Two contrasting decisions in the space of a week see Venezuela in the dock while Colombia is let off the hook – despite concerns a special court in the country will not guarantee justice is done.
Two bitter political rivals, Venezuela and Colombia, saw contrasting decisions by the International Criminal Court (ICC) in just one week. The Hague-based tribunal opened a formal investigation against the Nicolás Maduro administration for potential crimes against humanity following anti-government protests in 2017, while almost simultaneously shelving a 17-year old probe on Colombia’s military and paramilitary murders.
At the heart of both announcements was the recently-appointed ICC Chief Prosecutor Karim Khan, who toured the region between October 25 and November 3 and met with high-level authorities in both nations, including presidents, Supreme Court justices, diplomats, and civil society representatives.
On the last day of Mr. Kahn’s visit to the Caribbean, the prosecutor announced that the ICC concluded its preliminary investigation and opened a formal probe regarding torture, extra-judicial murder, and forced disappearance of Venezuelan citizens by state authorities, looking for a pattern of systematic government abuse and denial of a genuine judicial investigation in the country.
Although no individual person or institution has yet been charged, an ICC fact-finding mission in Venezuela is expected to come next.
In a joint press conference with Mr. Maduro, Mr. Khan said that the court has jurisdiction over Venezuela due to the country’s adherence to the Rome Statute, which established the ICC in 1998. Most countries in the Americas are signatories of the treaty – with the notable exceptions of Cuba, Nicaragua, and the U.S.
“This court is your court. And according to the Venezuelan Constitution, the Court is part of the constitution. Its values and principles are part of this country because they are part of the spirit of all human beings,” Mr. Khan argued.
Sitting next to him, President Maduro stated that “the prosecutor decided to move on to the next phase to look for the truth. We respect his decision, although we have made it known that we don’t agree with it.”
The Venezuelan opposition welcomed the decision, with the anti-Maduro figurehead Julio Borges stating that it is “a firm step in the search for justice over the dictatorship’s crimes against humanity,” and that “it would not have been possible without the work of human rights organizations, victims, families and the many brave Venezuelans who have fought to make those violations visible.”
Mr. Borges was one of the opposition leaders during the 2017 conflict, which stemmed from the decision of Venezuela’s Supreme Tribunal to nullify the powers the of the National Assembly. Opponents of Mr. Maduro controlled Venezuela’s legislative branch after pulling off a landslide win in 2015 – a vote regarded as the las clean and fair elect ions in the country.
But the leftist government challenged the legitimacy of three lawmakers’ election – whose seats were enough to push the opposition past the two-thirds threshold needed for constitutional reforms – and ultimately stripped the Assembly of its faculties.
This, combined with one of the worst socio-economic crises in Latin American history and a wave of violent crime, led to massive street protests with more than a hundred dead and thousands wounded and arrested.
“I am fully conscious of the problems in Venezuela and its political divisions. We are not politicians. We are guided by legal principles and the rule of law, and I will ask everyone as we move forward to give my office the necessary freedom to do its job,” Mr. Khan said.
Other international investigations over mass-scale human rights abuse in Venezuela have taken place in the recent past, including hat of the UN High Commissioner for Human Rights, which said in 2019 that Venezuela’s government had implemented a strategy “aimed at neutralizing, repressing and criminalizing political opponents” throughout the last decade, with grave violations of economic, social, civil, political and cultural rights that led to mass-scale emigration.
Colombia’s 17-year probe
A week earlier, the ICC closed a preliminary inquiry launched in 2004 into Colombian state abuses, ranging from so-called “false positives” (murders of non-combatants which were then misleadingly presented as killed in action by the arm) to forced displacement of communities and sexual abuse.
Mr. Khan signed a cooperation agreement with the Iván Duque administration – one of the many right-wing administrations to have presided over the country since investigations began – and said that Colombia had made significant progress during the two decades of the preliminary probe, the ICC’s longest ongoing investigation.
Colombia’s main achievement, the Hague court said, was the creation of the Special Jurisdiction for Peace (JEP, in its Spanish acronym), created in 2017 after peace agreements were signed between then-President Juan Manuel Santos and the FARC guerrillas. The JEP includes multiple bodies, ranging from a Truth Commission in charge of compiling all information available on the country’s decades-long armed conflict, to a Court for Peace which can judge and sanction state agents, guerrilla members, and third parties linked to political violence.
“We are bound by the Rome Statute, which clearly establishes that if a State is sincere, well-disposed, and capable of investigating what the Statute sees as crimes, then out court does not need to intervene in the process. After evaluating the admirable work of the JEP together with the country’s State Attorney’s office, we consider that there has been a genuine institutional attempt to comply with international obligations,” Mr. Khan stated.
The dynamic of the ICC’s relationship with Colombia changed with the start of peace negotiations in Havana, Cuba, which the court followed closely in the hopes that mechanisms to investigate and punish the most salient crimes of the conflict would emerge.
The ICC supported the creation of the Integral System for Truth, Justice, Reparation, and Non-Repetition during the peace talks, and followed its initial work to make sure that it was meeting the court’s criteria Now that national courts are complying with its basic duties, the Hague argues, its intervention is no longer needed, although its observer role will continue.
Many, however, believe that justice is not being served, and that the decision will set back human rights in Colombia. “Ordinary courts only brought us 13 years of impunity, and the JEP still has a lot to uncover in terms of state crimes, which could have been taken on by the ICC,” Jacqueline Castillo, a spokesman for the mothers of victims of extrajudicial executions said.
“In areas such as forced displacement, over 95 percent of crimes have not been punished,” noted Marco Romero, from the Codhes human rights organization. More worryingly, organizations claim that forced displacements continued after the peace agreements, totaling 220,000 victims that would not be protec4d by the special court because the crimes against them took place after the treaty signature.
Human Rights Watch said the decision was “premature and counterproductive" as it left the JEP exposed to attacks on its independence, while other critics pointed to the lack of participation from civil society and victim organizations.
“This is a tough blow for victims because we had the hope that this preliminary inquiry would add pressure onto courts to end the impunity we’ve seen in multiple cases. Since the current government took office, we have seen these kinds of crimes return, new massacres, a 200-percent rise in forced displacements, and the government has put a friendly attorney in place to defend former presidents from investigation,” according to Eliecer Arias Arias from the MOVICE National Movement of State Crimes Victims.
(c) 2021, The Brazilian Report