In part, the importance of these systems rest in the subsidiary supranational warranty that they represent, as they have allowed, on one hand the protection of Human Rights violated in specific cases; on the other hand, they have been used to remedy general situations, laws and practices concerning Human Rights in which the legal systems of Member States were not in line with international guidelines. In this sense, much of the success of the systems of protection of Human Rights lies in the effective resolution that is intended to give to the violations suffered by victims and guidance provided to the legislative and judicial systems of each State[ii].

Since then, for some time ago within the sessions of the Court, the debate to amend its regulations in order to approve a new one has raise. In this new regulation, appears that, before the Court, the Commission’s action would be limited only in presenting the Article 50[iii] Report, with some attachments and not an actual demand, so that representatives of the victims would be those who will be taking the lead before the Court, giving them legal standing. This situation leads to a drastic change in the procedural position of the Court because this reform is attempted to match the conditions of the parties to the process because the respondent States for violation of Human Rights will not have to defend themselves against the Commission and the victims, who despite not having legal standing can intervene in the process.

Originally in the first regulation adopted in the third session [iv], the process in the Inter-American System of Human Rights stipulated that the procedure of contentious cases were filled in two stages: One preliminary (Articles 25 to 27) and another one substantial, which was subdivided into a written procedure (Articles 28 and 30) and a subsequent oral procedure (Articles 28 and 32). This way, the instance was introduced by presenting the demand by those who, under Article 61 of the Convention, have active legitimation for this: the Commission or another State party to the ACHR (articles 25 and 30.1). In this event, the response of demand swelled until, by verdict, the preliminary objections were resolved. Subsequent to the close of the preliminary incident, and since they didn´t prosper, the Court continued the background case. It should be noted that under this regulation victims had no involvement in proceedings against the CorIDH, but the IACHR was taking the contentious case.

The previous structure of the proceeding before the Court was consistent with the principles of procedural law, including defense, due process and equality of arms. This will guarantee the process itself as a forum for conflict resolution in a balanced way that gave due process to parties, and therefore trust and compliance with its decisions, a key element in the exercise of judicial functions[v].

“This scheme of splitting of the proceedings before the CorIDH was slowly eased due the various regulatory reforms. Thus, in 1991 there was the first reform of the regulation of CorIDH, and although it remained the incidental nature of the preliminary, it explicitly stated that its passage will not suspend the terms of the fund unless CorIDH self-determined otherwise expressly nor the debate on the merits[vi].[vii]“

For 2000, the Regulations of the CorIDH suffered another significant change in the structure of the process. In order to comply with the principle of speed, according to new regulatory standards, it was determined the three stages of the process named before into a single process (filing of the application and presentation of preliminary objections, merits and repair sentence), and additionally add a new party to the proceedings in that process: the representatives of the victims through the writing of arguments, claims and evidence.

According to the CorIDH itself, the regulatory reform has cut, in about half the time, the resolution of contentious cases under his knowledge, from an average of 39 months to  only 21 under the Rules of 2000[viii]. However, although we can say that the reform did fulfill its objective of promptly, its application resulted in less favorable outcomes regarding procedural burdens. This under the burden imposed to the State on the rule of answering in  a single moment the preliminary, background and issues relating to reparations; which in turn are decided by the Court in a unique procedure.

It violates the procedural equality, to the extent that States, in contrast to the Commission must prepare, present and demonstrate the merits of the preliminary, while building and raises its merits and reparations claims of both the lawsuit filed by the Commission as an entirely different demand presented by the victims. On the other hand, the Commission and representatives of the victims[ix] are given an exclusive opportunity after the preliminaries, to answer them, thereby providing greater time for preparation of matters relating to jurisdiction and admissibility of the case, as well as a unique backdrop for the presentation of their observations[x].

