Cpi Venezzuela

ICC-02/18-61 13-09-2023 1/37 PT OA

Original: English No.: ICC-02/18

Date: 13 September 2023
THE APPEALS CHAMBER

Before: Judge Marc Pierre Perrin de Brichambaut, Presiding Judge

Judge Piotr Hofmański
Judge Luz del Carmen Ibáñez Carranza
Judge Solomy Balungi Bossa
Judge Gocha Lordkipanidze
SITUATION IN THE BOLIVARIAN REPUBLIC OF VENEZUELA I
Public Document
Observations on behalf of victims on the Venezuela Government Appeal against the

Decision authorising the resumption of the investigation
Source: Office of Public Counsel for Victims
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Document to be notified in accordance with regulation 31 of the Regulations of the Court to:
The Office of the Prosecutor Counsel for the Defence

Mr Karim A. A. Khan KC
Ms Helen Brady
Ms Alice Zago
Legal Representatives of the Victims Legal Representatives of the Applicants
Unrepresented Victims Unrepresented Applicants

(Participation/Reparation)
The Office of Public Counsel for Victims The Office of Public Counsel for the
Ms Paolina Massidda Defence
Mr Enrique Carnero Rojo
Ms Ludovica Vetruccio
States’ Representatives Amicus Curiae

Bolivarian Republic of Venezuela
REGISTRY
Registrar Counsel Support Section
Mr Osvaldo Zavala Giler
Victims and Witnesses Unit Detention Section
Victims Participation and Reparations Other

Section
Mr Philipp Ambach
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I. INTRODUCTION ................................................................................................... 4
II. PROCEDURAL BACKGROUND ......................................................................... 4
III. SUBMISSIONS ........................................................................................................ 7

1. On the applicable legal standards 7
2. The issues raised on appeal affect the general interests of victims 8
3. Grounds of appeal 1 and 2: the Chamber correctly conducted its proceedings pursuant to article 18
of the Statute 9
a) Sub-ground of appeal 1.1: the Chamber correctly found that Venezuela bore the burden of proof
under article 18(2) of the Statute ...................................................................................................................... 10
b) Sub-ground of appeal 1.2: the Chamber correctly understood the scope and content of the
Prosecutor’s Notifications ................................................................................................................................ 13
c) Sub-ground of appeal 1.3: the Chamber correctly found that there is no time limit for the Prosecutor
to file an application under article 18(2) of the Statute .................................................................................... 15
d) Sub-ground of appeal 2.1: the Chamber correctly found that only the essential documents from the
Appellant must be translated into a working language of the Court ................................................................ 18
e) Sub-ground of appeal 2.2: the Chamber correctly excluded summaries prepared by the Prosecution
of some documents transmitted by the Appellant ............................................................................................ 20
f) Sub-ground of appeal 2.3: the Chamber correctly found that the MoU had not been officially
notified and filed .............................................................................................................................................. 22
4. Ground of appeal 3: the Chamber correctly assessed the temporal scope of the Prosecutor’s intended
investigation 24
5. Ground of appeal 4: the Chamber correctly applied the complementarity test under article 17 of the
Statute 26
a) Sub-grounds of appeal 4.1 and 4.2: the Chamber applied the appropriate test for preliminary
admissibility rulings and reasonably explained the degree of coverage required from domestic investigations
under article 18 of the Statute........................................................................................................................... 26
b) Sub-ground of appeal 4.3: the Chamber correctly found that the contextual elements of the crimes
against humanity must be subject of domestic investigation ............................................................................ 28
c) Sub-ground of appeal 4.4 and 4.5: the Chamber correctly found that the discriminatory intent of
crimes of persecution and SGBV crimes were not subject of domestic investigation ..................................... 30
6. Ground of appeal 5: the Chamber relied on correct indicators to conclude the inexistence of relevant
domestic investigations 32
7. Ground of appeal 6: the Chamber correctly assessed the domestic investigations 34
8. Specific views of victims on the domestic investigations 36
IV. CONCLUSION ...................................................................................................... 37
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I. INTRODUCTION
1. In accordance with the Appeals Chamber’s instructions,1 and pursuant to regulation

81(4) of the Regulations of the Court (the “Regulations”), the Principal Counsel (“Counsel”) of
the Office of Public Counsel for Victims (the “OPCV” or the “Office”) hereby files her
observations in the interest of the victims in relation to the appeal brought by the Bolivarian
Republic of Venezuela (“Venezuela” or the “Appellant”)2 against the decision of Pre-Trial
Chamber I (the “Chamber”) authorising the Prosecutor to resume the investigation into the
Situation in Venezuela (the “Impugned Decision”).3
2. The appeal is directed against the whole decision authorising the resumption of the
investigation. The issues on appeal fundamentally affect the general interests of the victims
because a reversal of the Impugned Decision may result in halting the Prosecutor’s
investigation, thereby jeopardising the victims’ rights to truth, justice, and reparations.
3. Counsel opposes in full the six grounds of appeal raised by Venezuela and the relief
sought. She submits that the Chamber (i) properly conducted its proceedings pursuant to
article 18 of the Rome Statute (the “Statute”); (ii) correctly assessed the temporal scope of the
Prosecutor’s intended investigation; (iii) properly applied the complementarity test under
article 17 of the Statute; and (iv) rightly addressed the relevant admissibility factors under
article 17 of the Statute, including the activities of the domestic authorities. The Appellant fails
to demonstrate that the Chamber committed any error of fact or law, and therefore, the Appeal
should be dismissed.
II. PROCEDURAL BACKGROUND
4. On 27 September 2018, the Prosecution received from a group of States Parties to the
Statute a referral under article 14 of the Statute concerning possible crimes against humanity
committed in Venezuela since 12 February 2014 (the “Referral”).4
1
See the “Decision on the OPCV’s ‘Request to appear before the Appeals Chamber pursuant to regulation 81(4)
of the Regulations of the Court’” (Appeals Chamber), No. ICC-02/18-54 OA, 21 July 2023, para. 7.
2
See “The Bolivarian Republic of Venezuela’s Appeals Brief against the Pre-Trial I’s ‘Decision authorizing the
resumption of the investigation pursuant to article 18(2) of the Statute’ (ICC- 02/18-45)”, No. ICC-02/18-59-Conf-
Exp OA, 14 August 2023, with confidential ex parte annexes (a public redacted version of Annex II dated
21 August 2023 was registered on 22 August 2023, No. ICC-02/18-59-AnxII-Red OA) (the “Appeal” or the
“Appeal Brief”).
3
See the “Decision authorising the resumption of the investigation pursuant to article 18(2) of the Statute”,
No. ICC-02/18-45, 27 June 2023 (the “Impugned Decision”).
4
See the “Annex I to the Decision assigning the situation in the Bolivarian Republic of Venezuela to Pre-Trial
Chamber I”, No. ICC-02/18-1-AnxI, 28 September 2018 (the “Referral”).
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5. On 16 December 2021, the Prosecutor, pursuant to article 18(1) of the Statute, notified
all States Parties, including Venezuela, of his decision to initiate an investigation in the
Situation in Venezuela (the “First Article 18(1) Notification”).5
6. On 3 January 2022, Venezuela requested additional information from the Prosecutor

(“Venezuela’s Additional Information Request”).6
7. On 13 January 2022, the Prosecutor provided additional information and agreed to grant
Venezuela a three-month extension to inform the Court of its investigation (the “Second
Article 18(1) Notification”).7
8. On 15 April 2022, Venezuela notified the Prosecutor that it was investigating or had
investigated alleged punishable acts against human rights in accordance with the First
Article 18(1) Notification and requested a deferral of the investigation (the “Deferral
Request”).8
9. On 1 November 2022, the Prosecutor requested the Chamber to authorise the

