Fighting impunity - Latin America's and Europe's support of the ICC

I have already stressed in a couple of postings that Europe and Latin America may be closer in their values and aims than most people tend to perceive. Apart from a common, sometimes tragic, history dating back to colonial times and European imperialism, Latin America and Europe share core values of democracy and human rights. Together with Northern America they are forming a triangle of democratic believes. This is true in spite of tensions that arise in certain intervals, particularly between the US and some Latin American states. As I have stated before, Europe and the US do not further these similarities strongly enough, thus running the risk of losing a potential ally, e.g. to increasing Asian approaches.

I have recently started my research on a doctoral thesis about the influence of International Criminal Court (ICC) procedures on active conflicts. During my research it struck me that Europe and Latin America are the only continents in which the majority of states has signed and ratified the Rome Statute founding the ICC. In fact el Salvador, Guatemala and Nicaragua are the only states that still haven't signed the treaty in Latin America. In the Caribbean, Jamaica and Haiti have signed but not yet ratified the Rome Statute. Additionally, since 2003 the chief prosecutor of the ICC is the Argentinian Judge Luís Moreno Ocampo. Latin America and Europe are thus two of the main pillars of support for the ICC, even though the EU and Japan are by far the most important financiers of the court, providing more than 50% or nearly 25% of the budget respectively.

So what exactly does the ICC do and why are Europe and Latin America especially supportive of its work? The idea to found some kind of international court to judge severe crimes committed in wars and conflicts was already born at the beginning of the 20th century. Nevertheless, the Nuremberg trials, in which some Nazi war criminals were judged for crimes against humanity committed during the second world war, remained the only example for an international court judging crimes of individuals. The political situation during the Cold War made an establishment of such a court impossible for decades. After the cold war things started moving pretty fast though. In 1998 the Rome Statute, aiming to establish an International Criminal Court to judge severe crimes on a global scale, was adopted. In 2002, enough parties had ratified the treaty for it to enter into force. In 2003 the International Criminal Court started its work. Its mandate is to prosecute individuals for genocide, crimes against humanity and war crimes. The mandate is still limited to parties of the treaty or individual nationals of these states but the ICC can start investigations when a case is referred to the prosecutor in the scope of a Chapter VII decision of the United Nations Security Council as was the case with Sudan.

This may be only a first step towards fighting impunity on a global stage and some decisions of the ICC are being criticized as being counter-productive for peace negotiations, but humanity has to start in some way if a spirit of anarchy and impunity is to be replaced by some kind of universal legal order in the future. While the US, China and Russia remain skeptical of the ICC and thus impede a real global reach of the institution, 110 states have already ratified the statute. How come that nearly all of Europe and Latin America has done so?

The explanation lies in similar experiences in the past. While Europe has had it's good share of war crimes, genocides and mass murder in the 20th centuries and has thus decided to fight these phenomena as a lesson from their war ridden history, Latin America has recent experiences with impunity. After the Latin American dictatorships crumbled during the 1970's and 80's, most states passed amnesty laws (often initialized by the very people culpable of the crimes) or held truth commissions. Until today, many crimes remain unpunished, victims unaccounted for and perpetrators are living freely in comfort. These issues remain on the political agenda until today, as the Kirchner's hard-fought efforts to lift the Argentinian amnesty laws and the Fujimori trial in Peru show. The ratification of the Rome Statute is a signal from Latin America's democratic governments, that atrocities like those committed in the past will never go unpunished again. And here we come full circle when considering the biography of ICC chief prosecutor Moreno Ocampo. In 1985 he was assistant prosecutor in the Trials of the Junta, the first trial, in which high military leaders were prosecuted for mass killings since the 1945 Nuremberg Trials.

For further information on the ICC and Latin America consult this article in the ICC magazine of the Crimes of War Project.