The decision of the International Criminal Court (ICC) prosecutor to open an investigation in Venezuela offers a pathway to justice for victims of atrocities by Nicolás Maduro's government. On November 3, 2021, ICC Prosecutor Karim Khan announced his decision during a visit to the country.
The situation in Venezuela, an ICC member country, has been under preliminary examination by the Office of the Prosecutor since February 2018. In September 2018, six ICC member countries asked the prosecutor to investigate potential crimes in Venezuela. It was the first time countries had jointly asked the prosecutor to investigate alleged crimes committed on the territory of another ICC member country. This path of state referral allows the prosecutor to act to open an investigation without first seeking approval by ICC judges.
"The ICC's first investigation in the Americas comes on the back of the extreme repression the Maduro government has inflicted on the Venezuelan people," said José Miguel Vivanco, Americas director at Human Rights Watch. "The ICC prosecutor has a mandate to hold those most responsible for the gravest international crimes to account, so this decision should be a powerful wakeup call not only for those who committed abuses or covered them up, but also for military and civilian leaders who knew or should have known what was happening and failed to act."
In December 2020, the Office of the Prosecutor reported that based on the information available during its preliminary examination there was a reasonable basis to believe that crimes against humanity had been committed in Venezuela. These include, at least since April 2017, the crimes against humanity of "imprisonment or other severe deprivation of physical liberty," "torture," "rape and/or other forms of sexual violence," and "persecution against any identifiable group or collectivity on political grounds" by the civilian authorities, members of the armed forces, and government supporters.
The previous ICC prosecutor, Fatou Bensouda, announced in June, at the end of her term, that her office had concluded its preliminary examination. But at the time, the Venezuelan government had petitioned the court's judges to intervene in the examination, and the prosecutor did not publicly announce the results of the office's examination. In July, the pretrial chamber dismissed Venezuela's requests.
In a June 2021 court filing, made public in August, the Office of the Prosecutor concluded that "the authorities are unwilling genuinely to investigate and/or prosecute such cases" because "domestic proceedings have been undertaken or national decisions made for the purpose of shielding persons from criminal responsibility … and/or domestic proceedings have not been conducted independently or impartially, meaning that they have been conducted in a manner which is inconsistent with an intent to bring the person concerned to justice."
On September 16, 2020, the United Nations Independent International Fact-Finding Mission on Venezuela presented its first report to the UN Human Rights Council, concluding that Venezuelan authorities and colectivos (armed pro-government groups) had committed egregious violations amounting to crimes against humanity. The independent experts leading the mission said they had reasonable grounds to state that "[m]ost of the violations and crimes … were part of a widespread and systematic attack against a civilian population … in furtherance of a state policy." The experts found that "[H]igh-level authorities had knowledge of and contributed to the commission of these crimes" and that "Commanders and superiors knew or should have known about them, and … did not take measures to prevent or repress them."
Human Rights Watch reports released in 2014 and 2017, which were shared with the Office of the Prosecutor, found widespread abuses during crackdowns in Venezuela. Security force personnel beat detainees and severely tortured them. Security forces also used disproportionate force and carried out violent abuses against people in the streets, and arbitrarily arrested and prosecuted government opponents. The nature and timing of many of the abuses - as well as the frequent use of political epithets by the abusers - suggest that their aim was not to enforce the law or disperse protests, but rather to punish people for their perceived political views.
Human Rights Watch research shows that the abuses were not isolated cases or the result of excesses by rogue security force members. Instead, the repeated widespread violations by multiple security forces, during a specific time frame, and in numerous locations, support the conclusion that the security force abuses have been systematic. Human Rights Watch also documented cases of enforced disappearances for days or several weeks, and other egregious abuses since 2014.
Police and security forces killed nearly 18,000 people in Venezuela for alleged "resistance to authority" between 2016 and 2019. Nobody has yet compiled detailed information about how many of the killings were extrajudicial executions. But the Office of the UN High Commissioner for Human Rights (OHCHR) has concluded that "many of these killings may constitute extrajudicial executions." In six of the cases documented by OHCHR, those killed were government opponents or perceived as such. Agents executed them during raids after anti-government protests.
In a report released in April 2021, Human Rights Watch documented new cases of extrajudicial killings, arbitrary arrests, prosecution of civilians in military courts, and instances of torture in Apure state that follow a pattern similar to the systematic abuses that have led to international inquiries into possible crimes against humanity in Venezuela.
There is a widening gap between the ICC Office of the Prosecutor's workload and available resources. Venezuela is the court's fifteenth situation under investigation and its first in the Americas region.
The court's budget, funded by its member countries, has been held to near-zero growth since 2017 while its docket has grown substantially.
The ICC prosecutor should prioritize engaging ICC member countries to expand the court's resources to meet its mandate, Human Rights Watch said.
The ICC acts as a court of last resort, stepping in only when national courts cannot or will not investigate and, as appropriate, prosecute the most serious international crimes. On the same day the prosecutor announced the opening of the investigation, the Office of the Prosecutor signed a letter of understanding with Venezuelan authorities, which states that the Maduro government considers that the allegations should be investigated in Venezuela by existing national institutions. The government agreed to "adopt all necessary measures to ensure the effective administration of justice."
Human Rights Watch research has shown that Venezuela's judiciary has failed to adequately investigate widespread abuses despite compelling evidence and that impunity for human rights abuses remains the norm. Since the late President Hugo Chávez and his supporters in the National Assembly carried out a political takeover of Venezuela's Supreme Court in 2004, the judiciary has stopped functioning as an independent branch of government. Supreme Court justices have openly rejected the principle of separation of powers and have consistently upheld abusive policies and practices.
Judicial authorities have been complicit in the abuses, the UN Fact-Finding Mission reported in September, including by issuing retrospective arrest warrants for illegal arrests, routinely ordering pretrial detention, upholding detentions based on flimsy evidence, and failing to protect victims of torture. Judges allowed significant procedural delays and interfered with the right to choose one's own lawyer.
The Maduro government previously referred crimes, which it alleged were caused by unilateral United States government sanctions imposed on Venezuela, to the ICC prosecutor in February 2020. This led to the Office of the Prosecutor opening a second, separate preliminary examination. That examination remains ongoing.
"In the absence of robust and independent investigations in Venezuela into those most responsible for egregious abuses, which would require an overhaul of the country's dysfunctional and politicized justice system, the ICC will have a critical role to play as a court of last resort," Vivanco said. "To deliver on expectations for justice in Venezuela as well as in other situations around the globe, ICC member countries need to step up their political and financial support for this court."
