In the last two months, the Organization of American States (OAS) held unprecedented hearings to gather witness testimony on the situation in Venezuela to determine whether to refer the State to the International Criminal Court (ICC). [OAS Press Release: First Session; OAS Press Release: Second Session] In the sessions of hearings held so far, the OAS has heard testimony from activists, former members of the Venezuelan government and judiciary, and former members of the Bolivian National Armed Forces, among others; their testimony has described arbitrary arrests and detention, extrajudicial killings, and cruel and degrading treatment. [Moreno Ocampo] Luis Moreno Ocampo, a former ICC prosecutor and current Special Adviser on Crimes against Humanity (Special Advisor) at the OAS, convened the two public sessions of hearings – one in September and one in October – at the OAS headquarters in Washington, D.C.; he may convene additional sessions in November. [OAS Press Release: Adviser; OAS Press Release: First Session; OAS Press Release: Second Session]
In July, the OAS Secretary General, Luis Almagro, designated Moreno Ocampo as Special Adviser, and as such, Moreno Ocampo is tasked with analyzing, studying, and debating the ongoing situation in Venezuela with interested parties to determine whether the State committed crimes against humanity and can be referred to the ICC. [OAS Press Release: Adviser] Accordingly, the sessions were held to examine whether the abuses by the Venezuelan government rise to the level of crimes against humanity and if they were committed in a widespread and systematic manner. [OAS Press Release: First Session; OAS Press Release: Second Session; Moreno Ocampo] The testimony gathered in the sessions will contribute to a final report, along with information submitted by additional organizations; the Independent Panel of International Experts, appointed by the OAS Secretary General in September, will review the report and recommend it to the Secretary General. [OAS Press Release: Independent Panel] This is the first time that the regional body has held sessions with the purpose of referring a Member State to the ICC.
OAS Sessions on Venezuela
At the first round of sessions, which was held on September 13 and 14, the OAS Member States and observers heard from Julio Henriquez of Foro Penal Venezolano; Francisco Márquez Lara of Visión Democrática; Tamara Suju, a criminal lawyer and Executive Director of the Center for Latin American Studies; Johanna Aguirre, a human rights activist and victim; and former members of the Bolivarian National Armed Forces. The statements focused on State policies of repression, systematic political persecution and intimidation, torture of political prisoners, and the use of generic charges to prosecute civilians in military court. OAS Press Release: First Session] See OAS, Sessions to Consider the Situation in Venezuela Facilitated by Luis Moreno Ocampo, Special Advisor on Crimes Against Humanity of the Secretary General of the Organization of American States, Summary of the Session of September 14, 2017 (2017); OAS, Sessions to Analyse the Situation in Venezuela Facilitated by Luis Moreno Ocampo, Special Advisor on Crimes Against Humanity of the Secretary General of the Organization of American States, Summary of the Session of September 15, 2017 (2017).
The second round of sessions was held on October 16 and 17. [OAS Press Release: Second Session] In the October sessions, the witnesses were two family members of victims – Doris Coello, mother of Marcos Coello, and Rosa Orozco, the mother of Geraldine Moreno and representative of Justicia, Encuentro y Perdón – a representative of the NGO Voluntad Popular, and individuals who had previously served in the government or who continued to serve in exile. Judge Ralenis Tovar, former judge of the Metropolitan Area of Caracas; Pedro Troconis, President of the Criminal Bench, Supreme Court of Justice of Venezuela in Exile; Armando Daniel Armas, Deputy, National Assembly of Venezuela; Isaías Medina, former Minister Counselor, Permanent Mission of Venezuela to the United Nations; Walter Marquez, former Deputy of the National Assembly of Venezuela; and two mayors contributed testimony. The October sessions focused on the weakening of the independence of the judiciary; the failure to address the humanitarian crisis in the State; the outlawed government of Venezuela; the imposition of military rule on civilian courts; the illegal use of arbitrary detention, isolation, torture, and cruel, inhuman, and degrading treatment; the removal of opposition party mayors from office; the threatening of dissidents; the forced mass relocation and deportation; and violence against and killing of civilians. See generally OAS, Second round of meetings to examine whether the situation in Venezuela warrants being submitted to the International Criminal Court, October 16, 2017 (2017); OAS, Second round of meetings to examine whether the situation in Venezuela warrants being submitted to the International Criminal Court, October 17, 2017 (2017).
