By: Ayumary M. Fitzgerald
Venezuela por haberme dado tanto, estoy contigo en la risa y en el llanto.
The widespread and systematic murder, imprisonment, and torture allegedly committed by Venezuelan security forces andcolectivos in 2017 has caught the international community’s attention.Venezuela, a state party to the Rome Statute, has agreed to submit to the jurisdiction of the International Criminal Court (“ICC”), which is a permanent and autonomous Court that tries individuals for heinous international crimes, including crimes against humanity (“CAH”). This Article argues that the crimes committed in Venezuela this past year, 2017, are CAH and that the Venezuelan judiciary is unwilling and unable to genuinely prosecute the potential defendants. As such, the ICC must assert jurisdiction and try Venezuela’s President Nicolás Maduro, Defense Minister Vladimir Padrino López, and Interior Secretary Néstor Reverol for CAH.
On March 29, 2017, the Venezuelan Supreme Tribunal of Justice (TSJ) stripped members of the opposition-controlled National Assembly of their parliamentary immunity and ruled it would assume legislative powers. Protests began once the decision was publicized.
While Venezuelans peacefully took to the streets in defense of their fundamental rights, Maduro’s regime responded strategically and systematically, targeting the unarmed civilian population with violence and terror. Approximately one person per day was killed since those protests began, and there were more than 450 investigations into human rights violations. Reportedly, the Venezuelan security forces and colectivos carried out the systematic attacks in thirteen states and Caracas—including in controlled environments such as military installations and other state institutions.
On November 16, 2017, Venezuela’s deposed Chief Prosecutor, Luisa Ortega Díaz petitioned the ICC to investigate Maduro, Padrino López, and Reverol. Ortega alleged that “8,290 deaths took place between 2015 and June 2017 on government orders.” She charged the government officials with “over 17,000 arbitrary and politically motivated arrests, hundreds of cases of torture, and the general paramilitarization of the civilian population.” She also claimed that “the crimes happened under the orders from the executive branch” and “represent a broad government strategy to cleanse dissident political views.” Then, on February 7, 2018, the ICC prosecutor opened a preliminary examination.
I. S.O.S. Crimes Against Humanity in Venezuela
The ICC can assert jurisdiction to investigate and prosecute CAH when any of the crimes enumerated in Article 7 of the Rome Statute—such as murder, imprisonment, or torture—are committed as part of a widespread or systematic attack directed against a civilian population with knowledge of the attack.
Murder is an intentional killing without lawful justification that may be committed by act or omission. Between April and August 2017, at least 167 deaths were reported in connection with the demonstrations in Venezuela. As of July 2017, security forces were allegedly responsible for at least forty-six murders, and the colectivoswere allegedly responsible for twenty-seven murders. On July 30, 2017 alone, at least twenty-nine people were killed. Reportedly, 67 people were killed by firearms or by another type of projectile. Of those killed, thirty were twenty-one years old or younger, at least twenty-four were students, and approximately fourteen were eighteen years old or younger.
Security forces systematically used their service weapons, less-lethal weapons (e.g. tear gas cans), and firearms with less-lethal ammunition (such as plastic pellets) to shoot at demonstrators at a close range, aiming at vulnerable parts of the body. Thus, the ICC’s Office of the Prosecutor (“OTP”) will likely find that Venezuelan armed security forces intentionally killed demonstrators without lawful justification when they systematically used their service weapons to shoot at demonstrators at a close range, aiming at vulnerable parts of the body.
Imprisonment is the unlawful deprivation of liberty of an individual without due process of law. The crime of imprisonment can be established if the accused had reasonable knowledge that an act or omission was likely to cause such deprivation of liberty. Imprisonment that is contrary to international law and “other severe deprivation of physical liberty” are expressly prohibited under the Rome Statute.
