Uncertainty regarding the ICC’s delayed preliminary examination in Venezuela

Amnesty International’s Researcher on Venezuela, Valentina Ballesta, highlights concerns for the security of victims and human rights defenders due to the Office of the Prosecutor’s delay in announcing the outcome of its preliminary examination and the further negative impacts should a decision be taken to hibernate the potential investigation.

Versión en español aquí

The former Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, reported in December 2020 that she had found reasonable grounds to believe that crimes against humanity had been committed in Venezuela and would determine whether to open an investigation before the end of her mandate in June 2021.

On 15 June 2021, in an ‘end of term statement’ the outgoing Prosecutor stated that she had reached a final determination on the preliminary examination, and had been preparing to announce the Office of the Prosecutor’s (OTP) conclusions, but in due deference to the Pre-Trial Chamber (which had been seized by a confidential request from Venezuela) had decided ‘to wait for the Chamber’s determination’ before making any further announcement.

Subsequently, an OTP filing made public on 10 August 2021 acknowledged that the Venezuelan government’s request to the Pre-Trial Chamber was rejected in limine and that the determination that crimes within the jurisdiction of the Court have been committed in Venezuela ‘will be handed over to the incoming Prosecutor for his consideration and ultimate decision-making.’ With respect to complementarity, the OTP’s filing reports that the OTP also concluded ‘that the potential cases that would likely arise from an investigation of these alleged crimes would be admissible pursuant to article 17(1)(a)-(d) of the Statute’.

Months after the OTP’s filing and Bensouda’s statement, the Office has still yet to announce the outcome of the Venezuela preliminary examination and its determination whether to open an investigation. The failure to do so has caused considerable uncertainty, leaving victims and survivors of human rights violations and human rights defenders – who have supported the OTP’s preliminary examination – exposed to repression and persecution.

A long road for justice

The last decade in Venezuela has been marked by severe human rights violations. A humanitarian emergency has left millions of people food insecure and with scarce access to health services and medicines, driving over 5.6 million people to flee the country. The state has frequently repressed any dissenters who remain in the country, as a means of silencing any form of criticism.

Security forces and pro-government armed groups have enforced this policy of repression, using excessive force, arbitrary detentions, torture, and extrajudicial executions against perceived opponents of the government.

Local and international human rights organizations have widely reported these human rights violations, while international monitoring mechanisms, such as the UN Independent Fact-Finding Mission on Venezuela, have found that they may constitute crimes against humanity.

These systematic human rights violations and crimes under international law have been followed by rampant impunity. In the few cases that are under investigation there has been no consideration of the chain of command’s responsibility, nor the  systematic and widespread nature of the crimes.

Moreover, several international organizations and bodies, including the Office of the High Commissioner for Human Rights, have stated that the justice system in Venezuela cannot be considered impartial and that the executive branch often intervenes in the justice administration. Recently, the UN International and Independent Fact-Finding Mission on Venezuela released a report stating that they had “reasonable grounds to believe that instead of providing protection to victims of human rights violations and crimes, the justice system has played a significant role in the State’s repression of Government opponents”. The report concluded that “[o]verall, the State is not taking tangible, concrete and progressive steps to remedy violations, combat impunity and redress the victims through domestic investigations and prosecutions”.

Not even the fear of international criminal proceedings before the ICC has brought sufficient or credible reforms to the judicial system for it to be considered a valid and legitimate remedy for impunity in the country.

This is the reason for seeking out other accountability mechanisms that are not subject to the Venezuelan government’s interference and could not only offer hope of truth, justice and reparation, but also eventually build up to guarantees of non-repetition of such crimes. International justice might be the last hope for victims and survivors of the most egregious human rights violations.

A path to justice opened by the human rights movement

With no form of justice available domestically, local NGOs, human rights defenders, victims, and survivors of human rights violations started to look into other options to hold those responsible accountable and bring new hope to the country.

The human rights movement in Venezuela naturally turned to the regional protection system: the Inter-American Commission and Court of Human Rights. However, Nicolás Maduro’s government had already established a strategy to elude those mechanisms, leaving victims and survivors with fewer possibilities to achieve justice. For instance, the Venezuelan authorities have denounced the Charter of Organization of American States and American Convention on Human Rights, in an attempt to exclude Venezuela from the scrutiny of the Inter-American Commission and Court of Human Rights.

In February 2018, the OTP of the ICC decided to open a preliminary examination into possible crimes against humanity since at least 2017. In September of that same year, a referral from several States Parties to the Rome Statute on international crimes affirmed the need for the ICC preliminary examination and changed its nature and the ensuing procedures. Nevertheless, the OTP still needed to assess facts and cases, and process as much information as possible to determine the subject matter jurisdiction, complementarity assessment, and the interest of justice to open an investigation.

