Humberto Prado, Presidential Commissioner for Human Rights and Attention to Victims, expressed his concern regarding the exclusion of murder as a crime against humanity in the material facts stage of the preliminary examination on Venezuela that is currently taking place in the Prosecutor’s Office of the CPI. In addition, it regretted the reduction of the time scale which, as requested by several States parties, should be from February 12th, 2014.
As is well known, on February 8th, 2018, the Prosecutor’s Office announced the official start of a preliminary examination regarding the situation in Venezuela. Seven months later, six States Party to the Rome Statute (Argentina, Canada, Colombia, Chile, Paraguay and Peru) made a referral under article 14 numeral 1 of the Rome Statute (hereinafter, RS) warning the possible commission of Crimes against Humanity (hereinafter, CAH) in Venezuelan territory since February 12th, 2014.
Both the official opening by the Prosecutor’s Office and the referral made by the six party States were accumulated under the preliminary examination called the situation of “Venezuela I”, in which the office of Fatou Bensouda should analyze whether there is a sensible justification (reasonable basis) to believe that CAH could have been committed or are being committed in Venezuela as of February 2014.
This marked a historic milestone in the ICC, since, for the first time, a group of Party States made a referral regarding the alleged commission of crimes under the jurisdiction of the Court of another Party State to the RS.
Furthermore, the Presidential Commission considers it necessary to clarify to the public opinion that a preliminary examination does not represent a formal accusation of CAH being commited by a specific individual. As its name indicates, preliminary examinations are studies that precede and justify the opening of a formal investigation, from which procedures directed at specific individuals can be requested, such as: an arrest warrant or appearance, confirmation of charges , trial and reparations. However, it is necessary to define the different procedural instances and take into account the scope of each one to avoid fostering false expectations.
Regarding the material jurisdiction of the ICC
Through a publication made on its official communication channels, on November 5th, 2020, the Office of the Prosecutor announced the completion of the analysis of the second phase of the preliminary examination on the situation in Venezuela I. After a detailed evaluation of the available information, the Office of Bensouda concluded that there are reasonable grounds to believe that crimes within the jurisdiction of the Court were committed in said territory.
This was detailed in the 2020 Preliminary Examination Activity Report released today in the afternoon. The document states that, given the scope and range of the different crimes allegedly committed in the context of the situation, the analysis of the Prosecutor’s Office focused on a particular subgroup of allegations related to the treatment of people in detention, with respect to the one that had to provision of information detailed enough and reliable regarding the specific elements of the crimes.
In this regard, this Commission welcomes the fact that the Prosecutor’s Office concluded that, based on the information available, there are reasonable grounds to believe that at least since 2017, civil authorities, members of the armed forces and individuals who favor the Government have committed crimes against humanity of prisoners or other serious deprivations of physical liberty; torture; rape and/or other forms of sexual violence of comparable gravity; persecution of a group or collectivity with its own identity based on political motives, in accordance with article 7 of the Rome Statute.
However and although the report in question uses the expression “at least since 2017” to indicate the evaluation time frame carried out by the Office of the Prosecutor, the Presidential Commission for Human Rights recalls that, by virtue of the referral made by a group of Party States in February 2018, the factual scale of temporary assessment extended until February 2014. That is the reason why the Office of the Prosecutor must also take into account the facts constituting CAH of imprisonment, torture, rape or other forms of violence, sexual violence and persecution since then.
On the other hand, the Presidential Commission regrets that, despite the exhaustive documentary support available from open sources, assassination as CAH has been excluded, at least so far, since this circumstance minimizes and ignores the needs to obtain justice for the victims and relatives who have unfortunately found themselves in the painful circumstance of suffering the consequences of a crime of this type. Consequently, this office of the Interim Government would urge its evaluation in future procedural stages.
Also, the Presidential Commission points out that the ICC Prosecutor’s Office has clarified for the first time the potential cases on which a possible formal investigation would consider. Thus, as indicated in paragraph 204 of the aforementioned report, the members of the Security Forces presumably responsible for the material commission of the crimes include officials from: the Bolivarian National Police (“PNB”); the Bolivarian National Intelligence Service (“SEBIN”); the General Directorate of Military Counterintelligence (”DGCIM”); the Special Actions Force (“FAES”); the Scientific, Criminal and Criminal Investigations Corps (“CICPC”); the Bolivarian National Guard (“ GNB ”); the National Anti-Extortion and Kidnapping Command (“ CONAS ”) and certain other units of the Bolivarian National Armed Forces (“ FANB ”). Likewise, the document alludes to the possibility of including other individuals close to the regime who participated in the repression of members of the opposition.
