THE REFUSAL OF HUMANITARIAN AID AS A CRIME AGAINST HUMANITY THE CASE OF VENEZUELA
By
Deligeorgi Maria
A THESIS
Presented to the Faculty of Law Of the University of Amsterdam In Partial Fulfillment of the Requirements
For the Master’s Degree in International and European Law
Master Track: Public International Law
Under the Supervision of Professor H.G. (Harmen) van der Wilt
Amsterdam, Netherlands 17 July 2017
2
Table of Contents
Acronyms and Abbreviations ... 3
Abstract ... 4
I. Introduction ... 5
II. Humanitarian Aid ... 8
1. The objective and origins of humanitarian aid ... 8
2. Defining humanitarian assistance ... 10
3. A right to humanitarian assistance? ... 13
III. The role of state consent in international humanitarian aid ... 17
1. Tensions between sovereignty and humanitarian aid ... 17
2. The duty to seek and not arbitrarily refuse humanitarian aid ... 18
IV. Crimes against humanity ... 21
1. Actus Reus ... 21
a) Widespread or systematic ... 22
b) Attack ... 25
c) Directed against any civilian population ... 27
2. Mens Rea ... 28
a) Intent to commit the underlying offence ... 28
b) Knowledge of the attack ... 29
3. Underlying acts constituting crimes against humanity ... 30
a) Murder ... 30
b) Extermination ... 31
c) Persecution ... 33
d) Other inhumane acts ... 34
V. Conclusion ... 38
3
Acronyms and Abbreviations
CAH CARE CESCR CLAP ECtHR HRC ICC ICCPR ICESCR ICJ ICRC ICTR ICTY IDRL IFRC IHL ILC IRC IRCRC MSF NGO OCHA OXFAM UDHR UN UNDRO UNRRA WHO
Crimes against Humanity
Cooperative for Assistance and Relief Everywhere Committee on Economic, Social and Cultural Rights Local Committees for Supply and Production
European Court of Human Rights Human Rights Committee
International Criminal Court
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
International Court of Justice
International Committee of Red Cross International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia International Disaster Response Laws, Rules and Principles International Federation of Red Cross
International Humanitarian Law International Law Commission International Rescue Committee
International Red Cross and Red Crescent Movement Médecins Sans Frontières
Non-Governmental Organization
United Nations Office for the Coordination of Humanitarian Affairs
Oxford Committee for Famine Relief Universal Declaration of Human Rights United Nations
United Nations Disaster Relief Office
United Nations Relief and Rehabilitation Administration World Health Organization
Abstract
In recent days, thousands of Venezuelans have been demonstrating on the streets against the government of Nicolás Maduro demanding, among others, the official opening to humanitarian aid. While Venezuela is going through one of the worst economic and humanitarian crisis it has faced in decades, Venezuelan government is unwilling to negotiate, continues to refuse humanitarian aid requests and blocks tons of medical and food supplies from entering Venezuela’s territory. This paper, which was initially prompted by Venezuela’s behaviour, examines whether the rejection of humanitarian aid can qualify as a crime against humanity in international criminal law and combines both descriptive and evaluative approaches. In the 2st Chapter, an analysis is carried out on the definition of humanitarian aid, its main objectives and the principles that humanitarian actors should respect in order to secure access to the affected population. An inquiry follows on whether victims of human-made disasters have a right to receive humanitarian assistance and whether the affected state is obliged to accept humanitarian relief. Chapter 3, therefore, considers the boundaries of an affected state’s sovereign discretion in accepting humanitarian assistance and confirms that the state has the duty to seek international aid and not arbitrary withhold its consent when is unable to autonomously meet its international obligations, deriving from the component rights of the affected persons. Finally, chapter 4 defines the objective and subjective elements of crimes against humanity along with specific acts which are committed as a result of the refusal and concludes that Venezuelan government, by rejecting offers of humanitarian aid, commits the crime against humanity of other inhumane acts in violation of Article 7(1)(k) of the Rome Statute.
5
I. Introduction
Venezuela is experiencing one of the worst humanitarian crisis it has ever faced, marked by severe shortages of food products and medical supplies which make it extremely difficult for Venezuelans to cover their basic needs.1 In the light of this humanitarian and economic crisis, the Venezuelan government’s response has been clearly inadequate. Denying that a crisis exists, it has neither implemented effective policies to alleviate human suffering nor made serious efforts to obtain international humanitarian aid.2 Instead it continuously blocks every external humanitarian offer, putting the lives and rights of millions of people at serious risk.3
Administration authorities have blocked until now several requests to import food and medicines. The first crucial aid-block took place when the government rejected a request to enroll Venezuela in a World Health Organization (WHO) program that provides medical supplies to countries in need.4 A few months later, the government blocked again an effort by the opposition-led National Assembly to introduce a law that would have opened the doors to international aid and would have authorized the import of medicines.5 Venezuelan government has also rejected tons of supplies offered by expats and neighbouring countries. Civil society groups find it also difficult to help the country, especially since 2010 when the Supreme Court ruled that individuals or organizations receiving foreign funding, with the purpose of being used against the Republic, could be prosecuted for treason.6 Likewise, international NGOs have repeatedly tried in the past to get an import permit to bring food and
1 Josefina Salomón ‘Venezuela in crisis: If you are lucky, you eat twice a day’ (2016) Amnesty International
<https://www.amnesty.org/en/latest/news/2016/06/venezuela-in-crisis-if-you-are-lucky-you-eat-twice-a-day/> accessed 4 July 2017.
2 —‘Venezuela’s Humanitarian Crisis, Severe Medical and Food Shortages, Inadequate and Repressive
Government Response’ (2016) Human Rights Watch <https://www.hrw.org/report/2016/10/24/venezuelas-humanitarian-crisis/severe-medical-and-food-shortages-inadequate-and> accessed 4 July 2017.
3 —‘Venezuela: Stubborn politics accelerate catastrophic humanitarian crisis’ (2016) Amnesty International
<https://www.amnesty.org/en/latest/news/2016/06/venezuela-stubborn-politics-accelerate-catastrophic-humanitarian-crisis/> accessed 4 July 2017.
4
Sofia Barbarani ‘Venezuelans forced to live off scraps, but aid shut out’ (2016) IRIN
<http://www.irinnews.org/feature/2016/11/22/venezuelans-forced-live-scraps-aid-shut-out?utm_source=IRIN+- +the+inside+story+on+emergencies&utm_campaign=57011903a4-RSS_EMAIL_ENGLISH_ALL&utm_medium=email&utm_term=0_d842d98289-57011903a4-15757289> accessed 4 July 2017. 5 ibid. 6 ibid.
