Why The Case Against Chávez Will Not Be Heard In The Hague

Recent reports regarding a decision by the Criminal Chamber of the Spanish National Court to forward a case brought against President Chávez to the International Criminal Court in the Hague merit clarification.

Recent reports regarding the November 11, 2003 decision by the Criminal Chamber of the Spanish National Court (Sala Penal de la Audiencia Nacional) to forward a case brought against President Chávez to the International Criminal Court in the Hague merit clarification. The complaint, brought last January 2003 by Venezuelan lawyers Williams Cárdenas Rubio and Luis García Perulles on behalf of approximately fifty individuals [i] who allegedly suffered injuries during the April 2002 coup d’etat against President Chávez, charges Chávez and 24 other governmental officials with crimes against humanity and acts of terrorism.

Spanish law recognizes the concept of universal jurisdiction for criminal offenses and codifies international crimes in its domestic statutes. [ii] Cases have been brought under the universal jurisdiction doctrine in Spanish courts against former Chilean dictator Augustus Pinochet and former Argentinean Generals Miguel Cavallo and Adolfo Scilingo, who were charged with the torture and forced disappearance of thousands of Argentinean and Spanish citizens. [iii] Yet the cases of Chile and Argentina deal with years of notorious torture, forced disappearance, persecution and extrajudicial killings executed under repressive dictatorial regimes.

The complaint brought against Chávez, et al., alleges such severe charges as crimes against humanity and terrorism. But these terms cannot be thrown around lightly, and the International Criminal Court (“ICC”) is apt to agree. The Spanish National Court decided to forward the complaint against Chávez, et al. to the ICC after the overseeing judge, Magistrate Fernando Andreu Merelles, ordered the remission of the case to the international arbitrator in March 2003. Eight months later, a three-judge panel in the Spanish National Court ruled that there would be no jurisdiction for appeal of this decision in the Spanish courts, primarily based on President Chávez’s immunity as an acting head of state.

The Rome Statute of the International Criminal Court entered into force on July 1, 2002. The eighteen judges representing nations around the world were elected in February 2003 by the Assembly of State Parties and sworn in on March 11, 2003 at The Hague. On April 21-21, 2003, Luis Moreno Ocampo of Argentina was elected as Prosecutor. In September 2003, at the Assembly of State Parties meeting at the United Nations headquarters in New York, Prosecutor Ocampo announced the first case brought before the ICC would involve recent atrocities committed in the Democratic Republic of the Congo.

Both Spain and Venezuela are member states to the ICC. Spain ratified the statute in October 2000 and Venezuela ratified in June 2000. On a side note, the United States is not a party to the ICC and has tried to undermine its efforts. Cases sent to the ICC will be subject to an extensive review process. First, the charges alleged must have occurred after July 1998, when the Rome Statute was completed and opened for signature by States. The ICC will not accept jurisdiction of those cases containing frivolous allegations, claims with no merit, or cases currently in progress in other nations with proper jurisdiction. All claims alleged must fall within the crimes set forth in Articles 6, 7 and 8 of the Rome Statute, which include Genocide, Crimes Against Humanity and War Crimes. The Crime of Aggression has not yet been defined by the Member States and therefore is not applicable at this time.

The complaint filed on behalf of self-proclaimed victims of the April 2002 coup alleges President Chávez, et al. are responsible for the injuries and deaths caused by the events surrounding the coup. The complaint is further grounded on the baseless allegation that Chávez is a dictator running a repressive regime that utilizes terror tactics to violate human rights and impose its totalitarian agenda. While the coup did result in numerous deaths and injuries of civilians, solid evidence directly linking Chávez and the other implicated government officials is not presented in the complaint. Rather, the complaint alleges Chávez created, funded and armed Bolivarian Circles to carry out terrorism tactics against those opposing his administration and that Chávez invoked Plan Avila on April 11, 2002, with the intention of violently eliminating the opposition movement. In fact, evidence uncovered during investigations in Venezuela by human rights organizations and international groups has found that extremist factions of the opposition movement in Venezuela conspired and executed the coup, planning the resulting deaths and injuries as their justification for the illegal usurpation of power.

The ICC will most likely reject the complaint filed against Chávez, et al., primarily because none of the alleged crimes fall within the jurisdiction of the Court, and the complaint itself lacks merit. Terrorism is not a crime recognized by the ICC and therefore is inapplicable. That leaves only crimes against humanity. But crimes against humanity are subject to the highest standard in the Rome Statute. Crimes against humanity include acts such as murder, extermination, enslavement, deportation or forcible transfer of population, arbitrary imprisonment, torture, rape, sexual slavery and other forms of sexual violence, persecution, forced disappearance, apartheid and other inhumane acts intentionally causing great suffering or bodily injury.[iv]In order to constitute crimes against humanity, these acts must be committed as part of a widespread or systematic attack directed against a civilian population. A one-time act resulting in the death of 25-50 civilians will not meet that standard. Examples of crimes against humanity include the mass murders and atrocities committed in Rwanda, Bosnia, Chile, Argentina and Germany during World War II.

Those claiming Chávez will become a convicted war criminal by The Hague had better sit tight and rethink their conclusions. It took decades of grueling work by advocates and practitioners of international human rights to build the International Criminal Court, which today has been ratified by 90 Member States in the international community. The ICC will not become the forum of baseless complaints by extremists groups seeking credibility for wayward agendas.

[i] The “victims” include Mohamed Merhi, Rubén Amor, Isabel Vásquez, Amelia Gamallo and others.

[ii] Ley Orgánica del Poder Judicial, Ley orgánica 6/1985, de 1 de julio, Art. 23.4 (a) and (b). That statute permits the exercise of Spanish criminal jurisdiction, “although the offense may have been committed outside of national territory, if committed by a national or foreigner” and if specifically codified in Spanish law. Genocide and terrorism are listed specifically in the statute.

[iii] The case against Pinochet was dismissed once England refused to expedite the former dictator, citing health concerns. The cases against the Argentinean Generals are in process.

[iv] See Article 7 of the Rome Statute to the International Criminal Court