Transitional Justice for Venezuela

José Ignacio Hernández González*

(A previous version of this article appeared Spanish in Prodavinci.com)

The international community has pressed for political change in Venezuela: through sanctions, by withholding legitimacy from fraudulent elections, and special meetings in international bodies such as the Organization of American States, the United Nations Security Council as well as the UN Human Rights Council. In addition, the International Panel appointed by the American States Organization approved a Report that concluded that the Maduro´s regime has committed crimes against humanity as established in the Rome Statute, and the Public Prosecutor Office of the International Criminal Court started a preliminary examination related to Venezuela. All of this has increased pressure on the Maduro government, leaving it with few allies and many opponents.

However, much research demonstrates that a transition to a stable democracy requires much more than international pressure: it is also necessary to create incentives for that transition. This is precisely the relevance of a transitional justice law in Venezuela.

The relevance of transitional justice in Venezuela

Political scientist Robert Dahl explained that a transition from authoritarianism to a democratization process can only occur when the “costs of repression” are increased and the “costs of tolerance” decrease. I will explain this with the Venezuelan case.

A democratic transition in Venezuela requires, first, an increase in the costs of repression. In other words, it requires an increase in the costs felt by regime officials when they obey orders to carryout actions that violate human rights. As has been explained by Gene Sharp, the cornerstone of political power is obedience. Maduro´s regime, for example, is supported by officials that decide to obey his orders. Those officials are part of the “pillars of support,” namely, the officials and institutions that implement the authoritarian ruler’ decisions.

In order to promote the breakdown of this pillar of support, it is necessary to increase the costs of repression or what is the same, the cost of obedience. This is, precisely, the role of the international sanctions and investigations: they increase the cost of repression due to the threat of sanctions and isolation. Because of this, international support is a key element for a democratization process in Venezuela.

But increasing the cost of repression without any other measures could be counterproductive. If officials in the Maduro regime face only threats, they will prefer to support the regime instead of promoting a political change.

Because of this, it is necessary to create additional incentives that facilitate the decision not only to disobey but also to collaborate in a democratic transition. This is why it is also necessary to decrease the cost of tolerance. “Tolerance” refers to the conditions that could facilitate the inclusion of the former officials of Maduro’s regime in the new democratic government. This is not possible if those officials think they will end up in jail. On the contrary, the regime’s civil and military bureaucracy will only collaborate in a democratization process if they understand that after this process they will be in a better position than if they resist, as was concluded by North and others.

Transitional justice seeks to decrease the cost of tolerance. Government officials that decide to disobey his orders to avoid the consequences of international sanctions and investigations will have incentives to collaborate with a democratic transition, as long as they are tolerated by the new government. For that purpose, transitional justice offers some benefits that, however, do not impede the investigations related to human rights violations in order to restore the victims’ dignity.

Understanding transitional justice

Transitional justice is a special program of justice that allows the investigation of crimes committed in countries facing severe conflicts, including human rights violations, that at the same time promotes a transition to a stable democracy. As summarized by the International Center for the Transitional Justice “transitional justice asks the most difficult questions imaginable about law and politics”.

In ordinary conditions, crimes against human rights should be prosecuted by the criminal justice. However, in authoritarian regimes facing severe internal conflicts, this can hinder the possibility of a transition to democracy. Government officials of an authoritarian regime will prefer to support the regime rather than facilitate a transition that could put them in jail.

However, an offer an amnesty, in other words a total pardon, could also hinder a democratic transition. A total pardon for officials responsible for human rights abuses could increase the conflict and reduce the viability of a reconciliation process.

This is why the transitional justice is designed as a middle term between the total amnesty and criminal accountability. Transitional justice does not imply impunity. Crimes are investigated in order to restore the victim’s dignity. For that purpose, transitional justice includes the creation of independent panels that should establish the facts related with the human rights violations. Also, transitional justice allows the victims’ compensation.

Because the final purpose is not only to serve justice but to also promote a transition, transitional justice must include some benefits to the officials that contribute to the restoration of democracy. For example, instead of being prosecuted in ordinary criminal courts, those officers could be subject to a special justice system with benefits such as alternative measures to criminal convictions.

It is important to remember that international standards seek to avoid impunity for the most heinous crimes and thus restrict the scope of transitional justice, particularly with regard to crimes against humanity.

Transitional justice in Venezuela

The implementation of transitional justice in Venezuela could proceed as follows. The National Assembly must approve a law similar to the 2017 initiative to guarantee the rights of the civil and military officials of Maduro´s regime that decide to collaborate with the democratic transition. It is not relevant that the illegitimate National Constituent Assembly (ANC) or the Supreme Justice Tribunal (TSJ) declares this law null and void. This proposal will be relevant as a political statement approved by the unified opposition in order to promote a transition to democracy.

The approval of the law will send a clear message: all the civil and military officials that want to avoid international sanctions and investigation, as well as the domestic sanctions that will be imposed once democracy is restored, will have incentives to collaborate in the democratic transition. This is the general idea of the proposal that was recently presented Luisa Ortega, the Venezuelan Public Prosecutor who was “fired” by the ANC.

But to promote a democratic transition, a transitional justice law should be approved as a part of a political pact adopted by a unified opposition. This pact, based on the assumption of political pluralism, must include not only the actions required to promote political change according to the Venezuelan Constitution, but also the economic, social and political measures that should be implemented to stabilize the economy and assure the sustainability of the democratic change.

As Guillermo O’Donell and Philippe Schmitter argued, a successful transition to democracy requires a strategy adopted by a unified opposition. In the Venezuelan case there is a comparative advantage: the legislature is controlled by the opposition. Together with the Supreme Tribunal judges appointed by the National Assembly in 2017, the National Assembly could help to promote a democratization process through a transitional justice law.

*José Ignacio Hernández González is a Visiting Fellow at Harvard University’s Center for International Development.