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medicines into Venezuela, but every request for import paperwork was ignored.7 Actors of humanitarian enterprises have even reported threats and physical attacks against them.8
The government claims that is responding to food shortages itself through its Local Committees for Supply and Production (CLAP) system, which provides packages of food on a semi-regular basis to participants in the program. However, the CLAP system operates with little supervision, is highly politicized, and the provided supplies are less than adequate.9 Meanwhile, Venezuelans’ rights to health and food are being seriously undermined. According to the latest National Survey of Living Conditions (ENCOVI), the shortage of food products and medical supplies already exceeds 80% and in some areas, at certain times, has reached 100%.10 Venezuelans report losing weight unintentionally and the lack of essential medications have contributed to multiple deaths by normally treatable diseases as well as to the escalation of infant and maternal mortality rates.11
This is not the first time Venezuela refuses international assistance. After a devastating flood in 1999, the government rejected humanitarian aid from the U.S. navy, arguing that national sovereignty was at stake. Nowadays, President Nicolás Maduro seems to follow the path of his predecessor Hugo Chávez while trying to form a centralized and independent Venezuela. Inspired by Bolivarian ideologies and afraid of external interventions, he actively distances himself from the United States and other international powers, refusing and blocking any provided humanitarian aid.12 The combination of the economic crisis and his authoritarian governance has evoked major violations of human rights and a deeply polarized society.
Yet, the government of Venezuela is not the only country that refused to accept humanitarian aid in the face of a crisis. Turkey rejected all supplies from international aid workers after the earthquake in 2011, Chile allowed only limited assistance after its 2010 earthquake, Myanmar refused aid offers following the Cyclone Nargis in 2008, the United States declined most offers for help after Hurricane Katrina in 2005, as well as Thailand and
7
Manuel Rueda ‘Venezuela blocks humanitarian aid as crisis gets crazier’ (2016) FUSION
<http://fusion.net/venezuela-blocks-humanitarian-aid-as-crisis-gets-crazie-1793857192> accessed 4 July 2017.
8 Barbarani (n 4).
9 Human Rights Watch (n 2). 10
Frank Muci ‘ENCOVI 2016: A Tragedy in Numbers’ (2017) Caracas Chronicles
<https://www.caracaschronicles.com/2017/03/02/encovi-2016-tragedy-numbers/>; Luis Pedro España N, ‘ENCOVI’ (2016) IIES-UCAB <http://www.rectorado.usb.ve/vida/sites/default/files/encovi/2016/UCV-UCAB-USB.%20ENCOVI%202016.%20Pobreza.pdf> accessed 4 July 2017.
11 Human Rights Watch (n 2). 12
Sarah Stevens ‘Venezuela: When a crisis emerges, look the other way: Venezuela’s handling of the health care crisis’ (2017) Harvard International Review Vol 38(2) p. 6.
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India after the 2004 tsunami, and Japan after the Kobe earthquake in 1995.13 Each of these countries claimed that it was adequately addressing the crisis with its own means. However, most of the times, countries refuse offers of humanitarian aid either out of national pride denying its inability to respond adequately or out of fear of foreign interference in the internal affairs.
This paper, prompted by Venezuela’s behaviour, aims to discuss whether the refusal of humanitarian aid in human-made disasters can be considered as a crime against humanity (CAH) under the Rome Statute. The paper does not suggest creating a new category of crimes, but rather examines whether the denial of humanitarian assistance fits into the definition of existing ones. Before evaluating whether it can be considered as a CAH, is important to analyze the notion of humanitarian assistance and its main objectives as well as the duty of states to provide effective protection to the population on their territories and secure human dignity.
13
Charlotte Dany ‘Why is humanitarian aid rejected? Comparing the motives of autocratic and democratic states’ (paper presented at 7th ECPR General Conference September 2013) p. 3.
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II. Humanitarian Aid
1. The objective and origins of humanitarian aid
Humanitarian aid usually covers the material and logistic assistance to people in need, typically in response to humanitarian crises including human-made and natural disasters, armed conflicts and occupation. The primary objective of humanitarian assistance is to save lives, maintain human dignity, alleviate suffering in the aftermath of crises as well as to prevent and strengthen preparedness for when such situations occur.14 There are two interrelated types of humanitarian action: the one linked to armed conflicts and the other linked to natural and human-made disasters.
The roots of humanitarian aid can be found in multiple religious traditions such as the concept of Christian charity and the Islamic tradition of Zakat which were underlying the duty to assist others.15 These traditions had perhaps a great impact on the organization of humanitarian aid into the systems we see today.16 Humanitarian aid in cases of natural and human-made disasters, which has its roots in these altruistic beliefs, has been organized, for the first time, by states when famines in India and China broke out (1876).17 With regards to humanitarian aid in times of conflict, the laws of war, adopted in Greece and Rome, were among the first recorded principles related to the acceptable conduct in wartime.18 The anthropologist Jonathan Benthall divides the history of humanitarian assistance into the time “before Dunant” and “after Dunant”.19
Henry Dunant, a Swiss humanist, after witnessing the suffering of thousands of soldiers in the 1859 Battle of Solferino, he wrote the book ‘A Memory of Solferino’ proposing the formation of a permanent and neutral humanitarian organization that would provide relief to wounded soldiers and civilians in wartime and the adoption of international treaties which would address this protection.20 This book proved
14 —‘Principles and Good Practices of Humanitarian Donoship’ (2003) Good Humanitarian Donorship, principle
no 1 <https://www.ghdinitiative.org/ghd/gns/principles-good-practice-of-ghd/principles-good-practice-ghd.html> accessed 4 July 2017.
15 Heather Rysaback-Smith ‘History and Principles of Humanitarian Action’ (October 2015) Turkish Journal of
Emergency Medicine Vol 15, p. 5.
16 Davey E, Borton J, Foley M. ‘A history of the humanitarian system, Western origins and foundations’ (2013)
HPG Working Paper, Overseas Development Institute, p.5.
17 China Famine Relief Shanghai Committee, The great famine: Report of the Committee of the Chine Famine
Relief Fund (American Presbyterian Mission Press, 1879).
18 Rysaback-Smith (n 15).
19 Jonathan Benthall ‘Relief’ in Akira Iriye and Pierre-Yves Saunier, Basingstoke: Palgrave Macmillan (ed.), The
Palgrave Dictionary of Transnational History (2009) pp. 887-893.