As mentioned above, with the new reform to the CorIDH Regulation, which will take place in early 2010, it will have the following specifications: the IACHR will not be longer party in the proceeding before the CorIDH as an actor in demand, so, with the reform in the regulation of CorIDH, it is needed to reform the Regulation of the Commission. In addition, the report under Article 50 would be a mere procedural formality to take the case to the CorIDH. It should be clarified that although the IACHR will not participate directly, it will also have great importance as a preliminary procedure to carry a contentious case before the CorIDH. Secondly, the Regulations of the CorIDH will amend its Articles 23 and 24 to eliminate the representation of the IACHR and create the participation of the alleged victims to be given by legal representation.

For the procedure in pending cases before the Court, before the entry into force of new regulation in 2001, the Inter-American Court adopted a Resolution on Transitory Provisions on 13 March 2001, whereby it decided that: 1) cases that are ongoing at the time of entry into force of new regulation (2000) will continue to be treated in accordance with the rules of the previous regulation (1996) until the procedural stage culminates, 2) the alleged victims will participate in the phase that begins after the entry into force of new regulation (2000) in accordance with Article 23 thereof. This is the kind of resolution to be adopted again in the CorIDH for entry into force of the new regulation in 2010, to facilitate the change.

With the granting of locus standi in judicio to alleged victims, their families or their legal representatives, at all stages of proceedings before the Court, they´ll pass to enjoy all the powers and duties, procedural matters, that under the Rules of 1996 were only peculiar to the IACHR and the respondent State (except in the reparations stage). This implies that, in the proceedings before the Court may coexist and demonstrate three different positions: that of the alleged victim (or their relatives or legal representatives)[xi], as subject of International Law of Human Rights, the IACHR, as the body monitoring of the Convention and auxiliary of the Court, and the respondent State.

This historic reform introduced in the Rules of the Court leaves the various players in proper perspective, contributes to better education of the process, ensures the adversary principle, essential in the search for truth and the prevalence of justice that under the American Convention, acknowledges to be of the essence of international litigation of human rights the direct contrast between the individual complainants and the respondent States, guarantees the right of free expression of the alleged victims themselves, which is an imperative of fairness and transparency of process, and last but not least, guarantees procedural equality of parties (equality of arms / égalité des armes) throughout the proceedings before the Inter-American Court of Human Rights[xii].

[ii] bídem. Pág 6.

[iii] The Report of Article 50, is a letter that the Commission submits to the States and the Court, in case of no agreement is reached between the State and the Commission in the first stage of the process. The report set out the facts and the conclusions which the Commission reached and is presented in the form of demand for the Court to start the second stage of the process under its jurisdiction.

[iv] Held from 30 July to 9 August 1980.

[v] P. ej., CorteIDH Velásquez Rodríguez, July 21 of 1989, Serie C, No. 7, and Caballero Delgado y Santana, ,January 29 of 1997, Serie C, No. 31.

[vi] Inter-American Court, Rules, approved by the Court in its twenty-third ordinary session, held from 9 to 18 January 1991. ”Article 31.4. The filing of preliminary objections shall not suspend the proceedings on the merits, unless the Court expressly decides so.

[vii] ACOSTA-LÓPEZ, Juana Inés. AMAYA-VILLARREAL, Álvaro Francisco APORTE PARA LA GARANTÍA DEL EQUILIBRIO PROCESAL EN EL SISTEMA INTERAMERICANO DE PROTECCIÓN DE DERECHOS HUMANOS: LA ACUMULACIÓN DE ETAPAS Y LAS GARANTÍAS PROCESALES. March 19 of 2007.

[viii] Ibidem. Pág. 172.

[ix] It is pertinent to recall that from regulatory reform of 2001 the proceedings before the CorIDH recognize the representatives of the victims as party in the proceedings. However, it continues at the head of the IACHR the right of action, and therefore the representatives only have limited authority in the presentation of arguments and evidence, solely on the facts presented in the application implored by the Commission. See, inter alia, cases Albán Cornejo and others, ruling of 22 November 2007, Series C No. 171, para. 44; Miguel Castro Castro, ruling of 25 November 2006, Series C No. 160, para. 162 Ituango Massacres, award of 1 July 2006, Series C No. 148, para. 191; Slaughter Village Bell. sentence of 31 January 2006, Series C No. 140.