resumption of the investigation into the Situation pursuant to article 18(2) of the Statute (the
“Resumption Request”).9
10. On 27 June 2023, the Chamber issued the Impugned Decision.10
11. On 2 July 2023, Venezuela filed its Notice of Appeal requesting suspensive effect of
the Impugned Decision.11
5
See the “Notification on the status of article 18 notifications in the Situation in the Bolivarian Republic of
Venezuela I”, No. ICC-02/18-16, 17 January 2022, paras. 1-2, and confidential ex parte annex A only available to
the Prosecution, the Registrar and the Bolivarian Republic of Venezuela, No. ICC-02/18-16-Conf-Exp-AnxA,
containing a copy of the notification pursuant to article 18(1) of the Statute, as sent to all States Parties and other
States with jurisdiction (the “First Article 18(1) Notification”).
6
Venezuela I”, No. ICC-02/18-16, 17 January 2022, para 4, and confidential ex parte annex C only available to the
Prosecution, the Registrar and the Bolivarian Republic of Venezuela, No. ICC-02/18-16-Conf-Exp-AnxC,
17 January 2022 (the “Venezuela’s Additional Information Request”).
7
Venezuela I”, No. ICC-02/18-16, 17 January 2022, paras. 5-6, and confidential ex parte annex D only available to
the Prosecution, the Registrar and the Bolivarian Republic of Venezuela, No. ICC-02/18-16-Conf-Exp-AnxD,
17 January 2022 (the “Second Article 18(1) Notification”).
8
See the “Annex B to the Notification of the Bolivarian Republic of Venezuela’s deferral request under article
18(2) of the Rome Statute”, No. ICC-02/18-17-AnxB-Red, 21 April 2022, p. 13 (the “Deferral Request”).
9
See the “Prosecution request to resume the investigation into the situation in the Bolivarian Republic of
Venezuela I pursuant to article 18(2)”, No. ICC-02/18-18, 1 November 2022 (the “Resumption Request”).
10
See the Impugned Decision, supra note 3.
11
See the “The Bolivarian Republic of Venezuela’s Notice of Appeal against the Pre-Trial Chamber I’s’ Decision
authorising the resumption of the investigation pursuant to article 18(2) of the Statute’ (ICC-02/18-45) and request
for suspensive effect”, No. ICC-02/18-46-Conf-Exp-AnxII, 3 July 2023 (a public redacted version was registered
on 12 July 2023, No. ICC-02/18-46-AnxII-Red OA).
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12. On 7 July 2023, the Appeals Chamber issued a decision on the Presiding Judge in the
appeal.12 On the same day, the OPCV filed a request to appear before the Appeals Chamber
under regulation 81 of the Regulations.13
13. On 20 July 2023, the Appeals Chamber rejected Venezuela’ request for suspensive
effect of the Impugned Decision.14
14. On 21 July 2023, the Appeals Chamber authorised the OPCV to submit written
observations regarding the general interests of victims.15
15. On 14 August 2023, Venezuela filed its Appeal Brief.16
16. On 24 August 2023, the Appeals Chamber issued the “Decision on requests for victims’
involvement”, instructing the Victims Participation and Reparations Section (the “VPRS”) to
collect and transmit any representation by victims by 17 October 2023.17
12
See the “Decision on the Presiding Judge of the Appeals Chamber in the appeal of the Bolivarian Republic of
Venezuela against Pre-Trial Chamber I’s ‘Decision authorising the resumption of the investigation pursuant to
article 18(2) of the Statute’”, No. ICC-02/18-48 OA, 7 July 2023.
13
See the “Request to appear before the Appeals Chamber pursuant to regulation 81(4) of the Regulations of the
Court”, No. ICC-02/18-47 OA, 7 July 2023.
14
See the “Decision on the Bolivarian Republic of Venezuela’s request for suspensive effect of Pre-Trial Chamber
I’s ‘Decision authorising the resumption of the investigation pursuant to article 18(2) of the Statute’” (Appeals
Chamber), No. ICC-02/18-53 OA, 20 July 2023. See also, the “Prosecution response to the Bolivarian Republic
of Venezuela’s request for suspensive effect (ICC-02/18-46-Conf-Exp)”, No. ICC-02/18-50-Conf-Exp OA, 11
July 2023 (a public redacted version was registered on 17 July 2023, No. ICC-02/18-50-Red OA).
15
See the “Decision on the OPCV’s ‘Request to appear before the Appeals Chamber pursuant to regulation 81(4)
of the Regulations of the Court’”, supra note 1, para. 7.
16
See the Appeal Brief, supra note 2.
17
See the “Decision on requests for victims’ involvement” (Appeals Chamber), No. ICC-02/18-60 OA, 24 August
2023, para. 16. In this regard, between 28 July and 3 August 2023, three groups of victims submitted requests to
present views and concerns to the Appeals Chamber and the Organization of American States Panel of Independent
International Experts on the Possible Commission of Crimes Against Humanity in Venezuela filed a request for
leave to submit amicus curiae observations. See respectively, the “Application to present victims’ views and
concerns in the appeal of the Bolivarian Republic of Venezuela against Pre-Trial Chamber I’s ‘Decision
authorising the resumption of the investigation pursuant to article 18(2) of the Statute’”, No. ICC-02/18-55-Red
OA, 27 July 2023; the “Registry Transmission of an ‘Application to present victims’ views and concerns in the
appeal of the Bolivarian Republic of Venezuela against the Pre-Trial Chamber I’s ‘Authorisation pursuant to article
18(2) of the Statute to resume the investigation’’”, No. ICC-02/18-56-Anx1-Red-Corr OA, 31 July 2023; and the
“Registry Transmission of a ‘Request to Present Opinions and Observations of Victims in the Appeal of the
Bolivarian Republic of Venezuela against the ‘Decision of Pre-Trial Chamber I Authorizing the Resumption of
the Investigation Pursuant to Article 18(2) of the Statute’’”, No. ICC-02/18-57-Anx1-Red OA, 3 August 2023;
and the “Annex 1 to the Registry Transmission of a ‘Request for Leave to Submit Amicus Curiae Observations by
the OAS Panel of Independent International Experts’”, No. ICC-02/18-58-Anx1 OA, 8 August 2023.
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III. SUBMISSIONS
1. On the applicable legal standards
17. In exercising its powers under rule 158 of the Rules of Procedure and Evidence (the
“Rules”), the Appeals Chamber will only consider specific grounds of appeal alleging legal,
factual or procedural errors that materially affect an impugned decision.18 The Appeals
Chamber will intervene only where “clear errors of law, fact or procedure are shown to exist
and vitiate the Impugned Decision”,19 or if the findings of the Chamber “are flawed on account
of a misdirection on a question of law, a misappreciation of the facts founding its decision, a
disregard of relevant facts, or taking into account facts extraneous to the sub judice issues”.20
18. Regarding questions of law, the Appeals Chamber “[w]ill not defer to the relevant
Chamber’s interpretation of the law, but will arrive at its own conclusions as to the appropriate
law and determine whether or not the first instance Chamber misinterpreted the law. If the
relevant chamber committed such an error, the Appeals Chamber will only intervene if the
error materially affected the decision impugned on appeal”.21 In this regard, “[a] decision is
‘materially affected by an error of law’ if the chamber ‘would have rendered a [decision] that
is substantially different from the decision that was affected by the error, if it had not made the
error’”.22
19. As regards errors based on a misappreciation of facts, the Appeals Chamber has clarified
that it “[w]ill not disturb a trial chamber’s factual findings only because it would have come to
a different conclusion. When considering alleged factual errors, the Appeals Chamber will
18
See the Public redacted version of the “Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the
decision of Trial Chamber III of 6 January 2012 entitled ‘Decision on the defence's 28 December 2011 ‘Requête
de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo’’” (Appeals Chamber), No. ICC-01/05-01/08-
2151-Red OA10, 5 March 2012, para. 29.
19
See the “Judgment on the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of
19 May 2011 entitled ‘Decision on the 'Defence Request for Interim Release’’” (Appeals Chamber), No. ICC-
01/04-01/10-283 OA, 14 July 2011, para. 15; and the Public Redacted Version of the “Judgment on the appeal of
the Prosecutor against Pre-Trial Chamber II's ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and
Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal
Republic of Germany, the Italian Republic, and the Republic of South Africa’” (Appeals Chamber), No. ICC-
01/05-01/08-631-Red OA2, 2 December 2009, para. 62.
20
See the “Judgment In the Appeal by Mathieu Ngudjolo Chui of 27 March 2008 against the Decision of Pre-Trial
Chamber I on the Application of the Appellant for Interim Release” (Appeals Chamber), No. ICC-01/04-01/07-
572 OA4, 9 June 2008, para. 25. See also, the “Judgment on the appeal of the Prosecutor against Pre-Trial Chamber
II's ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of
Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic,
and the Republic of South Africa’”, supra note 19, para. 61.
21
See the “Judgment on the appeal of the Republic of the Philippines against Pre-Trial Chamber I’s ‘Authorisation
pursuant to article 18(2) of the Statute to resume the investigation’” (Appeals Chamber), No. ICC-01/21-77 OA,
18 July 2023, paras. 35-36, and references contained therein.
22
Ibid., para. 36.
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allow the deference considered necessary and appropriate to the factual findings of a chamber.
However, the Appeals Chamber may interfere where it is unable to discern objectively how a
chamber’s conclusion could have reasonably been reached from the evidence on the record”.23
2. The issues raised on appeal affect the general interests of victims
20. The appeal is directed against the whole decision authorising the resumption of the
investigation. As such, the issues raised on appeal fundamentally affect the general interests of
the victims. A reversal of the Impugned Decision on appeal may result in halting the
Prosecutor’s investigation, thereby jeopardising the victims’ rights to truth, justice, and
reparations. In particular, the grounds of appeal and the issues raised therein as to (i) the Court’s
jurisdiction over the Situation in Venezuela; (ii) the complementarity assessment in the context
of a situation; and (iii) the related application of the admissibility factors, are all at the core of
the victims’ interests.
21. In fact, depending on their resolution, victims may be denied the opportunity to uncover
the truth, present their views and concerns throughout the proceedings, ensure that those
responsible are held accountable, and ultimately claim reparation.24 A decision regarding the
opening of an investigation concerns the first step towards the perpetrators’ accountability
before the Court in respect of the crimes suffered by the victims. Their personal interest in
seeing that the Court is seized with a situation, and that an investigation proceeds, has been
regarded as “the most essential of all victims’ interests”.25 The Court has a duty to exercise its
jurisdiction over those responsible for international crimes when the complementary test is met.
Said duty includes respecting the internationally recognised human rights of victims during
criminal proceedings, where the “outcome of such proceedings lead to the identification,
prosecution and punishment of those who have victimised them”.26
23
Ibid., para. 37.
24
See the “Decision on the victims’ request to participate in the appeal proceedings” (Appeals Chamber), No.
ICC-01/09-02/11-1015 OA5, 24 April 2015, para. 11; and the “Decision on the Participation of Victims in the
Appeal against the ‘Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule
118(2) of the Rules of Procedure and Evidence’ of Trial Chamber III” (Appeals Chamber), No. ICC-01/05-01/08-
857 OA4, 18 August 2010, para. 10.
25
See HUMAN RIGHTS WATCH, Commentary to the 2nd Preparatory Commission Meeting on the International
Criminal Court, July 1999, p. 33. See also, ECtHR, Kaya v Turkey, App. No. 22535/93, Judgment, 28 March 2000,
paras. 121-126; and IACtHR, Mapiripán Massacre v Colombia, Merits, Reparations and Costs, Judgment, 15
September 2005, paras. 116 and 123.
26
See the “Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage
of the Case” (Pre-Trial Chamber I), No. ICC-01/04-01/07-474, 13 May 2008, para. 41.
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22. Indeed, almost 9000 victims27 indicated to the Chamber that the proceedings in
Venezuela are not genuine,28 and that an investigation by the Court offers a unique opportunity
for victims’ voices being heard, finding out the truth, ending the impunity of those most
responsible, and preventing future crimes.29 Victims maintain this position despite the tentative
of Venezuela, in the last months, to persuade the Court of its willingness and ability to
investigate and prosecute crimes internally.
3. Grounds of appeal 1 and 2: the Chamber correctly conducted its

proceedings pursuant to article 18 of the Statute
23. In Ground 1, the Appellant argues that the Chamber erred in law by (i) failing to impose
the burden of persuasion on the Prosecutor pursuant to article 18 of the Statute; 30 (ii) applying
an incorrect standard for assessing the specificity of the Prosecutor’s Notifications pursuant to
article 18(1);31 and (iii) finding that there was no deadline for the Prosecutor to request a deferral
under article 18(2).32 In Ground 2, the Appellant submits that the Chamber erred in law and in
fact and manifestly abused its discretion by excluding (i) information concerning domestic
investigations that were in Spanish;33 (ii) the Prosecution summaries of proceedings,34 and (iii)
the Memorandum of Understanding concluded between the Prosecutor and Venezuela
(the “MoU”).35
24. Counsel submits that the Chamber correctly conducted its proceedings pursuant to
article 18 of the Statute. Contrary to Venezuela’s arguments in this regard, the Chamber was
correct in: (a) finding that Venezuela bore the burden of proof under article 18(2) of the Statute;
(b) understanding the scope and content of the Prosecutor’s Notifications; (c) considering that
there is no time limit for the Prosecutor to file an application under article 18(2) of the Statute;
(d) limiting its assessment to documents translated into a working language of the Court;
(e) excluding summaries prepared by the Prosecution of some documents transmitted by the
Appellant; and (f) finding that the MoU had not been officially notified and filed.
27
See the “Final Consolidated Registry Report on Article 18(2) Victims’ Views and Concerns Pursuant to Pre-
Trial Chamber’s Order ICC-02/18-21”, No. ICC-02/18-40-Conf, with confidential annex I, confidential annex III
and confidential ex parte Annex II, only available to the Registry (a public redacted version of annex I was notified
on the same date and a corrigendum thereof on 22 June 2023, No. ICC-02/18-40-Red-Corr), 20 April 2023,
paras. 18, 23.
28
Ibid., paras 28-33.
29
Ibid., paras 34-36.
30
See the Appeal Brief, supra note 2, paras. 14, 32-41.
31
Ibid., paras. 14, 42-61.
32
Ibid., paras. 14, 62-65.
33
Ibid., paras. 15, 66-82.
34
Ibid., paras. 15, 66, 83-91.
35
Ibid., paras. 15, 66, 92-96.
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a) Sub-ground of appeal 1.1: the Chamber correctly found that