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decisive in the founding of the International Committee of the Red Cross (ICRC) in 1863, one of the first international aid organizations.21
Nowadays, the various Geneva Conventions represent a contemporary accord on the appropriate treatment of civilians, wounded, sick and wartime prisoners. The work of the ICRC is based on the Geneva Conventions, which explicitly recognize the impartial, neutral and independent character of the organization. The ICRC offers assistance to victims of armed conflicts and other situations of violence and promotes the international humanitarian law and humanitarian principles.22 During the First and Second World Wars, the unprecedented deaths and injuries led to the emergence of other relief organizations such as the International Rescue Committee (IRC), OXFAM and CARE which were all established this period and continue to operate until now.23
After the Second World War the number of intergovernmental humanitarian organizations started growing with the creation of the United Nations (UN) and its operational relief agencies like the United Nations Relief and Rehabilitation Administration (UNRRA) and the United Nations Disaster Relief Office (UNDRO).24 The UN is considered to be the first permanent international organization assigned with protecting vulnerable people and maintaining peace.25 The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) was established pursuant to the 46/182 Resolution of the General Assembly,26 with the objective to coordinate the international humanitarian response to a crisis or emergency and to promote the humanitarian community’s compliance with the fundamental principles.27 The organized non-governmental humanitarian action started to develop since the 1980s with the rapid proliferation of global NGOs.28 The inability and unwillingness of states to comply with their obligations to protect people on their territories, contributed to the foundation of new humanitarian organizations and to the development of the international humanitarian system in total.29
21
—‘Discover the ICRC’ (2006) ICRC <http://www.icrc.org/eng/resources/documents/publication/p0790.htm> accessed 4 July 2017.
22 —‘The ICRC: Its mission and work’ (March 2009) ICRC pp. 4-6
<https://www.icrc.org/en/publication/0963-icrc-its-mission-and-work> accessed 4 July 2017.
23 Johannes Paulmann ‘Conjunctures in the history of international humanitarian aid during the twentieth
century’ (2014) Humanity Journal <http://humanityjournal.org/issue4-2/conjunctures-in-the-history-of-international-humanitarian-aid-during-the-twentieth-century/> accessed 4 July 2017.
24
ibid.
25 ibid.
26 UNGA Res 46/182 (19 December 1991) UN Doc A/RES/46/182.
27 —‘Who we are’ OCHA <http://www.unocha.org/about-us/who-we-are> accessed 4 July 2017. 28 Paulmann (n 23).
29
Paul Harvey ‘International Humanitarian Actors and Governments in areas of conflict: challenges, obligations and opportunities’ (2013) Overseas Development Institute 37 (S2) p. S155.
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2. Defining humanitarian assistance
The notion of humanitarian assistance has not been exhaustively defined by the international community due to its constant evolution.30 It usually addresses the protection of vulnerable communities and includes all supplies that are essential for the survival of the civilian population and those who no longer take part in hostilities.31 The assistance can take the form of providing food aid to address malnutrition and food insecurity, clean drinking water, basic medical care by sending medical emergency teams, organizing vaccination campaigns, providing shelter, clothing, money, hygiene facilities and sanitation to prevent the spread of diseases and help affected communities not only to recover but also to be better prepared in order to prevent future disasters.32
Indeed, the International Court of Justice (ICJ) defined the permissible humanitarian assistance as “the provision of food, clothing, medicine and other humanitarian assistance…” excluding “the provision of weapons, weapon systems, ammunition or other equipment, vehicles or material which can be used to inflict serious bodily harm or death”.33 Even though this observation was made in the context of an armed conflict, there is no objection regarding its application in natural disasters.34
In order for an assistance to be labeled as ‘‘humanitarian’’, it must be provided to a civilian population in accordance with the principles of humanity, impartiality, neutrality and independence.35 Humanity refers to the provision of aid wherever there is human suffering and to whomever may be in need, with the purpose to protect the life and health and secure human dignity.36 The principle of humanity is an expression of a “moral imperative that views the individual from an ontological perspective” and in which the only criterion for the distribution of aid is the need of suffering.37 Humanity is the core principle underlying the
30 —‘Humanitarian Action: A Quick Guide on the current situation of Humanitarian Relief, its Origins,
Stakeholders and Future’ (2013) European Universities on Professionalization on Humanitarian Action (EURPHA) p. 7 <http://euhap.eu/upload/2014/09/the-state-of-art-of-humanitarian-action-2013.pdf> accessed 4 July 2017.
31 Good Humanitarian Donorship (n 14) principle no 3. 32
ibid; EURPHA (n 30) p. 8.
33 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the United
States), Judgment (27 June 1986) ICJ Rep. Vol. 14 paras 97, 243.
34 Rohan. J. Hardcastle, Adrian. T. L. Chua ‘Humanitarian assistance: towards a right of access to victims of
natural disasters’ (1998) International Review of the Red Cross no 325 footnote 15.
35 UNGA Res 46/182 (n 26).
36 —‘OCHA on Message: Humanitarian Principles’ (2012) OCHA
<https://docs.unocha.org/sites/dms/Documents/OOM-humanitarianprinciples_eng_June12.pdf> accessed 4 July 2017.
37
Jérémie Labbé, Pascal Daudin ‘Applying The Humanitarian Principles: Reflecting on the experience of the International Committee of the Red Cross’ (2015) International Review of the Red Cross 97 (897/898) p. 186.
11
humanitarian attempt, from which all other principles are derived.38 The universal character of humanity is clearly illustrated in the preambles of the Universal Declaration of Human Rights (UDHR) and the UN Charter. This principle emphasizes the “protection and preservation of persons”,39
implies their inherent worth and dignity40 and is tied to the equality of individuals.41 Humanity is also a reminder of how important is to grasp the opportunity of humanitarian action.42
Neutrality is the responsibility of humanitarian actors not to choose sides in conflicts or to favor a particular political, racial, religious or ideological group.43 Neutrality can be perceived as ideological neutrality, expressed through comments or through the operation of a humanitarian enterprise, and as direct neutrality which is indicated by the non-engagement in hostilities.44 Neutrality usually lies in the eyes of the beholder, hence, a humanitarian offer may be perceived as neutral by some whilst it may be turned down by others as taking part in controversies.45 In this case, the opinion of an outside, disinterested person is crucial in order to avoid any arbitrary refusal of humanitarian aid.
The principle of impartiality demands aid to be provided “based on the need alone, giving priority to the most urgent cases” and without being distributed on discriminatory grounds like gender, race, nationality, class, religious belief or political opinions.46 In the judgment of the case concerning Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice (ICJ) stated that “if the provision of humanitarian assistance is to escape condemnation as an intervention in the internal affairs of Nicaragua … it must also and above all, be given without discrimination to all in Nicaragua, not merely to the contras and its dependents”.47 The court’s reasoning implies that when the provision of humanitarian assistance is given without discrimination, it cannot be considered as an intervention in the internal affairs of a state.48
38 Jean Pictet ‘The Fundamental Principles of the Red Cross: Commentary’ (1979) International Review of the
Red Cross <https://www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm> accessed 4 July 2017.