True to its policy of action, the Prosecutor’s Office affirmed that it will choose to examine the intervention of those who appear to be the “most responsible” for the crimes committed.
In previous cases processed before international criminal tribunals – including the ICC itself – characteristics such as hierarchical position, the status of political, military, paramilitary or civil leader, and the degree of participation in decision-making, have allowed a person to be considered as such.
The identification of these potential cases should not be interpreted in the sense of preventing or excluding the analysis of responsibility of other actors other than those indicated. The list of potential cases indicated in the report is merely illustrative, not exhaustive, so it could be expanded as the process progresses.
The Presidential Commission has carefully reviewed the information provided by the ICC Prosecutor’s Office regarding the progress of the admissibility stage, where special attention must be paid to the elements of gravity and complementarity.
Regarding gravity, article 29, paragraph 2 of the Regulations of the Office of the Prosecutor requires taking into account for its accreditation among other factors:
i. The scale of the crime: evaluating the geographical extension, duration and number of victims affected by it.
ii. Nature: crimes of murder and rape are considered especially serious. It should be noted that the latter is part of the alleged CAH committed in Venezuela.
iii. Form of commission: crimes committed with abuse of power (de jure or facto) against especially vulnerable victims are considered particularly serious.
iv. Impact: for which the social, economic or environmental damage caused by the crimes must be taken into account.
Finally, in relation to the principle of complementarity established in the preamble of the RS, the ICC can only hear of a situation when the State called to exercise its jurisdiction (that is, Venezuela) cannot or does not want to do so by virtue of what is stipulated in Article 17 of the RS. Thus, a State is considered to lack capacity or will when, among other factors:
i. Has not carried out genuine investigations or prosecutions;
ii. Has incurred an unjustified delay in the process that, given the circumstances, is incompatible with the intention to bring the person in question to justice;
iii. The process has not been or is not being conducted independently and impartially.
On the latter, the Presidential Commission, international organizations (FFM, OHCHR, IACHR, among others) and national and international organizations of civil society have repeatedly warned the Venezuelan State’s unwillingness to carry out genuine and independent investigations into serious violations, including crimes that are part of the preliminary examination.
In this regard, according to the documentation obtained by this office, of 22 cases of torture executed against soldiers deprived of liberty, only 1 is being investigated and, even in this case, the first reaction of the State was to impute a lesser crime, namely, pre-intentional homicide.
In this sense, it should be noted that said investigation focused only on the two direct perpetrators of the torture, both low-ranking officials and, to date, no conviction has been issued against them.
The Presidential Commission considers it is vital that the seriousness and impartiality of these procedures be taken into account since, usually for political convenience, people in high command posts who have given the orders to commit internationally proscribed atrocities are usually covered by the utmost impunity. Those which would be included in the definition as those most responsible as defined by international criminal courts.
Despite the fact that the Office of the Prosecutor has admitted that it has taken note of this, the Presidential Commission requests that the reports and other documentary files compiled out by international organizations, including the International Mission for the Determination of Facts and by national organizations and international civil society be taken into account that attest to the absolute impunity that prevails in Venezuela.
In order to avoid generating a false opinion matrix, the Presidential Commission warns that the impartiality of the ICC Prosecutor’s Office should not be called into question for holding working meetings with authorities of the Public Ministry and the de facto Ombudsman’s Office.
It is a good practice for the Prosecutor to hold this type of meeting with representatives of such institutions in order to learn about the possible investigations that exist regarding the crimes included in the preliminary examinations underway.
As an example, it is worth mentioning the similar meetings that, at the time, were held with the Attorneys General of Colombia and Uganda. Thus, the foregoing does not imply that the impartiality of the Prosecutor’s Office is compromised.
The Office of the Prosecutor concluded the Report presented today, December 14th, 2020, announcing that it anticipates concluding the preliminary examination for the first part of 2021 in order to verify whether there is a reasonable basis to proceed with an investigation.
In this regard, this Presidential Commission trusts that the preliminary examination process will conclude in the aforementioned time and its result should point to a positive accreditation from the Prosecutor’s Office to open the investigation. Therefore, we reiterate our trust and support in the institutions of the international community and we hope that the ICC Prosecutor’s Office will act in accordance with the demands of the historical moment, so we expect a change regarding its assessment of the time scale and jurisdiction, and the material regarding the exclusion of murder as a crime against humanity.
Therefore, from this office of the Presidential Commissioner, we encourage civil society to continue sending information to the ICC Prosecutor’s Office. Especially aimed at contributing to the analysis of phase III that is currently being examined.