On 12 October 2023, the Appeals Chamber of the International Criminal Court (ICC), scheduled a hearing on the appeal of the Bolivarian Republic of Venezuela against the Pre Trial-Chamber I’s ‘Decision authorising the resumption of the investigation pursuant to Article 18(2) of the Statute’ of 12 October 2023 (ICC-02/18-65), for 7 and 8 November 2023. 

On 17 October 2023 the Appeals Chamber published the “Directions on the conduct of the hearing” (ICC-02/18-68) (“Directions”), which invites the Representatives of the Bolivarian Republic of Venezuela (“State Representatives”), the Office of the Prosecutor of the ICC (“OTP”) and the Office of Public Counsel for Victims (“OPCV”) to address the suggested matters to be discussed during the hearing. 

The following issues are suggested to be discussed on Tuesday 7 November: 

1. Submissions on the alleged error in failing to identify cases which are investigated and specific criminal acts which the Prosecutor intends to investigate: 

a. Whether the Prosecutor’s article 18(1) notification must identify specific criminal acts which he or she intends to investigate. 

b. Whether such notification must identify criminal acts and specific defendants in relation to which the domestic investigations of the State concerned are expected to “have reached the point of identifying particular suspects or defendants”. 

c. Whether the provision that a State’s request for additional information from the Prosecutor “shall not affect the one-month time limit” for making a request for deferral (rule 52(2) of the Rules of Procedure and Evidence), implies that such additional information does not constitute part of the Prosecutor’s article 18(1) notification. 

2. Submissions on the alleged error in failing to require the Prosecutor to provide translations of documents and in declining to rely on documents in Spanish. 

a. Whether rule 54(1) of the Rules and regulation 39(1) of the Regulations of the Court impose a duty on the Prosecutor to provide the Pre-Trial Chamber with translations, into one of the Court’s working languages, of documents received from the State in support of a request for deferral pursuant to article 18 of the Statute. 

3. Submissions on the alleged error in declining to rely on certain documents. 

a. Whether it was reasonable for the Pre-Trial Chamber to decide not to rely on material which did not contain “original police or court records” as relevant documentation for its article 18 determination. 

The following issues are suggested to be discussed on Wednesday 8 November: 

4. Submissions on the alleged error in requiring the State to investigate contextual elements of crimes against humanity. 

a. Whether the requirement that the domestic proceedings cover “the same types of conduct” as the Prosecutor’s investigation extends to contextual elements of crimes against humanity, including in particular: the organisation policy and the widespread or systematic nature of the attack. 

5. Submissions on the alleged error in requiring the State to investigate “international crimes” 

a. Whether the domestic investigations and prosecutions of criminal acts pertaining to sexual and gender-based crimes must cover the same legal qualifications or elements of the relevant crimes in the Court’s Statute. 

b. Whether the domestic investigations also need to cover the element of “discriminatory intent” in connection with the underlying acts of the crime of persecution, despite the absence of a domestic legislation that penalises persecutions. 

The Appeals Chamber's decision does not expressly address whether or not victims or their representatives may independently participate in this hearing, beyond the submissions by OPCV in relation to the general interests of victims. However, the ICC Statute does not prevent victims' representatives or victims who wish to address the Appeals Chamber directly from doing so. Victims and their representatives who so wish, may submit to the Appeals Chamber a communication indicating their motivation for requesting to present oral arguments during the hearing, and specifically which of the topics outlined in the Directions they would like to address. However, it is important to clarify that the Appeals Chamber is not under any statutory obligation to consider any request thus submitted. 

Written submissions to request participation in the Appeals Chamber hearing can be sent directly to the Court Management Section (CMS) by email to: [email protected] , ideally copying the VPRS: [email protected].