#SOSVenezuela: Crimes Against Humanity in Venezuela
Susana Mijares Pena*
“Even in tragedy, Latin America can’t compete. . . the region’s poverty is not as grim as Africa’s, armed conflicts not as threatening as Asia’s, and terrorists not as suicidal as the Middle East’s. The problems in Latin America are often overshadowed by those in the rest of the world. . .” [1]
I. INTRODUCTION
Hugo Chavez, and his socialism and revolutionary ideas, won the 1999 presidential elections in Venezuela with an overwhelming majority.[2] For some, this victory was the result of previous elected governments forgetting about the needs of the most popular sectors, and only a small part of society having real opportunities to progress and have a decent life. Chavez’s movement, so- called “Chavismo”, was said to give priority to the poorest sectors, giving them the opportunity to have better access to health, education and food sources.[3] This gave hope to thousands of Venezuelans, who, without suspecting how devastated their country would be fifteen years later, gave the charismatic leader, and his state policies, their unconditional support, including Chávez’s plan to form a political and economic alliance between Cuba and Venezuela.[4] To this aim, Chavez took control of the country’s legislative, executive, judicial and electoral branches.[5] Chavez died in March 2013 after fourteen years in power;[6] yet, Chavismo did not die with him. Chavez had publicly announced that it was Nicolas Maduro, Venezuela’s current president, who should continue as the head of the populist social movement in his absence.[7]
Since Chavez’s administration, there have been reports of serious accusations of offenses against the vital basic interests of the dissenting population; however, this paper is limited to the alleged crimes against humanity (“CAH”) recently committed during the ongoing anti-government protests in the South American country. Even though the category of CAH under customary international law is said to be sufficiently well-defined today,[8] the argued crimes could also be governed by national criminal laws as human rights violations. Therefore, this paper aims to discuss the set of common features that distinguish these offenses as CAH, having as the ultimate objective the protection of individuals from the abuses and misdeeds of their own governmental authorities. The argued murder, torture, and indiscriminate and mass arrests, as part of a state policy founded on political grounds and directed against a group of civilians, meet the ICC’s threshold on substance and gravity as to be considered international crimes, concerning the entire international community. Ironically though, an initial discouraging aspect of Venezuela’s current agony was its isolation;[9] this forced Venezuelan protestors to document all possible evidence, with the goal of being presented before international organizations, and the hope of future accountability for the perpetrators.
The first part of this paper provides a brief background on Venezuela and the reasons behind the ongoing demonstrations. Then, Venezuela’s current legal framework in the area of human rights is presented, including national obligations, as well as international treaties and conventions ratified by the country. Part III of the paper discusses the elements of CAH in order to prove that the crimes being committed by the Venezuelan National Securities Forces and the armed groups Colectivos[10] are within the category of CAH. The last part of the paper analyzes the viability of the International Criminal Court (“ICC”) having jurisdiction to prosecute the denounced offenses, once it is established that Venezuela’s judiciary is unable or unwilling to prosecute these crimes.
II. BRIEF POLITICAL BACKGROUND:
To date, Venezuela is the first oil producer in Latin America and the country with the largest oil reserves in the world.[11] However, the results of fifteen years of Chavismo are all too visible. Undeniably, this South America nation is the world’s homicide capital,[12] as homicides within the country have quadrupled in the past fifteen years;[13] has a “sky-high inflation”[14] rate of over 50 percent;[15] suffers acute scarcities of food and indispensable products;[16] and, has a weak and artificial economy where citizens “pay up to four times as much as the market price.”[17] Furthermore, there is evident censorship of the news media, as the government attempts to silence any expressions of dissent. The government, through the Venezuelan National Telecommunications Commission, controls a majority of the television stations.[18] Similarly, independent radio is practically non-existent, and the government also has control over the sale of newsprint.[19] Finally, Maduro was said to win the presidential election with a meager 1.5 percent margin of victory over the opposition’s candidate;[20] however, his victory was, and still is, disputed by the Venezuelan opposition, as the result is suspected to be fraudulent[21] and the government subsequently denied a vote recount.[22] Since then, the opposition population has considered Maduro an illegitimate president.[23] For all the mentioned reasons, students started protesting in the western part of the country. The protests turned violent,[24] and as a result, several students were arrested. It was this latter event that led to demonstrations in Caracas on February 12, 2014, Venezuela’s National Youth Day.[25] Opposition leaders and students from across the country came together in a peaceful manifestation to express their discontent with Maduro’s regimen, and also to call for the release of the arrested students.[26]
Clashes between anti-government protestors on one side, and the Colectivos and the security forces on the other resulted in the deaths of three people, dozens of injuries, and around another 100 arrested.[27] According to Venezuela’s Attorney General, more than one-third of those detained were students.[28] As a result, thousands of Venezuelans decided to enjoy the manifestations in different cities throughout the country; including at least nearly half of the population that voted against Maduro, meaning that the protestors included thousands living in poverty, a group which Maduro claims to represent.[29] For his part, Maduro condemned protestors as a group of “fascists” that form part of a subversive campaign hatched in the United States.[30] Hence, he has chosen to repress the dissenting demonstrations.[31] Even though the protests were initially peaceful, they often turned violent. Still, security forces have responded with “excessive and unlawful force against protestors on multiple occasions . . . including beating detainees and shooting at crowds of unarmed people.”[32] Additionally, national authorities have intentionally acted with a negligent attitude with respect to the participation of pro-government armed groups operating as paramilitary units and exercising acts of violence against civilians.[33] The media censorship in Venezuela, as well as photo manipulation by both sides in the conflict, made it difficult initially for other countries and international organizations to form a complete picture of what was truly happening in the protests.[34] This is especially true since the local TV channels are barely covering the massive anti-government manifestations; therefore, Venezuelans have been turning to social media to stay informed.[35] Nonetheless, media blackouts have obstructed the flow of information during some of the most violent clashes between anti-government protesters and national authorities.[36] More alarming, in some states, the internet was completely shut off for several days;[37] transmissions of TV channels that criticized the government were blocked;[38] and other media were threatened in case they decided to cover the events in the streets in their news reports.[39] For instance, when CNN reporters’ coverage of the protests favored the opposition,[40] Maduro publicly announced possible measures to take the channel off the airwaves in Venezuela.[41] Likewise, local and international journalists covering the protests, as well as human rights activists “have reported being subject to acts of violence and intimidation by government agents or supporters.”[42]
For all these reasons, international organizations such as Amnesty International[43] and Human Rights Watch[44] have expressed concern about the situation in Venezuela. Similarly, a group of independent United Nations (“UN”) Human Rights Experts has prompted the Venezuelan government to clarify and investigate the allegations of arbitrary detention, with protesters reported having been tortured by security forces, kept isolated during detention, and denied access to legal assistance.[45] The UN Secretary General, Ban Ki-moon, has prompted the Venezuela government to “listen carefully to the aspirations”[46] of the opposition and engage in a peaceful dialogue. Meanwhile, local organizations engaging in the defense of human rights in Venezuela have documented, through witnesses, amateur videos, and pictures, the systematic violation of Venezuelan citizens’ human rights.[47] As a result, on March 10, 2014, Juan Mendez, Special Rapporteur of the United Nations Convention against Torture, received new allegations of cases of torture by the security forces.[48] Mendez, consequently, has solicited an intense investigation into these allegations, since he found substantiated evidence to sustain cases of severe torture against protestors.[49] On April 8, 2014, a petition to the ICC’s Prosecutor to investigate the alleged CAH committed by Maduro and other officials was submitted by the NGO Observatorio Iberoamericano de la Democracia.[50]
Many countries have formally rejected the violent repression by the Venezuelan government against protestors, including the United States, Panama, Chile, Canada, and Spain, as well as the European Community countries by majority votes in the European Parliament.[51] In general, member countries of the European Parliament have urged the Venezuelan government to ensure the security of all its citizens.[52] They demand the immediate disarming of the uncontrolled armed pro-government groups and the end of their impunity; the immediate liberation of arrested students and opposition leaders; and freedom of the press, information and opinion within the country.[53] Sadly, most countries in the region have supported the actions taken by the Venezuelan government, such as Ecuador, Bolivia, Cuba, Argentina and several Caribbean countries.[54] Perhaps the exchange of cheap oil for political alliances and a common left ideology are a more attractive alternative than the defense against CAH within the region, especially considering that the Venezuelan government has remained in power for the past fifteen years. III. VENEZUELA’S HUMAN RIGHTS OBLIGATIONS:
The Venezuelan Constitution (hereinafter, “Constitution”) is the supreme norm in the country; it fully guarantees the rights to freedom of peaceful public and private assembly,[55] association,[56] opinion and expression.[57] It also contains a principle that gives the Venezuelan people the right to reject any regimen, legislation or authority that contradicts democratic values or any other constitutional rights as to impair Venezuelans’ human rights.[58] In fact, the Constitution expressly establishes that any public act that violates or encroaches on the rights guaranteed by this supreme norm should be deemed as a void act.[59] In addition, public officials involved in such illegitimate acts will incur criminal, civil and/or administrative responsibility according to the case, regardless of whether they were obeying the orders of superiors.[60] The Venezuelan opposition frequently cites these constitutional norms, as all public officials responsible for implementing orders during the massive anti-government demonstrations could be held nationally liable for the human rights violations committed against protestors.[61] This is because orders impairing peoples’ human rights violate the spirit, purpose and reasons for the mentioned constitutional principles.
Moreover, the Venezuelan Constitution establishes that international treaties, covenants, and conventions on human rights, signed and ratified by the State, have constitutional rank and prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and exercise more favorable than those established by the Constitution and the laws of the Republic.[62] In this sense, Venezuela has ratified the International Covenant on Civil and Political Rights (hereinafter “ICCPR”),[63] as well as the Rome Statute of the International Criminal Court (hereinafter “ICC Statute”).[64] Venezuela is also a member of the Organization of American States (“OAS”);[65] however, in 2012, the government submitted a formal notice of denunciation of the Inter-American Commission on Human Rights (“ACHR”). This denunciation took effect in September 2013, leaving Venezuelans without the full protection of the ACHR.[66] Nonetheless, this entity will continue overseeing the human rights situation in Venezuela, as well as handling cases and precautionary measures, as the country continues to be an OAS member.[67]
Lastly, but not least, crimes like large-scale murder and torture form part of customary international law as well; thus, the government of Venezuela is bound to protect Venezuelans’ human rights related to those crimes, despite any ratification to the relevant international treaties expressly penalizing CAH.[68]
IV. CRIMES AGAINST HUMANITY DEFINITION AND ITS LEGAL ELEMENTS:
After years of law development, the current actus rea for CAH penalizes inhumane acts committed on a widespread or systematic basis.[69] To date, CAH also encompass inhumane acts committed during non-international armed conflicts, as its international element arises from the fact that the attacks are directed against a civilian population.[70] The legal elements of CAH have been crystalized in article 7 of the ICC Statute, which tried to codify existing customary law.[71] However, there are still difficulties in the interpretation and application of the threshold for CAH.[72] This section of the paper discusses the legal features and elements of CAH, and how they have materialized during the ongoing protests in Venezuela, thus exhibiting how the crimes committed in Venezuela should be deemed “serious crimes of concern to the [entire] international community;”[73] and consequently, being formally recognized as CAH committed by officials of the Venezuelan government.
IV.1. The Subjective Element: Who is Responsible for the CAH committed in Venezuela?
