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Venezuela and the International Criminal Court: the case of Chief Prosecutor Bensouda

A book by Walter Márquez, former ambassador of Hugo Chávez, former parliamentarian and one of the main personalities seeking to prosecute Nicolás Maduro in the International Criminal Court is presented in Caracas today. It denounces the obstructionism of the Chief Prosecutor in The Hague. This is an exclusive interview with its author.

José Zepeda
11 November 2020
Assembly of State Parties at the International Criminal Court in the Hague. .
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Public Domain

Mr. Marquez, in your book you say: "I exhort the President of the Bureau of the Assembly of States Parties of the International Criminal Court, ICC, Judge O-Gon Kwon, to investigate the serious faults of the Chief Prosecutor of this international organization, Fatou Bensouda, for having paralyzed the investigations on the case of Venezuela and for being an accomplice of Nicolas Maduro’s crimes against humanity, and to intervene in defense of the thousands of victims of these atrocious crimes occurred in the South American nation.”

This is a severe accusation.

More severe is the Prosecutor’s actions, who has been in the position for 16 years. As of 2012, she has been 8 years as a Deputy Prosecutor and 8 years as a General Prosecutor. Within the last 8 years, she received approximately two hundred denunciations against Nicolás Maduro, beginning on April 7, 2014, when 198 deputies from Latin America, including Colombian, Argentinean, Chilean and other countries' parliamentarians, asked the Prosecutor to initiate an investigation against Nicolás Maduro for crimes against humanity in Venezuela. Until today, there are numerous reports from Amnesty International, American Watch, and several United Nations agencies and institutions, such as the Commission and the Human Rights Council, which through the two presidents or high commissioners, have pointed out that crimes against humanity occurred in Venezuela. The former High Commissioner, Zeid Ra'ad Al Hussein, expressly spoke of crimes against humanity even before the current President, Michelle Bachelet.

Recently, an independent international mission of the United Nations Regional Council made the same statement. In 2018, the OAS Secretary General, Luis Almagro, presented a report prepared by three international experts who estimated that crimes against humanity were committed in Venezuela. On September 27 of the same year, the Prime Minister of Canada, Justin Trudeau, and six governments of Latin America, Sebastián Piñera President of Chile, Iván Duque of Colombia, Mario Abdo Benítez of Paraguay, Mauricio Macri of Argentina, and Martín Vizcarra of Peru, asked the prosecutor to investigate the crimes.

But, what could be the reasons for the Prosecutor to act negligently?

She is part of the regime’s impunity guaranteed through the Venezuelan Ambassador, Haifa Aissami Madah, sister of the former Vice President Tareck El Aissami, current Minister of Oil. He has been denounced by the United States for his complicity with terrorism and international drug trafficking in the past.

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Chief Prosecutor Fatou Bensouda official portrait. ICC. | Public Domnain

Mrs. Bensouda has held many meetings outside the diplomatic and legal sphere, and it is public and notorious that there is a friendship beyond the diplomatic environment. Reality itself shows that the prosecutor has not been diligent in her role. In other words, she took four years to open a preliminary investigation on February 8, 2018. It has already been two and a half years.

This is just a preliminary examination that simply consists of reviewing whether or not the requirements are met. The United Nations has seen that there are crimes against humanity, the OAS has seen that there are crimes against humanity, the Venezuelan National Assembly has denounced the same, and the Prosecutor has not taken any action because she is an accomplice of Maduro's regime.

We can say that Venezuelan corruption reached the International Criminal Court in The Hague, impersonated as Bensouda.

But there is more. When she was a prosecutor in Gambia, she participated in the repression against political prisoners. We denounced that case, which came to light two years ago when the dictatorship fell. The Truth Commission was then created, and several of the political prisoners denounced Fatou for having participated in the repression against them. She was also involved in collecting money in a bank in Dubai, Arab Emirates when she could not do so because she was a full-time official.

In short, she has not resolved a single case among the hundreds of complaints against Maduro at the International Criminal Court.

You said 120 complaints. Many international bodies claim that crimes against humanity have been committed. Are these antecedents, plus the six Latin American foreign ministers’ pronouncements, not sufficient to set in motion the International Criminal Court’s regulations and initiate Mr. Maduro’s trial?

Article 7 of the Rome Statute defines 8 international crimes as crimes against humanity. The Maduro regime has perpetrated all of them. There have been murders, forced disappearances, and crimes of apartheid due to the ethnic and racial segregation of the Pemón indigenous community in the municipality of Gran Sabana. We have countless political persecutions. The last one has just arrived in Madrid: Leopoldo López, a persecuted man for seven years. Like Antonio Ledezma, he was the mayor of Caracas.

We have the case of the crime of slavery. I did not believe that there was slavery, but there is a modern version of it. People earn less than a dollar a day. The maximum is 30 dollars a month. I, as a retired deputy of the National Assembly, do not even earn 30 dollars. I survive with other income, support from my family abroad, and doing private consulting. Otherwise, I could not support my family. There is also the deportation crime in San Antonio, Táchira, which occurred at the border in August 2015. There is the crime of sexual assault against protestors. In short, there are countless crimes pointed out in the international report.

According to the International Criminal Court’s Rome Statute, only one victim is enough to prosecute a perpetrator. And these crimes are not subject to the statute of limitations. But this lady, given that her mandate ends in June of next year and that the new Prosecutor will be appointed to take office next year in December of this year, just lets time pass.

