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Challenges for ICC Prosecutor in Latin America

by Mariana on 25 Jul 2012 | Comments

By Mariana Rodriguez Pareja and Salvador Herencia

As we stated in previous posts for this blog, M. Fatou Bensouda will face several challenges in her term as Chief Prosecutor of the ICC. Apart from the obstacles she has to overcome when working with limited staff and funding, her office has to deal with 14 cases in 7 different situations, plus all the gaps left by her precedessor Luis Moreno Ocampo.

We highlighted on several occasions that despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America, the Office of the Prosecutor (OTP) has been unable to open an official investigation on countries outside Africa. We strongly believe that in Latin America there are also situations that could be investigated or watched carefully by the ICC- OTP.

Now, M. Bensouda must address directly these situations and whether advance in an official investigation or state why ths is not a situation for the ICC. This uncertaintly on Colombia and Honduras is worrysome. Given that we consider that Ms. Bensouda has to improve the efficiency in the investigations, we wonder when her office will appoint a Deputy Prosecutor.

Colombia: Gender Crimes, Child Soldiers & False Positives (Extrajudicial killings)

The ICC concluded the Colombian judiciary was capable and willing to carry out investigation of crimes that could eventually fall under the ICC scope. Therefore is no formal investigation due to the complementarity assured by the Rome Statute, although it has been under the ICC scrutiny for 7 years. 

Local and international groups do not share that same view of the outgoing OTP, since they considered that the Colombian judiciary is not addressing past and present international crimes, including gender violence and child soldiers.

Unfortunately, as in several other conflicts, rape has been used as a weapon of war in Colombia. Also Colombia is one of the countries in the world with child soldiers. According to HRW, there are no arrest warrants, no trials and no convictions for the recruiters. HRW furthers that the FARC and ELN use antipersonnel landmines and other banned weapons.

We would also like to know what mechanisms are in place for the investigation and prosecution of gender crimes and child-related crimes, since sometimes it seems a bit blurry.

Other big question mark Moreno Ocampo left are the so- called “False Positives”. Just days before taking off, Argentine Moreno Ocampo said his office was looking into Colombian army murdering civilians and disguising them as guerillas killed in combat to artificially inflate its enemy kill count – “false positives.”

In this case, it is important to be clear: There are no false positives, only extrajudicial executions.
The International Federation for Human Rights (FIDH) continues to call the ICC to open an investigation on this topic ever since the scandal broke in 2008 – and they are asking for full investigation since 2002- when Colombia ratified the Rome Statute.
Big Question Mark Honduras: The Forgotten Coup

Since President Zelaya was forcefully removed from his office in 2009, NGOs have constiniously called the ICC to act.  The organizations informed that crimes against humanity being committed since September 2009.

In November 2010, then ICC Prosecutor Moreno Ocampo publicly announced his decision to conduct a preliminary analysis of the situation and yet there have been no updates on the actions carried out by the Prosecutor’s office to date. NGO continued to call on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence.

But there is absolutely nothing on this regard. If a preliminary analysis has commenced, she has to clarify. It would be important to know, not for this situation only, but for others in the rest of the world, what is the process on when preliminary investigations commence and when they conclude.

Finally, she has to address carefully and professionally the perception of the Court.
Not only in Africa, but in the other regions.

Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa. International Human Rights Lawyer based in Lima, Peru. E-mail: