President Nicolás Maduro’s government has been in the crosshairs of the International Criminal Court (ICC) at The Hague since 2018, when the court opened a preliminary examination into alleged crimes against humanity. That examination was escalated into a full investigation on 3 November, following a three-day visit to Caracas by the ICC’s chief prosecutor, Karim Khan.
Khan’s visit from 1-3 November was intended to guide the ICC on whether or not to expand the preliminary examination opened in 2018 under his predecessor, Fatou Bensouda (2012-2021). That examination, which related to alleged extrajudicial killings, arbitrary arrests, and torture in detention facilities, had been repeatedly hampered by the Maduro administration, which issued a stream of legal challenges claiming that the inquiry was “discriminatory” and alleging that it forms part of a wider plot by the US to overthrow Maduro and replace him with opposition leader Juan Guaidó.
Those legal appeals prevented any escalation of the examination under Bensouda. However, on 2 July the ICC announced that it had rejected the Venezuelan government’s claims, and that a full investigation could be launched if approved by Khan, who had assumed the role of chief prosecutor the previous month.
With Khan’s visit representing the Maduro government’s last hope of averting such an investigation, Maduro dropped his usually hostile rhetoric towards the court, and was uncharacteristically silent for most of Khan’s stay in Venezuela. Maduro’s only public announcement before Khan announced the escalation of the ICC’s examination followed a meeting between the two men on 1 November, when his office issued a brief statement welcoming Khan’s “focus on understanding in depth the situation in Venezuela, and his willingness to meet in person with the national authorities.”
Khan also made no statements to the media until the end of his visit, and amid uncertainty over his schedule in Venezuela, there were strong concerns among Venezuela’s opposition that he was being prevented from speaking with local human rights organisations and victims. Many in the opposition dismissed the visit as a waste of time, with the Voluntad Popular party warning that the “absolutely controlled nature of the visit” would prevent Khan from “effectively reporting back on the human rights violations and crimes against humanity that have been committed.”
On 3 November, however, Khan and Maduro jointly presented a memorandum of understanding (MoU) which stated that Khan “has determined that he will proceed to open an investigation to establish the truth” about the alleged human rights offences. The MoU notes that the Venezuelan government sees no “justification for the transition from the preliminary examination phase to the investigation phase” and “believes that the claims [of human rights abuses] should be investigated in the country by the national institutions that were created for such a purpose.”
Therein lies a significant problem for the ICC. With the ICC not possessing any independent enforcement powers, any successful prosecutions would likely be reliant on cooperation from the Venezuelan government. Furthermore, even if the court does successfully prove human rights abuses in Venezuela, the perpetrators would have to either be handed over by the Venezuelan authorities or arrested while in a foreign country. With the Maduro administration having already stated that it sees no grounds for an ICC investigation, it is hard to imagine the authorities complying with any arrest warrant issued by the court.
The government has already signalled that it intends to obstruct the investigation. Diosdado Cabello, the vice president of the ruling Partido Socialista Unido de Venezuela (PSUV), said on 4 November that the Maduro administration would appeal the investigation on the grounds that the preliminary examination had not been given sufficient time to run its course. There is no reason to believe that the ICC will reverse its decision, having already struck down Venezuela’s appeals against the case. Nonetheless, Cabello’s comments indicated an uphill struggle that the court will face as it launches its investigation.
That said, the investigation could bode ill for Maduro and his allies when they eventually leave power. Should the opposition eventually gain control of Venezuela’s state institutions, it would be all but certain to comply with any warrants issued by the ICC.
However, the court’s low conviction rate means that Maduro is unlikely to be losing much sleep for the time being. Of the 45 people to have been indicted by the ICC since 2005, only 20 were successfully transferred to the court; of those, only nine have been convicted.
Whilst the prospect of any member of the Venezuelan authorities ending up on trial in The Hague currently seems distant, the ICC’s decision to expand the investigation has been hailed as a landmark decision by human rights organisations. As José Miguel Vivanco, the Americas director at US-based NGO Human Rights Watch noted, this is the first time that the court has opened a full investigation into a Latin American country (preliminary examinations were opened into Colombia from 2004-2021 and Honduras from 2010-2014, but were closed without being expanded further). With the ICC’s previous investigations having overwhelmingly focussed on Africa, many activists across Latin America are now hopeful that human rights abuses in other countries in the region may now receive closer attention by the court.
Vivanco described Khan’s decision as “a turning point,” stating that it “not only… provides hope to the many victims of Maduro’s government, but it is a reality check that Maduro himself could be held accountable for the crimes committed with total impunity by his security forces and others.” Erika Guevara-Rosas, the Americas director at NGO Amnesty International, was similarly upbeat, describing the ICC’s decision to expand the examination as “historic” and saying that it gives “hope in the struggle for the truth and justice for thousands of victims.”
Political prisoners
Those hopes are likely premature. According to the Venezuelan human rights NGO Foro Penal, there were 252 political prisoners in the country as of 16 November, of which 213 had not been convicted of any crime. These include a number of high-profile figures, including Javier Tarazona, the director of the NGO Fundaredes which played a fundamental role in exposing human rights abuses by the security forces and guerrilla groups in the Apure conflict along Venezuela’s border with Colombia [SSR-21-07].
Tarazona was arrested on 2 July and remains in pre-trial detention, charged with treason, terrorism, and incitement of hatred. Since his arrest, the Apure conflict has effectively dropped from the headlines, although an October investigation by specialist website Insight Crime reported continued human rights violations by the government, including mass arbitrary arrests of villagers accused of collaborating with the guerrillas.
Former defence minister dies in custody
Former defence minister Raúl Baduel (2006-2008) died in custody on 12 October in El Helicoide, the headquarters of Venezuela’s intelligence service (Sebin). Baduel was widely viewed as the country’s most high-profile political prisoner – a former ally of late president Hugo Chávez (1999-2013), he fell foul of the Chavista regime and, bar a brief hiatus from 2015-2017, had been imprisoned since 2009, accused of treason. Whilst Attorney General Tarek William Saab claimed that Baduel died of a heart attack while suffering from coronavirus (Covid-19), his family insist that he was murdered. Both the US and the United Nations Human Rights Council have called for an investigation into his death.