Venezuela’s “Firm and Unwavering” Decision to Leave the International Criminal Court: From the Political Turmoil to the Legal Loopholes

[Efrén Ismael Sifontes Torres is an Ayudante de Segunda in international law courses, and the academic co-coordinator of the Observatory of International Humanitarian Law, for the University of Buenos Aires School of Law]

On 24 July, the Venezuelan’s interim authorities announced through their Minister of Foreign Affairs’ X account, the “firm and unwavering” decision to withdraw from the Rome Statute and therefore, leave the International Criminal Court. The announcement was accompanied by a critical view of the work of the Court, which allegedly had focused its jurisdiction against African and Latin American countries, resulting in a biasagainst the Global South.

This decision came remarkablyclose on the heels of an op-ed published by the United States’ Secretary of State in which he vowed to dismantle the Court and called on all States Parties to withdraw from the Rome Statute system. This move constitutes an additional political missile launched by the Trump administration against the Court, following the imposition of sanctions on the judges who issued the arrest warrants against, among others, Israel’s Prime Minister Benjamin Netanyahu and Hamas leaders.

However, to read the decision of Venezuela’s interim authorities just as a signal of its deepening alignment with the US administration (and, as I have argued elsewhere on this blog, a further indication of the country’s status as a protectorate) would overlook other important dimensions of the decision. In this regard, it is worth mentioning that almost exactly a month before the 3 January operation through which the US removed Nicolas Maduro and placed Delcy Rodríguez as an interim authority, the contested Venezuelan National Assembly enacted a legislation to repeal the approbatory law of the Rome Statute.

The contested authority of both the legislative and the executive branches could raise questions about the legitimacy of the current Venezuelan administration’s decision to withdraw from the Court. However, before delving into these considerations, I would like to highlight what is currently under investigation by the Court in Venezuela—the only country in Latin America with an ongoing investigation before the ICC. An investigation that has long been shrouded in uncertainty.

The Frozen Venezuela Investigation?

The Court started to investigate alleged crimes against humanity committed in Venezuela on 8 February 2018 with the decision of the then Prosecutor Fatou Bensouda to open a preliminary examination, under the articles 13(c) and 15 of the Rome Statute. According to these provisions, the Prosecutor would ordinarily be required to seek authorization from the Pre-Trial Chamber to proceed from the preliminary examination to the investigation stage. However, following the referral of the situation by several Latin American States later that year, the preliminary examination continued until 2021, when the then Prosecutor, Karim Khan, announced the Office’s decision to proceed with a formal investigation, thereby rendering authorization from the Pre-Trial Chamber unnecessary.

Since then, the investigation of the Venezuela situation has been hampered by attempts from the government to challenge the Court´s jurisdiction under article 19 of the Rome Statute. These proceedings culminated with the decision of the Appeals Chamber in 2024 that rejected the claims of the Venezuelan government and ordered the Prosecutor to resume investigation. The investigation was also entangled in a conflict of interest controversy that ultimately led to the disqualification of Karim Khan from further involvement in it.

In this latter decision, issued on August 1st 2025, the Appeals Chamber of the Court removed the Prosecutor (the “disqualification decision”), stating

“in light of the Prosecutor’s close family relationship with Ms Alagendra [one of attorneys appointed by the Venezuelan government], combined with their previous professional and hierarchical relationship, a fair-minded and reasonable observer, properly informed and having considered all facts and circumstances, would reasonably apprehend bias” (para. 44).

What is striking about this decision is that a few months earlier, in February 2025, the same Appeals Chamber rejected the request for disqualification put forward by the same applicants, the Arcadia Foundation, on the grounds that they lacked standing (para. 65). So, what changed for the same judges to turn around and disqualify the ICC Prosecutor for the first time in the Court´s history?

The answer seems to be found on the Chamber´s reasoning when it stated

“(…) considering the Prosecutor’s inaction following the Appeals Chamber’s invitation to uphold his duty under rule 35 of the Rules, the Appeals Chamber now finds it necessary to assess whether the facts, as presented by the Applicants and the Prosecutor, provide “reason[s] to believe that a ground for disqualification exists in relation to [the Prosecutor].” (para. 32).

However, the judges’ request under Rule 35 —which concerns the duty of a judge, prosecutor, or deputy prosecutor to seek his or her excusal— was, in essence, that the Prosecutor uphold his statutory obligations, and take any necessary measures to preserve his impartiality and ultimately the integrity of the proceedings in order to remain in compliance with his duties (para. 62).

Therefore, if the judges were exhorting the Prosecutor to excuse himself, this suggests that they considered the existence of sufficient grounds for disqualification had been proved at the time when the submission was originally rejected. However, according to the Chamber, the Prosecutor’s continued inaction ultimately prompted it to order his recusal, a course of action that is curiously not expressly contemplated within the Court´s legal framework.

This scandal has severely undermined the perceived integrity of the investigation in Venezuela. It has further eroded public confidence, which had already been weakened by the Court’s failure to take concrete and visible steps toward accountability. To date, there have been no public (or at least unsealed) warrants of arrest or summons to appear, despite the fact that several reports from the United Nations’ Fact Finding Mission have extensively documented situations amounting to possible crimes against humanity in the country.