The most common perpetrators of CAH are official agents acting in their official capacity and on behalf of governmental authorities.[74] Therefore, these perpetrators usually act through general state policy to find support for their misdeeds.[75] In the recent massive protests in Venezuela, hundreds of cases denunciate the excessive and brutal use of force by different National Security Forces against civilians;[76] including cases alleging torture and inhumane treatment against detained students and protestors. Specifically, protestors allege torture across the country by the Bolivian National Guard (GNB); by the Body of Scientific, Penal, and Criminal Investigations (CICPC) in the States of Carabobo and Caracas; and by the Bolivian National Intelligence Services (SEBIN) in Caracas and Merida.[77] As a result, various national military commanders could initially be identified as perpetrators of CAH committed during the ongoing protests.[78]
These non-military and military superiors are criminally responsible for the potential unlawful orders given to their subordinates, as well as the CAH offenses that resulted from their failure to properly control the conduct of those under their command.[79] The alleged CAH have taken place over a period of three months and in a similar manner all over the country. Therefore, by virtue of their positions as senior authorities of the groups directly controlling the protests, these commanders could have taken sufficient measures to prevent their subordinates’ unlawful conduct, and could have investigated the allegations of unlawful acts by them. Had they done this, they could have stopped the occurrence of these crimes.[80] It was reasonable and foreseeable for these high-ranking officials to acknowledge that their actions and omissions could result, or were about to result, in the commission of CAH offenses. These individuals are responsible irrespective of whether they acted pursuant to orders from their own superiors, such as orders from the President. They are also criminally responsible, even in the case that subordinate actors were held individually liable as a result.[81]
Furthermore, the scope of CAH also comprises those inhumane acts committed by non-state actors with a certain level of organization; particularly, these groups are intricately bound with the existence of non-international conflicts, such as in Venezuela.[82] These groups include paramilitary units and armed civilian groups.[83] In Venezuela, the armed groups, so-called Colectivos, have committed many of the alleged CAH; in fact, they are responsible for most of the deaths during the ongoing protests.[84] However, the most challenged element to satisfy, in order to deem the offenses committed by these armed groups as CAH, is the “policy [component] underlying the large-scale victimization.”[85] This will require linking these groups with the government and its organizational policy and systematic attacks.[86] President Maduro has publicly stated that his administration would not accept violent acts from these groups or any other group, and that the National Forces alone are responsible for controlling the ongoing protests.[87] However, amateur videos, witnesses, and pictures collected by the opposition have showed how these armed groups brutally act against unarmed civilians, despite the presence of the security forces.[88] The latter have not only protected the armed groups on some occasions, but have also acted in collaboration with them during the current repressive attacks across the country;[89] they have even been called a “fundamental pillar in the defense of the homeland.”[90] Evidence suggests that government officials directed, encouraged, instigated, or at least, tolerated a deliberate policy of widespread and systematic attacks by the Colectivos against the anti-government protestors.[91] This is also reflected by the fact that these armed groups have openly operated within the country for years; yet, the Venezuelan government still has not taken effective steps to disarm these groups.[92] Arguably, the Venezuelan government has complete control over the Colectivos, as the former has “intervened in the formation, financing, equipping, and planning of the activities” of these armed groups.[93] This has permitted the government to attack the opposition without taking the blame for their criminal acts. Therefore, it is worth noting that, according to international jurisprudence, this type of general control over these groups is a key element to determine the government’s international responsibility in situations of this nature.[94]
As a result, the individual and international criminal responsibility of some government authorities is clear;[95] not only for Colectivos’ positive acts, but also for the mentioned negligent attitude and the failure to protect the civilian population from attacks by these groups. As stated in the previous section, the State has a clear constitutional obligation to guarantee peoples’ right of life, expression, opinion, association and peaceful and public assembly.[96] Therefore, its failure to do what it is legally required to, and what it possesses the ability to could result in international criminal liability.[97] Lastly, the acts committed by the Colectivos could also be subject to prosecution on a CAH basis against the leaders of this armed group themselves.[98] This will require considering them as “agents” of the State, as well as the capacity of their civilian or military structure, or both, to “developing a policy similar to that of a state.”[99]
Among the masterminds of the CAH during the ongoing anti-government demonstrations in Venezuela is Maduro; as a President of Venezuela, he is also the General Commander of the National Armed Forces in Venezuela.[100] Maduro has the highest authority within the Army;[101] therefore, he is directly responsible for the excessive and cruel use of force by these authorities against dissenters, both during the protests and while detained. Due to his position, Maduro directs the overall development of any operation by the National Guard against protestors.[102] Furthermore, even though he initially attempted to distance himself from pro- regime Colectivos,[103] in a later controversial nationally televised speech, Maduro publicly admitted that he had called the Colectivos themselves to respond to the anti-government protests.[104] Maduro used the expression “candelita que se prenda, candelita que se apaga.”[105] These words have been interpreted as a direct order, or at least, a clear message encouraging and inciting the armed groups to attack and disperse the dissenting manifestations.[106] In fact, the Colectivos’ attacks significantly increased in the following hours and days.[107] For this reason, the mental element required for CAH was satisfied as Maduro’s intentional message was made with complete awareness and as part of a widespread and systematic attack.
Moreover, Diosdado Cabello, together with Maduro, is the most visible government official. Extra-officially, he is said to be the actual commander of the Colectivos.[108] He publicly said that the Colectivos are a force that exists and is organized to defend the homeland.[109] In addition, Cabello has openly identified himself with one of the Colectivos’ groups, the Battled Units Chavista (“UBCH”), who is known for currently repressing the dissenting protestors.[110] He even sent his condolences to the family of a Colectivos member after he died during a protest on February 12.[111]
Furthermore, Francisco Ameliach, governor of Carabobo, called, thorough his Twitter account, upon the Colectivos “to get ready for a crushing counterattack against the fascist protestors.”[112] He added to his statement that Cabello had given the order.[113] Even though the governor later erased this tweet, a reporter from CNN saved an image of the statement and showed it on the channel.[114] This evidence clearly shows Ameliach’s order and incitement to the Colectivos. Similarly, Tarel El Aissami, governor of Aragua, has been accused of letting the Colectivos openly operate and attack anti-government protestors in Aragua State[115] For instance, a video posted by the CNN iReport website shows how the Colectivos, together with the local police of Aragua, brutally attacked an anti-government student.[116] Also, El Aissami has also posted controversial tweets, such as a Twitter message in which he wrote “[h]ard against those who want to destroy the country. Defending the legacy of Commander Hugo Chavez.”[117]
Finally, by virtue of their positions, Carmen Melendez Rivas and Miguel Rodriguez Torres, Minister of Defense and Minister of Interior, Justice and Peace, respectively, as well as the Attorney General, Luisa Ortega, must have also played a key role in implementing the state policy.
IV.2. The Objective Elements:
IV.2.a. Widespread or Systematic Attack:
Most of the time, a widespread attack requires that the underlying offenses resulted in the cumulative effect of numerous inhumane acts resulting in a large number of victims.[118] However, “no numerical limit has been set” to determine what constitutes a widespread attack, which could also be fulfilled by “a singular massive act of extraordinary magnitude.”[119] The cumulative inhumane acts committed against the dissenting population in Venezuela were initiated on February 12, 2014 and have been prolonged for two months in various parts of the country.[120] Also, it is estimated that the massive national protests in Venezuela have involved tens of thousands of students alone.[121] The civil society has also joined the anti-government manifestations, significantly increasing the number of Venezuelans protesting against the government’s regime.[122]
Furthermore, the systematic threshold requires the organized planning of the attack and its methodical execution.[123] The plan needs to provide guidance to the individual perpetrators with regard to the attack, including the specific victims targeted.[124] According to the Venezuelan NGO Control Ciudadano, the same images and events have been repeated across the country.[125] First, the National Security Forces and the Colectivos have brutally and cooperatively repressed dissenting demonstrators: while security forces fire an excessive amount of tear gas, the Colectivos on motorcycles directly shoot at protestors with firearms.[126] Curiously, during these confrontations, President Maduro often appeared on national TV; perhaps it is also part of the state policy. Another pattern across the country is the non-random occurrence of frightening attacks on residential buildings where mostly anti-government citizens reside.[127] A specific pattern by security forces when holding protestors in custody has also been reported: detainees are physically and mentally tortured; detainees are unable to communicate with their families and lawyers for days; use of absolutely inadequate detention centers; and the confiscation of detainees’ cellphones and cameras to erase pictures and videos showing the abuse of authorities.[128] The use of illegal toxic substances and firearms for the control and dispersion of massive public protests is another pattern observed across the country.[129] Several victims with fatal gunshot wounds to their heads have been also reported.[130]
Furthermore, according to Human Rights Watch, “the Maduro government has reacted with an abusive combination of censoring news outlets, arbitrarily locking up a prominent political opponent, and bringing brutal force down on protesters.”[131] The cumulative effect of all the mentioned circumstances suggests that the attacks against the Venezuelan opposition are “thoroughly organized and follow a regular pattern.”[132] Therefore, the state’s public institutions, personnel and resources must have been used for the commission, or at least for refraining from preventing the commission of the underlying offenses. As was discussed in the previous section, the government’s tolerance for the Colectivos is sufficient to link the former with the CAH committed by the latter as part of this state policy; it shows the State’s clear instigation, encouragement, or endorsement of these armed groups and their criminal actions.
The underlying offenses also are required to be part of an attack to be deemed as CAH.[133] The term “attack” no longer requires the presence of armed conflict, as the “mistreatment of the civilian population”, by means of certain prohibited acts, would be sufficient to deem offenses as CAH.[134] Moreover, according to the ICC Statute and international criminal law (“ICL”) jurisprudence, there must be at least multiple acts in order to justify the label “attack against a civilian population”; these acts could be “of the same or different type.”[135] As will be discussed in the next sections, the actions taken against the massive protests by the different security forces and the Colectivos since February 12, 2014, have resulted in several deaths, hundreds of injured victims, thousands of detainees, at least fifty-nine cases of torture and many other cases of inhumane acts.[136] According to international standards, the “use of live ammunition by security forces would only be lawful . . . if their targets pose an imminent threat to the life of or of injury to the security forces or third parties.”[137] Thus, while it is true that some protests have turned violent, within the hundreds of videos posted online, none of them show protesters carrying and using firearms against security forces or third parties.[138] Only in a few identified cases have protestors been exhibited throwing Molotov cocktails at the security forces.[139] Protesters have also erected barricades and thrown back the tear gas used by these forces to control and disperse the manifestations;[140] nonetheless, these actions do not pose an imminent threat to the lives of the security forces or third parties. In their vast majority, the violent protestors make reference to students insulting and throwing rocks at soldiers.[141] Therefore, the cumulative actions described later in this paper could collectively be described as an attack directed against the dissenting population in Venezuela.
IV.2.b. Directed Against a Civilian Population: Another important feature of CAH is that a civilian population, non-combatant individuals, must be the primary target of the perpetrator – this includes attacks of a State against its own civilians.[142] However, the entire population does not need to be targeted for offenses to be deemed as CAH.[143] As mentioned, the major protagonists in the ongoing demonstrations in Venezuela are students.[144] The main opposition political leaders and the middle-class majority have also joined them.[145] Hence, the targeted population in these protests is clearly non- combatant individuals, civilians identified as opponents of a regime. Even though a few protestors have used Molotov cocktails during the demonstrations, ICL jurisprudence has held that CAH can be “committed even where the victims at one time bore arms.”[146]
The following section discusses the underlying offenses resulting from the stated attacks directed against a civilian population.
V. THE UNDERLYING OFFENSES:
CAH cover a number of crimes, most of which are ordinary human rights violations domestically proscribed, and which consequently are within the national jurisdiction of a state.[147] However, the following cases of murder, torture, imprisonment, and other inhumane acts appear to be the result of an intentional and planned state policy against the dissenting population in Venezuela, rather than “unforeseen” and unavoidable events.[148] Therefore, there are significant reasons to sustain that the following crimes constitute CAH offenses.
V.1. Murder:
Over forty individuals have died around the country since the protests started in Venezuela.[149] While all of these cases took place during events directly or indirectly related to the anti- government manifestations, not all of them constitute CAH. Thus, for the purpose of this paper, only those potential CAH cases will be discussed.
