Venezuela: Proceedings at the International Criminal Court Will Play an Important Role in the Search for Accountability for Victims

Five floors underground, shockingly small cells, strong artificial light switched on all day, forced to remain naked in freezing temperatures, in complete isolation and with no notion of time. This is the type of testimonies found in the reports of the Office of the United Nations High Commissioner for Human Rights (OHCHR)[1] and the General Secretariat of the Organization of American States (OAS)[2].

Some of these testimonies come from political prisoners in La Tumba (the tomb). This place, which was originally supposed to be a bank vault, is now used as a prison to politicians, activists and students who have protested against Nicolas Maduro’s government. Other testimonies come from El Helicoide, another centre used to confine political prisoners also named in different reports of the OHCHR, the OAS and NGOs like Human Rights Watch[3] and Amnesty International[4]. Here, the reports affirm that the usual overcrowding and malnutrition suffered in Venezuelan prisons is accompanied by the systematic use of torture in cells where some prisoners are kept incommunicado. In some cases, the prisoners were children[5]. In 2018, the situation was so critical that a group of prisoners organised a riot urging for torture acts to stop[6].

The mistreatment suffered include beatings, suffocation with plastic bags and chemicals, stress positions, sexual violence, electric shocks, sleep deprivation and death threats[7]. Through these acts, state agents would seek to punish, humiliate and terrorise the detainees. In some cases, their purpose would be to extract confessions and information about alleged activities against the government.

These and other crimes denounced by prisoners and protesters in recent years have taken place in the context of numerous demonstrations against the government which started in 2014 and continued in 2017 and 2019.

The alleged perpetrators are state agents, including the national police (PNB), the national guard (GNB), the civilian secret police (SEBIN) and the military counterintelligence (DGCIM).[8] Along with these agents are the Colectivos, groups of armed civilians who operate on multiple occasions either in coordination with or with the acquiescence of state agents and security forces[9]. Their participation in different violent events against protesters and members of the opposition to the government has been registered and denounced by numerous international institutions and NGOs[10]. Both the state agents and the armed groups of civils would be acting in the implementation of the Plan Zamora.[11]

The Plan Zamora is a civil-military strategic plan adopted on Abril 2017 with the background of the student protests that occurred in February and March 2014. It combines the participation of military and civilian elements with the objective of facing any possible internal and external attacks that threaten the peace and sovereignty of the country[12]. The Plan Zamora has been identified by the General Secretariat of the OAS as evidence that there was a policy designed by the State and implemented by state agents through the commission of crimes against humanity[13].

Given that they are acting under orders of high-officials, state agents and members of the Colectivos expect total impunity for the crimes they have committed, and judging from the state of the domestic judiciary, they may be right. The possibility for these victims to seek justice and redress domestically are slim. The domestic judicial system has been suffering a heightened collapse, with the lack of independence of the judiciary being one of the most important obstacles to access justice. The judiciary’s lack of independence from the executive branch has been widely denounced both nationally and internationally[14].

The Supreme Court of Justice, formed exclusively by pro-government judges, has frequently acted as a direct organ of the President[15]. The current lack of independence is even worse in cases where torture has been committed given their political nature. Since 2014, the majority of the cases concerning political prisoners were handled by the military jurisdiction[16].

For instance, between April 1 and July 31, 2017, according to the OHCHR, more than 600 civilians detained in the context of protests were being prosecuted by military courts[17]. They were accused of crimes such a rebellion and treason defined in the Organic Code of Military Justice[18].

The Inter-American Commission on Human Rights has expressed its concern over the use of military criminal jurisdiction for the prosecution of civilians in Venezuela and recalled that it implies the violation of a series of rights, including the right to a natural judge and judicial guarantees[19].

Because of the lack of possibilities to access justice domestically, it seems that unless there is a change of government, the only hope for redress lies in the international sphere.

