It is mandatory for this writer to address the statements made by the Prosecutor of the International Criminal Court (ICC), Karim Khan, in relation to Venezuela, in view of the pressure that the opposition led by María Corina Machado mobilized around the world on December 1, demonstrating that no factor is immune from being demanded to comply with its responsibilities.
This being so, Prosecutor Khan reacted, and at the annual meeting of ICC signatories, alerted Venezuela for its lack of “implementation of laws and practices” and insisted that the regime should release the detained children, as well as anyone who has peacefully protested, noting that “the ball is in Venezuela's court. The path of complementarity is running out” (see, in Spanish Agencia EFE, El fiscal de la CPI alerta a Venezuela..., in https://efe.com/mundo/2024-12-02/fiscal-cpi-venezuela-leyes-proteccion-derechos-civiles/) (highlighted our).
I was struck by this last sentence “The path of complementarity is running out” which could mean many things. The ICC Prosecutor cannot go beyond what is established in the Rome Statute, even if we Venezuelans are clamoring for an international justice that is nowhere to be found.
In an article I published 3 years ago, I explained the issue of the Principle of Complementarity in detail, concluding that the regime would try, and I was right, to evade crimes against humanity by hiding behind the admissibility rule of the cases presented before the ICC (see Karim Khan and the Principle of Complementarity, in https://ticsddhh.blogspot.com/p/karin-kham-and-principle-of.html).
That is why the Prosecutor demands from the country “laws and practices”, which we will never see for all the reasons we already know, and the main one is that those who should make those “laws and practices” that Khan mentions, are precisely those who have been accused of such crimes. And the ICC Prosecutor knows that. The ICC's jurisdiction is complementary and not primary. And perhaps that explains the delay we claim in deciding the Venezuelan case and the “exhaustion” of the Principle of Complementarity expressed by Khan in his statement. Could it be that the ICC is about to disengage from the Venezuelan case? Let's see again what the ICC says:
"To understand the concept of complementarity it is necessary to understand its alternative. The dilemma before the international community was to create an international tribunal that would have either primary jurisdiction or complementary jurisdiction. If it had primary jurisdiction, the ICC would have been able to act in any case, even if the national authorities were already dealing with it. The International Military Tribunal at Nuremberg (1945) and the International Military Tribunal for the Far East (1946), as well as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda of the 1990s, were part of this framework. The arguments in favor of a system based on complementarity eventually prevailed, mainly because States continued to defend their sovereignty. In fact, the ICC, as a voluntary treaty body, is linked to the consent of the ratifying States". (see in Spanish CPI, ¿Qué es la complementariedad?, in https://www.ictj.org/sites/default/files/subsites/complementarity-icc-es/).
If only the complementarity for the Venezuelan case at the ICC were exhausted, if that is possible! Then we could have an International Tribunal like those mentioned in that explanation of the ICC for the case of Maduro and his accomplices in crimes against humanity, without Venezuela having been immersed in a war with another country, but in the war that the government has been declaring for more than 25 years to all Venezuelans. And this is what Prosecutor Karim Khan is seeing, but also the criminals of the regime.
Could the ICC abandon this principle? In my opinion it is not possible to do so because it is based on a Treaty between States. The Rome Statute is an international treaty establishing the International Criminal Court (ICC) and was signed in Rome on July 17, 1998 and entered into force on July 1, 2002. The mentioned cases of primary jurisdiction occurred BEFORE the creation of the ICC, and the States that subscribed to that Statute gave privilege to their Sovereignty over justice. That is the reality.
Would it be possible that Maduro and his accomplices could be tried in the complementary jurisdiction of the ICC? I doubt it, unless Prosecutor Khan's expression in that statement implies that the ICC can move to a primary jurisdiction if the State in question refuses to carry out justice on its territory. Is that what Khan meant? Because that is precisely the Venezuelan case. And I believe, as Dr. Blanca Rosa Mármol de León, Magistrate Emeritus of the TSJ, specialist in the criminal area, points out, that time has passed:
“I don't think it's worth it anymore. I think we don't need it anymore. I think it took so long, but it took so long that the circumstances have changed here. Because here there were elections and the opposition won them overwhelmingly. So here there is going to be independence of powers. Here there is going to be an autonomous administration of justice and we are going to be able to make those judgments or establish the personal responsibilities that may arise. So it is no longer necessary. It is already so late, they already achieved what they wanted, I do not know who, I do not know if the Prosecutor realized it or the other one who also met in the café with the friend of the regime and all that history that we have witnessed. But what is certain is that they did it...” (see Dr. Blanca Rosa Mármol de León, “Es pasmosa e inexplicable la actitud del Fiscal Khan”, in https://youtu.be/hnvsEg6VzmI?t=95).
Dr. Mármol ratifies that justice delayed is justice denied. And in this case it has not been possible with the rules of the ICC to achieve that justice for Venezuela and the victims of this regime. This necessarily clarifies the panorama for the proposal of a Special Tribunal to judge the crimes of Venezuelan criminals against humanity, initially proposed by Gustavo Coronel in 2016 (see in Spanish Gustavo Coronel, Why it is essential to have a Venezuelan “Nuremberg”, in https://laprotestamilitar2.wordpress.com/2016/06/09/por-que-es-indispensable-tener-un-nuremberg-venezolano-por-gustavo-coronel-las-armas-de-coronel/), and later followed by Víctor Poleo in 2017, and his proposal to hold the trials in Maracaibo, Zulia State, as this city was originally named New Nuremberg (Neu Nürenberg) by Ambrosio Alfinger (see in Spanish Maracaibo was founded with the name Neu Nürenberg, in https://steemit.com/spanish/@nenio/maracaibo-fue-fundada-con-el-nombre-de-neu-nuerenberg-la-rocambolesca-historia-de-la-fundacion-de-maracaibo).
Today there is an urgent need for justice on Venezuelan soil after the recovery of the rule of law, as we pointed out when we joined this proposal a short time ago from this web space, and even more so after this unhappy statement by Prosecutor Kharim Khan (see Nuremberg, Venezuela, in https://ticsddhh.blogspot.com/p/nuremberg-venezuela.html). Let us stop wasting time and energy waiting for that complementary justice from the ICC, using them instead to recover our primary justice. As a basic principle, we should never expect someone else to do what we have the responsibility to do. With all we have been through, we should already be cured of that....
Caracas, December 4, 2024
Blog:
TIC’s & Derechos Humanos, https://ticsddhh.blogspot.com/
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luismanuel.aguana@gmail.com
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