Luisa Ortega Díaz went on the offensive during her press conference after the vote for the Constituyente. Faced with certain removal from office, she threatened the regime with alleged proof she has of crimes against humanity, adding that she would take it to international court if she’s removed from her post.
If her intention is to see those crimes punished, this may not be the best strategy. It may, in fact, just be an effort to save herself.
There’s an international consensus building that what is happening in Venezuela amounts to crimes against humanity. Luis Almagro has Luis Moreno Ocampo as his advisor on the subject and Moreno Ocampo, in turn, declared that the OAS Secretariat would hold hearings for two months to gather proof and decide on a way forward.
According to the Rome Statute of the ICC, Crimes Against Humanity exist when there has been a “widespread and systematic attack against a civilian population;” amounting to a very specific set of actions, including many of those documented directly and indirectly by the Maduro Regime. In her statement, Ortega Díaz claims to have proof that 25% of the killings which happened during protests, were perpetrated by state security forces, and 40% happened at the hands of armed civilians, “not to mention countless cases of torture, bodily harm, cruel punishment, arbitrary detentions, illegal and unwarranted entry into homes and destruction of private property.”
This may be enough proof that the actions occurred, but linking them with a widespread and systematic attack is the most difficult thing in this context. You need evidence of planners and an actual plan.
The second hardest thing to do is to get over the principle of complementarity. The ICC was designed as a last resort, meaning that states should be the primary prosecutors. The ICC can only claim jurisdiction when it’s convinced that a state is unwilling or unable to prosecute. While it may seem obvious to any Venezuelan that there’s no chance in hell that a Venezuelan Court will hear of Crimes Against Humanity by government higher-ups, this itself must be proven before the Court sends the case to trial.
If Ortega were to bring the case before the Court as acting Prosecutor General, it would all but prove that the complementarity principle is met. But by publicly waving around the international court card, she’s doing a disservice to her case: if it was likely that the government would dismiss her from her post before, now it’s pretty much a certainty. The gravitas provided by the authority of her post is, in and of itself, a crucial element that would grant weight to her allegations. It’s not the same to give testimony as former Attorney General, you know.
I personally welcome her newfound institutional stance with regards to Human Rights violations, but it strikes me as odd that she would choose this moment to speak out against the government. She’s in a unique position to gather evidence because of the post she currently holds, an advantage she would lose as soon as she is ousted. This is in contrast with Moreno Ocampo, who would have to rely on evidence gathering without authority and the testimony of those individuals who, having direct contact with the crimes, managed to get out of Venezuela.
That she would threaten to bring cases before international courts as a means of preserving her post –or head– on the eve of the Constituyente swearing-in, strikes me as odder still, even contradictory.
Her role ensuring the crimes get punished could be crucial, but her timing could be even more crucial. Bluntly stating that crimes against humanity have been committed, only to keep the proof to herself defeats the purpose of her statement. Why waste time in waiting? I hope she reads this piece, picks up the phone and emails whoever she has to, while she still has the chance.