Carlos Lusverti
Latin America Legal advisor
International Commission of Jurists
The Independent International Fact-Finding Mission on Venezuela (FFM), established by the UN’s Human Rights Council in 2019, concluded that Venezuelan authorities use arbitrary deprivation of liberty as a weapon to silence political leaders or public figures who are perceived as critical of the government, including journalists, trade union leaders, and human rights defenders and civil society activists.
The FFM´s report of September 2023 concluded that at least in 14 cases “individuals were subjected to short-term enforced disappearance attributable to State authorities. The victims remained missing for at least several hours, and in some cases up to 10 days, until their whereabouts were known. Despite demands by their relatives and/or lawyers for information as to whether the victims were being held in specific places of detention, the authorities holding that information provided no response..”
Enforced Disappearances in Venezuela
The contemporary international definition of Enforced Disappearance is “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
As made clear by the UN Committee on Enforced Disappearance (General comment No. 1) there is no minimum duration of deprivation of liberty required to meet this definition; even very short periods constitute an enforced disappearance. The Committee has stated that to prevent “becoming victims of enforced disappearance in the context of immigration detention, they must always be able, from the outset of their detention and regardless of its duration, to communicate with their relatives (…)”. Also has highlighted that “when pushbacks involve the deprivation of liberty of migrants and the concealment of their fate or whereabouts, they amount to enforced disappearance within the meaning of article 2 of the Convention, regardless of the duration of the deprivation of liberty…”
The UN’s Working Group on Arbitrary Detention has concluded that Venezuela engages in a systematic practice of unlawfully depriving individuals of their liberty. In some instances, individuals have been arbitrarily detained, and their whereabouts were denied by security agencies, even to lawyers and family members. These individuals were later released without charge, after several hours or days of uncertainty regarding their location, despite repeated attempts to seek information from the authorities.
In 2019, the UN’s Working Group on Enforced or Involuntary Disappearances transmitted to the Venezuelan Government a general allegation concerning information from credible sources alleging the existence of a reported obstacles encountered in Venezuela for the protection of people from enforced disappearance “focusing primarily on the “pattern of short-term enforced disappearances of political opponents and peaceful protesters”.
This pattern of short-term enforced disappearances has become even more concerning, as victims often “reappear” when presented before “special counter-terrorism tribunals” and face vague criminal charges such as “conspiracy” and “criminal association.” These victims are typically denied the right to appoint their own lawyer and are instead assigned a public defender with whom they have no contact. There is a well-documented pattern and practice of the detention and prosecution of individuals by prosecutors who fail to exercise their function free from political interference before judges who do not decide independently.
The case of Rocio San Miguel, a human rights defender, illustrates this trend. She was arbitrarily detained on 9 February by the Bolivarian Intelligence Service (SEBIN). Three days later the Chief Prosecutor publicly acknowledged San Miguel’s detention and that she was attending a hearing at the counter-terrorism tribunal linked to alleged commission of the crimes of treason, conspiracy, terrorism. Her lawyer of choosing was not informed of her whereabouts neither of the existence of this hearing; he didn’t access the case file or communicate with her.
State representatives of Venezuela denied that the authorities had engaged in enforced disappearances in their submissions to the UN Human Rights Committee during the fifth periodic. Their contention was that if someone was arrested and their family did not know their whereabouts for only a few hours, it could not be considered as a case of enforced disappearance. Nevertheless, the Venezuelan authorities acknowledged in the submission that “[b]etween 2015 and 2022, … 455 alleged cases of enforced disappearance had been registered; investigations into 402 of those cases were ongoing, 10 cases had gone to trial, 40 others had been concluded and, in just 16, the cases had been closed.”
Venezuela’s failure to comply with its obligations to prevent and sanction enforced disappearances
Under international law and standards, the practice of enforced disappearances is prohibited and constitutes criminal conduct subject to prosecution. Enforced disappearance, in addition to being a human rights violation on its own, also constitutes multiple other violations. These may include denial of the right to life, arbitrary detention, torture or other cruel, inhuman or degrading treatment, and denial of the right to recognition as a person under the law. Venezuela is party to a number of human rights treaties which protect against enforced disappearance, including the International Covenant on Civil and Political Rights and the American Convention on Human Rights. Also is part of the Inter-American Convention on Forced Disappearance of Persons. It has signed in 2008, but not yet ratified, the International Convention for the Protection of all Persons from Enforced Disappearance. However, the definitions of this crime in domestic law, does not fully reflect the international law.
The ICJ has previously highlighted the inadequacy of the definition of the crime of enforced disappearance in Venezuela’s Criminal Code (Art. 180-A) because it limits its scope “to situations of illegal deprivation of liberty and does not include as perpetrators persons or groups of persons acting with ‘the authorization, support, or acquiescence of the State’. “
The Inter-American Court of Human Rights has concluded the crime of enforced disappearance as defined in Venezuelan law is not compliant with the criteria established by the InterAmerican Convention on Forced Disappearance of Persons. More recently the Human Rights Committee, in its concluding observations on Venezuela’s the fifth periodic report, expressed its concern about the cases of enforced disappearances, including those of short duration and about “the alarming degree of impunity surrounding the reported cases and deeply regrets that the delegation denied these allegations and criticized the sources of the allegations of enforced disappearances (…)”.
The need to tackle impunity in the Use of Enforced Disappearances in Venezuela
It is imperative that the Venezuelan authorities take immediate action to stop the use of short-term enforced disappearances as a tool of repression. Venezuela should ratify the UN’s International Convention for the Protection of All Persons from Enforced Disappearance and, in any event, as it is already a signatory, must act to align its domestic legislation accordingly. This includes amending its criminal laws to define a crime of enforced disappearance that is consistent with Convention’s definition.
The Public Prosecutor’s Office must promptly, impartially, and independently investigate any allegations of incommunicado detention and enforced disappearance regardless of the duration. Officials who withhold information about the whereabouts of a detained person from family members and lawyers should be held to account. The Venezuelan authorities also must ensure that State officials are not involved in the perpetration of these crimes and must implement adequate training and independent monitoring.
The international community must also play a role in addressing this issue. It is crucial that the human rights organs of the UN and OAS, governments, and civil society groups continue to monitor the situation in Venezuela and press the authorities to end the use of all enforced disappearances, even short-term enforced disappearances.