Venezuela bore the burden of proof under article 18(2) of the Statute
25. Contrary to the Appellant’s contention,36 the Chamber correctly found that the onus
under article 18(2) of the Statute is placed on the Appellant to provide the Court with evidence
of a sufficient degree of specificity and probative value that demonstrates that it is investigating
or prosecuting crimes under the ICC jurisdiction.
26. In this regard, the Prosecutor, as also recalled by the Chamber,37 must always, and did
so in this situation, assess the criteria under article 53(1) of the Statute before deciding to initiate
an investigation.38 In turn, a State requesting a deferral must demonstrate, on the basis of the
information provided, the existence of domestic proceedings justifying deferral under article
18(2) of the Statute.39 Thus, the onus is on the State to show that national investigations or
prosecutions are taking place or have taken place. The relevant State must provide the Court
with evidence of a sufficient degree of specificity and probative value showing that it is indeed
investigating the potential case(s); and that tangible, concrete, and progressive investigative
steps are undertaken. Sparse and disparate activities do not suffice, a State must rather take
proactive investigative steps with a view to conduct criminal prosecutions.40
27. The fact that the Prosecutor may seek a ruling under article 18(2) of the Statute does not
absolve the requesting State of its responsibility to provide a valid basis for a deferral. 41 This
procedural mechanism primarily serves to foster the dialogue between the Prosecutor and
relevant States as intended by article 18.42 If a State’s request for deferral proceeds to the
36
Ibid., para. 32.
37
See the “Decision on the ‘Request for judicial control submitted to the Pre-Trial Chamber I of the International
Criminal Court by the Bolivarian Republic of Venezuela pursuant to Articles 15 and 21.3 of the Statute and Rule
46.2 of the Rules of the regulations of the Court’” (Pre-Trial Chamber I), No. ICC-02/18-9-Conf, 14 June 2021 (a
public redacted version was notified on 2 March 2022, No. ICC-02/18-9-Red) (the “Request for Judicial Control
Decision”), paras. 14, 16.
38
CHAITIDOU, “Article 14: Referral of a situation by a State Party”, in AMBOS (ed.), Rome Statute of the
International Criminal Court, Article-by-Article Commentary Beck, Hart, Nomos, 4th ed., 2022, Article 14, p. 870,
mn. 26; FROUVILLE, “Article 14: Renvoi d’une situation par un Etat partie”, in FERNANDEZ et al. (eds.), Statut
de Rome de la Cour pénale internationale, Commentaire article par article (Pedone, 2019), pp. 798, 808.
39
See the “Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation”
(Pre-Trial Chamber II), No. ICC-02/17-196, 31 October 2022, para. 45.
40
See the “Public Redacted Version of ‘Authorisation pursuant to article 18(2) of the Statute to resume the
investigation’” (Pre-Trial Chamber I), No. ICC-01/21-56-Red, 26 January 2023, para. 14 (original emphasis) and
authorities referred therein; and the “Decision pursuant to article 18(2) of the Statute authorising the Prosecution
to resume investigation”, supra note 39, para. 45.
41
See NTANDA NSEREKO and VENTURA, “Article 18: preliminary rulings regarding admissibility,’ in
AMBOS (ed.), Rome Statute of the International Criminal Court, Article-by-Article Commentary, 4th ed., 2022, p.
1027 mn. 48: “the Prosecutor bears the evidentiary and legal burden to prove by a preponderance of evidence or
on a balance of probabilities that valid grounds exist to justify the PTC granting him/her authority to carry out
the investigation”.
42
HOLMES, “Complementarity: National Courts versus the ICC”, in Cassesse et al. (eds.), The Rome Statute of
the International Criminal Court, Vol. I, 2002, p. 681; STAHN, “Admissibility Challenges before the ICC: From
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relevant Chamber for adjudication, the Prosecution does not supplant the State’s obligation to
provide proof. This approach aligns with the burden of proof outlined in article 19(2) of the
Statute, which allows a State to challenge the admissibility of specific cases.43
28. Through the First and Second Article 18(1) Notification, Venezuela was made aware of
the scope of the Prosecutor’s intended investigation. When making an article 18(2) request, the
Appellant must present information concerning any domestic proceedings that it considered
within that scope because “a State must show that in addition to being ‘opened’, its
investigations and proceedings also sufficiently mirror the content of the article 18(1)
notification […] and its scope”.44 In this regard, the State is “uniquely placed” to determine the
existence and scope of domestic proceedings, as the information may not be publicly known.45
29. Contrary to the Appellant’s argument that the “presumption [in favour of national
investigations] is only displaced if the OTP can demonstrate the absence of relevant national
investigations in its request”,46 the Appeals Chamber recently found that:
“the burden of providing information relevant to the pre-trial chamber’s

determination under article 18(2) of the Statute remains on the State seeking
deferral. The State concerned discharges this burden by providing information
in support of its initial request for deferral. The Prosecutor’s subsequent duty to
communicate that information to the pre-trial chamber does not affect the
allocation of the burden of proof, as the information remains that which the State
initially provided. […] the fact that it is the Prosecutor who seises a pre-trial
chamber with an application under article 18(2) of the Statute does not shift the
burden of proof to the Prosecutor. Indeed, under article 18(2) of the Statute, a
State alleges that it is carrying out or has carried out relevant investigations. It
is thus incumbent upon the State to establish the facts supporting this assertion.
Quasi-Primacy to Qualified Deference?”, in STAHN (ed.), The Law and Practice of the International Criminal
Court, 2015, p. 240.
43
See the “Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December
2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”
(Appeals Chamber), No. ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 128; the “Judgment on the appeal of
Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the
admissibility of the case against Abdullah Al-Senussi’” (Appeals Chamber), No. ICC-01/11-01/11-565 OA6, 24
July 2014, para. 166; and the “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial
Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the
Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’ (Appeals Chamber), No. ICC-01/09-01/11-
307 OA, 30 August 2011, para. 62.
44
investigation’”, supra note 40, para. 14 (original emphasis) and authorities referred therein, para. 16.
45
pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 21, para. 79.
46
See the Appeal Brief, supra note 2, para. 32.
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This is in line with the well-established principle of onus probandi incumbit

actori”.47
30. There are no “convincing reasons”48 for the Appeals Chamber to depart from this
interpretation when resolving this appeal.49 In the Philippines Situation, the Appeals Chamber
fully addressed the question of who must prove that the State is conducting “relevant
investigations”, 50 i.e. that there is an “overlap between such [State] information [concerning its
investigations] and the cases encompassed in the [Prosecutor’s] Article 18(1) Notification”.51
Moreover, the fact that rule 54 of the Rules requires the Prosecutor to provide “the basis for the
application” submitted under article 18(2) of the Statute cannot be read to mean that he is
required to prove that “the domestic investigations do not sufficiently mirror the cases set out
in [the] Article 18(1) Notification”.52
31. In this regard, rule 53 of the Rules expressly obliges States requesting a deferral to do
so “in writing and provide information concerning its investigation”. As found by the Chamber,
“the onus placed on the concerned State consists in providing ‘the Court with evidence of a
sufficient degree of specificity and probative value that demonstrates that it is indeed
investigating the case’. If this is established, the onus is then indeed on the Prosecution to show
that the State is either unwilling or unable genuinely to carry out the investigation or
prosecution”.53 This approach is consistent with the fact that States are uniquely placed to
determine the existence and scope of domestic proceedings.54 This conclusion is not altered by
regulation 38(2)(b) of the Regulations.55 This provision merely refers to the page limit of
applications submitted by the Prosecutor under article 18(2) of the Statute, and therefore does
not put on the latter the burden of proof in preliminary admissibility proceedings.
47
pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 21, paras. 1, 77-78 (emphasis
added).
48
See the “Reasons for the ‘Decision on the ‘Request for the recognition of the right of victims authorized to
participate in the case to automatically participate in any interlocutory appeal arising from the case and, in the
alternative, application to participate in the interlocutory appeal against the ninth decision on Mr Gbagbo’s
detention (ICC-02/11-01/15-134-Red3)’” (Appeals Chamber), No. ICC-02/11-01/15-172 OA6, 31 July 2015,
para. 14.
49
50
pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 21, paras. 1, 78.
51
52
Contra Appeal Brief, supra note 2, para. 38.
53
See the Impugned Decision, supra note 3, para. 66.
54
55
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32. In any event, and notwithstanding the above, the Appellant fails to show that the
Impugned Decision would have been materially affected even if the Chamber had erred in
stating that the onus was placed on the Appellant. To the contrary, the same information would
have been before the Chamber, since this was required by rule 54(1) of the Rules. The Chamber
would have had the same opportunity to receive the submissions of Venezuela, and it would
have reached the same conclusions from the assessment of the information before it.
b) Sub-ground of appeal 1.2: the Chamber correctly understood the scope

and content of the Prosecutor’s Notifications
33. Contrary to the Appellant’s contention,56 the Chamber did not err in law by
characterising as the “Second Article 18(1) Notification” the information transmitted by the
Prosecution under rule 52(2) of the Rules, nor by relying on this information to determine
whether the investigation in Venezuela sufficiently mirrors the scope of the Prosecutor’s
intended investigation.
34. First, in the Impugned Decision, the Chamber stated that “it is upon the Prosecution to
provide information that is specific enough for the relevant States to exercise its right under
Article 18(2) of the Statute and representative enough of the scope of criminality that it intends
to investigate in any future case(s)”.57 This means that, although specific, the information
provided at that stage, before the start of an investigation, may eventually not translate into
cases actually investigated and prosecuted by the Court. In this regard, Chambers ruling on
requests to authorize investigations have consistently found that “the [Prosecutor’s] selection
of persons or perpetrators as well as certain incidents which are likely to shape the
Prosecutor’s future case(s) at this stage is preliminary, and as such, this may change as a result
of the investigation”.58
35. The Chamber followed this approach in the Impugned Decision and did not err in
considering “specific enough” the catalogue with “similar patterns of allegations” and the
“sample of concrete examples of allegations within the jurisdiction of the Court” provided by
the Prosecution in the Second Article 18(1) Notification.59 Contrary to the Appellant’s
56
57
58
See the “Decision on the Prosecutor’s request for authorization of an investigation” (Pre-Trial Chamber I), No.
ICC-01/15-12, 27 January 2016, para. 37. See also the “Corrigendum of the Decision Pursuant to Article 15 of the
Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya” (Pre-Trial
Chamber II), No. ICC-01/09-19-Corr, 1 April 20210, para. 50; and the “Corrigendum to ‘Decision Pursuant to
Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte
d'Ivoire’” (Pre-Trial Chamber III), No. ICC-02/11-14-Corr, 15 November 2011, para. 191.
59
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contention,60 “the sample of alleged incidents provided by the Prosecution to Venezuela as a

