The International Criminal Court (ICC) has opened a preliminary investigation into the government of Venezuela, which consists of an investigation to determine whether there are elements which will allow for the opening of a full investigation into "alleged State crimes against humanity” supposedly committed by the Venezuelan Executive during the containment of the violent anti-Chávez onslaught in the year 2017.
As we know, the context of the violent escalation of April-July 2017 consisted of, under the facade of "peaceful protests", open and starkly belligerent actions against Venezuelan society, the institutions of the State, public and private property, and against the lives of the people, which left a regrettable toll of more than 100 human fatalities and more than 4000 wounded and injured.
The declarations of the ICC by the Prosecutor Fatou Bensouda explained that allegedly "State security forces used excessive force to suppress demonstrations and imprison opposition members". She insisted that they will start a process to determine if there is a basis to investigate the Venezuelan State.
Main players and the opening of a dossier against Venezuela
Bensouda explained that the decision [to open preliminary investigations] was made after the "independent and impartial review of numerous reports", without clarifying what reports she was talking about. We can conclude, and on this topic we can see the presence of a remarkable actor, is that one of the references that the ICC is using is an Organization of American States (OAS) inquiry which is being pushed by General Secretary of Luis Almagro, and which constitutes a clearly adverse position to the position of the Venezuelan Government which was to contain the violent acts of 2017.
The OAS and its General Secretary have been more than efficient in internationally positioning a certain matrix of opinion regarding the supposed crimes of the Venezuelan State, while simultaneously legitimising and praising the development of the escalation of violence. Luis Almagro, it is worth noting, was one of the first to celebrate the announcement of the ICC.
One of the most notable elements of the "Almagro report" about the violence in Venezuela is the total lack of understanding of the elements found on the ground by the Venezuelan police and judicial authorities, the identification of causes and triggers of the violence, and the areas in which it was developed, where violent paramilitary groups (in their earliest stages) used barricades, and road blocks that were key to contributing to the total deaths and injuries among civilians and security forces.
Meanwhile, Tamara Suju, proclaimed "human rights defender" in Venezuela, and who always has had a favorable position regarding the impact of the "guarimbas" on the fundamental rights of the civilian population, celebrated the announcement (of the ICC), citing her consistent lawsuits against the Venezuelan State before 2017.
In this case, the fugitive of the Venezuelan justice system, ex- Attorney General Luisa Ortega Díaz, also has shared her opinion. At the time, she was a key player in the attempt to collapse Venezuela's institutions, specifically from the public prosecutor's Office, under clear siege conditions against Venezuelan society and institutions. Ortega tried to politically capitalize on the preliminary investigation, recalling that she denounced the Venezuelan State to the ICC with 1690 supporting documents on November 16.
Suju responded to Ortega that the preliminary investigation of the ICC consists of an investigation into the all the alleged "crimes committed during Maduro’s mandate", pointing to Ortega as a part of the chain of command and accusing her of "complicity, action and inaction" in the committing of such "crimes".
Behind the scenes, in the construction of this dossier which, without a doubt is creating the conditions to legitimize more severe and interventionary actions against Venezuela, it is worth mentioning Maria Corina Machado, Diego Arria and Antonio Ledezma as sponsors and participants of manipulated condemnations against the Venezuelan state. Accompanied by disproportionate media attention, these figures have, alongside Lilian Tintori, gone to the headquarters of the ICC in the Hague on several occasions and generated certain frameworks of opinion and narratives in the media and international political forums criminalizing the Venezuelan State and denying the impact of violence and its victims in recent years, in particular in 2014 and 2017 when these acts reached their zenith.
On the other hand, one of the most active spokespeople leading to this preliminary investigation has come from the White House: Nikki Haley, Ambassador of the United States to the United Nations (UN), who has been a consistent lobbyist and promotor for the siege against the government of Venezuela.
Another significant reference point comes from the report "Violations and Abuses of Human Rights in the Context of the Protests in the Bolivarian Republic of Venezuela from April 1 to July 31, 2017", drafted by the Office of the High Commissioner of the United Nations for Human Rights. The respresentative for this office is Zeid Ra'ad Al Hussein, who is linked to Haley and Diego Arria, and who in turn uses his position within the United Nations to demand the release of Leopoldo López.
This report, which also tends to ignore the position of the Venezuelan government in the events of 2017, has a clearly biased approach which reduces the violent events to the almost exclusive actions of the Venezuelan state, the so-called chavista "collectives" and elements of Venezuela’s institutional system, completely omitting the reports of countless victims who denounced the actions of the opposing violent cells on the ground.
Possibilities of the case and its scope
So far the ICC has not paid any attention to any type of report which explains the other party's position, i.e. the position of the Venezuelan government. In essence, the opening of this preliminary process is framed within a clear political plan to undermine and criminalize the Venezuelan state and its representative figureheads, specifically President Nicolas Maduro, upon whose Government weigh the economic sanctions of the White House. Within this narrative of alleged human rights violations, several Venezuelan officials have been sanctioned and no right to defense offered through the coercive actions of the [US Donald] Trump administration and the European Union (EU).
In this way, those working on the economic and political isolation of Venezuela appear to have taken a clearly unconstrained and unbridled position for the creation of circumstances "favorable" to an intervention in Venezuela.
But in strictly legal terms, the bureaucracy of the ICC suggests things may go another way. In objective terms the mere opening of this preliminary investigation may take years, if we compare it with other cases that are in fact proportionally more severe than those related to Venezuela.
Also it is true to say that the definitive application of the verdicts emitted by the ICC has been ambivalent, and the application of such decisions even more so.
To cite some exemplary cases, we have that of Colombia, whose state is accused of crimes committed during the war in that country and crimes committed against the population during the period of Álvaro Uribe and the current Colombian President Juan Manuel Santos (Uribe’s ex Defense Minister). These investigations date back to 2004 and still do not have a definitive resolution.
In another case, [Omar] al-Bashir was re-elected President of Sudan in 2010 with an open ICC order of capture against him. The investigation which began in 2005 against this African President is for crimes against humanity and genocide it is worth noting.
On the other hand, Thomas Lubunga, Military Chief of the Democratic Republic of the Congo, was sentenced eight years after an investigation initiated in 2004. He was condemned for the death of 60,000 people and the recruitment of 3,000 children during the war years of 2002 and 2003. He was sentenced a penalty of 14 years in prison, but the application of this sentence still hasn't been applied as it is in the appeal process.
The bureaucracy of the ICC, which functions more as a political forum that as a true judicial body, was unveiled by the withdrawal of Russia from the Rome Statute in November 2016. It is also worth remembering that one of the countries that most used the Rome Statute to criminalize political leaders and countries is the USA – which has never signed the document – and high-level officials of the American political and military systems that might have been sentenced by the aforementioned tribunal after decades of accusations of war crimes and other human rights attrocities committed by the US throughout successive and simultaneous wars, invasions, occupations and state-coups throughout the world, are all still unknown.
Russia declared at the time of its retirement from the Rome Statute that, after 14 years, this Court has only made four judgements and has spent more than USD$1 billion.
Ultimately the political position of opposition leaders who take photographs infront of the headquarters of the ICC in The Hague has made enough waves to justify interventionary actions against Venezuela. Although in legal terms this preliminary investigation is a preamble for actions yet to be defined, it is clearly a step forward towards putting Venezuela's political scene on trial.
Translated by Paul Dobson for Venezuelanalysis.