This historic procedural victory in The Hague dignifies the victims and refutes autocratic legalism. The decision opens the way to individual responsibilities of the alleged perpetrators of crimes against humanity, that is, to senior officials in the chain of command. A period of evidentiary assessment is enabled, which will lead to the trial and sentencing phase.
Allegations dismissed by the ICC
The Appeals Chamber (SA) unanimously rejected each of the arguments presented by Venezuela. Judge Marc Perrin de Brichambaut, who presides over the SA of the ICC, read the ruling that overturned, one by one, the allegations filed by Venezuela’s lawyer, the Englishman Larry Devoe, who appealed in August 2023 the decision of the Preliminary Matters Chamber (SCP) that authorized the investigation.
Venezuela raises six grounds of appeal. i.- Maintains that the SCP was wrong to impose the burden of proof on the Venezuelan State, and to accept the Prosecutor’s notification of its intention to investigate, despite procedural deficiencies. To this argument the Prosecutor replied that in Venezuela there are no genuine investigations, justice is not independent, and Venezuela has not proven otherwise. It adds that the investigated State – which requests postponement of the investigation – has the burden of proof as stated in article 18 (1 and 2):
“1.-When a situation has been referred to the Court under Article 13 a) and the Prosecutor has determined that there are reasonable grounds to begin an investigation, or the Prosecutor initiates an investigation under Articles 13 c) and 15 , it will notify all States Parties.”
2.-“Within the month following receipt of said notification, the State may inform the Court that it is carrying out or has carried out an investigation in relation to its nationals or other persons under its jurisdiction regarding criminal acts that may constitute crimes contemplated in article 5 and to which the information provided in the notification to the States refers.” This was reported by Prosecutor Khan.
ii.-Venezuela argues that the SCP erred by relying exclusively on English translations of selected case files; not requiring translations of information relating to domestic investigations and not reviewing English translations of case summaries. The Prosecutor responded that the official language of the ICC is English and French, and, based on this, he evaluated relevant evidence. Likewise, (The Prosecutor) denounced procedural bad faith on the part of the Venezuelan State for attempting to “flood and suffocate” the file of hundreds of pages with testimonials and irrelevant incidents.
iii.-Venezuela maintains that the SCP made an error when basing itself on the temporal scope of the Situation sent to the Prosecutor by six States Parties. The Prosecutor responded that the Venezuelan State confuses the temporal scope of the situation with the temporal scope of the Court’s jurisdiction. In other words, the temporal determination contained in the referral (complaint) of the State Parties (Argentina, Colombia, Canada, Paraguay, Chile and Peru) does not limit the temporal scope that the ICC can investigate. The Prosecutor proved that crimes against humanity had been committed since February 2014, the scope of which is within his powers.
iv.-Venezuela argues that the SCP was wrong to conclude that it was necessary for internal investigations to cover contextual elements (linked) to crimes against humanity, discriminatory intentions, and sexual and gender crimes. This argument was refuted by the Prosecutor’s Office and the Victims’ Office, clarifying that sexual and gender crimes have had to be investigated in Venezuela in the context of crimes against humanity typified in Article 7 of the Rome Statute as f) Torture and g ) Rape (…) or any other form of sexual violence of comparable severity (and other criminal types).
v.-Under the fifth ground of appeal, Venezuela maintains that the SCP committed a legal error in its evaluation of complementarity by relying on irrelevant factors. This allegation was rejected by the OF, demonstrating that Venezuela has not provided relevant evidence of genuine investigations, trials, or convictions of those allegedly responsible for crimes against humanity, which is why the complementary jurisdiction of the ICC is enabled.
vi.-Finally, Venezuela argues that the Preliminary Chamber (SCP) erred in excluding national procedures from its determination, on the basis that there had been delays and periods of inactivity. The response from the OF and the Victims’ Representative Office was that there are not only delays but also the absence or non-existence of judicial processes that investigate crimes against humanity, in addition to high-ranking officials and the chain of command.
The Appeals Chamber of the ICC – in effect – rejected each of the allegations of the Venezuelan State and confirmed the arguments of the Preliminary Issues Chamber, the Prosecutor’s Office and the Victims’ Office.
Brief history of a justice that takes time but arrives
In November 2021, Venezuela became the first country in Latin America in which the ICC opened a formal investigation, after British prosecutor Karim Khan announced the opening of the case known as “Venezuela I”, for alleged crimes against humanity. . Last year, the Maduro government appealed the ruling that resumed the investigation, arguing that the principle of complementarity should be respected, according to which an international court complements national justice and can only intervene if a country is not investigating in the same cases. crimes. The ICC SA unanimously rejected the appeal allegations, giving the green light to the ICC Prosecutor’s Office to resume investigations into abuses by security forces (2017) that left 125 dead.
