Europe does not have a monopoly on justice for international crimes
At a time where the conflict in the Middle East is becoming more bloody and intense by the day, with no resolution in sight, the international mechanism that should be the guarantor of global security, the United Nations, continues to demonstrate its inability to live up to this essential role. And the presidency of the annual Social Forum of the Human Rights Council, held in early November in Geneva, which was entrusted to Iran – one of the countries with the lowest human rights records in the world – certainly does nothing to enhance the credibility of this institution.
As for the prosecutor of the International Criminal Court (ICC), he has recently raised his voice on the conflict in the Middle East, and it remains to be seen how this institution will succeed in moving forward on this issue. The ICC is also at the forefront of the conflict in Ukraine – with an arrest warrant for war crimes issued this year against Vladimir Putin – and, on the Israel-Palestine matter, will have to contend with the possible hostility of certain European governments who have historically been allies of the court.
In an ideal world, justice with all the guarantees of a fair trial would be available to all victims, Israeli and Palestinian alike, at the very place where the crimes are being committed, in the Middle East. As this ideal world does not yet exist, it is likely that sooner or later, criminal complaints will multiply before the courts on our continent, using the dual European nationality of Israeli or Palestinian victims, or the presence in Europe of those accused of these crimes. In the past, such complaints have been unsuccessful, and have been criticized by the Israeli government. A criminal complaint filed a few days ago has reminded us that one continent didn’t need Europe to enable many victims to seek justice for international crimes. On November 7, 2023, a criminal complaint was filed in Argentina against the former president of Colombia, Alvaro Uribe. Already implicated in his own country for witness tampering and the illegal surveillance of journalists, Uribe is now accused of enforced disappearances and extrajudicial executions, qualified as crimes against humanity.
The 11 victims and three Colombian non-governmental organizations behind the complaint, advised by Geneva lawyer Bénédict de Moerloose, maintain that the former Colombian president, as former commander-in-chief of the armed forces, must be held responsible for killings and enforced disappearances. These acts, committed in his own country, are part of a maneuver that was described by the Colombian press as “false positives” (“falsos positivos”) and claimed more than 6,400 victims. Between 2002 and 2008, these civilians were murdered by various army divisions in 31 of the country’s 32 departments, and were presented as insurgents killed at the battlefield, with this number of killings being a marker of success for the Uribe government in its fight against the guerrillas.
The Colombian victims have turned to the courts of another country on the South American continent because, in Colombia, the courts that are competent for this type of crime – the innovative Special Jurisdictions for Peace or JEP – cannot try a former president. The body that can – a commission of the Colombian parliament’s House of Representatives – has not undertaken serious impartial investigations, according to the plaintiffs. However, a significant number of military officers have testified before the JEP to the existence of a state policy of “false positives” and the alleged involvement of former president Uribe.
Beyond all its political and economic turpitudes, which impact the lives of its population, Argentina is a land of justice for international crimes, thanks to the determination of its victims. These victims were pioneers in the quest for justice for the crimes committed on their own soil during the military regime in place 1976 between 1983 during which, according to historians, 30,000 people were disappeared. In April 1977 – at the height of the military dictatorship – mothers of disappeared children, known as the Mothers of the Plaza de Mayo, risked their lives on weekly marches, demanding justice for their loved ones. Several founders of this citizens’ resistance movement against oppression were themselves assassinated for their activism. Years of legal proceedings then led to the former Argentine president of the military junta, Jorge Rafael Videla, being tried in four different trials, including in one of the systematic theft of the babies of female political opponents who had been detained and then disappeared, and of Operation Condor – a continent-wide system of repression carried out by six South American countries with the operational and logistical support of the United States. In July 2012, Mr. Videla was sentenced to 50 years imprisonment for the theft of the babies and died in custody in May 2013 at the age of 87.
Other countries in South America have not been outdone in their attempts to bring justice for international crimes committed on their own soil. Alberto Fujimori, former president of Peru, was convicted of crimes against humanity in 2007 by a Peruvian court, while Efrain Rios Montt, former president of Guatemala, died in 2018 during his retrial for genocide before Guatemalan courts. The conviction handed down by the original judges had been overturned by the Constitutional Court on procedural grounds. Augusto Pinochet, former president of Chile, died in December 2006 without been tried by Chilean courts. However, he was indicted nine months after his return to Chile from London in December 2000, for the murder of 77 people, and was placed under surveillance at his home. In 2004, the Chilean Supreme Court ruled that he could not claim immunity for these crimes.
But today, Argentine legislation goes beyond. It authorizes foreign victims to seek justice before its own courts, without the accused having to be physically present in Argentina, or the victims having to be Argentinean. It is precisely this legislation which, a few days ago, enabled Colombian plaintiffs to lodge a complaint in Argentina against their former president. And it is not just Colombians who are rushing to Buenos Aires to seek redress: victims from the Rohingya community are now demanding justice against the Burmese junta, and Spanish victims have filed a complaint for crimes committed by Franco’s troops in Spain.
As modest as it may seem in view of the suffering currently endured by so many victims of atrocities, international law – used innovatively today by victims and to seek justice beyond borders – can be a source of hope for all victims and their families in the Middle East.
The article first appeared in French on Le Temps on the 20th of November, 2023.
Photo: Colombian President Alvaro Uribe. Wikimedia Commons.