Venezuela has also created obstacles in the international sphere for victims to access justice. Former President Hugo Chavez denounced the American Convention on Human Rights in 2012[20]. As a result, the Inter-American Court of Human Rights will not have jurisdiction over events which occurred after September 2013, which includes the human rights violations in the context of the protests. In 2017, the government also denounced the Charter of the OAS to limit the jurisdiction of the Inter-American Commission of Human Rights.[21] This denunciation was not accepted by the Secretary-General of the OAS given that the organisation recognises Juan Guaido as the interim president of Venezuela who has notified that the country will continue being a Party to the Charter.[22]

Some mechanisms could still be used to find both state responsibility and individual accountability. Venezuela is a State Party to the International Covenant on Civil and Political Rights and the Convention against Torture. In both cases, Venezuela has accepted the competence of the monitoring bodies for complaints procedures.

It seems now that accountability could be found through proceedings at the International Criminal Court (ICC). Venezuela signed the Rome Statute in 1998 and deposited its instrument of ratification in 2000. On 27 September 2018, a group of States Parties to the Rome Statute, namely the Argentine Republic, Canada, the Republic of Colombia, the Republic of Chile, the Republic of Paraguay and the Republic of Peru, referred the situation regarding the Bolivarian Republic of Venezuela since 12 February 2014.[23]

The Prosecutor of the ICC (OTP) decided on 8 February 2018 to open a preliminary examination of the situation in Venezuela to analyse crimes allegedly committed in this State Party since at least April 2017, reducing the scope originally referred to her[24].

From the information given by the OTP regarding the preliminary examination, it seems that the events which occurred between 2014 and April 2017 are being analysed by the office as contextual background[25]. This would leave outside of the scope of the investigation some well-known cases within the Venezuelan society, such as the persecution and detention of one of the most prominent leaders of the Venezuelan political opposition, Leopoldo Lopez and the killings, injuries, arbitrary detentions, persecutions and torture allegedly committed by security forces during the protest of 2014, including the extrajudicial execution of 23 years old Geraldine Moreno.

The preliminary examination of the OTP is currently under phase 2

In the last report of the OTP’s activities published in 2019, the OTP informed that they were concluding the subject-matter jurisdiction analysis which should have ended in the first months of 2020[26]. In case the assessment results in a positive finding, the OTP would proceed to an assessment of admissibility.

In accordance with the policy paper of the OTP, the second phase represents the formal commencement of a preliminary examination of a given situation and focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court[27]. During this phase, the OTP conducts a thorough factual and legal assessment of the crimes allegedly committed in order to identify the potential cases falling within the jurisdiction of the Court.

Some of the crimes which were named in the report of the OTP as possible crimes against humanity committed in Venezuela are killings and injuries, deprivation of liberty, ill-treatment and torture, sexual and gender-based crimes and alleged persecutory acts[28]. A defining factor during the preliminary examination will be whether the OTP finds that the different crimes allegedly committed by the Venezuelan government have been part of a systematic or generalised policy executed by the government in the terms of article 7 of the Rome Statute. The proceedings at the ICC would allow for the highest members of government to be judged by an independent tribunal based on their role in the crimes against humanity.

With the aim of supporting any possible investigations at the ICC, the General Secretariat of the OAS has identified different elements which would prove the existence of state policy[29]. This includes the public pronouncements of high-level authorities of the State of Venezuela ‘aimed at inciting or encouraging the commission of the crimes against humanity, especially the crime of persecution’.[30]

The OTP may be taking the Plan Zamora as an example of the planned, organized and directed nature of the attacks. In the most recent report on activities, the Prosecutor mentioned that the Plan Zamora was put into action in April 2017 by the Venezuelan Government ‘to curb the demonstrations’ and that on 17 May 2017, the president launched the second phase of Plan Zamora in which ‘2,000 members of the Bolivarian National Guard and 600 military troops were reportedly deployed during this phase to control public demonstrations in Venezuela’[31].

The creation of this policy could be the defining factor in determining the scope of the investigations. On the other hand, it could be argued that this strategic plan is the institutionalization of a policy of repression, and persecution against members of the opposition and protesters that was already taking place since 2014.

It is difficult to assert when the preliminary examination will come to a close given that there are no timelines provided in the Statute and it is up to the OTP to decide whether to decline to initiate an investigation, continue to collect information or initiate the investigation, subject to judicial authorisation as appropriate.