39 Ruti G. Teitel, Humanity’s Law, (Oxford University Press, 2011) p. 13. 40 Pictet (n 38).
41
Larissa Fast ‘Unpacking the principle of humanity: tensions and implications’ (2016) International Review of the Red Cross 97 (897/898) p. 112.
42 —‘The Fundamental Principles of the Red Cross and Red Crescent’ (1996) ICRC Ref 0513 p. 2. 43 OCHA (n 36).
44
Kate Mackintosh ‘The principles of Humanitarian Action in International Humanitarian Law’ (2000) Humanitarian Policy Group Rep 5 p. 8.
45 Joakim Dungel ‘Humanitarian Use of Force? The Right to Afford Humanitarian Assistance in Internal Armed
Conflicts’ (2004) Göteborg University p. 28.
46 OCHA (n 36). 47
Nicaragua v The United States (n 33) para 243.
12
Jean Pictet distinguishes three elements of impartiality. The first is the absence of this objective discrimination on the basis of belonging to a particular group, the second is the principle of proportionality or that the assistance will be provided based on the need and the urgency of the situation, and the third element is the exclusion of personal bias or the “depersonalization of humanitarian work”.49
Individual decisions on whether the recipient is innocent or guilty and whether they deserve humanitarian assistance should not be made within the context of a humanitarian enterprise.50
Finally, independence refers to the requirement that aid organizations “must be autonomous from any political, economic, military or other objective that any actor may hold”.51 The principle implies determining needs and taking operational decisions autonomously as well as resisting at any interference.52 This freedom of decision empowers humanitarian actors to act according to the other principles of humanity, impartiality and neutrality.
The General Assembly has repeatedly affirmed that ensuring conformity with these principles is essential for the effective coordination of humanitarian actors.53 Since humanitarian action usually takes place in complex political environments, adherence to the principles is necessary in order to distinguish humanitarian actions from the activities of political and other actors.54 In addition, humanitarian aid provided in line with the principles of humanity, neutrality, impartiality and independence cannot be regarded as unlawful intervention or as in any other way contrary to international law and, hence, will exclude any related ground for refusal of the humanitarian aid.55
Ensuring the adherence to humanitarian principles is also critical in order to acquire the acceptance of all relevant actors and secure that humanitarian personnel will have safe and unimpeded access to the affected population, when the state is unwilling or unable to provide adequate protection and assistance itself.56 However, humanitarian agencies must be accepted not only by states and non-state groups but also by the community they intend to help.57
49 Pictet (n 38); ICRC (n 42) p. 6. 50
Mackintosh (n 44) p. 8.
51 OCHA (n 36).
52 Ed Schenkenberg van Mierop ‘Coming clean on neutrality and independence: The need to assess the
application of humanitarian principles’ (2016) International Review of the Red Cross 97(897-898) p. 299.
53
UNGA Res 46/182 (no 26) Annex I Guiding Principles; UNGA Res 58/114 (5 February 2004) UN Doc A/RES/58/114 p. 1.
54 OCHA (n 36).
55 Nicaragua v The United States (n 33) para 242. 56 OCHA (n 36).
57
— ‘Challenges to Principled Humanitarian Action: Perspectives from four Countries’ (2016) Norwegian Refugee Council and Handicap International p. 8.
13
Unimpeded access is in turn essential in order for humanitarian actors to safeguard that aid is distributed impartially and is provided to those most in need, strengthening, in this manner, the implementation of the humanitarian principles.58
These fundamental principles along with the principles of voluntary service, unity and universality are set out in the Code of Conduct for the International Red Cross and Red Crescent Movement (IRCRC) and Non-Governmental Organizations in Disaster Relief, which is considered to be a guide for the work of organizations involved in the provision of aid.59 The Code establishes humanitarian assistance as a right to be provided to citizens of all countries, on the basis of need alone.60 Based on the Code of Conduct, the Sphere Handbook was written to develop a set of minimum standards for international relief to be adopted by NGOs, governments and donor agencies in four life-saving sectors of humanitarian response: water and sanitation, food, shelter and healthcare.61 The cornerstone of the Handbook is the Humanitarian Charter which describes the core principles that govern humanitarian action and reaffirms the right of populations to protection and assistance. The Charter specifies the legal responsibilities of states to guarantee the relevant rights and emphasizes that states are obliged to allow humanitarian organizations to provide humanitarian assistance when they are unwilling or unable to fulfill their obligations.62
3. A right to humanitarian assistance?
Humanitarian assistance under international law can be viewed from two perspectives: the one is the right of the civilian population to receive aid and the other is the obligation of states to accept humanitarian relief. On this part of my analysis I will focus on the first point, i.e. whether there is a right of suffering communities to receive humanitarian aid. Initially, a distinction should be made between the right to receive humanitarian assistance in an armed conflict situation and in non-conflict situations. While, the right to humanitarian assistance during an armed conflict is mostly regulated by the Geneva Conventions and Additional
58
OCHA (n 36).
59 ibid.
60 International Federation of Red Cross (IFRC), the Red Crescent Societies and the International Committee of
the Red Cross, Code of Conduct for the International Red Cross and Red Crescent Movement and
Non-Governmental Organizations (NGOs) in Disaster Relief (1994) pp. 1-4.
61
The Sphere Project, Humanitarian Charter and Minimum Standards in Disaster Response (2004) p. 5.
14
Protocols of International Humanitarian Law (IHL),63 the regime outside of an armed conflict is less clear.
The escalation of disasters and their humanitarian impacts urged the need for a framework that addresses the responsibilities of states and humanitarian actors in non-conflict situations.64 This has prompted the emergence of a collection of international instruments addressing the provision of humanitarian assistance in disasters, namely the International Disaster Response Laws, Rules and Principles (IDRL).65 Disaster, as defined in the guidelines, means “a serious disruption of the functioning of society, which poses a significant, widespread threat to human life, health … whether arising from accident, nature or human activity, whether developing suddenly or as the result of long-term processes, but excluding armed conflict”.66 The IDRL is widely dispersed since its core consists of a fragmented collection of various instruments which includes international multilateral and bilateral treaties, regional agreements, non-binding resolutions, declarations, operational guidelines, codes and protocols.67
It must be, therefore, examined whether this regulation of disaster-relief operations and the codification of commitments of states and organizations are sufficient to grant an individual right to assistance. Hardcastle and Chua emphasize the importance of preserving the integrity of human rights as a “common standard of achievement for all peoples and all nations”.68 It is necessary in order for a claim to obtain the status of internationally recognized human right, to satisfy “the law-creating process of international law”.69 In other words, is decisive to scrutinize whether the right of victims of natural disasters to receive humanitarian aid has been acknowledged by the sources codified in Article 38 of the ICJ Statute i.e. by an international convention or international custom, since the ICJ has never referred to general principles of law as basis for the emergence of new human rights.70
63 Geneva Conventions Relative to the Protection of Civilian Persons in Time of War (12 August 1949) Arts 23,
59; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (8 June 1977) Art.70; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977) Art. 18(2).
