[News] Venezuela Seeks Investigation by International Criminal Court (ICC) as to Whether U.S. Sanctions Constitute Crimes Against Humanity

[Anti-Imperialist News]

covertactionmagazine.com
<https://covertactionmagazine.com/2022/04/11/venezuela-seeks-investigation-by-international-criminal-court-icc-as-to-whether-u-s-sanctions-constitute-crimes-against-humanity/>
Venezuela Seeks Investigation by International Criminal Court (ICC) as to
Whether U.S. Sanctions Constitute Crimes Against Humanity
Ryan Swan - April 11, 2022
------------------------------
[image: Report: US Sanctions Have Cost 40,000 Venezuelan Lives |
Venezuelanalysis.com][Source: venezuelaanalysis.com
<https://venezuelanalysis.com/news/14446>] *Adopted as part of
regime-change operation, sanctions have killed at least 40,000 Venezuelans.*

Economic coercive measures, commonly known as economic sanctions, are a
means of coercive pressure through disruption of trade relations and
economic isolation. The use of sanctions under international law is
governed chiefly by Chapter VII of the United Nations Charter, providing
that the Security Council may decide to enact a “complete or partial
interruption of economic relations” in order to restore international peace
and security.

Measures not authorized by the Security Council, or “unilateral coercive
measures” (UCM), have become an increasingly common coercive tactic of the
United States, which presently imposes sanctions on approximately one-third
of the global population.

Since 2010, the United States has also been enforcing select secondary
sanctions
<https://www.cnas.org/publications/reports/sanctions-by-the-numbers-u-s-secondary-sanctions>
against international actors that maintain economic relations with
sanctioned states. The adverse effects of these measures on civilian
populations of targeted countries—“especially severe for vulnerable
groups,” including “women and children”—have been repeatedly and
unequivocally documented <https://news.un.org/en/story/2021/12/1107492>.

Issues surrounding the legality of UCM have largely centered around the
question of compatibility with the United Nations Charter. One primary
concern has been the claimed illegitimacy of sanction measures not
authorized in multilateral fashion by the Security Council. Others
<https://popularresistance.org/alfred-de-zayas-human-rights-corner/> alude
to the problems raised by UCM in both the context of state sovereignty
(principle of non-interference in the internal affairs of other states) and
international humanitarian law (right to life, health and medical care set
forth in the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights).

The United Nations General Assembly has also voiced regular concerns about
UCM. A resolution <https://news.un.org/en/story/2021/06/1094612>
overwhelmingly passed 29 years in a row calling for the cessation of the
United States’s “economic blockade” on Cuba is illustrative.
[image: UN General Assembly votes on the necessity of ending the economic,
commercial and financial embargo imposed by the United States against Cuba.]UN
General Assembly votes on resolution (June 23, 2021) demanding an end to
the U.S. economic, commercial and financial embargo against Cuba. [Source:
news.un.org <https://news.un.org/en/story/2021/06/1094612>]

On February 13, 2020, the government of Venezuela submitted a referral to
the International Criminal Court (ICC) requesting an investigation into
another possible legal frailty of the United States UCM—namely, whether
such measures can constitute crimes against humanity pursuant to Article 7
of the Rome Statute
<https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf>. As
recourse to economic warfare ramps up further amidst an intensifying new
Cold War, pressure mounts surrounding the Court’s eventual decision.
*Case Background *

Venezuela has a population of more than 28 million. Since the 1930s, it has
been a significant oil-producing state and is considered
<https://www.nsenergybusiness.com/features/newstop-ten-countries-with-worlds-largest-oil-reserves-5793487/>
to preside over the world’s largest oil reserves.

