Even though the former chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, could not keep her word and announce whether or not she would open an investigation against Venezuelan officials, former officials, and individuals acting on behalf of the Venezuelan State for the alleged commission of crimes against humanity in the country, chances are that Venezuela could become the first country in the Americas to have an investigation opened against some of its nationals at the Hague-based Court. This is evident not only in the actions of the Gambian jurist but also in the decisions and the U-turns made in recent months by the Maduro Government and the Venezuelan Public Ministry on certain issues.

Acceso a la Justicia considers it appropriate to make a review of these maneuvers and contextualize them, especially when some people have expressed that the actions of the attorney general appointed by the questioned National Constituent Assembly, Tarek William Saab, have served to neutralize a possible international probe.

Certainly, the request for judicial control that Saab’s office presented to the ICC’s Pre-Trial Chamber on May 26 prevented Bensouda from announcing whether she considered that an investigation should be initiated for the commission in Venezuela of crimes contemplated in the Rome Statute and the determination of responsibilities.

“With respect to Venezuela I, I had committed to reaching a final determination, to the extent possible, during the remainder of my term,” said the former ICC prosecutor in her farewell end of term statement, published on the same day as the prosecutor was leaving her post, in which she also stated the following:

“Perhaps in anticipation of that outcome, as you may have seen reported in the media, the Pre-Trial Chamber was seized with a filing by the Government of Venezuela requesting the Chamber to exercise judicial control over the conduct of our preliminary examination.”

On June 15, the Pre-Trial Chamber responded to the appeal, but due to the confidentiality requested by the Venezuelan Government, its content was not made public. However, the Venezuelan Public Ministry issued a statement declaring that the Chamber’s decision did not get into the merits of the matter but did recognize the cooperation of the Maduro Government with the Prosecutor’s Office and invited the latter to continue cooperating in the investigation on the situation in Venezuela.

Neutralizing the sources of concern

The first maneuver occurred at the end of March when Nicolás Maduro issued a decree ordering the restructuring of the Bolivarian National Police (PNB). The measure that appeared in Official Gazette No. 42,105 on April 13, gave six months to relaunch “[the body’s] original doctrine of being essentially a preventive police body that functions in close proximity with the community, to protect and project authority (…) and efficiently guarantee the broader security and peace of the Venezuelan people.

The police body has been accused of committing a significant share of the 6,856 extrajudicial killings that took place in the country from 2017 to May 2019 and that were recognized by the Government before the office of the United Nations High Commissioner for Human Rights, Michelle Bachelet. The accusations have been particularly directed against the body’s controversial Special Actions Forces (FAES), created in 2017 by Maduro to fight organized crime.

In January 2021, several members of this group belonging to the National Bolivarian Police were accused of murdering twenty-three people during an operation in the Caracas neighborhood of La Vega, according to human rights organizations; The United Nations Independent International Fact-Finding Mission took due note of these remarks.

Thus, Bachelet’s call for the dissolution of the FAES should not come as a surprise, a request that Maduro has completely ignored. “All my support for the FAES,” he went on to say at the end of 2019.

With this maneuver, the Government seems to seek to avoid getting involved in the abuses committed by agents of the PNB and the FAES. However, this seems difficult, given that the September 2020 report of the UN Fact-Finding Mission has already stated that:

“State authorities – both at the presidential and the ministerial level – held and exercised their power and oversight over the civilian and military security forces and agencies identified in the report as perpetrators of violations and crimes documented, namely: the Bolivarian National Armed Forces, including the Bolivarian National Guard; the National Bolivarian Police, including its Special Action Forces; the Scientific, Criminal and Criminological Investigator Corps; municipal and state police forces; the Bolivarian National Intelligence Service; and the Directorate General of Military Counter-intelligence.”

In the same sense, we must interpret a second decision of the Maduro government, adopted on May 12, ordering the Bolivarian National Intelligence Service (Sebin) and the General Directorate of Military Counterintelligence (DGCIM) to hand over all the prisoners under their custody to the Ministry of the Penitentiary Service.

Both Bachelet and the Mission accused the Sebin and the DGCIM of committing arbitrary detentions and of torturing and ill-treating the prisoners in their power. For example, opposition councilor Fernando Albán was assassinated on October 5, 2018, in the headquarters of the Sebin, located in Plaza Venezuela, Caracas. At first, the authorities wanted to pass off the crime as a suicide, but on May 1 the attorney general appointed by the questioned National Constituent Assembly, Tarek William Saab, admitted that this official version was not correct.

