Carlos Lusverti*

Versión en español, aquí.

What do Burundi, Libya, Myanmar, South Sudan and Venezuela have in common? All of them have been the focus of independent investigation mechanisms established by the UN Human Rights Council to investigate serious human rights violations occurring in these countries.

Regarding Venezuela, in 2019 the Council adopted resolution 42/25 establishing an Independent International Fact-Finding Mission (FFM), which is an international investigative body appointed to respond to situations of serious violations of international human rights law, whether protracted or resulting from sudden events, as well as to promote accountability for such violations and counter impunity.

The Venezuela FFM has a mandate to investigate extrajudicial executions, enforced disappearances, arbitrary detentions, torture and other cruel, inhuman or degrading treatment, including those involving sexual and gender-based violence, committed since 2014. The FFM’s reports help to combat impunity and ensure full accountability for perpetrators of such serious human rights violations as well as justice for victims.

The Mission’s mandate has been renewed until 2024, as the Council understood that, regrettably, the reasons that led to its creation, namely, Venezuela’s systemic impunity, the absence of domestic avenues for redress for human rights violations, and the authorities’ continued attempts to evade international scrutiny, remain in place to this day.

The Fact-Finding Mission’s findings

The FFM has documented hundreds of cases entailing the above-mentioned gross human rights violations that are the focus of its mandate; it has identified patterns of crimes under international law and has drafted a list of persons whose apparent participation in the commission of such crimes should be investigated by independent and impartial judicial authorities.

The FFM’s 2020 report concluded, “that there [were] reasonable grounds to believe that some of the conduct[s] described (…) amount to crimes against humanity.” Its 2021 report showed the participation of the Venezuelan justice system, including justices from the Supreme Court, lower courts and prosecutors, in the serious crimes I had documented. At that time, the Mission concluded, “that actors in this [justice] system, both by action and omission, have played an important role in the State’s repression of real and perceived Government opponents.”

The 2022 report focused on crimes against humanity committed by the authorities as part of a plan to repress political opposition, and it also addressed the critical human rights situation in the Arco Minero del Orinoco (the Orinoco Mining Arc). The Mission analyzed responsibilities of higher members of the chain of command, and concluded that, “crimes and violations, amounting to crimes against humanity, including extremely grave acts of torture” were committed by individuals holding various positions within the hierarchies of the Maduro government.

The Venezuelan authorities’ responses to the FFM’s reports

Although the FFM has requested the Venezuelan authorities to authorize entry into the country for its staff to conduct their investigations in situ, its requests have been ignored. In addition, before the Human Rights Council, the Venezuelan authorities have made several statements attacking the Mission’s reports, and accusing the FFM of being politicized.

At the same time, the Venezuelan authorities have announced measures to address impunity in the country, and to show there is an independent judiciary capable of addressing the human rights violations documented by the FFM, and of delivering justice for the victims. But these measures are not backed by a real willingness to combat impunity, as they neither reverted the executive’s political control over the judiciary nor complied with international due process guarantees or with the recommendations made by international human rights bodies. Recently the Prosecutor of the International Criminal Court (ICC) has stated these reforms do not show progress with respect to domestic investigations of serious human rights violations. Moreover, trials arising from gross human rights violations are dogged by inadequate charging decisions and/or insufficient investigations. Judges and prosecutors, who lack independence and impartiality, conduct the trials, and proceedings are marred by unjustified delays.

Moreover, in January 2022, the reform to the Supreme Court of Justice and the appointment of new justices was a typical illustration of how the reforms undertaken by the authorities have failed to address the of lack of judicial independence; in fact, the process ended up increasing the executive’s political control over judges. Most of these appointments were politically motivated. As a result, the process violated international human rights law and standards on judicial independence.  Similarly, the continued use of anti-terrorism courts against those identified as political opponents and civil society representatives shows a persistent pattern of undue prosecution of persons who are perceived as dissidents or opponents to the Maduro administration. One example is the criminal proceedings against a well-known human rights defender, Mr. Javier Tarazona, who has been facing politically motivated charges, and who has been denied the right to legal counsel of choice, and has been tortured in detention.

Complementarity between international accountability mechanisms

The existence of several international mechanisms that aim to promote accountability for the serious human rights violations in Venezuela, such as the FFM and the International Criminal Court (ICC), which opened its own investigation into the situation in the country in November 2021, is good news for victims. As domestic authorities are both unable and unwilling to deliver accountability, and are more and more alienated from international human rights monitoring bodies, the ICC and the FFM complement each other. 

For instance, the investigation of the Office of the Prosecutor of the ICC, which is focused on alleged crimes against humanity committed by specific individuals, will be able to take advantage of those findings and evidence gathered by the FFM that might, in turn, be relevant to its work. The FFM, on the other hand, may be able to complement the ICC’s investigation by expanding its own documentation of serious violations of international human rights law amounting to crimes against humanity, given that its mandate is wider than the investigation being conducted by the ICC Prosecutor.

Situations like Burundi, Myanmar or South Sudan show that mechanisms, such as the FFM, may have a deterrent effect on the commission of human rights violations in the future. This is quite important in Venezuela as there are presidential and legislative elections planed in 2024 and 2025. Previous reports by the Office of the High Commissioner for Human Rights show that during electoral periods, repression at the hands of domestic authorities reaches a peak in Venezuela. With respect to this, as civil society organizations have remarked, the FFM “will perform a crucial early warning role, monitoring and documenting patterns of government repression and any intensification of the crackdown on civic space.”

The victims in Venezuela await justice. In light of the lack of domestic judicial and prosecutorial independence, the international community can play a crucial role in promoting accountability for serious human rights violations. Thus, the FFM, the ICC, the OHCHR and other international bodies are needed to guarantee victims’ rights and to support their demands for justice and redress.

* Latin America Legal consultant, International Commission of Jurists.

Photo: 51st session of the Human Rights Council. UN Geneva, via Flickr.