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Statement by the Secretary General of the OAS on the report that found “sufficient basis” of crimes against humanity

  May 29, 2018

The essential commitment that compels us in this effort is to keep the Hemisphere free of crimes against humanity, given the responsibilities arising from our legal instruments and declarations, and the binding mandate of our recent history.

The General Secretariat (GS) of the OAS is unable to ignore the reports and testimony presented for years by Venezuelans who have endured persecution by the regime. This testimony was presented to the OAS specifically by those who had already reported these cases or had decided to appear before our Organization in the quest for justice. The GS of the OAS has not evaluated those accounts, this being the purview of the International Criminal Court. Instead, we have striven to ensure that that information had proper judicial reading through the work of the Panel of Experts designated for that purpose.

Based thereon, we understand it to be the legal and moral obligation of the International Criminal Court to investigate these allegations. Other reports have been submitted to the Office of the Prosecutor of the International Criminal Court, some long ago and others recently. We are aware that that internal evaluation period has led to an authorization to initiate an investigation.

On repeated occasions, I have indicated that the OAS must be a moral force, the force that gives voice to the voiceless, that overcomes discrimination, and that kindles justice where conditions for it are absent. All this is surpassed by the moral force of the testimony we submit in this document. It is the moral force of the victims and their family members who need and struggle for justice, those who every day must fight to leave behind them the aftermath of torture, those who must overcome grief over a murdered family member, and those imprisoned for their political beliefs.

In the GS of the OAS, we have listened to each such expression of suffering because underlying them all is criminal liability, that of those who gave the orders and those who executed them. Fighting impunity is the work of all, but especially of those of us with direct obligations to condemn these types of crime.

We adhere, as does this document, to the precepts developed by jurists such as Geoffrey Robertson.

Mens rea is required for crimes against humanity, i.e., the intent to commit a crime (murder or rape) and awareness of the broader context of that that crime, that is, the context of political persecution. Clearly, the repressive action may also be characterized as discriminatory, focused solely on the civilian population politically opposed to the regime. Also evident is how all areas and competences of the State served that purpose.

In no case would it be acceptable to prosecute low-ranking officials or security force members. This would only be used by authorities to seek impunity. Justice would never be served because those ultimately responsible would never prosecute themselves under this system of government.

The ICC is a system complementary to national criminal jurisdictions, and creates a system affording protection to everyone everywhere. Crimes such as those described in the testimony herein are sufficient to appeal to the universal conscience since they clearly indicate the impossibility of obtaining justice in their regard in the victims’ country. Clearly, those crimes have not been investigated, and no truth established nor justice served.

The fully involved State has had in the judiciary an instrument of repression and impunity. Venezuela’s obligations to investigate, prosecute, and provide reparation in cases of murder and torture by the State structure have been utterly violated. The State has an obligation to use the means available to it to conduct serious investigations of violations committed within its jurisdiction, identify those responsible, and provide reparation to victims. This has not occurred, rather the opposite: in many cases, victims or their family members have had to seek security in exile.

Neither may sovereign immunity be cited in these cases. The legal instruments reject impunity in cases of crimes against humanity. It is imperative to determine responsibility, without any possibility of immunity. Evidently, crimes against humanity in no case are or can be among the functions of heads or state or government; hence such authority cannot be cited in seeking jurisdictional immunity.

As the doctrine indicates, it is false to assert that the possibility of reaching peace accords is compromised through the investigation or prosecution of crimes against humanity. Evidently, the accusations against Karadzic and Mladic of crimes against humanity led to their gradual loss of power, and their absence from Dayton assisted in achieving the peace accords.

These crimes are an affront to the conscience and well-being of humankind. As indicated in the preamble to the Rome Statute of the ICC: “the most serious crimes of concern to the international community as a whole must not go unpunished” and the States Parties to the Statute announce their determination to put an end to impunity.

The question to be asked is has there been torture? Have demonstrators been murdered? Have there been imprisonments for political reasons? Have victims been raped and/or sexually abused? Have these things been done using the power of the State? Has this been done in pursuance of political aims? Were these oppressive elements organized so as to align all components of the State towards the same objectives? Were elements not vested with State power, such as the “collectives” [a type of community organization that supports the Venezuelan government and the Bolivarian Revolution] also aligned towards the same objectives? Were the acts done to silence or stifle political dissent? Could the actions be characterized as politically discriminatory?

These are State crimes, organized, ordered, and implemented by the State. The State apparatus in its entirety has been and is the mechanism used to terrorize the Venezuelan population. The fact is that the individuals indicated in these reports and testimony are part of the State apparatus marshalled to subject the population to a specific political design, to stifle and make an example of the political opposition, and to maintain a specific political structure in power. The armed collectives pursued exactly the same State objectives, groups used entirely for such repressive action.

In no case did the State or its authorities, primarily its highest authority, take reasonable steps to put an end to or punish these actions. On the contrary, its operation was clearly designed to implement duly hierarchical and organized repressive processes. Probably not since Nazi Germany has been seen such a perfectly synchronized operation at all levels of the State in pursuance of those objectives—from denying political dissidents the bags of groceries distributed by the “Local Production and Supply Committees” (CLAPs), blunting the action of political dissidents, intimidating and repressing the population, guaranteeing impunity through the judiciary, the Office of the Public Prosecutor, and the Public Defender’s Office, dismantling the armed forces, and the other examples contained in the documents presented.

Or course the International Criminal Court is a relevant actor in political terms, but in this case we do not pursue such an objective. We seek the justice that has eluded it throughout this period. The ICC cannot appear to favor one or another government. Its pronouncements must be clear in that regard. No victim is responsible for his or her own torture, rape, or murder.

For these reasons, this report will be sent to the International Criminal Court to reinforce the probative evidence of the complaints already submitted, like that of Tamara Suju of the Casla Institute. At the same time, this document will be the basis for the efforts will make with OAS member countries and observers, so they can represent the complaints formulated before the International Criminal Court.

Reference: S-024/18