 Okay, write that down. It'll be on the final exam. Today we're talking on transitional justice and complementarity in Colombia and Venezuela with Santiago Vargas Nino. He's a lawyer, and he is in Bogota now, Bogota now in Colombia, and he follows the action in Venezuela and Colombia about war crimes and crimes against humanity and atrocities and what happens to them. Welcome to the show, Santiago. Thanks a lot for having me, Jay. It's a pleasure to be here with you today. As I was saying beforehand, it's very important we talk about these things, because if we don't talk about these things, they will get worse. Matter of fact, some people think they're getting worse anyway. What do you think? Yeah, there's definitely an increase in interstate violence, so the recourse of states to excessive use of force, to quash demonstrations, to prevent opposition from gaining, well, public office during elections, and ultimately to impinge upon everyone's human rights. We've seen waves of crackdowns on social movements in Sudan, in Myanmar, in Colombia, basically all over the world, and I think that after the rather optimistic era of multilateralism and development of the 1990s, the 2000s have been quite rough for the human rights community. That's not good to hear, but I think it follows a track, doesn't it? Let me explore you with you what the track is. I'm remembering my own time in Turkey, in Istanbul. The president of Turkey wanted to build a shopping center in a park. I'm forgetting his name right now, but he's pretty autocratic, and the people came out in the park for a very peaceful protest. It was a picnic. They brought their kids, they brought sandwiches. Taxi Park, it was called. This is 10 years ago. Before you know it, the police showed up and the police started pushing them around. That brought in other protesters who were more aggressive, and it spiraled up through truncheons, tear gas, and ultimately rubber bullets. A lot of people were hurt. Every day that went by, more Turks would show up in the park, and more police would show up with police weapons. By the end of the week, it was pretty violent, and people had been killed. This is over whether a shopping center should be built in a park. You can have a perfectly reasonable protest over a public issue, and before you know it, an autocratic government will step in and somehow make moves that will accelerate and escalate the whole spiral of violence. Actually, what that does, at least what it did in Istanbul, is it played into his hands because at the end of the day, he was more an autocrat, and he had taken more steps to be more powerful and more draconian in the way he dealt with the people who brought their kids for a picnic. I mean, it's very troubling, but I think that kind of thing happens in other places too, where you start out with a peaceful protest, and before you know it. There's an example of that in Sudan. I saw some footage about that, and I don't know how peaceful or violent the protests are in Sudan, but I'm sure they're not as peaceful as they were when they started. What are your thoughts about that? Well, actually, I think that we can dovetail very comfortably into the situation in Colombia and Venezuela with this reflection that you just made, because I think both countries are sort of mirror images of each other. Venezuela currently is under an autocratic regime, the Maduro regime, which was basically inherited from Hugo Chavez, whereas Colombia prides itself in being, at least formally, one of the most stable democracies of the hemisphere. You had a mass migration from Colombia towards Venezuela in the 1980s and 90s due to the violence in this country. Currently, the opposite trend is true, so you have almost two million Venezuelan refugees in Colombia out of around 5.7 million who have had to leave their country due to the dire political and economic situation that they're living. Despite those striking differences, you can see how both governments tend to have recourse to repression, to false information, and ultimately to all sorts of criminal techniques to keep the opposition at bay and to keep people obedient. So for instance, the situation in Venezuela before the ICC actually stemmed from a series of crackdowns on peaceful demonstrators in Caracas and elsewhere since 2014. And in Colombia, just last year, we had a massive national strike that was equally repressed by the security apparatus. So even though you would normally associate this type of state conduct with autocratic regimes, it is unfortunately becoming increasingly true about at least formally democratic countries as well. I say formally democratic countries. I mean, it strikes me that project expedite justice is looking for justice against criminals, against war criminals, human rights violators, people who conduct atrocities in various places, and there's no shortage of places. There's no shortage of crime. And with the emergence of autocratic governments, you imply that it's all over the world, and that's my information too. It's happening in many, many places some reason. And you wonder, and I know this is not exactly on the point, but I wonder about looking down into the fundamentals. Why is that happening? Because war crimes and atrocities follow from autocracy. You have autocracy, this is likely to happen, or more likely. So what can we do about preventing the emergence of autocracy and preserving some kind of representative government and concern about human rights? What can we do about that? Can project expedite justice do that? Can the United Nations do that? Who can do what about it? That's a really interesting question, because indeed, the tools that we have at our disposal tend to be remedies for atrocities that have already occurred rather than policymaking mechanisms to prevent the recurrence of international crime or any sort of atrocities. So I think, first of all, we need to take a step back and look at the situation around the world, how these trends are repeating themselves, regardless of geographical location, national origin, political inclinations, and perhaps to wonder what