On March 31, 2022, the International Criminal Court Prosecutor, Karin Khan, appeared in a meeting in the presidential palace in Caracas with Nicolás Maduro ready to offer public statements at the end of what was his second visit to Venezuela. Unlike the first visit, the current one was unannounced, there were no meetings with civil society organizations, and everything was carried out confidentially between the government and the prosecutor.
In his speech, the prosecutor expressed that, despite the fact that the government maintains its disagreement with the opening of the investigation, “I continue to consider it to their great credit that they have committed to strengthening cooperation with my Office.” He pointed out that there were advances in the implementation of the MoU, such as establishing an office in Caracas for technical assistance purposes. The prosecutor highlighted his commitment “to give life to the principle of complementarity that lies at the heart of the Rome Statute.”, for which “to deepen cooperation and build common ground across all actors (…) can only serve to strengthen the basis on which effective investigations may be conducted.” This could include, according to the prosecutor, strengthening relations with the OHCHR.
The way in which the announcements have been made public and the measures to which they will give rise do not give good signs of wanting to integrate civil society in the work to come. They also say nothing about the parameters of the opening of the investigation and how it will proceed within the framework of these cooperative efforts. The question of how the principle of complementarity will be granted life is not a discussion of elites between the Prosecutor’s Office and the State, nor between them with the OHCHR, but rather it is a fundamental issue that should trigger a broader and more sincere conversation with civil society and other stakeholders. Therefore, the establishment of an ICC office should be followed by the definition of clear and enforceable standards and spaces for participation with civil society to understand what we are talking about.
The first visit of the ICC Prosecutor was transparent, he met with civil society, and ended up firmly, opening an investigation on Venezuela. The opening of an office for technical assistance purposes was then announced as part of a second secret visit with the government. The OHCHR did something similar in 2019. On her first visit, she was transparent, listened to the organizations, and was firm in her public statement, which was followed by the most critical report on her term. She then announced a presence of her office in the country that has been working secretly with the government to the point that it has minimized its ability to advocate publicly.
Like the OHCHR, the ICC Prosecutor started out transparent and firm and now seems to opt for bilateralism and the opacity of his mandate. The new office should be careful not to repeat the OHCHR’s modus operandi which includes allowing her name to be used to celebrate government actions while remaining silent in the face of continuing violations. This is the carrot of technical assistance, accompaniment, and workshops for officials to promote best practices, with nothing to assess the effectiveness of what has been achieved, and excluding organizations to prevent inconveniences, because in the end, this “is better than nothing” .
This is not to question the importance of technical assistance, but to ensure that it does not become a distracting carrot. The ICC Prosecutor has to define criteria to assess how his independent investigation continues and allow civil society full participation to monitor and challenge the actions of the government. Otherwise, the ICC Prosecutor runs the risk of validating actions that are not compatible with a genuine will to investigate and do justice. The best intentions must always be accompanied by transparent standards, criticism, and inclusion in the process; otherwise, not only does it not work, but it places “the value of staying in the country” above any other principle.