to note that these crimes have to take place during armed conflict, being this domestic or international. Article 8 of the Statute lists most of these acts, and explains that these acts occur due to a political plan or as part of the occurrence of greater scale of such crimes.
Competence Ratione Temporis

As seen above, the ICC has competence to judge over four types of crimes. In the same way, the Statute gives competence to the Court according to ratione temporis. In other words, the ICC can only judge international crimes that occurred after its entry into force.

Competence Ratione Loci. The ICC will have jurisdiction over the crimes that were committed over the territory of the party States members of the Rome Statute. This includes, airplanes, boats, and other extensions of the territory. This principle appears in the article 12.2a of the Statute.

Competence ratione personae. Lastly, the ICC will have jurisdiction if the accused person belongs to a State member of the Statute.

3. The Court and the False Positives

Colombia is under “official observation” of the ICC, diplomatic term that means that there are already specific cases of war crimes, that in the Court’s criteria, could end its hands if it can be proven that Colombia refused or was incapable of being just. Within these investigations, the case of the false positives can be found, which has exponentially grown as the years go by.

The scandal of the false positives entitles the revelations done at the end of 2008, that involve members of the Colombian Military assassinating innocent civilians and making them pass as dead guerrillas killed in combat. This case is relevant to the ICC given that the false positives are know in international criminal law as extrajudicial executions that fall into the category of war crimes and crimes against humanity.

Several officers and sub-officers of the army have been dismissed and others such as General Mario Montoya of the Armed Forces have quitted their job a result of this scandal. Such revelations have also put into question the policies of “democratic security” exercised by the current government of Álvaro Uribe Vélez.

Here on, the false positives will be analyzed to see how this crime would have to be listed in order for the ICC to investigate it. The false positives can easily fall under the competence of the ICC with respect to the subject. The UN special narrator, Philip Alston, who visited Colombia this year, presented information of 1,800 cases of assassinations of the army of young country boys who later were presented as dead guerrillas. In the report, it seems to imply that given the vast geographic area and the high number of army men involved in the crimes, so to assume that the acts were systematically planned, and therefore, it could be considered a “State Crime.”

Nevertheless, Philip Alston, confessed that it cannot be assured that this behavior can be attributed to the high officers of the army, even though it did blame the assassinations to the system of rewards that established the program of “ democratic security” made by President Uribe in an attempt to win the war again the guerrilla group, FARC. According to Alston, the challenge now consists on having the Army recognize the magnitude of the problem and assures to punish the people responsible and avoid future false positives.

With respect to the competence ratione loci and ratione personae, these two elements allow framing the crime in a way that the responsibility would fall over the individuals of high ranks in the army. The first inconvenient to frame the crime in order for the ICC to have jurisdiction over it, is the ratione temporis factor, given the fact that the crimes go back to 2007, not forgetting that the safeguard for war crimes lasted till November of 2009.

Besides the time limits, the complementary requisite of the ICC which is an essential element which cannot be applied in the Colombian case, given that the State has shown diligent work as figuring out facts, solving crimes and sentencing the responsible offenders. To the date, the “Fiscalia General de la Nación” and the judges are diligently investigating and judging. With relation to the false positives, there are more than 1,300 army men being investigates, 300 are waiting to be sentenced and 150 have been convicted. Furthermore, a year is not a long term to lead a criminal investigation. These are complex investigations that should follow the due process. The ICC, for example, started its first case three years and a half a ago and still has not given its first sentence.

4. The Law 975 and conscription of minors

The central topic of this part of the essay focuses on the ongoing conscriptions of minors by the subversive military forces, with relation to the Law of Justice and Peace and the future behavior of the ICC. This topic deserves special attention given that the article 8 of the Rome Statute as a war crime classifies offense, and therefore, the safeguard expressed in the article 124 of the same statute covered it. Even though, this Court does not have competence of the war crimes that occurred before November 2009, this Court does have competence to investigate the ongoing violations. Nevertheless, the Colombian Penal Code, in its article 162, penalizes the illicit conscription of minors; this offense still worries the international community given its continuity despite de efforts from the Colombian State. Therefore, two questions must be examined: What happens with the individuals that have committed this offense and that are now mobilizing or will in the future mobilize submitting themselves to the Law of Justice and Peace, given the already existing notion, that this law may spread impunity? And, similarly, having present the idea that the base of the ICC consists on eliminating impunity, in what occasion, will the ICC have capacity to know the crimes of conscriptions of minors?

With respect to the first question, the answer must be examined from two points: from those who are being processed in light of the article 162 of the Penal Code, and those who are being processed in accordance to the Law of Justice and Peace. The former ones would confront a punishment of 96 to 180 months in prison, while the latter ones would face a punishment of 60 to 96 months in prison. And in both situations these individuals would satisfy their punishment in accordance to the national law. With respect to the Law of Justice and Peace, characterized to perpetuate impunity, the Colombian Constitutional Court through the sentence 360 of 2006 states that the law does not give indults nor amnesties for war crimes and that war crimes cannot be places in the same category of political offenses. This Court continues explaining that the Law 975 of 2005 has no disposition what so ever that exonerates the offender from being punished. It’s true that the law gives a more lenient punishment than the existent in the Penal Code; however, it doesn’t mean the punishment disappears.