For his part, Captain Rafael Acosta Arévalo died at the Dr. Vicente Salias Military Hospital on June 29, 2019, after collapsing while in court due to the mistreatment he received from his guardians, DGCIM agents, according to the official version. The military officer was arrested for his alleged participation in a coup and an assassination plot against Nicolás Maduro, as reported by the Public Ministry under the orders of the National Constituent Assembly.

Make-believe justice

So far, the authorities’ most important maneuver in their attempts at deactivating a possible process in The Hague has been deployed by Saab, who, in a U-turn from previous declarations, announced that university student Juan Pablo Pernalete was killed by a tear gas canister fired by an officer of the national guard during a protest in April 2017.

Although the Public Ministry during Luisa Ortega Díaz’s administration had already announced that the young man had been killed by the illegal actions of military personnel, the executive branch maintained that he had been killed by another protester with a bolt pistol.

Almost four years later, Saab acknowledged that his predecessor was correct, although, of course, he ignored this detail. “This young man died when he was hit with a tear gas canister in the chest,” he said at a press conference, where he also announced that “twelve officers [of the National Guard] were indicted for the crime of pre-intentional homicide with a degree of corresponding complicity”.

That same day, he also acknowledged that Councilor Albán was indeed killed by his guardians and did not commit suicide by jumping from a window on the 10th floor of the Sebin headquarters in Plaza Venezuela, as he had stated back on October 5, 2018.

These changes are not for free, they seek to show that human rights violations are being investigated in Venezuela and prevent the action of the ICC, which is guided by the principle of complementarity as explained by the organization Lawyers without borders:

“The principle of complementarity gives primacy to national jurisdictions to effectively investigate and prosecute those responsible for crimes against humanity, war crimes, and/or genocide committed in their territory unless the State shows a lack of will and/or capacity to comply with its obligation to administer justice”.

Is Saab’s U-turn in the cases of councilor Albán and university student Pernalete enough to spare them from a possible investigation in The Hague? This should be assessed by the body, but it looks unlikely in the light of the report of the UN Fact-Finding Mission that recalls that the crimes committed in Venezuela could not have occurred without the consent of high-level authorities, who in consequence must respond before justice.

Reform?

A fourth maneuver took place on June 21, when Maduro announced the creation of a special commission for the reform of the justice system, which will be chaired by Diosdado Cabello and Cilia Flores, members of the government-controlled National Assembly, and by Magistrate Lourdes Suárez Anderson, President of the Constitutional Chamber of the Supreme Tribunal of Justice (TSJ).

This new reform seeks to solve in sixty days the overcrowding of the Preventive Detention Centers and also “take on the complete revolution of the justice system, which will integrate all its organs.” The commission is expected to report to the Council of State, and its conformation is yet to be announced.

According to article 251 of the Constitution, the Council of State is a higher consulting body of the Government and the National Public Administration made up of nine members: the Executive Vice President, five members appointed by the President of the Republic; a representative appointed by the National Assembly; one member appointed by the Supreme Tribunal of Justice and one governor appointed by the set of state leaders. In other words, the Executive Branch prevails with six of nine members.

All of the above seems to indicate that two members of the government-controlled Parliament, one of them Maduro’s wife, are going to be tasked with solving the problem of overcrowding and are going to report to a body where the executive branch has primacy. All while the Highest Court is kept on the sidelines. Only one magistrate is part of the commission, and only one magistrate will act in the Council of State.

The decision raises doubts, especially due to the measures the commission could adopt to decongest the Preventive Detention Centers, which must avoid promoting abuses, unfairness, or impunity while taking into account that judges do not take a step without consulting their decisions with the presiding judge of the Criminal Circuit, as indicated by the UN High Commissioner in her report of July 15, 2020. However, we can expect to see the decisions taken by the Commission in question and approved by the Council of State before they can be implemented.

There are also reasons to doubt the effectiveness of this type of action. It is enough to remember that back in 2020 Maduro had announced another shake-up to the judicial system that would be headed by the questioned Constituent Assembly, only to be forgotten in a sea of announcements.

How does this affect Venezuelans?

The authorities’ maneuvers have only one purpose: shielding themselves from a possible international process. These actions seem to reveal the fear and anguish that engulfs the political and military elite in the face of a hypothetical investigation, given that the announcement that former prosecutor Bensouda was prevented from making was neither an accusation nor conviction; it would simply be the announcement of the beginning of an investigation that could take years. However, the Venezuelan authorities have once again put their interests above the interest of the victims and have ignored their anxieties and their legitimate right to seek justice, inside and outside the country. Also, they have done so in violation of Article 29 of the Constitution requiring “investigating and punishing crimes against human rights.” 

Translated by José Rafael Medina