The decision of the chief prosecutor of the International Criminal Court (TPI), the British Karim Khan, to open a formal investigation for crimes against humanity in Venezuela it is unprecedented in the history of the American continent. Never before has this step been taken, a notable qualitative leap compared to the phase of preliminary examination of the complaints in which the case had been for nearly four years.
The entry into this new stage of the process will allow the prosecutor to gather evidence on the ground, question persons under investigation, victims and witnesses, and request international arrest warrants, as established in the Rome Statute by which the Court is governed, also known as the Court
International Criminal (CPI).
Karim Khan, head of the ICC Prosecutor’s Office since last June, announced the opening of the investigation last Wednesday at the Miraflores Palace in Caracas, seat of the Presidency, together with Nicolas Maduro. The measure is reflected in a memorandum signed by both Khan and Maduro himself despite the regime’s resistance to advancing the phase. “The ICC prosecutor has concluded the preliminary examination of the situation in Venezuela and has determined that an investigation should be opened to establish the truth in accordance with the Rome Statute,” the letter states.
Karim Khan’s predecessor, the Gambian Fatou Bensouda, announced in February 2018 the opening of a preliminary examination of complaints of human rights violations at least since April 2017, when a wave of protests against the regime for its dictatorial drift was unleashed that were harshly repressed. Specifically, Bensouda reported, the security forces were accused of using excessive force to break up the demonstrations and of subjecting many detainees to abuse and ill-treatment. In September 2018, six ICC member states – Argentina, Chile, Colombia, Paraguay, Peru and Canada – asked to open the investigation.
After more than three years of analyzing the complaints, the former prosecutor left her successor a report that concluded that “civil authorities, members of the Armed Forces and pro-government individuals have committed crimes against humanity in Venezuela at least since April 2017.” . It was thus up to Karim Khan to decide whether to proceed to the next phase and open the formal investigation, which he finally announced on Wednesday.
It is a “historic decision”, in the opinion of the Venezuelan human rights lawyer Tamara Suju, promoter before the ICC of the cause against Chavismo. From now on the fiscal “It will delve into the cases in which there are sufficient elements that crimes against humanity were committed, and will begin the interpellation of the State to find out what actions they took in response to those crimes.” In this sense, the memorandum signed with Maduro seeks to “give him the benefit of the doubt” and check if he is really willing to reform the system and investigate abuses, says Suju, director of the Casla Institute. However, he doubts the interest of the Chavistas in clarifying crimes in which “they are up to their necks.” In any case, he points out, the new phase can drag on for years.
The legal basis
The measure has its legal basis in Article 53 of the aforementioned statute, which provides for the prosecutor to initiate an investigation taking into account whether the available information “constitutes a reasonable basis to believe that a crime within the jurisdiction of the jurisdiction has been or is being committed. Court “, if the case is admissible in accordance with the statute and if there are” substantial reasons to believe that, even taking into account the seriousness of the crime and the interests of the victims, an investigation would not be in the interest of justice. “
The Rome Statute indicates, in the following article, that the prosecutor, in order to “establish the veracity of the facts,” will extend the investigation “to all the facts and evidence that are pertinent to determine whether there is criminal responsibility in accordance with the present Statute “and” will investigate both incriminating and defending circumstances “, adopting” adequate measures to ensure the effectiveness of the investigation and prosecution of crimes within the jurisdiction of the Court. “
That same article 54 states that the prosecutor “may carry out investigations in the territory of a State,” gather and examine evidence, and “bring and question the persons under investigation, the victims, and the witnesses,” in addition to “requesting cooperation of a State or organization or intergovernmental agreement ”.
Article 58 regulates the possibility for the Court, at the request of the prosecutor, to issue an arrest warrant against a person to ensure that he appears at trial, that he does not obstruct an investigation or to prevent him from continuing to commit the crime in question.
The investigation does not exclude anyone by reason of their position. In fact, the Statute states that “the official position of a person, be he Head of State or Government, member of a government or parliament, elected representative or government official, in no case will exempt him from criminal responsibility or constitute per se motive to reduce the sentence ”(article 27). That means that Nicolás Maduro could be called to testify and, ultimately, prosecuted and convicted, says Tamara Suju. The lawyer includes among the alleged perpetrators the former Chavista prosecutor Luisa ortega, which in 2017 turned against the regime and is now also a complainant before the ICC. “He was in charge of a corrupt public ministry for ten years and was part of the installation of the repressive structure,” he says.