Opinion

Venezuela, frontier of the International Criminal Court

photo_camera Nicolás Maduro

As in infamy one can also stand out, Nicolás Maduro managed to place himself within an exclusive worldwide group that includes Slobodan Milosevic of Yugoslavia, Muammar Gaddafi of Libya, Omar al-Bashir of Sudan or Laurent Gbagbo of Ivory Coast. The new prosecutor of the International Criminal Court (ICC), Karim Khan, visited Venezuela in November 2021 and argued that it is necessary to start an investigation into possible crimes against humanity in accordance with the Rome Statute. This is the first time that the ICC has opened an investigation in an American country.

Reacting to the decision, Maduro cynically "[considered] that the allegations should be investigated in the country by the national institutions created for that purpose"; abusing the principle of complementarity that governs the Statute. This principle obliges the ICC to operate in the event that national jurisdictions do not (or cannot) exercise their jurisdiction. Article 1 states that "[The ICC] shall have the power to exercise its jurisdiction over persons in respect of the most serious crimes...and shall be complementary to national criminal jurisdictions".

On the same day that Prosecutor Khan announced the opening of the investigation, a Memorandum of Understanding was signed by which the Venezuelan government promised to adopt the necessary measures to ensure the effective administration of justice and to cooperate in the investigation. This decision was criticised as it is clear that the judiciary, at least since the capture of the High Court of Justice in 2004 by Hugo Chávez, has been complicit in government abuses through detentions without evidence, arrest warrants following illegal arrests and procedural delays.

REUTERS/UESLEI MARCELINO - Un manifestante de la oposición es golpeado por un vehículo de la Guardia Nacional Venezolana (GNB) en una calle cerca de la Base Aérea Generalísimo Francisco de Miranda "La Carlota" en Caracas, Venezuela

Since February 2018, the former prosecutor, Fatou Bensouda, argued that there were sufficient grounds to believe that crimes against humanity were committed by civilian authorities, members of the Armed Forces and pro-government individuals, particularly since the demonstrations of April and June 2017 where, according to the UN Office of the High Commissioner, at least 124 protesters were killed and 5,000 people were arbitrarily detained. The charges focus on article 7 of the Statute on "Crimes against humanity", paragraph 1, including: severe deprivation of liberty in violation of fundamental rules of international law, torture and persecution of a distinct group or collectivity on political grounds. Additionally, in 2018, under the Referral Figure, six countries (Argentina, Canada, Colombia, Chile, Paraguay and Peru) requested the prosecutor to initiate an investigation, the purpose of which is to "determine the truth and whether or not there are grounds to bring charges against any person"; it is worth noting that the Statute does not allow an official charge to be invoked as immunity from liability for crimes against humanity. Some historical precedents help to understand how the Venezuela investigation represents a unique opportunity to advance the international human rights agenda.

In July 1994, Bill Clinton gave a speech at the White House condemning the genocide of the Tutsi population by the Hutu government in Rwanda. The president was heavily criticised for his reluctance to use the word "genocide" during his condemnation of the events. For the Administration, there was concern that the use of the word would imply the need for some kind of US intervention in the conflict; a resistance probably motivated by the recent military disaster of the Battle of Mogadishu in October 1993 during the civil war in Somalia.

However, the genocides of the last decade of the twentieth century - Yugoslavia and Rwanda - questioned and had enormous repercussions on international law and, specifically, on one of the guiding principles of the UN that was beginning to be perceived as obsolete: the dismissal of war under an idea of non-intervention. However, these questions came up against the legal nature of the UN as a product of the 1945 UN Charter, i.e. an international treaty. It was impossible to change the organisation's structure and mission without a new treaty. The creation of the ICC, together with the adoption of the "Responsibility to Protect" principle adopted by all UN member states at the 2005 World Summit, are two of the mechanisms created to overcome an outdated idea of non-intervention.

AFP/ GEORGE CASTELLANOS - Miembros del Cuerpo de Investigaciones Científicas y Penales de Venezuela (CICPC) patrullan cerca de un puesto de control en San Antonio, Táchira, Venezuela

The creation of the ICC also functioned as a solution to another long-standing problem. The tribunals that had been set up to try war criminals - Nuremberg, Tokyo, Yugoslavia and Rwanda - were 'ad hoc' tribunals. This led to strong criticism of their legitimacy, falling foul of the ancient caveat already mentioned centuries earlier by Titus Livius: vae victis or "victor's justice". In particular, the Tribunal for the former Yugoslavia was severely criticised by Serbian politicians, who accused the Tribunal of letting crimes committed by NATO officers during the Kosovo War in 1999 go unpunished. In conclusion, the creation of the ICC was the result of an accusation, the 'vae victis', plus the intention to circumvent the prevailing criterion of non-intervention.

The ICC has been attacked by US politicians for its lack of legitimacy, has faced criticism for the low number of convictions and accusations of an alleged anti-African bias. On the other hand, some advocates stress the importance of its existence because of the alleged deterrent effect it can have on the crimes it seeks to punish. While its detractors, using examples such as Idi Amin's opportunity to take refuge in Libya and Saudi Arabia after the capture of Kampala, and following the ideas of German economist Albert Hirschman, argue that it is preferable to keep the "exit cost" relatively low as one of the necessary conditions for dictators to leave power. That is, to avoid a situation in which power is no longer needed just to rule, but to survive.

PHOTO/REUTERS - Miembros del Servicio de Inteligencia de Venezuela (SEBIN)

The investigation against Venezuela represents a great opportunity for the ICC. It allows it to ratify its founding purpose of defending international law against the manipulation of the idea of sovereignty as a curtain for impunity. Secondly, it begins to break down the supposed anti-African bias of its condemnations and is a forceful response to recent accusations of US disregard for international law. Additionally, on a political level, it may damage the naïve pretence of wanting to attribute political ideology to crime when it is in power. In the event that the investigation is unsuccessful, perhaps Venezuelans can find some consolation in remembering that crimes against humanity are imprescriptible.

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