Venezuela crisis: What role for justice?

What’s the situation in Venezuela?

According to the United Nations, Venezuelan security forces have killed, wielded excessive force to suppress protests, and arbitrarily detained up to 5,000 people since April 2017. 1,000 remain in custody, based on the UN findings, while dozens of the over 100 reported deaths have been attributed to the security forces and pro-government armed groups.

"We are concerned that the situation in Venezuela is escalating and these human rights violations show no signs of abating. […] Responsibility for human rights violations we are reporting lies at the highest level of government,” said U.N. human rights spokeswoman Ravina Shamdasani.

For its part, the Organisation of American States (OAS) has appointed former ICC prosecutor Luis Moreno Ocampo to analyze the situation in the country, considering all interested groups in advancing possible courses of action by the OAS.

"The citizens of Venezuela live in terror. And the terror has its origins in the state from a deliberate, methodical and systematic strategy. If the regime wants to jail someone, it jails them. If it decides to torture, it tortures. If it decides to murder, it murders. If they want to proceed with regular forces, or through paramilitary forces, it does not matter,” said OAS Secretary General Luis Almagro in announcing the appointment.

Eruption months in the making

Civil society groups, including Amnesty International and Human Rights Watch, have been closely tracking the situation in Venezuela, including highlighting a violent crisis four months in the making.

Amnesty International reported that over a three-month period from April to July 2017, state security forces violently suppressed protests against the government, with analysis suggesting not only an uncontrolled reaction by some security agents, but also a premeditated practice of violently stifling perceived political dissent.

Amnesty based its assessment of government intent on the recurrence of civilian-targeted attacks; speeches inciting violence; a lack of incident during pro-government rallies; the creation of state apparatuses to prosecute demonstrators and suspected dissidents, such as under the pretense of an anti-terrorism campaign; and an increase in the forces to which most documented crimes have been linked.

“The fact that those who think differently are the only people who are labelled as 'terrorists', who are prevented from demonstrating and against whom violence and illegitimate force is used, is proof of a strategy to silence the growing social discontent in Venezuela,” said Erika Guevara-Rosas, Americas Director at Amnesty International.

Among the critical issues Venezuelans have been speaking up about more recently – and paying for – is President Nicolás Maduro’s decision by executive decree rather than public referendum to call for a new Constituent Assembly. Human Rights Watch has highlighted how the body, rather than secure peace as Maduro has claimed it will, serves to sidetrack from Venezuela’s more pressing needs, including ending repression and political detention; bringing those responsible to justice; holding free and fair elections; and restoring judicial independence.

Now, after an election day for the Constituent Assembly that saw at least a further ten protesters killed, some are questioning how a country that once served as refuge to those fleeing Latin American dictatorships of the 1960s and 70s now faces hundreds of thousands fleeing hardship and persecution within its own borders.

What role for the ICC and national justice?

Several media reports emerged last week of the decision by the Peruvian Congress to send an official ‘communication’ on alleged crimes by the Maduro government to the ICC Prosecutor. A ‘communication’ is a mechanism for individuals, groups, states, intergovernmental organizations or NGOs to transmit information of interest to the ICC prosecutor under Article 15 of the Rome Statute. The ICC prosecutor may use this information in any decision to open a preliminary examination or investigation.

However, such a communication is different to a ‘state referral’ of a situation to the ICC, and therefore does not give the ICC jurisdiction to open an investigation.

ICC member states can give the Court jurisdiction to open an official investigation by ‘referring’ a situation on their own territories or on the territories of other ICC member states. To date, no state has referred another to the ICC.

The UN Security Council can also refer situations to the ICC for possible investigation, including in non-ICC member states. The ICC prosecutor also has powers to open investigations on her/his own initiative, known as proprio motu, subject to the approval of judges.

In all situations, the ICC prosecutor independently determines whether to move to open an investigation.

Once an investigation is opened, it relates to a broader situation of abuses rather than any specific case or suspect.

In considering the possibility of opening an investigation, the ICC prosecutor examines whether the state in question is genuinely unwilling or unable to investigate and prosecute the crimes in the first instance.

 “Venezuela has the priority to investigate these crimes and it is imperative to consult with their authorities on the efforts carried out to achieve justice. If they confirm the crimes and there are no genuine efforts to investigate them, the OAS can send its information to the ICC Prosecutor’s Office. If one of the 28 states that are members of the OAS and the Court refers the situation of Venezuela that is enough to facilitate the opening of an investigation,” said former ICC Prosecutor Ocampo.