Bassil Da Costa was the first victim killed during the first massive protest in Caracas City; he died after receiving a fatal gunshot wound to the head.[150] The newspaper Ultimas Noticias posted an online video where uniformed security forces, accompanied by men in civilian clothing, fired with handguns on fleeing protesters.[151] Among them was Da Costa, who is seen falling to the ground after being shot.[152] All evidence indicates that Da Costa and his companion demonstrators were peacefully protesting, not carrying firearms or using lethal force against security forces or third parties.[153] In addition, the video shows the security forces’ negligent attitude when armed civilians started shooting at protestors. In fact, the video shows how these armed men initially came together with members of the security forces at the scene of confrontation.[154] Similarly, the second victim of the security forces was the 23-year-old student Geraldine Moreno, who died after being shot in the face by a soldier (apparently at close range) with rubber bullets.[155] According to witnesses, Moreno was protesting at the entry of her building when two National Guards on a motorcycle approached and started shooting.[156] Witnesses maintain that she was running when she fell as sparks from the shots went near her face; she tried to get up but the soldiers fired again, shooting her in the face.[157] These events took place in Naguanagua, Carabobo State, on February 22, 2014.[158] On February 23, 2014, Alejandro Marquez died in Caracas after being brutally beaten by security forces for recording their repressive actions against protestors; witnesses maintain that these forces were openly firing against the demonstrators that night.[159] A video posted online by CNN shows how Marquez was running (unarmed) from the national forces when he fell and was captured.[160] The security forces later transported him to the hospital; the hospital reported that when Marquez arrived, he had serious bruises all over his body, including on his head, arms and neck, yet he was conscious, agitated, and speaking nonsense. The hospital also explained that he had suffered a cranial fracture and bleeding in the skull.[161] Experts sustain that it is unlikely that these injuries resulted from the single and recorded accident.[162] Therefore, it is sustained that he must have been brutally beaten by these forces in order to explain his physical condition at the time of his death, as from the moment he fell until his admission, he was in the custody of security forces. In fact, Marquez’s sister reported to Amnesty International that the hospital’s employees informed her that securities forces continued to beat Marquez in the X-ray room.[163]
Despite the mentioned repressive action by the security forces, the Colectivos are responsible for most of the fatal cases during the ongoing manifestations. On February 12, 2014 Roberto Redman was the first victim of these armed groups; he was shot by a Colectivos member from a motorcycle in Caracas.[164] According to witnesses, the man directly fired on a group of approximately thirty protestors, among which was Redman and some others who were seriously injured.[165] Redman was a journalist; tragically, he reported on his Twitter account earlier that day how he helped to carry Da Costa after the first shooting, and how he had been beaten by security forces.[166] The next victim was Genesis Carmona, a 21-year-old student who was fatally wounded after being shot in the head during a protest in Valencia on February 18, 2014.[167] Multiple accounts reported that Colectivos members on motorcycles opened fire on peaceful demonstrators, resulting in other protestors being shot as well.[168] Under similar circumstances, Daniel Tinoco was shot in the chest by Colectivos in Táchira Sate on March 10, 2014.[169] Two other protestors were injured as a result of the attack.[170] Likewise, Jesús Eduardo Acosta was shot in the head on March 12, 2014 during a “bloody day”[171] of violent confrontations in Valencia. Witnesses reported that Acosta was trying to seek refuge as Colectivos groups attacked opposition protestors.[172] Lastly, Willmer Carballo Amaya was shot in the head by the Colectivos in Aragua State on February 24, 2014.[173] According to witnesses, an anti-government demonstration was taking place in his neighborhood when an armed group on motorcycles started firing on protestors.[174] Carballo was not protesting; however, he went outside to check on what was happening while wearing an anti-government cap, when he was presumably confused with the protestors and shot in the head.[175]
It is clear that the security forces and armed groups involved in all the mentioned cases intended to kill, or at least, inflict grievously bodily harm likely to cause death. Therefore, the mental element for CAH was satisfied.[176] This is especially true considering that a “lesser mental element” is required for CAH offenses: “it is sufficient for the perpetrator ‘to cause the victim serious injury with reckless disregard for human life.’”[177]
V.2. Imprisonment:
An important novelty introduced by the ICC Statute was the expanded meaning of the term “imprisonment,” as it now includes “not only detention in prison-like conditions,” but also “other severe deprivation of physical liberty.”[178] To constitute a CAH offense, the detention must have resulted from an arbitrary decision,[179] such as those resolved without due process; without legal basis; or in violation of any other “fundamental rules of international law.”[180] The NGO Foro Penal Venezolano reported that 2,322 protestors have been detained during the ongoing protests across the country, of which only 384 had been completely freed; 1,361 were freed under conditions such as monthly court appearances; 94 were deprived of their freedoms; 60 remain detained; in addition to another 422 cases which were unverified at the time of the riots.[181] The UN High Commissioner for Human Rights, Navi Pillay, has also received reports indicating cases of irregular detention among them.[182] As a result, a group of UN independent experts have asked the Venezuelan Government for the prompt clarification of allegations of the arbitrary detention of protesters.[183]
President Maduro has blamed opposition leaders for the violent developments in the country, and, consequently, some of these leaders have been arbitrarily detained and prosecuted.[184] Perhaps the most notable figure is Leopoldo López, accused as the main person responsible for the fatal events during the demonstrations on February 12.[185] Lopez initially faced charges of terrorism and murder;[186] however, after Ultimas Noticias posted the mentioned video, these accusations were reduced to arson and conspiracy.[187] López has denied the charge and has repeatedly called for demonstrators to act peacefully.[188] He remains behind bars at a military prison outside Caracas, where an unconstitutional court was set up for his hearing.[189] This is a clear violation of due process in Venezuela, as the Constitution states that everyone should be judged in liberty when no credible evidence is presented by the authorities.[190] However, in Venezuela, it is very rare for a judge to make a lawful decision if it goes against government interests.[191] Curiously, the decision against López occurred hours after the president of the National Assembly, Cabello, personally held López accountable for the events which occurred on February 12.[192] This is clearly a violation of López’s right to be presumed innocent.[193] It also suggests that, in Venezuela, there is not a separation of powers. It is worth mentioning that this is not the first time that the government has tried to silence the political leader. In the past, López had been banned from running for elected office because of corruption allegations;[194] this decision was made despite the ICHR’s decision condemning the clear violation of the American Convention on Human Rights and Lopez’s entitlements.[195] According to Amnesty International, López’s charges “smack of a politically motivated attempt to silence dissent in the country,”[196] as no evidence for substantiating these charges has been found. Therefore, there have been calls for the immediate release of the opposition leader.[197]
Two opposition majors have also been detained, Enzo Scano and Daniel Ceballos.[198] Both had been accused of conspiracy and civil rebellion for having permitted barricades in their jurisdictions.[199] In addition, Scano and Ceballos were removed from office and sent to prison for ten and twelve months respectively.[200] It is asserted that these two mayors were sentenced through unprecedented summary procedures.[201] Alarmingly, Scano’s sentence was not published by the Supreme Tribune of Justice (“TSJ”) in accordance with the Venezuelan rules of civil procedure.[202] This has impeded the political leader from appealing the ruling, as the content and the legal basis of the judgment remain unknown.[203] Lastly, an arrest order has been issued for Carlos Vecchio, another leader of López’s political party who remains a captive.[204] The Prosecutor Office’s charges against Vecchio are similar to those of Lopez, conspiracy theories without incriminating evidence.[205] Indeed, all of these irregular detentions have concerned international organizations, as they suggest that the protests can easily turn into political persecution as well.[206] Some of these organizations have even stated that these detentions are “mounting proof that Venezuela ceased to be a democracy long ago.”[207]
In addition, journalists monitoring and reporting the protests have also been the subject of continued and arbitrary detentions by these forces, such as the case of the Italian-photographer and journalist Francesca Commisario.[208] She was detained during a confrontation between security forces and protestors, which she was covering while possessing nothing but her camera.[209] However, the report by the security forces stated that she was in possession of a Molotov cocktail.[210] After her release, her stripped camera was not returned nor was any record of its existence.[211] Another similar case is that of Mildred Manrique, a Venezuelan reporter for the daily 2001.[212] The National Guard troops broke into her apartment and said they were searching for violent protesters.[213] She was detained without charges for four hours, and three of her computers were confiscated and never returned.[214] Eighty-seven acts of aggression against reporters were reported by the NGO Espacio Publico,[215] including twenty- two cases of arbitrary detention.[216] As a result, the international media has increasingly questioned this type of repression by the Venezuelan security forces.[217]
There have been hundreds of allegations of the arbitrary detention of peaceful demonstrators without warrant or having been caught in the act of committing an offense, such as the case of Carlos Requena, a mentally challenged man who was brutally beaten and detained by the security forces.[218] According to witnesses, Requena could not even defend himself due to his mental condition.[219] In other cases, individuals not participating in the demonstrations but incidentally near the protest area were arbitrarily detained.[220] According to police records, some of these detentions occurred because security forces presumed that the detainees were about to commit a crime, instead of being caught in flagrante.[221] Additionally, illegal detentions within residential buildings and houses without a required search warrant have been reported as well.[222] Lastly, violations of due process have been reported in several cases, as the detainees were not allowed to be in communication with their families and lawyers for at least forty-eight hours, and the public authorities did not provide information regarding their locations, conditions, and reasons for the arrests.[223] Therefore, the capacity to defend themselves in front of a judge were directly affected, as prompt access to a lawyer is an important safeguard against torture, ill-treatment, and confessions made under duress and other abuses.[224]
V.3. Torture
To date, the prohibition against torture is well-recognized as a norm of customary law.[225] The ICC Statute defines torture as follows: “[T]he intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”[226]
Human rights activists in Venezuela have reported that several demonstrators have been abused while in custody or under the control of the security forces, including physical and mental abuse, such as threats with beatings or rape.[227] These claims have been received by the UN, which expressed its deeply concerns about the situation in the country, and “asked the Venezuelan Government for prompt clarification of allegations of arbitrary detention and excessive use of force and violence against protesters, journalists and media workers during recent protests.”[228]
The case of Juan Manuel Carrasco, a 21-year-old student detained in Valencia, is among the most disturbing claims. During the forty-eight hours that Carrasco remained detained, he was seriously beaten with arms and helmets, losing consciousness at least three times;[229] he was threatened with death;[230] and more alarmingly, he was separated from the other students and raped with a long gun by the military troops.[231] According to ICL jurisprudence, rape “can constitute a form of torture” under Carrasco’s circumstances.[232] Jorge Luis León was also arrested with Carrasco – he reported that they were threatened with dog attacks; he said that the dogs even licked their wounds.[233] Additionally, he reported that three of the soldiers began to play football with them, kicking students in the back while shouting “goal!”[234] Like Carrasco and Leon, many other students have reported being threatened with rape and death, and having been beaten and kicked.[235] In fact, there have been registered cases of students being beaten with a helmet until the helmet broke.[236]
Another case worth mentioning is that of Marvina Jimenez, a 36-year-old woman who was brutally assaulted while under the control of a GNB.[237] She was surrounded and captured by a group of security forces for taking pictures with her cellphone of their repressive actions.[238] A female National Guard member took physical control of Jimenez, threw her on the ground, and started hitting Jimenez’s head with her helmet.[239] Jimenez was then detained, during which time she was not permitted to contact her family and lawyers.[240] Witnesses in the area recorded and made public these shocking events.[241]
Other cases of torture include, but are not limited to, students being forced to remain kneeling or facing a wall for hours;[242] students receiving multiple electric shocks;[243] a student was forced to remain naked, handcuffed and went without sleep for nine hours;[244] students bathed with gasoline and threatened with being burned;[245] and detained students not receiving food or water.[246] In addition, there were several cases of torture committed by the armed groups Colectivos during the ongoing demonstrations in Venezuela.[247] According to the elements stated by the ICC Statute, these cases could be considered CAH since the linkage between the act of torture and a commission by a public official is not required.[248] However, for the purpose of this paper, cases of alleged torture and inhumane acts against protestors are limited to those committed only by the National Security Forces.
