The report on the activities carried out during 2019 in relation to the open preliminary examinations, published by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) last December 5, which mentions, among other topics, the Venezuelan case (pages 18 to 23), has generated many expectations, and at the same time, confusion. Hence the importance of pointing out the current status of the process, which has not yet entered the investigation stage but has advanced, as it is in the second of four stages of evaluation by the Prosecutor’s Office.

Stages of the preliminary examination

First of all, it should be noted that on 8 February 2018, the Office of the Prosecutor of the ICC announced a preliminary examination of the events that took place between April and July 2017 in Venezuela.

This preliminary examination is not a trial, but rather a determination of whether there is a case or cases for such a trial to occur, and that, if it were to occur, it would not be against a government but against the individual perpetrators of the crimes subject to the Court’s investigation.

The first stage of the preliminary examination is the collection of information and the determination of its plausibility.

In the second stage, the Office of the Prosecutor establishes whether crimes within the jurisdiction of the Court, such as war crimes, crimes against humanity, genocide, or aggression, have been committed.

Stage three corresponds to the admissibility of the case, as well as the analysis of the nature and impact of the crimes. The most important aspect of this phase is to determine whether or not the country where the crimes were perpetrated is willing to prosecute and convict those responsible.

In stage four, the OTP decides whether or not it is in the interest of justice to bring the case before the Court.

The Venezuelan case is in phase two, that is, the collection of information to determine the facts that are considered crimes within the jurisdiction of the Court.

Contents of the Prosecutor’s Report

The first thing to note is that while the Office of the Prosecutor indicated that the initial investigation would be conducted on events occurring after April 2017, it has also sought to determine actions prior to and after that date: from February 2014 onwards. It has stated that it does so in order to “examine the potential linkage of those events to allegations of crimes committed after April 2017”.

From what has been said, it is clear that the initial investigation has extended its timeframe: it is no longer limited to events that occurred between April and July 2017, but will start in 2014 and even consider events that occurred after 2017, which will make it possible to include allegations of crimes over a much longer period than initially indicated.

In its report, the Office of the Prosecutor further notes that it is analyzing the following crimes in the Venezuelan case, all within the jurisdiction of the Court: murder and injury, deprivation of liberty, ill-treatment and torture, sexual and gender-based crimes, and persecution.

Acceso a la Justicia highlights that in the description of the cases of each of the crimes mentioned, the Prosecutor’s Office makes it clear that it is indeed considering crimes outside the initial period, since in the case of murder, for example, it points to figures from 2019 itself. This is very important insofar as the longer the time period analyzed, the easier it will be to determine that the crimes committed are the result of a State policy and not simply the individual responsibility of the final perpetrators, so that those who run the repressive apparatus are in fact the ones truly responsible for them.

It is important to clarify that the process before the ICC requires different legal elements than ordinary criminal law, since its priority is to determine those ultimately responsible for policies that generate crimes against humanity. Therefore, the identification of the material perpetrators is only part of the investigation, as the objective is to reach those ultimately responsible for such serious crimes to ensure that they do not occur in the future.

As important as the aforementioned point is that the Office of the Prosecutor indicated in its report that it “has almost concluded its assessment of the issue” corresponding to phase 2: whether or not crimes have been committed in Venezuela that fall within the jurisdiction of the Court. In this regard, the Office of the Attorney General points out that it has analyzed, among others, reports published by the Office of the United Nations High Commissioner for Human Rights, the Working Group on Arbitrary Detention and the Inter-American Commission on Human Rights.

The latter shows the importance of the denunciation work done by the international bodies described above and the transcendence that their reliability can have in facilitating the investigative work of the Prosecutor’s Office.

In conclusion, and as the highlight of the OTP report, phase 2 will be completed in early 2020, and if the outcome of that phase is positive, the admissibility of cases will be analyzed (phase 3), all the while collecting information on the commission of crimes within the jurisdiction of the Court. In this regard, what the UN Fact-Finding Mission does, which will be installed in January in Panama, will also be of great importance.

So, despite the fact that the preliminary examination of Venezuela began in early 2018, there are already signs that it will move to phase 3 next year; if compared to other cases such as Colombia’s, which has been going on for fifteen years, which, given the sterile situation of justice in Venezuela, is no small thing to say.

And how does this affect you, as a Venezuelan?

Any news that brings Venezuelans closer to a justice system that punishes those responsible for crimes against humanity affects us all, because these crimes are so serious that they go far beyond the direct victims, to the extent that such crimes are never isolated, but rather are the result of repressive policies of the State, for which its highest authorities must respond.

This being said, any advance in international justice, since little can be expected from national justice, means a breath of hope for so many in Venezuela who thirst for justice.

It is up to the State to ensure that the human rights of all citizens are protected. Since the arrival of Nicolás Maduro, reports of human rights violations and the registration of alleged crimes against humanity have increased. The possibility that the process before the ICC will move forward and lead to an investigation opens the door to the fight against impunity and the forgetting of the victims.