19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
9 December 2020
Name of the Side Event: Crimes Against Humanity and Complementarity in Latin America (Co-hosted by: Coalition for the International Criminal Court (CICC), International Federation for Human Rights (FIDH), Comisión Mexicana de Defensa y Promoción de Derechos Humanos (CMDPDH), Comisión Colombiana de Juristas, Colectivo de Abogados José Alvear Restrepo , Reporters Without Borders (RSF))
Report by: Diana Sposito, Research Associate PILPG-NL & Shaya Javadinia, Junior Research Associate PILPG-NL
Highlights:
Latin America is a violent region that requires effective investigations and accountability. In several states, including Mexico, Colombia, Venezuela, and Nicaragua, non-state actors and state authorities commit egregious abuses that amount to crimes against humanity.
Due to the high impunity and lack of judicial independence in most states, the ICC has a relevant role to play to strengthen the fight for justice.
The opening of PEs by the OTP is a positive first step, but more is required; states need to engage and take measures toward effective investigations.
Summary of the Event:
On Wednesday, December 9th, the Coalition for the International Criminal Court (CICC), together with the International Federation for Human Rights (FIDH), the Comisión Mexicana de Defensa y Promoción de Derechos Humanos, the Comisión Colombiana de Juristas, the Colectivo de Abogados José Alvear Restrepo, and Reporters Without Borders, co-hosted a side event in the margins of the 19th ASP on crimes against humanity and complementarity in Latin America, aimed at discussing the situations in Mexico, Colombia, Venezuela, and Nicaragua more specifically.
The moderator of the event, Carmela Garcia (CICC), started by thanking the ASP for the space it opens to allow dialogue between states and include the participation of civil society in core debates regarding human rights. She highlighted the active participation of Latin states by denouncing grave violations of human rights in the region.
The first speaker, Jimena Reyes (FIDH), discussed the existence of crimes against humanity in the Latin region. According to Reyes, Latin America is among the most violent continents in the world, with crimes committed both by non-state actors (NSA) and state agents. In Mexico and Colombia, the majority of crimes are committed by NSAs, while in Venezuela and Nicaragua, state authorities and security forces configure the majority of perpetrators. However, the number of crimes committed by state agents in Mexico and Colombia is still highly significant.
Reyes shared the example of drug cartels in Mexico. These NSAs commit a series of organized crimes, usually with the participation of security forces, resulting in crimes against humanity, including enforced disappearance, sexual violence, torture, and murder. Moreover, even the official discourse of Mexico’s war on drugs includes violence and indiscriminate use of power.
The speaker also claimed that a new wave of violence in the region has started, and the possibility of peacebuilding is continuously shrinking. The Nicaraguan government, for instance, has started violent authoritarianism, resulting in the murder of several political dissidents, protestors, and civil society in general. As Nicaragua is not a party of the Rome Statute, the possibility of justice is limited.
Reyes furthermore said that the ICC Office of the Prosecutor (OTP) opened preliminary examinations (PE) in the situations of Colombia and Venezuela, finding that there is a reasonable basis to believe that crimes against humanity are committed in these states. The OTP has also opened a PE in the situation in Mexico, but, in all three situations, there was no concrete and significant action so far.
The second speaker, Juan Carlos Ospina (Comisión Colombiana de Juristas), tackled the issue of complementarity. He mentioned that the PE on the Colombian situation, opened by the OTP in 2004, found reasonable grounds to claim the existence of crimes against humanity in that state, which include extrajudicial executions committed both by NSAs and police agents. This led the path for transitional justice efforts in Colombia, but there is still a need to strengthen the fight against impunity and for guarantees of non-repetition.
During his speech, Ospina provided some questions for the audience to reflect on. One of them was how to determine that the effort of states for justice is genuine and how to materialize the positive complementarity of the ICC, beyond legislation. He proposed the creation of parameters to evaluate PEs and an analysis of how these criteria could allow us to value and assess the impacts and effects of that complementarity.
The third speaker, Calixto Avila (Informal Venezuelan NGO’s Network), focused on the situation of Venezuela. He referred to the Human Rights Council Fact-Finding Mission on the Bolivarian Republic of Venezuela, which concluded that both state authorities and armed groups have committed crimes against humanity in Venezuela. The mission also found that high-level authorities, including the head of state, had knowledge of these crimes and contributed to them through omission.
In the sequence, Avila touched upon the role of the Venezuelan judiciary in the fight for justice. According to him, impunity of serious crimes in that state shows a lack of independence of the judiciary despite the existence of a national discourse that judicial powers work effectively to hold the perpetrators of these crimes responsible. The UN Mission also found that the judiciary contributes to impunity and denies justice to victims, and urged the state to take measures to assure this independence. Avila pointed out that one of the main problems in Venezuela is the lack of independence and impartiality of the judiciary.