result of Venezuela’s request for more concrete information” could be considered as “potential
cases” because they referred to victims, dates and locations.61 Thereby, said information
provided clarity regarding the “parameters and content of the investigations which have
received judicial authorisation to proceed”,62 including “the dates and locations of the
incidents”.63
36. Second, the degree of specificity required to assess admissibility is not the same when
dealing with a case or a situation. Under article 19 of the Statute, admissibility is assessed vis-
à-vis an actual case under ongoing investigation and/or prosecution. Therefore, the acts and
persons covered by domestic action must be the same as those covered by the Prosecutor’s
intended investigations. By contrast, “at the article 18 stage, no suspect has yet been the subject
of an arrest warrant, and […] admissibility can only be assessed against the backdrop of a
situation and the potential cases that would arise from this situation”,64 since “depending on
the situation, the latter investigation [of this Court] may look into a large number of crimes,
and cover a large geographical area and timeframe”.65
37. In this regard, Chambers ruling on requests to authorize investigations under article 15
of the Statute have consistently found that “an admissibility assessment at the stage of
authorization of an investigation cannot be conducted against the backdrop of a concrete case,
as prior to the start of an actual investigation it is not possible to define the exact parameters
of the case(s) in terms of conduct and identified suspects for the purpose of prosecution”.66
Therefore, the Appellant’s contention that the First and Second Article 18(1) Notification must
set out the acts which the Prosecutor will investigate,67 as well as its reliance on the Gaddafi
and Al Hassan cases,68 are inapposite.
60
See the Appeal Brief, supra note 2, paras. 52, 57.
61
62
63
Ibid., para. 58.
64
investigation’”, supra note 40, para. 16.
65
Ibid., para. 13, referring to the “Decision pursuant to article 18(2) of the Statute authorising the Prosecution to
resume investigation”, supra note 39, para. 46.
66
See the “Decision on the Prosecutor’s request for authorization of an investigation”, supra note 58, para. 36. See
also the “Corrigendum of the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an
Investigation into the Situation in the Republic of Kenya”, supra note 58, para. 48; and the “Corrigendum to
‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in
the Republic of Côte d'Ivoire’”, supra note 58, para. 190.
67
See the Appeal Brief, supra note 2, paras. 47, 51, 61.
68
Ibid., paras. 49, 58.
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38. Third, the Chamber did not err in granting the Resumption Request despite the paucity
of information in the First Article 18(1) Notification.69 The Chamber rightly relied on the
information transmitted by the Prosecution to the Appellant under rule 52(2) of the Rules as the
Second Article 18(1) Notification, upon finding that the “multiple exchanges with Venezuela
appear[s] to have been sufficiently specific for Venezuela to inform the Prosecution of its
domestic proceedings and seek the deferral of the investigation”.70 This information was
requested by the Appellant under rule 52(1) of the Rules, and referred to in its observations on
the Resumption Request.71 It is worth noting that said exchange of information between the
Prosecutor and the Appellant was encouraged by the Chamber, which found that a meaningful
dialogue was in line with the complementarity principle.72
39. Lastly, assuming arguendo that the Chamber erred in law, the Appellant does not show
how the Chamber would have rendered a substantially different ruling from the Impugned
Decision, if it had not made the error. In compliance with the Chamber’s direction to cooperate
and engage in meaningful dialogue with the concerned State,73 Venezuela agreed to the
Prosecutor’s offer of a three-month extension - running from the Second Article 18(1)
Notification for Venezuela to provide information about its investigations.74 The Appellant had
therefore ample time to provide said information to the Court.75
c) Sub-ground of appeal 1.3: the Chamber correctly found that there is

no time limit for the Prosecutor to file an application under article
18(2) of the Statute
40. Contrary to the Appellant’s contention,76 the Chamber correctly found that neither
article 18(2) of the Statute, nor rule 54 of the Rules stipulate a six-month deadline for the
Prosecutor to file a resumption request.
41. First, there is no lacuna in article 18(2) that may require inferring a time limit based on
the text of article 18(3) of the Statute.77 As stated by the Chamber, “nothing in the legal
69
70
71
See the “Observations of the Government of the Bolivarian Republic of Venezuela to the Prosecution request to
resume the investigation (ICC-01/18-18 [sic])”, No. ICC-02/18-30-Conf-Exp-AnxII, 28 February 2023 (a public
redacted version was notified on 28 March 2023, No. ICC-02/18-30-AnxII-Red, with a corrigendum filed on 26
June 2023, No. ICC-02/18-30-AnxII-Red-Corr) (“Venezuela’s Observations”), paras. 19, 99, 101, 119, 121-127,
148, 152, 167-168, 177-178.
72
See the Request for Judicial Control Decision, supra note 37, paras. 19-20.
73
Ibid., p. 12.
74
See the Second Article 18(1) Notification, supra note 7, para. 6.
75
76
77
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framework prevented the Prosecution from requesting authorisation to resume its investigation
into the Situation pursuant to article 18(2) of the Statute more than six months after Venezuela
had transmitted the Deferral Request”.78 This finding is consistent with the Appeals Chamber
jurisprudence that a lacuna does not exist when a matter is “exhaustively defined in the legal
instruments of the Court”, when interpreted “in accordance with the applicable canon of
interpretation” and noting that “not every silence in the legal framework of the Court constitutes
a lacuna”.79
42. In this regard, the terms in article 18(2) of the Statute “shall defer […] unless” suggest
that the Prosecutor must assess the material submitted and decide whether to seize the Pre-Trial
Chamber of the matter or not.80 The fact that article 18(2) does not expressly provide a time
limit does not imply that the time indication in article 18(3) for the Prosecutor to review its
decision to defer its investigation should apply. The different contest and purpose of these two
provisions do not support this interpretation.81 Moreover, it will not always be feasible to submit
resumption requests under article 18(2) of the Statute within the time limit provided for in
paragraph 3 of the same provision. In the situation at hand, the Prosecutor communicated to the
Chamber his intention to seek authorisation to resume his investigation on 21 April 2022, five
days after receiving the Deferral Request.82 This notwithstanding, since the submission of said
Request, the Prosecution received six tranches of material from the Appellant, the last one on
18 October 2022,83 while the Resumption Request was eventually filed on 1 November 2022.
43. Second, the Appeals Chamber has indeed affirmed the duty of diligence placed on the
parties to ensure the expeditiousness of the proceedings.84 However, this finding was made in
78
79
See the “Judgment on the appeals of the Prosecutor, Mr Jean-Pierre Bemba Gombo, Mr Fidèle Babala Wandu
and Mr Narcisse Arido against the decision of Trial ChamberVII entitled ‘Decision on Sentence pursuant to Article
76 of the Statute’ ” (Appeals Chamber), No. ICC-01/05-01/13-2276-Red A6 A7 A8 A9, 8 March 2018, para. 76.
80
See HOLMES, “Jurisdiction and admissibility”, in Lee et al. (eds.), The International Criminal Court: Elements
of Crimes and Rules of Procedure and Evidence, 2001, p. 340 (“faced with a request by a State, the Prosecutor
has several options”).
81
See HOLMES, “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The
Making of the Rome Statute, 1999, pp. 71-72 (“the decision to defer could be reviewed after six months (the United
States had proposed six or 12 months) […] a new provision was added permitting the Prosecutor at any time to
seek a ruling to recommence an investigation in the event of a significant change of circumstances […] where
States failed to provide information on the progress of its investigations or prosecutions, the Prosecutor could
seek a ruling from the Pre-Trial Chamber. Thus, the failure to respond constituted a ‘significant change of
circumstances’”).
82
See the “Notification of the Bolivarian Republic of Venezuela’s deferral request under article 18(2) of the Rome
Statute”, No. ICC-02/18-17, 21 April 2022, paras. 1, 8.
83
See the “Prosecution’s Response to the ‘Observations of the Government of the Bolivarian Republic of
Venezuela’s to the Prosecution request to resume the investigation’ (ICC-02/18-30-Conf-Exp-AnxII)”, No. ICC-
02/18-31-Conf-Exp, 21 March 2023 (a public redacted version was notified on 30 March 2023, No. ICC-02/18-
31-Red) (the “Response to Venezuela’s Observations”), para. 55.
84
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a situation where none of the time limits stipulated in the legal texts of the Court applied because
the motions at hand were not provided for in said texts.85 By contrast, an application by the
Prosecutor to resume his investigation is expressly regulated in article 18(2) of the Statute, and
in rules 53 and 54 of the Rules. Since no time limit is expressly indicated in these provisions,
the Chamber made no error in finding that there is no deadline for the submission of the
Resumption Request, and correctly indicated that “the Prosecution is under a continuous
obligation to facilitate expeditious proceedings before the Court”.86
44. Third, the “practical considerations” alleged by the Appellant to argue the existence of
a six-month deadline for the submission of the Resumption Request under article 18(2) of the
Statute are not consistent with the complementarity principle. A State can file admissibility
challenges not only throughout a situation pursuant to article 18(2), but also at the subsequent
case stage pursuant to article 19(2)(b) of the Statute (as per article 18(7)). Therefore, there is no
need for a State to “assume [after the expiration of the six-month deadline] that the OTP does
not contest its jurisdiction [sic] and to fully deploy its resources accordingly”.87 In fact, in
accordance with the complementarity principle,88 States may - and actually should - continue
their investigative and/or prosecutorial activities.89
45. Moreover, for the reasons mentioned supra,90 the Prosecutor does not need to
demonstrate “a significant change of circumstances” when seeking a review of the deferral of
his investigation. Said interpretation would be inconsistent with the context and purpose of the
relevant provisions.91 Even more so because showing a change of circumstances is not a
condition for “later applications” under article 18(3) as suggested by the Appellant,92 but a
possibility open to the Prosecutor for reviewing a deferral before or after the six-month period
stipulated in the provision (“or at any time”). Therefore, the Prosecutor was not required to
demonstrate any change in circumstances against the “competence” (sic) of Venezuela between
85
See the “Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November
2009 Entitled ‘Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful
Detention and Stay of Proceedings’” (Appeals Chamber), No. ICC-01/04-01/07-2259 OA10, 12 July 2010, para.
39.
86
87
88
See the “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30
May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of
the Case Pursuant to Article 19(2)(b) of the Statute’, Dissenting Opinion of Judge Anita Ušacka”, No. ICC-01/09-
01/11-336 OA, 20 September 2011, paras. 19-20.
89
90
See supra note 81.
91
92
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the six months after the filing of the Deferral Request and the submission of the Resumption
Request.93
46. For all these reasons, Ground 1 should be dismissed.
d) Sub-ground of appeal 2.1: the Chamber correctly found that only the
essential documents from the Appellant must be translated into a
working language of the Court
47. Contrary to the Appellant’s contention,94 the Chamber did not err in law and did not
abuse its discretion by failing to require the Prosecution to file in a working language of the
Court the information received in Spanish from the Appellant, and by declining to rely on
information that had not been translated into a working language.
48. First, regulation 39(1) of the Regulations indicates that “[a]ll documents and materials
filed with the Registry shall be in English or French […] [i]f the original document or material
is not in one of these languages, a participant shall attach a translation thereof”. In the context
of article 18(2) proceedings, the “participant” “[with] the onus to substantiate a deferral
request” is the State which must provide the translation into English or French of the documents
it relies upon “to ensure that the Chamber can analyse the materials submitted in support of a
request for deferral. […] [W]hilst the Prosecution may offer its services [to a State unable to
provide the supporting documents in one of the working languages of the Court], no obligation
rests on it to provide translations”.95 In this regard, the Appellant’s argument that the
abovementioned “precedent” was “legally flawed” because “the burden of persuasion rests with
the Prosecution and not the State” must be dismissed.96 Indeed, as argued supra,97 the onus to
substantiate a deferral request rests on the moving State.
49. Second, the obligation imposed on the Prosecution by rule 54(1) of the Rules to
“communicate” to the Pre-Trial Chamber “the information provided by the State under rule 53”
is limited by the precise terms of this provision. The Prosecution is only obliged to transmit the
translations received from the State, if any. The Prosecution is not obliged to provide
translations itself nor to “ensur[e] that the Chamber was duly informed of the basis of the
93
94
95
See the “Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation”,
supra note 39, para. 50.
96
97
See supra para. 29.
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deferral request”.98 Contrary to the Appellant’s contention,99 regulation 39(1) of the

