Ready for the ICC?

This is Part 5 of our Dejusticia Blog Series: Politics, Challenges & Opportunities of the Inter-American Human Rights System. Part 1, Part 2, Part 3, and Part 4 are available in the corresponding links.

It’s one thing that the Venezuelan government’s mass deportation of Colombians is a clear violation of international law, as I explained in my previous post.

It’s another thing for President Santos to denounce the Venezuelan state’s highest levels of government before the International Criminal Court (ICC), as the Solicitor General and Public Prosecutor have suggested, which is a debatable recommendation.

Legally, not all international law or human rights violations, even if severe, fall under the ICC’s jurisdiction, as this court only looks at specific crimes: genocide, war crimes, and crimes against humanity.

Some argue that these mass expulsions are “deportations” or “persecution” of Colombians that constitute a crime against humanity. And this argument is convincing as the Rome Statute considers in certain circumstances “deportations” or “persecution” as crimes against humanity. But this is very debatable; for deportations or persecutions to be considered crimes against humanity they must meet certain criteria.

I can’t analyze all the criteria at length due to space constraints, but one only needs one example to understand the issue’s complexity: for a deportation to be considered a crime against humanity, the people that were deported need to have been “legitimately” present in the area from which they were deported. And it seems like most of the deported Colombians had an irregular migratory status in Venezuela.

Let me be clear that the possible irregular migratory status of these Colombians by no means justifies the mass and precipitous deportation as it is unacceptable and violates international law. But the fact that many, what seems to be the majority, did not have regular migratory status in Venezuela, raises many questions about whether or not they can be considered as being “legitimately” in that area, without which it seems we are missing a crucial element in order to make the case that this deportation was a crime against humanity.

Today in Colombia those who attack Maduro hardest win the most political points, which explains the popularity of demands asking President Santos to formally denounce the highest levels of the Venezuelan government before the ICC. Those who question the reasonableness of these options will be then attacked for our supposed complacency before the Venezuelan president. But our outrage to Maduro’s abuses should not cloud our judgment, nor lead us to xenophobic proclamations. A denunciation of the highest levels of the Venezuelan government before the ICC does not have, at least with the information available today, a solid legal foundation, for which it would be a legal error for the President to do it. Moreover, it would be an action with problematic political consequences, as it would make it more difficult to have a peaceful and diplomatic solution to this complicated situation we are experiencing on the border. It could also be read as an invitation for the ICC to come to Latin America, which would be like inviting it to intervene in Colombia.