[x] Ibidem. Pág 174.

[xi] For the procedure in cases pending before the Court before the entry into force of the new regulation in the next 01 of June 2001, the Inter-American Court adopted a Resolution on Transitional Provisions (March 13, 2001), by which decided that: 1) cases that are ongoing at the time of entry, the new regulation (2000) will continue to be treated in accordance with the rules of the previous regulation (1996), until the culminating stage of the proceedings, 2) thealleged victims will be participating in the phase that begins after the entry into force of new regulation (2000), in accordance with Article 23 thereof.

[xii] En defensa de esta posición (que ha logrado superar resistencias, sobre todo de los nostálgicos del pasado, inclusive dentro del propio sistema interamericano de protección), cf. mis escritos: A.A. Cançado Trindade, “El Sistema Interamericano de Protección de los Derechos Humanos (1948- 1995): Evolución, Estado Actual y Perspectivas”, Derecho Internacional y Derechos Humanos/Droit international et droits de l’homme (Libro Conmemorativo de la XXIV Sesión del Programa Exterior de la Academia de Derecho Internacional de La Haya, San José de Costa Rica, abril/mayo de 1995)

by Alejandra Peláez Peñaranda

« Europe will not be made at once or according to a single plan. It will be built through concrete achievements.» Schuman´s Declaration 1950.

The Schengen Treaty was signed for the first time on June 14^th, 1985. It answered to the member’s necessity to restrict migratory flows and harmonize external border controls. The Treaty aimed to create an area of free circulation between the States members which gave as a result the suppression of the common border controls. However, to accomplish this objective it was necessary to control illegal migration in order to harden their external borders.

Due to the adoption of measures to ensure the free circulation and guarantee freedom the members needed to reaffirm the community’s security. This is the reason why they were emphatic in the creation of compensatory measures such as a policy for the demand of visa and of a Schengen Information System (SIS) (Ministry of the Interior, Spain). The SIS is a system of common information that allows access to police stations and consular agents to information about individuals, vehicles and lost and stolen objects (Luque Gonzalez, 2004). It is a mechanism comprising national networks known as N-SIS that feeds a central system called C-SIS which is at the same time complemented by the SIRENE network. This network is comprised of representatives of the national and local police and local, customs and judicial system (Luque Gonzalez, 2004).

The adopted measures to ensure freedom of circulation were accompanied by measures called “compensatory” in order to reconcile freedom and security. The objective was to improve the coordination between police, customs and justice services and to adopt the necessary measures to combat mainly terrorism and organized crime. With this objective in mind, it was established a complex information system of data exchange on the identity of persons and the description of search objects (SIS).

In this sense, the SIS allows the authorities designated by the parties to obtain descriptions of people and objects while doing the correspondent consultation at the border’s check point. Also, in order to follow the articles 95 to 100 of the Convention it also allows performing checks in accordance with national law in order to label the foreigners if necessary under the category of non admissible. These articles establish the process while analyzing the issuing of visas, residence permits and admission of foreigners within the framework of the implementation of the dispositions on persons´ circulation (Ministry of the Interior, Spain).

The Schengen legislation focuses specifically on the issue of States members’ security since it mainly search to ensure public order and internal security. This point explains why the SIS, SIS II and the EURODAC aren’t the only institutions involved in the procedure. The Visa Information System (VIS) responds to a proposal made in 2006 to integrate into a single code all the dispositions regarding granting visas, reject, extension, cancellation, suspension or reduction of the duration of the validity of visas (Illamola, 2005).

There can be no doubt that the existence of a system as the one exposed previously generates international disputes. First, it is feared that the exchange of such information may cause human rights violations. There is a high risk to generate an invasion of privacy and a violation of the principle of equality and non-discrimination. On the other hand, we can question the validity of the existence of such a database in an administrative level.

Overall, evidence shows the creation of an administrative unification of Member States. Each Member State is responsible for the access of individuals to the whole of the Schengen territory and they have as obligation not to admit any individual appertaining to a list in the common space (Illamola, 2005) States have at last created a collective defense system of the interests of each of the States.

