On November 1, 2022, the Prosecutor of the International Criminal Court, Karin A. Khan, filed an application with the Pre-Trial Chamber I of the International Criminal Court (“ICC”) requesting authorization for his Office to resume the investigation into the Situation Venezuela I. The prosecutor’s request is not presented in a vacuum: it comes after the assumption of office of a new High Commissioner for Human Rights and the renewal for two more years of the mandate of the Independent international fact-finding mission on Venezuela (MII).
The prosecutor’s request arises as a result of an objective and independent evaluation by her Office, which concluded that the deferral requested by Venezuela, in its own terms, “is, at this stage, not warranted.” Among the reasons given, the Prosecutor points out that “of the 893 cases reported, only 265 cases (29.68% of the total) contain some basic information (in the form of a “Summary”) in relation to the question of the existence of relevant domestic proceedings”. In addition, the Prosecutor expresses that, despite the State’s reported efforts towards the goal of accountability, “the information available shows that the patterns and policies underlining the contextual elements of crimes against humanity are not being investigated, the domestic proceedings focus on direct perpetrators (and seemingly low-level members of the State security forces) and mostly on crimes qualified as being of “minor” in severity. Thus, “(…) a substantial part of the relevant crime It’s not being investigated at all.
In a 62-page document, the ICC Prosecutor summarizes his request in three fundamental assumptions. 1) Domestic proceedings do not sufficiently mirror the Prosecution’s intended investigation; 2) Shielding persons from criminal responsibility—and 3) lack of independence and impartiality of justice operators. Each assumption includes a number of arguments. For instance, in the first assumption it is developed that “the domestic authorities have not investigated the alleged State policy and systematic attack against a civilian population nor persons in positions of authority”; in the second, there are “inadequacies in the legal qualification and gravity assessment”; in the third, it lists a series of factors that affect the independence and impartiality of justice operators, including the regulatory framework, the composition of the Supreme Court of Justice (TSJ), the TSJ’s relationship with the ruling party, and the provisional nature of the positions.
This request from the ICC prosecutor sends many positive messages, of which we will highlight three in particular. The most important is that it ratifies the presence of crimes against humanity that the State has not investigated in accordance with the Rome Statute. The “for now” refers to a procedural formality that the ICC Prosecutor’s Office knows in advance that it cannot be reversed unless there is a genuine will and results on structural reforms, which do not exist. The second message is that the ICC has cited the MII reports throughout the document to extensively ground its arguments, that is, it shows an entry into the dialogue and complementarity that the ICC Prosecutor’s Office has marked in its request, which It paves the way for the development of criminal proceedings based on contributions from third parties.
Third, and no less importantly, a quote from the ICC for justice for victims in Venezuela appears. “[The ICC’s] complementarity must be assessed on the basis of the facts as they exist, not as they might materialise in the future”. The intervention of the ICC will continue to advance as long as Venezuela does not implement substantive and tangible changes. This pragmatic and law-adjusted approach of the ICC Prosecutor is in open contrast to what was the approach of political support of former Commissioner Bachelet, who celebrated the measures of the State for the mere announcement of them, without looking at whether there was at least implementation.
The ICC Prosecutor has renewed hope for justice and accountability in Venezuela. The Pre-Trial Chamber I must respond to the prosecutor’s request, while all interested parties remain committed to promoting communication channels for dialogue and possible coordination between the new High Commissioner for Human Rights, the MII, and the ICC Prosecutor’s Office. This is a possible and desirable option, considering that all the mandates work on Venezuela and already converge on various issues.