The Argentine courts, through the Federal Court of Buenos Aires, ordered on Monday, September 23, the international arrest warrant for Venezuelan President Nicolás Maduro. Previously, the Supreme Court of Justice of Venezuela issued an arrest warrant against Argentine President Javier Milei for the “theft” of a Venezuelan cargo plane confiscated in Buenos Aires and handed over to the United States.
The Venezuelan order includes the Argentine Minister of Security, Patricia Bullrich, and the Secretary General of the Presidency and sister of the president, Karina Milei.
The Argentine order stems from a case opened following a complaint filed by the NGO Argentine Forum for the Defense of Democracy (FADD), based on the principle of universal jurisdiction. In this case, Venezuelan victims who had taken refuge in Argentina testified before the court about human rights violations.
The judges of the Federal Court of Buenos Aires affirm that the evidence is sufficient for an international arrest of Maduro, and asked Interpol to issue red alerts against the Venezuelan president and another 30 members of the Chavista government, among them, the Minister of the Interior, Diosdado Cabello.
Can Argentina stop Maduro and Venezuela Milei?
“Both Argentina and Germany have universal jurisdiction laws, which allow international crimes to be investigated regardless of where they were committed or the nationality of the perpetrators or victims,” Kai Ambos, a professor at the University of Göttingen and an international judge in The Hague, told DW in an interview.
“Argentine courts have jurisdiction over international crimes, such as the alleged crimes against humanity committed by the Maduro-led regime in Venezuela,” Alejandro Chehtman, professor at the Torcuato Di Tella University School of Law and researcher at CONICET, told DW from Buenos Aires.
Photos of political prisoners during a protest for their release, in Caracas. Image: Cristian Hernandez/AP/picture alliance
However, both experts clarify that what would prevent Maduro and Milei from being investigated, arrested or tried in this case is that heads of state enjoy immunity under international law.
“Maduro – as well as Putin, for example – have immunity within the framework of horizontal relations between States. In this case of ‘Argentina against Venezuela’, it is not possible for a State to intervene in the affairs of another, for example, by investigating or persecuting the head of State. That is exclusively the responsibility of international courts,” says Ambos. And he gives as an example that the German Federal Prosecutor’s Office is investigating Russian soldiers and generals for possible war crimes committed in the war of aggression against Ukraine, but horizontal immunity prevents, in principle, this type of investigation against Russian President Vladimir Putin.
Argentina has opened, in its recent history, nearly 100 cases for universal jurisdiction, says Chehtman, but “it has not managed to arrest any defendant. In the case of Maduro, it is even less likely that it will succeed. A sitting head of state cannot be under the jurisdiction of the courts of another state: that is called sovereign equality.”
“On the other hand, as regards Maduro’s complaint, Venezuela’s jurisdiction in Argentina does not seem to have a very solid legal basis in any of the accepted principles, such as territoriality or active or passive nationality,” says the Argentine jurist.
A measure of “domestic and international policy”
“Argentina cannot, and should not, legally speaking, issue an international arrest warrant against Maduro. And if it did issue one, according to jurisprudence, it would be illegal, since that is reserved for the International Criminal Court,” Chehtman points out.
In his opinion, “these types of measures often have to do with domestic and international politics. This Argentine court wants to send a clear signal to Argentine public opinion. And Milei’s government wants to express a political position before the international community. And the same could be said of Maduro’s government, which, being in a much more vulnerable and problematic situation, politically and legally, wants to return the ‘favor’ to Milei.”
Javier Milei, President of Argentina. Image: Matias Baglietto/picture alliance
“I believe that, beyond what one thinks about the ideology and state policy of one head of state or another, in this case, there are no solid legal arguments to investigate Milei,” he said.
On the other hand, despite the fact that several countries have recognized Edmundo González Urrutia as the winner of the elections, Nicolás Maduro remains the acting head of state, who has effective territorial control of Venezuela. “If it were used, that would be a very bad argument,” explains the Argentine expert in Extraterritorial Criminal Jurisdiction.
“Political instrumentalization of Justice”
For Kai Ambos, the current legal mess between Argentina and Venezuela “is more political theatre than a legal issue.” In both cases, it is a matter of “political instrumentalisation of Justice, which ultimately delegitimises law as an instrument for conflict resolution, something that, unfortunately, we often see in Latin America. And that also delegitimises the Judiciary, which should be independent, and, clearly, it is not in Venezuela, where, in fact, there is no separation of powers. In Argentina, in part, there is, but in this case there also seems to be political intervention.”
He recalls as a historic case that of the Spanish judge Baltasar Garzón, who in 1998 requested the arrest of the Chilean dictator Augusto Pinochet in London, where he was receiving medical treatment: “Although that arrest warrant and the arrest in an extradition procedure of Pinochet in London had a high symbolic value for many in the fight against impunity in Latin America, everything remained symbolic, since Pinochet was never extradited to Spain nor prosecuted there (or later in Chile).”
It also points out that the arrest warrant for the leader of the former German Democratic Republic (GDR), Erich Honecker – who was prosecuted between 1992 and 1993 in the Federal Republic of Germany – was only possible because Honecker was no longer head of state at that time, as his state, the GDR, had disappeared.
Nicolás Maduro, president of Venezuela. Image: Fausto Torrealba/REUTERS
Complaints against Maduro are being investigated by the ICC
On September 7, Argentina asked the ICC to order Maduro’s arrest. Is that plausible? “An investigation is underway at the Prosecutor’s Office of the International Criminal Court based on three reports from the UN Human Rights Council’s fact-finding mission, according to which there are well-founded and reasonable suspicions that crimes against humanity are being committed under that regime,” says Kai Ambos. The ICC opened the case ‘Situation of Venezuela I’ to investigate the alleged crimes that the Venezuelan regime may have perpetrated.
“Due to the Rome Statute’s principle of complementarity, investigated States have the possibility to challenge the admissibility of ICC investigations, and Venezuela did just that, but the ICC Appeals Chamber declared the investigation admissible, basically saying that Venezuela does not conduct a serious investigation into the alleged international crimes,” explains Ambos. It is also noteworthy in this context that Maduro appears to cooperate with ICC prosecutor Khan, but did not grant the UN investigative mission access to Venezuelan territory.
The next step would be for ICC prosecutor Karim Khan to request an arrest warrant against Nicolás Maduro and other suspects, as he did with Benjamin Netanyahu and Vladimir Putin. Alejandro Chehtman hopes that the ICC can move forward in that direction. “We are very attentive to this,” concludes Kai Ambos.
(rml)