It cannot be forgotten the complementary principle that heads the Rome Statute. This principle refers specifically to the article 17 of the Statute. As long as the Colombian State has de disposition and the intention to administer justice with respect to the conscription of minors, be it trough the Penal Code or the Law of Justice and Peace, the ICC will not have competence to investigate the cases. Likewise, the ICC will not be competent to investigate the cases where the judgment is forthcoming by the Colombian State.

On the other hand, the article 17 # 1b, considers the inadmissibility of ICC when “The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” In other words, the Statute allows the State to solve its problems in the way the Ste considers to be more appropriate. Hence, the law 975 falls into this article, since it shows the responsibility and autonomy of the state to solve its own issue in order to solve an armed conflict, like the case of Colombia.

The only three ways that the ICC could be competent to investigate specific cases of conscriptions of minors are: when there has been “unjustified delays in the trial”, when “the process has been biased and unfair” and finally when a “total collapse or substantial collapse in the national administration of justice occurs.” It all may seem simple till one examines article 19 of the Statute, well it indicates that the own ICC is in charged of determining in what cases the Court can investigate or not. Therefore, how strict are the conditions of admissibility of the ICC, when it lies in their hands to decide how, when, and what gives place to the Court to be investigate national cases?

On the evening of the expiration of the safeguard, Colombia finds itself in a situation of great importance, for both the ICC and the State. The time has come for Colombia to demonstrate that it has potential, all the intentions and the necessary tools to punish war crimes in lasting and effective way. With relation to the Law of Justice and Peace, Colombia will have to manage the reparation with respect to the victims, in a very diligent manner so that the international community observes the way to achieve peace and justice. Only by adopting a strict compromise, can Colombia prevent any visits from the ICC, taken that it’s clear that the Court is ready to carry out its purpose: “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”

To conclude…

The ICC is a judicial organ that strives to diminish the impunity of the people responsible of crimes that affect the international community. Since its origins, from the ad hoc tribunals of Yugoslavia and Rwanda, the tribunals show how important a higher entity, independent from each State, serves to end with cases where impunity reigns. For the Colombian case, even though we live in war since 40 years ago, and atrocious crimes are committed in daily basis, it’s gratifying to know that the State has assumed responsibility to investigate and penalize the people responsible for these crimes. Now we must wait, for Colombia to show its effectiveness with crimes that were not typified in our law. In the case of the false positives, it’s evident the state is moving all the judicial system to punish those who are responsible and make sure the incident never occurs again. It seems it will be complicated to be as effective preventing the conscription of minors given that this crime has become more common and harder to control. Furthermore, the possibility of penalizing the intellectual authors of these crimes is even more complicated, given that they have been looked for since the beginning of the armed conflict.

^[1] International Law Comission.

[1] Estatuto de Roma de la Corte Penal Internacional. Roma Italia. 15 de Juni0 – 17 de julio de 1998. Art. 6, 7, 8,

^[1] Estatuto de Roma de la Corte Penal Internacional. Roma Italia. 15 de Juni0 – 17 de julio de 1998. Preámbulo. pár 1.

[1] Debido a la extensión de dicho artículo se recomienda leer el art. 6 del Estatuto de Roma, en concordancia con la Convención de Ginebra.

^[1] Diccionario de la lengua Española. Real Academia Española. Vigésima Primera Edición. Madrid 1992. pág. 1888. Las referencias a ataques generalizados implican que sean ataques comunes, mientras que la alusión a ataques sistemáticos exigen que estos sean organizados.

[1] Debido a la extensión de dicho artículo se recomienda leer el art. 8 del Estatuto de Roma, en concordancia con la Convención de Ginebra.

^[1] Debido a la extensión de dicho artículo se recomienda leer el art. 8 del Estatuto de Roma, en concordancia con la Convención de Ginebra.

^[1] Las cuentas de los falsos positivos», Semana (Colombia), 27 de enero de 2009. Consultado el 1 de febrero de 2009.

[1] Entrevista al embajador de Colombia en los Países Bajos e interlocutor oficial ante la Corte Penal Internacional (CPI), el Dr. Francisco Lloreda. Publicación eltiempo.com Sección Nación Fecha de publicación 10 de octubre de 2009.

^[1] Estatuto de Roma de la Corte Penal Internacional. Roma Italia. 15 de Juni0 – 17 de julio de 1998. art 24.

^[1] Sentencia de la Corte Constitucional C- 370 de 2006. p. 210.

^[1] Ibid. art 17 #2a.

^[1] Ibid. art. 17.

^[1] Ibid. art. 19.

^[1] Mariana Valdés Riveroll. Principio de Complementariedad de la Corte Penal Internacional. P. 293 – 299) < http://www.bibliojuridica.org/libros/1/479/26.pdf>

^[1] Estatuto de Roma de la Corte Penal Internacional. Roma Italia. 15 de Juni0 – 17 de julio de 1998. Preámbulo. pár 5.