The benefits of betting on the ICC have to do with the construction of legal truth, and establishing a legal memory as well, which is the basis for confronting historical denials and the cover-up and complications that always arise after traumatic historical events.
Fernando Fernandez is a Venezuelan lawyer and human rights activist specialised in Economic Criminal Law, International Criminal Law and Human Rights. He is a professor at the Central University of Venezuela (UCV), the Monte Ávila University (UMA) and at IESA Business School in Caracas. He has more than 30 years of Compliance experience against money laundering, terrorism financing, the proliferation of weapons of mass destruction, corruption and human rights violations.
He has been working in the field of human rights and international criminal law since 1977, including as the President of the Executive Committee of Amnesty International Venezuela, and as the Director of the NGO Monitor de Derechos Humanos (DhMonitor), which is dedicated to informing, educating and raising awareness of human rights in Venezuela. He has also worked directly with victims of cases under investigation by the ICC, and has written extensively on the case of Venezuela I. He is the author of multiple publications, and a regular columnist for several national and international publications, including El Nacional Newspaper.
Interviewed by Tania Villanueva Heredia (2023)
The interview was conducted in the spring of 2023 and has been edited for clarity
What has been the purpose of the crimes committed by the state in Venezuela? What was the intended effect on victims, and the intended effect on society?
It is a complex answer that I am going to give you because there is no explicit purpose that is easy to see. But if one takes a historical account of everything that has happened since the Chavista’s attempt to take power by force in 1992 and then the electoral triumph in 1999, one can draw a conclusion: the fundamental purpose has been to obtain power at all costs, through any means. Then, the model of 21st-century socialism was implemented, which is nothing but a reminiscence of 20th-century socialism, repeating many of the models of those regimes. After their entry into power, a new class of wealthy people was created, called bolichicos, boligarcas, etc., who have set out to maintain power at all costs, an absolute, unconditional power, which requires total control of the bodies of the rule of law responsible for establishing a balance: the national assembly, the judiciary, the public ministries and the ombudsman's office. This is the first element that can be deduced as one of the purposes of the crimes; maintaining power today is the driving force behind crimes against humanity.
On the second question, the effect that has been sought through this policy of intimidation, which can be defined as state terrorism, is to instil terror. State terrorism is defined as a state policy that seeks to dominate the population. There is also terrorism exercised by armed groups or gangs, with the knowledge of the state, that seek to control the population from the point of view of obedience or flight. Together, they have caused people to flee in huge numbers, in a mass exodus. As of March 2023, more than 7.2 million people have left Venezuela. It is staggering. They have also managed to paralyse the population around political activity. Of course, there are occasional protests for services (water, gas, telephone), for all sorts of services related to economic, cultural and social rights, but there are no more political mobilisations as there were in 2002, 2014 and 2017. That was the intended effect in order to maintain power, and above all to maintain the great corruption that has been seen in this new class.
Outside of the ICC investigation, are there other mechanisms of international criminal justice looking into the case of human rights violations by the Venezuelan state? Are there other potential mechanisms for bringing justice to victims?
International criminal justice is unique and exclusive, which is the one that is established in a complementary manner in the International Criminal Court, where there are two situations with respect to Venezuela. Situation I, which is where the events that took place from 2014 onwards are formally investigated (although initially it was opened from 2017 onwards, but there are already indications that events from 2014 are being included).
The second situation has to do with the referral made by the Venezuelan government regarding possible crimes that may have been committed as a result of the international sanctions. The people mentioned there as suspects will be those who ordered them, namely presidents Obama and Trump. Interestingly, several of the crimes mentioned in this situation under preliminary examination have a lot to do with the crimes being investigated in Situation I: forced deportation, great suffering for the population, and there is even talk of extermination and murder. So, what the government wants to say is that everything that is happening in Venezuela is the fault of the sanctions and in no way the fault of the Venezuelan government. It is talking about the same crimes but changing the origin of the criminality.
Another issue that should be investigated is supplementary justice, by means of universal jurisdiction. There are countries such as Argentina, Spain, and many European countries, that propose this option, and it is something that must necessarily be implemented in order to seek justice as soon as possible. Universal jurisdiction plays a supplementary role when domestic justice and the International Criminal Court fail.
What are the measures being taken to safeguard the security of victims who provide testimony and share their cases with the ICC/VPRS? Have there been cases where victims have been targeted for speaking up?
So far the measure that has been taken to protect victims is anonymity; it is not known who are the potential victims who have testified, and the ICC is very zealous in protecting their identity. But once the case is established, and there are victims, defendants and trials, then there are mechanisms of impunity that victims share with witnesses, experts and judicial officials. There have always been reprisals and the threat of reprisals against victims in any case, but I am not aware of any specific case of reprisals against victims in the Venezuela I situation in particular, as of yet.
In your experience dealing with victims, how do they define what “justice” would mean for their cases? Outside of holding perpetrators accountable, what other measures do victims cite? What type of reparations or restorative justice measures could be envisioned?
Of course, the first thing they want is justice, by which I mean to see the accused tried. But they also speak of achieving justice through the truth, by knowing and sharing the truth. They ask for the restoration of the damage as far as possible through compensation mechanisms and through mechanisms for the recovery of historical memory. The relatives of those who have been accused of being terrorists especially ask for the reconstruction of historical memory as compensation, to clean the names of their loved ones. The last thing they ask for is non-repetition, that this will not happen again to them or to any other member of society.
How would you respond to someone who says there is no point in pursuing the case at the ICC, due to the difficulties that will be faced in gaining custody of the accused and actually conducting trials? From a victims’ rights perspective, what are the benefits in pursuing the ICC avenue?
There is a lot of scepticism, which is normal, about something that is so new. The Statute is only 25 years old, and it is quite new legislation compared to other treaties that are much older. It is still difficult for people to accept it and to pass on their cases through it, and we don’t see as of yet a widespread sense of the ICC being seen as delivering real justice, the impacts of which can be said to be culturally extensive.
It is nevertheless absolutely necessary and convenient that the investigations continue, and faced with the possibility of the accused not appearing in court, there is jurisprudence on previous cases in which the accused have not appeared that would allow the accused to be tried in absentia; all exceptions should be explored and pursued.
The benefits of betting on the ICC have to do with the construction of legal truth, and establishing a legal memory as well, which is the basis for confronting historical denials and the cover-up and complications that always arise after traumatic historical events. In the case of Germany, every time there is an attempt to deny the facts at the level of historians, politicians, journalists, and philosophers, there is no better proof than to contrast that opinion with the findings of the trials which were based on evidence extracted from Nazi documents. Whenever that is denied, there is the truth which was judged and is clearly reflected in the sentences passed. This is important at a transgenerational level because it is the construction of the cultural historical truth based on the legal truth, which is much more solid than the opinion of historians, journalists and essayists who can argue yes, no, it was 3, 4 or 6 million, etc. All these variations would trivialise, relativise and blur the truth of what happened. That is why we must continue to support the ICC from every point of view.
About the interviewer: Tania Villanueva recently graduated from the Master in International Security at Sciences Po PSIA with concentrations in Africa and Diplomacy, and holds a degree in Politics and International Relations from Queen Mary University of London. She is Spanish-Venezuelan, has lived in South America, Europe, Africa and Asia, and is passionate about the United Nations, conflict resolution, post-conflict peacebuilding and transitional justice.