Access to Justice* 

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Victims of human rights violations, activists, government officials and the media were eagerly awaiting this day. The reason? It was expected that the outgoing prosecutor of the International Criminal Court (ICC), Fatou Bensouda, would announce whether she would continue investigating the crimes against humanity that occurred in Venezuela. However, the maneuvers of the Venezuelan Attorney General, Tarek William Saab, which included a request for judicial control, seem to have achieved their objective and delayed the pronouncement.

However, many people are not aware of the importance of the matter; therefore, Acceso a la Justicia (Access to Justice) believes this is an important opportunity to clarify some doubts.

1. Why does the ICC have its sights set on Venezuela?

First and foremost, it is important to note that there are two preliminary examinations related to Venezuela at the ICC, specifically in its Office of the Prosecutor (OTP). The first one, called Venezuela I, was opened on February 8, 2018, to investigate possible crimes committed since April 2017.

The exiled Attorney General Luisa Ortega Díaz filed a complaint in November of 2017 accusing senior Venezuelan government officials of committing crimes against humanity such as extrajudicial executions, murder, enforced disappearances, mass arbitrary detentions and torture. These claims were filed along with others, to catch the Hague’s attention. As a result of this claim, the ICC initiated an ex officio preliminary examination of Venezuela in February 2018.

Additionally, on September 27, 2018, six State parties to the Rome Statute of the ICC requested that the OTP investigate crimes against humanity committed in Venezuela since February 12, 2014. Despite this request, the ICC OTP’s reports have so far focused on crimes allegedly committed since 2017 under Venezuela I.

The other preliminary examination, called Venezuela II, was submitted by the Government of Nicolás Maduro on February 13, 2020, and asks the OTP to investigate alleged crimes against humanity «as a result of the application of illegal coercive measures adopted unilaterally by the Government of the United States of America against Venezuela, since at least 2014.»

2. What is a preliminary examination?

Before answering this, it is important to clarify that cases do not go directly to the Court, but rather all cases must first be processed through the ICC OTP. To do so, this organ can initiate a first investigation process called ex officio preliminary examination, by referral from a State party or by referral from the United Nations Security Council. The examination can also be initiated at the request of a State not party to the Rome Statute that accepts the jurisdiction of the Court over a case occurring in its territory.

The preliminary examination is an initial investigation to «determine whether there is a sufficient basis» to proceed to the next stage. In this examination, the OTP may seek information «from States, United Nations organs, intergovernmental or non-governmental organizations or other reliable sources it deems appropriate and may receive written or oral testimony at the seat of the Court».

3. How long does a preliminary examination last?

There is no time frame for how long a preliminary examination should last; some have lasted days and others more than a decade.

4. How complex and rigorous is the examination?

It is incredibly complex and rigorous. The preliminary examination consists of four stages:

Phase 1 is to conduct an initial assessment of all information surrounding the suspected offenses in order to verify the seriousness of the information received in the initial filing.

Phase 2 focuses on determining whether there are grounds to believe that the alleged crimes fall within the jurisdiction of the Court. The Venezuela II case, presented by the Government of Maduro, is currently in this phase.

In Phase 3, the OTP must determine the gravity of the crimes and whether the alleged perpetrators of those crimes have been tried. This is because the jurisdiction of the Court is not direct, but complementary to that of the national courts, so that if the national courts act and try those responsible, the ICC should not act; hence it is said that in this phase the gravity of the crimes and the principle of complementarity are evaluated.

In Phase 4, the ICC Prosecutor must assess whether the information gathered is sufficient to proceed to the stage before the Pre-Trial Chamber. Specifically, he or she must determine whether there is a «reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed» (Rome Statute, 53.1.a), and whether it is in the interests of justice to do so.

The terminology of “in the interests of justice” is best demonstrated by the following example. Say in a given case, the crimes committed fall within the jurisdiction of the Court, but all of the alleged perpetrators are deceased. Therefore, the case cannot be brought to trial. Under this circumstance, it would not be in the interests of justice to bring forward a case to the ICC in which there would be no one to try.