Regulations cannot alter the scope of the obligation under 54(1) of the Rules because the
Regulations “shall be read subject to the Statute and the Rules”.100
50. In this regard, the Appellant’s argument that the obligation to provide translations into
a working language may limit the rights of States under article 18 of the Statute must be
dismissed.101 As reminded by the Chamber, “[the obligation for a State to ensure that the
Chamber can analyse the materials submitted] is not to say that, in case a State in [sic] unable
to provide the supporting documents in one of the working languages of the Court, it may not
consult with the Prosecution and agree that any translation for the purpose of the Chamber’s
assessment is made by the Prosecution”.102
51. Third, the Chamber did not “erroneously determine[d] that the requirement of
submitting documents to the Chamber in one of the working languages of the Court applies
equally to Venezuela and the Prosecution”.103 Indeed, it granted an extension of time for the
Appellant to file translations of the documents “essential” to its Deferral Request,104 but it did
so only after the Appellant requested sua sponte an extension of time to file English translations
of the documents “seemed necessary to make available to the Chamber”.105 The Chamber did
not direct the Appellant to focus on documents deemed “essential”.106
52. Moreover, Counsel observes that translation of all documents is not required even to
provide a fair trial before the Court.107 As stated by the Appeals Chamber,
“[t]here is no general requirement that filings of parties and participants

submitted in English be translated into French, or vice versa, […]. This is also
confirmed with respect to the language which a suspect fully understands and
98
99
100
See regulation 1(1) of the Regulations; the “Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the
Decision of Pre-Trial Chamber I Entitled ‘Décision sur la Demande de Mise en Liberté Provisoire de Thomas
Lubanga Dyilo’” (Appeals Chamber), No. ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43; and the
“Decision on Defence request on the suspension of time limits during judicial recess” (Pre-Trial Chamber I),
No. ICC-02/11-01/11-585, 27 December 2013, para. 7.
101
102
103
104
Idem, referring to the See the “Decision on Venezuela’s request for an extension of time and other procedural
matters”, No. ICC-02/18-29, 27 February 2023, para. 11.
105
See the “Annex II to the Transmission of ‘Request for modification of the deadline for submission of
translations of the files related to the State’s observations on OTP requests ICC-02/18-18’, received from the
Authorities of the Bolivarian Republic of Venezuela”, No. ICC-02/18-28-AnxII, 24 February 2023, para. 9.
106
107
See the “Order on reclassification of documents and Reasons for the ‘Decision on requests for variation of time
limits for a request for leave to reply’” (Appeals Chamber), No. ICC-01/05-01/13-2196 A A2 A3 A4 A5,
14 August 2017, para. 10.
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speaks by the wording of regulation 40 (6) of the Regulations of the Court, which
provides that ‘[t]he Registrar shall ensure translation into the language of the
[suspect], if he or she does not fully understand or speak any of the working
languages, of all decisions or orders in his or her case. Counsel shall be
responsible for informing that person of the other documents in his or her
case’”.108
53. A maiore ad minus, a Chamber may decide on a request pursuant to article 18(2) of the
Statute even if not all documents from the State involved in the proceedings have been
translated into a working language of the Court.
54. Fourth, article 87(2) of the Statute is not applicable to proceedings pursuant to
article 18(2) of the Statute, even if the text of the First Article 18(1) Notification “‘requested’
the State to indicate whether it wished to seek deferral of the investigation”.109 Article 87(2) is
included in Part 9 of the Statute devoted to international cooperation and judicial assistance,
and refers to “requests for cooperation” in relation to the “investigation and prosecution of
crimes within the jurisdiction of the Court” (article 86 of the Statute). By contrast, the
admissibility proceedings envisaged in article 18(2) are “preliminary” to said stage, and are
specifically regulated in rules 53 to 55 of the Rules. In light of this distinction, Counsel
argues that the Appellant could transmit a response to the First and Second Article 18(1)
Notification, in accordance with the language requirements provided for in regulation 39(1) of
the Regulations.
55. Lastly, since the Chamber did not err in refusing to consider information concerning
domestic investigations that was in Spanish, the Appeals Chamber should not accept the English
translations submitted by the Appellant as additional evidence.110
e) Sub-ground of appeal 2.2: the Chamber correctly excluded summaries

prepared by the Prosecution of some documents transmitted by the
Appellant
56. Contrary to the Appellant’s contention,111 the Chamber did not err in law and did not
abuse its discretion by excluding materials which “do not contain original police or court
records and are often unrelated to any domestic investigation in Venezuela”.
108
See the “Decision on Mr. Gbagbo’s Request for Translation and an Extension of Time for the Filing of a
Response to the Document in Support of the Appeal” (Appeals Chamber), No. ICC-02/11-01/11-489 OA5,
22 August 2013, para. 10 (emphasis added).
109
Contra Appeal Brief, supra note 2, paras. 72, 77.
110
111
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57. First, the Appellant misreads the Impugned Decision. The main reason for the
Chamber112 to exclude translations by the Prosecution of summaries provided by Venezuela of
some criminal cases was because they did not “contain” police or court records, not because
they “were not […] police or court records”.113
58. Second, contrary to the Appellant’s contention,114 the Chamber was not required to
identify which documents were “unrelated to any domestic investigation”. Since all the
summaries were excluded because they did not contain police or court records, the additional
conclusion reached by the Chamber that some of them did not relate to domestic investigations,
was superfluous for the purpose of article 18(2) proceedings.
59. Third, the Chamber properly justified the exclusion of the material that were not
accompanied by “original” police or court records, since they were not “relevant substantiating
documentation” for the purposes of article 18(2) of the Statute.115 Contrary to the Appellant’s
assumption,116 the Chamber based this finding on prior article 18(2) jurisprudence.117 Because
the material allegedly identified by Venezuela as being at the basis of the Prosecution
summaries are not “evidence for the purposes of substantiating [an] admissibility challenge”,118
but “evidence on the merits of [an eventual] domestic case”,119 the Chamber did not err in not
considering it at this stage of the proceedings.
60. Fourth, the Chamber was not obliged to rule on the material at hand following the
relevance and admissibility criteria set out in article 69(4) of the Statute. 120 As it is clear from
the wording of this provision (“trial”), its scope of application does not encompass article 18(2)
admissibility proceedings.
61. Fifth, the Chamber did not create an “unfair discrepancy” between the type of
information requested from the Appellant and from the Prosecution.121 The difference in the
112
113
114
Ibid., para. 85.
115
116
117
See the Impugned Decision, supra note 3, para. 88, referring to the “Public Redacted Version of ‘Authorisation
118
Cf. the Appeal Brief, supra note 2, para. 86, with the “Decision requesting further submissions on issues related
to the admissibility of the case against Saif Al-Islam Gaddafi” (Pre-Trial Chamber I), No. ICC-01/11-01/11-239,
7 December 2012, para. 11. See also the “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”
(Pre-Trial Chamber I), No. ICC-01/11-01/11-344-Red, 31 May 2013, para. 123.
119
Cf. the Appeal Brief, supra note 2, para. 89, with the “Decision requesting further submissions on issues related
to the admissibility of the case against Saif Al-Islam Gaddafi”, supra note 118, para. 12. See also the “Decision
on the admissibility of the case against Saif Al-Islam Gaddafi”, supra note 118, para. 122.
120
Contra Appeal Brief, supra note 2, paras. 84, 90-91.
121
Contra Appeal Brief, supra note 2, paras. 87-88.
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type of information is justified by the fact that the State requesting a deferral of an investigation
is better placed to determine the existence and scope of domestic proceedings.122 Therefore, the
Appellant could provide more detailed information than the Prosecution, which at this stage of
the proceedings had only conducted a preliminary examination.
f) Sub-ground of appeal 2.3: the Chamber correctly found that the MoU
had not been officially notified and filed
62. Contrary to the Appellant’s contention,123 the Chamber did not err in law by finding that
“no memoranda of understanding had been officially notified and filed before it”.
63. First, the Appellant misconstrues the Chamber’s findings. In fact, contrary to the
submissions by Venezuela, the Chamber did not refer to the MoU “when assessing the existence
of steps taken by the RBV to actively investigate the acts falling within the Article 18(1)
notice”,124 but when addressing “other alleged irregularities in the present article 18(2)
proceedings”.125
64. Second, the Court has not found that the parties must not seek the admission of legal
instruments “in order to rely on their contents to demonstrate legal obligations”,126 but that the
preceptive admission is not necessary if the parties “seek to use [items] in support of their legal
arguments”.127 By contrast, the Appellant seeks to rely on the MoU to advance arguments on
the facts, namely that the Prosecutor surprisingly announced his decision to open an
investigation, and that he specifically endorsed the investigative approach adopted by
Venezuela.128 Therefore, the Appellant should have formally filed the MoU before the Chamber
for its assessment. The fact that the Prosecutor referred to the MoU when informing the
Chamber of the First Article 18(1) Notification does not relieve the Appellant from this
obligation.
65. In any event, and notwithstanding the above, the Appellant also fails to show that the
Impugned Decision would have been materially affected if the Chamber had erred in finding
that the MoU had not been officially notified and filed before it. The signature of the MoU was
122
123
124
Idem.
125
See the Impugned Decision, supra note 3, section II.A.2, para. 60.
126
127
See the “Decision on the Defence’s request for authorisation to file a corrigendum to its closing brief and to
strike a reference from the Prosecution’s response to the closing briefs” (Trial Chamber X), No. ICC-01/12-01/18-
2496, 16 May 2023, para. 17 (emphasis added).
128
See Venezuela’s Observations, supra note 71, para. 17; and the Appeal Brief, supra note 2, para. 95.
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relied upon by the Appellant to argue its “cooperative approach” with the Prosecutor,129 and
that the latter agreed with Venezuela to provide “technical consultancy services […] in the
spirit of positive complementarity”.130 These submissions were, however, not relevant to the
Chamber’s assessment of the criminal proceedings undertaken by Venezuela at the time of the
Resumption Request - i.e. whether Venezuela was conducting an investigation which
sufficiently mirrored the Prosecutor’s intended investigation,131 or whether said criminal
proceedings were genuine.132
66. The submissions advanced by the Appellant based on the MoU, namely that the
Prosecutor “specifically endorsed an investigative approach focusing on establishing the facts
(rather than particular targets)”,133 are not accurate and equally fail to demonstrate that the
alleged error had a material impact on the Impugned Decision. The MoU does not show the
Prosecutor’s agreement on any investigative approach, but simply indicates that “no suspect or
target has been identified at this stage and that the investigation is intended to establish the
truth”.134 Moreover, the Chamber’s consideration of said submissions would not have had any
material impact on the Impugned Decision, since the admissibility analysis of a potential case
must be conducted considering the facts as they exist at the time of the admissibility challenge
before the Chamber, instead of eventual domestic investigations and/or prosecutions.135
Therefore, there was no error in the Chamber’s decision that “for the purposes of the
determination of the Request, the Chamber has only considered the material and submissions
filed before it”.136
129
See Venezuela’s Observations, supra note 71, paras. 17, 136.
130
Ibid., paras. 132, 166.
131
See the Resumption Request, supra note 9, para. 4.
132
Ibid., para. 5.
133
134
See page 2 of the Memorandum of Understanding signed in Caracas on 3 November 2021 by Venezuela and
the Prosecution, available at https://www.icc-cpi.int/itemsDocuments/otp/acuerdo/acuerdo-eng.pdf.
135
See the “Decision on the ‘ Filing of Updated Investigation Report by the Government of Kenya in the Appeal
against the Pre-Trial Chamber's Decision on Admissibility’” (Appeals Chamber), No. ICC-01/09-01/11-234 OA,
28 July 2011, para. 10; and the “Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of
Trial Chamber II of 12 June 2009 on the Admissibility of the Case” (Appeals Chamber), No. ICC-01/04-01/07-
1497 OA8, 25 September 2009, para. 57.
136
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4. Ground of appeal 3: the Chamber correctly assessed the temporal scope of

