I was satisfied, like many Venezuelans thirsty for justice against the criminal regime of Nicolás Maduro Moros, when I read the statement of the current Prosecutor of the International Criminal Court, ICC, Karim Khan, upon leaving Venezuela: "...As the Memorandum of Understanding makes clear and as I have stated publicly, the preliminary examination of the Situation in Venezuela (Venezuela I) has come to an end after a thorough and independent process with the conclusion that there is a reasonable basis to proceed with an investigation..." (see in Spanish Karim Khan's statement, "No suspects, but the investigation will determine the truth.", in https://www.elnacional.com/venezuela/no-hay-sospechosos-pero-en-la-investigacion-se-determinara-la-verdad-karim-khan-explico-el-estado-de-las-indagaciones-sobre-venezuela/
This meant that the already slow process, stalled by the former ICC Prosecutor, which was denounced for corruption and negligence, was back on track. (See in Spanish Walter Márquez, Departure of Prosecutor Fatou Bensouda closes cycle of corruption and negligence at the ICC https://www.elnacional.com/venezuela/walter-marquez-salida-de-la-fiscal-fatou-bensouda-cierra-ciclo-de-corrupcion-y-negligencia-en-la-corte-penal-internacional/).
It could be openly suspected that the regime had spared no resources to delay that case at the ICC in Bensouda's Office of the Prosecutor despite 6 States formally requesting the opening of the investigation to the ICC in September 2018 (see in Spanish Venezuela: Six governments in the region request ICC investigation, in https://www.hrw.org/es/news/2018/09/26/venezuela-seis-gobiernos-de-la-region-solicitan-investigacion-de-la-cpi). Immediately upon being notified of the decision of the States Parties to the Rome Statute, Prosecutor Bensouda was under a technical obligation to initiate such an investigation and failed to do so: "Where it has been a State Party that has forwarded information on the situation, the Prosecutor does not need the authorization of the SCP (Pre-Trial Chamber) to initiate the investigation, but must inform not only the referring State, but all States Parties and those that would normally exercise jurisdiction over the crimes in question, of his decision to investigate (Art. 18.1 of the Rome Statute)." (see in Spanish On the pre-trial proceedings before the International Criminal Court http://perso.unifr.ch/derechopenal/assets/files/articulos/a_20080521_90.pdf and Rome Statute, in https://www.oas.org/36ag/espanol/doc_referencia/Estatuto_Roma.pdf).
It has been more than three years since the Foreign Ministers of Argentina, Canada, Chile, Colombia, Paraguay and Peru referred the situation of Venezuela to the ICC Office of the Prosecutor, and now the new Prosecutor Karim Khan is unblocking the process. Khan did nothing more than fulfill his obligation to enforce the Rome Statute, as he publicly announced.
But now that the Venezuelan case is over, what is coming is much tougher, according to the Memorandum of Understanding between the ICC Prosecutor's Office and the regime of Nicolás Maduro Moros. (see in Spanish Memorandum of Understanding signed by Khan and Maduro, in https://www.noticierodigital.com/2021/11/memorandum-de-entendimiento-firmado-por-khan-y-maduro/). Former Prosecutor Bensouda was able to hinder the process, but now the regime is going to try to use the same rules of the creation of the International Criminal Court to delay it by using the so-called Principle of Complementarity, mentioned several times in that Memorandum. Let us see.
