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<a class="gmail-domain gmail-reader-domain" href="https://covertactionmagazine.com/2022/04/11/venezuela-seeks-investigation-by-international-criminal-court-icc-as-to-whether-u-s-sanctions-constitute-crimes-against-humanity/">covertactionmagazine.com</a>
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<h1 class="gmail-reader-title">Venezuela Seeks Investigation by
International Criminal Court (ICC) as to Whether U.S. Sanctions
Constitute Crimes Against Humanity</h1>
<div class="gmail-credits gmail-reader-credits">Ryan Swan - April 11, 2022<br></div>
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<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/report-us-sanctions-have-cost-40000-venezuelan-l.jpeg?resize=696%2C364&ssl=1" alt="Report: US Sanctions Have Cost 40,000 Venezuelan Lives | Venezuelanalysis.com" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="236">[Source: <a href="https://venezuelanalysis.com/news/14446">venezuelaanalysis.com</a>]
<h2><strong>Adopted as part of regime-change operation, sanctions have killed at least 40,000 Venezuelans.</strong></h2>
<p>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.</p>
<p>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.</p>
<p>Since 2010, the United States has also been enforcing select <a href="https://www.cnas.org/publications/reports/sanctions-by-the-numbers-u-s-secondary-sanctions">secondary sanctions</a>
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 <a href="https://news.un.org/en/story/2021/12/1107492">documented</a>.</p>
<p>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. <a href="https://popularresistance.org/alfred-de-zayas-human-rights-corner/">Others</a>
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).</p>
<p>The United Nations General Assembly has also voiced regular concerns about UCM. A <a href="https://news.un.org/en/story/2021/06/1094612">resolution</a>
overwhelmingly passed 29 years in a row calling for the cessation of
the United States’s “economic blockade” on Cuba is illustrative.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/un-general-assembly-votes-on-the-necessity-of-endi.jpeg?resize=696%2C315&ssl=1" alt="UN General Assembly votes on the necessity of ending the economic, commercial and financial embargo imposed by the United States against Cuba." class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="204">UN
General Assembly votes on resolution (June 23, 2021) demanding an end
to the U.S. economic, commercial and financial embargo against Cuba.
[Source: <a href="https://news.un.org/en/story/2021/06/1094612">news.un.org</a>]
<p>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 <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">Rome Statute</a>.
As recourse to economic warfare ramps up further amidst an intensifying
new Cold War, pressure mounts surrounding the Court’s eventual
decision.</p>
<h2><strong>Case Background </strong></h2>
<p>Venezuela has a population of more than 28 million. Since the 1930s, it has been a significant oil-producing state and is <a href="https://www.nsenergybusiness.com/features/newstop-ten-countries-with-worlds-largest-oil-reserves-5793487/">considered</a> to preside over the world’s largest oil reserves.</p>
<p>Under President Hugo Chávez (1998-2013), a <a href="https://www.constituteproject.org/constitution/Venezuela_2009.pdf">new national constitution</a>
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, <a href="https://www.theguardian.com/world/2002/apr/21/usa.venezuela">coup d’état</a>
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 <a href="https://www.theguardian.com/news/datablog/2012/oct/04/venezuela-hugo-chavez-election-data">results</a>
in improving the standard of living for the Venezuelan population.
Poverty and unemployment rates dropped markedly and education standards
and literacy rates steadily increased.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/hugo-chavez-centre-campaigning-for-constitutiona.jpeg?resize=464%2C261&ssl=1" alt="Hugo Chavez (centre) campaigning for constitutional change in 2007" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="254">Hugo Chávez (center). [Source: <a href="https://www.bbc.com/news/world-latin-america-15240081">bbc.com</a>]
<p>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 <a href="https://www.govinfo.gov/content/pkg/CFR-2016-title3-vol1/pdf/CFR-2016-title3-vol1-eo13692.pdf">Executive Order 13692</a>,
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.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/cartoon-operamundi-barackobamas-interference.gif?resize=696%2C454&ssl=1" alt="Cartoon @Operamundi – @BarackObama's Interference Service – #Venezuela #Russia #Iran | Latuff Cartoons" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="294">[Source: <a href="https://latuffcartoons.wordpress.com/2014/04/03/cartoon-operamundi-barackobamas-interference-service-venezuela-russia-iran/">latuffcartoons.wordpress.com</a>]
<p>The Trump administration ramped up the financial pressure with <a href="https://home.treasury.gov/system/files/126/venezuela_gl9e.pdf">Executive Order 13808</a>
in August 2017, denying the Venezuelan government, including the
state-owned oil company, PDVSA, access to United States financial
markets. Executive Orders <a href="https://www.govinfo.gov/content/pkg/DCPD-201800171/pdf/DCPD-201800171.pdf">13827</a> and <a href="https://home.treasury.gov/system/files/126/venezuela_eo_13835.pdf">13835</a>
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.</p>
<p>President Trump issued <a href="https://home.treasury.gov/system/files/126/venezuela_eo_13850.pdf">Executive Order 13850</a>
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 <a href="https://2017-2021.state.gov/recognition-of-juan-guaido-as-venezuelas-interim-president/index.html">acknowledging</a> Juan Guaidó as interim President.</p>
