Former Canadian Justice Minister: Venezuela should be referred to the ICC
By Janet Anderson
Venezuela has been consistently in the news for the worst reasons: political crisis, demonstrations, arrests, deaths in detention. Many of the allegations of human rights abuses are attributed to the Venezuelan government under President Nicolas Maduro.
To investigate these allegations, the Secretary-General of Organization of American States (OAS) designated a panel of three independent international experts in 2017 to get to the bottom of things and, if necessary, to recommend a referral to the International Criminal Court (ICC). The panel made up of Manuel Ventura Robles, a former judge on the Inter-American Court of Human Rights, Santiago Canton, the former executive secretary of the Inter-American Commission on Human Rights and Irwin Cotler, Canada’s former justice minister, released its 800-page report in Ottawa at the end of May.
The report’s findings are unequivocal: The three panelists found “reasonable grounds” that crimes against humanity have been committed in Venezuela. The three experts further recommended that the Secretary General of the OAS should submit the report and the evidence collected to the Prosecutor of the ICC and called for the opening of an investigation into the crimes against humanity set forth in the report.
Venezuela has reacted to the OAS report by announcing that it will withdraw from the Organization of American States (OAS).
"This is the last OAS General Assembly where the Venezuelan foreign minister participates, we criticize the OAS and we withdraw," said President Maduro.
Justice Hub recently spoke to Irwin Cotler about the report that he and other legal experts submitted to the OAS. The interview is published here as part of our #MyJustice series.
Justice Hub: What time frame was the panel of independent international experts working with?
We started our work in September, almost immediately with the appointment. We established a series of public hearings that took place at the OAS headquarters in Washington. We had three sets of hearings and the testimonies were very compelling from former mayors who had been dismissed or exiled severally with regard to former political prisoners. Effectively we had witness testimonies from all branches of the government.
Just to mention one very revealing testimony - because it has to do with one of the leaders of the democratic opposition Leopoldo Lopez - the testimony that we heard was number one from Judge Ralenis Tovar who is now seeking refugee status in Canada. She testified to the effect that she was in fact ordered to issue an arrest warrant for Leopoldo Lopez by the government itself. Franklin Nieves, a prosecutor in the case who also has escaped Venezuela, testified to the fact that the charges against Leopoldo Lopez were false, trumped up and that Lopez was innocent.
The third category of witness testimonies were those who demonstrated that they had been themselves the victims of torture in order to coerce false confessions from them against Lopez.
All this demonstrated a far larger issue. Namely that there is no independent judiciary in Venezuela. In fact, judges and others recounted how they were warned that unless they comply with regime orders they might experience the same fate as Justice [María Lourdes] Afiuni who is a woman that was herself tortured back in 2009. We saw:
1. No independent judiciary,
2. No independent prosecution and,
3. A government not only interfering with the independence of justice but in effect no rule of law in Venezuela.
It is a situation where all the independent institutions have been effectively taken over by the government, whether they be the national assembly (parliament), the courts or the prosecutors.
Justice Hub: Venezuela is a State Party to the Rome Statute. What’s your sense of what has gone wrong in regards to Venezuela’s obligations as a signatory?
Cotler: This year is the 20th anniversary of the Rome Statute establishing the International Criminal Court, and I am very conscious of the matter of the importance of the independence and the integrity of legal institutions. What our report demonstrates, both in terms of findings of facts and conclusions of law, is that crimes against humanity, tragically, have been committed in Venezuela. We will be able to document this from 2014 in areas such as murder, torture, imprisonment, persecution etc. These are crimes effectively under the Rome Statute. Venezuela, to its credit, is a state party to the ICC. One of the early state parties to the ICC. Regrettably, rather than itself be a state party that took responsibility, in other words, one that did not engage in crimes against humanity, Venezuela, has done the opposite.
If in fact such crimes against humanity had taken place under the principle of complementarity, Venezuela would have investigated and held those who engaged in such crimes accountable. The problem is not only that the crimes were committed but the culture of impunity that attended these crimes. What you effectively have in Venezuela is a culture of criminality and corruption underpinned by a culture of impunity. What one would have hoped to be the contribution by Venezuela to the pursuit of international justice, to the combating of impunity, have been turned on its head and the complementarity is not only absent but in fact, those who should be demonstrating complementarity have been the perpetrators themselves.
