The International Criminal Court Faces a New Challenge: The Venezuelan Mafia State

By: Alec Waid

Latin America is currently experiencing one of its most severe refugee displacement crisis in recorded history.  Venezuela is one of the highest contributors to the refugee crisis, with more than 1.5 million Venezuelans fleeing their homes since 2014.  Unfortunately, these refugees face no choice but to flee despite uncertainty of asylum status elsewhere, because their own government makes their survival an even more looming uncertainty.  Venezuela has become a mafia state.  Since his rise to power in 2013, Venezuelan President Nicolás Maduro has been discovered to have ties with several organized crime groups in the country.  Not surprisingly, those groups have remained shielded from prosecution and left free to murder innocent citizens and drive others out of the country, fearing for their lives.

In August 2018, Argentinian President Mauricio Macri announced his intent to report Venezuela’s government, led by Maduro, to the International Criminal Court (ICC) for alleged human rights violations. In his announcement, Macri noted, “there is no doubt: in Venezuela, human rights are systematically violated by steamrolling the opposition.”  This announcement comes in the light of a statement from the ICC Chief Prosecutor, announcing the commencement of an official investigation against Venezuela for violations, which includes immunity from prosecution provided to organized crime groups.

The allegations against Venezuela pose an important test for the international tribunal. First and foremost, the ICC’s primary governing document, the Rome Statute, sets forth that the ICC has jurisdiction over persons, not states, meaning that the government, as a whole, will not be held to answer for the crimes against their citizens; only individuals can be assigned the blame.  Also, the ICC is limited in subject matter jurisdiction to crimes against humanity committed by those implicated.  Given the restrictive definition of these crimes under Article 7 of the Rome Statute, the Chief Prosecutor of the ICC, Fatou Bensouda, faces a heavy burden if her investigation leads to charges being filed.  The ICC’s third, and perhaps most challenging roadblock in their efforts against Venezuela, is that the ICC is bound to the principle of complementarity.  This means that the ICC can only bring an action if it is shown that the State with domestic jurisdiction over the crimes is either unable or unwilling to adjudicate.  However, proving the requisite elements for complementarity is no easy feat.  According to the Rome Statute, in proving inability to adjudicate, it must be shown that there is total or substantial collapse or unavailability of its national judicial system.  To prove unwillingness, the ICC prosecutor will need to establish proof that the Venezuelan government is intentionally shielding criminals from the ICC, there is an unjustified delay in proceedings, or that the proceedings are impartial.  While the political landscape may point to a clear unwillingness to prosecute by the Venezuelan government, proving this in a court of law is a different ballgame.

With Venezuela being only one of the culprits of government-sponsored organized crime, these investigations represent a hopeful initiative to fight the displacement crises.  If the ICC is successful in implicating Maduro and other head government officials in Venezuela, the floodgates may open against other Latin American mafia states.  If this endeavor proves successful, Latin America may finally be on its way to putting the brakes on the refugee crisis that has been a persistent and devastating plague on its people across the region and around the world.

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