Current Challenges Underpinning the Rome Statute Implementation Process
By Elizabeth Santalla Vargas*
La Paz, 10 September 2012
Bolivia is a State Party to the Rome Statute of the International Criminal Court (ICC) since 2002. In September 2004, the author initiated a consultancy for the project Ombudsman – German Technical Cooperation, aiming at analyzing and proposing a legal framework for implementation. The consultancy, which was partially published at the end of 2005, analyzed the compatibility of the Bolivian domestic legal system vis-à-vis the Rome Statute implementation obligations and those stemming from the need, and arguably obligation, to give full effect to the principle of complementarity. It further looked at other implementation processes/cases from both civil and common law jurisdictions and proposed a draft law of comprehensive implementation, including provisions on cooperation with the ICC, the implementation of core crimes and principles of substantive international criminal law, as well as the offences against the administration of justice of the ICC, and final provisions addressing compatibility with domestic law. The draft law, partially modified by the Ombudsman as a result of consultations undertaken with civil society, the armed forces, and other relevant actors, underwent legislative processes and later stalled. It should be mentioned that some provisions of the Bolivian draft law were followed by other legislative efforts within the region.
With the entry into force of the new Bolivian Constitution in February 2009, the author consulted for the Ombudsman in order to analyze the compatibility of the draft law with the new Constitution. In so doing, important amendments were incorporated both in light of constitutional provisions as well as relevant aspects arising from the emerging practice of the ICC and other international jurisprudential developments.
This year an ad-hoc commission was set up by the Ministry of Justice in charge of the drafting of a new Code of Criminal Procedure. The author, as a consultant for the Peace and Justice Initiative (PJI) with the financial support of the Coalition for the International Criminal Court, provided legal advice for the implementation of the Rome Statute in this new phase. In one of the Commission’s technical meetings held on 6 June 2012, where consideration of Rome Statute implementation was included in the Commission’s agenda and upon one of the Commission members’ question, the author explained that in her opinion the best way to achieve full implementation of the Rome Statute continued to be a law of implementation. This is so because it has the potential to encompass in a single legislative act not only the rules on cooperation but also substantive complementarity related provisions, as explained below. Furthermore, it is arguably more amenable to fostering the progressive assimilation of the Rome Statute system within national jurisdictions. However, and bearing in mind that ultimately, it is necessary to achieve the final attainment of implementation at least with respect to conventional obligations arising from the Rome Statute system, mainly the obligation to incorporate rules on cooperation in the domestic legal system (pursuant to Article 88), PJI offered to the Commission its technical assistance. Hence, at the end of June 2012, analysis and recommendations were submitted by PJI to the drafting Commission on the basis of the draft that had been presented by the Ombudsman. Thereafter, two papers regarding substantive international criminal law issues have been written, with a focus on critical case law developments at the national level of relevance for the implementation analysis.
- Main current challenges for Bolivia posed by Rome Statute implementation
At the outset, the straight forward challenge remains the actual undertaking of implementation. Not only the fact that a thorough analysis and drafting of implementing provisions has already been undertaken, in fact since 2004 addressing all aspects of full implementation as aforementioned, but also the fact that the fight against impunity for the most serious human rights violations has become a progressively recurring theme in the various aspects of Bolivia’s legal and political culture, speak in favor of addressing the gap between rhetoric and action.
A particular dilemma unfolds with respect to the implementation of core crimes. Whereas there is no obligation for States to replicate the crimes definitions adopted by the Rome Statute –and in fact, the draft law adopted a particular drafting–, the question arises as to the extent of such a leeway. This is even more problematic where (national) jurisprudence has endorsed popular understandings of core crimes, namely of genocide and crimes against humanity. Where such popular understandings can be deemed to be in conflict mainly with the lex certa component of the principle of legality, as critically observed by the present author with respect to the so-called “bloody massacre” expression of the crime of genocide embedded in Bolivia’s Criminal Code which has paved the way for attaining prosecutions and convictions for crimes that could be rather deemed to constitute crimes against humanity, a gap between the (international) legal and popular understandings of genocide appears at risk of being perpetuated. The incoherence to which such an apparent protective outcome may lead will not benefit international law from a due process perspective.
Illustrative of this issue is the current discussions prompted by the recent communication issued by the United States administration with respect to the extradition request by Bolivia for its former President, Gonzalo Sanchez de Lozada, accused inter alia of genocide in its “bloody massacre” modality, for the violence that erupted in the so-called “black October 2003”, where more than 67 persons died and many others were seriously injured. After several years – the extradition request was initiated in 2007-2008 –, the United States administration has informed Bolivia that it is not in the position to continue considering the request as formulated in the extradition request because, in its view, it does not comport with the bilateral extradition treaty concluded between both countries in 1995. Such a legal dissonance, according to the United States, seems to be inferred mainly by the inexistence of the well-known principle in extradition law of double or dual criminality –which has attained the status of a rule of customary international law –, i.e. the criminalization of the same underlying conduct in both concerned jurisdictions (the requesting and requested States), and by the scope of the principle of superior responsibility under US law. The former argument is predicated on the understanding that certain charged offences do not meet the double criminality requirement; namely, enactment of resolutions contrary to law and impairment of freedom of the press. Hence, the requested State does not seem to pronounce on the way genocide has been criminalized in Bolivia’s Criminal Code. The latter argument refers to the interpretation and application of the superior responsibility principle in US law, by which, according to the US, there is no room to consider a civilian superior (politician) as being responsible for the conduct of military and police forces. Without passing judgment on the consistency of such an approach with international law, if ‘[…] the focus of the analysis is strictly whether the conduct of the individual would be criminal in the requested State, […]’ there is a likelihood that the accusation, as it currently stands, could prevent extradition.
