After two years and nine months of having initiated a preliminary examination of the situation in Venezuela aimed at determining the possible existence of reasonable grounds to believe that crimes under the jurisdiction of the International Criminal Court (ICC) may have been committed or are being committed in this territory, the Office of the Prosecutor has announced today the successful completion of the analysis corresponding to the possible jurisdiction that the ICC would have to hear these and consequently, the advancement to phase III of the preliminary examination.
Furthermore, it is necessary to recall that according to articles 11, 12, and 13 of the Rome Statute of the ICC (RS), the referred Court can only exercise its jurisdiction after the accreditation of the competence: (i) temporary, (ii) material, (iii) territorial, or (iv) personal for a determined situation. Premises that were being evaluated by the Office of the Prosecutor during the recently concluded phase II of the preliminary examination.
The first of the above-mentioned requirements imposes, as a general rule, that the alleged crimes have been committed after the entry into force of the RS (Rome Statute) for the respective State. As for the second, it is imperative that the violating conduct can be subsumed under one of the crimes under the ICC’s jurisdiction, namely: genocide, war crimes, aggression or Crimes Against Humanity. The third and fourth requirements are that the alleged crimes must have been committed in the territory of a State Party or by its nationals. The latter elements are alternative, and it will therefore be sufficient to prove one of them in order to assert the jurisdiction of the international tribunal.
Thus, today the Office of the Prosecutor of the ICC, preceded by Fatou Bensouda, has indicated that there are reasonable grounds to believe that the Crimes Against Humanity of murder, imprisonment, sexual violence, persecution, forced disappearance, torture, and other inhumane acts have been committed in Venezuela by nationals of the aforementioned State, since at least 2014. Declaration affirming the temporal, material, territorial, and personal jurisdiction of the ICC in an eventual formal investigation
As a result, the preliminary examination of Venezuela has moved to a new phase, in which the Office of the Attorney General will have to examine admissibility criteria composed of (i) the gravity of the crimes and (ii) complementarity. With respect to gravity, Article 29(2) of the Regulations of the Office of the Prosecutor General requires that, among other factors, accreditation be taken into account:
1. The scale of the crime: assessing the geographical extent, duration, and number of victims affected by the crime;
2. Nature: the crimes of murder and rape are considered particularly serious;
3. Form of commission: crimes committed with abuse of power (de jure or de facto) against particularly vulnerable victims are considered particularly serious;
4. Impact: the social, economic, or environmental damage caused by the crimes must be taken into account.
Finally, with respect to the principle of complementarity established in the preamble of the RS (Rome Statute), the ICC can only take cognizance of a situation when the State called upon to exercise its jurisdiction (in this case, Venezuela) is unable or unwilling to do so by virtue of the provisions of Article 17 of the RS. Thus, a State is considered to lack capacity or willingness when, among other factors:
1. It has not carried out genuine investigations or prosecutions
2. Has incurred an unjustified delay in the process that, given the circumstances, is incompatible with the intention to bring the person concerned to justice;
3. The proceedings have not been or are not being conducted in an independent and impartial manner.
With respect to the latter, there are no investigations in Venezuela aimed at determining the criminal responsibility of middle and high ranking officers who may have executed, ordered, or consented to the implementation of the CAH under preliminary examination. For this reason, the few investigations of lower commanders that the Prosecutor of the regime, Tareck William Saab, could claim to have accredited would not be sufficient to avoid the intervention of the ICC.
By virtue of the foregoing, the Presidential Commissioner for Human Rights and Attention to Victims, Humberto Prado, welcomes the decision of the Office of the Prosecutor of the ICC and trusts that phase III of the preliminary examination on Venezuela will be successfully completed and that, finally, a formal investigation will be initiated for the crimes that have occurred.
In the same vein, he congratulates the documentation work carried out by civil society, whose contributions have been fundamental in denouncing the atrocities carried out in Venezuela.
From the Commission we reiterate our solidarity with the victims and our commitment to continue accompanying them in all the necessary instances. Likewise, we urge the Office of the Prosecutor of the International Criminal Court to deal with the situation in Venezuela quickly, since only to the extent that this happens will it be possible to obtain true justice.