Photo via Diariocritico de Venezuela
Article by Sela Brown, JD 2021
In September, Argentina, Chile, Colombia, Paraguay, Peru, and Canada signed a letter asking the International Criminal Court (ICC) to prosecute Venezuelan officials for human rights abuses. This surprising move is the first time that member nations have referred another member nation to the ICC. Under Article 14 of the Rome Statute, state parties have the power to refer the Court to situations where crimes are believed to be occurring, and request that the Prosecutor investigate whether certain crimes (e.g. genocide, war crimes, crimes against humanity) are taking place. However, the ICC has never opened a case brought by one country against another.
In Venezuela, the current economic and political crisis has led to a massive migration of millions of Venezuelans to surrounding Latin American countries. Although Latin American countries have historically refrained from intervening in the politics of neighboring countries, the influx of migrants has strained their economies, as well as their health and education systems, forcing them to take action.
Role of the US
The United States sanctioned Venezuelan officials for corruption, and U.S. President Donald Trump hinted at a possible need for a “military solution” to remove Venezuela’s President Nicolas Maduro from power. In September, Maduro spoke at the UN General Assembly, attacking the U.S’s allegations of corruption and imposed sanctions on his wife and Venezuela’s vice president, among others. Maduro claimed that the current migration crisis in Venezuela was a media “fabrication,” and that the U.S. only threatened military intervention because they wanted to get involved in Venezuela’s affairs.
ICC already Investigating Venezuela
In February, the ICC opened a preliminary investigation into the human rights abuses in Venezuela. The ICC Prosecutor announced that she was examining the violent state response to political demonstrations in 2014 and 2017 when Venezuelan security forces committed violent crackdowns against anti-government protestors, injuring, severely torturing, and detaining thousands of civilians. In September 2017, the UN High Commissioner for Human Rights called for an international investigation into the crimes that may have been committed in Venezuela.
The legitimacy of the ICC
The International Criminal Court is a court of last resort, founded with the goals of ending impunity by holding perpetrators who commit grave crimes against humanity accountable. The United States recently called into question the legitimacy of the ICC, with U.S. national security advisor John Bolton claiming that the ICC was “ineffective, unaccountable, and indeed outright dangerous.” Moreover, Bolton threatened that the U.S. would “fight back” if the Court began investigating alleged U.S. war crimes in Afghanistan or investigated any American allies.
The ICC has extensive jurisdictional reach and independence, but it relies on the cooperation of member states, including leaders who may be prosecuted. The recent rise in nationalism, including President Trump’s proposals to cut funding to international organizations, could indirectly diminish the ability of the ICC to operate effectively. Although the ICC can investigate and prosecute nations for crimes, non-member states are not obligated to cooperate with ICC rulings.
In 2016, Human Rights Watch asked the ICC to investigate Israel’s expansion of settlements, which is illegal under international law. However, as a non-member, Israel has no obligation to cooperate and can refuse to turn Israeli citizens over to the Court, if asked. The ICC also announced its intention to investigate the human rights abuses against the Rohingya, despite Myanmar not being a member state. Nevertheless, Myanmar’s leader did not respond to this announcement or the recent United Nations report concluding that the Myanmar military committed genocide while she was in power. This silence does not bode well for cooperation with a potential investigation into the human rights violations that have been taking place against the Rohingya.
The refusal of powerful nations such as the U.S., China, and Russia to join the Court weakens its authority. Although the ICC has prosecuted international war crimes, the Court has also failed on numerous occasions to prosecute crimes both within its mandate and in non-member states. Veto power on the UN security council also impacts ICC investigations. While a special UN tribunal has gathered incriminating evidence on Syria’s Bashar al-Assad for years, the UN Security Council has not referred Assad to the ICC because Russia would veto such action. In sum, the wide mandate of the ICC often fails to hold perpetrators accountable for the very crimes it was established to prosecute.
What does this mean for Venezuela?
It is unclear what this means for a potential investigation and prosecution of the crimes that occurred in Venezuela. Since Venezuela is a member state of the ICC, perhaps Venezuela will cooperate and Venezuelan officials will be brought to justice. The pressure from the five other Latin American countries may lead to an ICC investigation and eventual prosecutions. The more likely scenario, however, is a situation similar to Myanmar’s reaction to international condemnation. Maduro already demonstrated that he intends to deny even the most easily provable events – the ongoing migration crisis. Venezuela could go even further and decide to follow Russia’s lead and withdraw from the ICC after being condemned for human rights abuses. The actions of the ICC in the pending months and years will serve to answer whether the Court is indeed as “ineffective” as Bolton claims.