Repression in Venezuela during the Chavismo era is not a new phenomenon. It has occurred repeatedly in response to anti-government protests, provoking the exile of opponents and limiting—if not suppressing—democratic guarantees. Although the authoritarian tendency of Nicolás Maduro’s regime is broad and multifaceted, specific actions are being investigated by the International Criminal Court (ICC).
Among the aspects that the ICC is investigating in relation to Venezuela are acts of strong repression against opponents (or persons perceived as such) during protests against the regime in 2014 and 2017. These facts are similar to those observed after the presidential elections of July 28, 2024, in which the government fraudulently proclaimed its victory over Edmundo Gonzalez, the opposition candidate.
What we have witnessed in recent months-excessive use of police force, arbitrary detentions, among other atrocities, shows that the Venezuelan regime, despite its gestures in meetings with the ICC prosecutor, has no interest in bringing justice to the victims of abuses committed by State forces, nor in guaranteeing the non-repetition of these crimes. Therefore, the ICC’s response should be clearer in terms of promoting accountability for the crimes resulting from the repression of the protests, to provide answers in terms of justice for the situation in Venezuela and also to make its jurisdiction more effective in the face of systematic violations of human rights.
We show below that the Venezuelan case before the ICC is evidence of the Venezuelan State’s reluctance to comply with its international obligations and the persistence of the conduct that led the Court to open an investigation against members of the government. Furthermore, we argue that the ICC, in line with the principle of complementarity that activates its jurisdiction in the absence of domestic justice, should adopt more forceful measures that raise the political cost to the Venezuelan government for continuing to violate human rights.
International Criminal Justice
The International Criminal Court is an independent and permanent judicial body, created by the Rome Statute. Its purpose is to prosecute perpetrators of international crimes of particular gravity, such as genocide, crimes against humanity and war crimes. The work of the ICC encourages States Parties to the Rome Statute to investigate individuals who commit crimes against humanity and war crimes, thus contributing to efforts to end impunity.
The purpose of the Court is to complement, not replace, the national criminal justice systems of States that are party to the Rome Statute. Therefore, the principle of complementarity is fundamental to its action: the ICC only intervenes when national courts are unable or unwilling to act. It does not seek to compete with States for jurisdiction, but rather to ensure that the most serious crimes do not go unpunished.
In April 2024, ICC Prosecutor Karim Khan promulgated a policy on complementarity and cooperation. It emphasizes that partnership between the ICC and states to achieve justice is not incompatible with vigilance to ensure that the ICC’s mandate is fulfilled if necessary. The two elements are mutually reinforcing in achieving the purposes of the Rome Statute. The policy emphasizes a “twin-track approach,” where the Office of the Prosecutor seeks to cooperate with States to promote complementary measures, while maintaining its mandate to investigate and prosecute independently and impartially.
Venezuela and the International Criminal Court
Currently, there are two situations in Venezuela under the jurisdiction of international criminal justice. The Venezuela I situation has been under investigation since 2021, while the Venezuela II situation has been under preliminary examination since 2020. This analysis focuses on Venezuela I, since Venezuela II arises from a referral by the Venezuelan State with respect to the sanctions imposed by the United States.
The complaint for the events leading to the Venezuela I situation was brought by Argentina, Canada, Colombia, Chile, Paraguay and Peru in 2018, due to acts of state repression during the 2014 and 2017 protests, which included excessive use of police force, arbitrary arrests and abuses against detained persons. The then ICC prosecutor, Fatou Bensouda, initiated a preliminary examination that same year to assess whether or not to open a formal investigation.
In 2021, ICC Prosecutor Karim Khan decided to open the investigation in Venezuela I. As part of this decision, the Office of the Prosecutor signed a memorandum of understanding with Venezuela, in which the country committed to take measures to ensure the administration of justice, in accordance with Article 18(2) of the Rome Statute, which allows States to request extensions of the Prosecutor’s proceedings.
However, in June 2023, the ICC authorized the Office of the Prosecutor to resume the investigation, concluding that Venezuela is not adequately investigating allegations related to crimes against humanity. The Court found that the Venezuelan investigation focuses on low-ranking perpetrators, while high-ranking officials appear to be protected. In addition, it identified periods in which investigations were inactive without explanation and a lack of action on crimes with discriminatory motivations and possible sexual violence.
Following the rejection of Venezuela’s appeal to stop the investigation, the ICC Office of the Prosecutor, in line with Khan’s vision of complementarity, opened an office in Venezuela to provide technical assistance and promote effective administration of justice in accordance with international standards. So far, there is no information on progress in this cooperation.
The post July 28 repression
The post-election crackdown has resulted in multiple casualties. The Inter-American Commission on Human Rights has denounced that “the repression has reflected patterns already observed in the 2014 and 2017 protests,” including arbitrary use of force, detentions and forced disappearances, judicial persecution and harassment, censorship and restrictions on freedoms of expression and peaceful assembly, and obstacles to the defense of human rights.
In a similar vein, the UN Fact-Finding Mission has reported, as of August 8, 2024, 23 deaths, 1,260 arbitrary detentions, more than 100 of which are children. These figures contrast with those of the Venezuelan authorities, who report more than 2,000 people detained in the protests. In view of this situation, the ICC prosecutor has stated that he is “actively monitoring” the situation, although he has not issued a formal statement. In addition, the persecution of opponents and the monitoring of the use of social networks persist, limiting the visibility of human rights violations committed by the government.
Although the Venezuela I situation is still under investigation and there is still a long way to go at the ICC, government repression against protesters opposing the July 28 election fraud underscores the need for more forceful action by the ICC, as international human rights organizations, such as Amnesty International, have pointed out. Even a group of Venezuelan and international lawyers has requested coercive measures, such as arrest warrants, against Nicolás Maduro.
Justice for the victims of repression
While Prosecutor Khan’s vision of complementarity may strengthen the state response to international crimes, this should not be the only option for the ICC. The shortcomings found in the investigations, coupled with the repetition of abuses after the presidential elections under the same patterns that motivated the opening of the investigation in 2021, demonstrate that Venezuela does not seek to ensure justice for victims. Furthermore, the lack of independence of the Venezuelan judicial system reinforces the need for the ICC to move forward in the investigation and prosecute those responsible for the crimes that occurred both in 2017, as well as the most recent ones.
With an ongoing investigation and continued systematic violence, the ICC has the tools to advance in the prosecution of those responsible. In the absence of guarantees at the domestic level, despite the persistence of the ICC and its prosecutor’s office to support the State in overcoming impunity, Venezuelans need to find support from international bodies to put pressure on the government to stop human rights violations.
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