Scenarios of the investigation into Venezuela at the International Criminal Court: What to expect during 2022?

2021 began with the news that the Assembly of States Parties to the Rome Statute had chosen British lawyer Karim Khan as the new prosecutor of the International Criminal Court (ICC). The selection process had been closely followed by Venezuelan society with the knowledge that the new prosecutor would have an important role in advancing the preliminary examination of the Venezuela I situation. At that time, the Office of the Prosecutor had already concluded that there was reasonable grounds to believe that crimes against humanity were committed in Venezuela against government opponents in the context of anti-government protests and related political unrest in the country since at least April 2017. And it was analyzing whether there were efforts at the national level to conduct genuine investigations, which would make the situation inadmissible to the ICC.

The following months were marked by a communication effort by the Venezuelan Government that aimed to show a premeditated sudden advance in some emblematic cases that would fall within the jurisdiction of the Court. During the preliminary examination, the previous prosecutor, Fatou Bensouda, had been in communication with the Venezuelan State, which forwarded information to its office about national proceedings allegedly carried out with respect to the facts that would fall within the jurisdiction of the Court.

During the first half of 2021, the Venezuelan government also attempted a series of resources. On May 27, 2021, the Attorney General of Venezuela reported that an appeal had been filed with the Chamber to exercise judicial control over the performance of the ICC prosecutor’s office with respect to the preliminary examination in process, based on articles 93.10 and 46.2 of the Rome Statute. However, two months later these appeals were dismissed by Pre-Trial Chamber I,to which the situation is assigned.

Before leaving office, during an interview conducted by France24,Bensouda announced that he had reached a conclusion about the preliminary examination, but had not been able to make it public due to the resources attempted by the Venezuelan government. Therefore, the final decision on whether or not to open an investigation would be left to the new prosecutor Khan.

After beginning his duties, Khan announced that he would make a visit to Venezuela from October 31, whose objective and impact generated a wide discussion in the different sectors of Venezuelan society, including in the groups of victims.

During the closing of his visit to Venezuela, on November 3, 2021, Khan announced that he had decided to launch a formal investigation into the crimes against humanity that occurred in the country.At the same event, the Prosecutor signed a memorandum of understanding with the Venezuelan Government in order to ensure State cooperation under the principle of positive complementarity. He also expressed that he is aware of the failures that exist in Venezuela and that they will work under the principles of legality and rule of law independently. He requested that the office of the Prosecutor be given the opportunity to do its work independently and called for the Court’s work not to be politicized.

The Venezuelan government expressed its disagreement with the decision to initiate an investigation. It stated that it considers that the requirements of Article 53(1) of the Rome Statute to justify the transition from the preliminary examination phase to the investigation phase are not met. The decision to move on to the investigation represented a message of hope to the victims of the acts of repression and persecution that have occurred in the country since at least 2017.

Scenarios of the progress of research during 2022

2022 thus begins with renewed hope on the part of the victims of crimes against humanity in the country and will be marked by an in-depth discussion by civil society and the international community about the future of the investigation and the implications that this will have on the Venezuelan landscape. Below are some of the most important points to keep in mind as the research progresses during this year.

  1. Information on the parameters of the initiation of the investigation

Although in 2021 the important decision to open the investigation was obtained, the details on the parameters within which the Prosecutor’s Office of the Court will create its investigation strategy are still unknown.

Two points are of particular relevance, the first concerning the time frame within which the investigation is opened. It is important to remember that when a group of States parties to the Statute referred the situation in Venezuela to the Office of the Prosecutor of the ICC, they requested that such an examination be carried out since the events of 2014. However, the Prosecutor’s Office had decided to limit the preliminary examination to the events that occurred since April 2017 and has not disclosed what will be the time frame on which the investigation will be carried out.

The second important element will be which crimes will be investigated. The Office of the Prosecutor had concluded during the preliminary examination that the information available at that stage provided a reasonable basis for believing that civilian authorities, members of the Armed Forces and individuals in favour of the Venezuelan Government have committed the crimes against humanity of imprisonment or other serious deprivation of physical liberty, in violation of fundamental norms of international law, torture, rape and/or other forms of sexual violence of comparable gravity and persecution of a group or collectivity with its own identity based on political motives. However, the crime of murder as a crime against humanity had not been included during the preliminary examination phases.

With respect to both elements, the Office of the Prosecutor has been clear in stating that it had decided to focus the preliminary examination on a subgroup of victims related to the treatment of persons in detention. Because it had at its disposal sufficiently detailed and reliable information regarding the specific elements of the crimes of the Rome Statute. However, both the time frame and the crimes subject to investigation could be expanded during the investigation phase to the extent that the prosecution team obtained sufficient information to meet the standards of proof in the process. The Prosecutor’s Office of the Court can currently, if it has sufficient evidence, include the investigation of the events that occurred since 2014, and include the crime of murder as a crime against humanity.