However, the respect for the decisions of the others makes that every State lose its autonomy to decide what’s better for itself. At the same time this means that the citizens feel restricted their chances of entrance to the community. This last point because due to the fact that the lists do not only refer to dangerous individuals for the Schengen community. On the contrary States must respect the totality of the list even if it refers to individuals whose demand of visa has been denied by interpretations purely subjective.

At this level we can wonder whether the actual system is promote to ensure the individuals’ free circulation or conversely if it looks to limited it. This taking into account that its negative implies the loss of the opportunity, at least for a certain time, to enter the Schengen area. The above because adopting a decision contrary to the one that initially a State took in pursuit of their interests and the interest of the EU means a difficult argumentation and the accomplishment of a number of requirements that put this State in an uncomfortable situation toward others.

This makes that for the safety of the community individuals in disagreement with a certain decision must confront a single administrative body. What would happen if the Andean Community face to a situation like the one mentioned? Between the states members of this community it is also stated the free circulation or transit of persons as a principle in the decision 504, 2001. However, this principle cannot be extended to third States. In other words, free circulation must be guarantee to citizens of States members as an obligation. But when accepting the granting of a visa to a certain individual we must say that it might be seen as a private decision of the State and its interests.

The construction of information systems finally creates a political obligation to members who will not dismiss a State´s consideration to deny a certain permission to a given individual. The problem emerges when we analyze that the decisions are not always based in objective requirements but that they respond to subjective analysis made by each State administrator.

Taking into account the existence of the subjectivity in such lists, it is not appropriate that States feel obliged to follow the same requirements because interests or priorities may not match from one State to another. This is the case for example of States in the Andean Community where Peru’s interest may not be the same of Colombia or Equator.

As corollary of the outlined we can say that the existence of such lists and the obligation to follow them is dangerous to the entire global community. We can even say that since they respond to a subjective decision they can even violate human rights. As an example of this we could think in a violation of the principle of free circulation since that freedom is respected exclusively to nationals of countries members of such an agreement.

The interests, needs and considerations of each State should assert as an expression of their sovereignty with the proviso that the sovereignty is preach from the State and not from the community. The EU should follow the example traced by the members of the Andean Community where effectively the State’s sovereignty is respected. Even though the States are members of a community they have an administrative freedom to decide issues of international relations or foreign affairs.

Bibliography

ILLAMOLA, Mariona. Acervo Schengen: controles en las fronteras. Universidad de Girona. España, 2005.

LUQUE GONZÁLEZ, José Manuel. Schengen un espacio de libertad, seguridad y  justicia. Revista de Derecho, Universidad del Norte. España, 2004.

MINISTERIO DEL INTERIOR. España. Recuperado de internet en

http://www.mir.es/SGACAVT/extranje/extschengen/sistema_informacion.html

Non-Intervention

Latin American states have had a great part in defining and shaping the principle of non-intervention², and have understood it as logical consequence of state sovereignty³ and equality.⁴ The principle of non-intervention was contained in the Convention on Rights and Duties of States (an inter-American convention) and later in the Charter of the Organization of American States. Article 19 of the Charter (which Brazil and Honduras have ratified) stipulates that:

“No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.”

Despite this attempt to define the principle, difficulties still arise as to its implementation since every state in the execution of its foreign policy has a legal margin to assert its influence⁵. Thus, the principle problem lies in determining when influence has become intervention. The International Court of Justice, in the Nicaragua v United States case, stated that:

“A prohibited intervention must […] be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices.”

It can therefore be understood that coercion is the defining element which differentiates between wrongful intervention and influence.