Under President Hugo Chávez (1998-2013), a new national constitution
<https://www.constituteproject.org/constitution/Venezuela_2009.pdf> was
adopted which provided for the use of national oil revenues to improve
social conditions. The United States responded to this shift in policy with
an attempted, but ultimately foiled, coup d’état
<https://www.theguardian.com/world/2002/apr/21/usa.venezuela> in 2002.
Despite hostile relations with the United States and a series of
anti-terrorism and anti-drug trafficking-related sanctions, the Chávez
social programs achieved impressive results
<https://www.theguardian.com/news/datablog/2012/oct/04/venezuela-hugo-chavez-election-data>
in improving the standard of living for the Venezuelan population. Poverty
and unemployment rates dropped markedly and education standards and
literacy rates steadily increased.
[image: Hugo Chavez (centre) campaigning for constitutional change in 2007]Hugo
Chávez (center). [Source: bbc.com
<https://www.bbc.com/news/world-latin-america-15240081>]

Following the death of President Chávez and the election of Nicolás Maduro,
the United States intensified its economic coercion. In March 2015,
President Barack Obama issued Executive Order 13692
<https://www.govinfo.gov/content/pkg/CFR-2016-title3-vol1/pdf/CFR-2016-title3-vol1-eo13692.pdf>,
declaring Venezuela an “unusual and extraordinary threat to the national
security and foreign policy of the United States” and providing for the
blocking of Venezuelan assets.
[image: Cartoon @Operamundi – @BarackObama's Interference Service –
#Venezuela #Russia #Iran | Latuff Cartoons][Source:
latuffcartoons.wordpress.com
<https://latuffcartoons.wordpress.com/2014/04/03/cartoon-operamundi-barackobamas-interference-service-venezuela-russia-iran/>]


The Trump administration ramped up the financial pressure with Executive
Order 13808 <https://home.treasury.gov/system/files/126/venezuela_gl9e.pdf>
in August 2017, denying the Venezuelan government, including the
state-owned oil company, PDVSA, access to United States financial markets.
Executive Orders 13827
<https://www.govinfo.gov/content/pkg/DCPD-201800171/pdf/DCPD-201800171.pdf>
and 13835
<https://home.treasury.gov/system/files/126/venezuela_eo_13835.pdf>
followed in spring 2018, prohibiting transactions involving the Venezuelan
government’s issuance of digital currency and transactions related to the
purchase of Venezuelan debt, respectively.

President Trump issued Executive Order 13850
<https://home.treasury.gov/system/files/126/venezuela_eo_13850.pdf> in
November 2018 setting forth a framework to block the assets of, and
restrict certain transactions with, any person deemed by the Treasury
Department to be engaging in transactions with the Venezuelan government
that advance its “corrupt purposes.” In January 2019, the United States, in
a display of open contempt for democracy, ceased to recognize the
government of President Maduro, instead acknowledging
<https://2017-2021.state.gov/recognition-of-juan-guaido-as-venezuelas-interim-president/index.html>
Juan Guaidó as interim President.

Strangulation of the Venezuelan economy escalated further in August 2019
with Executive Order 13884
<https://www.federalregister.gov/documents/2019/08/07/2019-17052/blocking-property-of-the-government-of-venezuela>,
freezing property interests of the Venezuelan government in the United
States, prohibiting U.S. citizens from engaging in transactions with the
Venezuelan government and authorizing financial sanctions and visa
restrictions on non-U.S. citizens who assist or support the Venezuelan
government.
[image: Venezuela Slams New US Sanctions as Washington Hints at Oil Embargo
| Venezuelanalysis.com]Donald Trump issuing new UCM against Venezuela in
2018. [Source: venezuelaanalysis.com
<https://venezuelanalysis.com/files/images/%5Bsite-date-yyyy%5D/%5Bsite-date-mm%5D/trump2.jpeg>]
*Effect of United States UCM *

All of the above-enumerated measures were enacted unilaterally by the
United States government and have had a catastrophic impact on the
Venezuelan economy
<https://www.wola.org/wp-content/uploads/2020/10/Oliveros-report-summary-ENG.pdf>,
which has in turn precipitated a humanitarian crisis for the Venezuelan
population.