  1. The application of the principle of complementarity will continue to be the subject of analysis and discussion

The Rome Statute system does not aim to replace domestic courts with the jurisdiction of the ICC, thus establishing the priority or primacy of national jurisdiction. Because of this, the Court’s jurisdiction is complementary to national jurisdictions and can only act when the State is unable or unwilling to try those responsible for the crimes of the Rome Statute.

The work of the Office of the Prosecutor of the ICC must always safeguard the balance between respecting the normal functioning of national systems for prosecuting and punishing those responsible for crimes and, at the same time, fulfilling the mission that crimes that concern the international community as a whole do not go unpunished. This principle of complementarity is not discussed exclusively during the preliminary examination, but is transversal to the whole process. This implies that during 2022, and as the investigation progresses, the Prosecutor’s Office will continue to evaluate whether the Venezuelan judicial system has the capacity to investigate and prosecute those responsible for the crimes against humanity committed and if, in fact, they are carrying out authentic trials.

In this regard, the memorandum of understanding between the Office of the Prosecutor of the ICC and the Venezuelan Government expresses support for the judicial reforms necessary for valid trials to be carried out under the principle of complementarity. Civil society organizations have warned that the decisions taken in some emblematic cases to advance criminal proceedings at the national level do not meet international standards for the investigation and prosecution of crimes against humanity. Since crimes of sufficient gravity were not charged and the chains of command were not investigated, and structural changes are required in the Judiciary so that the minimum standards necessary to be able to carry out this type of process are met. This has also been confirmed by the Fact-Finding Mission on Venezuela in its latest report of September 2021.

As a consequence of this principle of complementarity that is transversal to the whole process, there are two specific remedies that can be tried by the State, or when an alleged person responsible for this is already individualized, so that a review of the admissibility of the situation or the case is made. These remedies are provided for in Articles 18 and 19 of the Staff Regulations and may be attempted at different points during the investigation.

With respect to article 18 of the Rome Statute, the State had a period of 30 days from the notification of the opening of the investigation to request its application, justifying the existence of valid domestic procedures on the facts that would fall within the Court’s investigation. However, so far it has not been made public whether the Venezuelan Government exercised such a resource, on which information would be available in the coming months.

  1. Activities of the Office of the Prosecutor, collection of evidence and obligation to cooperate

The move to the investigation will allow the Office of the Prosecutor to use its resources to obtain various pieces of evidence on crimes against humanity that occurred in the country. During this phase, the Office of the Prosecutor collects and examines evidence, interrogates persons under investigation and victims and witnesses, in order to find evidence of the commission of crimes against humanity and to identify potential suspects.

As the investigation is advanced, the Office of the Prosecutor may also determine whether there are grounds for bringing charges against specific persons who have individual responsibility for the crimes against humanity under investigation. If this is the case, it would request the Pre-Trial Chamber to issue summons or arrest warrants.

In the conduct of the investigation, Venezuela has an obligation to cooperate with the Office of the Prosecutor of the Court. In principle, it has a general duty to cooperate in connection with the investigation and prosecution of crimes within its jurisdiction in accordance with article 86 of the Statute, which provides that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in connection with the investigation and prosecution of crimes within their jurisdiction”.

During his last speech on Venezuela, in December 2021, the Prosecutor recalled that complementarity is a key aspect and a fundamental basis of the Rome Statute system, which is why his office will make the necessary efforts to ensure the cooperation of the State in the framework of the investigation. State cooperation may be essential for the taking of evidence or the surrender of persons. It is also important to mention that, in view of the Venezuelan situation, not only Venezuela but all other States parties have an obligation to cooperate with the Court in the arrest and surrender of persons, as well as the various forms of legal assistance provided for in the Statute. In addition to requesting the cooperation and assistance of States and international organizations, the Office of the Prosecutor may also send investigators to the field at the invitation of the State. The Prosecutor has already stated his intention that his team will be able to visit the country later this year.

  1. Participation of victims in the process

With the opening of the investigation, a new dynamic of interaction between the victims and the Court begins. Victims may have various roles during the process; they may continue to submit information and evidence, they may be contacted to participate as witnesses in a specific case, to submit observations and opinions when permitted by the Chamber, and they may also request to be considered for redress in the event of a conviction at the end of the proceedings.

The manner in which victims may participate in the proceedings is not determined in detail in the Statute or in the rules of procedure and evidence, and will be determined for the specific situation. The broad wording of the provisions on victim participation in ICC constituent documents suggests that the drafters intended to leave broad discretion to judges to shape the Court’s victim engagement scheme.

The possibility for victims to participate during the different stages of the process is based on article 68 of the Statute, which establishes the following:

The Court shall permit, at such stages of the trial as it deems appropriate, the views and observations of the victims to be presented and taken into account if their personal interests are affected and in a manner that does not prejudice or incompatible with the rights of the accused or to a fair and impartial trial. The legal representatives of the victims may submit such opinions and observations when the Court deems it appropriate and in accordance with the Rules of Procedure and Evidence.