<p>Strangulation of the Venezuelan economy escalated further in August 2019 with <a href="https://www.federalregister.gov/documents/2019/08/07/2019-17052/blocking-property-of-the-government-of-venezuela">Executive Order 13884</a>,
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.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/venezuela-slams-new-us-sanctions-as-washington-hin.jpeg?resize=696%2C561&ssl=1" alt="Venezuela Slams New US Sanctions as Washington Hints at Oil Embargo | Venezuelanalysis.com" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="364">Donald Trump issuing new UCM against Venezuela in 2018. [Source: <a href="https://venezuelanalysis.com/files/images/%5Bsite-date-yyyy%5D/%5Bsite-date-mm%5D/trump2.jpeg">venezuelaanalysis.com</a>]
<h2><strong>Effect of United States UCM </strong></h2>
<p>All of the above-enumerated measures were enacted unilaterally by the
United States government and have had a catastrophic impact on the
Venezuelan <a href="https://www.wola.org/wp-content/uploads/2020/10/Oliveros-report-summary-ENG.pdf">economy</a>, which has in turn precipitated a humanitarian crisis for the Venezuelan population.</p>
<p>In February 2021, the United Nations Special Rapporteur on the
Negative Impact of Unilateral Coercive Measures, Elena Douhan, released <a href="https://www.ohchr.org/en/press-releases/2021/02/preliminary-findings-visit-bolivarian-republic-venezuela-special-rapporteur?LangID=E&NewsID=26747">preliminary findings</a> on the impact of United States UCM on the enjoyment of basic human rights in Venezuela. Ms. Douhan <a href="https://www.youtube.com/watch?v=lNzVRiN_ga8&t=3s">notes</a>
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.</p>
<p>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:</p>
<ul><li>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;</li><li>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;</li><li>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</li><li>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.</li></ul>
<p>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 <a href="https://www.aa.com.tr/en/americas/us-will-not-donate-covid-vaccines-to-venezuela/2263435">declined</a> to donate vaccinations to Venezuela, citing concerns over a lack of Venezuelan “transparency.”</p>
<h2><strong>Claim</strong></h2>
<p>The Venezuelan <a href="https://www.aba-icc.org/situations/venezuela-ii/">referral</a>
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)).</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/open-asia.jpeg?resize=696%2C515&ssl=1" alt="Open Asia" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="334">[Source: <a href="https://openasia.org/en/2017/04/rome-statute-of-the-international-criminal-court/">openasia.org</a>]
<p>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.</p>
<p>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.</p>
<p>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.</p>
<h2><strong>Assessment of Venezuela’s Challenge </strong></h2>
<p>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.</p>
<p>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.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/an-anti-sanctions-protest-in-caracas-february-202.png?resize=696%2C453&ssl=1" alt="An anti-sanctions protest in Caracas, February 2020. (Ciudad Valencia)" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="294">Anti-sanctions protest in Caracas. [Source: <a href="https://venezuelanalysis.com/analysis/15205">venezuelaanalysis.com</a>]
<p>Despite <a href="https://www.reuters.com/world/us/us-lawmakers-join-calls-war-crimes-probe-russia-2022-03-02/">calls</a>
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.</p>
<p>In 2002, the United States enacted the <a href="https://www.law.cornell.edu/uscode/text/22/chapter-81/subchapter-II">American Service-Members Protection Act</a>
“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.</p>
<p>In June 2020, President Trump issued <a href="https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking-property-of-certain-persons-associated-with-the-international-criminal-court">Executive Order 13928</a>,
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.</p>
<p>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 <a href="https://euideas.eui.eu/2021/10/11/pragmatism-and-power-at-the-icc-us-crimes-not-a-priority/">controversy and renewed doubts of credibility</a>
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.</p>
<img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2022/04/mr-karim-asad-ahmad-khan-qc-taking-his-solemn-oath.jpeg?resize=696%2C374&ssl=1" alt="Mr Karim Asad Ahmad Khan QC taking his solemn oath as ICC Prosecutor © ICC-CPI<br>" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="242">Karim Khan [Source: <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1598">icc-cpi.int</a>]
<p>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 <a href="https://www.aljazeera.com/news/2022/3/2/icc-to-begin-investigation-into-possible-war-crimes-in-ukraine">launching</a> a new probe into Russian crimes in Ukraine, could further tarnish the ICC’s already suspect reputation.</p>
<p>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.</p>
<p>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.</p>
<div><img src="https://i0.wp.com/covertactionmagazine.com/wp-content/uploads/2021/05/CAM-logo-circular-20210506b-300.png?resize=21%2C20&ssl=1" alt="" class="gmail-moz-reader-block-img" width="21" height="20"></div><hr>
<div><p><br></p><div><p>Ryan Swan is a doctoral researcher at the Bonn International Centre for Conflict Studies in Germany.</p>
<p>He holds a J.D. from the UCLA School of Law and a Master’s in international relations and politics from Trinity Hall, Cambridge.</p>
<p>Ryan can be reached at <a href="mailto:swan2018@lawnet.ucla.edu" target="_blank" rel="noopener noreferrer"><span>swan2018@lawnet.ucla.edu</span></a>.</p>
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