tools could be best used to address the structural issues behind systemic violence. And what's been observed by many scholars is that at the core of atrocity crime, you will tend to find an unequal society that is based on exploitative relationships of work. Generally, in countries where the economy is not very industrialized, but which rather depends on the exploitation of natural resources and an enterprise that is usually carried out by firms from the global north. So for instance, Canadian mining companies such as Glencore here in Colombia or French and Belgian interests in Central Africa. And so perhaps we should ask ourselves whether these unfortunate situations are actually wired into the system so as to make it impossible for people living in conditions of poverty, inequality, and disenfranchisement to move towards a better future. And that's perhaps one of the most interesting aspects of the most recent experience, the most recent Colombian experience with transitional justice. So in 2016, the government of then President Santos signed a peace agreement with the eldest guerrilla group in the region, the Revolutionary Armed Forces of Colombia. And despite of that agreement, they created a comprehensive system for truth, justice, reparation, and guarantees of non-recurrence. Within that system, a judicial institution, the Special Jurisdiction for Peace, was responsible for the investigation and prosecution of torturous crimes committed during the armed conflict. And there was a question as to its agreement with the Rome statute and its strong call for investigations and prosecutions that lead ultimately to long terms of imprisonment for those who are found guilty. And in the first official visit by the current prosecutor of the ICC, Mr. Karen Brun to Colombia, he decided to shut down a preliminary examination that had been going on in the country for the last 17 years because he found that the proceedings of the Special Jurisdiction for Peace were satisfactory, that they were identifying and holding perpetrators of crimes such as hostage-taking and severe deprivations of liberty, murder, and forced disappearance accountable. And that it showed promise even though it doesn't actually have the aim of imposing carceral punishment upon those people who are found guilty, but rather alternative sentencing that has a restorative approach. Would you say it's been successful? I would say it's been partially successful. The deeper structural transformations are again not dependent upon the work of judges, but rather on a society-wide effort to change the distribution of the land to make sure that people who have been forced to produce coca leaves for the transformation into cocaine and then it's trafficking into the United States and Northern Europe have viable economic alternatives. It is upon, let's say, the citizenry as a whole to open up the political system and to welcome former armed actors into the political and electoral game. But I think in terms of the attribution of individual responsibility for at least the most salient crimes of the conflict, there has been some success. I think there's a lot left to do, but... Let me ask you this though. The question is, so you have this kind of convulsion and you create the commission, the agreement, I guess the FARC agreement, I suppose it was. Then at the end of the day, there's a possibility that we'll lose vitality over time. The long-term way to, and I say long term these days, I'm not sure what long-term means, but let's say that goes further out toward the horizon is to have a viable, non-corrupt judiciary. A judiciary was prosecutors who were not corrupt and a rule of law, a rule of law institution in the country that is institutionalized, that is memorialized, that will carry on for decades and decades and decades. They see a crime, an atrocity, and they prosecute and they put these people in jail for a long time. Now that's what should happen if you're looking for a sustainable solution. Do you agree with me that if you have these truth commissions and commissions that are dedicated to root out what happened in a given period of atrocity in some country, South America, Africa, what have you, that is only going to last, is the commission less and the commission will ultimately lose vitality? Yes, indeed the whole comprehensive system is not a permanent fixture of the Colombian institutional landscape, but it's rather expected to conclude its mandate in different timeframes. So for instance, the Truth Commission is supposed to finalize its report this year. The Special Jurisdiction for Peace has 10 years of or rather a mandate of 10 years initially, which can be extended for five years exceptionally. And then we have a unit that's responsible for the search of missing persons, which has a mandate of 20 years. So indeed the idea is to have a sort of transitional period in which these institutions help sort of establish the rule of law in Colombia, help the state itself regain the legitimacy that it has lost over years and years of war, and ideally also re-establish trust amongst citizens. But yes, I believe that in the end, what's needed is a strong institutional framework that is responsible not only for the investigation and prosecution of crime, but for all other societal needs. And it's interesting that you should bring this up because it helps me refer to the situation in Venezuela, which was again under ICC preliminary investigation and was recently shifted towards a formal investigation. So basically the prosecutor now has the authority to go looking for evidence, to interview witnesses, to summon people or request arrest warrants for people to be arrested and surrendered to the court. But a prosecutor hand took an interesting approach and he basically signed a memorandum of understanding with the Venezuelan authorities, giving the judiciary in Venezuela sort of an additional opportunity to demonstrate that it is willing and able to investigate and prosecute members of the Maduro regime who are accused of committing international crimes, particularly crimes against humanity. But