Opinion – Latinoamérica21: The International Criminal Court and the Venezuelan case

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On 3 November, the chief prosecutor of the International Criminal Court (ICC), based in The Hague, Karim Khan, announced the opening of the formal investigation of crimes against humanity in Venezuela.

This landmark decision is the first in Latin America and comes after Khan completed the preliminary examination after a three-day visit to the country.

As Venezuela is a signatory to the Rome Statute, which recognizes the authority of the ICC, this announcement was accompanied by a memorandum of understanding signed by Khan and Venezuelan President Nicolas Maduro, to which, under the principle of complementarity, the government commits itself to facilitate the investigation even if it expresses its disagreement with the decision.

The formal opening of the investigation confirms the reports issued by the OAS (Organization of American States), the United Nations High Commissioner for Human Rights and the Independent International Mission of Investigation on the systematic violation of human rights by the Venezuelan State.

Created in 1998 by the Rome Statute, the International Criminal Court entered into force in 2002. It has since opened cases against former leaders such as Laurent Gbagbo of Côte d’Ivoire and Omar al-Bashir of Sudan.

In particular, among the four classes of crimes of greatest international importance, those against humanity are those particularly serious, systematically committed against civilian populations in order to impose State policies.

They include torture, arbitrary detention, enforced disappearance, extrajudicial executions, among other crimes.

In 2017, since exile, the Venezuelan prosecutor fired by Maduro, Luisa Ortega Díaz, and Grupo de Lima went to the ICC because of the institutional cooptation of the Venezuelan justice system.

In turn, victims and NGOs (non-governmental organizations) gathered solid evidence about the multiple extrajudicial executions, arbitrary detentions and torture, which allowed the opening of an international criminal case in February 2018.

In this way, Khan concludes a first phase initiated by the previous prosecutor, Fatou Bonsouda, who was responsible for the preliminary examination of Venezuela for state crimes committed since at least April 2017, within the scope of the protest cycle that took place at that time.

​What might be the consequences of the ICC decision?

First, the opening of a formal investigation into crimes against humanity gives victims hope of justice. They will be the main protagonists of the investigation, in which their statements will be crucial.

Second, the ICC decision opens a window of opportunity for Venezuela in at least two dimensions: one of human rights and a more political one.

Regarding the first, if the government wants to avoid a conviction, it will need to take substantial measures, which go beyond the cosmetic changes with which it tried to deceive the Public Ministry in recent months.

It is important to keep in mind that the ICC is governed by a principle of complementarity that seeks to interact with national jurisdictions.

In cases where it is evident that there is neither the will nor the circumstances to prosecute crimes within each country, the ICC goes ahead with criminal prosecutions on its own and may eventually lead to convictions.

That is why, for example, on his trip to Latin America Khan decided to close the Colombia case and proceed with the formal investigation in Venezuela.

In contrast to Venezuela, the Prosecutor’s Office concluded that “there is a commitment by the Government of Colombia to the different but interconnected jurisdictions that comprise the common justice system, the Justice and Peace Law mechanism and the Special Jurisdiction for Peace, and, in particular, to safeguard the legislative framework and the budgetary allocations necessary for its implementation”.

Maduro would then have to demonstrate, in this new phase, the willingness to rectify and make reparations that would imply, for example, the closing of clandestine detention centers, the prohibition of trying civilians in military courts, the removal and judgment of the authorities in the bodies that perpetrated the crimes, including the Armed Forces, the Scientific, Criminal and Criminal Research Corps (CICPC), and the Military Intelligence corps.

Likewise, the closing of the Special Action Forces (Faes) and a judicial reform that, among other things, guarantees an independent justice system through public competitions and not through discretionary selection, is essential.

Regarding the political dimension, Khan’s recent decision puts pressure on Maduro, if he seeks to avoid prosecution, to recognize crimes during his administration that could open fissures in his hegemonic coalition.

Given that the ICC ensures in the Memorandum of Understanding that it will recognize the State’s efforts in relation to these crimes, the determination of responsibilities in the chains of command, including at the highest levels, will be a key factor in demonstrating the goodwill of the government.

Who would Maduro be willing to sacrifice to avoid prosecution and possible conviction by the ICC? What senior civil and military officials would he agree to sue to avoid his own responsibility and that of his immediate entourage?

This momentary dilemma, which weakens the ruling bloc, could increase incentives at the negotiating table that took place this year in Mexico and from which the government withdrew in protest against the extradition of Alex Saab from Cape Verde to the US.

Saab, a Colombian businessman closely linked to the Maduro government and his family’s overseas businesses, was accused of money laundering.

The prosecutor’s decision could contribute to the government’s return to the table, with greater incentives to make concessions for democratic reinstitutionalization.

There is no doubt that the regime will do everything legally possible to delay the ICC investigation. You are aware that these processes can take years and are fraught with obstacles. In addition, it continues to pursue cooperating NGOs and witnesses.

However, the step taken by the Prosecutor’s Office constitutes a first achievement for many Venezuelan victims who, in the absence of justice in the country, official censorship and the international media campaign that makes the crimes of the State invisible, have relentlessly persisted in demanding justice, the right to truth and due guarantees of repair and non-repetition.

In regional terms, the historic decision to open the investigation of crimes against humanity in Venezuela is an important precedent in times when democratic systems seem to be in retreat.

It is a warning against autocratic ambitions and practices, and also that there are still mechanisms capable of doing justice, despite the control of national institutions.

It breaks the impunity of human rights violations in Latin America and the Caribbean. Some of you must be figuring out how to prepare so that doesn’t happen to them.

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