Relatives of victims in Venezuela request a hearing with the ICC. Photo: Yuri CORTEZ
On December 15, 2021, the unconstitutional National Assembly voted in 2020 (hereinafter AN-2020), sanctioned the “Special Law on Crimes of Genocide, Against Humanity and War Crimes” (hereinafter “law on genocide”), the same day as the “Law of the Commission for the Guarantee of Justice and reparation of victims of Crimes against Human Rights” (hereinafter “law on reparation”). Following the example of the previous regulation, an unconsulted and express procedure gestated by the ruling party hegemony dispatched the law on genocide in just two days.
The ignorance of the duty of public consultation established in Article 211 of the Constitution was such that it did not even have the prior knowledge of actors on the ground with whom the State allegedly cooperates, such as the team of the Office of the High Commissioner for Human Rights (hereinafter “OHCHR”). As it was approved on the same day and under similar conditions as the law on genocide, the law on reparation would hardly count on the assistance from the OHCHR, which the government has boasted for other areas such as citizen security and demonstrations, attention for victims of violence and detention centers.
Unlike the law on reparation, the law on genocide flagrantly violates international obligations of the State in matters of truth, justice, reparation, and guarantees of non-recurrence in connection with the crimes against humanity perpetrated by the current government. Indeed, even though article 2 prescribes that the “law is intended to ensure the exercise of the main responsibility of the Bolivarian Republic of Venezuela to investigate and punish acts that could constitute crimes of genocide, against humanity and war crimes,” article 9 immediately clarifies that “this law will not have retroactive effect, in accordance with the Constitution of the Bolivarian Republic of Venezuela. Consequently, no one will be criminally liable in accordance with this law for conduct prior to its entry into force”.
While it is true that the principle of non-retroactivity of criminal law is a very important component of the right to due process, in the sense that no one can be tried for conduct not classified as a crime at the time of the events, there are also exceptions that relativize the principle. Article 15 of the International Covenant on Civil and Political Rights (hereinafter “The Covenant) is clear. “1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”. Yet, the Covenant immediately clarifies “2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.
The Covenant precisely refers to serious human rights violations and crimes under international law such as genocide and crimes against humanity, which must be prosecuted at all times and in all places, as they are offenses that affect the international community. As the Ad Hoc Tribunal for East Timor pointed out, “[t] he punishment of the perpetrators of these crimes is recognized as an obligation of the entire international community (erga omnes obligation)”.
By not explicitly recognizing the exception applicable to serious human rights violations and crimes against humanity, this normative provision resembles the reprehensible decrees of self-amnesty of the southern cones dictatorships to guarantee impunity and put an “end” to their legacy of atrocities. The Venezuelan case shows that it is not necessary to have the military in the government to act like a dictatorship.
the unconstitutional law on genocide is accompanied with other practices ensuring impunity, such as the indictment of 12 officials of the Bolivarian National Guard on the crime of “pre-intentional homicide in a degree of corresponding complicity” for executing directly the student Juan Pablo Pernalete with a tear gas canister to less than 30 meters while peacefully demonstrating more than 4 years ago; or the indictment of two officials of the Bolivarian National Intelligence Service on the crime of “manslaughter, breach of custody rules, conspiracy and favoring the escape of the detainee” for the enforced disappearance, arbitrary detention, torture and death in custody simulating suicide of councilor Fernando Albán by officers of that intelligence agency more than 3 years ago.
In both cases, collected by the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, the facts are legally disqualified while the chain of command behind these serious violations is protected. If the law on genocide is applied, none of these cases, among many others, could be judicially reviewed, by virtue of an illegitimate application of the principle of non-retroactivity to protect those close to the power.
The unconstitutional law in question is another simulation of compliance with the requirements of criminal justice to try to convince the International Criminal Court of the supposed official intention to fight against impunity and thus avoid the prosecution of the main repressors in Venezuela. However, a narrative of “cooperation” with the human rights protection system and international criminal justice cannot be upheld when the facts confirm the State’s unwillingness to investigate and adequately punish the crimes committed by those most responsible, as was preliminarily warned by the former ICC prosecutor. It is a fraudulent attempt to apply the principle of complementarity of the Rome Statute. The government’s claim to manipulate international investigations against it with the support of its corrupted institutions does not translate into a deception for independent organizations that have been documenting and denouncing for years that there is no democracy or rule of law in Venezuela.