On the Mandate of the UN Fact-Finding Mission on Venezuela to Identify Individuals Allegedly Responsible for the Commission of Crimes Against Humanity

[Jan-Michael Simon is a Senior Researcher at the Max Planck Institute for the Study of Crime, Security and Law. This post will not focus on the substantive findings of the FFM-Venezuela, but rather on whether the FFM-Venezuela had been mandated to identify individuals allegedly responsible for crimes against humanity. It will argue that by having carried out an extensive interpretation of its mandate to include “to identify those responsible for … violations and crimes”, the FFM did not uphold the spirit of the resolution which had a built-in staggered approach leading from an FFM to a Commission of Inquiry. This aspect needs to be considered by the international community, to ensure certainty and predictability of future investigative missions.]

A year after being established by the Human Rights Council (resolution 42/25), the UN Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela (FFM-Venezuela) has recently made public its report. It found that President Maduro and the Ministers of the Interior and of Defense ordered or contributed to serious human rights violations, some of which amount to crimes against humanity.

The mission’s findings do not come as a surprise as previous reports on Venezuela, both from the UN and the OAS, had established that the current government had committed serious human rights violations or even crimes against humanity (in the case of the OAS report). In addition, the International Criminal Court is currently addressing the situation in Venezuela through a preliminary examination, having received in 2018 an unprecedented multi-State referral regarding crimes against humanity in Venezuela. As a caveat, the present analysis should not be read as in any way questioning the methodology and/or legal framework applied by the FFM-Venezuela that lead to its substantive findings.

Fact-Finding Missions (FFMs), International Commissions of Inquiry (CoIs), and other types of international investigative missions mandated by the HRC are neither prosecution offices nor courts. In the past decade however, their mandates have gone beyond determining the facts and assessing them in the light of the applicable bodies of law. The mandates have also included the promotion of accountability and countering impunity. Within this trend, these missions are increasingly called upon to determine whether international core crimes have been committed.

This tendency, also observed in case of international investigative missions mandated by other UN bodies, has been termed the “accountability turn” in UN fact-finding. Less enthusiastically, others observe a “criminalization” of human rights fact-finding, that is, the legal classification of serious human rights violations in terms of criminal liability. In a practice that has been described by critical scholarship as “courting,” these missions are seen as increasingly acting as an investigative arm of international courts and tribunals. Whatever the case may be, the rationale behind these missions is not new: if impunity at a local level prevails, since decades the human rights mandate of the UN has given the organization a role in supporting the closing of the accountability gap for serious human rights violations.

A critical element in this regard has been always the identification of alleged perpetrators. Within the scope of international investigative missions mandated by the HRC, only CoIs retain an explicit mandate to identify those allegedly responsible for serious violations of human rights and crimes under international law. This has been the case of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory (HRC Res. S-28/1, para. 5), of the Commission of Inquiry on Burundi (HRC Res. 33/24, para. 23), the Commission of Inquiry on the Protests in the Occupied Palestinian Territory (HRC Res. S-21/1, para. 13), the International Commission of Inquiry on Libya (HRC Res. S-15/1, para. 11), the International Commission of Inquiry on Côte d’Ivoire (HRC Res. 16/25, para. 10), and, in particular for the alleged commission of crimes against humanity, the case of the Independent International Commission of Inquiry on the Syrian Arab Republic (HRC Res. S-17/1, para. 13).

On the other hand, FFMs established by the HRC do not operate under an explicit mandate to identify alleged responsible individuals, nor had they assumed that they were mandated to do so. This is the case of FFMs directly conducted by the Office of the UN High Commissioner for Human Rights (OHCHR), including the FFM established for Boko Haram (Cameroon, Chad, Niger and Nigeria, HRC Res. S-23/1), the investigation mission in Iraq on the “Islamic State” (HRC Res. S-22/1), the investigation mission on Sri Lanka (HRC Res. 25/1), the FFM on Syria (HRC Res. S-16/1), as well as the investigation mission on Libya (HRC Res. 28/30). This is also the case for FFMs appointed by the HRC Presidency, including the FFM “on the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (HRC Res. 14/1), as well as for the FFM “on the Gaza Conflict,” (HRC Res. S-9/1). And, finally, this is also the case of the United Nations Independent Investigation on Burundi, whose members were appointed by the UN High Commissioner for Human Rights (HRC Res. S-24/1).

This situation changed in 2017-2018, with the FFM-Myanmar. The mission was established by HRC resolution 34/22 (para. 11) in March 2017. When it had to present its findings to the HRC in September 2018, and without its mandate being explicit on the issue, the FFM-Myanmar ascertained in paragraph 6 of the report of its findings that it could “identify perpetrators, as well as to make findings about responsibility” based on the clause in paragraph 11 of its mandating resolution “to ensure full accountability for perpetrators.” The findings of the FFM-Myanmar were subsequently endorsed by HRC resolution 39/2.

In the case of the FFM-Venezuela, HRC resolution 42/25, which established the mission, does not contain any explicit reference to a mandate to identify individual responsibilities. As in the case of the FFM-Myanmar two years before, the FFM-Venezuela interpreted its mandate to include “to identify those responsible for … violations and crimes (see paragraph 4 of the report of its detailed findings). Similar to the basis used by the FFM-Myanmar, the mission on Venezuela based this interpretation on the assumption of the “focus of the mandate on accountability.”

However, this interpretation is problematic in light of one major difference between both FFMs. In the case of the FFM-Myanmar, the HRC did not include the possibility of a CoI or an equivalent independent non-judicial accountability mechanism in the mission’s mandate. It was only following a specific request by the UN High Commissioner for Human Rights in paragraph 56 of its oral update on the situation of human rights of Rohingya people during the HRC 38^th regular session (June–July 2018), and based on the FFM-Myanmar’s findings, that the HRC proceeded in its 39^th regular session (September 2018) to adopt resolution 39/2, establishing an “Independent Investigative Mechanism for Myanmar.” The IIMM was set up as a non-judicial accountability mechanism with an explicit mandate to build case files for assisting individual criminal responsibility processes in national, regional or international courts or tribunals.

By contrast, in the case of the FFM-Venezuela, from the outset, the HRC had a built-in strategy with a staggered approach (i.e. first an FFM and, if a certain threshold was met, a CoI might be set up). Paragraph 27 of HRC resolution 42/25 establishes that the Council may also decide to establish a CoI on Venezuela, if it concludes that the situation in Venezuela continues to deteriorate and/or the Venezuelan authorities do not meaningfully cooperate with OHCHR.

It is not clear why the HRC would reserve the possibility of a decision on a CoI, with clear powers to identify alleged perpetrators, if it would concede implicitly this mandate to the FFM-Venezuela. Given the highly politicized context of the HRC practice in establishing international investigative missions, and the legitimacy challenges of this practice, the HRC would be well advised to handle these kind of formulas with care. In this context, and in light of current discussions to extend the FFM-Venezuela’s mandate, the HRC should explicitly endorse the mandate to identify alleged perpetrators. This would contribute to maintaining the logic that has been set out in previous resolutions regarding investigative bodies, including to ensure certainty and predictability of such mandates.