All the mentioned examples certainly satisfy the elements of torture as an underlying offense of CAH. In all these instances, the security forces were acting in their official capacity and when in the custody or control of the victims. Also, it is presumed that the purpose of these acts was to punish and humiliate the protesters, or even obtain confessions from them; nevertheless, it still uncertain whether this latter element is actually needed by customary law to deem the offenses as CAH.[249] What does seem certain is that the Venezuelan Government has permitted, and perhaps ordered, this serious and cruel treatment against anti-government protestors. Thus, it is alleged that these acts are part of a state policy that permitted the attacks against the dissenting population. V.4. Other Inhumane Acts:
Perhaps the most common CAH committed in Venezuela during the recent anti-government protests involve cases of inhumane acts or degrading treatment, resulting in protestors’ bodily and mental harm. This is because repression against protesters, including minors, has involved not only beating, but also excessive and illegal use of toxic substances, as well as unjustified shootings at crowds of unarmed people.[250] These types of offenses could be covered by the so-called residual clause of article 7 of the ICC Statute.[251]
Among the cruelest cases of assault, battery, and inflicting physical harm against innocent civilians is that exposed in a video recorded in Aragua State, when a group of security forces kicked and jumped over a student who was completely unarmed and unconscious on the floor.[252] In another video, transmitted by Univision,[253] Roberto González is shot, with a 9mm gun and at close range, by a National Guard; Gonzalez had tried to mediate between protesters and soldiers beating people in the area.[254] In another case, a student was watching officers beat and insult other protesters when he unexpectedly received a kick to the face, and was later forced to spend two hours on his knees.[255] The kick resulted in three facial fractures.[256] Moreover, journalists have continually been victims of physical violence as well. For instance, Gabriel Osorio suffered a broken rib, pellet burns, head injuries, multiple bruises, and a stolen wallet, after six national guards attacked him for taking pictures of student protests.[257]
Furthermore, hundreds of pictures across the country have shown the cruel and indiscriminate use of pellets by the security forces without clear warning and directly to the body of the demonstrator,[258] employing not only rubber bullets, but also metal and marble[259] bullets.[260] Among the victims injured with marble bullets was Rafael Gallardo, who was arbitrarily shot, at a close range, by the National Guard. Gallardo was at his residence in Barinas when intersected by the security forces.[261] He was seriously injured as the bullet pierced his large and small intestine; he required surgical intervention.[262] Another alarming case is that of Jeremias Jimenez, a unarmed student who was shot several times from a National Guard tank and at close range.[263] Moreover, pellets have even been fired at residential areas in order to avoid barricades, and without the protesters being given warning or the option to evacuate.[264]
The indiscriminate and excessive use of tear gas by the security forces has also been said to cause significant physical harm to protestors. First, tear gas has been fired directly against residential properties when people have protested from their apartments.[265] This could have caused serious damage to the people within those apartments, as the chemical components of these devices cause damage to health when used in closed spaces, particularly with children and the elderly.[266] In one confrontation between students and the National Forces, around 840 used tear gas containers were recollected at the scene of the events; this particular event resulted in twenty-five people having symptoms of asphyxia, of which fifteen needed immediate medical assistance.[267] The dangers related to the arbitrary use of these toxic substances are even more significant as it was reported that security forces had used expired tear gas.[268] Finally, in some cases, tear gas was fired at such a close range that it seriously injured unarmed protestors. This was the case of Carlos Tejada; a 22-year-old student who may lose an eye after security forces fired on a group of demonstrators building a barricade without warning.[269] While it is true that protesters engaging in violence or vandalism should be held accountable, under no circumstances is it lawful to shoot at people who are unarmed and protesting peacefully.[270] Even when using “less lethal” projectiles, such as pellets with rubber bullets, it must be the only and absolute way for security forces to protect their lives, or in self-defense, or to prevent serious injury to third parties;[271] besides, at all times, it is required to give appropriate warning to protestors.[272] Firearms should only be used when less extreme means are insufficient to achieve this goal in order to reduce the risk of unnecessary and unjustified harm.[273]
Indeed, all victims’ testimonies described that the security forces “inflicted great suffering, or serious injury to body or to mental or physical health by means of inhumane acts.”[274] The fact that similar patterns were reported in different states across the country and at different occasions confirms the widespread and systematic character of these actions. Also, all the victims agreed that the security forces acted with full awareness and with the intention to cause harm to the dissenting protestors. As a result, the mental element to deem these offenses as CAH seems to be satisfied.
VI. WHERE SHOULD THE TRIALS TAKE PLACE?
“[I]t is the duty of every State to exercise its criminal jurisdictions over those responsible for international crimes.”[275] In this sense, the ICC’s jurisdiction shall only be complementary to the national jurisdiction,[276] as the former is a court of last resort.[277] One of the biggest challenges faced by the CAH victims in the ongoing protests is the corrupt and government- controlled character of all public institutions. The division and independence of powers does not exist in this country, as the judicial branch undoubtedly acts under the Presidency’s guidance, making the institution unconditionally subservient of the government’s interest.[278] Therefore, unless the government democratizes the judicial system, which is improbable, international criminal law would only be enforced against those with the highest responsibility for the CAH committed in Venezuela through the ICC per article 17(2) of the ICC Statute.[279]
The origin of the current structure of the judicial system in Venezuela dates back to 2004, when government supporters took control of the National Assembly by almost reaching 100% of this institution’s seats.[280] This permitted the official party to adopt several measures in order to extend the government’s control over other fundamental institutions, including the judiciary. A key instrument was the adoption of certain policies that would permit a significantly faster process for judges’ appointments, thus enabling the more prompt appointment of the TSJ’s pro- government judges.[281] Once the government ensured its control over the highest Court, gaining control over its inferiors was easy. The TSJ simply held that provisional and temporary judges at an inferior level could be removed from office at the discretion of a Judicial Committee specially created within the TSJ.[282] Naturally, this Committee is preceded by members of the official party, which clearly undermines the judicial independence.[283] This has allowed new judges to be elected without following the objective and independent competition process established in the Constitution. The ICHR and the UN have both stated that these types of discretionary dismissals of judges are contrary to international obligations aiming to ensure judicial independence, as it increases the risks of interfering with the judiciary.[284] The mentioned circumstances resulted in the judicial system not exercising its role as an impartial and independent arbiter of the State’s actions and omissions. For example, the vast majority (around ninety-three percents)[285] of the cases between 2007 and 2010 involving claims against any government official or member of the official party were declared without merit or no material decision was ever made.[286] Furthermore, several of the judges of the TSJ have openly rejected the notion that the judiciary should be independent of the executive branch.[287] Rather, they have suggested that the role of the courts in the country was, and still is, to support the political agenda of Chavez and his “social” revolution.[288] These rejections of the principle of the separation of powers have also been reflected in case law.[289] Other examples discrediting the reputation of the Venezuelan judicial branch include, but are not limited to, arbitrarily dismissing a solicitude requesting information regarding the salaries of senior officials and any other government officials, as well as establishing additional and excessive requisites to this aim;[290] prohibiting and censuring propaganda that criticizes the government’s proposed bills by sustaining that this would represent a serious threat to democracy;[291] and arbitrarily prosecuting, detaining, and removing a judge from her position for having decided in favor of a former political prisoner.[292] This has resulted in Venezuelan judges, both at lower courts as well as the superior courts, being extremely cautious when deciding a case that could embarrass the government.[293]
Furthermore, Venezuela ranks 160 out of 177 countries surveyed for corruption.[294] For this and the previously mentioned reasons, “it is not surprising that the first high-profile arrest in the political violence was one of Venezuela’s most visible opposition leaders, Leopoldo Lopez, rather than any Colectivo member.”[295] To date, fourteen members of different National Security Forces have been detained for investigations of human rights abuses during the ongoing protest; however, no member of the Colectivos has been detained by the National Authorities or questioned by the Prosecutor’s Office.[296] Perhaps these authorities have no doubt that any action against these groups will be a direct attack on the “Bolivian Revolution.” Another inquiring fact is that one of the suspected murderers of Bassil Da Costa, Jonathan Rodriguez, is a man of extreme trust of the current Minister of Interior and Justice; Rodriguez is a current sergeant of the Army, the Minister’s personal escort,[297] and he is also said to be a member of the Colectivos.[298] Up to today, there are no signs of his location.[299] In contrast, trials against political dissent leaders and students have taken place through summary proceedings.[300]
The most recent example of the lack of separation of powers in Venezuela was the TJS approved unconstitutional removal of Deputy María Corina Machado, stripping her of legislative immunity.[301] This ouster clearly violated the rule of law and the Constitution of Venezuela.[302] Finally, it is apparent that neither the Attorney General’s Office nor the Ombudsman have carried out their duties with due diligence, demonstrating a serious renunciation of their institutional functions. This has definitively collaborated with the bias role played by the judiciary.
There are several others cases supporting the lack of independence and impartiality as well as the Venezuelan judicial national authorities’ unwillingness to bring the real offenders of the CAH committed against the civilian population in the ongoing demonstrations to justice.[303] For this reason, it is believed that the case of Venezuela would almost certainly satisfy the admissibility criteria stated in article 17(2) of the ICC Statute. In addition, as Venezuela’s denunciation of the ICHR took place in 2013, an ad hoc international criminal tribunal created by the UN Security Council, and the ICC are the only two other mechanisms left for the protection of Venezuelans’ human rights. For economic reasons, however, the establishment of an ad hoc international criminal tribunal for the prosecution of the argued CAH in Venezuela seems realistically unlikely. Therefore, it is under this type of scenario that the inherent jurisdiction of the ICC should be triggered, in order to ensure that impunity does not prevail over accountability. Undeniably, not only did the Venezuelan judicial system ceased to be independent a long time ago, but no longer are the public prosecutors and the Ombudswoman independent. Therefore, founding a new, honest, and competent judiciary, truly devoted to the well-being of the Venezuelan people, will take years or even decades. Meanwhile, there is no doubt that the Venezuelan judiciary is unwilling and unable to exercise criminal jurisdiction over the crimes committed against the civilian population during the anti-government protests.
VII. CONCLUSION
The ongoing protests in Venezuela have shown the world what kind of creature the Venezuelan revolution really is.[304] Sufficient evidence suggests the existence of widespread and systematic violations of human rights in Venezuela. These attacks against civilians’ human dignity have been perpetrated by military, police, and militias’ bodies, as well as armed groups, with the ultimate objective of silencing the dissenting population and staying in power. The use of firearms and arbitrary ammunition against unarmed protestors has resulted in several people being seriously injured and even killed. Dissenting protestors have also been victims of torture, and cruel, inhumane and degrading treatment seeking to cause pain or severe physical and mental suffering. This has been widespread and systematically perpetrated against students while under the control or custody of security forces. Therefore, these human rights violations will entail individual criminal responsibility for the CAH of those who have ordered, executed, cooperated, and incited their commission. For all the mentioned reasons, the events that have taken place in Venezuela over the last year meet the ICC’s threshold on jurisdiction and gravity.
In the past, there have been serious violations of human rights in Venezuela and national courts have not prosecuted offenders, or even worse, have blamed innocent people. Therefore, it is clear that the Venezuelan judiciary will not recognize victims of CAH by the executive in the absence of a division of powers, as it itself is part of the claimed denounced state policy. This exhibits the incapacity of the Venezuelan judiciary. Thus, the ICC is the most suitable entity to prosecute those mastermind leaders involved in the argued CAH offenses, which, without doubt, include President Maduro and the National Assembly’s President Cabello.
