23 May US Sanctions in Venezuela: Economic Crimes Against Humanity?
[Federico J. Wynter is a J.D. Candidate and Charles Evan Hughes Scholar at Cornell Law School.]
Venezuela is a reliable source of news. From the late March DOJ’s indictment of President Nicolás Maduro, to the early May bizarre coup attempt against Maduro, in 2020 Venezuela has been a major point of interest for international law and politics. One significant event that took place in February, however, received considerably less attention: Venezuela referred to the International Criminal Court (ICC) the situation in its own territory. According to the referral, the United States is committing crimes against humanity in Venezuela through the imposition of economic sanctions. While the sanctions in question date back to 2015, the issue is particularly relevant now, as the COVID-19 pandemic has prompted UN experts to call for the lifting of sanctions in Venezuela and elsewhere. Contrary to the brief accompanying the referral, however, economic sanctions are not crimes against humanity under the Rome Statute.
A summary of US sanctions is published by Congress here. Since 2015, sanctions comprise individual sanctions (asset freezes and visa restrictions) on those responsible for human rights abuses and corruption. Canada, Mexico, Panama, Switzerland, and the EU have also slapped dozens of Venezuelan officials with sanctions, mostly related to the 2018 elections won by Maduro and widely viewed as illegitimate. In 2017, the US added sectoral sanctions on the government and companies accused of financing the regime’s abuses and corruption. In 2018, a wave of sectoral sanctions blocked all the property and interests in the US of the Venezuelan government, the state-owned oil company, the state-owned gold mining company, the counterintelligence agency, and the Central Bank. In August 2019, the US imposed a complete embargo with exceptions for humanitarian aid.
Venezuela claims that these sanctions amount to acts of (1) murder, (2) extermination, (3) deportation, (4) persecution, and (5) other inhumane acts. Under Article 7 of the Rome Statute, each of these acts can be crimes against humanity if committed as part of a widespread or systematic attack directed against a civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.
In Katanga, the Trial Chamber reasoned that establishing a policy required demonstrating that the State or organization intended to commit an attack against the civilian population. In other words, the sanctions would have to be directed at committing acts of murder, extermination, etc. But in paragraph 85 of the brief, Venezuela concedes that the “actual purpose” of the sanctions is not to commit any of these acts, but to produce regime change. In Ruto, the Pre-Trial Chamber found that the policy of expelling the opposition to create a uniform voting bloc did not satisfy Article 7 because it was “merely political in nature.” Regime change is a political goal too — it may infringe upon the principles of non-intervention and self-determination, but it doesn’t give rise to individual criminal responsibility.
Ultimately, because Article 7(2)(a) defines “attack” as “a course of conduct involving the multiple commission of acts,” whether sanctions constitute an attack turns on whether they amount to any of the acts. Because of the difficulty in establishing causation and mens rea, they do not.
The ICTY in Delalic, subsequently cited by the ICC in Bemba, explained that “the conduct of the accused must be a substantial cause of the death of the victim.” While sanctions aggravate an economic crisis, the extent to which they do so is always controversial.
In the Venezuelan case, a 2018 report by the Human Rights Council’s Independent Expert, as well as another report by the Center for Economic and Policy Research (CEPR), causally link the US sanctions to the mounting death toll. The CEPR in particular attributes 40,000 deaths to the sanctions. The Brookings Institution disputes the CEPR’s conclusions and methodology, and a report by the Office of the High Commissioner of Human Rights also falls short of establishing causation, reasoning that most of the economic deterioration was well underway when the sectoral sanctions were implemented in 2017. The stark contradictions almost mean that any litigation on this issue would unravel into a battle of the experts and require a Chamber to pass judgment upon complex economic models and other matters entirely unfamiliar to the ICC.
In its brief, Venezuela claims that the mortality rate, especially among children, has increased significantly as a consequence of the lack of medicine and medical equipment, and attributes this, in part, to the sanctions. But Venezuela’s own evidence almost contradicts its claim. In paragraph 34 of the brief, Venezuela describes that child mortality rose from 14.66 deaths per 1,000 live births in 2013 to 20.04 deaths per 1,000 live births in 2016. However, during that period the sanctions only targeted individuals in the Maduro government. It is bizarre to attribute the increase in child mortality to asset freezes and visa bans on a handful of government officials. Still, there’s more: the same graph shows that coinciding with when the sectoral sanctions were put in place in 2017, the child mortality rate actually decreased. To be sure, this does not mean that sectoral sanctions and decrease in child mortality are in any way related, but that is precisely the point. In other words: Venezuela cannot even point at correlation, let alone substantial causation.
Further, in terms of mens rea, because Venezuela argues that murder is a consequence of the sanctions, the mental element is provided by Article 30(2)(b): a person acts intentionally when that person (1) means to cause that consequence or (2) is aware that it will occur in the ordinary course of events. In Katanga, the Trial Chamber clarified that (2) entails “virtual certainty.” Elsewhere, Kevin Heller observed that this is a very high standard. Venezuela’s claim of murder attributes the deaths at least in part to the “deliberate attempts to disrupt and destroy” their economy — but intent to disrupt the economy is not intent to kill. It also seems unlikely that the Prosecutor would be able to satisfy the exigent virtual certainty standard. Admittedly, those responsible for the sanctions could have thought it was possible that deaths in Venezuela would continue to occur, but they could not have envisaged that deaths would certainly occur because of the sanctions — since that is extremely hard to determine ex post, it would be even harder to know it ex ante. Moreover, while it could be argued that dolus eventualis is a good conceptual fit for sanctions with unintended consequences, the predominant position is that Article 30 excludes dolus eventualis altogether.
