This past September, the leaders of Argentina, Canada, Chile, Colombia, Paraguay, and Peru made history when they came together and took the unprecedented step of requesting the International Criminal Court (ICC) to open an investigation into Crimes Against Humanity (CAH) in Venezuela. This marked the first time in history that state parties to the ICC have referred a fellow member party to the Court. These six countries are urging the ICC to investigate CAH that were committed by the Venezuelan government since February 2014 in hopes that senior government officials will be held responsible for the widespread and extensive human rights abuses that have gone unprosecuted for years.
Over the past eight years, under both former President Hugo Chavez and current President Nicolás Maduro, Venezuela has regressed from a democratic nation to a nation that is falling victim to a growing climate of impunity, stripping its citizens of the rights they are entitled to as human beings. The current state of human rights in Venezuela is one of the worst in its region when it comes to rule of law. The nation suffers from a chilling homicide rate of approximately seventy-eight people killed per day (roughly one death per twenty minutes), an extreme scarcity of basic goods, and a violent repression of public demonstrations with government officials regularly arresting and torturing dissidents. In this vein, former UN High Commissioner for Human Rights, Zeid Raad Al Hussein, appropriately summarized the nation’s current status, stating that “the rule of law is virtually absent in Venezuela.” The country has been experiencing severe food and medicine shortages, as well as, a growing environment of political oppression. Many opposition leaders have been subject to arrest and prosecution with unfair trials, and the government has brutally repressed peaceful protests.
Civil society organizations and human rights defenders in Venezuela have also been subjected to persecution and human rights abuses by Venezuelan senior officials. Likewise, Venezuelan citizens have been left voiceless and exposed to life-threatening conditions under these catastrophic circumstances, with several individuals—including children—falling victim to arbitrary arrests and detentions, forced disappearances, extrajudicial killings, torture, and more. As a result, over 2.3 million Venezuelans have fled the country for their own safety, pouring into neighboring countries at alarming rates. As a response to the violence and subsequent migration, the Venezuelan government, under Nicolás Maduro, has turned a blind eye to this crisis and has denied its existence. Not only have senior officials in Venezuela failed to act on their obligation to prevent these atrocities and protect Venezuelan citizens, but they have also been the masterminds behind these abuses, often involved in organizing and committing the crimes.
The six countries accusing the Venezuelan governments of CAH are not alone in their assertion; several regional and international organizations report similar concerns. Article seven of the ICC’s Rome Statute defines CAH as “specific crimes committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.” In May 2018, the Organization of American States (OAS) provided an extensive report depicting the presence of several different types of CAH occurring in Venezuela since 2014. The OAS report detailed different types of CAH, including: rape and other forms of sexual violence, imprisonment or severe deprivation of liberty, widespread and systematic persecution, torture, and murder. After analyzing the OAS report, a Panel of Independent International Experts announced that these atrocities, to which Venezuelan citizens have been subjected since February of 2014, do in fact constitute CAH under the Rome Statute. In addition to the OAS report, the UN Office of the High Commissioner for Human Rights (OHCHR) released a report finding that between July 2015 and March 2017, security forces in Venezuela killed 505 people, including twenty-four children. In November 2017, Human Rights Watch also reported systematic abuses by Venezuelan security officers. Even with plenty of evidence, and extensive research available on the existence of these crimes, the Venezuelan government continues to adamantly deny the presence of these atrocities.
The ICC jurisdiction ratione materiae extends to four international crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC has the ability to exercise jurisdiction over CAH under three specific circumstances: (1) when a State Party to the ICC refers the crimes to the Court; (2) when the UN Security Council refers the crimes to the Court; or (3) when the ICC prosecutor initiates a preliminary examination into the crimes. In 2000, Venezuela ratified the Rome Statute of the ICC, giving the Court jurisdiction over the crimes perpetrated in the territory and/or by the nationals of the country. Along with Venezuela, the referring countries, as State parties to the ICC, are able to bring this referral. Although a state party referral is considered a jurisdictional trigger for the ICC, the Court has never previously opened a case brought by one government against another, having only dealt with self-referrals by states in the past. Furthermore, five of the countries behind the referral are Venezuela’s neighbors, and leaders in the Latin American region have generally avoided criticizing one another publicly. Consequently, this is not solely a historical step for the ICC but a monumental regional rebuke of President Nicolás Maduro.
The six countries behind the referral to the ICC are requesting ICC’s top prosecutor, Fatou Bensouda, to pursue an investigation of Venezuelan senior officials’ involvement in CAH since February 2014. Before this referral, Ms. Bensouda announced in February 2018 that the ICC was launching a “preliminary examination” into allegations of large-scale human rights violations in the context of demonstrations and related political unrest occurring in Venezuela, since April 2017. The goal of a preliminary examination by an ICC prosecutor is to determine whether the Court should proceed with a full investigation, which can open the door to criminal charges. However, the recent State referral will not result in an additional, separate preliminary examination but will likely provide an additional basis for Ms. Bensouda’s current ongoing review and analysis. The referral will also help expedite the process of opening a full investigation. Normally, authorization from the Pre-Trial Chamber of the Court is required before beginning a full investigation; however, this is no longer required when dealing with cases by State party referrals, such as this one. Nevertheless, a full investigation is by no means guaranteed; it is ultimately dependent on Ms. Bensouda’s evaluation and conclusion following the preliminary examination. Customarily, ICC investigations also tend to last years, making it highly unlikely that charges will be filed any time soon.
Although the results of the preliminary examination will not be announced for a while, this timeline should not cloud the importance of the referral, and its groundbreaking impact on both a regional and international scale. First, this unprecedented step has made headlines across the world, bringing attention to the gravity of the human rights crisis in Venezuela and the Venezuelan government’s role in committing CAH domestically. Second, this referral will likely encourage other countries to make state referrals to the ICC in the future and has already resulted in other countries condemning the acts occurring against Venezuelan citizens. Third, the referral will help galvanize other neighboring countries who seek to isolate President Maduro’s increasingly authoritarian government. Fourth, these six countries have given The Hague-based tribunal a renewed sense of urgency to investigate these crimes, while sending a clear message to the international community that the leaders of Argentina, Canada, Chile, Colombia, Paraguay, and Peru will no longer act complacent as this crisis continues to unfold. Lastly and most importantly, the referral has instilled much-needed hope within the victims of these atrocities, who have waited far too long for neighboring countries to address and act on these urgent issues. Luis Almagro, the secretary general of the OAS, said it best: “The leaders of these six countries have taken a historic step today, unprecedented in the history of the Americas, creating a crucial milestone in the interests of justice, accountability, non-repetition and reparation to the victims of the Venezuelan dictatorship.”