What to Expect From the Visit of the ICC Chief Prosecutor

Karim Khan arrives in Venezuela to decide whether to close or advance the investigation on crimes against humanity. The relatives of some victims and experts share their expectations

How did this process start?

On September 27th, 2018, Argentina, Canada, Chile, Colombia, Paraguay and Peru filed a report before the Office of the Chief Prosecutor of the International Criminal Court (ICC), on human rights violations and crimes against humanity in Venezuela as per the Rome Statute, committed since February 12th, 2014. After that, by an initiative of Fatou Bensouda, the chief prosecutor at the time, the remission known as Venezuela I entered the preliminary exam that’s going through the third of four phases, awaiting for Karim Khan to start the fourth phase of Interest of Justice, better known as the investigation phase. 

When she left the position, Bensouda recommended the case enter the investigation phase.

What’s phase 3?

At this moment, in phase 3, the ICC is checking if Venezuela I is being properly investigated by the Venezuelan State, which is who must do it in the first place. The ICC doesn’t replace the State’s responsibility on preventing and punishing international crimes. 

In phase 1, the possible crimes were identified. In phase 2, those crimes were evaluated with information provided mostly by civil society organizations. Now, in phase 3, the ICC must assess if those crimes are admissible according to its criteria. 

The information provided by the NGOs made it clear that the State had policies to respond to the nationwide unrest, such as the Guaicaipuro and Zamora repression plans, which resulted in massive violations of human rights by security forces. This pattern was present all over Venezuelan territory. This is why these crimes are considered crimes against humanity, one of the four kinds of crimes under the competence of the ICC.

So far, the high-ranking officials involved have neither been investigated nor processed. 

What does the relief of Prosecutor Bensouda by Prosecutor Khan mean for Venezuela I?

According to Fernando Fernández, criminal attorney and director of Monitor de Derechos Humanos, Khan isn’t bound by Bensouda’s final recommendation: “He can widen the investigation and include other crimes, such as enforced disappearances mentioned in the OAS document and the remission submitted by the six member states. There’s already work that is hard to reverse, given that Khan’s team is mostly the same as Bensouda’s, and has been working thoroughly on the crimes committed in Venezuela. Additionally, the new prosecutor hired sixteen new officers, among them Claudio Grossman, who has huge knowledge of our country, after being part of the Inter-American Commission of Human Rights.” 

What’s the reason for Khan’s visit to Venezuela?

This is an institutional visit to discuss issues of the Venezuelan justice system. Nothing else. Alí Daniels, director of NGO Acceso a la Justicia, explains: “The purpose of the visit isn’t to condemn or absolve anyone, but to continue the preliminary exam. The prosecutor isn’t coming to approve the policies of the Venezuelan State, or to congratulate it. We need to be aware that a photo with a probable perpetrator doesn’t imply a validation of his innocence or guilt, we are not at that stage of the process.” 

However, given Khan’s experience, the visit could also bring more than just handshakes. For lawyer Mariano De Alba, “it will allow the prosecutor and his team to observe on the ground the diversity of information they have been gathering. The fact the visit is happening sends the message that Khan expects Venezuelan authorities, especially the Attorney General and the courts, to make tangible progress on the investigation and trials of those responsible. Khan will try to evaluate the steps or changes the Maduro government is supposedly making, and confirm how solid the conclusions reached by Bensouda are.” 

We can’t forget that on February 11th, 2020, the chavista government submitted the remission known as Venezuela II, which alleges the United States has been affecting Venezuelans’ human rights since 2014. This remission is also on a preliminary exam and, of course, will be discussed in Caracas with Khan.

Is there a link between Khan’s visit and the suspended negotiation in Mexico?

No. The dialogue in Mexico dealt with political issues, while the prosecutor’s visit will address only judicial matters.

Is Khan going to have meetings with the victims and their relatives?

No such meetings were confirmed by the time of writing. But even if there aren’t any meetings, the prosecutor already has a good deal of information coming from NGOs and lawyers in charge of several cases. Joel García, Juan Requesens and Roland Carreño’s lawyer, says: “Whoever meets Khan, must tell him that Venezuela is deprived of a proper structure to prosecute crimes against humanity committed in the country. First, our laws don’t consider the types of crime established in Article 7 of the Rome Statute. Second, we’ll never reach the top of the chain of command, where direct orders were issued to make the officers perpetrate torture and killings. Investigations can, for instance, lead to the sentencing of the sergeant that killed David Vallenilla or even know that the officers responsible for Captain Rafael Acosta Arévalo’s death didn’t torture him just because they wanted to, but because they were following orders someone else had given. Nothing else. So we really need the ICC to take a case right to the end, in order to effectively sanction all the criminals.”

Elvira Pernalete, the mother of Juan Pablo Pernalete, a student killed by the GNB, and member of Asociación de Familiares y Víctimas del 2017, says that “we want to be heard by Khan, not only on crimes against humanity, but also on the reigning impunity. We want him to include us in his schedule to have real, effective justice, after all these years without our kids.” 