In a last thought about Venezuela’s agony today, all democratic countries, especially those within the region, should reject the inhumane acts recently committed in the South American country. Sympathy for left-sided ideals is one thing, but ignoring the commission of CAH against at least half of a country is another. “If nothing else, the atrocities of war, genocide and crimes against humanity throughout our human history have taught us that silence can be the deadliest of all weapons.”[305]
Editor’s Note: this Article was written during the antigovernment protests in Venezuela, which took place from February to April of 2014.
* Susana Mijares Peña is a qualified lawyer in Venezuela, having earned her undergraduate degree in law in 2008 at Universidad Católica Andrés Bello. She also completed her LLM degree at Osgoode Hall Law School in 2011. She has recently completed her JD at Western Law. Her area of concentration is international business transactions. Susana would like to dedicate this paper to those who lost their lives for the dream of a better country.
[1]. Moises Naim, The Tragedy of Venezuala, The Atlantic (Feb. 25, 2014, 8:20), http://www.theatlantic.com/international/archive/2014/02/the-tragedy-of-venezuela/284062/.
[2]. Estas son las 14 elecciones de la administración de Hugo Chávez, Noticias24 (Sept. 27, 2010, 7:44 AM), http://www.noticias24.com/actualidad/noticia/173997/estas-son-las-14- elecciones-de-la-administracion-de-hugo-chavez/.
[3]. Charles L. Briggs & Clara Mantini-Briggs, “Misión Barrio Adentro”: Medicina Social, Movimientos Sociales de los Pobres y Nuevas Coaliciones en Venezuela, 3 Salud Colectiva 159, 159-61 (Aug. 2007), available at http://www.redalyc.org/pdf/731/73130205.pdf.
[4]. Enrique Krauze, Venezuela’s Angry Students, N.Y. Times (Feb. 27, 2014), available at http://www.nytimes.com/2014/02/28/opinion/venezuelas-angry- students.html?hp&rref=opinion&_r=2.
[5]. Human Rights Watch, Tightening the Grip: Concentration and Abuse of Power in Chavez’s Venezuela 1-4 (Jul. 17, 2012), available at http://www.hrw.org/sites/default/files/reports/venezuela0712webwcover.pdf [hereinafter Tightening the Grip].
[6]. Loreto Concha, Venezuela conmemora los dos años de muerte de Hugo Chávez en plena crisis económica y política, Latercera (Mar. 5, 2015, 10:07 AM), available at http://www.latercera.com/noticia/mundo/2015/03/678-619393-9-venezuela-conmemora-los-dos- anos-de-la-muerte-de-hugo-chavez-en-plena-crisis.shtml.
[7]. Marjuli Matheus, Chávez nombró a Nicolás Maduro como su sucesor, Ultimas Noticias (Dec. 9, 2012, 6:00 AM), http://www.ultimasnoticias.com.ve/noticias/actualidad/politica/chavez-nombro-a-nicolas- maduro-como-su-sucesor.aspx.
[8]. Antonio Cassese & Paola Gaeta’s International Criminal Law 90 (3d ed. 2013).
[9]. Jackson Diehl, Venezuela, the Uprising No One is Noticing, Wash. Post, Mar. 3, 2014, available at http://www.washingtonpost.com/opinions/jackson-diehl-venezuela-the- uprising-no-one-is-noticing/2014/03/03/19ab5828-9fc7-11e3-b8d8-94577ff66b28_story.html. [10]. Armed groups acting as paramilitary at the service of the Chavismo. In some of the poorest neighborhoods in the country, this organization has taken such force that is now seen as the only authority. They act as prosecutors, judge and jury – especially in areas of Caracas where the police do not dare to enter. They operate with some degree of autonomy, and are supported and protected by government authorities within the Chavismo – these authorities provide the Colectivos with financing, equipment, and weapons in exchange for their assistance and services to the regime in various ways. Chavez himself was among the first to recognize the benefits of incorporating these left-leaning groups into the ranks of the revolution. He invested in leadership training of these groups. The leaders of the Colectivo groups have gone through a process of socialist ideological education and have traveled to Cuba, where Cubans have prepared them for armed combat. See Daniel Wallis, Venezuela Violence Puts Focus on Militant ‘Colectivo’ Groups, Reuters (Feb. 13, 2014), http://www.reuters.com/article/2014/02/13/us-venezuela- protests-colectivos-idUSBREA1C1YW20140213.
[11]. Share of World Crude Oil Reserves 2013, Organization of the Petroleum Exporting Countries, http://www.opec.org/opec_web/en/data_graphs/330.htm (last visited Mar. 8, 2015).
[12]. Naim, supra note 1.
[13]. Venezuela’s Homicide Rate Quadruples in Fifteen Years, NGO Reports, Huff. Post: Latino Voices (Dec, 27, 2013, 12:11 AM), http://www.huffingtonpost.com/2013/12/26/venezuela-homicide-rate_n_4506363.html.
[14]. Mery Mogollon & Chris Kraul, Venezuela Seeks Opposition Figure’s Arrest; Protest Death Toll Rises, L.A. Times (Feb. 28, 2014, 1:01 PM), http://www.latimes.com/world/worldnow/la-fg-wn-venezuela-protests-death-toll- 20140228,0,281699.story#axzz2ufNG4UxA.
[15]. Emilia Diaz-Struck & Nick Miroff, Carnaval Could Sap Venezuela Protests, Wash. Post (Feb. 26, 2014), http://www.washingtonpost.com/world/the_americas/carnaval-could-sap- venezuela-protests/2014/02/26/50088b96-9f10-11e3-878c-65222df220eb_story.html.
[16]. Víctor Salmerón, Venezuela’s Food Shortage in January the Highest in Five Years, El Universal (Feb. 13, 2014, 10:47 AM), http://www.eluniversal.com/economia/
140213/venezuelas-food-shortage-in-january-the-highest-in-five-years.
[17]. Virginia Lopez, Venezuela Toilet Paper Shortage Sends Ordinary Lives Around the Bend, The Guardian (May 23, 2014, 8:01 AM), http://www.theguardian.com/world/2013/may/23/venezuela-toilet-paper-shortage.
[18]. Venezuela: Freedom of the Press 2014, Freedom House (2014), https://freedomhouse.org/report/freedom-press/2014/venezuela#.VRxKgpPF-Ad.
[19]. Id. [20]. Naim, supra note 1.
[21]. Protests in Venezuela: Stop the Spiral, The Economist (Mar. 1, 2014), available at http://www.economist.com/news/leaders/21597900-dialogue-not-repression-way-nicol-s- maduro-save-his-government-and-his.
[22]. Ewald Scharfenberg, Venezuela rechaza el recuento de votos que exige la oposición, El Pais (Apr. 28, 2013, 22:57 PM), http://internacional.elpais.com/internacional/2013/04/28/actualidad/1367121157_828792.html.
[23]. Alex Váquez, Capriles: “Maduro es un presidente ilegítimo,” El Nacional (Apr. 16, 2013, 12:01), http://www.elnacional.com/politica/tu_decides/Capriles-seguir-acciones-descarta- impugnar_0_172782966.html.
[24]. What Lies Behind the Protests in Venezuela?, BBC News (Mar. 27, 2014), http://www.bbc.com/news/world-latin-america-26335287.
[25]. Daniel Pardo, Venezuela: Dentro de las protestas del #12F en Caracas, BBC News (Feb. 13, 2014), http://www.bbc.co.uk/mundo/noticias/2014/02/140213_venezuela_caracas_violencia_protesta_1 2f_dp.shtml.
[26]. Id.
[27]. Id.
[28]. Mogollon & Kraul, supra note 14.
[29]. Naim, supra note 1.
[30]. Diaz-Struck & Miroff, supra note 15.
[31]. Krauze, supra note 4.
[32]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch (Feb. 28, 2014), http://www.hrw.org/news/2014/02/28/venezuela-oas-should-proceed-meeting[hereinafter Venezuela: OAS Should Proceed with Meeting].
[33]. Juancarlos Vargas, Lesa humanidad en Venezuela, El Universal (Feb. 20, 2014, 12:00 AM), http://www.eluniversal.com/opinion/140220/lesa-humanidad-en-venezuela.
[34]. Mariano Castillo, Searching for Truth in Venezuela, CNN (Feb 21, 2014), http://www.cnn.com/2014/02/21/world/americas/venezuela-fact-from-fiction/. [35]. Andrew Cawthorne & Daniel Wallis, Jailed Venezuela Protest Leader Mocks Maduro’s Talks, Reuters (Feb. 28, 2014), http://www.reuters.com/article/2014/02/28/us- venezuela-protests-idUSBREA1R14P20140228.
[36]. Castillo, supra note 34.
[37]. Meghan Neal, Not Satisfied with Blocking Twitter and TV, Venezuela Shuts off the Internet, Motherboard (Feb. 20, 2014), http://motherboard.vice.com/read/not-satisfied-with- blocking-twitter-and-tv-venezuela-shut-off-the-internet.
[38]. Id. (this was the case of the only foreign television station reporting live, the Colombian outlet NTN24).
[39]. Krauze, supra note 4.
[40]. Id.
[41]. Venezuela Leader Nicolas Maduro Seeks Talks with Obama, BBC News (Feb. 20, 2014), http://www.bbc.com/news/world-latin-america-26298133.
[42]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[43]. Amnistia Internacional, Venezuela: Los Derechos Humanos en Riesgo en Medio de Protestas 15-16 (Mar. 2014), available at https://www.es.amnesty.org/uploads/media/Informe_Venezuela._Los_derechos_humanos_en_rie sgo_en_medio_de_protestas.pdf.
[44]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[45]. UN Human Rights Experts Urge Probe into Recent Violence Amid Venezuelan Protests, UN News Centre (Mar. 6, 2014), http://www.un.org/apps/news/story.asp?NewsID=47287&Cr=protest&Cr1=#.Ux3SveewKes.
[46]. UN’s Ban Ki-moon Urges Venezuela to Hear Protestors’ Demands, BBC News (Mar. 3, 2014, 6:46 PM), http://www.bbc.com/news/world-latin-america-26424779.
[47]. Maye Primera, La soledad de Venezuela, El Pais (Feb. 14, 2014), http://internacional.elpais.com/internacional/2014/02/14/actualidad/1392411720_214693.html.
[48]. ONU recibe nuevas denuncias de torturas en Venezuela, El Universal (Mar. 10, 2014, 11:49 PM), http://www.eluniversal.com/nacional-y-politica/protestas-en-venezuela/
140310/onu-recibe-nuevas-denuncias-de-torturas-en-venezuela.
[49]. Id. [50]. Piden a la Haya que investigue a Maduro por crímenes de lesa humanidad, VenteVenezuela (April 8, 2014), http://www.ventevenezuela.org/piden-a-la-haya-que- investigue-a-maduro-por-crimenes-de-lesa-humanidad.
[51]. Mark P. Sullivan, Cong. Research Serv. R. 43239, Venezuela: Background and U.S. Relations 15 (Oct. 2, 2014), available at https://www.fas.org/sgp/crs/row/R43239.pdf; see also European Parliament Resolution on the Situation in Venezuela, 2015/2582 (RSP) (Nov. 3, 2015), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//TEXT+MOTION+P8-RC-2015-0236+0+DOC+XML+V0//ES&language=es#_part1_ref3; Cancillería chilena rechaza violencia en Venezuela y expresa condolencias al pueblo y Gobierno de ese país, DiarioUChile (Feb. 15, 2014, 8:35 PM), http://radio.uchile.cl/2014/02/15/canciller%C3%ADa-chilena-rechaza-violencia-en-venezuela-y- expresa-condolencias-al-pueblo-y-gobierno-de-ese-pa%C3%Ads; Antonio Maestre, Venezuela y la preocupación por los derechos humanos del PP, LaMarea (Mar. 17, 2015, 12:10), http://www.lamarea.com/2015/03/17/venezuela-y-la-preocupacion-por-los-derechos-humanos- del-pp/.