Asylum

The International Court of Justice studied the institution of asylum in the Haya de La Torre Case between Colombia and Peru, which bears a number of similarities with the present Honduras v Brazil Case. In October 1948, after a failed coup d’état, the Peruvian authorities issued a warrant charging Víctor Raúl Haya de La Torre with military rebellion. Mr. Haya de La Torre sought and was granted asylum in the Colombian Embassy in Lima.  After failing to come to a conclusion as to how to proceed in the case both parties decided to submit it to the ICJ. Although the issue of non-intervention was not raised, the Court pronounced itself on several issues regarding asylum which could have bearing in the Zelaya Case. First, the Court stated that “[a] decision to grant diplomatic asylum involves a derogation from the sovereignty of [the] State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.”⁶ Thus, if a legal basis can be established for the granting of asylum, it cannot be considered a wrongful intervention. Secondly, the Court was of the view that the practice of immediately requesting a safe-conduct without awaiting a request from the territorial State for the departure of the refugee “does not and cannot mean that the State, to whom such a request for a safe-conduct has been addressed, is legally bound to accede to it.”⁷ In other words, the territorial State must make a request to the State granting asylum that the refugee be removed; otherwise it is not legally bound to grant safe-conduct for the refugee. Lastly, the Court concluded that Colombia acted wrongfully when it granted asylum. Since no further instructions were given, a second case was brought to the Court to resolve whether or not Mr. Haya de La Torre should be surrendered to Peruvian authorities. The Court stated that “the asylum must cease, but that the Government of Colombia is under no obligation to bring this about by surrendering the refugee to the Peruvian authorities. There is no contradiction between these two findings, since surrender is not the only way of terminating asylum.”⁸ Thus, even in the case of unlawful asylum, it is not an obligation to surrender the person who sought asylum.

Honduras – Brazil Case

Honduras’ claims do not center on an unlawful granting of asylum but on the violation of the principle of non-intervention. It claims that Brazil breached its obligations under Article 2 (7) of the U.N. Charter, which states:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”

This prohibition is applied to the United Nations as whole, not to its member states. It is therefore and odd choice unless Honduras’ position is that Brazil was obligated to submit the matter to settlement. However, even this argument is weak as asylum, due to its very nature, demands that decision to grant it or not be undertaken with haste. It would be absurd to consider that matters concerning the granting of asylum had to be brought before the United Nation prior to a decision.

The claim brought by Honduras also centers on the 1961 Vienna Convention on Diplomatic Relations. Article 41 (1) of this Convention states:

“Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”

This article would, indeed, be applicable to Brazil as it prohibits intervention in internal affairs on behalf of the diplomatic staff. This means that there is an inherit tension between this prohibition and the institution of asylum.

In this regard, it is important to note that both Honduras and Brazil have ratified the 1933 inter-American Convention on Political Asylum, which modified the 1928 Havana Convention on Asylum, instruments which were used in the Colombia – Peru Asylum Case. Despite ICJ cases creating no precedent⁹, they are still helpful in determining how the Court might decide a future case as they do constitute “subsidiary means for the determination of rules of law.”¹⁰ The Court determined that asylum does indeed constitute an intervention, albeit a legal one if it is granted with a legal basis. In the 1950 Case, Colombia was found to not have legal standing for the granting of asylum due to the fact that Peru had not ratified the 1933 Convention¹¹ which would have allowed Colombia to decide unilaterally if Mr. Haya de La Cruz was wanted for political reasons.¹² This limitation, however, is not applicable to Honduras and as such, Brazil can indeed decide the judgment of political delinquency of Mr. Zelaya. As such, and in accordance with Article 1 of the 1933 Convention which prohibits granting asylum “to those accused of common offenses”, if Brazil judges Mr. Zelaya’s offenses to be of a political nature, the asylum is granted on a legal basis.

Honduras could still claim intervention on the grounds of Mr. Zelaya’s prolonged stay in the Brazilian mission. This, they could argue, could be interpreted as a form of coercion which constitutes a beach of non-intervention. However, as was stated by the Court, it is Honduras who must request the removal of Mr. Zelaya from its territory, only then can Brazil request a safe-conduct which is legally binding on Honduras. Unless Honduras has made this request and has guaranteed safe-conduct, Brazil is not in breach of its obligations. Furthermore, there is no stipulation in the 1928 or 1933 Conventions regarding the surrendering of refugees, which is why, even if the Court found Brazil to be in breach of the 1961 Vienna Convention on Diplomatic Relations, Brazil would not be obligated to hand Mr. Zelaya over to Honduran authorities.

