Did Brazil Illegally Intervene in the 2017 Venezuelan Elections?

Did Brazil Illegally Intervene in the 2017 Venezuelan Elections?

Paula Baldini Miranda da Cruz is a Lawyer, LLM Adv. Studies in Public International Law at Leiden University (Netherlands). Ph.D. candidate at Leiden University (Netherlands) and Rafael Braga da Silva is a Lawyer, LLM University for Peace and United Nations Interregional Crime and Justice Research Institute (UNICRI) (Italy) and LL.M. Adv. Studies in Public International Law at Leiden University Netherlands).

In the past month, Brazil has been swept over by leaks on the behind-the-scenes conversations between prosecutors and the former judge of Operation Car Wash. In the past years, Brazilian law enforcement authorities were idolized due to the Car Wash Operation, the biggest anti-corruption operation in history, which led to the imprisonment of former Brazilian president Lula and has implicated high-ranked politicians and presidents from almost one-third of Latin American countries.

The leaked conversations included tips from the judge on how to improve the prosecution’s case, discussions on how to use criminal procedures to prevent Lula’s party from winning the 2018 presidential election, and plots to interfere in the 2017 Venezuelan Election through leaking confidential information to the opposition of Maduro’s government. This post will examine this last event, and how actions of Brazilian authorities, particularly the attempt to sway Venezuelan public opinion towards Maduro’s opposition in the 2017 Venezuelan election, fit under the lens of international law and the principle of non-intervention.  

Some of the most recent leaks published by The Intercept have shown that, in addition to manipulating Brazilian politics, law enforcement authorities have attempted to use Car Wash Operation’s criminal proceedings to favor Maduro’s opposition during the 2017 Venezuelan election. Their strategy involved bringing confidential depositions of confidential depositions by Odebrecht employees confessing to having bribed Venezuelan public officials.

Brazil and Venezuela had an information-sharing agreement for a Car Wash-related deposition, which did not include information regarding depositions by Odebrecht’s employees due to a confidentiality clause included in the deposition agreements. Those video depositions were under the custody of the Brazilian Attorney General Office and had never been handed over to anyone else involved in the proceedings.

As revealed in the leaked conversation, the Car Wash Operation prosecution team decided to make those videos public to the Venezuelan population as a way of contributing ‘to the struggle of a people against injustice’. The prosecution team examined several different options for sharing such information. However, neither of them involved official channels of collaboration. Instead, they were geared towards leaking confidential information to members of the Venezuelan opposition who were considered ‘more trustworthy’ than the current Maduro administration.

A few days later, a doctored version of the video of the depositions was published by former chief prosecutor Luisa Ortega in her blog, in the cusp of a gubernatorial election, seeking to damage politicians linked to Maduro’s government. Parts where the former Odebrecht director in Venezuela confessed paying bribes to Maduro’s opposition were, however, purposely left out.

The messages revealed by The Intercept are not clear about whether the prosecutors sent the documents through official channels for international cooperation or if prosecutors sent those documents informally to the Venezuelan opposition. While official channels from the Brazilian law enforcement authorities claim that they did not contribute to the leakage of the confidential depositions, it is interesting to note that one of the hypotheses discussed by the prosecution team was to ‘make a spontaneous communication to the country itself. Along the way, [the evidence] will surely leak somewhere, without our involvement.

Conversations also show that the Brazilian prosecutors’ goal was not to cooperate with Venezuelan authorities but to make such information available so that the Maduro’s political opposers could use these documents against his allies. As stated by one prosecutor, ‘I do not see it as a question of effectiveness, but symbolic (…) I see no issue of sovereignty. And there is a justification for doing this in Venezuela and not other places because the prosecutor general was dismissed and it is a dictatorship. The purpose (…) would be to contribute to the struggle of a people against injustice”.

Brazilian authorities seemed confident that supporting Venezuelan opposition by leaking confidential material does not amount to an interference with a states’ sovereignty. However, we believe the issue deserves a closer look.

The principle of non-intervention is one of the cornerstones of international law in the Americas. It was first posited in the 1928 Convention on the Rights and Duties of States in the Event of Civil Strife and later reaffirmed by the Charter of the Organization of American States. On 21 April 1972, responding to regional movements towards democratization, the OAS General Assembly adopted Resolution 78, which stated that ‘a flagrant violation of the principle of nonintervention ad self-determination is constituted by acts of direct or indirect intervention by a state or group of states, in the internal or external affairs of any other state for any reason whatever’.

The ICJ has defined the principle of non-intervention as customary law principle that forbids states to intervene directly or indirectly in internal or external affairs of other states (Nicaragua, para. 209). In DRC v. Uganda, the ICJ stressed that illegal intervention might occur ‘directly or indirectly, with or without armed force, in support of an internal opposition in another State’ (paras. 164-165).

So, did the Brazilian law-enforcement authorities wrongfully intervene in Venezuela? In Nicaragua, the ICJ sets that an intervention will be considered unlawful when it implies that a state is coercing another (para. 205). Coercion, here, implies a political or any other measure to obtain from the coerced state the subordination of the exercise of sovereign rights (1970 Friendly Relations Declaration). While the Nicaragua case refers to a specific situation, its reasoning concludes that, even if a political regime is ‘bad’, other states cannot legitimately intervene to overthrow them. Political interference, especially on the eve of an election, is an intrusive act (Jamnejad and Wood, 2009).

In principle, cooperating with other states’ authorities by sharing information related to domestic criminal procedures should not amount to a wrongful intervention. However, the particularities of this case may lead to a different conclusion.

While Brazil had officially condemned many actions of the Maduro government, it was only in 2019, almost two years after the events discussed here, that Brazil recognized the Maduro opposition as the legitimate government of Venezuela. Although Brazilian authorities deny having sent the confidential files to the Venezuelan opposition, the files nevertheless reached the opposition, who used them to sway the election in their favor.

If confirmed that Brazilian authorities leaked information to harm the Maduro government during elections, this could amount to coercion leading to an illegal intervention on Venezuelan sovereign affairs.

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Courts & Tribunals, Featured, Foreign Relations Law, General, Latin & South America, Public International Law
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