[52]. Venezuela: Peaceful and Respectful Dialogue Only Way Out of the Crisis, MEPs say, European Parliament News (Feb. 27, 2014), http://www.europarl.europa.eu/news/en/news- room/content/20140225IPR36958/html/Venezuela-peaceful-and-respectful-dialogue-only-way- out-of-the-crisis-MEPs-say.
[53]. Id.
[54]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[55]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, arts. 7, 53. (Venez.).
[56]. Id. at art. 52.
[57]. Id. at art. 57.
[58]. Id. at art. 350.
[59]. Id. at art. 25.
[60]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 25 (Venez.).
[61]. See e.g., Constitución venezolana ampara protestas de la oposición, TV Net Media Group Blog (Apr. 4, 2014), http://tvnet.us/constitucion-venezolana-ampara-protestas-de-la- oposicion/; Oscar Medina, Una violación más de la Constitución – Adiós al Artículo 44, El Weblog de Infragon Blog, (Mar. 2, 2014, 8:40 AM), https://infragon.wordpress.com/2014/03/03/una-violacion-mas-de-la-constitucion-adios-al- articulo-44/. [62]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 23. (Venez.).
[63]. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/RES/2200(XXI) (Dec. 19, 1966), available at https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf.
[64]. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, available at https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187.pdf [hereinafter, “ICC Statute”].
[65]. Member States: Venezuela, Organization of America, http://www.oas.org
/en/member_states/member_state.asp?sCode=VEN (last visited Mar. 12, 2015).
[66]. Venezuela’s Withdrawal from Regional Human Rights Instrument is a Serious Setback, Amnesty International (Sept. 6, 2014), http://www.amnesty.ca/news/news- releases/venezuela%E2%80%99s-withdrawal-from-regional-human-rights-instrument-is-a- serious-setback.
[67]. Id.
[68]. Robert Cryer, et al., An Introduction to International Criminal Law and Procedure 11 (2d ed., Cambridge University Press 2010).
[69]. Id. at 234-35.
[70]. Id. at 233.
[71]. Cassese, supra note 8, at 92.
[72]. William Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26 Fordham Int’l L.J. 907, 923 (2002) (citing to ICC Statute, supra note 64, at 7(1)).
[73]. Mba Chidi Nmaju, Violence in Kenya: Any Role for the ICC in the Quest for Accountability?, 3 Afr. J. Legal Stud. 78, 82 (2009) (citing to the ICC Statute, supra note 64).
[74]. Cassese, supra note 8, at 100.
[75]. Id.
[76]. Among these, National Security Forces, in particular, are the Bolivian National Guard (“GNB”), the Body of Scientific, Penal and Criminal Investigations (“CICPC”), the Bolivian National Intelligence Service (“SEBIN”), and the Milicias Bolivarianas. [77]. Manuel Felipe Sierra, Los colectivos están mejor armados que las policías, actúan contra personas, la propiedad privada, propician saqueos: El ABC de Tamara Sujú – Abogada del Foro Penal Venezolano, ABC de la Semana (Mar. 13, 2014), http://www.abcdelasemana.com/2014/03/13/el-abc-de-tamara-suju-abogada-del-foro-penal- venezolano/.
[78]. Id. (the list includes, but is not limited to, the General Justo Noguera Pietri, Commander-in-Chief of the GNB; the General Orlando Alexis, Second-in-Command of the GNB; the General Alexis Marquez Jaimes, General Inspectors of the GNB; the General Antonio Benavides Torres, Strategic Director of the GNB; Manuel Bernal, ex-Director of the SEBIN; and José Humberto Ramírez Márquez, Director of the CICPC).
[79]. ICC Statute, supra note 64, at art. 28.
[80]. M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 526-27 (Cambridge University Press 2011).
[81]. Id. at 528-29.
[82]. Schabas, supra note 72, at 914-15.
[83]. Bassiouni, supra note 80, at 40.
[84]. Venezuela Motorcycle Gang Videos Show Terror and Violence in Support of Maduro, The World Post (Feb. 25, 2014), http://www.huffingtonpost.com/2014/02/25/venezuela-motorcycle-gangs-vidoes- colectivos_n_4855640.html.
[85]. Bassiouni, supra note 80, at 40-41.
[86]. International Legal Protection of Human Rights in Armed Conflict, at 23-27, U.N. Doc. HR/PUB/11/01, U.N. Sales No. E.11.XIV.3 (2011), available at http://www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf.
[87]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch (Feb. 21, 2014), http://www.hrw.org/news/2014/02/21/venezuela-violence-against-protesters-journalists [hereinafter Venezuela: Violence against Protestors, Journalists].
[88]. See, e.g., El material de Palaima nunca llegó a la planta televisiva, CNN Español (April 3, 2014), http://cnnespanol.cnn.com/2014/04/03/globovision-el-material-de-palaima- nunca-llego-a-la-planta-televisiva/ (video posted by CNN Español showing National Guards and presumed Colectivos acting in collaboration against protestors).
[89]. Venezuela: Así actúan Tupamaros con protección del chavismo, Peru21.pe (Feb. 22, 2014, 12:55 PM), http://peru21.pe/mundo/venezuela-asi-actuan-tupamaros-proteccion-chavismo- video-2171222. [90]. A Tale of Two Prisoners, The Economist (Feb. 22, 2014), available at http://www.economist.com/news/americas/21596945-after-opposition-leader-arrested-violence- continues-unabated-tale-two-prisoners.
[91]. Id.; see also Video que llevó María Corina Machado para mostrar en la OEA, El Universal (Mar. 21, 2014, 4:42 PM), http://www.eluniversal.com/nacional-y-politica/protestas- en-venezuela/140321/video-que-llevo-maria-corina-machado-para-mostrar-en-la-oea (video presented by congresswoman Maria Corina Machado to the OAS).
[92]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[93]. Vargas, supra note 33.
[94]. International Legal Protection of Human Rights in Armed Conflict, supra note 86, at 23-27.
[95]. The list of officials alleged to have ordered, encouraged and/or incited the Colectivos to brutally and inhumanely attack the anti-government protesters include, but are not limited to: Nicolas Maduro, President of Venezuela; Diosdado Cabello, President of the National Assembly; Iris Valera, Minister of Popular Power for the Prison Service; Francisco Ameliach, Governor of Carabobo State; Tarek El Aissami, Governor of Aragua State. See e.g., Grupos armados terminan con protestas estudiantiles en Venezuela, El Economista (Mar. 28, 2014, 3:30 PM), http://eleconomista.com.mx/internacional/2014/03/28/grupos-armados-terminan-protestas- estudiantiles-venezuela; Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica (Mar. 19, 2014), http://www.alianzaparlamentaria.com/?p=282; At Least Eight People Shot in Protests in Valencia, North Venezuela, El Universal (Feb. 19, 2014), http://www.eluniversal.com/nacional- y-politica/140219/at-least-eight-people-shot-in-protests-in-valencia-north-venezuela; Turning a Corner: Who Ordered Protesters Shot in Venezuela?, Tenacitas Blog (Mar. 24, 2104), http://tenacitas-intl.com/turning-corner-ordered-protesters-shot-venezuela/; Valera: Colectivos son el pilar para la defensa de la patria, El Universal (Feb. 15, 2014, 1:39 PM), http://www.eluniversal.com/nacional-y-politica/140215/varela-colectivos-son-el-pilar-para-la- defensa-de-la-patria.
[96]. See Venezuela’s Human Rights Obligations, supra part III.
[97]. Cassese, supra note 8, at 180-181.
[98]. Schabas, supra note 72, at 922.
[99]. Bassiouni, supra note 80, at 29.
[100]. Ley Organica de la Fuerza Armada Nacional [National Armed Forces Statute], art. 7, (Venez.). [101]. Id.
[102]. Id. at art. 6.
[103]. A Tale of Two Prisoners, The Economist, supra note 70.
[104]. Maduro: Candelita que se prenda, candelita que se apaga, El Nacional (Mar. 6, 2014, 9:31 PM), http://www.el-nacional.com/politica/Maduro-mataron- guarimberos_0_367763465.html.
[105]. Id.
[106]. Grupos armados terminan con protestas estudiantiles en Venezuela, El Economista (Mar. 28, 2014, 3:30 PM), http://eleconomista.com.mx/internacional/
2014/03/28/grupos-armados-terminan-protestas-estudiantiles-venezuela.
[107]. Daniel Lozano, Contraataque fulminante de los paramilitares del chavismo, El Mundo (Mar. 7, 2014, 11:28 AM), http://www.elmundo.es/internacional/2014/03/06/5318cdc222601d5b6e8b4587.html [hereinafter Lozano, Contraataque fulminante].
[108]. Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica (Mar. 19, 2014), http://www.alianzaparlamentaria.com/?p=282.
[109]. Lozano, Contraataque fulminante, supra note 107.
[110]. Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica, supra note 108.
[111]. Diosdado Cabello confirma la muerte de un miembro de colectivos del 23 de Enero y pide calma, YouTube.com (Feb. 12, 2014), https://www.youtube.com/watch?v=XL_kI0NZGVQ (amateur video posted on YouTube showing VTVCanal8 live news feed).
[112]. At Least Eight People Shot in Protests in Valencia, North Venezuela, El Universal (Feb. 19, 2014), http://www.eluniversal.com/nacional-y-politica/140219/at-least-eight-people- shot-in-protests-in-valencia-north-venezuela.
[113]. Id.
[114]. Fernando del Rincón de CNN en Español MIENTE sobre mensaje de Ameliach, YouTube.com (Feb.19, 2014), http://www.youtube.com/watch?v=WWEbSe9xh5c (last visited Mar. 13, 2015) (amateur video posted on YouTube showing CNN Español live news feed of Francisco Ameliach’s Twitter feed). [115]. Brutal agresion policia Aragua y Colectivos le caen a palo a un estudiante, CNN Español (Mar. 20, 2014), http://ireport.cnn.com/docs/DOC-1109798.
[116]. Id.
[117]. Investigan muerte de hombre de origen canario en protestas Venezuela, El Universal (Feb. 25, 2014), http://www.eluniversal.com/nacional-y-politica/protestas-en- venezuela/140225/investigan-muerte-de-hombre-de-origen-canario-en-protestas-venezuela.
[118]. Cryer, supra note 68, at 236.
[119]. Id.
[120]. Including in the municipalities of Baruta, El Hatillo, Chacao, and Sucre in Caracas, in some parts of Tachira state, where protests would be more widespread, and in the states of Merida, Carabobo, Aragua, Lara, Barinas, Miranda, Zulia, and Yaracuy.
[121]. Krauze, supra note 4.
[122]. Id.
[123]. Cryer, supra note 68, at 236.
[124]. Translation: The Judgment Against Fujimori for Human Rights Violations, 25 Am. U. Int’l. L. Rev. 657, 800-01 (2010) (trans. Aimee Sullivan) quoting Kai Ambos, Estuios de Derecho Penal Internacional 133-35 (2007).
[125]. Denuncian la existencia de un nuevo “patrón” para reprimir: Señalan actuación “conjunta” de bandas armadas y efectivos militares, El Universal (Feb. 23, 2014, 12:00 AM), http://www.eluniversal.com/nacional-y-politica/140223/denuncian-la-existencia-de-un-nuevo- patron-para-reprimir.
[126]. Maolis Castro & Francis Custode, Colectivos y guardias atacaron edificios en Caracas, El Nacional (Feb. 19, 2014, 11:15 PM), http://www.el-nacional.com/sucesos/Atacan- edificios-Caracas_0_358764363.html.