64
Haider H. ‘International Legal Frameworks for humanitarian action: Topic guide’ (2013) GSDRC University of Birmingham p. 37.
65 IFRC ‘International Disaster Response Laws: Project Report 2002-2003’ p. 15
<http://www.icrc.org/eng/assets/files/other/idrl_report_final_ang.pdf> accessed 4 July 2017.
66
IFRC ‘Annotations to the Draft Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (2007) p. 7.
<http://www.ifrc.org/PageFiles/125652/annotations.pdf> accessed 4 July 2017.
67 IFRC (n 65) p. 2.
68 Hardcastle, Chua (n 34) p. 593. 69
ibid p. 594.
15
Due to the absence of a general recognition of the right to humanitarian assistance in a universal and binding treaty,71 we should examine whether it is likely to derive from international custom. The existence of customary rule can be deduced from the practice and behaviour of states accompanied by the subjective belief that such behaviour is law (opinio
juris).72 The plethora of bilateral agreements, resolutions and guidelines concerning the
regulation of disaster relief operations and the assistance provided by the international community to disaster-affected populations, support the realization of a consistent, uniform and general state practice that there is a right to receive aid.73 In addition, a major role in disaster relief operations is notably played by organizations such as the UN, the WHO, the EU and the IFRC, which promote in practice the humanitarian assistance as a right to be provided to citizens of all countries in need. Nevertheless, according to the dominant belief, state practice is the only one which should be taken into account when examining if a rule amounts to custom.74
Still, state practice is not in itself enough for the evolution of a rule as customary law. Hardcastle and Chua affirmed that the “willingness of states to render assistance does not necessarily imply the existence of a right under international law for victims of natural disasters to receive humanitarian aid … but there must be evidence of a belief that such assistance is rendered obligatory by a rule of law or human rights requiring it”.75 It is quite difficult to argue that such a belief universally exists. As can be demonstrated by public statements made by representatives of states as a response to restrictions imposed by governments to the access of international assistance, the obstruction of relief operations has not been considered as violation of an independent right to humanitarian aid. Rather, the refusal of foreign aid has been deemed, in the case of Venezuela76 and in previous humanitarian crises77 as violation of rights to life, health and food.
71 Haider (n 37) p. 31; However an indirect right to humanitarian assistance can be found in specific, bilateral
and regional treaties e.g. in the Art 22 of the Convention on the Rights of the Child (CRC), in Art 23 of the African Charter on the Rights and Welfare of the Child, and in Art 11 of the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, as well as in a plethora of soft-law instruments e.g. in the Code of Conduct for International Red Cross and Red Crescent Movements and Non-Governmental Organizations in Disaster Relief.
72 Case Concerning the Continental Shelf (Libyan Arab Yamahiriya/Malta) (1985) ICJ Rep pp. 13, 29; Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep pp.226, 253.
73 Maria Giovanna Pietropaolo, Humanitarian Assistance from the Standpoint of the Human Rights of the
Disaster-Affected Individuals: Present and Future Perspectives (LL.M. Paper, Geneva Academy of International
Humanitarian Law and Human Rights 2012-2013) p. 11; Hardcastle, Chua (n 34) p. 598.
74 Hardcastle, Chua (n 34) p. 595.
75 ibid p. 598 citing at North Sea Continental Shelf Cases (20/2/1969) ICJ Rep. para 77.
76 ——‘UNHRC Debate: Venezuela’s former UN rep confronts regime on hunger’ (2016) UN Watch
<https://www.unwatch.org/11468-2/> accessed 4 July 2017.
16
Hence, states do not consider themselves bound by an obligation to provide humanitarian assistance. Instead, they respond to disasters on a case-by-case evaluation. This is also supported by the wording that is used in many instruments addressing the issue of humanitarian assistance which mention the offering governments as “donors”.78 Therefore a right to receive humanitarian assistance does not seem to exist under international customary law. However, as will be illustrated in the next chapter, states do remain under the permanent obligation to provide protection to those on their territory under the various international human rights instruments and customary international law.79
78 Code of Conduct (n 60) annex II. 79
Eduardo Valencia-Ospina, Preliminary report on the protection of persons in the event of disasters, (2008) International Law Commission UN Doc A/CN.4/598 para. 25.
17
III. The role of state consent in international humanitarian aid
1. Tensions between sovereignty and humanitarian aid
State sovereignty is considered to be a major issue when we are discussing about humanitarian assistance. As described above, humanitarian aid is closely interrelated with the state’s consent, in order for humanitarian actors to obtain access to those in need. Recent history provides us with many examples of states which were reluctant to accept humanitarian assistance, invoking the principles of state sovereignty and subsidiarity.80 Governments consider external aid as an infringement to their national interests and their territory, thus, imposing severe obstacles or even blocking humanitarian actors.
The concept of state sovereignty is considered to be a fundamental norm within the international legal order. As sovereignty is defined state’s ability to exercise its own powers and provide for its own well-being and development free from domination of other states.81 Restrictions upon the independence of states cannot be presumed.82 Sovereignty has both internal and external dimensions. States have the right to exercise jurisdiction over their territories and permanent population, the right to arrange their external relations with other states at their will and the duty not to intervene in the internal or external affairs of other states.83
General Assembly’s Resolutions emphasize that sovereignty must be respected, even in cases of disasters.84 The affected state has the primary responsibility to respond to disasters occurring within its territory and retains the primary role for the initiation, coordination, organization and implementation of the humanitarian assistance which should be provided with its consent. Besides, according to the principle of subsidiarity, the responsibility for the proper protection of the population of a country first and foremost rests upon the state.85
80 Obijiofor Aginam ‘Health and human security in emergencies’ (2012) United Nations University
<https://unu.edu/publications/articles/health-and-human-security-in-emergencies.html> accessed 4 July 2017.
81 Malcolm N. Shaw, International Law, (7th Ed. Cambridge University Press, 2014) p. 153; UN, Yearbook of the
international Law Commission 1949 (New York 1956) p. 287.
82 S.S Lotus (France v Turkey) P.C.I.J. (7 September 1927) Series A No. 10 p. 18. 83 Shaw (n 81) p. 154; UNGA Res 25/2625 (24 October 1970) UN Doc A/RES/25/2625.
84 UNGA Res 36/225 (17 December 1981) UN Doc A/RES/36/225; UNGA Res 46/182 (n 26) annex para 4. 85 Joakim Dungel ‘A right to humanitarian assistance in internal armed conflicts respecting sovereignty,
neutrality and legitimacy: practical proposals to practical problems’ (2004) The Journal of humanitarian assistance para 2.3.