this was highly criticized because a recent report by the Office of the High Commissioner of Human Rights at the United Nations found that basically there is no judicial independence whatsoever in Venezuela and that the judicial process is actually used to shield perpetrators from accountability. When magistrates, prosecutors, judges actually take action against these individuals, they face punishment in terms of being demoted, in terms of being expelled, in terms of even being prosecuted. So again, as you say, some of these problems could be solved by a strong judiciary. The prosecutor of the ICT himself appears to believe that, but the problem is that such organizational framework simply doesn't exist in Venezuela at the time. Idol of our show is complementarity in Colombia, Venezuela. I must say that until today, in my life on the planet, I have never heard that term before. So maybe you could tell us what that means. Of course, Jay, with pleasure. So it's basically a principle that assists the court and states parties to the Rome Statute on the definition of who is responsible for the investigation and prosecution of international crimes. So under the statute, this is primarily a responsibility of the states themselves. And the court is complementary to the jurisdictions in as much it can only intervene, meaning initiate its own investigations, prosecutions and trials. Once it has been established that the state is either unable or unwilling genuinely to prosecute persons accused of core international crimes. And again, going to the two countries that we're discussing today, they appear to be mirror images because in Colombia, the ICC prosecutor basically found that a transitional justice mechanism can be both able and willing to go after persons accused of war crimes, crimes against humanity, perhaps even genocide, as long as it carries out progressive steps for the ascertainment of individual criminal responsibility. And it establishes some sort of consequence, even if it's not necessarily a traditional term of imprisonment. On the other hand, in Venezuela, the prosecutor is once again sort of pushing the ball forward and allowing the Venezuelan judiciary, which according to the UN, is highly compromised to prove that it is actually able to take action against members of the Maduro regime. But what I think is that since Venezuela is already such an isolated player in the world of international relations and pushing it further towards Russia isn't really clever, the prosecutor might have signed that memorandum of understanding with the Maduro regime, basically to give them some leeway to go after those individuals who bear the most responsibility. So think of Maduro, his ministers, his directors of all the security apparatus, but that if he has his eyes on the ball, the prosecutor should be using this time to gather evidence against low and mid-level perpetrators who could either be prosecuted before the ICC with the acquiescence of the government in Venezuela, or who could serve as insider witnesses to bring charges forward against higher-ranking officials. When you have an organization, a prosecutor commission, go after people who conducted who are guilty of war crimes in the past. Does that tend to diminish war crimes in the present? In other words, are you safer? Are you safer when there is a commission in place? Are you safer when there's a prosecutor, not a corrupt prosecutor, a legitimate prosecutor in place? Does it have an effect? Well, that's a really great question because the premise of international criminal law is that it does, that you conduct this lengthy and expensive trials because they help prevent the recurrence of atrocity. But even though we have said never again over and over again, this type of criminality keeps taking place. So the question is empirically unresolved. I think it's more a moral commitment from practitioners of this field. But I think it bears questioning what the purpose of ICL truly is. I think if we keep repeating that expensive trials in the Hague are the only way to put an end to criminality, we are not taking into account the structural inequalities that I was mentioning earlier, such as an equal land distribution, lack of access to natural resources, exploitation from, coming from the global north of the natural wealth of poorer nations in Latin America and Africa and Southeast Asia. And then if we then change the narrative and we say, well, ICL is actually just the remedy for those situations in which we haven't been able to prevent this type of conduct. And it's simply aimed at ascertaining the truth, apportioning responsibility and imposing penalties upon people who breached the most basic rules of peaceful coexistence, such as not committing genocide, then the enterprise could perhaps be more sincere and appear less, you know, lofty and perhaps idealistic. Well, you know, this raises the issue in my mind as to whether the United Nations or call it the family of nations, whether it's the United Nations or some collaborative of nations around the world is doing its job morally. And my answer personally is no, it's not. And one of the reasons is that it's being subverted by Russia, among others in the Security Council and otherwise. Look what Russia has done to support Bashat in Syria. Look at that. And that's, he's one of the worst of all time. And there's been no accountability whatsoever. And he keeps on doing it every day. His own people is really remarkable. And the United Nations, thanks to Russia and others, is unable to do anything about it. So if we had a stronger United Nations as an organization, as a moral beacon, and possibly the United States could help do that, maybe in another time, not right now, we would have a better chance at forcing Bashat to stop. And also the Recep Tayyip Erdogan in Turkey to stop and Saudi Arabia to stop. And so many other places, you know, think about the the junta in Myanmar, for example. I mean, we could go on all day. But if there was a truly empowered and not corrupt United Nations, then it would be clear. I mean, it's not only about sanctions