Can The Hague Bring Justice to Venezuela?
by Juan Carlos Portilla
Renzo Prieto was a student and a member of the Venezuelan political opposition at the time of his arrest in 2014, when members of President Nicolás Maduro’s Intelligence Service took him to El Helicoide, a detention facility and the headquarters of Maduro’s Intelligence Service that was notorious for being a center of brutal torture in Venezuela. Prieto never imagined that he would turn 31 years old while interned at El Helicoide for organizing demonstrations against Maduro. He spent four years unlawfully detained, where he witnessed torture, cruel treatment, and poor prison conditions.
Prieto’s torture and the crimes that he witnessed while in prison should trigger immediate action by the international community. In addition to unlawful detention and torture cases, Human Rights Watch claims that Maduro’s human rights violations include rids in low-income communities that have led to widespread allegations of abuse by Venezuelan security forces. As a result, more than 2.3 million Venezuelans have fled their homeland since 2014 due to an increase in civilian persecutions, violent crime, and food shortages.
However, Maduro controls the Venezuelan judiciary and it is therefore uncertain whether the Venezuelan government will prosecute him for his crimes. One must therefore ask themselves if international law provides avenues to bring Maduro to justice. While opinions differ and some international legal avenues may be inapplicable, insufficient, or even futile, international law could play a strong role in reigning in an out-of-control government. In particular, the Rome Statute of the ICC may hold the key to open the door for Maduro’s prosecution in The Hague.
In order to assess whether the ICC is the best route to prosecute Maduro, it is important to critically evaluate other available options in the international legal system. One such option is universal criminal jurisdiction by national governments. Under this principle, specific crimes may be considered as so serious that any country of the international community may have jurisdiction over the perpetrators of these international crimes. Some governments have invoked universal criminal jurisdiction to prosecute head of states and foreign ministers for international crimes. For example, Belgian courts are allowed to prosecute international crimes regardless of where or by whom the crimes were committed, although to date, Belgium has unsuccessfully attempted to domestically prosecute a former Congolese foreign minister for Genocide (the Yerodia Case).
Thus, under universal criminal jurisdiction, a foreign national government may prosecute Maduro in its domestic courts but it is not totally grounded under international law because it is solely based upon the nature of the crime. Universal jurisdiction does not consider the territorial principle, under which a country can prosecute crimes committed inside its territory. What is more, universal jurisdiction does not consider the nationality principle. Therefore, international law bars States from exercising universal criminal jurisdiction over international crimes committed beyond their borders. This means that this approach will do little good in bringing Maduro to justice.
Nor is the Inter-American System of Human Rights (IASHR) the vehicle to prosecute Maduro. The Inter-American System is mainly composed of two key international organizations: The Inter-American Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACTH). Venezuela is a member State of the Organization of American States (OAS); thus, subjecting it to the obligations set forth in the OAS Charter and the American Declaration of Human Rights.
While Venezuela falls under the jurisdiction of the IACHR, the Commission in fact has no powers to hold Maduro criminally liable for his crimes. Further, there is not a single international criminal tribunal within the IASHR under which a prosecutor could criminally investigate Maduro. Under the American Convention on Human Rights (the Pact of San Jose), the IACHR can receive and examine communications where a state party to the Pact alleges that another state party to the Pact has committed a violation of any human right set forth in it. Given this mechanism, OAS countries may bring any alleged violation to the Pact before the IACHR. Nonetheless, Venezuela’s denunciation of the Pact in September 2012 makes the IASHR insufficient to address such communications. Furthermore, Venezuela withdrew from the IACTH in September 2013, which left Venezuelans without judicial protection within the Inter-American System of Human Rights.
Neither is the use of force the solution. The UN Security Council may authorize collective action to bring Maduro to justice in order to maintain international peace and security in the region. However, the option of military intervention in Venezuela is legally uncertain because it is not clear if Maduro is a real threat to the peace and security of other countries in South America to the extent that it warrants the use of force.
The Responsibility to Protect (R2P) might be a potential solution, but there is a caveat: under this doctrine, states can take military action against another state for the purpose of protecting civilians from serious human right abuses committed there. Thus, the international community of states could invoke R2P in Venezuela to stop the abuses. Yet any authorization of force under R2P must be granted by the UN Security Council and it is unclear if member states will unanimously sign off on the use of force in Venezuela under R2P.
All roads lead to the International Criminal Court (ICC), operating under the Rome Statute of which Venezuela has been a signatory since July 2002, and under which the depravation of physical liberty in violation of fundamental rules of international law—such as the Prieto case, torture, and forced migration—are all crimes that fall under the ICC’s jurisdiction. The international community enacted the Rome Statute of the ICC with the goal of holding head of states and senior government officers criminally liable for organizing or participating in gross violations of human rights, which is why the ICC can be a proper forum in which to initiate a thorough criminal investigation of Maduro.
The ICC Prosecutor launched a preliminary examination under which the ICC is analyzing crimes allegedly committed in Venezuela since April 2017. Yet the ICC Prosecutor has made clear that a preliminary examination is not an investigation, but rather a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an official ICC investigation.
This means that the ICC Prosecutor is determining if the Venezuela situation satisfies the legal parameter set forth by the ICC to warrant a criminal investigation by her office. What does the ICC Prosecutor need more to move forward? More torture? More refugees? More persecution against members of the Venezuelan political opposition and students? French novelist Honoré de Balzac, has contended that international bureaucracy is a giant mechanism operated by pygmies. The ICC certainly qualifies as “international bureaucracy.” The situation therefore requires a different approach from the ICC Prosecutor. Justice cannot be at risk of erosion by a non-elected Prosecutor who operates under the complex structure of the ICC bureaucracy. There is no doubt that the ICC has the power, the jurisdiction and a historical opportunity at its hands to subpoena Maduro into The Hague and get the ball rolling with a serious criminal investigation that paves the way for justice.
Regardless of which legal mechanism comes into play, there is no doubt that the situation in Venezuela requires an urgent and strong response from the international community. The Rome Statute of the ICC authorizes the UN Security Council to refer to the ICC Prosecutor a situation in which one or more crimes that falls under the jurisdiction of the ICC appears to have been committed. Depravation of physical liberty in violation of fundamental rules of international law, torture, and forced migration are crimes that have been committed in Venezuela and are crimes that fall under this jurisdiction. Therefore, the UN Security Council should step in to enact a resolution referring Maduro to the ICC. Although the veto power held by any of the five permanent members (P5) of the UN Security Council may defeat such a referral in this scenario, a resolution referring the Maduro case to the ICC would be more appealing to the P5 than a resolution authorizing the use of force in Venezuela.
The hope to bring Maduro to justice seems to be vanishing as time goes on. Abuses keep happening right under the international community’s nose. While some of the international law venues may be inapplicable, insufficient, or even futile in the Maduro case, the UN Security Council and the ICC can mutually play a strong role to ensure Maduro’s prosecution. Actions speak louder than words, and both the ICC and the UN Security Council need to act now, on behalf of humanity, by bringing Maduro to The Hague.
Image: Eleicoes 2013 NA Venezuela
Courtesy of Joka Madruga / Flickr
Juan Carlos Portilla is a lawyer and former Visiting Scholar at Boston College Law School. He is representing before the Human Rights Committee of the United Nations two students of the Venezuelan political opposition, who are victims of unlawful detention in Caracas.
He previously worked for the government of Colombia. He graduated from Sabana University School of Law, Colombia, and holds a LL.M. in International Law from The Fletcher School of Law and Diplomacy, Tufts University.