On November 7 and 8, the Appeals Chamber of the International Criminal Court (ICC) held a public and unprecedented hearing to address a procedural incident in the Venezuela I case. It was a historic decision as it was the first time the ICC expressed interest in hearing the arguments of the parties, the State and the victims, during the preliminary stage. At the hearing, the appeal presented by the State against the decision of the Pre-Trial Chamber that authorized the ICC Prosecutor’s Office to resume the investigation for crimes against humanity in the country was discussed.
Many relevant aspects revolve around this audience. In this edition we will present a brief review of the five arguments presented by the State together with the counterarguments of The Office of the Prosecutor (OTP) and the Office of Public Counsel for Victims (OPCV), as well as the future of the process.
The State’s first allegation pointed to the lack of clarity and precision of the notification sent by the Prosecutor’s Office under the terms of Article 18 (1) of the Rome Statute, to the extent that it did not specify the time frame, the crimes committed and the identity of the perpetrators. THE OTP and the OPCV were clear in pointing out that such a level of information does not correspond to the current preliminary stage. The case continues to be analyzed under the standard of reasonable grounds to determine whether crimes have been committed that are within the jurisdiction of the Court in Venezuela. The notification referred to by the State – identification of victims, perpetrators and crimes – takes place when the ICC authorizes the opening of an investigation in the strict sense, which is precisely what the State is trying to prevent through its appeal.
The second allegation was to challenge the decision not to consider more than three quarters of the documents sent by the State in a different language – Spanish – than the official ones – English and French-. Venezuela expressed its disagreement with the requirement to translate the documents, arguing the generation of a cost and undue haste at the time of sending the information, which is why it concluded that the prosecutor’s office should be in charge of translating those documents. In this regard, the OTP referred to article 50 of the Rome Statute and rule 41 (1) of the Rules of Procedure and Evidence, reminding the State that it could have requested authorization to send information in another language or request the cost of the translations by the Court, none of which it carried out.
The third allegation consisted of criticizing the exclusion of police and prosecutor records sent to the OTP. The OTP recognized that although the State sent 20,000 documents, only 62 files contained data on the scope of the domestic investigations in the terms of the Statute. Furthermore, the OPCV reiterated that what is important is not the quantity of information sent, but the quality of the information as it contains data that makes it possible to determine whether there are genuine investigations.
The fourth allegation referred to ruling out the importance of investigating the contextual elements of crimes against humanity. The State specified that it is not obliged by virtue of the principle of complementarity to investigate the context. The OTP objected that without contextual elements it is not possible to genuinely investigate crimes against humanity, the patterns, the link between the behavior of suspects and the acts, the profile of the victims, among others, which are relevant. The OPCV indicated that the State cannot evaluate acts in isolation, because the evidence suggests that the cases are not a random sample but are related to motives of political persecution.
The State’s last argument was to indicate that there is no obligation to classify the conduct as an international crime or as provided in the Rome Statute. The ICC would not have the jurisdiction to evaluate domestic criminal offenses, because it would violate the sovereignty of the State. The State made a kind of argument from the dualist theory of law to support that Venezuela is sovereign in legally qualifying its own facts and judging them. The OTP counterargued that although an identical legal qualification is not required, the national investigation must essentially cover the crimes that the prosecution intends to investigate. When observing the state information, it became clear that the State intends to investigate sexual violations as a type of inhuman act, which does not correspond to the Rome Statute, and that there is no local investigation for reasons of persecution.
In short, the hearing held revealed that Venezuela lacks the will to genuinely investigate, and its real intention is more to cover up the crimes and their perpetrators, which is why the ICC process must continue. A decision on the resumption of the investigation is expected in February 2024. In the meantime, the international community should resolutely support local organizations to protect victims, their representatives, witnesses, as well as all parties involved, and strengthen their advocacy strategy at the international level so that the negotiation process moves forward at the same time as the international criminal process. Contrary to what the Venezuelan State claims, impunity for crimes against humanity is outside the political negotiation.