A ‘Simulation’ of Justice: How Venezuela Tries to Fool the ICC

While attempting a narrative change over high-profile extrajudicial killings, the Maduro regime uses the Attorney General’s office to slow the ICC’s work

Over five years after the killing of 20-year-old student Juan Pablo Pernalete, his parents met in court 10 of the 13 National Guards investigated for the case. The other three soldiers were absent without notice, while the judge refrained from issuing arrest warrants and re-scheduled the preliminary hearing on 10 different occasions. The prosecutor pressed manslaughter charges against two men—both of which were absent from the preliminary hearing that day—and citing insufficient evidence, filed the cases of the remaining 11 National Guards.

The victim’s legal team maintains that, according to interviews from the Public Ministry with fellow GNB officials, the man who fatally shot a teargas canister against Juan Pablo’s chest is no longer under prosecution. The judge dismissed the accusation of murder, wrongful use of firearms and violation of international norms filed by the Pernalete family.

“If this is the treatment to an emblematic case, you can imagine what’s left to families in cases that are less public or notorious, the obstacles they have to face,” says Elvira Pernalete, Juan Pablo’s mother. Actually, that was one of the three cases Attorney General Tarek William Saab spoke of when the International Criminal Court was set to open an investigation into possible crimes against humanity committed by Venezuelan state actors since at least 2017. The other two were the cases of Navy Captain Rafael Acosta Arévalo, dead in custody after showing up to his preliminary hearing in a wheelchair and unable to articulate thanks to 38 torture-related injuries according to the autopsy, and Councilman Fernando Albán, who also perished in custody after four days in detention. Upon his death, Mr. Saab stated that he committed suicide by jumping from a restroom window in the 10th floor of SEBIN’s headquarters.

Saab’s stance on the Pernalete case was awkward from the very beginning. His son publicly challenged him to end injustices as the nation’s ombudsman, denouncing Juan Pablo’s killing by the GNB. After a rather dubious appointment as attorney general, Saab did not explicitly endorse the government’s version that fellow protesters killed Juan Pablo with a cattle gun. But in September 2017, he “re-opened” the investigation claiming that former AG Luisa Ortega Díaz had manipulated the evidence (Ortega Díaz was quick to establish that Juan Pablo was mortally wounded with a teargas canister in the heat of April 2017, before her sacking and exile).

Saab changed his narrative in May 2021. He admitted that Juan Pablo was shot in the chest with a teargas bomb and charged 12 officers. Regarding Acosta, he confirmed that two DGCIM lieutenants were being prosecuted. The Public Ministry would finally probe two suspects for the homicide of Albán.

“Since the event, we haven’t really had access to justice, there wasn’t a breakthrough,” says Meudy Osío, the widow of Fernando Albán. When the family’s legal team could see the case file after Saab’s announcement following three years of denied requests, they found it was “completely incomprehensible—the evidence wasn’t coherent with the state’s version.”

“All the information that we gathered was through unofficial means. The regime is not gonna give me the truth about Fernando, not the attorney general, not any of them,” says Meudy. “That’s why we have spoken to international bodies, and someday the truth about what happened to my husband will come to light.”

In December 2021, two SEBIN officials were sentenced to five years and 10 months in prison over the death of Albán. The agents upheld the state’s version, admitting to charges of involuntary manslaughter and favoring the detainee’s escape. A court of appeal reduced the sentence to two years and eight months, releasing the culprits for having served jail time during the proceedings. 

While both DGCIM lieutenants were sentenced to 30 years for the murder of Captain Acosta, all three cases present similar patterns despite somewhat different outcomes: a lack of accountability over numerous irregularities and disputed narratives about each death, a focus on less serious crimes, and the targeting of low-level security agents. “It’s necessary to investigate the chain of command. The DGCIM reports to the Ministry of Defense,” Alonso Medina Roa, the Acosta family lawyer, told El País

The International Criminal Court acts as a “court of last resort” under the Rome Statute to open investigations if national authorities fail to prosecute serious crimes. According to human rights lawyers Calixto Ávila and Emily Cole, the state’s goals with these three cases was a simulation of justice in the hopes of making the ICC look as if it was overstepping its role. With Saab at the helm, the Public Ministry’s cunning effort in these emblematic cases is part of a broader strategy to delay, discredit and obstruct the progress of the ICC investigation in Venezuela (first comprehensively described by Ávila and Cole here).

‘Abusive Litigation’

“The Venezuelan state has been trying to buy time to delay the ICC process to the maximum, making an abusive use of practices allowed by the Rome Statute,” says Calixto Ávila. The tactic comes in the form of litigation—such as appeals to decisions or requests for consultations with judicial organs in the Hague—expected to be rejected, which delays the process by weeks or months.