In determining whether imprisonment occurred, the OTP considers Article 7’s express mandate and several factors. The factors include (1) whether the arrest was the result of a valid warrant, (2) whether detainees were informed of the reasons for the detention, (3) whether formal charges were filed, (4) whether the detainees were informed of their procedural rights, and (5) whether the continued detention was lawful.
In Venezuela, thousands of protesters and bystanders were unlawfully detained during the demonstrations; many of the protesters and bystanders were subsequently prosecuted in military courts. Approximately 3,589 individuals were arrested in the demonstrations. As of July 25, 2017, there were about 620 political prisoners. Reportedly, colectivosaided police and Bolivarian National Guard (“GNB”) officers’ unlawful imprisonment of those involved in the demonstration.
There were multiple violations, including the lack of arrest warrants, incommunicado detention, lack of access to legal counsel, and breaches of the principle of presumption of innocence. TheUN High Commissioner for Human Rights (“OHCHR”) recorded multiples unlawful detentions in various states including: Caracas (766), Zulia (630), Carabobo (608), Anzoátegui (413), Miranda (405), Lara (337), Táchira (334), Bolívar (271), and Aragua (269). In some cases, people were arrested even though they were not demonstrating; rather, they were arrested merely because they were perceived to support the Maduro Regime’s opponents.
Hence, the OTP will likely find that under the state policy of Maduro’s regime, state forces aided by colectivosimprisoned civilians or severely deprived them of their physical liberty. Probably, OTP will also find that officers committed unlawful arrests without a valid warrant or providing the reasons for the detention. Further, OTP will possibly find that official arrests included incommunicado detention, lack of access to legal counsel, and breached the presumption of innocence principle. The deprivation of liberty was directed against those who protested against, or who were perceived to protest against, the Maduro regime.
Torture is the intentional infliction of severe pain or suffering, physical or mental, upon a person in custody or under control of the accused, which is not inherent or incidental to lawful sanctions. The conduct must cause an important degree of pain and suffering to amount to torture [actus reus]. The infliction of pain or suffering must be intentional [mens rea].
On June 15, 2017, the Centre for Studies and Analysis for Latin America (“CASLA”) reported an increase in torture in Venezuela since April 2017. CASLA reported at least 120 new cases of people tortured by various security agencies, particularly by the GNB, Bolivarian National Police (“PNB”), the Bolivarian National Intelligence Service (“SEBIN”), and some local police from states and cities whose authorities are members of the government party. According to CASLA, the officers’ intention was not only to carry out orders, but also to punish and inflict the greatest possible physical damage to the demonstrators.
The threat or perpetration of sexual violence as torture on detainees was another systematic form of abuse reported. Eighty percent of the new cases CASLA reported included claims by detainees that they had been stripped naked, threatened, or raped by officers.
Other forms of systematic torture included hits to the victim’s heads with the butts of weapons, helmets, and blunt objects. Kicks to the face, ribs, and lumbar region were reported in 100% of the cases presented. In addition, reports showed that forms of torture that were systematically practiced included inflicting electric shocks to the genitals, head, and elbows; forcing victims to kneel or lie down to torture them, handcuffing the victims by their hands and feet; covering the victim’s heads; and suspending the victims by the arms and allowing them to touch the floor only with the tips of their toes for hours on end.
Thus, the OTP will likely find that, under the Maduro regime’s state policy, officers inflicted a significant degree of pain and suffering upon civilians while they were in custody or under local police, GNB, PNB, or SEBIN’s control. Further, OTP will probably find that the pain and suffering suffered by civilians was the result of the officers’ unlawful treatment. The gruesome methods, which included sexual violence, likely demonstrate that the torture was committed knowingly and that the officers intended to carry out orders, and also to inflict greatest damage possible on the victims in support of state policy.
II. The Venezuelan Government is Unwilling and Unable to Genuinely Prosecute Maduro, Padrino López, and Reverol Because there is no Effective Separation of Powers.
