Photo: Venezuela’s President Nicolas Maduro and International Court Prosecutor Karim A.A. Khan QC shake hands in Caracas on November 1, 2021. Source: Presidential Press Office.
The humanitarian situation in Venezuela is very complex and has worsened over time, accompanied by massive human rights violations and the commission of international crimes. The investigation opened by the International Criminal Court (ICC) in the “Venezuela I” situation—which is limited to the violence perpetrated by the state agents against the 2017 demonstrations—as well as the establishment of the Fact-Finding Mission to Venezuela (FFMV) by the United Nations Human Rights Council (UNHRC)—which has a broader mandate of investigation in comparison to the ICC—proves both the complexity and gravity of the country’s humanitarian situation. In this understanding, due to the investigative advances made by the FFMV, this article will focus on those findings and on how Venezuela does not have the necessary mechanisms in place to prosecute the perpetrators of such crimes.
The Mission was created on September 27, 2019, by UNHRC resolution 42/25 for a period of one year, with a mandate “to investigate gross violations of human rights, including extrajudicial executions, enforced disappearances, arbitrary detention, torture and other cruel, inhuman or degrading treatment, including those involving sexual and gender-based violence, committed since 2014.” The findings of the September 25, 2020 report were thunderous and—according to the UNHRC—merited the temporary extension of the Mission to continue with its investigation. Items 116, 117, and 871 specifically mention how corruption was a “motivating factor behind the human rights violations identified” in the South American country.
The report also described how the regime applies social control to Venezuelan society by granting humanitarian aid to those who are “loyal to the regime” and repressing the most vulnerable sectors of society through its use of the Armed Forces, security forces, and armed civilians (see items 129, 138, 145, 173, 220, 222, 1557, and 1937). At the same time, the FFMV verified claims of extrajudicial executions, persecution of opponents and/or perceived opponents, torture, sexual violence, and, in a nutshell, the widespread commission of international crimes by actors aligned with the Venezuelan state. However, despite the FFMV’s identification of key names and figures, there is no sign that the Public Ministry of Venezuela will carry out any investigation or sanction against the alleged perpetrators. Consequently, the UNHRC granted a new extension to the FFMV on October 6, 2020, for two years until September 2022, through resolution 45/20.
In the second report, dated September 16, 2021, the Mission explained the situation of the judicial branch in Venezuela, making public that judicial independence did not exist in the country—and at the same time—clearly indicating regular and robust interference by Venezuelan authorities in all the components of the judicial branch. State interference is intended to avoid sanctioning and prosecuting possible perpetrators of crimes and use the judicial machinery as a weapon of repression against opponents. The Mission’s investigation demonstrates that given the current state of the judicial system, it would be unfeasible to carry out ‘credible trials’ against the perpetrators of international crimes. However, the problems would not remain in that branch of the state, but also in item 527 of that report, the Mission recommended the National Assembly “introduce legislation to include specific provisions regulating crimes against humanity, as provided for in the 1998 Rome Statute of the International Criminal Court.” Likewise, item 529 stated, “consider lifting the immunity of high-level state officials implicated in human rights violations and crimes, to allow for prosecution when a well-founded request is submitted, and in full respect of due process.”
More recently, on September 20, 2022, the FFM published two reports under two aspects, one related to the crimes being committed in the ‘arco minero’ (Bolivar state in Venezuela), and the other report was related to crimes against humanity committed by the state intelligence services and high state representatives. The first one determined how the state’s complicity in mineral exploitation and trafficking and how these activities have resulted in international crimes against indigenous peoples. This region “generates large amounts of both licit and illicit wealth from minerals,” and “both state and non-state actors have committed human rights violations and crimes against the local population in the struggle for control over mining areas.” The Mission was eventually renewed on October 4, 2022, under resolution 51/L.41.
However, though these reports highlight the Mission’s constant calls for the Venezuelan state to investigate and prosecute international crimes, the state has made no serious effort.
Despite the Mission’s hard work to expose the current situation, the legal reality in Venezuela might be even harsher than one might think. The main military law can be found in the Organic Code of Military Justice (OCMJ). The Venezuelan military criminal justice system has its origins in 1830, with reforms occurring in 1967, 1998, and 2021. In the latest reform, the code was only modified so that civilians could not be prosecuted under the military’s jurisdiction.
Despite these reforms, the substantive part of the code is old and largely does not correspond to the current legislative needs and international obligations assumed by the Venezuelan state. The code never updated the criminal definitions to allow for the punishment of, for example, the commission of war crimes, at least what provisions were defined within the framework of the Geneva Conventions and their protocols. In this sense, the lack of codification in the legal code of Venezuela signals a glaring gap in the country’s framework. If the military code does not recognize such crimes exist, justice for related crimes against humanity that these forces may commit will remain elusive.
