Corte Penal Internacional: La situación en la República Bolivariana de Venezuela 1
INTRODUCTION
- In the “Observations of the Government of the Bolivarian Republic of Venezuela to the Prosecution request to resume the investigation”,1 the Bolivarian Republic of Venezuela2 requests the Chamber to rule that 1) the Court lacks material jurisdiction, alternatively 2) the admissibility criteria are not satisfied, alternatively 3) the GoV itself has investigated and prosecuted the alleged crimes or is currently doing so, and 4) the Prosecution’s Preliminary Examination3 is in breach of due process. As set forth below, the Prosecution respectfully submits that none of those requests have merit.
- First, the GoV’s challenges to jurisdiction and gravity are not properly before the Court. Article 18 of the Rome Statute4 provides a narrowly limited mechanism for States to bring a preliminary admissibility challenge on complementarity grounds. There is no provision in the Statute allowing a State to challenge the opening of an investigation on jurisdictional or gravity grounds, or on the grounds of interests of justice, at this stage of proceedings. This is because a jurisdictional assessment is already a prerequisite for the opening of an investigation, whether by the Pre-Trial Chamber under article 15(4) or by the Prosecutor under article 53(1)(a), and so there is no need for this to be repeated under article 18. Likewise, the Prosecutor is always obliged to make a threshold assessment of sufficient gravity and consider interests of justice under article 53(1)(b) and (c) or rule 48 of the Rules of Procedure and Evidence.
- Second, regarding jurisdiction, the GoV’s request that the Chamber review the Prosecution’s jurisdictional assessment or issue a decision under article 15(4) lacks merit. Since on 27 September 2018 a group of State Parties referred the situation to the Court, the Prosecution may decide to investigate once it has determined that the requirements under article 53(1) are met, without requesting judicial authorisation under article 15(3). Moreover, the GoV’s contention that there was no systematic attack on the civilian population, and that no crimes were committed in furtherance of any State policy are unsupported and at odds with the Prosecution’s determination in its thorough PE
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