Venezuela’s national public power is divided into Legislative (National Assembly), Executive, Judicial, Citizen (Ciudadano), and Electoral. The Citizen power is performed by the Republic’s Moral Council, which is composed of the People’s Defender, the Republic’s General Controller, and the Chief Prosecutor. The Chief Prosecutor is appointed by a two-thirds vote of the National Assembly and directs the public ministry for a period of seven years. The public ministry investigates and prosecutes criminal conduct.
Although there is a constitutional division of powers, the Maduro regime effectively controls the judiciary. Efforts to control the judiciary began in 2004, when the president at the time, Hugo Chávez, and partisan lawmakers expanded the Supreme Tribunal of Justice (“TSJ”) from twenty to thirty-two members and filled the new seats with supporters. Then in 2010, Chávez’s lawmaker supporters accelerated the process for naming new TSJ justices. Before the National Assembly was installed that year, nine new TSJ justices were selected.
Maduro’s political control over the TSJ translates directly into control over lower courts because the TSJ effectively controls the appointment and removal of lower court judges. In 2010, the TSJ’s Judicial Commission voided the appointment of 67 judges and appointed 1064 nonpermanent judges. Then, in March 2012, the TSJ appointed 89 additional provisional judges. TSJ’s Judicial Commission has also granted stability of tenure to hundreds of provisional and temporary judges. These new positions were not won through open competitions, as required by the Venezuelan constitution, but rather through promotions of provisional and temporary judges who had been appointed at the full discretion of TSJ’s Judicial Commission.
The authorities’ failure, interference, intimidation, and arbitrary suspensions have undermined the independence and impartiality of Venezuela’s judges and prosecutors. According to the International Commission of Jurists (“ICJ”), the lack of security of tenure and transparency in the selection of prosecutors, as well as the allocation of criminal investigations ignoring the prosecutor’s experience and workload, have yielded the prosecutor’s inability or unwillingness to bring criminals to justice in an effective and equal manner. Additionally, with 70% of judges holding only provisional or temporary office, there is a climate of insecurity and impunity that surpasses 90% of common felonies’ adjudication, and even more for crimes involving violations of human rights.
Likewise, the Maduro Regime controls the Citizen and Legislative powers. The regime has gained control leveraging similar techniques as those used by Chávez. For instance, in December 2014—although the Constitution requires a two-thirds vote—the pro-Maduro National Assembly appointed the People’s Defender and the Republic’s General Controller, and ratified Luisa Ortega as Chief Prosecutor with just a simple majority.
Surprisingly, in December 2015, for the first time in seventeen years, the Venezuelan opposition won control of the National Assembly and altered the balance of power. But this only accelerated Maduro’s plan to control the public powers in Venezuela. In January 2017, Maduro announced an “economic state of emergency,” that allowed him to rule by decree. Then, in February 2017, the TSJ bypassed the National Assembly to grant Maduro broad emergency powers over the economy. In late March 2017, the TSJ stripped the opposition-controlled National Assembly’s members of their parliamentary immunity and ruled that it would assume legislative powers. Although the court rescinded a portion of that ruling, Maduro subsequently announced his plan to provide plenary power to a new national constituent assembly that could re-write the constitution. Finally, in August 2017, 545 delegates of the new national constituent assembly, elected under suspected fraud, were sworn in the legislative palace. The new constituent immediately dismissed Chief Prosecutor Luisa Ortega Diaz.
Consequently, in its preliminary examination, the OTP will probably find that the Venezuelan judiciary is unwilling to investigate and prosecute these potential defendants because Maduro’s regime effectively controls the public powers. The regime controls the courts and the courts have manipulated the Venezuelan constitution and laws to consolidate all governmental authority under the regime’s control.
Additionally, the OTP will likely find that the Venezuela judiciary’s substantial collapse renders it unable to prosecute heinous CAH. In Venezuela, there is a clear absence of security for witnesses, investigators, prosecutors, and judges as well as a lack of adequate resources for an effective investigation and prosecution of CAH.