Conclusion

Honduras has presented a weak application against Brazil. It cites a breach or Article 2 (7) of the U.N. Charter, which prohibits intervention on the part of the United Nations itself. Unless there is some creative interpretation, it is hard to see this claim prospering. Secondly, it cites a breach on the 1961 VCDR, which, when analyzed in the light of the inter-American Conventions on Asylum of 1928 and 1933 seems dubious at best. However, ICJ cases create no precedent and, as such, it is not impossible that Brazil could somehow be found liable. Even if that were the case, however, Brazil would not be obligated to surrender Mr. Zelaya, as no such regulation exists. In all likelihood, Mr. Zelaya would be allowed to leave Honduras due to international pressure, much like the case of Mr. Haya de La Torre.

Against the backdrop of his visit to Russia, Venezuelan President Hugo Chávez announced his country’s recognition of South Ossetia and Abkhazia as independent and sovereign states¹. These two regions are considered by Georgia and the vast majority of the international community to be renegade provinces that constitute part of the Georgian state. To date², the only U.N. member states to recognize South Ossetia and Abkhazia are Russia, Nicaragua and Venezuela. Abkhazia, South Ossetia and Transnistria (a region in the Republic of Moldova not recognized by any state) recognize each other mutually. Before analyzing the implications of Venezuelan recognition for these two states it is important to briefly review their history.

Abkhazia

During the 8th-10th centuries Abkhazia was a Kingdom and from the 13th century up to 1864 a Principality³. In 1810 Abkhazia was incorporated into Russia as a protectorate and was annexed in 1864. During the Soviet era Abkhazia was its own Soviet Socialist Republic until, in 1931, Stalin incorporated it as an Autonomous Republic under the Georgian Soviet Socialist Republic. After the fall of the Soviet Union tension escalated between Abkhazia and Georgia resulting in the War of Abkhazia (1992-1993) between Georgian forces and Abkhazian separatists, resulting in Georgia’s loss of control over the region. Abkhazia adopted its own constitution in 1994 and formally declared its independence in 1999⁴.

South Ossetia

South Ossetia was incorporated into the Russian Empire in 1801. With the collapse of the Russian Empire after the Russian Revolution, South Ossetia became part of the Democratic Republic of Georgia but Ossetians manifested their desire for an independent territory through a series of uprisings from 1918 to 1920. After the Soviet invasion of Georgia, the South Ossetian Autonomous Oblast was created within the Georgian Soviet Socialist Republic. In 1990 South Ossetia declared its independence from Georgia, claiming to be fully sovereign within the U.S.S.R. During the collapse of the Soviet Union, armed conflict broke out resulting in the South Ossetia War (1991 – 1992) after which Georgia lost effective control of the region.

Russia – Georgia War

Since 1992 and 1993 South Ossetia and Abkhazia, respectively, had been governed by local Russian-backed governments. On August 7, 2008 Georgia launched a large-scale military attack against South Ossetia in an attempt to regain control of the territory. Russia intervened on behalf of South Ossetia by deploying troops into the conflict. Two days later, on August 9, 2008 Russia and Abkhazia opened a second front against Georgia. A cease-fire was signed by Georgia on August 15 and by Russia the following day. Once again, local governments maintained effective control of South Ossetia and Abkhazia. The Russian Federation recognized these two entities as sovereign states on the 26^th of August, 2008. The 5^th of September Nicaragua followed suit and, almost a year later on the 10^th of September 2009, so did Venezuela.