Caracas requested in April 2022 to postpone the ICC investigations to leave them in the hands of the Venezuelan authorities. However, seven months later (November 2022), the Prosecutor asked the Preliminary Chamber (SCP) for authorization to resume the investigation, arguing that Venezuela was not doing enough in the case. The SCP ordered the investigation to continue in June 2023. Venezuela appealed.
In the November 2023 hearings before the Appeals Chamber, the Venezuelan Foreign Minister, Yvan Gil, stated that national justice was already acting and mentioned that more than 255 State agents had been charged, 64 accused and 62 convicted in cases of human rights violations, which are of interest to the ICC…Gil regretted that the ICC did not respect the principle of complementarity. In response, the prosecutor noted that his investigation was in the preliminary phase and it was unreasonable to identify suspects or establish the scope of the case.
Venezuela maintains that Article 18 of the ER “is based on a presumption in favor of national investigations”, therefore the Prosecutor is obliged to substantiate his request under Article 18(2) in comento (Rome Statute) by demonstrating that the information transmitted by the State does not reflect the scope of criminality, established in the notification, according to Article 18 (1).
The Appeals Chamber (SA) notes in this regard that the Preamble of the Rome Statute (RS) stipulates that an “effective prosecution” of “the most serious crimes of concern to the international community as a whole” “must be ensured through adoption of measures at the national level. The Preamble also imposes on each State “the duty to exercise its criminal jurisdiction over those responsible for international crimes.” Therefore, although the ER does not expressly impose on States Parties the obligation to incorporate crimes against humanity into their domestic legislation, the duty to exercise criminal jurisdiction over “those responsible for international crimes” does underlie it. The Appeals Chamber agrees in this regard with the Pre-Trial Chamber that “in general, States Parties are encouraged to incorporate the Statute into their domestic legislation.”
There is jurisprudence in the ICC that determines “it is the alleged conduct, as opposed to its characterization or legal classification, that matters when evaluating whether the domestic case sufficiently reflects the case before the Court.” Hence rape, sexual abuse, any form of sexual violence; political persecution or any punishable act must be sufficiently contextualized with the Rome Statute regardless of whether domestic legislation provides for it.
The duty to prove that justice is done
The Appeals Chamber emphasized that the conclusion of the Preliminary Chamber regarding the burden of proof of crimes against humanity according to the ER, corresponds to the States Parties. The Appeals Chamber considers that the guiding principle of contextualization and the duty of States to investigate is the spirit and purpose of Article 18. Although a State that requests a postponement of the Prosecutor’s decision to investigate is not required to prove that investigates alleged criminal acts under the legal classification of crimes against humanity, if (the State Party) must prove “that its investigations are genuine and (its) internal prosecutions cover the factual allegations that support the aforementioned contextual elements.” That is, even if domestic legislation does not characterize crimes against humanity – such as torture, forced disappearances, political persecution, etc. – this does not exempt the State’s duty to investigate punishable conduct related to crimes against humanity.
In conclusion, the Appeals Chamber of The Hague has agreed with the Pre-Trial Chamber, the Prosecutor and the Victims’ Office. It has rejected each of the allegations of the representation of Venezuela, generating jurisprudence and historical precedents, where the lack of internal typicality or the existence of irrelevant investigations do not excuse compliance with the ER and the rules of procedure and evidence.
We are going to a rigorous international criminal investigation. Those responsible for crimes against humanity will be effectively investigated, summoned, summoned, and captured. We are not talking about low-level officials. The ICC goes after high-ranking officials. The autocratic legality of the regime has been laid bare. It was demonstrated that there is no justice in Venezuela, so international criminal justice complements it legally and legitimately.
The professionalism, efficiency and ethics demonstrated by the magistrates, the Prosecutor’s Office and the Victims’ Office have been impeccable. Furthermore, a great lesson: artifices, lies and formalities do not prevent us from getting to the bottom of things, nor are they valued within the framework of the procedural fairness of the ICC.
It is the triumph of truth, of justice, of the victims. A noble and historical precedent. Change the game. The government and its chain of command are under investigation, which is nothing other than validating the suspicion that aberrant crimes are committed in Venezuela under the protection of an autocratic and repressive legalism.
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