the Prosecutor’s intended investigation
68. Contrary to the Appellant’s contention,137 the Chamber correctly found that the
temporal scope of the Prosecutor’s First and Second Article 18(1) Notification and related
deferral proceedings were not limited to alleged criminal activity occurring from April 2017
onwards.
69. First, the Appellant wrongly concludes that the Chamber “rel[ied] on the temporal
scope of State referrals in order to deduce the temporal scope of the Article 18(1)
Notification”.138 In this regard, the Chamber indeed acknowledged that the temporal scope of
the situation as referred by the States concerns alleged crimes committed since
12 February 2014.139 However, “notwithstanding the above [the temporal scope of the
referral]”,140 the Chamber considered at length the language used in the First Article 18(1)
Notification, and concluded that it “create[d] some uncertainty as to the temporal scope of the
criminal acts that [the Prosecution] intends to investigate and on which Venezuela was required
to provide information pursuant to article 18(2)”.141
70. The Chamber eventually reached its conclusion on the temporal scope of the intended
investigation both “from the content of the States’ referral and the information provided to
Venezuela by the Prosecution”.142 Thus, it made a clear distinction between the temporal scope
of the referral and that of the article 18(1) Notifications.143
71. Second, the Appellant misreads the Impugned Decision to argue that there was “no
foundation to conclude that the Article 18 proceedings encompassed alleged incidents
occurring before April 2017”.144 In this regard, the Chamber correctly relied on the list of
incidents within the jurisdiction of the Court included in the Second Article 18(1) Notification
to determine that the temporal scope of the intended investigation covered also conduct prior to
2017.145
72. Third, the Appellant’s arguments that the Prosecution did not state that it intended to
investigate conduct prior to 2017 and that there was an impression that investigations were
137
138
Ibid., para. 100.
139
See the Impugned Decision, supra note 3, para. 45, referring to the Referral, supra note 4.
140
141
Ibid., para. 47.
142
Ibid., para. 49.
143
Contra the Appeal Brief, supra note 2, paras. 101-103.
144
145
See the Impugned Decision, supra note 3, paras. 48-49.
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confined to detention-related incidents occurring since April 2017 are not tenable.146 These
complaints were not raised before the Chamber by the Appellant, who simply requested a ruling
on the temporal jurisdiction of the Court on the basis that there were allegedly “arbitrary
changes of dates” in the analysis of the Situation by the Prosecution.147
73. In any case, given the context and content of the Second Article 18(1) Notification, it
cannot be reasonably argued that the Prosecution did not intend to investigate conduct prior to
2017. In fact, the temporal scope of the preliminary examination was not limited to conduct
after April 2017 in the Prosecutor’s annual Preliminary Examination reports of 2018, 2019 and
2020,148 and in inter partes communications with Venezuela.149 And even assuming arguendo
that it was, the Prosecutor’s investigation is not limited to the incidents identified during the
preliminary examination.150
74. More importantly, the Second Article 18(1) Notification was provided to the Appellant
upon its Additional Information Request.151 Said Notification included a sample of alleged
incidents cited in open-source reports, and invited Venezuela to inform the Prosecutor of any
national proceedings that it had undertaken with respect to these alleged acts. 152 After the
provision of this “additional information”, the Prosecutor agreed to grant Venezuela three
months “to inform the Court of its investigations within the meaning of article 18(2)”.153
Therefore, the Appellant cannot reasonably argue that it was not informed of the temporal scope
of the Prosecutor’s intended investigation.
146
Contra the Appeal Brief, supra note 2, para. 104.
147
148
See the OTP Report on Preliminary Examination Activities (2018), 5 December 2018, paras. 116, 124; OTP
Report on Preliminary Examination Activities (2019), 5 December 2019, para. 73; OTP Report on Preliminary
Examination Activities (2020), 14 December 2020, paras. 199, 213.
149
See the Response to Venezuela’s Observations, supra note 83, para. 52.
150
See the “Judgment on the appeal against the decision on the authorisation of an investigation into the situation
in the Islamic Republic of Afghanistan” (Appeals Chamber), No. ICC-02/17-138 OA4, 5 March 2020, para. 61;
and the “Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the
Statute” (Pre-Trial Chamber I), No. ICC-01/21-12, 15 September 2021, paras. 116-118, and references contained
therein. See also the Impugned Decision, supra note 3, para. 76.
151
See Venezuela’s Additional Information Request, supra note 6, and the Impugned Decision, supra note 3,
paras. 73, 79.
152
See the Second Article 18(1) Notification, supra note 7, footnote 9; and the Impugned Decision, supra note 3,
para. 74.
153
See the Second Article 18(1) Notification, supra note 7, para. 6.
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5. Ground of appeal 4: the Chamber correctly applied the complementarity

test under article 17 of the Statute
76. In Ground 4, the Appellant argues that the Chamber erred in law in the test it adopted
for assessing whether Venezuela was actively investigating the acts referred to in the Article 18
Notification154 by (i) not tailoring the test to the particularities of the Notification;155 (ii) not
clarifying the scope and content of the test;156 and (iii) finding that the contextual elements of
crimes against humanity,157 the discriminatory intent of crimes of persecution,158 and sexual
and gender-based violence crimes (“SGBV crimes”) as such159 must be covered by domestic
investigations.
77. Counsel submits that the Chamber correctly applied the complementarity test under
article 17 of Statute, as expressly foreseen by rule 55(2) of the Rules and in accordance with
the relevant law. In particular, contrary to Venezuela’s arguments in this regard, the Chamber:
(a) applied the appropriate test for preliminary admissibility rulings pursuant to article 18 of the
Statute; (b) reasonably explained the degree of coverage required from domestic investigations
pursuant to article 18 of the Statute; and (c) correctly found that the contextual elements of the
crimes against humanity, the discriminatory intent of the crime of persecution and SGBV
crimes had to be subject of domestic investigation.
a) Sub-grounds of appeal 4.1 and 4.2: the Chamber applied the

appropriate test for preliminary admissibility rulings and reasonably
explained the degree of coverage required from domestic investigations
under article 18 of the Statute
78. Contrary to the Appellant’s contention,160 the Chamber’s test of considering “whether
domestic investigations cover the same individuals and substantially the same conduct as the
investigations before the Court”161 is the same as the one recently upheld by the Appeals
Chamber in the Philippines Situation – namely, that “domestic criminal proceedings must
sufficiently mirror the scope of the Prosecutor’s intended investigation”.162 In fact, the Appeals
Chamber found no error since “the Pre-Trial Chamber correctly assessed whether there exists
an advancing process of domestic investigations or prosecutions of the same groups or
154
155
Ibid., paras. 17, 106-115.
156
Ibid., paras. 17, 116-122.
157
Ibid., paras. 17, 123-130.
158
Ibid., paras. 17, 131-135.
159
Ibid., paras. 17, 136-139.
160
Ibid., paras. 107-114.
161
162
pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 21, paras. 2, 106.
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categories of individuals in relation to the relevant criminality within the situation which
sufficiently mirrors the scope of the Prosecutor’s intended investigation, taking into account
the stage of a situation, as well as the specific circumstances and parameters of the […]
Situation”.163
79. In the Impugned Decision, the Chamber clarified that the correct understanding of the
“sufficiently mirror” test is that “in order to show that it is investigating the potential cases that
the Prosecution may pursue, [Venezuela’s] domestic investigations must substantially cover
the same conduct and the same persons/groups”.164 At no point the Chamber requested
complete symmetry between the two investigations in terms of the specific identity of the
alleged offenders. Instead, what the Chamber required is that at least the same categories of
individuals are targeted, such higher-ranking instead of direct and lower-ranking potential
perpetrators.
80. Contrary to the Appellant’s submissions,165 the Chamber committed no error in its
application of the test and in explaining the degree of coverage required from domestic
investigations pursuant to article 18 of the Statute. In fact, for the purpose of proceedings
relating to the initiation of an investigation into a situation under articles 15 and 53(1) of the
Statute, the contours of the likely cases will often be relatively vague because the investigations
of the Prosecutor are at their initial stages.166 This is consistent with the preliminary stage of
proceedings when the Prosecution has not had the opportunity to gather evidence and ascertain
the facts in the course of an investigation.
81. The Chamber, however, considered that it is upon the Prosecution to provide
information that is specific enough for the relevant State to exercise its right under article 18(2)
of the Statute and representative enough of the scope of criminality that it intends to investigate
in any future case(s).167 In the circumstances of this Situation, the Chamber correctly found that
the information provided by the Prosecution in its multiple exchanges with Venezuela was
sufficiently specific for the State to be informed of the degree of coverage required by its
domestic proceedings.168 In particular, the Chamber noted that the sample of alleged incidents
provided by the Prosecution - in response to Venezuela’s request for more concrete information
163
Ibid., para. 110 (emphasis added).
164
165
See the Appeal Brief, supra note 2, paras. 116-122.
166
the Case Pursuant to Article 19(2)(b) of the Statute’”, supra note 43, para. 39.
167
168
Ibid., para. 79.
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to the criminal acts that may constitute crimes under article 5 of the Statute - all went so far to
contain information on the victim, date, and location for each alleged incident.169 Accordingly,
the Chamber properly determined that Venezuela had received sufficient information to
exercise its right under article 18 of the Statute. Venezuela was aware of the scope of the
Prosecutor’s intended investigation and understood that it would only meet the test under
article 17 of the Statute by investigating and prosecuting the same groups or categories of
individuals in relation to the relevant criminality within the information provided by the
Prosecution.
b) Sub-ground of appeal 4.3: the Chamber correctly found that the

contextual elements of the crimes against humanity must be subject of
domestic investigation
82. In sub-ground 4.3, the Appellant argues that the Chamber committed an error of law in
considering Venezuela’s failure to investigate contextual elements of crimes against humanity
as a key factor to conclude that the domestic investigations did not sufficiently mirror those of
the Prosecutor.170
83. In State admissibility challenges of a case under article 19(2)(b) of the Statute there is
no requirement for a crime to be prosecuted as an international crime domestically.171 In the
Impugned Decision, the Chamber correctly recalled that what is required is that the crimes
prosecuted at the domestic level cover “substantially the same conduct” as those investigated
by the Court.172 In determining whether they do, the Chamber assessed whether the domestic
case sufficiently mirrors the potential cases before the Court. It is the alleged conduct, as
opposed to its legal characterisation, that matters.173 The parameters of a ‘case’ are defined by
the suspect under investigation and the conduct that gives rise to criminal liability under the
Statute.174 The Appeals Chamber considered that to carry out the assessment, it is necessary to
use, as a comparator, the underlying incidents under investigation both by the Prosecutor and
169
Ibid., para. 122.
170
171
See the “Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11
October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’”, supra note 43,
para. 119. See also the “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, supra note 118,
para. 113.
172
173
para. 119.
174
Ibid., para. 99.
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the State, alongside the conduct of the suspect under investigation that gives rise to their
criminal responsibility for the conduct described in those incidents.175
84. In the Impugned Decision, the Chamber correctly applied the above test and properly
found that, on the basis of the material submitted, “it appears that Venezuela is indeed not
investigating the factual allegations underlying the contextual elements of crimes against
humanity”.176 In addition, the Chamber properly assessed - and drew the correct conclusions as
to the lack of relevant domestic investigations - from Venezuela’s multiple and unsubstantiated
statements (i) rejecting a priori the applicability of the features developed by the case law to
interpret the element of the attack in the context of crimes against humanity;177 (ii) defining the
violations of protesters’ rights as “isolated incidents”;178 and (iii) alleging an incompatibility of
the policy element within the meaning of article 7(2)(a) of the Statute with public statements
made by high level authorities of Venezuela and with the existence of the Human Rights
Directorate.179
85. On this last point, Counsel reiterates that the evidence presented by a State in this regard
must be of a “sufficient degree of specificity and probative value” which demonstrates that it is
indeed genuinely investigating the case.180 In this regard, the Appeals Chamber ruled that:
“[…] ‘a statement by a Government that it is actively investigating is not