The fourth speaker, Olga Guzmán Vergara (CMDPDH) began her speech by reminding the audience that the former Mexican President, Felipe Calderón, declared a war in 2006 against organized crime with the alleged aim to save Mexican children and youth from drugs and addiction. From that moment onwards, however, Mexico witnessed an increase in violence in security, corruption, torture, sexual violence, murder, enforced disappearances (among others). These events were documented by civil society organizations, academia, and international human rights mechanisms. Guzmán Vergara explained that based on the available evidence, the acts of violence were not sporadic acts but rather planned actions that followed a specific pattern and carried out state policy. The recurrence of these violent events gives rise to a reasonable basis to conclude that by committing these allegedly widespread and systematic attacks on civilians, Mexico is in violation of article 7 of the Rome Statute, to which Mexico has been a party since 2005. Involvement of the military in public security in the 14-year fights against drugs has increased the illegal and indiscriminate use of force against civilians, which can be regarded as state policy. Guzmán Vergara also explained that in Mexico there is a culture of forced disappearances, and torture is used as a method to obtain forced confessions. Human rights organizations have documented evidence of such violations. She invited the audience to review one of the CMDPDH’s most recent communications, which shows that the office of the Mexican prosecutor has recorded a large number of criminal investigations on torture, for which they have issued very few sentences. According to Guzmán Vergara, torture, a “common tool” for state security institutions, is perpetrated in complicity of forensic professionals and authorities in charge of the investigations and has replaced a thorough investigation of facts. She also spoke about enforced disappearances, murders, and other crimes that take place in a systematic nature in Mexico and are denied or tolerated by the authorities. Civil society in Mexico has been investigating these events, and the OTP is also analyzing the situation. Guzmán Vergara mentioned that the civil society has yet to see the result of their calls to ICC, which is important for providing answers to organizations and the victims that have resorted to the ICC as a unique alternative since the Mexican authorities have not provided justice. The OTP has yet to determine whether there is reasonable basis to open investigations. Guzmán Vergara also pointed out that while the ICC can play an important role in bringing justice to victims, it is important for Mexico to not only recognize that crimes against humanity have been committed, but to also take action and address the impunities by investigating the alleged crimes with the help of civil society and human rights defenders.
The fifth speaker, Antoine Bernard (RSF and Propuesta Civica), spoke about the crimes committed against journalists in Mexico. According to an analysis conducted by RSF, crimes committed against journalists in Mexico are not sporadic but are planned to silence journalists and stop them from performing their journalistic functions. The recurring and organized nature of these crimes provides reasonable basis to believe that journalists in Mexico suffer crimes against humanity for the very reason of their identity as journalists. Bernard pointed out that while Mexico created protection and prosecutorial federal mechanisms in 2010, these mechanisms recognized their own ineffectiveness in exhibiting their mandate. Moreover, Mexico has not only shown unwillingness to take measures to fix this problem, but also has been shielding those soliciting and ordering the commission of these crimes. Bernard concluded his speech by mentioning the names of a number of journalists who have lost their lives as a part of the alleged widespread and systematic crimes and requested the Prosecutor to take the decision to open a PE on the alleged crimes against journalists committed by Mexico against journalists.
The final speaker, Michelle Reyes (WIGJ), addressed the issue of sexual violence as a crime against humanity. She noted that there is a general lack of understanding of the meaning of ‘sexual violence’ and its relation to crimes against humanity. Moreover, she explained that while the Rome Statute does mention sexual violence as a crime against humanity, it does not provide a definition for the term ‘sexual’ in the Elements of Crimes. She further highlighted the importance of closing this gap, and explained the role of civil society and campaigns, such as “Call It What It Is,” in helping to establish a definition of this term through creating practical guidelines. WIGJ has partnered with other civil society organizations in Colombia, in which there is a great level of impunity, particularly in cases of sexual violence and have tried to identify the main obstacles in prosecuting sexual violence. Through these surveys, the organizations aim to understand the Colombian view and the Colombian domestic law on sexual violence, which can respectively and in line with the principle of complementarity, help the work of the ICC and other international organizations.
At the end of the side event, the panel opened space for questions. Some of these concerned the status of specific cases, like the one related to the status of a case against Mexico, initiated by the lawyer Netzaí Sandoval in November 2011. One of the panelists, Guzmán Vergara noted there have been no updates since the 18th ASP, when Mexico was in phase one of the investigation. Additional questions concerned ways to assure celerity in investigations to stop killings urgently, and the current situation of human rights activists in these states.
The side event concluded with an invitation to look at the FIDH’s recommendations to the 19th Session of the Assembly of States Parties to the Rome Statute at: https://www.fidh.org/en/issues/international-justice/international-criminal-court-icc/icc-ahead-of-19th-asp-fidh-issues-recommendations-to-strengthen-court.