Both rounds of sessions sought to determine whether the situation in Venezuela meets the requirements of Article 53(1) of the Rome Statute, the ICC’s founding treaty, in order for the ICC to initiate an investigation. Under Article 53(1) of the Rome Statute, in deciding whether to open an investigation into a situation, the prosecutor of the ICC will consider whether the information available “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committeed;” if the case is admissible before the ICC; and if there are “substantial reasons to believe that an investigation would not serve the interest of justice.”
Independent Panel of International Experts
The hearings involved the Independent Panel of International Experts responsible for listening to presentations by victims and interested parties at the hearings regarding the situation in Venezuela. [OAS Press Release: Second Session] The Independent Panel of Experts is composed of Manuel Ventura Robles, former Judge of the Inter-American Court of Human Rights; Santiago Cantón, Secretary of Human Rights of the Province of Buenos Aires, and previously Executive Secretary of the Inter-American Commission on Human Rights; and Irwin Cotler, President of the Raul Wallenberg Centre for Human Rights, and previously Minister of Justice and Attorney General of Canada. [OAS Press Release: Second Session]
Situation in Venezuela
Venezuela has been undergoing a move towards authoritarian government under the rule of President Nicolás Maduro, leading to escalating tensions, a declining economy, and significant food and good shortages. [IJRC: Food] Following a series of protests related to the food shortages and failing economy, in 2016 President Maduro instituted a state of emergency greatly restricting the rights of Venezuelan people. [IJRC: Food] The state of emergency has been renewed four times, and protests by political opposition parties and protests related to the declining conditions in the country have been violently suppressed. Amnesty International, Amnesty International Report 2016/17: The State of the World’s Human Rights (2017), 393-97.
Adding to an already tense environment, Venezuela’s Supreme Court claimed legislative powers in March by issuing a ruling that allowed the Supreme Court to draft laws, effectively usurping the role of the legislature. [IJRC: Court] The legislature has been considered to be the last independent branch of the Venezuelan government. [IJRC: Court] In response, elections were held in August to elect a National Constituent Assembly, an entity intended to replace the legislature and rewrite the Venezuelan constitution. [IJRC: Election]
Further, this October, gubernatorial elections held in Venezuela repeated patterns of electoral fraud, uncertainty, and irregularities that the OAS has been warning the State about since 2015. [OAS: Election] Polling stations, particularly in areas that oppose President Maduro, were moved at the last minute without notifying voters. [Washington Post; NY Times]
Tensions have continued to rise domestically and internationally. A report by the UN Office of the High Commissioner for Human Rights (OHCHR) found that the human rights situation in Venezuela has become increasingly critical since protests began, with security forces using systematic excessive force to deter demonstrations and dissent. See UN Office of the High Commissioner for Human Rights, Human rights violations and abuses in the context of protests in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017 (2017), at i. OHCHR identified serious and systematic violations of due process, peaceful assembly, and freedom of expression. See id. at ii. Security forces and pro-government armed forces have harassed, attacked, and shot at demonstrators and committed violent house raids. See id. The economic and social crisis in Venezuela, coupled with these violations, makes Venezuela increasingly unstable and politically polarized. See id. The situation has led the High Commissioner, Zeid Ra‘ad al Hussein, to conclude that there is a “possibility that crimes against humanity may have been committed, which can only be confirmed by a subsequent criminal investigation.” [OHCHR Press Release]
Background on the International Criminal Court
The ICC was inaugurated in 2002 and has its seat in The Hague, Netherlands. The ICC tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 124 States parties to the Rome Statute, the crime was committed on the territory of a State party, the State involved authorizes the Court’s jurisdiction, or the United Nations Security Council refers a situation to the Court. The ICC is an international tribunal designed to complement national judiciaries; thus, it can only step in when national courts are unable or unwilling to prosecute.
Venezuela ratified the Rome Statute in 2000. If the OAS refers the case to the ICC, it will be the first case reviewed on the basis of a regional organization referring a situation to the ICC. Venezuela would be the first ICC case referred by the OAS, and the first case in the Americas to be investigated.
Regionally, Venezuela is a party to the American Declaration of the Rights and Duties of Man, but is not subject to the American Convention on Human Rights, having denounced it in 2012. [IJRC]
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