Understanding the State Party Referral of the Situation in Venezuela

Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. The ongoing situation in Venezuela is already under preliminary examination by the Prosecutor, so this referral will not trigger a new examination, nor will it affect the current one, as made clear by the Prosecutor when she indicated that the ongoing preliminary examination will “follow its normal course, strictly guided by the requirements of the Rome Statute”. The referral itself (only seven pages long) does not submit any new information, instead it chose to emphasize three publicly available reports, one of which was formally submitted to the Prosecutor by the Organization of American States (OAS). In other words, it does not add any new actionable information or potential evidence. It does, however, to the benefit of long-term expediency, remove the need for judicial authorization by the Pre-Trial Chamber.

If the intention of the drafters of the referral was to the induce the Prosecutor to initiate an investigation more expeditiously at this present moment, then referring the situation in Venezuela to the Prosecutor eight months after she already opened a preliminary examination on the same situation, seems rather superfluous from a legal point of view. As described above, none of the legal effects of the referral under the Rome Statute have the capacity to do this. The Prosecutor remains independent and at the center of any such decision. Why, then, refer the situation at all?

The referral’s purpose and added value is more accurately described as political rather than legal. In essence, the Prosecutor received a public and formal display of political support and willingness for an investigation in Venezuela. The coalition of States Parties who submitted the referral are part of a group of States that are heavily invested in pursuing accountability in Venezuela. They are all (unsurprisingly) part of the Lima Group, an intergovernmental organization specifically organized to establish a peaceful conclusion to the crisis in Venezuela. In truth, it would be inaccurate to describe the referral as merely a statement in support of the work of the Prosecutor; it reflects much more. The States Parties behind the Venezuela referral translated political support into legal action at an institutional level. The referral therefore goes beyond condemning the situation in Venezuela, and attempts to do something about it. Despite its limited legal effect, the referral does bolster the work of the Prosecutor by demonstrating that there is political will towards addressing the situation of Venezuela at the Court, as much as hinting at potential cooperation by the States Parties in question if an investigation is opened. It gives the Prosecutor, in the long term, the ability to expedite the opening of an investigation to the extent that it would not require judicial authorization anymore, a time-saving benefit which is best exemplified by the current delays associated with the authorisation of an investigation into the situation in Afghanistan (it is nearly one year since the original request was submitted to the Pre-Trial Chamber).  For Venezuela, this represents further institutional and multilateral pressure from countries of the same region. Precedents set at other forums such as Mercosur, the OAS, and ALBA demonstrate a somewhat similar pattern of action. In this forum, however, the consequence of such pressure and action could be the initiation of an investigation and if appropriate, prosecution of individuals indicted for the commission of crimes against humanity against the Venezuelan people.

This referral comes at a time when the Court faces hostility in the implementation of its mandate. While this hostility, especially after bitter comments from some States, was counteracted with a wave of political support vis-á-vis statements made by State Parties and non-governmental organizations, the referral demonstrates that more can be done to strengthen the Court and facilitate its work. In a way, the referral also acted a catalyst for further mobilization of support for the investigation into the situation in Venezuela. To date, Costa Rica, France and Germany have issued public statements backing the referral, while the European Parliament has adopted a resolution in support of it, urging “the Union and the Member States to join the initiative of the ICC State Parties to investigate crimes against humanity committed by the Venezuelan government in the territory of Venezuela and so to hold those responsible accountable”. Also, according to Andrés Oppenheimer, a syndicated columnist and anchor of “Oppenheimer Presenta”, Colombian President Ivan Duque as well as Chilean Foreign Minister Roberto Ampuero and President Emmanuel Macron, are on a quest to convince other States Parties to join the coalition of States Parties supporting the referral.

While much can be said about this wave of political support emerging from the referral, more could have been done to substantiate and provide new information and potential evidence to the Prosecutor in the referral. This would have been desirable for the purpose of actually materially helping the Prosecutor. The referring States do, however, still have the opportunity to begin mobilizing their resources to gather further information and potential evidence from Venezuelans in exile. The collection of testimonies and other potential evidence and its subsequent submission to the Prosecutor, whether privately or publicly, will continue to strengthen and bolster the Prosecutor in determining whether to proceed with an investigation, as much as it will allow for the initial coordination of potential witnesses for trials. More can be done in the same spirit of the referral for the situation in Venezuela, as much as for future situations. Future referrals of this kind must be calculated precisely in order to maximize both their legal effect as much as their political effect.

Only time will tell whether the ongoing preliminary examination on the situation in Venezuela will turn into an investigation. Such determinations are out of the hands of Venezuela, concerned States Parties as well as international organizations, non-governmental organizations and individuals hoping for justice in Venezuela. The referral, as much as the ongoing examination, is, however, a call to action to support any eventual efforts by preparing the groundwork for the Prosecutor.