[127]. Noche de ataques a residencias vivieron vecinos de Santa Fe, El Universal (Apr. 24, 2014), http://www.eluniversal.com/caracas/140424/noche-de-ataques-a-residencias-vivieron- vecinos-de-santa-fe.
[128]. See Observatorio Iberoamericano de la Democracia, Informe sobre las Violaciones Generalizadas y Sistemáticas de Derechos Humanos en Venezuela: La Masacre Del 12 De Febrero o del DíA de la Juventud 32 (Buenos Aires, Mar. 20, 2014), available at http://www.ventevenezuela.org/wp-inter/uploads/2014/04/250384125DENUNCIA.pdf. [129]. Capriles denunció que ya hay más de 500 casos de represión brutal, Infobae (Feb. 23, 2014), http://www.infobae.com/2014/02/23/1545674-capriles-denuncio-que-ya-hay-mas- 500-casos-represion-brutal (it should be noted that the use of firearms for the control and dispersion of massive public has now been officially authorized by the Venezuelan government. See Edgar Lopez, Autorizan uso de armas mortales contra protestas, El Nacional (Mar. 20, 2015), available at http://www.el-nacional.com/politica/Autorizan-uso-armas-mortales- protestas_0_564543734.html).
[130]. Venezuelan 14-Year-Old Shot Dead During Anti-Government Protest, The Guardian, (Feb. 24, 2015, 5:23 PM), http://www.theguardian.com/world/2015/feb/24/venezuelan-14-year- old-shot-dead-anti-government-protest; http://www.buenosairesherald.com/article/152509/venezuelan-beauty-queen-killed-in-protest- shot-in-the-head; Venezuelan Beauty Queen Killed in Protest, Shot in Head, Buenos Aires Herald (Feb. 19, 2014), http://www.buenosairesherald.com/article/152509/venezuelan-beauty- queen-killed-in-protest-shot-in-the-head; Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[131]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[132]. Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, ¶ 396 (Sept. 30, 2008), http://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.
[133]. Cryer, supra note 68, at 236-77.
[134]. Id. at 237.
[135]. Id.
[136]. William Neuman, In Venezuela, Protestors Point to Their Scars, N.Y. Times, Apr. 28, 2014, available at http://www.nytimes.com/2014/04/28/world/americas/in-venezuela- protesters-point-to-their-scars.html?_r=1.
[137]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[138]. Id.
[139]. Venezuela Opposition Marches Keep Up Momentum Despite Carnival Holiday, CBC News (Mar. 2, 2014, 10:25 PM), http://www.cbc.ca/news/world/venezuela-opposition-marches- keep-up-momentum-despite-carnival-holiday-1.2557352.
[140]. Id.
[141]. Id.; see also Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87. [142]. Cryer, supra note 68, at 241.
[143]. Id.
[144]. What Lies Behind the Protests in Venezuela?, BBC News, supra note 24.
[145]. Id.
[146]. Cassese, supra note 8, at 104.
[147]. See e.g., Constitución de la República Bolivariana de Venezuela [Constitution] 1999, arts. 27, 29, 46. (Venez.).; Código Penal de Venezuela [Crim. Code], art. 167, 175, 181, 183, 407, 411, 412 (Venez.).
[148]. Chile Eboe-Osuji, Crimes Against Humanity: Directing Attacks Against a Civilian Population, 2 Afr. J. Legal Stud. 118, 124 (2008).
[149]. Ewan Robertson, Where is Venezuela’s Political Violence Coming From? A Complete List of Fatalities from the Disturbances, Venezuelanalysis.com (Apr. 5, 2014), http://venezuelanalysis.com/analysis/10580.
[150]. Thabata Molina, Who Died in Venezuela’s 2014 Protests?, PanamPost (Feb. 11, 2015), http://panampost.com/thabata-molina/2015/02/11/who-died-in-venezuelas-2014-protests/; see also, Bassil Da Costa, el estudiante asesinado tras recibir disparo en protesta opositora, Ultimas Noticias (Feb. 13, 2014, 10:00 AM), http://www.ultimasnoticias.com.ve/noticias/actualidad/sucesos/fotos—-bassil-da-costa-el- estudiante-asesinado-tr.aspx.
[151]. Video: Uniformados y civiles dispararon en Candelaria el 12F, Ultimas Noticias (Feb. 19, 2014), http://www.ultimasnoticias.com.ve/noticias/actualidad/investigacion/video—- uniformados-y-civiles-dispararon-en-candel.aspx; see also William Neuman, Venezuela is Divided Even on its Death Toll, N.Y. Times (Feb. 23, 2014), available at http://www.nytimes.com/2014/02/24/world/americas/venezuela-is-divided-even-on-its-death- toll.html?ref=venezuela.
[152]. Video: Uniformados y civiles dispararon en Candelaria el 12F, supra note 151.
[153]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[154]. Video: Uniformados y civiles dispararon en Candelaria el 12F, supra note 151.
[155]. Amnistia Internacional, supra note 43, at 11; see also Neuman, supra note 151.
[156]. Tensión en Venezuela #24F: minuto a minute, CNN Español (Feb. 23, 2014), http://cnnespanol.cnn.com/2014/02/24/venezuela-24f-minuto-a-minuto/. [157]. Murió la estudiante Geraldine Moreno, El Universal (Feb. 22, 2014), http://www.eluniversal.com/nacional-y-politica/140222/murio-la-estudiante-geraldine-moreno.
[158]. Id.
[159]. En Conclusiones investigan la muerte de José Alejandro Márquez en Venezuela, CNN Español (Feb. 28, 2014), http://cnnespanol.cnn.com/2014/02/28/conclusiones-investiga-la- muerte-de-jose-alejandro-marquez-en-venezuela/ [hereinafter En Conclusions investigan]; see also Amnistia Internacional, supra note 43, at 11.
[160]. En Conclusiones investigan, CNN Español, supra note 159.
[161]. Id.
[162]. Id.
[163]. Amnistia Internacional, supra note 43, at 11.
[164]. Compare Roberto Redman, el estudiante que tuiteó su muerte en Caracas, UnivisionNoticias (Feb. 13, 2014), http://noticias.univision.com/article/1850697/2014-02- 13/america-latina/venezuela/roberto-redman-el-estudiante-que-tuiteo-su-muerte-en-caracas; with William Neuman, Venezuela Accuses Intelligence Officers of Murdering, N.Y. Times (Feb. 26, 2014), available at http://www.nytimes.com/2014/02/27/world/americas/venezuela-accuses- intelligence-officers-of-murdering-2.html?_r=1.
[165]. Herido relata como fue la muerte de Roberto Redman, El Nacional (Feb. 13, 2014), http://www.el-nacional.com/sucesos/Herido-relata-muerte-Roberto-Redman_3_355194479.html.
[166]. Roberto Redman, el estudiante que tuiteó su muerte en Caracas, UnivisionNoticias (Feb. 13, 2014), http://noticias.univision.com/article/1850697/2014-02-13/america- latina/venezuela/roberto-redman-el-estudiante-que-tuiteo-su-muerte-en-caracas.
[167]. Donna Sawyer, Desperate Dash to Save Dying Beauty Queen: Venezuelan Woman, 22, Dies Hours After Being Gunned Down on the Street, Daily Mail (Feb. 19, 2014, 11:25AM), http://www.dailymail.co.uk/news/article-2562670/Venezuela-awaits-fate-jailed-opposition- leader.html.
[168]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[169]. Venezuelan Student Leader Shot Dead at Protest, BBC News (Mar. 11, 2014), http://www.bbc.com/news/world-latin-america-26525145.
[170]. Id.
[171]. Robertson, supra note 149. [172]. Id.
[173]. El hombre que murió ayer en Cagua por impacto de bala solo había salido a ver la protesta, Noticias24 (Feb. 25, 2014), http://www.noticias24.com/venezuela/noticia/224400/fallecido-en-aragua-recibio-impacto-de- bala-por-asomarse-a-ver-la-protesta/.
[174]. Id.
[175]. Id.
[176]. Cryer, supra note 68, at 245-46.
[177]. Cassese, supra note 8, at 94.
[178]. Cryer, supra note 68, at 250; ICC Statute, supra note 64, at art. 7.
[179]. Cryer, supra note 68, at 250.
[180]. Id. at 182-83.
[181]. Resumen de detenidos, Foro Penal Venezolano, http://www.foropenal.com (at the time this article was written, 422 cases were unverified. However, in 2015, the Venezuelan Attorney General, Luisa Ortega Diaz, confirmed that there were in total 3,351 detainees during the protest, from which 41 remain imprisoned. Venezuela: 41 personas siguen detenidas por protestas de 2014, según fiscalía, BBC News (Feb. 10, 2015), http://www.bbc.co.uk/mundo/ultimas_noticias/2015/02/150210_venezuela_protestas_detenidos_ ac).
[182]. Venezuela Unrest: Pillay Urges Respect for Human Rights, and Halt to Inflammatory Rhetoric, United Nations Human Rights, Office of the High Comm’r of Human Rights (Feb. 28, 2014), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14292&LangID=E.
[183]. Venezuela/Demonstrations: UN Experts Ask for Clarification on Alleged Arbitrary Detentions and Use of Violence, United Nations Human Rights, Office of the High Comm’r of Human Rights (Mar. 6, 2014), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14318&.
[184]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[185]. Id.
[186]. Mariano Castillo et al., Venezuelan Opposition Leader Lopez Faces Court Behind Bars, CNN (Feb. 19, 2014), http://www.cnn.com/2014/02/19/world/americas/venezuela- protests/index.html.
[187]. Diaz-Struck & Miroff, supra note 15.
[188]. William Neuman, Crude Weapons Help Fuel Unrest in Bastion of Venezuelan Opposition, N.Y. Times (Feb. 25, 2014), available at http://www.nytimes.com/2014/02/26/world/americas/crude-weapons-help-fuel-unrest-in-bastion- of-venezuelan-opposition.html?src=rechp&_r=0.
[189]. Castillo et al., supra note 186.
[190]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 44 (Venez.).
[191]. Human Rights Watch, Tightening the Grip, supra note 5, at 42.
[192]. Amnistía Internacional exige la liberación de Leopoldo López, Infobae (Jan. 16, 2015), http://www.infobae.com/2015/01/16/1621252-amnistia-internacional-exige-la-liberacion- leopoldo-lopez.
[193]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 49. (Venez.).
[194]. Case of Lopez Mendoza v. Venezuela, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 233 (Sept. 1, 2011), available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_233_ing.pdf.
[195]. Id. at ¶¶ 181-85.
[196]. Venezuela: Trial of Opposition Leader an Affront to Justice and Free Assembly, Amnesty International (Feb, 19, 2014), http://www.amnesty.ca/news/news-releases/venezuela- trial-of-opposition-leader-an-affront-to-justice-and-free-assembly.
[197]. Id.
[198]. Juan Francisco Alonso, El TSJ destituyó al alcalde Ceballos y lo condenó a 12 meses de cárcel, El Universal (Mar. 25, 2014, 9:11 PM), http://www.eluniversal.com/nacional-y- politica/protestas-en-venezuela/140325/el-tsj-destituyo-al-alcalde-ceballos-y-lo-condeno-a-12- meses-de-carcel.
[199]. Id.
[200]. Id.
[201]. Id.; see also Venezuela: HRF Condemns Ongoing Crackdown on Increasingly Disenfranchised Opposition, Human Rights Foundation (Apr. 2, 2014), http://humanrightsfoundation.org/news/venezuela-hrf-condemns-ongoing-crackdown-on- increasingly-disenfranchised-opposition-00370.
[202]. TSJ no publicó sentencia sobre caso Scarano y Lucchese en plazo previsto, La Patilla, (Apr. 2, 2014, 11:32 AM), http://www.lapatilla.com/site/2014/04/02/tsj-no-publico- sentencia-sobre-caso-scarano-y-lucchese-en-plazo-previsto/.