Effects of Recognition

Venezuela’s recognition of these two regions helps highlight the problems that this institution has in international law. There are two views regarding the recognition of states; the constitutive view which argues that the act of recognition is a precondition for the existence of a state, and the declaratory view which states that an act of recognition is a mere acknowledgement of an existing state of law and fact⁵. Most legal scholars lean towards a mixed view that recognition is declaratory of a fact but that it is necessary for the possibility of the full range of bilateral relations⁶. As such, the existence of a state is a matter of fact and this has been established as such not only by scholars but also by treaty law. Article 3 of the Montevideo Convention on the Rights and Duties of States establishes that “[t]he political existence of the state is independent of recognition by the other states…” This statement is copied verbatim on article 10 of the Charter of the Organization of American States. Thus, criteria for establishing statehood need not include recognition by other states. The Montevideo Convention established the legal criteria for statehood in its first article, these are: “(a) a permanent population, (b) a defined territory, (c) government and (d) capacity to enter in relations with the other States.” Criterion (c) refers to a central government operating as a political body and in effective control over the territory⁷, while the last criterion can be understood as the state being independent of interference from other legal orders⁸.

Taking a second look at the criteria established in the Montevideo Convention it is clear that both South Ossetia and Abkhazia have met the requirements for statehood since 1991 and 1992 respectively, yet they have not been widely recognized as such. The fact of the matter is that recognition cannot be considered and obligation and is, instead, a political tool for reaching foreign policy goals⁹. It is because of this that each state determines for itself what entities qualify as states. This affects South Ossetia and Abkhazia in that despite the fact that their existence as states does not depend on recognition from other states, it is nonetheless a condition for the establishment of formal, optional, and bilateral relations¹⁰. It is a matter of practical implications since without recognition these two states have almost no way of taking part in the international community. It could be argued that recognition is constitutive of being a subject of international law, although not of statehood¹¹.

It is with these notions of recognition in mind that Venezuela’s recognition must be analyzed. Venezuela’s recognition is not a milestone for the international recognition that Abkhazia and South Ossetia crave. Abkhazian President Sergey Bagapsh hopes that recognition on the part of Venezuela will lead to further recognition by other states¹², however it is doubtful that Venezuela’s action will open the floodgates of international recognition. Venezuela, despite what Chávez would like to think, is not a “world power”. While it is true that he holds some clout with the left in Latin America, and amongst member states of ALBA, it is nowhere near enough the amount needed to pressure the deeply reluctant international community. Nicaragua’s recognition did not sway Chávez, despite his alliance with President Daniel Ortega, to recognize South Ossetia and Abkhazia sooner. Venezuela’s recognition came when it was a practical political tool for its own goals. Chávez’s dependence on Russia for military equipment made it politically sound to please the latter in order to form a closer relationship.

There is also little hope in terms of economic relationships between Venezuela, South Ossetia and Abkhazia. It is safe to speculate that no significant economic ties will develop between these states as both Abkhazia and South Ossetia are struggling economically and are largely dependent on Russia. As a matter of example, presently there is no evidence of Nicaraguan economic development in the region, despite a year of recognition.

The effects (or lack thereof) of the recognition made by Venezuela, Nicaragua and Russia show, as was stated previously, that the current practice of state recognition is not without problems. An example of statehood that both South Ossetia and Abkhazia have used to help their cause is that of Kosovo. This nation has had wide international recognition after it declared its independence from Serbia. The rapid recognition of Kosovo and the claims that this was a sui generis case generating no legal precedent demonstrate how international law is affected by political interests of states¹³. It is precisely because of political considerations that states recognized Kosovo while refusing to do so in the cases of Abkhazia and South Ossetia. For example, some argue that these entities exist only due to an illegal military intervention on the part of Russia; as such recognition would lead to a loss of Georgian territorial integrity due to an illegal foreign military intervention¹⁴. This means that recognition of South Ossetia and Abkhazia does not depend on their fulfilling of the criteria for statehood but rather on each individual state’s view on the legality of Russian intervention. This, in turn, while certainly having a basis in international law, will depend on the political views and agenda of each nation.

In short, it must be concluded that Venezuela’s recognition of South Ossetia and Abkhazia did more to favor itself in the eyes of the Russian Federation than it did to help the status of unrecognized states of the two Georgian provinces. This current example of recognition and non-recognition on behalf of the international community has further demonstrated the political nature of this institution and the current lack of easily identifiable criteria for establishing legal standing in the international community.

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.