[…] determinative. In such a case the Government must support its statement
with tangible proof to demonstrate that it is actually carrying out relevant
investigations’. In other words, there must be evidence with probative value”.181
175
See the “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled
‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’” (Appeals Chamber), No. ICC-01/11-
01/11-547-Red OA 4, 21 May 2014, para. 732.
176
177
Ibid., para. 104.
178
179
Ibid., para. 107.
180
the Case Pursuant to Article 19(2)(b) of the Statute’”, supra note 43, para. 2.
181
Ibid., para. 62 (footnotes omitted).
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86. In this sense, it would never suffice for a State merely to assert that relevant
investigations are ongoing,182 or for a State to rely on judicial reform actions and promises for
future investigative activities.183
c) Sub-ground of appeal 4.4 and 4.5: the Chamber correctly found that
the discriminatory intent of crimes of persecution and SGBV crimes
were not subject of domestic investigation
87. In sub-ground 4.4, the Appellant argues that the Chamber erred in law by finding that
domestic investigations needed to cover ‘discriminatory intent’ in connection with underlying
acts pertaining to the Prosecutor’s intended investigations related to persecution, and by failing
to take into account domestic investigations into human rights violations.184 Similarly, in sub-
ground 4.5, the Appellant argues that the Chamber committed the same legal error in finding
that Venezuela was not carrying out domestic investigations into SGBV crimes.185
88. As regards sub-ground 4.4, an act referred to in article 7(1) or any crime within the
Court’s jurisdiction qualifies as persecution when it is perpetrated against any identifiable group
or collectively on political, racial, national, ethnic, cultural, religious, gender or other grounds
that are universally recognized as impermissible under international law.
89. The Chamber correctly recognised that different legal qualifications do not influence
the assessment on whether Venezuela appears (or not) to be investigating the same conduct.186
In this regard, the Appellant misunderstood and/or misapplied the “same conduct” test.
Venezuela claims that the Chamber erred in rejecting the alleged domestic human rights
investigations as a relevant indicator. But it fails to show whether or how those investigations
were in fact covering the discriminatory intent - related to the same criminality and groups or
categories of individuals mirroring the Prosecutor’s intended investigation.
182
the Case Pursuant to Article 19(2)(b) of the Statute’”, supra note 43, paras. 62-63. See also, the “Judgment on the
appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on
Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”, supra note 43, paras. 29 and
128.
183
See the “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case
Pursuant to Article 19(2)(b) of the Statute” (Pre-Trial Chamber II), No. ICC-01/09-01/11-101, 30 May 2011, para.
64. See also, the “Public Redacted Version of ‘Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 25
October 2017” (Pre-Trial Chamber III), No. ICC-01/17-9-Red, 9 November 2017, para. 162.
184
See the Appeal Brief, supra note 2, paras. 131-135.
185
186
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90. In this regard, in the Al-Senussi case, the Appeals Chamber found that the conduct
underlying the crime of persecution was sufficiently covered in the domestic proceedings,
because judges in Libya could include in sentencing “discrimination on grounds constituting
the international crime of persecution as an aggravating feature”.187 In Al-Senussi the
admissibility test was applied to a concrete case. The Appeals Chamber could thus identify the
specific domestic offenses that Libya envisaged to charge the defendant with - including “civil
war”, “assault the political rights of the citizen”, “stirring up hatred between the classes”.188 In
the present Situation, Venezuela has not reached this stage and did not demonstrate how the
crimes allegedly investigated included factual allegations of discriminatory intent.
91. In these circumstances, the mere reference to the existing domestic legislation providing
that criminal acts “committed due to the victim’s membership of a particular ethnic, racial,
religious or political group shall be considered as an aggravating circumstance in determining
the appropriate sentence”189 is not sufficient to satisfy the preliminary admissibility test under
article 18 proceedings. It is not enough for a State to rely on the available legislation or judicial
reform actions.190
92. In sub-ground 4.5, the Appellant argues that the Chamber committed the same legal
error as it did in relation to persecution, when finding that Venezuela was not carrying out
domestic investigations into sexual and gender-based violence crimes.191 As submitted for sub-
ground 4.4, the Appellant misunderstood and/or misapplied the test applicable to article 18
proceedings. The Chamber correctly noted that Venezuela only alleged three specific cases
involving SGBV crimes and provided information for one of them.192 The Chamber further
noted that while a few other cases contain information that may suggest that SGBV crimes were
considered, it remained unclear whether this specific aspect was the object of domestic
investigations.193
93. While the limited number of cases put forward by Venezuela already provides a strong
indication of the absence of relevant domestic investigations, it also made it impossible for the
187
para. 121.
188
Ibid., para. 120.
189
190
See the “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case
Pursuant to Article 19(2)(b) of the Statute”, supra note 183, para. 64. See also, the “Public Redacted Version of
‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 25 October 2017”, supra note 183, para. 162.
191
See the Impugned Decision, supra note 3, paras. 124.
192
Idem.
193
Idem.
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Chamber to evaluate whether the national proceedings sufficiently mirror the Prosecutor’s
intended investigation on SGBV crimes. In addition, Venezuela’s generic argument that
domestic legislation concerning torture and cruel treatment attracts a higher penalty has no
bearing on the test that the Chamber should apply.194 The same goes for the Appellant’s
arguments on the Chamber’s failure to consider a potential requalification of such conducts by
the domestic judges at a later stage.195 As discussed infra, the relevant assessment under article
18 of the Statute must be made on the basis of the facts as they presently exist.196
94. For all these reasons, Ground 4 should be dismissed in its entirety.
6. Ground of appeal 5: the Chamber relied on correct indicators to conclude

the inexistence of relevant domestic investigations
95. In Ground 5, the Appellant argues that the Chamber erred in law by assessing the
existence of domestic investigations on irrelevant factors and by failing to give any weight to
relevant factors.197
96. In the Impugned Decision, the Chamber correctly relied on the Appeal Chamber’s
jurisprudence according to which article 17(1)(a) of the Statute entails a two-step analysis to
determine whether a case is inadmissible.198 The Chamber then proceeded to address the factors
put forward by the Prosecutor and considered determinative to the Chamber’s ultimate findings
on the Deferral Request, including: (i) whether Venezuela is investigating the patterns and
policies underlying the contextual elements of crimes against humanity; and (ii) whether the
focus of the domestic proceedings is on direct perpetrators and arguably low level members of
security forces.199 As regards point (i), the Chamber properly analysed the material submitted
by Venezuela and correctly found that the national investigations failed to cover any factual
allegations underlying the contextual elements of crimes against humanity. The Chamber
194
195
Ibid., para. 138.
196
See the “Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June
2009 on the Admissibility of the Case”, supra note 135, para. 56. See also, the “Decision on the admissibility of
the case under article 19(1) of the Statute”(Pre-Trial Chamber II), No. ICC-02/04-01/05-377, 10 March 2003,
paras. 49-52 (noting that admissibility assessments cannot be undertaken on the basis of hypothetical national
proceedings that may or may not take place in the future: it must be based on the concrete facts as they exist at the
time).
197
198
See the Impugned Decision, supra note 3, para. 95. In considering whether a case is inadmissible under article
17(1)(a) and (b) of the Statute, “the initial questions to ask are (1) whether there are ongoing investigations or
prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has
decided not to prosecute the person concerned. Only when both questions are answered in the affirmative, should
a chamber consider whether a State is unwilling or unable to genuinely carry out any such investigation or
prosecution pursuant to article 17(2) and 17(3) of the Statute. Inaction by the State having jurisdiction means that
the question of unwillingness or inability does not arise, and a case would be admissible before the Court”.
199
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considered that this finding is also supported by Venezuela’s unsubstantiated claim that the
crimes alleged by the Prosecution were not committed as part of a widespread or systematic
attack directed against the civilian population.200
97. As regards point (ii), the Chamber concluded that the focus of the national investigations
appeared to be on direct and low-level perpetrators. It noted that said focus is “consistent with
Venezuela’s assertion that crimes against humanity did not occur in Venezuela insofar as
violations of citizens’ rights were isolated in what Venezuela describes as ‘potential acts of
abuse committed by public officials’”.201 The Chamber concluded that these two factors, when
combined, decisively led to its determination that the domestic investigations in Venezuela do
not sufficiently mirror the Prosecutor’s intended investigation.202
98. The Chamber’s approach to the information provided by Venezuela is thus correct.
When assessing the merits of an article 18(2) request, a Chamber must consider whether the
domestic investigations cover the same individuals and substantially the same conduct as the
investigations before the Court. Whereas the Court’s investigations concern international
crimes with certain contextual elements, a State need not investigate conduct as crimes against
humanity, for example, or to allege the same modes of liability found in the Statute to still
investigate the persons and conduct. Notwithstanding the challenges in making such a
comparison between an ICC investigation and domestic investigations - especially in the
absence, at this stage, of any identified individuals by the Prosecution - the Chamber rightly
observed that given the Court’s role and purpose, and the fact that the authorised investigation
concerns alleged crimes against humanity, high-ranking officials are expected to be the
investigation’s focus.203
99. Similarly, the domestic proceedings in Venezuela were found to not sufficiently mirror
the expected scope of the Court’s investigation, since they only addressed the physical, low-
ranking perpetrators and did not extend to any high-ranking officials.204 The Chamber
considered the failure to inquire into any pattern of criminality or the systematic nature of
crimes, and the decision to investigate cases concerning low-ranking suspects instead of
200
Ibid., paras. 107 and 119.
201
Ibid., para. 119.
202
Ibid., para. 119.
203
Ibid., para. 118. See also the “Public Redacted Version of ‘Authorisation pursuant to article 18(2) of the Statute
to resume the investigation’”, supra note 40, para. 68.
204
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individuals who would appear to be most responsible. As found in the Philippines Situation,205
even if Venezuela contends that “the fact that current suspects have a ‘low rank’ does not
preclude the possibility that the domestic authorities will identify high-ranked suspects, after
the conclusion of proceedings against direct perpetrators”,206 it is evident that at present no
investigations or prosecutions covering patterns of criminality or the responsibility of
individuals beyond the physical perpetrators of the alleged crimes are taking place.
100. As in the Philippines Situation,207 the Chamber’s enquiry was whether the domestic
proceedings sufficiently mirror the Prosecutor’s intended investigation. Since the latter
concerns alleged crimes against humanity, the Chamber expected the domestic proceedings to
focus on high-ranking officials.208 Similarly, in article 18 proceedings in the Philippines
Situation, the Chamber found that the limited number of cases mentioned by the State and the
type of persons charged, meant that said cases could not represent the range and scope of crimes
of the Court’s investigation.209 The Chamber was thus not satisfied that the State had shown
that it had investigated or was investigating in such a manner that the domestic investigations
could be seen as sufficiently mirroring the authorised investigation.210 The Appeals Chamber
found no error in this approach.211
7. Ground of appeal 6: the Chamber correctly assessed the domestic