This lack of perceivable progress has not only damped the perception of the Venezuelan population but has also been used by the United States in its anti-ICC campaign. When the State Department welcomed Venezuela’s interim authorities’ decision to leave the ICC it also remembered that “[t]he so-called court has been investigating Nicolas Maduro since 2018 with no result”.

Although the future of the Venezuela investigation and the Court’s jurisdiction will not substantially change in the near future, —as Article 127(1) provides that a withdrawal will take effect one year after the date on which the notification is received— it remains to be seen whether any concrete steps will be taken or whether the investigation will remain frozen.

Is There a Legal Loophole? Government Recognition vs Legitimacy

Although the interim authorities characterized the decision to withdraw from the Rome Statute as “firm and unwavering” there is a legal question that, perhaps, will fall under the Court if the Venezuela investigation is unfrozen.

The Venezuelan constitution contemplates two different scenarios when the President is absent from his or her position: Article 233 governs the situation in which there is an absolute vacancy of the president, including cases of death, resignation or other circumstances involving the intervention of the relevant public authorities. According to the constitutional provision, the declaration of absolute vacancy must be followed by the holding of new elections within thirty days. By contrast, Article 234 prescribes that, in the event of a temporary vacancy, the Vice President shall assume the office for a period of ninety days, which may be extended for an equal period by the National Assembly. If the vacancy persists beyond that timeframe, absolute vacancy must be declared and elections held in accordance with Article 233.

Neither of these provisions has been followed by the current interim authorities. There has been neither a declaration of absolute vacancy of the president, nor a renewal by the National Assembly of Delcy Rodríguez´s current position as interim president. On the contrary, the same day of the military operation that removed Maduro, the Venezuelan Supreme Tribunal recognized the interim powers of Rodríguez without sustaining its decision under any of the constitutional provisions.

Therefore, one must ask whether the announced withdrawal could produce any legal effects. The validity of acts adopted by governments under international law has been subject of intense debate in recent years, particularly in relation to Venezuela. A notable example is the approach adopted by the Inter-American Court of Human Rights (IACtHR). Even though Venezuela denounced the American Convention on Human Rights in 2012, the Court recently affirmed its jurisdiction over the country. Specifically, in the Chirinos Salamanca and others v. Venezuela case, the Court recognized the validity of the instrument of ratification (with retroactive effect) deposited by the -then- interim authority Juan Guaidó.

Although I recognize that the question posed before the ICC differs from the one addressed by the IACtHR in Chirinos Salamanca, as the former concerns whether a treaty withdrawal by an authority lacking legal basis under national law is valid, whereas the latter concerned whether the deposit of an instrument of accession to a treaty from an authority whose legal basis under national law was contested is valid, the reasoning adopted by the IACtHR could still be relevant here.

It could be possible to expect that the ICC, when faced with a challenge from the Venezuelan Government or with a case involving a conduct that temporarily occurred after the withdrawal takes effect, might resort to an argument along the following lines: recognizing the effects of a withdrawal from an authority not vested with legal powers under national law could severely undermine the effectiveness of the mandate of the Court to fight against impunity.

I acknowledge that this position departs from the traditional theories of international law that focus the recognition of governments on the doctrine of effective control. It frames the question in terms of the authority’s effectiveness in exercising control over the State rather than in a question of legitimacy. Under this view, there is no doubt that the interim authorities would be regarded as the government of Venezuela under international law.

However, if one takes the particular nature of the Rome Statute seriously, as a part of the core instruments of the human rights protection system, the solution posed by the traditional doctrine will be counterintuitive. Some authors like Başak Çali and Laurence Helfer have argued that, when dealing with the withdrawal from Human Rights treaties, a process-based approach that scrutinizes the decision of withdrawal stems from the object and purpose of these instruments.

I maintain that this same scrutiny should also be applied when analyzing the legal basis of the authority, namely the government, that seeks to withdraw from such treaties. This assertion will also find support in the case law of the IACtHR. The Advisory Opinion on Obligations of States who denounce the American Convention and the OAS Charter (2020) asserted

“(…) as an initial or minimal measure to contain a government’s impulse to extricate itself from its international human rights obligations, it is appropriate to examine, within the framework of the collective guarantee, the context and formal conditions in which the decision to denounce is taken at the domestic level and its correspondence with the established constitutional procedures” (parr. 171).

To scrutinize the compatibility of the withdrawal with the national constitutional procedures, would be the necessary consequence of interpreting the Rome Statute according to its object and purpose, and bearing in mind that article 21 paragraph 3 imposes the duty to apply the law according to human rights principles and standards.

The Court aims to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus to contribute to the prevention of such crimes. When it is confronted with State authorities who lack legitimacy and nevertheless purport to withdraw from the Rome Statute, it must look beyond traditional theories in order to ensure that the people it seeks to protect (which are the ultimate reason for the existence of the Court) are not deprived of the protection afforded by the Statute.