A key example of this strategy happened during the Preliminary Examination—when former Prosecutor Fatou Bensouda was still reviewing evidence on possible crimes against humanity and the genuineness of national proceedings. In May 2021, Saab requested the pre-trial judges in the Hague to review Bensouda’s performance, and to rule whether the Public Ministry in Caracas could see the evidence under examination. Saab called the ICC “not to be guided by political motivations.” As the Rome Statute doesn’t allow for judicial control during preliminary stages, the Pre-Trial Chamber rejected Saab’s request two weeks later. Finally, after all the delays, incoming Prosecutor Karim Khan announced the opening of the investigation (Venezuela I) in November 2021.

In response to the collective referral of Venezuela I, the state also requested Bensouda to investigate crimes against humanity committed through the imposition of US sanctions. The case, Venezuela II, is one of just two ongoing situations where the OTP hasn’t decided if an investigation is merited. Ávila argues the state forces the ICC’s to decide also on that, “knowing the Court and the OTP’s lack of sufficient budget or personnel.” 

The state’s dilatory strategy remains in full force and Khan’s powers are currently frozen. In line with the Rome Statute, the investigation was deferred to the Public Ministry at the request of Saab, on the claim that Venezuelan courts actively prosecute perpetrators. 

“Frankly, there’s no need for the ICC to investigate,” Saab told the National Assembly. According to its own figures, the state has charged 1,463 individuals for human rights violations since 2017. Barring a single annual report since his appointment, the country relies on Saab’s press conferences and tweets to gather data on the Public Ministry’s performance. Saab’s oral updates fail to disaggregate cases by categories, such as the age and rank of investigated officials, making it impossible to track down the number of low-ranking security agents charged or convicted as scapegoats for systemic abuse. A pressing issue since the UN Fact-Finding Mission tied the likes of Maduro and Diosdado Cabello to the torture dens of DGCIM and SEBIN.

While both DGCIM lieutenants were sentenced to 30 years for the murder of Captain Acosta, all three cases present similar patterns despite somewhat different outcomes: a lack of accountability over numerous irregularities and disputed narratives about each death, a focus on less serious crimes, and the targeting of low-level security agents.

On 1 November, Khan asked the ICC to allow his investigation to continue while stating that the Public Ministry’s efforts were “either insufficient in scope” or lacking “any concrete impact.” Upon examination of 893 cases of human rights violations, Khan reported to The Hague that 78.39% either were in early phases of the investigation or dismissed, and that the state failed to identify alleged perpetrators in 85.55%. The document asserts that no inquiries have been made within the chains of command.

Four Venezuelan lawyers and the Office for the Public Counsel for Victims (an independent ICC unit) asked The Hague if Venezuelan victims could submit their opinions to the judges on whether Khan’s investigations should continue. The Venezuelan state alledged  petitioned that only victims identified and previously documented by Khan’s office could submit their views, asked for the intervention of the ICC’s Victims Participation & Reparation Section (VPRS), and requested that the victims’ opinions be contained in a brief summary. The Pre-Trial Chamber ruled that the VPRS should both collect the views of all willing victims and prepare the summary. The deadline for submissions is 7 March 2023. 

The Court is yet to formally recognize victims as such, yet their role is now critical to the ICC’s progress. “Their testimonies can impact the judges’ assessment of justice for each case,” says Ávila. “We believe all conditions exist for the ICC investigation to resume. But if the judges rule otherwise, the prosecutor’s duties from the Preliminary Examination phase will remain active.”

Preparing for a Marathon

Ivonne Parra couldn’t hold her tears back at her sons’ mention, Guillermo José. On a Tuesday morning of December 2017, a FAES contingent knocked on her door without a search warrant. “I didn’t want my door torn apart, so I let them in,” she says. The men had found nothing, but she heard gunfire coming from Guillermo’s bedroom while she waited outside.

“My son was no criminal,” Ivonne asserts. “But some days I think it’s a crime to be young in this country.”

Four years ago, the Public Ministry issued an arrest warrant for the man who killed her son. “He was promoted and transferred to another city,” Ivonne says. “The authorities tell me that I shouldn’t worry because those crimes have no prescriptive period. But I do!” In the Pernalete hearing, the judge lifted travel restrictions on the alleged shooter and 10 other National Guards. The whereabouts of the accused are unknown.

In the absence of credible transition policies at home, quests for justice in the international arena tend to be long and onerous, yet families of victims have persisted. “The victims must keep sending information and denouncing before international and domestic bodies,” says Mr Ávila. “But we shouldn’t create false expectations about the ICC process. The public and the victims must prepare for a marathon rather than a hundred-meter sprint.”