On the other hand, we have denounced and made what we call ‘the chronology of impunity,’ which includes all the complaints processed from April 7, 2014, to April 15, 2020, countless complaints. What she does is announce that she is going to review the case, but she never does.

Luis Almagro's report for crimes against humanity in Venezuela is four hundred pages long. 200 consist of legal nature and 200 of evidence. The Prosecutor's Office of the ICC has 350 employees. It could be done if one employee read about one page per year, but she simply uses the delaying tactic, thus violating due process. She resorts to extra-procedural arguments that compromise the Prosecutor and the Court itself as a whole because this instance was created to administer justice, not to cover up crimes.

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Walter Márquez's book cover..

Nonetheless, as if the Prosecutor sensed that she would again be the object of severe criticism by the victims’ representatives, she stated a few days ago that The Office of the Prosecutor of the International Criminal Court considers that "there are reasonable grounds to believe that crimes within the jurisdiction of the Court have occurred in Venezuela.” But she refrained from pointing out the crimes and the criminals, which appears insufficient in the path to justice.

The Prosecutor also reiterated that both situations, Venezuela I and II, are under preliminary examination before taking a decision, once completed, on whether to open an investigation. Additional details, including the office's findings on the preliminary examination activities, will be available in this year's end report.

Mr. Marquez, in whose name are you acting before the International Criminal Court?

On behalf of victims of forced deportation. I also chair El Amparo Foundation, a human rights NGO created based on the case and investigation of fishermen’s collective crime on the border, which occurred 32 years ago in El Amparo. That is why we created the Foundation, to protect the Venezuelans’ human rights, especially in the border areas. Currently, I am part of the International Committee against Impunity in Venezuela, of which I am the general director and which is presided over by William Rubio, who is in Madrid, and is also made up of Paciano Padrón and Luis Corona, who are in Miami. It is a team of Venezuelans who have united around the cause of justice and freedom to achieve, through the International Criminal Court, a partial resolution of the Venezuelan crisis, because if justice is activated and Nicolás Maduro is indicted, the need for a new presidential electoral process is generated.

An international criminal solution is more effective than economic pressure from the international community.

Therefore, rather than calling for coercive military measures that are high risk by nature, what we want is international criminal sanctions against Nicolás Maduro. The economic sanctions that have been promoted by the European Union, the Lima Group, and the US State Department have a partial impact. Hence, we consider an international criminal solution more effective than economic pressure from the international community.

Does the President of the Board of Directors of the Assembly of States belonging to the International Court have the power to fix this situation?

The Rome Statute provides that the assembly of state parties has functions of administrative and disciplinary nature. The Assembly meets typically in December at The Hague or New York. This year it will meet in New York. Its board of directors is composed of 21 countries. The General Assembly consists of 132 nations. The board is an executive committee. They have the power to apply sanctions. Therefore, through the independent oversight mechanism, the president, a kind of inspectorate general, can verify all the evidence submitted. The simple fact of seeing an unjustified delay in the initiation, processing, and resolution of the case means opening an investigation and sanctioning the Prosecutor.

There are three ways to resolve this issue. The first is for the Prosecutor to inhibit herself. We have asked her to dispense and withdraw voluntarily from the case. The second is to recuse her. The countries that reported her can do so. And the third way is removal from the table of the Assembly by the state parties.

According to the jurisprudence and doctrine of the Inter-American Court of Human Rights and the European Court of Human Rights, a judicial officer must not only be one but appear to be one, as was said concerning Caesar's wife. She neither looks like one nor is one. The reality says quite the opposite.

Moreover, she is obliged to comply with the United Nations international judicial rules approved in Bangalore, India, and with the principles on judicial behavior approved in Doha, Qatar, to which we must add the International Convention against Corruption. These are provisions that oblige the Prosecutor to be diligent in the exercise of her office.

Six years are more than enough for her to review a single case, but she is determined to accumulate everything. The Prosecutor's Office has become a repository for complaints.

She points out that there is no procedural time limit for decisions, which is not true because the Rome Statute refers to the supplementary law, which establishes that if there are no rules in the Rome Statute, they are sought in international criminal law. If they are not found there, they are referred to the State’s rules where the crimes under investigation occurred.

In Venezuela’s specific case, the Organic Criminal Procedural Code establishes a minimum period of one year for this type of crime and a maximum period of two years. In other words, complaints filed in 2014 must be resolved in 2016. Our denunciation against Maduro for the crime of forced deportation made in 2016 should have had a resolution already in 2018.

There is an example that shows the partiality with which the Prosecutor acts. In Myanmar, there was the forced deportation of members of the Rohingya Muslim ethnic group from Myanmar to Bangladesh. This happened in August 2017. In 2018 the Prosecutor's Office opened a preliminary examination. In December 2019, the Court authorized the opening of an investigation. The forced deportation at the border between Colombia and Venezuela occurred two years before that of Myanmar.

The Office of the Prosecutor has also investigated crimes against humanity in Israel that are not part of the Rome Statute, crimes in Afghanistan concerning the United States, which are also not part of the Rome Statute. But she is not acting on Venezuela’s, which is a party, and neither on the six countries’ requests denouncing Maduro, which are also part of the Rome Statute.

This is clear evidence that Bensouda is biased, committed to the regime, and in accomplice by action and omission to the crimes against humanity committed by Nicolás Maduro.

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