Prosecuted but not sentenced

By Luis Manuel Aguana

We have all seen in the films the culminating moment when a jury of “twelve righteous men”, after having heard and examined the evidence and the expositions of the prosecutor and the defense, retires to deliberate, then to give his opinion of guilty or not guilty of a defendant in a trial. If the accused is found guilty, then it is up to the Judge to pronounce sentence.

Something similar has happened to the regime of Nicolas Maduro yesterday when the United Nations High Commissioner for Human Rights published his report on the observation of Human Rights in Venezuela, titled “Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017” (see complete Report in http://www.ohchr.org/Documents/Countries/VE/HCReportVenezuela_1April-31July2017_EN.pdf).  
                                                    
After reviewing the facts and analyzing all the evidence and arguments, the regime has been found guilty of violation of Human Rights by “a jury of 12 righteous men”, if we may call this way an impartial international body like the United Nations. The judgment of the Judge is still missing for those to whom it corresponds. But that will come later in another international instance called the International Criminal Court (ICC). I do not believe that the regime is fully aware of the gravity of the situation and denies it, as they deny the slightest justice to Venezuelans. Or perhaps it is, and that is why it came out to immediately reject the UN report (see Venezuela rejected a UN report on human rights in Venezuela, in http://www.eluniversal.com/noticias/politica/venezuela-rechazo-informe-onu-sobre-ddhh-venezuela_665157) thinking that with that weak argument can stop what comes next.

In this case, it is not for us to convince. Already the jury gave its verdict. And it is a verdict with which we Venezuelans totally agree because we suffered during the period of that Report, and we still suffer. But that's not the point at the moment. That the regime tramples on the Human Rights of Venezuelans is a common currency in Venezuela. What is important is that the evidence is certified by the international community as valid because they now come under the seal of the United Nations High Commissioner for Human Rights, through this Report published in Geneva on 30 August . This is completely new and decisive.

It is very important to specify that if there is something that has been difficult to demonstrate independently is that the acts that the government has done against Venezuelans are part of “a widespread or systematic attack directed against
any civilian population, with knowledge of the attack”, as established in Article 7 of the Rome Statute, creator of the International Criminal Court, as a definition of crimes against humanity (see Rome Statute of the International Criminal Court  
https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf); ); and that is what this Report of the UNHCHR has established despite what the regime says.

Certainly, previous steps have been taken before the International Criminal Court to accuse the regime of crimes against humanity, but have so far been completely unsuccessful (see Four complaints against Maduro in the International Criminal Court http://efectococuyo.com/principales/ya-son-cuatro-las-denuncias-contra-maduro-en-la-corte-penal-internacional). That is why we Venezuelans must know how things happen within the scope of this International Court in order to understand why so far it has not been possible to prosecute them, despite the obvious violations of Human Rights by Nicolás Maduro and the main people in charge of his government.

First, it is not enough to bring complaints to the ICC, however valid they may be, and wait for that instance to move. According to Article 13 of the Rome Statute, there are three competent authorities to initiate a process in the ICC: a) A State that signed the Statute; b) The UN Security Council; and c) the Prosecutor of the ICC by office: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court” (Article 15.1 Rome Statute) (see –in Spanish- Sobre la instrucción del proceso penal ante el Tribunal Penal Internacional http://perso.unifr.ch/derechopenal/assets/files/articulos/a_20080521_90.pdf).

So far, neither a State party to the Rome Statute nor the UN Security Council have taken the initiative to bring our case to the ICC. It remains for us to do so by letter of the Office of the Prosecutor (OTP) on the basis of documentation submitted for complaints that we generate, and which the latter deems sufficient to initiate the investigation, with the prior authorization of an ICC known as the Pre-Trial Chamber (PTC).

Then, a) if the ICC Prosecutor, now in charge of the ICC Chief Prosecutor, Fatou Bensouda, is convinced that there is sufficient ground to open an investigation, he must submit the petition to the PTC; and b) “If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.” (Article 15.4)”.

To date, there is only one Venezuelan case submitted for consideration by the ICC, but it has not passed the filters described above. In fact, the last processed by the ICC and published on its website were some complaints made since July 2002 and did not pass the preliminary examination of the Court, so the case was closed (see Case of Venezuela in https://www.icc-cpi.int/venezuela). So far there are only ten (10) cases under preliminary examination in the ICC, without even having begun the investigation: Afghanistan, Burundi, Colombia, Gabón, Guinea, Irak/UK, Nigeria, Palestina, Unión de Comoros, Ukraine (Ucrania) (see https://www.icc-cpi.int/Pages/Preliminary-Examinations.aspx).

So the path we have is long but not impossible. We must convince Prosecutor Bensouda that the premises of the Rome Statute have already been established. The fact that in the conclusions and recommendations the UNHCHR Report states: “The
Generalized and systematic use of excessive force during demonstrations and arbitrary
detention of protestors and perceived political opponents indicate these were not
illegal or rogue acts of isolated officials…” (P. 33), shows that it is the State that is applying the widespread and systematic persecution of the population, which is perfectly in keeping with the premises of crimes against humanity of the Rome Statute; which makes Nicolás Maduro and all those who mobilized the repressive state apparatus that caused the deaths, injuries, abuses and arbitrary detentions and enforced disappearances in Venezuela, subject to prosecution for Crimes against Humanity in the International Criminal Court at Hague. It remains for us to assert the verdict of the UN and ultimately the ICC Judge to determine the sentence.

Caracas, September 1, 2017

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