Venezuela II: The United States of America’s economic sanctions against the Venezuelan government and ‘effects’ jurisdiction

A new element was added to the proceeding in 2020 when Nicolas Maduro referred a request for the Prosecutor to initiate an investigation into crimes against humanity allegedly committed on the territory of Venezuela pursuant to article 14(1) of the Rome Statute[32]. This new situation was labelled as Venezuela II and assigned to the same Pre-Trial Chamber as Venezuela I situation[33]. According to Mr Maduro, this situation refers to crimes against humanity committed ‘as a result of the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela, at least since the year 2014’[34].

Since 2015, the United States government has implemented international sanctions as a tool to generate pressure on the Venezuelan government. The first sanctions were ordered by Barack Obama and included blocking the property and suspending entry of certain persons who had contributed to the violations of human rights in Venezuela[35]. These measures gained strength in January 2019 when the US government sanctioned the company Petróleos de Venezuela, S.A. (PDVSA)[36].

On August 5, 2019, the US government enacted Executive Order 13884, which froze the assets of the Venezuelan government in the United States and prohibited US individuals and entities from carrying out operations with them[37]. It also established that there could be sanctions for non-US individuals and associations that facilitate or provide aid to the Venezuelan government.

According to the supporting document of the request made by Mr Maduro, the unilateral coercive measures have impacted all aspects of the socio-economic life and have massively affected a wide range of human rights in Venezuela. In their referral, they argue that the OTP should apply an effects-based analysis of territorial jurisdiction given that the economic sanctions had intended to produce their effects within the territory of Venezuela[38]. It will definitely be interesting to follow on how the OTP ends up deciding the Venezuela II situation regarding territorial jurisdiction.

In any event, everything seems to indicate that, unless the political direction of the country changes drastically in the coming years, the victims’ only hope to access justice will be on an international level. Given the current circumstances, both politically and in the judicial institutions, it appears that the level of impunity for the Venezuelan agents who have committed crimes against humanity, at least from 2017 onwards, will depend on the response victims get at the ICC.

Sara Fernandez Rivera is an international law practitioner and a human rights lawyer from Venezuela. She has worked in human rights NGOs, at the Inter-American Court of Human Rights and at the International Criminal Court. She is a senior lawyer at Rivera Fernandez & Asociados.

[1] OHCHR, Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017, Geneva, August 2017, p. 17; OHCHR, Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight, Geneva, June 2018, p. 25.

[2] OAS, General Secretariat, Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela, Washington, 29 May 2018 (OEA/Ser.D/XV.19).

[3] Human Rights Watch, Punished for Protesting Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System, May 2014; Human Rights Watch, Crackdown on Dissent Brutality, Torture, and Political Persecution in Venezuela, November 2017.

[4] Amnesty International, Silenced by Force, Politically-Motivated Arbitrary Detentions in Venezuela, 2017.

[5] OHCHR, Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight, Geneva, June 2018, p. 25.

[6] The Guardian, Venezuela political prison seized by inmates ahead of presidential election, 17 May 2018.

[7] OHCHR, Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017, Geneva, August 2017, p. 17.

[8] Human Rights Council, Outcomes of the investigation into allegations of possible human right violations of the human rights to life, liberty and physical and moral integrity in the Bolivarian Republic of Venezuela, 2 July 2020, A/HRC/44/20, para. 45; OAS, General Secretariat, Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela, Washington, 29 May 2018 (OEA/Ser.D/XV.19); OHCHR, Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017, Geneva, August 2017.

[9] UN General Assembly, Report of the United Nations High Commissioner for Human Rights, 9 October 2019, A/HRC/41/18, para. 39.

[10] Foro Penal, Reporte sobre la Represión en Venezuela, April 2019, p. 4; Human Rights Watch, Punished for Protesting Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System, May 2014; Human Rights Watch, Crackdown on Dissent Brutality, Torture, and Political Persecution in Venezuela, November 2017, p. 20.

[11] OAS, General Secretariat, Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela, Washington, 29 May 2018 (OEA/Ser.D/XV.19), pp 327-332.

[12] OAS, General Secretariat, Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela, Washington, 29 May 2018 (OEA/Ser.D/XV.19), pp 49-53; Video of the speech of President Nicolas Maduro declaring the start of the implementation of Plan Zamora, 18 April 2017.