On August 20, the President of Argentina, Mr. Mauricio Macri, announced during a press meeting that he intends to report Venezuela to the International Criminal Court (ICC) over alleged crimes against humanity. President Macri stated that his plans to refer the Venezuelan government to the ICC are supported by Colombia, Chile and Paraguay. If Argentina succeeds, it will be the first time in history that a state party to the Rome Statute refers a fellow member to the ICC.

President Macri made these statements shortly after the Venezuelan government introduced economic measures that have exacerbated hyperinflation. Systematic and indiscriminate human rights violations as well as oppression of the opposition preceded these recent economic measures and were reported earlier this year by a panel of international experts of the Organization of American States (OAS).

This report, published on May 30th, 2018, found patterns of systematic and generalized attacks against the civilian population as part of a broader State Policy. It also recounts extra-judicial executions, murders, false imprisonment, enforced disappearances, rape and other acts of sexual violence. A panel of international experts at the OAS recommended for the report to be submitted to the International Criminal Court in The Hague.

During his meeting with the press, President Macri stated that “there is a growing sense to take more forceful action”. […] “I’m not optimistic in the short term of what is going to happen in Venezuela”.

Shortly after the statements of the Argentinian President, the Secretary-General of the OAS, mr. Luis Almagro, sent out a tweet stating that “in Venezuela, the regime has killed protestors and opposition members and continues to torture, detain and rape as was documented by the report of the OAS. “The Commitment we made to move forwards to being a continent without crimes against humanity makes taking dictators to the ICC an ethical imperative”.

Meanwhile in Venezuela, Mr. Diosdado Cabello, the President of Venezuela’s Constitutional Assembly, expressed the following response: “If Macri goes to the ICC, we won’t have to repeat what we have already done. “Whoever messes with Venezuela ends up toasted!”

Prior to Argentina and the OAS expressing their concerns over human rights violations in Venezuela, ICC prosecutor, Mrs. Fatou Bensouda, opened a Preliminary Examination on February 8, 2018, into alleged crimes against humanity reportedly perpetrated by the Venezuelan security apparatus since at least August 2017.

Mrs. Bensouda stated that “in particular, it has been alleged that State security forces frequently used excessive force to disperse and put down demonstrations, and arrested and detained thousands of actual or perceived members of the opposition, a number of whom would have been allegedly subjected to serious abuse and ill-treatment in detention”. “It has also been reported that some groups of protestors resorted to violent means, resulting in some members of security forces being injured or killed”.

“Under the Rome Statute, national jurisdictions have the primary responsibility to investigate and prosecute those responsible for international crimes. I emphasise that a preliminary examination is not an investigation, but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute, I, as Prosecutor, must consider issues of jurisdiction, admissibility and the interests of justice in making this determination”.

What steps can Argentina and the ICC Prosecutor’s Office take to turn the preliminary examination in to a formal investigation?

International Criminal Law expert, Natalia Luterstein, explained to online media outlet ‘The Bubble’,  that the ICC would need to have authorization of a Pre-Trial Chamber based on article 15(3) of the Rome Statute.

If Argentina decides to file a report and the Prosecutor’s Office considers this compelling enough to open a formal investigation, authorization from a Pre Trial Chamber would not be required. President Macri of Argentina expects his government to make the referral in the coming weeks.

This would be a momentous step in the history of the International Criminal Court as it would be the first time that a member state, or perhaps a group of member states, would report one of its counterparts to the ICC. Ms. Luterstein remarks that so far, referrals from member states have always been self- referrals.

Argentina became a state party to the Rome Statute in 2001 and has, based on article 13 (a) and article 14, the ability to refer a situation to the Prosecutor. However, the Prosecutor, would only move forward if she confirms the Venezuelan State is unwilling or unable to genuinely carry out an investigation or a prosecution; or the situation has been duly investigated, but the State is unwilling or unable to genuinely prosecute.

Procedural matters at the ICC are often slow and can take an extremely long time, so even if a formal investigation would be opened, it is most likely that several years will go by before the ICC reaches a decision.

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Image I : Newsweek

Image II: La Prensa/Panorama - Carlos Becarra

Image III : Reuters/Die Deutsche Welle

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