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2. The duty to seek and not arbitrarily refuse humanitarian aid
While restrictions upon the independence of states cannot be imposed, state sovereignty does not imply deviation from being subject to the rules of international law. Sovereignty should be also understood as encompassing the responsibility for the protection of population and is necessary to be balanced with the need to protect human rights.86 Regarding humanitarian assistance, the International Law Commission (ILC) has emphasized that it concerns “the protection of persons in the event of disasters and not the protection of the rights of the states”.87
Even though the various instruments that comprise the IDRL do not impose a clear obligation on affected states to accept international assistance, states do remain under the legal obligation to secure the rights to life and health and assure access to essential goods and services in their countries.88 The right to life as well as the various economic and social rights guaranteed in international human rights law create the legal framework for the protection of individuals even in cases of disaster. Specifically, the International Covenant on Civil and Political Rights (ICCPR) holds that “every human being has the inherent right to life, which shall be protected by law and no one shall be arbitrarily deprived of his life”. It also notes that no derogation from this right is admissible since it should not be suspended during a “public emergency that threatens the life of the nation”.89 The Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR) have underlined that a state must take also affirmative measures to protect the lives of its citizens implying, in this manner, a duty to seek international humanitarian relief when it is required.90
Additionally, the Universal Declaration of Human Rights (UDHR) affirms that “everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food … and medical care”.91 The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes also the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” and lists the
86
Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild, I. William Zartman, Sovereignty as
Responsibility: conflict management in Africa (Brookings Institution Press, 1 December 2010).
87 ILC, Report on the work of its sixty-second session, (2010) UN Doc A/65/10 para. 316.
88 UNGA Res 36/225 (n 84); UNGA Res 46/182 (n 26); UNGA Res 57/150 (27 February 2003) UNGA Doc
A/RES/57/150; Code of Conduct (n 60).
89 UNGA, International Covenant on Civil and Political Rights (16 December 1966) UN Treaty Series Vol 999
Arts 4, 6(1).
90 Human Rights Committee, General Comment No. 6: The Right to Life (1982); Budayeva and others v Russia
(Judgment) ECtHR (20 March 2008) paras 128-137; Öneryildiz v Turkey (Judgment) ECtHR (30 November 2004) para. 71.
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steps to be taken by state parties in order to achieve the full realization of this right.92 Likewise, the right to adequate food “is realized when every man, woman and child … has physical and economic access at all times to adequate food or means for its procurement”, even in times of natural or human-made disasters.93
These international instruments clearly stress the need for international assistance and
cooperation when the affected state cannot handle the situation with its own means. The Committee on Economic, Social and Cultural Rights (CESCR) has emphasized that a state, in order to comply with its core obligations under the ICESCR, must demonstrate not only that is using the maximum of its own available means, but also that it has attempted to use the maximum of the international community’s available resources.94
The affected state should, therefore, seek external humanitarian assistance if is not able to adequately protect the rights of its citizens and when a significant percentage of its population is vulnerable to starvation and great suffering.95
The ILC has developed a useful framework with the purpose to promote the effective response to disasters respecting the rights of the persons concerned.96 According to draft Article 5, states have the duty to cooperate with each other, with the UN and with other competent organizations to protect individuals affected by disasters, recalling in that way the general obligation to cooperate that is defined in the UN Charter.97 The ILC’s approach to disaster response is based on human rights, leaving aside more traditional concepts of state sovereignty.98 This shift is also supported by the adoption of the above-mentioned universal instruments. States cannot shelter themselves behind sovereignty with a view to negate obligations to secure human dignity. Besides, under modern conceptions, sovereignty inheres in people, not in governments.99
In addition, recent instruments addressing humanitarian assistance hold that the affected state is under the obligation not to arbitrarily and unjustifiably refuse humanitarian
92
UNGA, International Covenant on Economic, Social and Cultural Rights (16 December) UN Treaty Series Vol 993 Art 12.
93CESCR, General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant) 20th session of the
CESCR (UN Doc. E/C.12/1999/5) para 6.
94 CESCR, General Comment 3: The nature of States parties’ obligations (Art. 2, par.1 of the Covenant) 50th
session of the CESCR (UN Doc. E/1991/23) para 10; CESCR (n 93).
95 Hardcastle, Chua (n 34). 96
ILC, Draft Articles on the Protection of Persons in the event of disasters, (2009) A/CN.4/L,758 (Sixty-first session) Art 2.
97 ibid Art 5; UN, Charter of the United Nations (24 October 1945) 1 UNTS XVI Art 1.
98 J. Benton Heath ‘Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of
the International Law Commission’ International Law and Politics (2011) Vol 43:419 p. 450.
99
Tyra Ruth Saechao ‘Natural Disasters and the Responsibility to Protect: From Chaos to Clarity’ (2007) Brooklyn Journal of International Law Vol. 32 Issue 2 Art 9 pp. 663-707.
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relief when is unwilling or unable to handle a disaster itself.100 Consent can be only refused for non-arbitrary reasons when the affected state has accepted adequate assistance from another source, when it has adequate resources to effectively respond to disaster101 or when the offered humanitarian assistance does not satisfy the requirements of humanity, neutrality and impartiality.102 Still, even in this case, an assessment should be made with regards to the necessity and proportionality of the withholding as well as the compliance with the affected state’s human rights obligations.103
To sum up, there is no legally binding instrument imposing an explicit obligation to accept humanitarian assistance and, as mentioned in the previous chapter, states do not consider themselves bound by an obligation to provide relief. However, states remain obliged to protect the rights to life, health and food of their citizens, even in situations of disaster. When they are unable to do so, they must seek international assistance or, at least, they should not arbitrarily withhold their consent to the access of foreign aid.
100 L’ Institute De Droit International, Humanitarian Assistance, (2003) Resolution, Bruges Session, Sixteenth
Commission p. 5 <http://www.ifrc.org/Docs/idrl/I318EN.pdf> accessed 4 July 2017; ILC (n 96) Art. 14(2); Walter Kalin ‘Guiding Principles on Internal Displacement, Annotations’ (2008) The American Society of International Law and The Brookings Institute p. 111 <
https://www.brookings.edu/wp-content/uploads/2016/06/spring_guiding_principles.pdf> accessed 4 July 2017.
101 Pietropaolo (n 73) p. 27.
102 Nicaragua v United States (n 33) para 243. 103
Sandesh Sivakumaran ‘Arbitrary Withholding of Consent to Humanitarian Assistance in Situations of Disaster’ (2015) International and Comparative Law Quarterly Vol 64 pp. 521-530.
