Columbia v. Venezuala: Can The Hague Help?

Columbia has raised serious allegations against Venezuala, saying that the Venezualan government is providing support to and harboring rebels who would seek to overthrow Columbia's current administration. In Washington last week, the columbian abassador said that roughly 1,500 rebels are hiding out in Venezuela and he showed fellow diplomats numerous aerial photographs of what he identified as rebel camps inside Venezuela. In response, Chavez suggested the photographs could be bogus, saying the president of Columbia "is capable of anything."

So, is there a court that could decide this international dispute? The newly established International Criminal Court in The Hague (ICC) was set up to handle war crimes and other crimes against humanity. Colombia has said recently that it could take its allegations to the ICC. But would it ever hear the case?

The International Criminal Court began hearing cases in the summer of 2002. The complaints typically involve gross abuses of human rights anywhere in the world. The court was created by the Rome Treaty of 1998. It has global jurisdiction over war crimes, crimes against humanity and genocide committed after July 1, 2002. The court, which is based in The Hague, is authorized to try only individuals, not nations or armies. The 1998 Rome treaty establishing the International Criminal Court removed head-of-state immunity for atrocity crimes.

The Rome treaty was signed by President Clinton during his last days in office. But he never submitted it to the Senate for a ratification vote on membership. President George W. Bush silenced U.S. involvement in the ICC when he ordered Clinton's signature withdrawn, leaving the United States as the only major Western power to opt out of the ICC. Ironically, America, a nation proverbially "of laws not of men,"objected to the ICC's currently defined powers.

For Columbia, a prosecution certainly would be a significant event in light of the fact that FARC is included on the U.S. State Department's list of foreign terrorist organizations. If the charges against Venezuala were brought, they would fall under war crimes and crimes against humanity, Guillermo Mendoza, Chief Prosecutor at the ICC, said recently.

However, problems currently plague the proceedings in the prosecution of the very first person to ever be tried at the ICC. And this does not bode well for Columbia's search for justice there. Judges at the International Criminal Court (ICC) have recently ordered the unconditional release of Thomas Lubanga Dyilo who has been in detention in The Hague since March 2006. The reason for the stay - and possible release: Judges said the prosecution had failed to reveal the identity of a witness who helped investigators identify people who could testify against Lubanga.

This, of course, highlights the fact that "international justice" is a concept rife with difficult problems. For example, what recourse is there when witnesses (or parties to the litigation) won't cooperate with the court? For those matters that make it to trial, what law applies? What is the proper venue or forum for an international prosecution? And perhaps most difficult of all (especially for the U.S.) is this issue: what happens when one nation's patriotic citizen is another nation's war criminal?

In any event, it doesn't look like the ICC will be the place where Columbia gets justice, assuming it has been wronged by Venezuala. Could the the Organization of American States (OAS) conduct an inspection or be the arbiter here? Unlikely. Secretary-General of the OAS, Jose Miguel Insulza, told reporters that his organization could not mount an inspection mission without Venezuela's consent.

With the ICC's current problems, the OAC's lack of real teeth, and the disadvantages of war to both sides, diplomacy seems the only way out at this point. Fortunately, current Columbian leader Alvaro Uribe will finish his presidential term in August, when he will be replaced by president-elect Juan Manuel Santos, who "pledged to improve relations" with Chávez during his election campaign.