Are recent releases and renovations of jails relevant for the ICC?

No. Daniels says it’s evident these reforms “are totally cosmetic and don’t change the generalized structural situation of human rights violations and crimes against humanity.” 

Not even including a paragraph in the Criminal Process Organic Code (COPP) to declare an apprehension invalid if it’s made without the constitutional exceptions is a relevant change, although the ICC could see this reform as a positive gesture from chavismo, because the ICC may ignore that since 2001, after Sentence 526 by the Supreme Tribunal of Justice (TSJ), arbitrary detention was normalized, and with it, the violation of due process and right to freedom.

According to García, this sentence has been followed for a long time, “so they must have included this new paragraph on COPP in September to make the ICC think they respect liberties.” In other words, to hide that extended arbitrary detention is the first step to commit other crimes, such as jailing three FundaRedes activists; a FAES officer torturing Lt. Franklin Caldera; SEBIN officers killing councilman Fernando Albán and PNB officers killing Wuilderman Paredes in Mérida; or the sexual abuse against judge María Lourdes Afiuni, among many others. 

Iván Toro, the coordinator of ULA’s Human Rights Observatory Law Department, says that the COPP reform “created norms such as the Law Against Hate, which has served to prosecute people for protesting, or to establish a pattern present in Mérida of linking university and community leaders with homicide cases. They say the COPP brings guarantees, but that can’t happen if the same judges and prosecutors enforce the laws supposed to check their actions, and the officers have no knowledge, autonomy or impartiality.” 

De Alba says that “the Maduro government seems to forget that the ICC was designed to seek investigation and trial of the highest-ranking people responsible for the crimes. As long as this isn’t happening, it’s very likely that the prosecutor will want to start the investigation phase.” 

What happened with the request of judicial control introduced by Attorney General Tarek William Saab in May 2021?

The Preliminary Questions Room of the ICC dismissed the request on June 14th, a day before the end of Bensouda’s term, a decision made public two weeks later. The challenge was declared inadmissible because it was premature, irrelevant, and not pertinent. Saab couldn’t appeal that decision. 

What can we expect from Khan during what remains of this year?

The ICC isn’t forced to open investigations, but it has to reach a decision on remissions. So a pronouncement from Khan is more likely than opening the investigation phase for Venezuela I.

What could happen after?

Khan can close the preliminary exam and avoid taking it to the investigation phase; can start phase 4; or can keep the remission in phase 3. Fernández says that the first scenario “is what the government wants, although it wouldn’t acknowledge the victims. The second scenario is what everybody except the government wants. The third scenario would allow the ICC to go deeper into what Bensouda didn’t document enough, such as killings, the crimes the ICC hasn’t considered as elements for analysis yet.” 

To go deeper into the current phase is part of what Carmen Arroyo, mother of Cristian Charris, killed by FAES, is demanding: “My son’s case is at the Office of the Fact-Finding Mission, the Office of the High Commissioner for Human Rights and Amnesty International. We just met with the commissioner in charge of the case in Venezuela and knew the government wasn’t paying attention to the demands the commissioner made to Attorney General Tarek William Saab and the Foreign Ministry… My case is three years old: the person who killed my son hasn’t been indicted or even suspended. That man is active, at El Helicoide, in the FAES tactic group that supports the CICPC operations. I’ve seen him several times and you can imagine what that means for me and all the mothers at the Organización de Familiares de Víctimas de Violaciones de Derechos Humanos. I implore Prosecutor Khan to not stop, because so far, we’ve been asking the murderer for justice.” 

How will phase 4 be?

Even if there’s no deadline for phase 4, more detailed investigations on the relevant events to prepare specific cases against concrete individuals would take place. The ICC doesn’t judge the responsibility of a State, but criminal individual responsibility. Fernández says that “all this would imply acting on the judicial and forensic levels. The ICC would require more evidence. Of course, the ICC would need cooperation from the authorities to require evidence and secure it for the trials.” 

This means an ICC team will move to Venezuela to investigate more, ensure follow-up and offer technical assistance to Venezuelan authorities to advance the investigations and trials.

What if Venezuela leaves the Rome Statute?

If the process remains open, it will continue, because the crimes were perpetrated while Venezuela was a signatory of the Statute. Naturally, leaving the Statute would prove the government wouldn’t cooperate.

Why are the crimes exposed in Venezuela I relevant not only to victims, their relatives, and lawyers, but also to all Venezuelans?

Daniels says that “when we talk about crimes against humanity, that means they are generalized and systematic, that they are state policy, so they affect the entire Venezuelan population, not only a particular group of individuals. Anyone who dares to dissent for being a political actor or just for protesting against a blackout can be a victim of repression. We saw it in Rufo Chacón’s case, a young man deprived of his sight just for protesting the lack of cooking gas.”