What does Maduro stand to gain from cooperating with the ICC?

On March 31, Karim Khan, the Prosecutor of the International Criminal Court (ICC), concluded his second visit to Venezuela. Significantly, it was the first time Khan promised to open an office in Caracas to investigate human rights abuses. 

The ICC’s involvement in Venezuela originated in a 2018 referral by six Lima Group countries that pressed the court to investigate alleged crimes against humanity committed by state security forces and pro-government supporters since at least the April 2017 protest movement. 

Initially, the government pushed back on the need for the ICC’s involvement. Arguing that national institutions can investigate abuses, the government moved to step up prosecutions against over 200 security personnel who committed abuses against protesters as a sign of competence and good faith.

However, President Nicolas Maduro’s government submitted its own referral to the court in 2020 seeking an investigation into the “application of illegal coercive measures adopted unilaterally by the government of the United States of America against Venezuela, since at least 2014.” 

The Maduro government has so far signed a Memorandum of Understanding with the ICC and cooperated with the preliminary examination and then the investigation of the Lima Group referral. Maduro’s referral remains at the preliminary examination stage, but if it were to escalate, it would become the first investigation into sanctions brought before the court.

At this stage, the ICC’s investigation into the situation in Venezuela is supported by both the opposition and government. With competing referrals, domestic turmoil in Venezuela — the country that has seen the largest refugee crisis in the western hemisphere and sanctions from two continents — has been elevated to the international courts. Such a unique situation has not played out in the court’s 20-year history.

Splitting the opposition

Maduro’s ICC strategy has two aims. Regarding the Lima Group referral, he hopes to use the investigation into crimes against humanity to highlight the violent means that opposition leader Juan Guaido has used in his attempts at taking power. Specifically, Maduro aims to split Guaido’s hardline faction from the moderate opposition in any future negotiations. 

In Mexico City last year, the terms of negotiations between the Maduro government and the opposition marked a shift: the latter joined under the banner of the Unitary Opposition Platform and recognised they were negotiating with Maduro as the government of Venezuela. 

Despite Guaido being recognised by over 60 countries as the president after the contested 2018 elections, these negotiations were conducted in an exclusively opposition capacity. The resulting partial agreement saw opposition participation in local and state elections. Thus, the negotiations were wins for Maduro in terms of recognition and democratic legitimacy. 

Maduro has tried to sideline Guaido at every step in negotiations and recent direct talks with the US — a reversal of prior American policy of negotiating through the opposition — to loosen restrictions on oil imports in light of the Ukraine conflict. In future talks, Maduro will need the opposition to participate in elections for the sake of democratic legitimacy, however there is no indication that he will stop trying to drive a wedge between Guaido’s hardliners and the moderate opposition.

Shedding light on the laundry list of human rights abuses allegedly committed by Guaido’s hardline faction could be that wedge. The list includes a foiled military uprising, a failed mercenary incursion, the “looting” of state assets, and overt links with Colombian paramilitaries. 

These manoeuvres have deteriorated human rights by crippling the states’ ability to finance basic social services and fuelling criminal organising along Venezuela’s turbulent western border, while undermining the rule of law and right to life. Maduro’s cooperation with the ICC on the Lima Group referral to have these abuses documented could put enough pressure on moderates to distance themselves from any lingering ruminations of a parallel government.

Criminalising international sanctions

In his ICC referral, Maduro hopes to have the court’s investigators document the humanitarian impact of the blockade against Venezuela. While the over 40 American sanctions emphasise coercive measures as a response to human rights violations — they have names like the Venezuelan Human Rights and Democracy Protection Act — their impact has exacerbated the humanitarian catastrophe.

A 2019 Center for Economic and Policy Research report argues that the sanctions are a form of collective punishment that is “a death sentence for tens of thousands of Venezuelans”. The authors calculated that at least 300,000 people are at risk because of a lack of access to life-saving medications, including tens of thousands of cancer, dialysis, and HIV patients, as well as 4 million diabetes and hypertension patients. They estimate 40,000 deaths between 2017 and 2018 alone due to the American sanctions.

Transmissible diseases that were once almost eliminated through vaccination campaigns have re-emerged at epidemic proportions. Venezuela, once successful in controlling Malaria, now accounts for 73 percent of deaths from the disease in the Americas. Tuberculosis infections almost doubled from 2014 to 2019. A measles outbreak in July 2017 was only controlled upon the intervention of the Pan-American Health Organization.

The Lancet noted that the Maduro government cannot pay for these medications because American banks will not handle its transactions and Washington bars it from selling oil to companies operating on the American market. Having the ICC link the sanctions with the humanitarian disaster would effectively bunk the US, Canadian, and EU claims that sanctions are a humane alternative to military action when it comes to human rights.

Maduro’s gambit with the ICC is a daring game. The court may find evidence of security service personnel committing abuses; however, Maduro hopes to turn the tables on the hardline opposition while dismantling the human rights rhetoric for the international sanctions. For Maduro, his hand is one worth playing.