by the United States against Russia for whatever it's doing in Ukraine. But it's about all the nations all getting together, speaking in one voice, speaking in one clear, unambiguous morality to say stop. I mean, to me, that would be my wish. And if you make me president of the world, Santiago, that's what I'm going to do. I'm telling you now. And you have my vote. I mean, we'll be having United Nations that has its own corruption. And with that corruption, there is no body, no world body that can really, you know, remember Rwanda, the genocide of half a million people. I mean, useless, silly, silly, silly murder in the streets every day for months where neighbor turned on neighbor. And extraordinary that the United Nations went in there and ran away. The blue helmets ran away. We should have, we, the United Nations, should have done better. Yeah, I think that you hit the nail in the head when you speak about, you know, the nations themselves rather than the organization, because the UN is only as strong and as committed as its membership. And indeed, you can see, particularly at the Security Council, how different, you know, powerful states use the language of human rights of international law in a strategic way to just, you know, jockey their geopolitical interests rather than showing a sincere commitment to this so-called rules-based order that we attempted to create after the Second World War. And indeed, you could point fingers at anyone who sits in that chamber and say, you haven't done enough or you're supporting, you know, oppressive regimes in the Middle East or in Central Asia or, you know, Russia itself. Yeah, so even here, like here in Venezuela, there's no talk of a Russian military intervention. So it's definitely up to the states to live up to the promises and the commitments that they made to the rest of the world when they decided to ratify the UN Charter. And now that you mentioned the sad example of the genocide in Rwanda, I actually remember a book by General Romer Daler, who was the commander of the military observers in Rwanda. He says how he once visited the United Nations in New York, requesting, you know, additional support, more troops, perhaps a wider mandate to actually protect the civilian population. And the French diplomat who remains unnamed is said to have responded. But why should we invest, you know, so much money and put our army in harm's ways if the only natural resource that Rwanda has to offer are human beings? So it basically shows you the cynicism and the callousness behind diplomacy. Yeah. Well, actually, that's disturbing. It's disturbing in the face of these, you know, the increase in autocracy, the increase in this kind of violence. But one other question before we go, and that is this, you know, I think some countries feel maybe it's in the time of high tech and the time we have seen enlightenment. We've seen enlightenment at least for a period of time after World War II. We have seen humanity rise to levels of civilized human beings for a time. But as we speak, there's so much autocracy and there's so much vulnerability to autocracy, even a wish for autocracy in some places. That seems to me that no place is really secure from autocracy. And if we agree that autocracy ultimately leads to crimes against humanity, then there's no place that's really safe from that possibility. And I keep thinking that, you know, in the US, there are many people who would like to throw throw out democratic representative government who really don't care too much about civil civil liberties and civil rights. Have you thought about that? Do you think the US could be an example of a country that devolves into autocracy and then ultimately into its own atrocities? Well, that's very interesting. I think the whole world was watching when President Trump basically called for an insurrection and allowed for the capital of the United States, which has been traditionally seen as this beacon of Western democracy around the world, to be taken over by hostile demonstrators. And it definitely shows you how fragile democracy is and how dependent on social welfare it is. Because of course, you can condemn the actions of pro-Trump demonstrators who had recourse to violence and who desecrated the holy realm of democracy in the US. But also you can appreciate the economic hardship that they're facing as a result of policies that tend to benefit the wealthiest among the wealthy and corporations over human beings. I think that this sort of growing need for recognition, for education, for actual financial opportunities has remained unattended. And this leads people to look for easy answers. It's not a new phenomenon. So it's usually blame it on the immigrant or blame it on the minority community, blame it on the Jewish population in Germany in the 1940s. And I think this shows that if governments do not invest in the welfare of their communities and if instead they align with corporate interests and they could basically sign off the office of the president, the majority of Congress, to basically a group of individuals who are at the service of the dollar rather than the individual. And yeah, if that's not addressed, I think it could definitely lead to autocracy. As we could see a little bit during the Trump administration who had basically no checks or balances because he had his own attorney general and majority in Congress that basically shielded him from political and perhaps even legal responsibility and such an easy way to manipulate public resources to buy off support that it could very well have turned out to be a very dark day for democracy where he just decided not to participate in a peaceful transfer of power, but rather to command the National Guard or the army to stand by him and to basically create a sort of Russia-esque scenario in Washington. We live in difficult and threatening times, actually, Santiago. Santiago Vargas-Nia, we really appreciate you coming on the show today. I hope we'll get a chance to continue this conversation at an early date. Thank you very much for the invite, Jay, and I hope so as well. Aloha.