The OAS Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela (hereinafter, the Panel) took cognizance of a document presented by the then Prosecutor of the International Criminal Court (hereinafter, ICC), Fatou Bensouda, which had remained confidential until now. In this document, Ms. Bensouda ratified the conclusions presented by this Panel in its May 2018 report on the existence of crimes against humanity in Venezuela and compliance with the requirements for opening an investigation.
The then Prosecutor reiterated her conclusion on the existence of a reasonable basis to believe that crimes within the jurisdiction of the Court were committed and also considered that the complementarity requirement was also met, for which it was necessary to open the investigation. She concluded that potential cases that could emerge from the investigation would be admissible under the Rome Statute.
According to this position, which coincides with the one expressed by this Panel, the cases would be admissible due to the inaction of the Venezuelan justice, which is evidenced in the limited number of relevant procedures at the domestic level, in relation to the potential cases identified by the Prosecutor’s Office and the lack of concrete measures to establish criminal responsibility in these cases. In relation to the open investigations, the Prosecutor’s Office concluded that these cases are flawed due to a lack of will or ability to actually carry out the procedure.
The Panel had stated in its 2018 report that according to the information available at that time, “the investigations or criminal proceedings initiated targeted marginal or low-level perpetrators, despite the fact that this Panel has shown that there is evidence against people with greater responsibility for the most serious crimes that have been committed. This type of response by the state, which seeks to ignore the existence of a state policy and create the appearance of justice, implies a form of inactivity that enables the opening of an investigation.”
Regarding the lack of independence that affects the Judicial Power in Venezuela, the Panel highlighted in its report numerous pronouncements by the Inter-American Commission on Human Rights (IACHR) in which it warned about this situation and made reference to three convictions of the Inter-American Court that evidenced “a general pattern of lack of judicial independence.”
The Panel considers that after the conclusive determinations of the former Prosecutor – as revealed in the publication of her confidential observations – no adequate process has yet been initiated in relation to those most responsible for the crimes committed in Venezuela. Given that no significant progress has been made since the outgoing Prosecutor’s confidential findings – neither by her Office nor in Venezuela – immediate action by the ICC is necessary to promote justice and accountability in Venezuela.