III. These Crimes were Widespread or Systematic Attacks Directed Against a Civilian Population.
Maduro’s regime did not conceal its intention to violate the population’s human rights and murder civilians. In April 2017, Maduro announced the Zamora Plan with which he intended to arm a million civilian militias (colectivos), assuring there would be “a rifle for each militia member” to respond to the protests. A second phase of the Zamora Plan was launched a month later. And Military and public officials relied on the Zamora Plan to justify the use of military jurisdiction for civilians and to deploy the GNB to control demonstrations.
The implementation of the Zamora Plan resulted in increased violence against demonstrators. State officers systematically used disproportionate force to suppress anti-government protests. GNB, PNB, SEBIN, and local police, aided by colectivos, murdered, imprisoned, and tortured Venezuelan groups, who were in opposition to Maduro’s regime.
The widespread murder, imprisonment, and torture of civilians by state armed-forces and colectivoswere not isolated and random acts. The crimes were carried out repeatedly, across thirteen states and Caracas—including in controlled environments such as military installations and other state institutions—between April and August 2017. In sum, the OTP will likely find that state armed-forces and colectivosare responsible for the widespread murder, imprisonment, and torture of civilians pursuant to or in furtherance of the Maduro regime’s state or organizational policy.
The ICC can bring justice to Venezuelan victims, and the OTP has taken the first step by initiating a preliminary examination. During its review, the OTP will probably find a reasonable basis to believe that the heinous crimes committed in thirteen states and Caracas, between April and August 2017, are CAH. Likely, it will also find that Maduro’s regime controls the Venezuelan judiciary as to render it unwilling and unable to genuinely prosecute the potential defendants.Accordingly, the Court can admit the case and assert jurisdiction.
The OTP will likely find that the Venezuelan government did not conceal its intention to harm civilians, who oppose Maduro’s regime. Maduro intended to armcolectivos, justified the use of military jurisdiction for civilians, and deployed the GNB to deter protesters under the Zamora Plan. Upon the Plan’s implementation, violence against demonstrators increased, and state-forces, who were aided by colectivos, systematically murdered, imprisoned, and tortured hundreds of demonstrators. As such, the heinous crimes resulted from a plan or organized policy or from an abuse of power or official capacity. The conduct left at least two million displaced persons and approximately 620 political prisoners. Hence, the OTP will likely conclude the crimeswere committed as part of a widespread and systematic attack, directed against any civilian population, with knowledge of the attack.
The international community has finally heard Venezuelans’ SOS call. The OHCHR, OAS’s Secretary General, Human Rights Watch, CASLA, and Foro Penal Venezolano are among the institutions that have loudly condemned the CAH committed in Venezuela by Maduro’s regime. But whether the ICC will ultimately bring justice to the Venezuelan victims remains to be seen as the Court will face may obstacles, including getting custody of Venezuela’s President, Nicolás Maduro, Defense Minister, Vladimir Padrino López, and Interior Secretary, Néstor Reverol.
For now, the ICC’s preliminary examination of the situation in Venezuela feels like a victory for Venezuelan victims. Venezuelan victims have lost many battles, and many have lost their lives. So hope is, for now, what they continue to hold on to.
Ayumary M. Fitzgerald is a graduate of the Universidad Católica Andrés Bello Law School (Caracas, Venezuela). She earned an L.L.M. degree in International and Comparative Law at SMU Dedman School of Law in 2016 and earned her J.D. degree in 2018.
Ayumary dedicates this Article to all those who participated in the protests that occurred in Venezuela between April and August 2017; those who have been imprisoned and tortured for exercising their freedom of speech; and, particularly, those who lost their lives for the dream of a free Venezuela. Gloria al Bravo Pueblo de Venezuela.
The comprehensive version of this article will be published in the University of Miami’s International and Comparative Law Review Volume 26, Issue 1.