The International Legal System is Broken. Taking on Venezuela Could Fix It | Opinion

Despite mounting evidence of the Nicolás Maduro regime's crimes against humanity in Venezuela, the international organizations tasked with addressing human rights violations have largely failed to act. This failure is an embarrassment to the international rule of law, and more importantly, is an inexcusable injustice to the many victims of such crimes. Fortunately, it is not too late for the international community to pursue legal action. Only by acting quickly to hold the Maduro regime accountable, however, can the international liberal order reassert its authority and legitimacy.

Venezuelan security and intelligence agencies routinely target those whom the Maduro regime considers a threat to its survival, and subjects them to arbitrary detentions, enforced disappearances, extrajudicial executions and torture. According to Human Rights Watch, between 2016 and 2019, authorities executed around 20,000 individuals for alleged "resistance to authority." Of particular concern are the actions of Maduro's so-called Special Actions Force, which stands accused of killing thousands of citizens over the past several years, often going to great lengths to falsify evidence to justify their use of violence.

United Nations High Commissioner for Human Rights Michelle Bachelet detailed in a recent report the regularity with which abuse and torture continue to be used to intimidate and repress Venezuela's political opposition. Conditions show no signs of improving, and the report also notes that the lack of journalistic freedom in Venezuela severely hinders the ability to document these abuses.

In addition to the Maduro regime, criminal organizations in Venezuela operate within a permissive environment that exacerbates human rights abuses. Colombian guerrillas, Iranian-linked terrorists and a host of unsavory non-state actors have taken refuge in the country, which contributes to an epidemic of kidnapping, child soldiery, sexual violence and forced labor. Often, the Maduro regime leverages these groups as instruments of state power.

The organization with the clearest mandate to address the Maduro regime's crimes is the International Criminal Court (ICC). The former chief prosecutor of the ICC Fatou Bensouda once promised to launch an investigation into Venezuelan crimes against humanity, and in 2018, Argentina, Canada, Chile, Colombia, Paraguay and Peru implored Bensouda to initiate proceedings. Nevertheless, the ICC neglected to pursue charges against any member of the Venezuelan government.

As a result, the Organization of American States reprimanded the ICC in 2020 for failing to investigate the Maduro regime. Bensouda responded by admitting that there was a "reasonable basis" to believe reports of Venezuelan crimes, but she carefully avoided making any concrete decisions about an investigation.

Bensouda's days at the head of the ICC are now over, clearing the way for the new chief prosecutor Karim Khan to open an investigation. He must reject his predecessor's penchant for dithering, as well as the Maduro regime's many desperate attempts to delay, and swiftly begin the process of prosecuting Venezuelan officials for atrocities.

President Nicolás Maduro of Venezuela gestures
President Nicolás Maduro of Venezuela gestures as he speaks in a press conference at Miraflores Palace on February 17, 2021, in Caracas, Venezuela. Carolina Cabral/Getty Images

Yet, victims of the Maduro regime need not rely entirely on the ICC. Another forum in which the Maduro regime's crimes can be litigated is the International Court of Justice (ICJ). Unlike the ICC, which can prosecute individuals, the ICJ focuses on inter-state legal disputes. Recent erga omnes precedents permit any state other than an injured one to invoke the responsibility of Venezuela for the protection of the international community.

Given that any country can bring a lawsuit against Venezuela under this recent precedent, the most appropriate country is likely Colombia. The staunch U.S. ally has borne the brunt of Venezuela's spectacular meltdown under the Maduro regime, including the inflow of nearly 2 million refugees and the creation of a state-sponsored sanctuary for Colombian terrorist groups that continue to threaten the success of a fragile 2016 peace deal. The Maduro regime's abject failure to protect the international community was on display recently as Colombian guerrillas, operating out of Venezuela's borderland areas, shot at Colombian President Iván Duque's helicopter.

Even if Colombia was successful at the ICJ, Venezuela would likely ignore the ruling, and Russia and China would likely block United Nations enforcement. Nevertheless, litigation in the ICJ is still valuable to publicly detail and denounce the Maduro regime's crimes—especially since the Maduro regime currently sits on the United Nations Human Rights Council, providing it a platform to stymie hearings and advance its own malign interests.

Costa Rica, a human rights defender and home to the Inter-American Court of Human Rights, could establish a people's tribunal for the victims of the Maduro regime's violence. People's tribunals are independent bodies designed to address gross human rights abuses and atrocities. While they lack supranational authority to enforce judgements, they play an important role in naming and shaming public officials.

In 1967, the Russell Tribunal raised awareness about human rights abuses in numerous countries, and in 1973, Lelio Basso organized a tribunal to expose abuses throughout Latin America. More recently, a Uyghur Tribunal was established in London to document the persecution of Muslims in Western China by the Chinese Community Party. A tribunal for victims of the Maduro regime could also reveal inefficiency and hypocrisy within international bodies regarding Venezuela.

Venezuelans have waited far too long for justice from the predatory Maduro regime. When domestic judicial institutions are so obviously biased, responsibility falls to the international judicial systems of the ICC and the ICJ to uphold international norms and seek justice for a beleaguered people. The failure of these courts to do so demonstrates that the international legal system is badly broken. Fixing it must start with taking on the Venezuela case.

Ryan Berg is senior fellow in the Americas Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C.

Ivana Stradner is a Jeane Kirkpatrick Fellow at the American Enterprise Institute (AEI) in Washington, D.C.

The views expressed in this article are the writers' own.