Caracas Chronicles

It’s pretty clear why including a human rights agenda in the ongoing negotiations between Nicolás Maduro’s representatives and the Venezuelan opposition makes political sense for the opposition, which seeks conditions for a transition back to democracy. But key reforms would also be in the interest of government folks, who have given every indication that they are extremely concerned about a possible International Criminal Court (ICC) investigation on crimes against humanity in Venezuela. 

Unless there are robust and independent investigations in Venezuela into those most responsible for egregious abuses, the ICC could open an investigation. And, evidence permitting, the court could seek arrest warrants for key suspects.

Human Rights Watch has documented the Maduro government’s continued brutal repression. Security forces and armed pro-government groups have committed egregious abuses, including extrajudicial killings, short-term enforced disappearances, arbitrary arrests, and torture. The United Nations Independent International Fact-Finding Mission on Venezuela and the Office of the Prosecutor at the ICC concluded in 2020 that there was a reasonable basis to believe that crimes against humanity had been committed in Venezuela.

Venezuelan authorities are harassing and prosecuting independent journalists and civil society organizations that work to address the country’s ongoing human rights and humanitarian emergency, which has left millions of Venezuelans unable to get basic health care and adequate nutrition and left the country ill-prepared to deal with the COVID-19 pandemic. More than 5.6 million Venezuelans have fled the country, generating the largest migration crisis in Latin America.

The ICC Office of the Prosecutor has had the situation in Venezuela under preliminary examination since February 2018. In mid-June 2021, the then-prosecutor, Fatou Bensouda, announced that her office had concluded its preliminary examination, but didn’t make its conclusions public. In a decision dated June 14th, which wasn’t available to the public before Bensouda left office, the ICC pre-trial chamber dismissed a request by Venezuela for ICC oversight of the prosecutor’s examination, which Venezuela claimed hadn’t properly taken into account its views.

In determining whether to move ahead with a formal investigation, the new ICC prosecutor, Karim Khan, should examine whether there are already genuine national proceedings in relation to potential cases that could be included in an ICC investigation. As a court of last resort, the ICC wouldn’t proceed if Venezuela were genuinely pursuing these cases on its own.

Our research has concluded that the answer to this question is no: Venezuelan authorities have failed to adequately investigate widespread abuses despite compelling evidence, making impunity for human rights abuses the norm.

Impunity has been allowed to thrive because the Maduro government has effectively dismantled the Rule of Law, and cosmetic measures won’t suffice to rebuild it. Restoring the Rule of Law would require the Maduro government to adopt a long list of measures, to which it should commit during the negotiations. They include ending censorship and repression, freeing political prisoners, and allowing apolitical humanitarian aid into the country.

One essential reform that should be front and center in any negotiation is overhauling the politicized Venezuelan judiciary, which has become an appendage of the executive branch. An important step in that direction would be to establish an independent commission with the authority to make concrete proposals and work with relevant authorities to, at least, establish a system to fill Supreme Tribunal of Justice seats through an open and transparent selection process that ensures the broadest possible political consensus. 

The commission should also work with relevant authorities to ensure that they repeal provisions of the Supreme Tribunal of Justice law that allow the lawmakers to remove justices with a simple majority vote, and that lower court judges are appointed to permanent positions with secure tenure. To create such a commission, the authorities should work with Venezuelan and international experts, civil society representatives of organizations with expertise on judicial systems, and the opposition.

In addition, Maduro’s representatives should commit to ensuring that the General Prosecutor’s Office refrains from filing politically motivated and fabricated charges against critics, political opponents, and human rights defenders. The office should also drop all charges against those being prosecuted for questioning government actions or policies, and end politically motivated prosecutions. 

But it’s not just a matter of ending the brutal crackdown on opponents, which is still critically important. The General Prosecutor’s Office should also investigate all allegations of human rights violations by security forces, intelligence agencies, and armed pro-government groups since 2014, including all extrajudicial killings, arbitrary arrests and prosecutions, torture and cruel treatment, and forced disappearances. 

It should allow victims and their lawyers full access to the judicial files to protect victims’ right to justice and to monitor ongoing investigations. The investigations should thoroughly examine the possible criminal responsibility of those who committed the abuses and of high-level officials who knew or should have known they were occurring.

Without a genuine effort to give Venezuelans back the independent judiciary they deserve, victims will never have access to true justice at home. 

As Maduro’s representatives sit down at the negotiating table in Mexico this weekend, they should remember that efforts to secure justice for the gravest human rights crimes will follow abusers wherever they go. Negotiators should ask themselves who will be held accountable for the Maduro government’s egregious abuses, where, how, and when.