By Luis Manuel Aguana
We have all seen in the films the
culminating moment when a jury of “twelve righteous men”, after having heard
and examined the evidence and the expositions of the prosecutor and the
defense, retires to deliberate, then to give his opinion of guilty or not
guilty of a defendant in a trial. If the accused is found guilty, then it is up
to the Judge to pronounce sentence.
Something
similar has happened to the regime of Nicolas Maduro yesterday when the United
Nations High Commissioner for Human Rights published his report on the
observation of Human Rights in Venezuela, titled “Human rights violations and
abuses in the context of protests in the Bolivarian Republic of Venezuela from
1 April to 31 July 2017” (see complete Report in http://www.ohchr.org/Documents/Countries/VE/HCReportVenezuela_1April-31July2017_EN.pdf).
After reviewing the facts and analyzing
all the evidence and arguments, the regime has been found guilty of violation
of Human Rights by “a jury of 12 righteous men”, if we may call this way an
impartial international body like the United Nations. The judgment of the Judge
is still missing for those to whom it corresponds. But that will come later in
another international instance called the International Criminal Court (ICC). I
do not believe that the regime is fully aware of the gravity of the situation
and denies it, as they deny the slightest justice to Venezuelans. Or perhaps it
is, and that is why it came out to immediately reject the UN report (see
Venezuela rejected a UN report on human rights in Venezuela, in http://www.eluniversal.com/noticias/politica/venezuela-rechazo-informe-onu-sobre-ddhh-venezuela_665157) thinking that with that weak argument can stop what
comes next.
In this case, it is not for us to
convince. Already the jury gave its verdict. And it is a verdict with which we
Venezuelans totally agree because we suffered during the period of that Report,
and we still suffer. But that's not the point at the moment. That the regime
tramples on the Human Rights of Venezuelans is a common currency in Venezuela.
What is important is that the evidence is certified by the international
community as valid because they now come under the seal of the United Nations
High Commissioner for Human Rights, through this Report published in Geneva on
30 August . This is completely new and decisive.
It is very
important to specify that if there is something that has been difficult to
demonstrate independently is that the acts that the government has done against
Venezuelans are part of “a widespread or
systematic attack directed against
any civilian population, with knowledge of the
attack”, as
established in Article 7 of the Rome Statute, creator of the International
Criminal Court, as a definition of crimes against humanity (see Rome Statute of
the International Criminal Court
https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf); ); and
that is what this Report of the UNHCHR has established despite what the regime
says.
Certainly, previous steps have been
taken before the International Criminal Court to accuse the regime of crimes
against humanity, but have so far been completely unsuccessful (see Four
complaints against Maduro in the International Criminal Court http://efectococuyo.com/principales/ya-son-cuatro-las-denuncias-contra-maduro-en-la-corte-penal-internacional). That is why we Venezuelans must know how things
happen within the scope of this International Court in order to understand why
so far it has not been possible to prosecute them, despite the obvious
violations of Human Rights by Nicolás Maduro and the main people in charge of
his government.
First, it
is not enough to bring complaints to the ICC, however valid they may be, and
wait for that instance to move. According to Article 13 of the Rome Statute,
there are three competent authorities to initiate a process in the ICC: a) A
State that signed the Statute; b) The UN Security Council; and c) the
Prosecutor of the ICC by office: “The
Prosecutor may initiate investigations proprio motu on the basis of information
on crimes within the jurisdiction of the Court” (Article 15.1 Rome Statute)
(see –in Spanish- Sobre la instrucción del proceso penal ante el Tribunal Penal
Internacional http://perso.unifr.ch/derechopenal/assets/files/articulos/a_20080521_90.pdf).
So far, neither a State party to the
Rome Statute nor the UN Security Council have taken the initiative to bring our
case to the ICC. It remains for us to do so by letter of the Office of the
Prosecutor (OTP) on the basis of documentation submitted for complaints that we
generate, and which the latter deems sufficient to initiate the investigation,
with the prior authorization of an ICC known as the Pre-Trial Chamber (PTC).
Then, a) if
the ICC Prosecutor, now in charge of the ICC Chief Prosecutor, Fatou Bensouda,
is convinced that there is sufficient ground to open an investigation, he must
submit the petition to the PTC; and b) “If
the Pre-Trial Chamber, upon examination of the request and the supporting
material, considers that there is a reasonable basis to proceed with an
investigation, and that the case appears to fall within the jurisdiction of the
Court, it shall authorize the commencement of the investigation, without
prejudice to subsequent determinations by the Court with regard to the
jurisdiction and admissibility of a case.” (Article 15.4)”.
To date, there is only one
Venezuelan case submitted for consideration by the ICC, but it has not passed
the filters described above. In fact, the last processed by the ICC and
published on its website were some complaints made since July 2002 and did not
pass the preliminary examination of the Court, so the case was closed (see Case
of Venezuela in https://www.icc-cpi.int/venezuela). So far there are only ten (10) cases under preliminary examination in
the ICC, without even having begun the investigation: Afghanistan, Burundi,
Colombia, Gabón, Guinea, Irak/UK, Nigeria, Palestina, Unión de Comoros, Ukraine
(Ucrania) (see https://www.icc-cpi.int/Pages/Preliminary-Examinations.aspx).
So the path
we have is long but not impossible. We must convince Prosecutor Bensouda that
the premises of the Rome Statute have already been established. The fact that
in the conclusions and recommendations the UNHCHR Report states: “The
Generalized and systematic use of excessive
force during demonstrations and arbitrary
detention of protestors and perceived
political opponents indicate these were not
illegal or rogue acts of isolated officials…” (P. 33), shows that it is the State
that is applying the widespread and systematic persecution of the population,
which is perfectly in keeping with the premises of crimes against humanity of
the Rome Statute; which makes Nicolás Maduro and all those who mobilized the
repressive state apparatus that caused the deaths, injuries, abuses and
arbitrary detentions and enforced disappearances in Venezuela, subject to
prosecution for Crimes against Humanity in the International Criminal Court at
Hague. It remains for us to assert the verdict of the UN and ultimately the ICC
Judge to determine the sentence.
Caracas,
September 1, 2017
Email: luismanuel.aguana@gmail.com
Twitter:@laguana
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