In February 2021, the United Nations Special Rapporteur on the Negative
Impact of Unilateral Coercive Measures, Elena Douhan, released preliminary
findings
<https://www.ohchr.org/en/press-releases/2021/02/preliminary-findings-visit-bolivarian-republic-venezuela-special-rapporteur?LangID=E&NewsID=26747>
on the impact of United States UCM on the enjoyment of basic human rights
in Venezuela. Ms. Douhan notes
<https://www.youtube.com/watch?v=lNzVRiN_ga8&t=3s> that, before the
imposition of UCM, Venezuela was committing 76% of its national oil
revenues to the advancement of social programs. As a result of the
monumental UCM-related drop in oil revenue (e.g., from $42 billion in 2013
to just $4 billion in 2018), the government is now unable to commit even
one percent to the social programs.

The loss of these resources has led to a “devastating impact on the whole
population of Venezuela” with basic human rights directly affected. These
include the:

   - Right to food—more than 50% of food consumption has been impacted by
   United States UCM, which led to one-third of the Venezuelan population
   becoming acutely food insecure;
   - Right to water—water-related services have been significantly
   disrupted by United States UCM such that the average Venezuelan household
   has access to running water for only a couple of hours sporadically
   throughout a given week;
   - Right to health—access to quality healthcare has been significantly
   disrupted by United States UCM, resulting in extreme shortages of medical
   staff and equipment; maternal and infant mortality rates have increased, as
   well as mortality rates from various diseases; and
   - Right to education—United States UCM have resulted in a massive
   decrease in government funding for education, frustrating the ability of
   schools to procure staff and basic necessities, including meals for
   students; the situation has been further exacerbated by regular electrical
   and internet outages.

The severely beleaguered financial condition of the Venezuelan government
has also inhibited its ability to provide basic health services amid the
Covid-19 pandemic. In addition to its unwillingness to unfreeze Venezuelan
assets to enable the purchase of Covid vaccines, the United States has also
declined
<https://www.aa.com.tr/en/americas/us-will-not-donate-covid-vaccines-to-venezuela/2263435>
to donate vaccinations to Venezuela, citing concerns over a lack of
Venezuelan “transparency.”
*Claim*

The Venezuelan referral <https://www.aba-icc.org/situations/venezuela-ii/>
claims that United States UCM constitute crimes against humanity under
Article 7 of the Rome Statute. Specifically, the claim asserts that the
United States UCM represent a widespread or systematic attack directed
against the civilian population of Venezuela; that this effect is known to
the United States; and that these UCM manifest themselves in punishable
acts enumerated in Article 7—in particular, murder (Art. 7(1)(a)),
extermination (Art. 7(1)(b)), deportation (Art. 7(1)(d)), persecution (Art.
7(1)(h)), and other inhumane acts (Art. 7(1)(k)).
[image: Open Asia][Source: openasia.org
<https://openasia.org/en/2017/04/rome-statute-of-the-international-criminal-court/>]


The referral is novel in multiple respects. First, UCM have not previously
been challenged on grounds that they violate international criminal law.
Claims abound that UCM are inconsistent with the United Nations Charter,
with principles of state sovereignty and with international humanitarian
law, but their possible criminality has not been investigated.

Second, the ICC has not previously investigated a case alleging crimes
against humanity emanating from policies enacted in one state, but executed
on the territory of another. The referral advances the argument that it is
accepted in ICC case law that “non-state actors” can commit crimes against
humanity even where they do not control the territory in which they are
operating. As such, there is no principled reason why “states” cannot
commit crimes against humanity in territory which they do not control—i.e.,
the United States can commit crimes against humanity on the territory of
Venezuela.

Third, the referral also raises a jurisdictional oddity. While Article 12
of the Rome Statute clearly provides jurisdiction over qualifying crimes
committed on the territory of a member state party, the question arises
where precisely the alleged crimes against humanity flowing from United
States UCM occur. The referral acknowledges that the actual decisions to
impose the UCM in question occurred outside the territory of Venezuela, but
argues that the clear intent of the decisions was to have effects within
its territory.Thus, the question of whether the ICC can exercise
territorial jurisdiction over actions by a non-Rome Statute member state
directed against the territory of a Rome Statute member state must be
addressed by the Court and further raises the stakes in connection with
potential implications of the referral.
*Assessment of Venezuela’s Challenge *

In addition to raising serious international legal concerns under, inter
alia, the United Nations Charter and international humanitarian law, UCM
cause significant and well-documented suffering among innocent civilian
populations and are ripe for investigation under international criminal law.

