By: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL
Over the years, the Americas has been a highly supportive region for the work of the International Criminal Court (ICC). However, it was only this year that the Court paid its first visit to the region, with Prosecutor Mr. Karim Khan’s trip to Colombia and Venezuela on October 25, 2021. During this visit, the Prosecutor announced an important decision for the future of international criminal justice in the region: the beginning of a formal investigation into the acts committed by President Nicolas Maduro’s Government in Venezuela. This impactful decision raises a question: which are the crimes against humanity (CAH) that the ICC is paying attention to in the Venezuela, and why?
Dictatorships and massacres in the Americas have resulted in an extensive history of human rights violations. Human rights activists have been systematically persecuted for demanding justice, truth, and reconciliation. Consequently, civil society organizations continuously call for the intervention of the ICC through their representatives at the Organization of American States (OAS). However, the principle of non-intervention, the right of every sovereign state to conduct its affairs without outside interference, is strong in Latin American diplomacy, so Member States of the OAS are generally reluctant to make accusations against each other.
Nevertheless, in 2017, the interest from the OAS’s Secretary General, Luis Almagro, into the Venezuelan political situation has opened the door for a group of Member States of the OAS to bring the first case of CAH in the Americas to the ICC. Almagro appointed a Panel of Independent International Experts in September 2017 to analyze whether the presidency of Nicolás Maduro is responsible for the commission of CAH in Venezuela, and whether the situation should be referred to the ICC. Since Venezuela withdrew from the OAS, Almagro has been advocating to sanction Maduro under the Inter-American Democratic Charter for the humanitarian crisis.
In line with the findings of the Panel, on September 26, 2018, Argentina, Canada, Colombia, Chile, Paraguay, and Peru referred the case to the ICC under article 14 of the Rome Statute. According to Fatou Bensouda, who was then the Prosecutor, this was the first time a group of states had jointly referred a case under this provision.
According to observations by the ICC Office of the Prosecutor on the case, there have been found reasonable grounds to believe that civilian authorities, members of the armed forces, and pro-government individuals may be responsible for CAH, including imprisonment or other severe deprivation of physical liberty, torture, rape and/or other forms of sexual violence of comparable gravity, and persecution on political grounds.
During his visit to the Americas, Mr. Khan met with Venezuela’s President, and they signed a Memorandum of Understanding. The document declares that a formal investigation has been opened and that Venezuela, although disagreeing with the ongoing investigation, will cooperate with the Office of the Prosecutor (OTP) to establish the administration of justice.
Whether this agreement holds any good prospects of contributing to justice in Venezuela is yet to be seen. The President has other interests in cooperating with the ICC, such as an investigation that he has referred to the ICC claiming the United States of America (USA) has committed CAH through the economic sanctions against his country. So, there is a risk that Maduro’s cooperation with the ICC might end if the ICC does not proceed against the USA.
Additionally, Khan declared during the 20th session of the Assembly of States Parties to the ICC that the decision to work with Maduro is an example of his emphasis on supporting states' efforts to hold the perpetrators accountable for atrocities committed on their territories, given the ICC’s limited funding for this year. The Prosecutor is investing in the principle of complementary — the idea that domestic courts should be the first responsible for dealing with violations of international criminal law — as mentioned in the memorandum with Venezuela. Providing states with technical assistance to investigate CAH in their territories will be the main strategy for international criminal justice for the Court.
As of now, the reaction to the decision of investigating these alleged CAH in Venezuela has been positive: victims’ representatives have applauded the decision of the ICC to intervene, as it has raised their hopes in their long journey for justice. Nonetheless, and regardless of why these are the first CAH being formally investigated by the ICC in the region, other questions remain for the rest of the Americas. In particular, it remains to be seen whether other petitions for the ICC’s intervention in the Americas will be heard.