[203]. Id.
[204]. Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.
[205]. Jose Miguel Vivanco, The Criminal Prosecution of Leopoldo López, Human Rights Watch (Mar. 12, 2014), http://www.hrw.org/news/2014/03/12/criminal-prosecution-leopoldo- lopez.
[206]. Castillo et al, supra note 186.
[207]. Human Rights Foundation, supra note 201.
[208]. Fotógrafa italiana detenida por la GNB en Altamira, El Nacional (Feb. 28, 2014, 10:26 PM), available at http://www.el-nacional.com/sucesos/Fotografa-italiana-detenida-GNB- Altamira_0_364163851.html.
[209]. Venezuela: la Guardia Nacional golpeó y arrestó a periodistas, Infobae (Mar. 1, 2014), http://www.infobae.com/2014/03/01/1547183-venezuela-la-guardia-nacional-golpeo-y- arresto-periodistas [hereinafter Venezuela: la Guardia Nacional].
[210]. Tatiana Ferrin, En libertad periodista italiana detenida en Caracas en medio de las protestas, Miami Diario (Mar. 2, 2014), http://www.miamidiario.com/internacional/venezuela/caracas/detenidos/protestas/nicolas- maduro/francesca-commissari/320879.
[211]. Venezuela: la Guardia Nacional, Infobae, supra note 209.
[212]. Venezuelan Journalists Detained Covering Protests, Committee to Protect Journalists (Mar. 26, 2014), http://cpj.org/2014/03/venezuelan-journalists-attacked-detained-covering.php.
[213]. Id.
[214]. Id.
[215]. Espacio Público/Venezuela: 12 de Febrero al 12 de Marzo de 2014, los trances de la libertad de expression, Provea (Mar. 14, 2014), http://www.derechos.org.ve/2014/03/14/espacio- publico-venezuela-12-de-febrero-al-12-de-marzo-de-2014-los-trances-de-la-libertad-de- expresion/. [216]. Amnistia Internacional, supra note 43, at 13.
[217]. Id.
[218]. Inaceptable: Fuerzas de represión golpean y detienen a joven especial, La Patilla (Mar. 15, 2014), http://www.lapatilla.com/site/2014/03/15/inaceptable-fuerzas-de-represion- golpean-y-detienen-a-joven-especial-fotos/.
[219]. Id.
[220]. Amnistia Internacional, supra note 43, at 9.
[221]. Id.
[222]. Id.
[223]. Id.
[224]. Id.
[225]. Cryer, supra note 68, at 251.
[226]. ICC Statute, supra note 64, article 7(2)(e).
[227]. Amnistia Internacional, supra note 43, at 6.
[228]. UN News Centre, supra note 45.
[229]. Daniel Lozano, Violados por la GN, Tal Cual (Feb. 19, 2014), http://www.talcualdigital.com/Nota/visor.aspx?id=99156&tipo=REP [hereinafter Lozano, Violados por la GN].
[230]. Amnistia Internacional, supra note 43, at 12.
[231]. Id.
[232]. Cryer, supra note 68, at 253.
[233]. Lozano, Violados por la GN, supra note 229.
[234]. Id.
[235]. Amnistia Internacional, supra note 43, at 10.
[236]. Daniel Pardo, Las denuncias de maltratos en las protestas de Venezuela, BBC News (Feb. 25, 2014), http://www.bbc.co.uk/mundo/noticias/2014/02/140218_venezuela_protestas_denuncias_dp.shtml .
[237]. Amnistia Internacional, supra note 43, at 10-11.
[238]. Id. at 10.
[239]. Id.
[240]. Id. at 11.
[241]. Video: Salvaje y despiadado el castigo a una manifestante, Diario Las Americas (Feb. 27, 2014), http://173.246.50.37/america-latina/video-salvaje-y-despiadado-castigo- manifestante-valencia-venezuela.html.
[242]. Tortura y humillación reciben estudiantes detenidos por parte de la Guardia Nacional, RunRunes (Feb. 14, 2014), http://runrun.es/inbox/102772/la-patilla-tortura-y- humillacion-reciben-estudiantes-detenidos-por-parte-de-la-guardia-nacional.html.
[243]. Observatorio Iberoamericano de la Democracia, supra note 129, at 16.
[244]. Amnistia Internacional, supra note 43, at 10.
[245]. Pardo, supra note 236.
[246]. Tratos inhumanos, Tal Cual (Apr. 6, 2014), http://www.talcualdigital.com/nota/visor.aspx?id=101204&tipo=AVA.
[247]. Amnistia Internacional, supra note 43, at 3-4.
[248]. Cryer, supra note 68, at 251-53.
[249]. Id. at 252.
[250]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[251]. ICC Statute, supra note 64, princ. 7(1)(k).
[252]. See Policia de Aragua Venezuela, golpeando estudiantes hasta la muerte!!!, YouTube.com (Feb. 15, 2014), http://www.youtube.com/watch?v=KztbsT6jgLo&desktop_uri=%2Fwatch%3Fv%3DKztbsT6jg Lo&app=desktop (amateur video filmed by civilian and posted on YouTube). [253]. Leonor Suarez, Venezuela anoche no durmio entre gases y disparos, Univision Noticias (Feb. 20, 2014), http://www.youtube.com/watch?v=y2s90bAHF7M(YouTube.com channel).
[254]. Id.; see also José Rafael Mata, Joven fue herido por la Guardia Nacional en la Panteón, Ultimas Noticias (Feb. 20, 2014), http://www.ultimasnoticias.com.ve/noticias/actualidad/politica/joven-fue-herido-por-la-guardia- nacional-en-la-pan.aspx.
[255]. Amnistia Internacional, supra note 43, at 12.
[256]. Id.
[257]. Human Rights Watch, Punished for Protesting: Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System 69-70 (2014), available at http://www.hrw.org/sites/default/files/reports/venezuela0514_ForUpload_0.pdf.
[258]. See United Nations Human Rights, Office of the High Comm’r of Human Rights, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, princ. 11(e), http://www.ohchr.org/Documents/ProfessionalInterest/firearms.pdf [hereinafter Basic Principles on the Use of Force].
[259]. Ya no son perdigones: GNB dispara metras a manifestantes, La Patilla (Feb. 24, 2014), http://www.lapatilla.com/site/2014/02/24/ya-no-son-perdigones-gnb-dispara-metras-a- manifestantes-imagenes-fuertes/.
[260]. Lorena Evelyn Arráiz, Tres heridos de bala durante protestas en San Cristóbal, El Universal (Feb. 28, 2014), http://m.eluniversal.com/nacional-y-politica/140228/tres-heridos-de- bala-durante-protestas-en-san-cristobal.
[261]. Id.
[262]. 27F Herido de Bala (metra) joven barinés quien fue intervenido y extraído parte del intestine, Venezuela Awareness (Feb. 28, 2014), http://www.venezuelaawareness.com/2014/02/27f-herido-de-bala-metra-joven-barines-quien- fue-intervenido-y-extraido-parte-del-intestino/.
[263]. See Tanqueta hiere y detiene a Jeremias Jimenez en Urb. Los Cardones, YouTube.com (Apr. 15, 2014), https://www.youtube.com/watch?v=gQN4Qv_PCAc (amateur video posted on YouTube).
[264]. Amnistia Internacional, supra note 43, at 7.
[265]. El Universal, supra note 91. [266]. For examples of tear gas being used on or near children, see William Neuman, In Venezuela, Protest Ranks Grow Broader, N.Y. Times (Feb. 24, 2014), available at http://www.nytimes.com/2014/02/25/world/americas/in-venezuela-middle-class-joins- protests.html.
[267]. Amnistia Internacional, supra note 43, at 7.
[268]. Violence Escalates as Protests Continue in Venezuela, Global Voices (Feb. 20, 2014), http://globalvoicesonline.org/2014/02/20/violence-escalates-as-protests-continue-in- venezuela/.
[269]. Andrea Montilla, Casi pierde un ojo por una bomba lacrimógena, El Nacional (Feb. 20, 2014), http://www.el-nacional.com/sucesos/pierde-ojo-bomba- lacrimogena_0_359364255.html.
[270]. Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.
[271]. United Nations Human Rights, Basic Principles on the Use of Force, supra note 258, princ. 9.
[272]. Id., princ. 11(e).
[273]. Id., princ. 14.
[274]. Bassiouni, supra note 80, at 410.
[275]. ICC Statute, supra note 64, preamble.
[276]. Id., art. 1, 17.
[277]. Cryer, supra note 68, at 153.
[278]. See Human Rights Watch, Tightening The Grip, supra note 5.
[279]. ICC Statute, supra note 64, art. 17(2).
[280]. Human Rights Watch, Tightening The Grip, supra note 5.
[281]. Id.
[282]. Id.
[283]. Id.
[284]. Id. [285]. David Smilde & Hugo Pérez Hernaíz, Venezuela’s Withdrawal from the Inter- American Court of Human Rights, Venezuelan Politics and Human Rights (Apr. 2, 2012), http://venezuelablog.tumblr.com/post/28591587859/venezuelas-withdrawal-from-the-inter- american-court-.
[286]. Human Rights Watch, Tightening The Grip, supra note 5.
[287]. Id.
[288]. Id.
[289]. Id.
[290]. Id.
[291]. Human Rights Watch, Tightening The Grip, supra note 5.
[292]. Id.
[293]. Id.
[294]. Corruption Perceptions Index 2013, Transparency International, http://www.transparency.org/cpi2013/results (last visited Mar. 22, 2015).
[295]. Grace Jaramillo, How Chavez Planted the Seeds of Violence, The Globe and Mail (Feb. 27, 2014), available at http://www.theglobeandmail.com/globe-debate/how-chavez- planted-the-seeds-of-violence/article17124138/.
[296]. Fiscal: Quedan 41 personas detenidas por protestas de 2014, El Universal (Feb. 10, 2015), http://www.eluniversal.com/nacional-y-politica/150210/fiscal-quedan-41-personas- detenidas-por-protestas-de-2014.
[297]. 12F: Los asesinos Melvin Collazos y Jonathan Rodríguez del SEBIN, Reportero24 (Feb. 18, 2014), http://www.reportero24.com/2014/02/12f-los-asesinos-melvin-collazos-y- jonathan-rodriguez-del-sebin/.
[298]. Huyó presunto asesino de Bassil Dacosta y Juancho Montoya, Somos Noticias COL (Feb. 20, 2014), http://www.somosnoticiacol.com/site/huyo-presunto-asesino-de-bassil-dacosta- y-juancho-montoya/.
[299]. Id.
[300]. Luis Izquiel, Juicios sumarios, El Universal (Mar. 28, 2014), http://www.eluniversal.com/opinion/140328/juicios-sumarios. [301]. Daniel Wiser, Venezuela Ousts Leader of Opposition Protest Movement, The Washington Free Beacon (April 2, 2014), http://freebeacon.com/national- security/venezuela-ousts-leader-of-opposition-protest-movement/.
[302]. Constitución de la República Bolivariana de Venezuela [Constitution] 1999, preamble, art. 136 (Venez.).
[303]. Human Rights Watch, Tightening The Grip, supra note 5.
[304]. Javier Corrales, Why Venezuela’s Student Protesters Have Already Won, Wash. Post (Feb. 29, 2014), available at http://www.washingtonpost.com/opinions/why-venezuelas-student- protesters-have-already-won/2014/02/28/b4f94d2a-a009-11e3-9ba6-800d1192d08b_story.html.
[305]. Laura Meschino, Op-Ed: I Am Your Voice Venezuela!: #SOSVenezuela, Canadian Civil Liberties Association Rights Watch Blog (Feb. 21, 2014), http://www.ccla.org/rightswatch/2014/02/21/op-ed-i-am-your-voice-venezuela-sosvenezuela/.