5. Why did everyone expect a decision on the Venezuela I case by last June 15?

Because in November 2020, the OTP stated that it had «reasonable grounds to believe that crimes committed in Venezuela since at least April 2017  fell within the jurisdiction of the Court». Weeks later, it announced that it would soon make public its conclusions on the investigations it had carried out on the Venezuelan case.

Specifically, the OTP stated that it had reason to believe that civilian authorities, members of the armed forces and civilians associated with the Government had committed crimes against humanity of imprisonment or other serious crimes of deprivation of physical liberty in violation of the fundamental rules of international law, torture, rape and other forms of sexual violence of comparable gravity; and persecution against any identifiable group or collectivity on political grounds, in accordance with Article 7 of the Rome Statute.

Likewise, the Prosecutor’s Office stated that it had reason to believe that the alleged perpetrators of these crimes are to be found in the Bolivarian National Police (Policía Nacional Bolivariana, PNB), Bolivarian National Intelligence Service (Servicio Bolivariano de Inteligencia Nacional, SEBIN), General Directorate of Military Counterintelligence (Dirección General de Contrainteligencia Militar, DGCIM), Special Action Forces (Fuerzas de Acción Especiales, FAES), Scientific, Penal and Criminal Investigations Corps (Cuerpo de Investigaciones Científicas, Penales y Criminalísticas, CICPC), Bolivarian National Guard (Guardia Nacional Bolivariana, GNB), National Anti-Extortion and Kidnapping Command (Comando Nacional Antiextorsión y Secuestro, Conas), and some other units of the Bolivarian National Armed Forces (Fuerza Armada Nacional Bolivariana, FANB).

This means that in December 2020, the Venezuela I review moved from Phase 2 to Phase 3, which is to say, since 2021, the case has been in the phase of determining the seriousness of these crimes and whether those responsible for them have been tried by the Venezuelan justice system.

Returning to the question why did the public expect an answer to the Venezuela I case by June 15? That day Prosecutor Bensouda was to leave her position as ICC prosecutor. A few days earlier, she had signaled her intentions to present her conclusions on the preliminary examination of the Venezuela I case before she left.

6. Why did Bensouda leave without releasing her findings on the Venezuela I case?

Bensouda was prevented from releasing her findings due to an appeal for judicial control introduced by the Venezuelan government via Attorney General Saab before the Preliminary Chamber of the ICC. Through this action, Saab accused Bensouda of not respecting due process and the right to defense, actively discriminating against and of not cooperating with Venezuelan institutions, which she denied a few days before. On Tuesday, June 15, the same day that the ICC prosecutor left her post, the Preliminary Chamber responded to the appeal, but due to the Venezuelan Government’s request for confidentiality, its content was not made public. However, the Venezuelan Public Prosecutor’s Office published a communiqué in which it stated that the Chamber in its decision did not enter into the merits of the case, but acknowledged the collaboration of the Maduro Government with the Prosecutor’s Office and invited the latter to continue cooperating in the process opened with respect to Venezuela.

7. Why is an eventual announcement of the initiation of an investigation historic?

Because it would be the first time that the ICC opens an investigation in a case related not only to Venezuela, but also to Latin America. Likewise, it opens the door for officials, former officials, civilians and military personnel to be prosecuted, because the ICC does not prosecute States, but rather individuals.

And you, Venezuelan, how does it affect you?

The fact that Prosecutor Bensouda has left office without announcing the opening of an investigation against Venezuelan officials and civilians for the alleged commission of crimes against humanity is disheartening news, especially for the victims, most of whom have had no response from the Venezuelan justice system.

Furthermore, the lack of response from the ICC’s OTP not only reinforces the climate of impunity prevailing in the country, but also leaves the victims, for whom the ICC is the only hope of obtaining justice, waiting in the wings.

*This article was originally published in the blog Acceso a la Justicia.

Photo: AP Photo/Peter Dejong