Justice Hub: The narrative around Venezuela internationally is very much that this is just a highly politicised conflict of left vs right. Is it really right to get involved in that kind of a dispute at this level and to deal with it at the judicial level?
Cotler: I think we have to look at this in terms of the principles that underlie the pursuit of international justice. We look at Venezuela in terms of pursuing international justice. To me the real issue is principles of accountability, combating impunity and always bearing in mind the importance of the victims, the importance of the Venezuelan people themselves who have been the target. They would not regard themselves as being left or right. When infant mortality goes up 30%, when maternal mortality goes up 60% a year because there is no food and medicine and this results from a government-sanctioned decision to reject humanitarian assistance and with that rejection of humanitarian assistance also engages in discriminatory distribution of such assistance when it takes place to benefit government supporters, then you are in a situation where politics is not the issue. The real issue is the welfare of the people. The real issue is pursuing international justice and accountability.
Justice Hub: Do you expect Venezuela to stay a member of ICC?
Cotler: I would hope that Venezuela would stay a member of the ICC. I think it made the right decision to ratify the treaty, I think Venezuela could demonstrate and I hope that that will yet come about that it becomes a contributor to the pursuit of justice as a state party to the ICC rather than a government that is engaged in violations of that very Statute that they undertook to adhere to and promote as part of the international community.
Justice Hub: Would you expect the ICC's preliminary examination to conclude quickly with the amount of evidence that you were able to provide?
Cotler: I think the evidence that we are providing is really evidence that has been out there in the public arena but may not be as well known as it needs to be nor has there been enough of a legal analysis of that evidence. I am referring, for example, to reports emanating from the UN High Commissioner for Human Rights and reports emanating from leading NGOs in that regard, both Venezuelan and international like Human Rights Watch.
I'm referring to judicial evidence arising from the Inter-American Court of Human Rights and then, of course, the evidence that emerged from the public hearings that we held at the OAS that are publicly available and where the documentary evidence and witness testimony is very compelling with respect to the commission of these crimes.
I think the decision by the [ICC] prosecutor to open an examination into Venezuela was an important decision, welcomed by our panel and the OAS. I think this also takes away from the politicisation of the issue. It is not that we are asking Venezuela to open up an examination of this situation in Venezuela, the prosecutor has already made the decision to do so. They themselves independently opened up an examination of the situation in Venezuela. All we will be doing now is providing them with findings of facts, conclusions of laws as we see it that will allow them to determine whether they now should open up an investigation and move to the next stage in that regard. We for our part will make our report public and not only convey it to the special prosecutor. We believe, as they say, the facts and the law will speak for themselves.
I have to tell you that each time we made a determination that there was a reasonable basis to conclude that, let's say, a crime against humanity had been committed, we did so with a great deal of pain and sadness. Because behind those words "crimes against humanity", are people who suffered, are the targets of such criminality, are those who would have seen Venezuela as what could have been an instrument for the pursuit of justice and a state party to the ICC but became what our own [Canadian] Foreign Minister Chrystia Freeland has called the slide into dictatorship in Venezuela. That slide has been attended by crimes against humanity and we must never forget that it is the Venezuelan people whose pain and plight must always be at the forefront of our concerns and our inquiry.
There is no politicisation in this. We are there, as best as we can, to put forward evidence and legal analysis submitted to the prosecutor who can then make her arguments as to whether an investigation should be opened up following the initial preliminary examination and take it from there.
We, for our part, have tried to make this as independent, impartial and as comprehensive an inquiry as we can. I'm not saying that we will be without fault or criticism. I'm just saying that we have always at the forefront seen Venezuela, to its credit, as a state party to the ICC. We have judged it in accordance with the undertakings that as a state party it itself undertook to adhere to respect and then we effectively evaluated it under the lens of pursuing justice and combating impunity.
Photo: Janet Anderson/Justice Hub