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.

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  1. Iris Valera recently made public calls threatening her with jail, even demanding her apprehension. Ortega must be scared as she should.
    If Ortega is the key for later prosecute all the regime crimes, all of her early sins should be forgiven.
    It takes courage to stand up to a dangerous Dictatorship like this so she is more than welcome.

  2. Leaving aside the legal issues, there are important practical problems with ICC:

    A. An investigation would take years. The ICC is very overburdened.

    B. An ICC investigation would provide the regime’s leaders an incentive to stay in power as long as possible in order to retain de facto immunity.

    C. While not necessarily encouraging other states to apply useful sanctions or other means of pressure.

    This crisis will resolve itself one way or the other long before the ICC even begins to step in. Far more useful would be to ASAP publicize evidence of crimes committed.

  3. The international criminal court is stupid. Don’t think for one second that any person is thinking about saving themselves from the ICC. Nobody is scared of being tried by some court in Brussels 20 years from now when their country is falling apart today.

    The ICC is completely counterproductive because if anything it incentivizes dictatorships to cling to power because they’ll never be tried as long as they control their own regime. The ICC has no army to invade a state to arrest people.

    The ICC is nothing but a stupid idealistic exercise in European self-righteousness to feel better about themselves. All the hundreds of millions of dollars wasted on the ICC to prosecute dictators and warlords in terrible places would go a lot further if it were invested in drone strikes.

  4. Smart observations. LOD should really get some legal advice. In all seriousness.

    She should not be making threats like this, as it just muddies the waters and constitutes some might argue, unprofessional prosecutorial conduct. To the extent that she would be before the ICC on the concerns she raises, it is as a witness (on the jurisdictional question).

    And that’s the fundamental problem about LOD: she is the key witness in her own case. That is an untenable position for a real Prosecutor, as distinct from the role she has been content to play until recently, which is as a tool of chavismo and it’s various and sundry interests.

    As for the legitimacy of the ICC which a commenter attacks here, the consensus is, at least since Nuremberg, that certain crimes should be prosecutable and punishable on an international level. Those trials, and the ones we have seen since, are instructive to humanity and serve to preserve in a reliable form the historical record of these crimes, and they also achieve some modicum of justice. The concept has come under particular attack in the USA in weak academic commentary in aid of some pretty obviously self serving concerns, summed up by I believe Donald Rumsfeld as: “stuff happens”. It’s not a compelling critique. People like Maduro do “stuff” for which they are properly held accountable.

  5. If the objective is to peel people from the regime in order to weaken the regime, you have to give people an out (folks like LOD). Transition to fair and democratic elections is what you want. We’re not going to get there if people don’t forgive pass sins….. think South Africa, etc.


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