There is no specific period within which victims can participate in the proceedings, but it is the prerogative of the judges to decide what they deem appropriate. In order to be allowed to participate in the proceedings, victims must submit their request in writing, preferably before the start of the stage of the proceedings in which they wish to participate. Depending on the progress of the investigation, already in 2022 there could be more information about the possibility of applying as victims as well as, possibly, the publication of a victim form in Spanish.

  1. Importance of the renewal of the mandate of the Fact-Finding Mission on Venezuela

In September 2022, the Human Rights Council will decide whether to renew the mandate of the Fact-Finding Mission on Venezuela. The Mission was created on 27 September 2019 by the United Nations Human Rights Council for a period of one year, to assess human rights violations committed in the country since 2014.

In 2020, the Mission found reasonable grounds to believe that, since 2014, Venezuelan authorities and security forces have planned and executed serious human rights violations, some of which constitute crimes against humanity. In 2020, its mandate was extended for a period of 2 years and recently, on September 16, 2021, the Mission published its second report on the role of the judiciary in the face of human rights violations.

With the initiation of the investigation into Venezuela at the ICC, it is necessary to understand the importance of the renewal of the Mission’s mandate and how both institutions are complementary to the search for the truth and the fight against impunity for what happened in the country.

While it is true that Prosecutor Khan must pursue his own independent investigation in accordance with article 54 of the Rome Statute, he can rely on the Mission’s work to pursue lines of inquiry and obtain information on specific victim cases, analysis of the command structures of those responsible and evidence. Indeed, in other situations under investigation at the ICC, such as in Myanmar, Darfur, Libya, Côte d’Ivoire, Central African Republic II and Guinea, the Office of the Prosecutor has used information from fact-finding missions or commissions of inquiry set up by the United Nations.

Should its mandate be renewed, the Mission’s work over the next year may be of vital importance in the context of the Prosecution’s investigation.

  1. Looking for a balance between speed and strength of the test in research

Victims’ hope for justice in the face of serious crimes suffered and in the face of prevailing impunity in the country also entails increasing attention to the ICC process and a need for it to act quickly. This call for progress in the Venezuela I situation to be made more quickly was already evidenced during the preliminary examination, before which one of the majority complaints was the time it had taken. Disagreement that did not necessarily have valid arguments since the exam was concluded in a shorter time than the average for this phase.

With the beginning of the research, this call for progress to advance quickly can be a constant. It is therefore important to remember that the priority must always be that there is a balance between the time spent and the strength of the investigation and the fiscal activity in the collection of evidence and the construction of the case. A prompt investigation is not necessarily one with which the determination of responsibility will be obtained, especially considering that the standard of proof required to prove the commission of the crimes and the criminal responsibility of the suspects is increasing as the process progresses. During the investigation phase, the greatest efforts must be aimed at having sufficient evidence to prove to the corresponding Chambers that the State authorities committed crimes against humanity in Venezuela and to demonstrate that certain individuals are responsible for such acts.

  1. Understand the true role of the Court in the Venezuelan political crisis

On December 6, 2021, during the Assembly of States Parties to the Rome Statute, Prosecutor Karim Khan briefly referred to his decision to open an investigation into the Venezuela I situation. Although brief, his speech sent a clear message about the importance of managing expectations about the development of the research and its eventual impact on the resolution of the Venezuelan political crisis.

The Prosecutor recalled that his work will be done independently and that his priority will be to follow the evidence and determine if the crimes against humanity investigated were committed and who is responsible. Of the utmost importance is that the Prosecutor took the opportunity to reiterate that his office “is not in the business of regime change, simply and more exclusively tries to address impunity and investigates independently.”

The Prosecutor had previously warned that “although we do not ignore the political discourse and the prevailing divisions in Venezuela or the regional context, it is important that my Prosecutor’s Office has the necessary space to carry out its work” and that its “work will take place independently and outside any political agenda”, so they would not see “with good eyes any attempt to use the opening of the investigation to obtain political benefits. or politicize the independent work of my Prosecutor’s Office.”

The Prosecutor’s message was made in a context of high political tension at the national level and recalls the importance of managing the expectations of Venezuelan society in general and of victim groups, giving clarity on what can be expected from the work of the Court but above all what remains outside its scope of work.

When there is a political and humanitarian crisis of such magnitude as that of the Venezuelan case, a transitional justice system with holistic strategies is required, incorporating an integrated attention to individual prosecutions, reparations, the search for truth, institutional reform and investigation or a properly conceived combination of them. Prosecution is just one tool in the transitional justice toolkit.While the ICC’s investigation into what happened in Venezuela can have a significant impact on the determination of what happened and, in a good picture, on the responsibility of some people, it is important to also understand its limitations in the resolution of the political and humanitarian crisis in Venezuela, the resolution of which requires a transformation that escapes the action of the Court, as well as the application of other transitional justice tools.