The universal jurisdiction of all States was absorbed by the International Criminal Court, when the Rome Statute was formulated and all subscribing States declined in favor of a single court being able to hear and legislate on these crimes against humanity. This power reduced the functions of each State to the criminal prosecution of such acts committed within its territory or that could validate local jurisdiction, based on other principles of extraterritoriality.
This proposal is in line with international experience. In the interest of improving the projection of international jurisdiction, this way of acting would have made it possible to anticipate events in order to promote justice in an environment more in line with the expectations and needs of today's world against violence and impunity. It is neither extravagant nor inappropriate to propose that cases of genocide occurring after the entry into force of the Treaty for the States Parties could be tried before the current International Criminal Court, created to hear and judge these punishable events.
International jurisdiction is defined as "a legal principle that permits or requires a State to criminally prosecute certain crimes, regardless of the place where they were committed and regardless of the nationality of the victim or perpetrator". The term was coined and established as a principle in 1949 in the four Geneva Conventions, which regulate international humanitarian law.
The field of action of this figure is par excellence the occurrence of crimes against humanity. The concept of crimes against humanity dates back to the mid-19th century, for although the first list of these crimes was drawn up at the end of World War I, they were grouped together in an international instrument later when the Nuremberg Tribunal Charter was drafted in 1945.
The intention of the implementation of the concept was to determine responsibilities and to punish state agents who had sponsored torture or genocide against the civilian population during the war. One year later, the crimes against humanity established in the Nuremberg Charter were recognized by the United Nations General Assembly and subsequently included in specific legal instruments.
The crimes on the list were defined for the first time in an international treaty following the adoption of the Rome Statute of the International Criminal Court on July 17, 1998.. The statute is the Court's constituent instrument and identifies conduct qualified as murder, extermination, deportation, forced displacement, imprisonment, torture, rape, persecution on political, ideological, racial or ethnic grounds, enforced disappearance, abduction or any act that violates integrity, provided that these actions are part of a widespread or systematic attack against a specific civilian population.
Venezuela subscribed and ratified the Rome Statute June 7, 2000 and its entry into force in the national territory took place two years later, on July 1, 2002. The evolution of International Criminal Law from the moment the Court began to operate gave room for the extraterritorial application of national criminal law, through the action of the principle of universal jurisdiction.
This legal scope has created some confusion in some cases. The changes imply that these serious crimes must be contemplated at two jurisdictional scales: that of the States themselves (territoriality) and the complementary one, referring to that of the Court in the event that the first instance cannot resolve the case.
"This re-edition of the rules of international criminal jurisdiction drastically limits the possibilities of extension of each State's own jurisdiction, posed by the extension of Spanish jurisdiction that the constitutional jurisdiction seeks on the basis of a biased interpretation of the provisions of this legislation, by ascribing to the principle of universal jurisdiction possibilities that it no longer makes sense to attribute to it, especially when the principle that is gaining ground is that of alternative justice".reads the document The Rome Statute and International Jurisdiction currently implemented in Venezuela, elaborated by Alan Aldana & Associates in this regard.
Without the limitations of national jurisdiction
Implement a procedural system that complies with the provisions of the International Criminal Court. is necessary for the international jurisdiction to be able to act with greater ease and scope with respect to the crimes criminalized under its guidelines. Otherwise, the regulations of national jurisdiction could hinder the criminal process.
Legal processes involving universal jurisdiction cases tend to be slow. and complicated. For handling a different dynamic to that established in other litigations. In general, there are several parties involved, countless affected parties and, to top it off, political and economic interests that try not to be impacted by the actions.
Therefore, it is important to be clear about the application of this figure, even when considering the national legal guidelines to be followed, since a sea of confusion is generated by linking crimes of national effects with international incidence and crimes of an international nature sensu stricto at the moment of legitimizing the jurisdictional action of a State.
In order to shed light on this issue, it is necessary to differentiate between crimes of internal reference with international effects. such as drug trafficking, human trafficking, piracy, terrorism, counterfeit currency; and those arising from International Humanitarian Law and referring to acts of genocide, war crimes, crimes against humanity and aggression.
The first ones mentioned may be limited to a territorial reality, and the involvement of legal assets may be limited to a territorial reality. that it causes is likely to have the same territorial character. However, it may also be the case that it transcends to other States that have the legitimacy to invoke criminal prosecution when they consider that the legal interests protected by their criminal legal system have been harmed or endangered.
In these circumstances, it is best to appeal to the principle of subsidiary administration of justice.which provides that the matter must be resolved by the highest authority closest to the object of the problem, i.e., it empowers the criminal jurisdiction of the captor or apprehending State.
If the crime is committed in no man's land, two possibilities may arise: the application of the passive personality principle, which requires that national criminal law be used when the victim of the crime is a national of a State; or the implementation of the principle of subsidiary administration of justice. Both figures can even coexist in parallel to legitimize the jurisdiction of the claimant State.