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IV. Crimes against humanity
1. Actus Reus
The situation in Venezuela has brought untold suffering to millions of people and stresses the vital role humanitarian aid can play in the alleviation of human suffering as well as the responsibility of states which fail to protect the population on their territory. Exactly this violation of state’s primary obligations is what triggers the authority of international institutions to intervene.104 In the preamble of the Rome Statute it is stated that the International Criminal Court (ICC) aims to put an end to impunity for the perpetrators of unimaginable atrocities that deeply shock the conscience and to contribute to the prevention of such crimes.105 While the Rome Statute explicitly addresses the right of civilians to receive humanitarian assistance in case of an armed conflict criminalizing the starvation of civilians,106 the situation outside of an armed conflict is less clear. It is, therefore, necessary to examine whether international criminal law criminalizes the same acts or omissions in cases similar to Venezuela.
According to Article 7 of the Rome Statute, as a crime against humanity (CAH) is defined any of the enumerated acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack, pursuant to or in furtherance of a state or organizational policy.107 The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) adopt different definitions of CAH. The ICTY Statute defines the context as “when committed in armed conflict, whether international or internal in character”.108 Yet, in the Tadić case the Court stated that the requirement of armed conflict is not supported by customary international law109 and that the nexus required by the Statute “deviates from the development of the doctrine”.110
The ICTR Statute defines CAH as those “committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic,
104 Harmen van der Wilt ‘Crimes against Humanity: A category hors concours in (international) criminal law?’
(2012) ACIL Research Paper No 2012-06 pp. 2-7; Larry May, Crimes against Humanity, a normative account, (Cambridge University Press, 2005).
105
UNGA, Rome Statute of the International Criminal Court (17 July 1998) preamble paras 2, 5.
106 ibid Art 8(2)(b)(xxv). 107 ibid Art 7(1).
108 UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia (25 May 1993) Art 5. 109 Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-T (2
October 1995) para 141.
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racial or religious groups”, thus, requiring discriminatory grounds.111
The Rome Statute does not require any nexus to armed conflict or discriminatory animus of the attack, since these were not considered to be required in customary international law.112 This different interpretation by the Rome Statute is justified since crimes against humanity aim to respond to states’ systematic oppression of their population.113
a) Widespread or systematic
In order for an act to be considered as a CAH, it must be committed in the context of a widespread or systematic attack. The term widespread excludes random or isolated attacks of violence committed by a perpetrator acting on his own initiative and indicates the large-scale nature of the attack and the number of victims.114 However, a CAH may be also committed by “the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”.115
There is no specific quantitative threshold of targeted persons that must be met, nor any geographical limitation in order for an attack to be considered as widespread. Instead, the assessment is based on the individual facts.116
In terms of the “systematic” criterion, a debate has been raised on whether there must be a policy component and whether organizations or other groups possess the requisite authority to enact such a policy.117 The Pre-Trial Chamber in the Katanga case described systematic as referring “to the organized nature of the acts of violence and the improbability of their random occurrence”.118
The systematic requirement may be satisfied in the context of a carefully organized plan, which follows a regular pattern on the basis of a common policy involving substantial public and private sources.119 Still, a policy should not necessarily be adopted formally, but it can be deduced from the way in which the acts occur.120 “If the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts,
111 UNSC, Statute of the International Criminal Tribunal for Rwanda (8 November 1994) Art 3.
112 Robert Cryer, Håkan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International
Criminal Law and Procedure, (3rd ed. Cambridge University Press, 2014) p. 231.
113
Van der Wilt (n 104) p. 1.
114 Prosecutor v Katanga & Ngudjolo Chui (Decision on the confirmation of charges) ICC-01/04-01/07 (30
September 2008) para 394; Tadić (n 110) p. 648; Prosecutor v Kunarac, Kovac & Vukovic (Judgment) IT-96-23-T & IIT-96-23-T-96-23/1-IT-96-23-T (22 February 2001) para 428; Prosecutor v Akayesu (Judgment) ICIT-96-23-TR-96-4-IT-96-23-T (2 September 1998) para 580; Prosecutor v Kordić & Ćerkez (Judgment) IT-95-14/2-A (17 December 2004) para 94.
115 Prosecutor v Blaškić (Judgment) IT-95-14-T (3 March 2000) para 206; Prosecutor v Kupreškić et al
(Judgment) IT-95-16-T (14 January 2000) para 550; Tadić (n 110) p. 649; Katanga (n 114) para 398.
116
Kunarac (Judgment) IT-96-23 & IT-96-23/1-A (12 June 2002) para 95; Situation in the Republic of Kenya ICC-01/09 (31 March 2010) para 95.
117 Josh Scheinert ‘Refusal to Save Lives: A Perspective from International Criminal Law’ (2013) Martinus
Nijhoff Publishers International Criminal Law Review 13 p. 633.
118 Katanga (n 114). 119
Akayesu (n 114).
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whether formalized or not”.121 In general, the organized pattern of conduct, the existence of a methodical plan, the continuous commission of linked crimes, the significant resources as well as the implication of high-level authorities are common expressions of systematic occurrence.122
The Elements of Crimes provide that such a policy should be implemented or, in exceptional circumstances, encouraged by a state or organizational action.123 In the case concerning the situation in Kenya the majority adopted a broad interpretation of the policy condition, including any organization able to direct mass crimes, while Judge Kaul in his dissent opinion argues that an organization must be state-like.124 The Trial Chamber in Tadić case accepted the possibility of non-state actors to commit CAH, concluding that “law in relation to CAH has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within defined territory”, rejecting the requirement that an attack should be directed only by a state or organization.125 According to Cryer the policy requirement must be interpreted as “a course of action adopted as advantageous or expedient”, avoiding, in that way, the above debate of who has the authority to execute such a policy.126
The question as to whether an act should be part of both widespread and systematic attack was the subject of much debate at the Rome Conference.127 Concerns were expressed whether a disjunctive definition would be over-inclusive and would turn the commission of widespread but unrelated crimes into CAH and whether a conjunctive test would be too restrictive.128 However it is well established that the “widespread or systematic” test is disjunctive and the terms are presented in the alternative.129
Accordingly, in order for the denial of humanitarian assistance to be considered as a crime against humanity, it is necessary to be either widespread or systematic. The widespread
121 Tadić (n 110) p. 653.
122 Katanga (n 114) paras 396-397; Kunarac (note 114) para 429; Blaškić (n 115) paras 203-204. 123
ICC, Elements of Crimes (2011) footnote 6.
124 Kenya (n 116) paras 115-128; Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap
Sang (Kenya) ICC-01/09-01/11 (15 March 2011) J. Hans-Peter Kaul.
125
Tadić (n 110) p. 654.
126 Cryer (n 112) p. 239.
127 Margaret McAuliffe deGuzman ‘The Road from Rome: the Developing Law of Crimes against Humanity’
(2002) 22 Human Rights Quarterly p. 374.