Article 1 of the Rome Statute states: "An International Criminal Court ("the Court") is hereby established. The Court shall be a permanent institution, shall have the power to exercise jurisdiction over persons in respect of the most serious crimes of international concern in accordance with this Statute and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute". (emphasis added)
What does this mean? It means that the ICC must prove that the crimes denounced are admissible to be tried by this international jurisdiction: "Even if the Prosecutor considers that there is a reasonable basis, or even if the information has been transmitted by a State Party or by the Security Council, as we have just seen, the hearing of the case by the ICC is not automatic, but is subject to a legal analysis of admissibility. Once it has been decided that the case is admissible, the injured party may challenge the corresponding decision. This obliges us to distinguish the admissibility of the case from its possible challenge" (see in Spanish On the Preliminary Criminal Proceedings before the International Criminal Court, Admissibility of the Investigation, http://perso.unifr.ch/derechopenal/assets/files/articulos/a_20080521_90.pdf
And why is this so? Because when the ICC was created, the intention was fundamentally that the crimes would be tried in the jurisdiction of the country where they were committed, and in the event that for any reason established in the Rome Statute itself they were not admissible, they would have to be tried in the courts of the corresponding country, in this case, Venezuela. But let the ICC itself explain it:
"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, ICC, What is complementarity?, in https://www.ictj.org/sites/default/files/subsites/complementarity-icc-es/). In fact, the ICC published a Complementarity Manual to explain to countries how far its jurisdiction extends and what they can expect from it (see ICC Handbook on Complementarity https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf).
The fight we will have in front of us from now on will be the ADMISSIBILITY of the cases that were presented before the ICC. And believe me, the regime will do everything possible to make those cases stay in Venezuela, INCLUDING MADURO's case. Hence you have seen that surprisingly the illegitimate Prosecutor Tarek William Saab has moved to prosecute cases where the regime had denied justice, such as the case of David Vallenilla, murdered in La Carlota and whose murderer had been acquitted. "Sergeant Arli Méndez Terán, accused of murdering student David Vallenilla in June 2017, was sentenced during the night of this Friday, October 22, to 23 years in prison, after the resumption of the trial that followed him for this case, included in the file that seeks to investigate the Venezuelan State at the International Criminal Court (ICC) for crimes against humanity." (see in Spanish https://efectococuyo.com/la-humanidad/militar-que-asesino-a-david-vallenilla-fue-condenado-a-23-anos-de-carcel/).
There the illegitimate Prosecutor Tarek William Saab, on behalf of the regime, was sending a clear message to the ICC saying that Venezuelan justice "does work", taking that case out of the set of crimes against humanity committed by the regime. And this is how they will proceed with the cases where they can sacrifice thugs like the case of that sergeant but saving the most important pieces. From now on we will begin to see that they will hand over to the local justice the material authors of the atrocities but leaving untouched those who have been the greatest orchestrators of those crimes in the main chain of command starting with Maduro and his ministers. It remains to be seen if those criminals will let themselves be slaughtered like cattle to leave the way clear for those most responsible.
But let's look at what the ICC says on the issue of admissibility: "The most relevant sections of the Rome Statute in this regard are found in Articles 17 to 20 and Article 53. Article 17 describes the three scenarios in which a case may be considered inadmissible: A. When the same case is already being dealt with by national authorities; B. When the national authorities, after investigating the case, are already dealing with the same case; C. When the case is inadmissible. When the national authorities, after investigating the same case, have decided not to try it; C. When the case has already been tried by a national instance." (see in Spanish Article 17: Standards for determining where a case is to be tried, in https://www.ictj.org/sites/default/files/subsites/complementarity-icc-es/). (resaltado nuestro). Scenario A is precisely the one on which the regime will seek to consolidate its position.
What is coming from now on will be a tough test for the purpose of bringing to jail those mainly responsible for Venezuela's tragedy, Maduro and his accomplices. This case is far from being legal, as many might think. Venezuelans had only a drop of water to quench our thirst in this desert of justice, with the unblocking of the criminal proceedings at the ICC. But rejoicing that after Karim Khan did her job in unblocking the process and reaffirming to the regime the complementary status of the ICC justice, signing a Memorandum of Understanding to work with Maduro, is not in my opinion the best reaction. For me it is just a reminder of how resilient we Venezuelans have the obligation to continue to be in order not to give up demanding and getting the justice that has been denied to the victims of the horrendous crimes against humanity that Maduro and his accomplices have committed. We will not rest until we have that justice, and that they pay for them. Do not be fooled...
Caracas, November 8, 2021
Blog: https://ticsddhh.blogspot.com/
Email: luismanuel.aguana@gmail.com
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Erratum: the initial publication of the article on November 8 erroneously indicated the name of the ICC Prosecutor as "Karin Kham" when the correct name is "Karim Khan". I offer readers my apologies for the inadvertent error.
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