Further, the input and participation of local stakeholders is essential to the OTP’s efforts to reach accountability on crimes in Venezuela. Indeed, local organizations led by victims, survivors, and human rights defenders have pointed to the ICC as the only way to deter human rights violations, and even though that expectation is high, it would be a foolish endeavour if the international community did not consider the ICC a deterrent to atrocities.

Although the path to justice is still being drawn, one of the few hopes to reach it is through a formal investigation by the ICC and to have high-ranking officials formally investigated for their participation in crimes against humanity.

Limbo after limbo

Only a few months ago, the momentum that the former Prosecutor, Ms. Bensouda, had built towards the fight against impunity by the announcement that her office had reached a determination, had positively impacted Venezuela.

Efforts to present improvements with alleged reforms that would change human rights on the ground, and arbitrary detainees being transferred to “common” prisons instead of being held in illegal detention centres ruled by intelligence services, were some of the measures – albeit ineffective ones – that the government announced. Despite the reforms that might exist only on paper, it was clear that the government was desperately trying to portray a conciliatory image addressing the complementarity principle, hoping it would stop the OTP from opening an investigation.

These reforms, weeks before Ms. Bensouda’s mandate ended, showed Venezuelan authorities’ real fear of what independent international justice might bring.

A few days before the deadline that the former Prosecutor had self-imposed to announce the OTP’s decision, Venezuelan authorities filed a request for judicial control over the preliminary examination, alleging that the “OTP was inconsistent… with Venezuela’s internationally recognized due process rights”.

As detailed above, the Pre-trial Chamber rejected this request in limine on 14 June 2021. However, the litigation apparently hindered Bensouda from making a statement on opening, or not, an investigation into Venezuela with the OTP deciding to postpone the announcement it was preparing until the ruling was public. At the time of writing, the OTP had still not published its decision despite having stated publicly that “the potential cases that would likely arise from an investigation into the situation would be admissible in terms of inaction”.

These events have left the preliminary examination of Venezuela in a state of uncertainty. As the former Prosecutor stated, the OTP has reached a decision, it is only a matter of time before the new Prosecutor announces it. However, things are not so straightforward, and it appears that the Venezuelan authorities have succeeded in delaying an opening of an investigation, leaving the preliminary examination in limbo.

As colleagues have discussed in previous entries, such delays directly affect the sense of justice, hope, and deterrence that the ICC might bring to situations where international justice is the so-called “light at the end of the tunnel.” The recent proposal by Independent Expert Review of the ICC that the OTP should deprioritize and hibernate investigations to address funding restrictions could move international justice further beyond reach.

In the Venezuelan case, the reality is that authorities appear to have been able to push the preliminary examination into a tailor-made hibernation, even before the OTP has publicly decided whether to open or deprioritize the investigation. This conclusion could also be drawn from the ICC’s proposed budget for 2022 (published on 16 August 2021), which assumes that the Venezuela preliminary examination will continue in 2022, along with other similarly ‘concluded’ preliminary examinations Nigeria and Ukraine.

Tangible consequences of the delays

Although one may agree or not with former Prosecutor Bensouda’s decision to postpone the announcement on Venezuela’s preliminary examination, the fact is that this limbo brings new concrete – and worrying – conditions to the table.

As we have already discussed, victims and survivors of human rights violations and human rights defenders have been the ones pushing for international justice remedies that would give the situation in the country the proper attention it requires. However, the current pause on the preliminary examination, as with any other delays, has raised huge concerns over the safety of those who have openly called for an ICC investigation.

Recently, authorities have initiated a new wave of repression of civil society organizations. Although it started at the beginning of the year, this wave has intensified in the last couple of months. For instance, the government passed an administrative ruling imposing new government controls, giving its “anti-terrorism” body a mandate to oversee NGOs. This repressive peak also translated into the arbitrary detention of members of a local NGO called Fundaredes, who are now being tried by “anti-terrorism” courts. Amnesty International and other local NGOs have raised concerns over the risk that those who have been arbitrarily detained fall victim to torture and inhumane treatment since they have been subjected to periods of incommunicado detention and enforced disappearances.

When it comes to the ICC, this limbo leaves human rights defenders vulnerable to the power of a state that is trying its best to stop criminal proceedings against those in power. It is almost ironic that hibernating a situation by the OTP might bring precisely the opposite effect to the deterrence intended when the ICC was created. Instead of protecting victims and survivors, it gives perpetrators the time and space to attempt to consolidate impunity and erode any effort to reach justice.

In the Venezuelan case, the OTP should, as soon as possible, issue the decision that former Prosecutor Bensouda and her Office had made regarding the preliminary examination. If it was decided that there is a reasonable basis to open an investigation, it should be opened without delay or hibernation. Every day without a decision puts victims, survivors, and human rights defenders at greater risk of retaliation. Those who believe in the ICC as a last resort for justice have been laying the pathway towards it, but before they even had to face painful discussions on resources and prioritization, the Venezuelan authorities have succeeded in detouring them towards a dangerous and unknown destination.