This article was originally published at CEPAZ, where a number of other posts on Venezuela and international criminal justice will be published over the coming days. The post is also available in Spanish here.
In September 2018, six states – Argentina, Canada, Chile, Colombia, Paraguay, and Peru – jointly referred the situation in Venezuela to the International Criminal Court (ICC). Their decision to ask the ICC to investigate alleged crimes against humanity committed by the regime of Nicolás Maduro was unprecedented. Never before had states pooled their power and influence in order to issue a multi-lateral referral to the Court. Observers of the ICC and those affected by violence in the country could be forgiven for thinking that the joint referral would lead to swift action by the Prosecutor of the ICC. An investigation into Venezuela seems as likely to be opened next week as in ten years – or perhaps even never at all. The timing of events at the Court is unpredictable. But that may soon change.
Why the Joint Referral?
Seven months prior to the joint referral, the ICC Prosecutor had launched a preliminary examination into the situation in Venezuela. The country is a state party to the ICC and, despite purportedly being in the Court’s crosshairs, has not intimated any interest in withdrawing its membership. Any alleged international crimes being committed in Venezuela are therefore fair game for the ICC; they fall under the Court’s jurisdiction. One might then ask: what was the added value if the situation in Venezuela was already being examined?
Firstly, the referral obviated any need by the Prosecutor to seek the approval of judges to open an official investigation. This removed a legal obstacle that would, invariably, delay the opening of any investigation by at least the few months it takes ICC Judges to decide on such matters.
Second, the coalition’s referral was a demonstration of multilateral interest in an ICC investigation and an act of political support for such an outcome. As Nicholas Ortiz opines, “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 (…) It gives the Prosecutor, in the long term, the ability to expedite the opening of an investigation.”
Notably, investigations are opened much more quickly into situations that have been referred to the ICC by states (or the United Nations Security Council) than those that are opened proprio motu – upon the Prosecutor’s own volition. In theory at least, the referral should therefore have spurred action by the ICC Prosecutor to move towards an official investigation while raising the costs of dithering or not doing so. As Daniel Marín López and Aaron Acosta write, it should provide the ICC with an “undisputable opportunity to investigate grave crimes in Venezuela”.
Of course, we cannot discard the possibility that the referring states were more interested in the political ramifications of an ICC referral than the consequences of an investigations. Their actions may have been borne more of a desire to put pressure on the Maduro government than a conviction about the utility of an ICC investigation. But for all intents and purposes, the joint referral communicated political interest in an official investigation and removed a legal obstacle to doing so. The real impact of the referral was therefore to speed up the timeline of decision-making, to spur on the preliminary examination, and to galvanize an investigation.
It has been almost a year since those six states jointly referred the situation in Venezuela to the ICC. And yet, Venezuelans wait. The coalition of states that referred the situation to the ICC wait. Observers of the Court wait. We all wait.
The Gears of Justice Grind Slow – And Patience is Wearing Thin
It is not so much that the ICC is slow, although that has been a common critique levied against the institution; the real problem is that there appears to be little-to-no coherency to the timing and duration of decisions at the Court. Be it the Office of the Prosecutor requesting to open investigations or issue warrants or Judges deciding whether or not to grant such requests (hello, Afghanistan!), there is no apparent logic to why the organs of the ICC do what they do or when they do it. Sometimes things move deftly. At other times, decision-making seems glacial. This unpredictability could plausibly be strategic– but there is no indication that this is the case.
For the better part of its existence, the ICC could point to ‘growing pains’ for the lack of efficiency or the seemingly ad hoc manner in which many decisions were made. Many of the decisions that the ICC had to make were being made for the first time by any international tribunal. The leash was fairly – and rightly – quite long. But with a string of stinging prosecutorial defeats in the courtroom, protracted decision-making on cases like Afghanistan, poor crisis and communication management in response to states opposed to the Court, self-defeating and tone-deaf moves such as the Court’s own President suing the institution, and concerns about the quality of staff, state patience is running thin. Just a year ago, the United Kingdom – whose conduct in Iraq is under preliminary examination – declared that some investigations and examinations “are as old as the Court itself. This situation is not sustainable.”
Most member-states of the ICC, including the ICC, remain committed. But they want more bang for their buck – and a better return on their moral and political investment in the Court. One area they are increasingly homing in on is preliminary examinations. Continue reading