Calixto Avila
Lawyer Specialist in Human Rights and Master in Public International Law. Provea representative in Europe.

The decision of the judges of the International Criminal Court authorizing the ICC Prosecutor to resume the investigation of crimes against humanity, leaves several lessons about what has been and will be the process before this international court. It should be recalled that the ICC was established by the Rome Statute on July 17th, 1998 and began operating in 2003. During the last 20 years, the ICC has implemented the Statute, developed its rules of operation and built jurisprudence, in which the Venezuela I Investigation is framed.

In these last two decades, the Venezuelan State has rejected any international instance that implies the establishment of responsibilities. The denunciation of the American Convention on Human Rights, in order to evade the jurisdiction of the Inter-American Court, has been followed by a strategy to weaken and try to annul the monitoring and accountability mechanisms of the UN Universal System, in particular the Fact-Finding Mission. It is in this dynamic that the State’s actions before the ICC are framed.

With this in mind, we can highlight the following lessons learned from the authorization given to Prosecutor Karim Khan to resume the investigation by the judges of Pre-Trial Chamber I.

  1. Victims’ participation is already a cornerstone of the ICC proceedings. The official release on the judges’ decision states that the judges made their decision after examining the submissions of the ICC Office of the Prosecutor, the Venezuelan authorities and the “1,875 opinions and observations transmitted by the Victims’ Participation and Reparations Section”. In the decision, the judges state that the conclusion that crimes against humanity have not been and are not being investigated in Venezuela is “in line with the views and concerns expressed by the potential victims in this situation”. This shows that the manipulation of the term “possible victims” by the Foreign Ministry to deny their existence and the occurrence of the crimes had no impact on the process. Instead of weakening the participation of the victims, these statements by the authorities can become evidence in the ICC proceedings.
  2. The simulation of justice is readily apparent and ends up among the main arguments for the ICC to ratify its jurisdiction. The judges of the ICC found inexplicable periods of procedural inactivity, derisory qualifications for crimes that should be classified as serious, prosecutions against a few directly implicated and low-level commanders, no prosecution of high-level commanders and no investigation into the contextual elements of crimes against humanity. The simulation of justice, as a State strategy, has already failed in the initial stages of the process and this failure will deepen as the ICC case progresses and becomes more complex.
  3. Statements by officials and official communications disqualifying the ICC and Prosecutor Karim Khan do not affect the judges’ decisions and may be future evidence in the proceedings. Such statements and communiqu├ęs, addressed to a national audience, are bound to constitute evidence at some point in the ICC investigation, as official versions or notorious facts. But in the immediate term, they undermine the credibility of the authorities who claim to be willing to cooperate with the Prosecutor, a cooperation that is not a favor but a general obligation to cooperate fully with the Court, provided for in Article 86 of the Rome Statute.
  4. When the ICC Prosecutor’s Office presents concrete cases, a judiciary without independence will be able to demonstrate that a specific criminal proceeding is not being conducted in an independent and impartial manner. It is noteworthy that the only achievement of the State, in the decision of the ICC judges, was that the judges accepted its argument that it was not for them to rule on whether Venezuelan judges and prosecutors lacked independence and impartiality as a general rule. However, it is only a matter of time before this general rule will be studied on specific cases during the investigation. This is inevitable, as we are facing the clash between an international tribunal created to investigate and punish international crimes and a national justice system without independence that has evolved to guarantee impunity and to be an instrument of persecution.
  5. With dilatory strategies, the State gains time at the ICC, but ends up demonstrating an attitude of bad faith, contrary to the interests of justice and the victims. The contrast between the diligence in attending to the ICC proceedings in order to delay them and the “unjustifiable delays in the domestic proceedings” noted by the ICC judges in their decision is ostensible. On the other hand, dilatory strategies do not provide elements to decide the merits of the case, they waste the time of judges, prosecutors and other officials of the ICC, an already overburdened and under-resourced institution.
  6. The State should have an interest in genuinely cooperating with the Office of the Prosecutor in Venezuela. That Office is a privileged avenue to show through an ICC mechanism on the ground that there are indeed conditions to apply the principle of complementarity. In addition, the judges also recalled that the evaluation of national proceedings is an ongoing process and requires a permanent dialogue between the State and the Court, in order to respect the principle of complementarity. However, as things currently stand, the national authorities have a long way to go before they can invoke this principle in their favor.

If the actions of the Venezuelan State outlined in these lines persist, it will be very difficult for the Prosecutor or the Judges of the ICC to apply the principle of complementarity and entrust the Venezuelan State with the investigation and punishment of those responsible for crimes against humanity. The establishment of the Office of the Prosecutor is an opportunity, but it will not have results in the short term. Indeed, it will not be enough for cooperation and technical assistance to develop mere action plans or provide training workshops or adapt national norms to the standards of the Rome Statute. It will be necessary to implement and evaluate them, something that will take a few more years during which the ICC Prosecutor and judges will continue to push for the investigation of crimes against humanity committed in Venezuela.

Calixto Avila