The actus reus of extermination is the killing of one or more persons, including by inflicting conditions of life calculated to bring about their destruction. Here, Venezuela argues that the sanctions create conditions of deprivation of food and medicine that lead to extermination. But in the presence of intervening factors that blur the causal chain, notably the regime’s own contributions to the crisis, it is unlikely that sanctions can satisfy the substantial cause standard here either.
Further, in cases of extermination through infliction of conditions of life, the modifier “calculated” signals a heightened mens rea, akin to intent. And again, Venezuela’s concession that sanctions were calculated to achieve other goals — economic disruption, regime change — as opposed to the destruction of part of the population, cuts against finding the mens rea that the crime of extermination requires.
Article 7(2)(d) defines deportation as “forced displacement” by “expulsion or other coercive acts.” In Ruto, the Pre-Trial Chamber elaborated that the coercion must have “produced the effect” of deporting the victim, such that the victim lacked a genuine choice. Venezuela points at the stream of refugees and migrants pouring out of the country — 4.5 million by the UN’s count — and argues that sanctions contributed to these population flows. To be sure, sanctions have an impact on the economy, but they do not coerce individuals to leave their homes. Individual sanctions such as visa bans, for example, do quite the opposite: they restrict movement. Further, demonstrating that sanctions coerce individuals to leave would face both an insurmountable causation burden — proving that sanctions were the substantial cause of the deprivation, which was in turn the substantial cause of migration — and a mens rea burden — proving that it was virtually certain for those imposing the sanctions that people would migrate as a result. On the other hand, the only evidence that some Venezuelans were coerced to leave their homes relates to those seeking political asylum due to persecution from the Maduro regime.
Persecution implies the intentional and severe deprivation of fundamental rights by reason of the identity of a group or collectivity. Here, Venezuela fails to demonstrate the requisite discriminatory intent. Venezuela alleges persecution on political grounds, because “the purpose of the attack” is to “promote regime change,” and on national grounds, because only Venezuelans are targeted. True, most of the subjects of sanctions share a political and national identity; but they are not targeted by reason of that identity. Rather, they are targeted because of their conduct, which is not an impermissible ground.
Further, persecution must be committed in connection to other acts in Article 7 or other crimes in the Statute. Significantly, Venezuela seems to ignore this requirement, and only alleges stand-alone violations of fundamental rights such as the right to life, to work, to food, and to health care. Admittedly, these are all fundamental rights, and under the proper facts a civilian population’s deprivation of them may constitute crimes against humanity. But sanctions are not the proper facts — insofar as economic sanctions cannot amount to any of the other acts or crimes, the claim of persecution also fails as a matter of law.
Other inhumane acts
Article 7(1)(k) extends crimes against humanity to inhumane acts “of a similar character.” In the context of the Rome Statute, character refers to the nature and gravity of the act. In Bemba, the Appeals Chamber reasoned: “Given that the other crimes contained in article 7(1) are all crimes against the physical integrity or liberty of persons, property crimes are excluded from the purview of crimes against humanity.” In light of this, economic sanctions seem to fall outside the purview of Article 7(1)(k) as well, since they mainly target property.
Venezuela claims that sanctions on a Venezuelan airline hinder repatriation programs, increasing the anguish of refugees abroad and thus constituting inhumane treatment. However, Venezuelans are allowed to return to their homeland, either on non-sanctioned airlines or by land. In fact, official Venezuelan data shows that by February 2020, 69% of repatriations happened by land. At most, the sanctions on the airline only make repatriation harder. But in fact, it may just be too early to tell: since the airline was sanctioned on February 7, the Maduro government has been able to repatriate hundreds of Venezuelans because of the COVID-19 pandemic. Thus, it appears that any injury that Venezuela claimed at the time of its referral was merely speculative.
While Article 7 covers a wide range of conduct, it did not live up to the expectations of all negotiating parties. At the Rome Conference, Cuba had proposed to include economic, financial and commercial blockades, to no avail. From a travaux préparatoires standpoint, the failure to adopt Cuba’s proposal is strong evidence that the drafters of the Statute did not intend to include economic blockades — and by extension sanctions as a lesser form of blockades — as acts that could give rise to liability.
The expansive view of Article 7 advanced in Venezuela’s referral demands relaxing the causation and mental element requirements, and judicially expanding the elements of crimes against humanity to accommodate sanctions. But the ICC’s legitimacy will suffer if the due process rights of defendants not to be punished for consequences they did not cause and did not intend yields to the urge of finding guilty parties for the world’s worst crises.
In perspective, Venezuela’s referral fits in a pattern of trying to extend crimes against humanity into new territory (see, for example, scholarly proposals for the criminalization of economic oppression or grand corruption). To be clear, there is no doubt that economic sanctions are harmful. But the Rome Statute’s text, its legislative history, the Court’s caselaw, and general principles of law strongly suggest that they are not crimes against humanity. Venezuela’s referral, riddled with misunderstandings of precedent, conclusory allegations, and contradictions, fails to persuade of the opposite.