investigations
102. In Ground 6, the Appellant argues that the Chamber erred in law and manifestly abused
its discretion concerning how it assessed and drew conclusions from the delays occurring in
domestic cases.212
205
pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 21, para. 161; and the “Public
Redacted Version of ‘Authorisation pursuant to article 18(2) of the Statute to resume the investigation’”, supra
note 40, para. 93.
206
207
investigation’”, supra note 40, para. 68; and the “Judgment on the appeal of the Republic of the Philippines against
Pre-Trial Chamber I’s ‘Authorisation pursuant to article 18(2) of the Statute to resume the investigation’”, supra
note 21, para. 163.
208
See the Impugned Decision, supra note 3, para. 118, referring in footnote 216 to the “Public Redacted Version
of ‘Authorisation pursuant to article 18(2) of the Statute to resume the investigation’”, supra note 40, para. 68.
209
210
Ibid., para. 83.
211
212
No. ICC-02/18 34/37 13 September 2023

ICC-02/18-61 13-09-2023 35/37 PT OA
103. At first, Counsel recalls that Venezuela is obliged to substantiate its submissions, in the
same way as any party or participant to the proceedings must support the assertions it makes,
in order to enable the Chamber to assess the correctness of the propositions advanced.213 The
information provided must be relevant, probative, and sufficiently specific to enable the
Prosecution – and the Chamber, if applicable – to ascertain the stage of the domestic
proceedings, assess the investigative steps taken, and determine whether deferral is justified
considering the State’s proceedings as a whole. As a necessary determination in deciding
whether to seek an order under article 18(2) of the Statute, the Prosecutor’s review of the
national proceedings includes their compatibility with article 17 of the Statute in terms of
jurisdiction and complementarity.214 In the same vein, when seized of an application under
article 18(2) of the Statute, the Pre-Trial Chamber “shall consider the factors in article 17”.215
104. Said complementarity assessment must be made on the basis of the facts as they
presently exist.216 The complementarity principle is properly applied by ensuring that article 18
of the Statute is not used to create an impunity gap. So that effective investigations of the alleged
crimes in the situation are timely carried out primarily by a State with jurisdiction, but otherwise
by the Court. Accordingly, these assessments cannot be undertaken on the basis of hypothetical
national proceedings that may or may not take place in the future: it must be based on the
concrete facts as they exist at the time.217
105. The Chamber found that Venezuela’s delay in carrying out domestic investigations and
prosecutions made it impossible to identify any specific suspect in about three-quarters of the
cases.218 Thus, the Chamber correctly determined that it was not possible to conclude that
national proceedings were sufficiently mirroring the scope of the Prosecution’s intended
investigation on the basis of the few national cases in which “a suspect was identified, an
accused charged, and/or a judicial decision on an accused’s criminal responsibility taken”.219
213
para. 167 confirming the finding in the “Decision on the admissibility of the case against Abdullah Al-Senussi”
(Pre-Trial Chamber I) No. ICC-01/11-01/11-466-Red, 11 October 2013, para. 208.
214
See the “Decision regarding applications related to the Prosecution’s ‘Notification on status of the Islamic
Republic of Afghanistan’s article 18(2) deferral request’” (Pre-Trial Chamber II), No. ICC-02/17-156, 3
September 2021, para. 23 (“Article 18(2) […] confers upon the Prosecution the exclusive power to review the
Deferral Request with the modalities and the timing it regards as appropriate”). See also, rule 55(2) of the Rules.
215
See rule 55(2) of the Rules.
216
See the “Judgment on the Appeal of Germain Katanga against the Oral Decision of Trial Chamber II of 12 June
2009 on the Admissibility of the Case”, supra note 135, para. 56. See also, the “Decision on the admissibility of
the case under article 19(1) of the Statute”, supra note 196, paras. 49-52.
217
Idem.
218
219
Ibid., para. 91.
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ICC-02/18-61 13-09-2023 36/37 PT OA
106. In article 18 proceedings in the Philippines Situation, upon finding that a limited number
of cases had been substantiated, the Chamber was not satisfied that the State had shown that it
had investigated or was investigating in such a manner that the domestic investigations could
be seen as sufficiently mirroring the authorised investigation.220 The Appeals Chamber found
no error in this approach since the State “provided information only on a few relevant cases in
which charges were brought or the alleged crime was prosecuted”.221
107. In light of the above, Ground 6 should also be dismissed.
8. Specific views of victims on the appeal
108. Finally, Counsel wishes to inform the Appeals Chamber that, in the course of the
article 18(2) proceedings, the Office received a number of communications from victims, their
legal representatives and relevant organisations. Counsel summarises infra the information
received from Victims supporting the Chamber’s findings on the scarce domestic investigations
and prosecutions (Ground 6).
109. Victims reported a significant fragmentation and a substantial, unjustified delay in

undertaking some few proceedings at national level which makes it impossible to evaluate
whether the national activities sufficiently mirror the Prosecutor’s intended investigation. Some
Victims indicated that their cases have been summarily dismissed without being properly
investigated, thereby introducing a double jeopardy clause and preventing new investigations
and prosecutions against the same person for the same facts. Others indicated that their cases
were dismissed on the basis that the conduct of the perpetrators was not found to be criminal in
nature or that the facts themselves were not showing any element of criminality.
110. Victims also reported that since 2014, numerous individuals have been unlawfully killed
during demonstrations not only for civil and political rights, but also for social and economic
rights. In the vast majority of cases, the alleged perpetrators of these unlawful killings still have
not been prosecuted.
111. Counsel recorded 159 cases of torture, mainly in detention facilities, where victims, to
no avail, denounced the crimes they suffered to national judicial authorities. Victims indicated
that they had not been contacted by prosecutorial or judicial authorities to provide witness
220
221
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ICC-02/18-61 13-09-2023 37/37 PT OA
statements nor notified about any procedural steps or other measures taken or that they had been
threatened for seeking information.222 This is also confirmed by the Independent International
fact-finding mission on the Bolivarian Republic of Venezuela, which reported a large number
of allegations of torture - including acts of sexual violence - raised before judicial authorities,
but without any effective response.223
112. Finally, Victims stressed that they have been waiting for almost ten years for a proper
investigation into the tragic events they suffered. During all this time however, the national
authorities have taken no genuine action to identify and prosecute the alleged perpetrators.
Therefore, at present, the Court is the only judicial remedy available to Victims to seek justice.
IV. CONCLUSION
113. For the foregoing reasons, Counsel respectfully requests the Appeals Chamber to
dismiss the Appeal in its entirety and confirm the Impugned Decision.
Paolina Massidda
Principal Counsel
Dated this 13th day of September 2023

At The Hague, The Netherlands
222
See in this regard, the Human Rights Council, “Detailed findings of the independent international fact-finding
mission on the Bolivarian Republic of Venezuela”, 16 September 2021, A/HRC/48/CRP.5, para. 411.
223
See Human Rights Council, “Report of the independent international fact-finding mission on the Bolivarian
Republic of Venezuela”, A/HRC/48/69, 16 September 2021, para. 6 et seq..
No. ICC-02/18 37/37 13 September 2023

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ICC-02/18-61 13-09-2023 1/37 PT OA

Original: English No.: ICC-02/18

THE APPEALS CHAMBER

Before: Judge Marc Pierre Perrin de Brichambaut, Presiding Judge

SITUATION IN THE BOLIVARIAN REPUBLIC OF VENEZUELA I

Observations on behalf of victims on the Venezuela Government Appeal against the

Source: Office of Public Counsel for Victims

No. ICC-02/18 1/37 13 September 2023

The Office of the Prosecutor Counsel for the Defence

Legal Representatives of the Victims Legal Representatives of the Applicants

Unrepresented Victims Unrepresented Applicants

States’ Representatives Amicus Curiae

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other

No. ICC-02/18 2/37 13 September 2023

II. PROCEDURAL BACKGROUND ......................................................................... 4

III. SUBMISSIONS ........................................................................................................ 7

IV. CONCLUSION ...................................................................................................... 37

No. ICC-02/18 3/37 13 September 2023

1. In accordance with the Appeals Chamber’s instructions,1 and pursuant to regulation

II. PROCEDURAL BACKGROUND

No. ICC-02/18 4/37 13 September 2023

6. On 3 January 2022, Venezuela requested additional information from the Prosecutor

9. On 1 November 2022, the Prosecutor requested the Chamber to authorise the

10. On 27 June 2023, the Chamber issued the Impugned Decision.10

No. ICC-02/18 5/37 13 September 2023

15. On 14 August 2023, Venezuela filed its Appeal Brief.16

No. ICC-02/18 6/37 13 September 2023

1. On the applicable legal standards

No. ICC-02/18 7/37 13 September 2023

2. The issues raised on appeal affect the general interests of victims

No. ICC-02/18 8/37 13 September 2023

3. Grounds of appeal 1 and 2: the Chamber correctly conducted its

No. ICC-02/18 9/37 13 September 2023

a) Sub-ground of appeal 1.1: the Chamber correctly found that

No. ICC-02/18 10/37 13 September 2023

“the burden of providing information relevant to the pre-trial chamber’s

No. ICC-02/18 11/37 13 September 2023

This is in line with the well-established principle of onus probandi incumbit

No. ICC-02/18 12/37 13 September 2023

b) Sub-ground of appeal 1.2: the Chamber correctly understood the scope

No. ICC-02/18 13/37 13 September 2023

contention,60 “the sample of alleged incidents provided by the Prosecution to Venezuela as a

No. ICC-02/18 14/37 13 September 2023

c) Sub-ground of appeal 1.3: the Chamber correctly found that there is

No. ICC-02/18 15/37 13 September 2023

No. ICC-02/18 16/37 13 September 2023

No. ICC-02/18 17/37 13 September 2023

46. For all these reasons, Ground 1 should be dismissed.

No. ICC-02/18 18/37 13 September 2023

deferral request”.98 Contrary to the Appellant’s contention,99 regulation 39(1) of the

“[t]here is no general requirement that filings of parties and participants

No. ICC-02/18 19/37 13 September 2023

e) Sub-ground of appeal 2.2: the Chamber correctly excluded summaries

No. ICC-02/18 20/37 13 September 2023

No. ICC-02/18 21/37 13 September 2023

No. ICC-02/18 22/37 13 September 2023

67. For all these reasons, Ground 2 should be dismissed.