(It should be stressed that as of the time of writing, the official communication has not been made public, so the author is only relying on information provided by the press).
It is further important to consider that, in accordance with the extradition treaty, requests shall not be granted for political offences. However, an offence for which both Parties are obliged pursuant to a multilateral treaty to establish criminal jurisdiction, is by virtue of the treaty expressly excluded from the reach of the exception. This is undoubtedly the case of genocide. However, despite the fact that both States are parties to the Genocide Convention (1948), the Convention would not apply to the present case. As the Supreme Court itself admitted in the impeachment proceedings conducted against some of the accused who were found in Bolivia in relation to the “black October 2003” events, the “bloody massacre” expression of the second paragraph of the crime of genocide has no connection whatsoever with the international definition of genocide.
In any event, – and setting aside the issue of superior responsibility in US domestic law for the sake of the argument, which deserves further analysis – the case illustrates the importance of implementing the crimes against humanity into domestic criminal law. The same applies for the principle aut dedere aut judicare, that following the initial recommendations advanced in 2004-5, has been raised by PJI in its document on cooperation and related aspects for the attention of the drafting Commission.
The aforesaid does not mean to neglect or downplay the seriousness of the crimes committed in the “black October 2003” events, but is rather a call to attain justice in such a way that does not lend itself to be questioned from a due process point of view. After all, justice is not going to be served by recurring to the particular stigma of genocide, but rather by applying the proper and relevant offences. Shouldn’t this consideration guide the implementation of substantive international criminal law rather than the apparent need to retain a jurisprudential tendency that does not jeopardize the prosecutions already attained on such flawed bases? PJI has emphasized on the need to reflect upon this thorny issue while implementing the core crimes, in particular the crime of genocide.
Another related point of contention is the implementation of crimes against humanity. Although still inexistent in Bolivian criminal law, its jurisprudence has resorted to the notion of crimes against humanity in order to overcome the statute of limitations hurdles in respect of drugs related offences. Such a categorization has been advanced by the Supreme Court on the basis, inter alia, of the drugs control law (Law 1008) that in one of its provisions on international cooperation (article 145), qualified such offences as crimes against international law and against humanity.
In sum, one of the most critical aspects for implementation is posed by the fact that Bolivian national case law has built a jurisprudence that endorses and justifies dubious popular understandings of core crimes. However, many jurisprudential tendencies have managed to change over time also at the international level. The implementation of core international crimes could foster such an outcome and may be considered feasible on the basis of the separation of powers doctrine.
*Consultant and member of Peace and Justice Initiative.
Member of the Latin American Group of Studies on International Criminal Law.
Universidad Católica Bolivia (first- law degree), University of San Francisco – USA (LL.M.), various post-graduate courses on international law.
The author thanks M. Ventura, member of PJI, for some editorial suggestions.
 Ratified by Law No. 2398, on 24 May 2002; deposited with the Secretary General of the UN on 27 June 2002.
 E. Santalla Vargas, ‘Implementación del Estatuto de Roma de la Corte Penal Internacional en Bolivia: Análisis del Ordenamiento Jurídico Interno y de los Procesos de Implementación en la Legislación Comparada’, en Defensor del Pueblo de Bolivia – Cooperación Técnica Alemana (eds.), Implementación del Estatuto de la Corte Penal Internacional en Bolivia (2005), 85-168.
 Anteproyecto de Ley de Implementación del Estatuto de Roma de la Corte Penal Internacional, en Defensor del Pueblo de Bolivia, supra note 2, 197-267.
 This was the case for instance with Uruguay, whose implementation law entered into force on 11 October 2006.
 The work on implementation has addressed other critical aspects.
 Art. 138 of the Bolivian Criminal Code reads in part: ‘One who, with the aim of destroying in whole or in part a national, ethnic, or religious group, kills or injures members of the group, or subjects them to inhuman living conditions, or imposes measures designed to impede their reproduction, or by violence removes children or adults to other groups shall be imprisoned from ten to twenty years.
The same penalty applies to the actor or instigators or other directly or indirectly responsible for bloody massacres in the country’.
Translation by J. Quigley, The Genocide Convention: an International Law Analysis (2006), 40-1.
 E. Santalla Vargas, ‘An Overview of the Crime of Genocide in Latin American Jurisdictions’, (2010) 10 (4) International Criminal Law Review, 441-452.
 Signed in La Paz, on 27 June 1995.
 See e.g., A. Knoops, Surrendering to International Criminal Courts: Contemporary Practice and Procedures (2002), at 102. For a recent case in this vein, see Minister for Home Affairs of the Commonwealth v. Zentai  HCA 28, High Court of Australia, 15 August 2012, para. 22 (per French CJ).
 This is also the approach adopted by the 1990 UN Model Extradition Treaty, see Knoops, ibid.
 Art. II (3)(a). ‘[…] In determining whether or not the laws in the Contracting Parties place the offenses within the same category of offenses, contain the same elements, or describe the offense by the same terminology, as long as the underlying conduct is criminal in both States. […]’. Letter of submittal, Department of State of 22 September 1995.
 Knoops, supra note 9, at 103.
 See for example: ‘Si Bolivia ajusta su demanda, Goni puede ser extraditado’, Página Siete, 10 September 2012. ‘Gobierno apunta a que EEUU o la CIDH anulen decisión sobre Goni’, La Razón, 10 September 2012.
 Art. V.
 Corte Suprema de Justicia, Tribunal de Juicio de Responsabilidades, proceso seguido por el Ministerio Público y Acusadores Particulares, Sentencia de 30 de agosto de 2011.
 For a critique, see E. Santalla Vargas, ‘Report on Bolivia’, in K. Ambos et al (eds.), Jurisprudencia Latinoamericana sobre Derecho Penal Internacional (2008), 67 at 84-6.