In order to assess whether to open an investigation the Prosecutor of the ICC has to determine whether crimes against humanity were committed “pursuant to or in furtherance of a State or organizational policy to commit such attack”. (Article 7(2)(a) of the Rome Statute)
A policy requires that the state or organization actively plan, direct or organize the attack against the population – as opposed to spontaneous or isolated acts of violence. While such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack, the existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.
Indicators of such a policy include:
- The scale of the acts of violence perpetrated;
- Crimes following the same pattern in different locations;
- a political programme or media propaganda encouraging attacks;
- The establishment and implementation of autonomous political or limitary structures at any level of authority that are not accountable;
- Discriminatory measures, whether administrative or other;
- The general historical circumstances and the overall political background against which the criminal acts are committed
On the Friday 15th September 2017, retired Venezuelan military officers testified before during the second session of the Organization of American States (OAS) about the existence of a systematic plan against dissidents who the government in Venezuela.
The session was led by Luis Moreno Ocampo, former prosecutor of the International Criminal Court and was attended by: Captain Igor, Lieutenant Colonel José Gustavo Arocha and Major General Garcia Plaza, who noted among those responsible for the facts alleged : Nicolás Maduro, Cilia Flores, Tarek El Aissami, Diosdado Cabello, Gustavo Gonzalez Lopez, Jorge Rodriguez, Maikel Moreno, Freddy Bernal, Hector Rodriguez, Douglas Rico, Carlos Perez Ampueda Néstor Reverol, and Luisa Ortega Diaz.
Captain Igor Nieto stated that the use of the armed forces for political purposes is not a new element. He began his testimony denouncing secret meetings (2003-2005) between former Commander of the Unified Command of the National Armed Forces (CUFAN), former President of the National Electoral Council (CNE), Francisco Carrasquero and Jorge Rodríguez during which military personnel ordered the opening or closing of polling stations intended to favour the government in the results.
Nieto also stated that civilians are being been removed from civil jurisdiction to be brought illegally to military courts for treason and attack the sentry. This shift occurred in March 2017 after the Attorney General, Luisa Ortega Diaz, noted that state action was not consistent with the guidelines and standards of human rights. He also noted that military jurisdiction is controlled entirely by the president of the Military Court and that military prosecutors and defenders, receive orders from the Minister of Defense; while the Sectoral Directorate General of Military Intelligence, who participates as an investigative body in military trials, reports directly to the Presidency of the Republic. He concluded his statement indicating that the government pursues relatives of exiles, violating the principle of personal responsibility in criminal law.
Lieutenant Colonel Gustavo Arocha, testified to the acts of persecution, harassment, and torture to which he was subjected by the Venezuelan government. He stated that he was arrested and falsely charged of terrorist financing and was transferred to “La Grave”- the tomb, a place identified as ” torture center” 5 levels below the ground surface. In his account Arocha said that the officer directly responsible Gonzalez Lopez, who often visited him in the tomb asked him to provide information against Pedro Mario Burelli, Antonio Ledezma and María Corina Machado who he intended to incriminate with the crime of attempted assassination of President Maduro.
Arocha reported that everything happened with the consent of the prosecution, the courts, and the National Executive. Lieutenant Colonel prosecutor reportedly told him: “I am waiting for instructions from SEBIN to know that we’re going to do with you” and that the President of the Republic had issued an authorization to be granted house arrest if he agreed to testify against opposition leaders, which he eventually agreed to after 6 months in the tomb.
The third intervention was Major General Herbert García Plaza, who explained the connection between persecution and activation of the military plan Ezequiel Zamora, ordered by President Nicolás Maduro. The Major General noted that from the time the Commander in Chief activates a military plan the military objects becomes an enemy. In the case of Plan Zamora, civilians “guarimberos” are considered an enemy and military act accordingly.
Lastly, García Plaza, who was also Minister for Food, said that the Venezuelan government used political criteria in the distribution of food under state control: “Instead of using the criterion of extreme poverty would be replaced at that time by other characterization or designation parishes were politically prioritized “. García Plaza stressed that this was an order issued by President Nicolás Maduro through a telephone conversation.
For more details please see OAS Spanish Summary.