The verdict of the Appeals Chamber of the International Criminal Court, issued on 1 March 2024, marks a significant milestone in the ongoing investigation concerning the Bolivarian Republic of Venezuela. The Appeals Chamber unanimously rejected Venezuela's appeal against the decision of the Pre-Trial Chamber from 2023 and affirmed the authorization to resume the investigation despite previous attempts to halt it.
Since 2018, the International Criminal Court (ICC) and Venezuela have engaged in a tense back-and-forth, while human rights violations under the rule of President Nicolás Maduro persist. Despite years of examination and intermittent investigation, the ICC, now led by Prosecutor Karim A. A. Khan can document alleged crimes again.
The preliminary examination was initially prompted in February 2018 by then Prosecutor of the ICC, Fatou Bensouda. In addition, Argentina, Colombia, Paraguay, Chile, Peru, and Canada referred to the Prosecutor, asking for investigation of alleged crimes against humanity committed by the Maduro government, based on Article 14 of the Rome statute.[1] In November 2021, after a three-year preliminary examination, the Prosecutor of the International Criminal Court (Prosecutor) notified all State Parties of his decision to open an investigation into the Situation in Venezuela.[2]
The ICC's focus on the repressive regime of President Maduro aims to hold the perpetrators accountable for human rights violations. The ICC's inquiry is looking into serious crimes against humanity, particularly regarding government and military officials' actions since 2017. This period has been marked by widespread protests and allegations of abuse, including torture and arbitrary arrests, resulting in numerous fatalities.
Resuming investigation
In April 2022, the Prosecutor received a request from Venezuela for deferral of the ongoing investigation, on the basis that Venezuela is investigating its nationals for the alleged acts that are subject to the ICC investigation. The investigation was put on hold based on the principle of complementarity, pursuant to Articles 1 and 17 of the Rome Statute.[3]
However, the ICC can step in when domestic efforts are lacking (state is either unwilling or unable to genuinely conduct proceedings). This was precisely the case in Venezuela. Despite efforts by Venezuelan authorities to halt the ICC's investigation, the Prosecutor found evidence of ongoing serious crimes that were not adequately addressed. Thus, in November 2022, the Prosecutor filed an application to the ICC’s Pre-Trial Chamber requesting it to authorize the resumption of the investigation.
In June 2023, the Pre-Trial Chamber announced the resumption of the investigation by the Office of the Prosecutor into alleged human rights abuses in Venezuela due to the failure of the country's judicial system to sufficiently address these serious crimes. In particular, the Prosecutor stated that the proceedings conducted by Venezuelan authorities “are not adequately substantiated […], do not sufficiently mirror the scope of the Prosecution’s intended investigation [and] have not been conducted genuinely.” Recent reforms regarding judicial independence and human rights violations were also deemed inadequate.
The appellate process
Venezuela contested this decision, arguing for a clearer delineation of cases and asserting that national investigation is ongoing. As a result, an appeal against the decision from June 2023 was submitted. During these appellate proceedings, the Appeals Chamber received written submissions from the Prosecutor and the Office of Public Counsel for Victims, representations from victims and observations from the Organization of American States Panel of Independent International Experts.
In November 2023, the Appeals Chamber conducted a hearing where concerned parties could present oral submissions. Deliberations revolved around whether or not to continue the investigation into alleged human rights abuses in Venezuela. Ultimately, on 1 March 2024, the Appeals Chamber rejected Venezuela's appeal.
The decision is commended by human rights organizations such as Human Rights Watch (HRW), International Federation for Human Rights (FIDH), and Venezuelan Education-Action Program on Human Rights (PROVEA), as it allows investigations into crimes against humanity under Maduro's regime to proceed. The organizations emphasize its significance amidst a climate of impunity and increased persecution of human rights defenders in Venezuela.
The need for Venezuela's cooperation
Finding a balance between ICC intervention and encouraging national action is challenging but crucial. The Prosecutor therefore expressed willingness to collaborate with Venezuelan authorities on judicial reforms alongside the ICC's investigation. Recent confidential agreements indicate the ICC's ongoing efforts to highlight the complicity of Venezuela's judiciary in these crimes and the international pressure for ICC action.
Despite initial concerns over Venezuela's expulsion of UN representatives, President Nicolas Maduro announced that he invites the Office of the UN High Commissioner for Human Rights to return to the country. However, the critical need for full cooperation with the ICC can still be seen in the ongoing debate surrounding the postponement of Venezuela's upcoming presidential elections, currently scheduled for July 2024.
The resumption of the ICC investigation offers hope for justice for victims of human rights violations in Venezuela, with the international community closely watching to see how the Maduro government will respond to the ICC's decision and its obligations under international law.
Notes
[1] Article 14 of the Rome Statute allows State Parties to refer to the ICC Prosecutor a situation in which one or more crimes within the jurisdiction of the ICC appear to have been committed.
[2] The article focuses on the investigation of the Situation in the Bolivarian Republic of Venezuela I. Since 2020, there has been an ongoing preliminary examination of the Situation in the Bolivarian Republic of Venezuela II. The latter was initiated by Venezuela itself under Article 14 of the Rome Statute. In its referral, the Government of Venezuela states that crimes against humanity are committed as a result of the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela.
[3] The principle of complementarity operates on the basis that the ICC can step in to prosecute individuals for international crimes only when national legal systems are unable or unwilling to genuinely carry out proceedings themselves. This principle emphasizes the primary role of national legal systems in prosecuting such crimes, with the ICC serving as a secondary jurisdiction.
Sources
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ICC to continue investigation of human rights abuses in Venezuela (June 2023). Al Jazeera. Available from https://www.aljazeera.com/amp/news/2023/6/27/icc-to-continue-investigation-of-human-rights-abuses-in-venezuela
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Photograph
ICC delivered judgment on appeal against authorisation to resume investigations. International Criminal Court 2018, author: justflix, 6 August 2018, source: Wikimedia Commons, CC BY-SA 4.0 DEED, edits: cropped.