Likewise, the OCMJ does not allow for accountability for the commission of crimes by the military in its higher chains of command. Article 389 of the law establishes the figures of: 1) perpetrators or immediate cooperators; 2) accomplices; and 3) accessories to the crimes. For its part, Article 390 establishes perpetrators as those who “directly take part in the execution of the act,” or those who “[…] force or induce another to carry it out,” and, finally, those who “[…] cooperate in its execution by an act without which the act would not have been consummated. However, such forms of ‘inducement’ and ‘immediate cooperation,’ as known in Venezuela, do not extend as authorship to higher chains since they do not have control of the act, or such actions cannot be imputed to them as their own according to Venezuelan law. This limitation shows a legal vacuum in judging the different modalities of authorship that may arise in the context of the commission of international crimes in the country.
On the other hand, only Article 394 of the OCMJ refers to the “special responsibility of the superior.” However, this stipulation should not understood as responsibility that arises from a superior failing to prevent or sanction a crime, but rather, this type of responsibility is only noted by the issuance of orders. Issuing orders that imply the commission of an international crime implies an action, which would turn that superior into an ‘author’ or ‘participant’ in the commission of a crime and would thus not cover the assumption that a superior needs to act to prevent and punish the commission of a crime. In this sense, the Venezuelan military legislation has no rule that sanctions the failure of a superior to act in response to crimes committed by his subordinates. It should be noted that the Mission has determined how subordinates, who could have perpetrated crimes, have instead been promoted in the chain of command and have obtained economic incentives for participating in the commission of international crimes (see items 210 and 2042 in the first report; and items 302, 438, 455, 459 in the third report).
On the other hand, beyond the military laws, the laws for the civilian sector do not contain any norms that judge the ‘responsibility of the superior’ or the types of perpetrations that allow the prosecution of superiors who are in a power structure, since the Venezuelan law applies mainly to those who directly commit the crime. Thus, the Venezuelan Criminal Code and its last reform do not establish at least a generic responsibility of superiors under any modality. Moreover, the Organic Law of the Police Service and the Bolivarian National Police Corps do not establish the responsibility of superiors for crimes committed by their subordinates. It is worth mentioning that given the characteristics of ‘the Special Action Forces of the Bolivarian National Police (FAES in Spanish)’, one of the special state forces with heavy responsibility in the commission of crimes according to the FFMV would be subject to this law and to the Venezuelan Penal Code in relation to the crimes or offenses that may be committed by these forces.
Finally, Venezuela’s constitution has an immunity protection legal framework which makes it difficult to investigate and prosecute the highest state superiors; for example, the process of impeachment is reserved for the President of the Republic and other officials, according to which they may only be criminally prosecuted if (i) the Supreme Tribunal of Justice (STJ) in Plenary Chamber (20 magistrates) decides that there are sufficient merits for the prosecution, without prejudging their guilt, and (ii) if the VNA authorizes such prosecution (Article 266.1 and 266.3, Constitution). Since such responsibility falls on an STJ that, according to the FFM, would be involved in the repressive apparatus of the state, it is less feasible to judge the Venezuelan superiors.
According to the reports of the FFM and considering what I’ve briefly stated here, Venezuela is unwilling and also unable to prosecute the highest-ranking actors for their commission of international crimes. Therefore, Venezuela needs a legislative policy update that includes crimes related to crimes against humanity and general international crimes; but also, it must create and consolidate a legal framework that determines responsibility, both active and passive, for the highest-ranking perpetrators of such crimes.
Thus, the options for justice regarding the massive human rights violations and international crimes perpetrated in Venezuela seem to rest on international institutions, including the International Criminal Court and universal jurisdiction. At the same time, as possible scenarios, it could be anticipated that transitional justice will have a notable impact on the local situation and/or even the possible creation of internationalized tribunals that could hear all the crimes perpetrated that have been verified in Venezuela, which despite their gravity and consequences, are not being investigated by the ICC given its limited jurisdiction.
Thairi Moya Sánchez is a lawyer with a Master’s in Human Rights at the University of Nottingham and PhD in Law from the Universidad Central de Venezuela. She has been a guest researcher at the Norwegian Center for Human Rights at the University of Oslo and is an associate researcher at the Human Rights Center of the Universidad Católica Andrés Bello. She is currently a postdoctoral researcher and professor of public international law at the Universidad Complutense of Madrid.