The Venezuelan referral advances sound arguments that United States UCM can
constitute crimes against humanity. It appears unequivocal that the United
States imposes these measures, which appear to satisfy the criteria set
forth in Article 7 of the Rome Statute, knowing full well their effects on
the Venezuelan population.
[image: An anti-sanctions protest in Caracas, February 2020. (Ciudad
Valencia)]Anti-sanctions protest in Caracas. [Source: venezuelaanalysis.com
<https://venezuelanalysis.com/analysis/15205>]

Despite calls
<https://www.reuters.com/world/us/us-lawmakers-join-calls-war-crimes-probe-russia-2022-03-02/>
for the investigation of others when politically expedient, the United
States has hidden itself behind its non-party status to the Rome Statute to
avoid investigation of its own actions and has a history of unprecedented
hostility toward the ICC.

In 2002, the United States enacted the American Service-Members Protection
Act <https://www.law.cornell.edu/uscode/text/22/chapter-81/subchapter-II>
“to protect United States military personnel and other elected and
appointed officials…against criminal prosecution by an international
criminal court to which the United States is not part.” The Act authorizes
the president to use “all means necessary and appropriate”—including
conceivably force—to bring about the release of United States personnel
detained by the ICC.

In June 2020, President Trump issued Executive Order 13928
<https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking-property-of-certain-persons-associated-with-the-international-criminal-court>,
taking the extraordinary step of declaring the Court’s pending
investigation into United States crimes in Afghanistan an “unusual and
extraordinary threat to the national security and foreign policy of the
United States” and authorizing the freezing of assets of ICC personnel and
placement of restrictions on their ability to travel to the United States.

The ICC has displayed a distinct wariness of confrontation with the United
States, giving rise to credible concerns surrounding its impartiality. Upon
taking office in 2021, the new Chief Prosecutor, Karim Khan, immediately
brought controversy and renewed doubts of credibility
<https://euideas.eui.eu/2021/10/11/pragmatism-and-power-at-the-icc-us-crimes-not-a-priority/>
on the Court with his arbitrary decision to “deprioritize” inquiry into war
crimes and crimes against humanity committed by United States military and
intelligence personnel in Afghanistan under the Bush administration and to,
instead, focus selectively on infractions of the Taliban.
[image: Mr Karim Asad Ahmad Khan QC taking his solemn oath as ICC
Prosecutor © ICC-CPI<br>]Karim Khan [Source: icc-cpi.int
<https://www.icc-cpi.int/Pages/item.aspx?name=pr1598>]

The Court may well be tempted to skirt Venezuela’s requested investigation
of the United States on technical jurisdictional grounds, but yet another
dismissal of a sound case against the United States, all the while
vigorously launching
<https://www.aljazeera.com/news/2022/3/2/icc-to-begin-investigation-into-possible-war-crimes-in-ukraine>
a new probe into Russian crimes in Ukraine, could further tarnish the ICC’s
already suspect reputation.

Though the referral has unsurprisingly received little coverage in the
United States, the stakes are indeed high. A decision to exercise
jurisdiction and to proceed with investigation would set an unwelcome
precedent for the United States—even if the chances of U.S. leaders
actually standing trial is all but non-existent.

An investigation, and ultimate finding, by the ICC would cast concrete
doubt on already dubious United States UCM and could possibly prompt a
United Nations General Assembly request for an advisory opinion from the
International Court of Justice on the broader legality of UCM. At a time
when its economic coercive tactics are coming to seriously jeopardize the
global economy—and, accordingly, raise critical eyebrows around the
world—the United States can ill afford an adverse ICC ruling. For the ICC,
on the other hand, the referral presents an opportunity to show its courage
and prove its impartial commitment to global justice.
------------------------------


Ryan Swan is a doctoral researcher at the Bonn International Centre for
Conflict Studies in Germany.

He holds a J.D. from the UCLA School of Law and a Master’s in international
relations and politics from Trinity Hall, Cambridge.

Ryan can be reached at swan2018 at lawnet.ucla.edu.
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