Cases Venezuela and Spain
The Venezuelan Penal Code and the Spanish Organic Law of the Judiciary concur both in the principle of subsidiary administration of justice and the principle of global justice, which implies the application of extraterritoriality in the enforcement of justice for these crimes.
The changes that have taken place over the last five decades in the field of international justice make us rethink the issue. Among these legal transformations, the Nuremberg principles stand out, highlighting the non-obligatory nature of the State where the crimes against mankind have been committed to be considered as criminal actions, in order to be prosecuted by other instances. This rule, together with the orientation of International Criminal Law, allows for the application of the so-called principle of universal jurisdiction.
In this regard, in order to achieve the activation of universal jurisdiction In the absence of national legislation, the Princenton Principles state that national judicial bodies may rely on universal jurisdiction if their own legislation does not specifically provide for it.
In view of the need to strengthen international cooperation to support the resolution of these cases, the United Nations produced a document with the principles of collaboration in the identification, arrest, extradition and punishment of those guilty of war crimes or crimes against humanity during the General Assembly of December 3, 1973.
In spite of this cooperation, the occurrence of the world wars and the generated the construction of an international criminal instance that could establish responsibility for the serious human rights violations committed. This international movement to avoid impunity was manifested before the entry into force of the Rome Statute of the International Criminal Court, which has generated important changes in the area of international justice, even forcing a rethinking of the current situation regarding the principle of universal jurisdiction.
What is happening in Venezuela?
Article 4.9 of the Venezuelan Penal Code shares a similar dimension to the Spanish experience, when it refers to the possibility of extending its jurisdiction to cases outside its territory in matters of "...".heinous crimes against humanity"..
However, Venezuelan legislation does not specify the meaning of the expression, nor does it typify criminal norms that regulate genocide, lèse humanité and other similar crimes.. For its part, the Organic Code of Military Justice and Aggression considers, in Articles 153 and 154, as punishable the action of organizing attacks from Venezuelan territory against any other State.
The prosecution of crimes such as genocide or crimes against humanity is not possible for the Venezuelan jurisdiction, because -despite the international obligation-, it is not possible to prosecute such crimes. The legislative reform that would allow the criminalization of these conducts has not been generated.
Venezuela has been a State Party to the Convention on the Prevention and Punishment of the Crime of Genocide since 1960.. Therefore, in national territory, genocide or crimes against humanity are not punishable, except in the case of residual punishable conducts that coincide with international regulations.
Paradoxical as it may sound, if this type of conduct occurs in Venezuela, the manifestation of international justice is unquestionable.The country subscribed to the Rome Statute without any questioning of the aspects of its domestic legislation that contradicted the guidelines of international jurisdiction.
Due to Venezuela's internal regulations, the nation cannot extend its jurisdictional jurisdiction. to cases occurring outside its borders, except in situations of extraterritoriality that are internally recognized as "extraterritorial".objects of persecution".under the principles of defense and protection, complementary jurisdiction, substitute justice and active or passive personality.
However, it should be noted that at the time of signing the Treaty of Rome, Venezuela recognized that the only international instance to exercise universal jurisdiction is the International Criminal Court and under this it becomes a superior mandate.
Venezuelan Law and International Jurisdiction
Likewise, Venezuelan legislation, in addition to indicating the natural competence to judge The Venezuelan Constitution also exceptionally establishes extraterritorial jurisdiction, applied to specific situations established by law. This exception obliges the Venezuelan State to recognize offenses committed abroad. It is described as follows in Article 60 of the Organic Code of Criminal Procedure:
"In cases for crimes committed outside the territory of the Republic, when the process can or must be followed in Venezuela, if there is no court expressly designated by special law, the court exercising jurisdiction in the place where the last residence of the accused is located shall be competent; and, if he or she has not resided in the Republic, the court of the place where he or she arrives or is at the time the prosecution is requested shall be competent."
Article 3 of the same legal instrument establishes territorial jurisdiction for the criminal prosecution of anyone who commits a crime in the geographical area. Article 4 states that individuals are subject to prosecution in Venezuela and will be punished in accordance with Venezuelan criminal law if, while outside the country, they commit certain acts such as committing treason against the Republic, committing a crime against the security of the country or any of its citizens while being a foreigner, manufacturing or shipping arms or ammunition to Venezuela without authorization from the Government of the Republic, among other criminal actions.
This regulation is reinforced in Article 73 of the Organic Law against Organized Crime and Financing of Terrorism.This law, enacted on April 20, 2012, clearly states that Venezuelans or foreigners who commit crimes against the patrimonial interests of integrity or security of the Bolivarian Republic of Venezuela are subject to prosecution in accordance with the national law.
By signing and ratifying the Rome Statute, Venezuela must legislate in order to guarantee effective judicial protection in the international jurisdiction to which it committed itself. This implies not limiting oneself to the generic adjective application offered by the Venezuelan Organic Procedural Code and the Law against Organized Crime and Financing of Terrorism, but also developing systems issued from international application. Being one of the first countries to sign the treaty, the intention must be to advance as ordered by the Principle of Progressivity of Human Rights, established in Article 19 of the Venezuelan Magna Carta.