128
Phylilis Hwang ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’ (1999) 22 Fordham International Law Journal p. 495.
129 Akayesu (n 114) para 579; ILC, Report of the International Law Commission on the work of its forty-eighth
session (1996) Yearbook of the International Law Commission Vol II p. 47; Kenya (n 116) para 94; Prosecutor
v. Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges) ICC-01/05-01/08 (15 June 2009) para 82; Katanga (n 114) para 412; The Prosecutor v. Elizaphan and Gèrard Ntakirutimana (Judgment and Sentence) ICTR-96-10 & ICTR-96-17-T (21 February 2003) para. 804.
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or systematic character of the denial is usually obvious either by refusing isolated offers that could have contributed in the alleviation of human suffering and taking into account their cumulative effect or by adopting a denial policy rejecting every humanitarian aid provided in the affected state. The dimensions of the refusal are clearly enormous since it affects thousands or millions of lives. Only random acts of impediment of humanitarian aid like “the spontaneous looting of a warehouse containing relief goods by civilians or soldiers, or spontaneous attacks on relief convoys by a group of drunken soldiers” could be excluded from the notion of crimes against humanity.130
Additionally, the debate of whether the policy requirement should be directed or encouraged by a state or organization or other forces does not seem to have a great impact on situations of impediment of humanitarian aid in cases outside of an armed conflict. The refusal of humanitarian offers usually derives from the affected state which insists on its own ability to provide relief, in an attempt to protect its national sovereignty from external interventions. As mentioned before, such a policy should not necessarily be adopted formally, but it can be deduced from the circumstances. Restrictions on the access of humanitarian aid can take the form of prevention of aid workers from entering the state by imposing airport closures, roadblocks or sea blockades or by imposing bureaucratic measures. States may also undertake supervisory role seizing the relief supplies or blocking them for an excessive period of time due to inspections.131
In the case of Venezuela, the government has not formally adopted a policy of refusal but the administration authorities continuously block humanitarian requests and the government refuses to enroll Venezuela in relief programs. The Venezuelan government has blocked until now tons of medical supplies donated by Chile and Venezuelan expats in Miami, Bogota and Panama City as well as food supplies donated by neighbouring countries and NGOs.132 Moreover, in recent years, Venezuelan authorities have repeatedly arrested doctors and workers in hospitals who accepted donations of medical supplies.133
A recent survey of living conditions in Venezuela reveals the large-scale of the refusal and the impact it has on Venezuelans lives; 90% of the population do not have enough income
130 Chritsa Rottensteiner ‘The denial of humanitarian assistance as a crime under international law’ (1999)
International Review of the Red Cross No 835.
131 Mominah Usmani ‘Restrictions on Humanitarian Aid in Darfur: The Role of the International Criminal Court’
(2007-2008) GA. J. INT’L & COMP. L. Vol 36:257 p. 263.
132 Rueda (n 7).
133 Diego A. Torrealba ’Sebin detuvo a médico y sindicalista en Hospital de los Magallanes de Catia por recibir
donación de insumos medicos’ (2016) El Pitazo <https://elpitazo.com/ultimas-noticias/sebin-detiene-a-medico-del-hospital-de-los-magallanes-de-catia/> accessed 13 July 2017.
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to buy food and 73% of Venezuelans report losing weight unintentionally.134 In addition, shortages of essential medications like antibiotics have contributed to multiple deaths by normally treatable diseases. According to a 2016 report from the Ministry of Health, the rate of infant mortality in Venezuela for the first five months of 2016 was 18.61 deaths per 1.000 live births, whereas in 2011 the rate was 11.6.135 The shortage of medicines in April has generally reached the 85% according to the Pharmaceutical Federation of Venezuelan, while the percentage has touched the 95% for medicines for chronic diseases and the 65% for medicines defined as essential by the WHO.136
b) Attack
The individual acts of the accused must be committed as part of an attack i.e. in furtherance of the widespread or systematic attack.137 In the Rome Statute, attack is defined as a course of conduct, involving the multiple commission of acts referred to in Article 7.138 The attack need not be military or violent in nature.139 In the Bemba case the ICC reaffirmed this definition, stating that “beside the commission of the acts [referred to in Article 7(1) of the Statute], no additional requirement for the existence of an attack should be proven”.140
The term attack seems to incorporate a plan or policy element into the definition of crimes against humanity, independent of the systematic requirement, since the threshold, in this case, is lower.141 There must be, therefore, a minimum level of scale (multiple acts or victims) and a minimum level of policy in addition to a high level of scale (widespread) or a high level of collective organization (systematic).142 The acts that compose the attack should not necessarily be of the same type,143 and the acts of the accused need not be widespread or systematic.144 The individual acts need only be part of the attack and will qualify as a CAH if
134
Muci (n 10).
135 Human Rights Watch (n 2).
136 Militza Zúpan ‘Empty shelves: A day at a Venezuelan pharmacy’ (2017) Univision
<http://www.univision.com/univision-news/latin-america/empty-shelves-a-day-at-a-venezuelan-pharmacy> accessed 13 July 2017.
137 Tadić (n 110) para 644; Akayesu (n 114) para 205. 138 Rome Statute Art 7(2)(a).
139
Elements of Crimes Art 7, introduction para 3; Kunarac (n 116) para 86; Akayesu (n 114) para 581; Prosecutor v Simić et al (Judgment) IT-95-9-T (17 October 2003) para 39.
140 Bemba Gombo (n 129) para 75.
141Robert Cryer (n 112) p. 235 citing at Haradinaj et al (Judgment) IT-04-84-T (3April 2008) para 122. 142 Robert Cryer (n 112) p. 236; Kunarac (n 114) para 415.
143
Prosecutor v Kayishema & Ruzindana (Judgment) ICTR-95-1-T (21 May 1999) para 122.
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they are not isolated or random. An isolated act may itself constitute an attack,145 only when it can be considered as a multiple commission.146
The Appeals Chamber of the ICTY has repeatedly noted that an attack “encompasses any mistreatment of the civilian population”,147 and in the Popovic case the Chamber found that “restrictions on humanitarian aid formed a component of the attack against the civilian population”.148 Additionally, in the aftermath of Cyclone Nargis in Burma, several governments and authors argued that the delayed response by national authorities was leading to an unnecessary level of suffering, with the founder of MSF, Bernard Koucher, to indicate that the refusal to accept humanitarian aid could amount to a CAH.149
Examining whether the refusal of humanitarian aid can be considered as an “attack”, particular emphasis must be given to the multiple commission and the length of the refusal, to the implication of highest state organs as well as to the multiplicity of victims. Josh Scheinert proposes a different interpretation of the “multiple commission” referring to the fact that the multiplicity of victims implies that a crime has been committed multiple times.150 In the case of Venezuela, as was demonstrated in the previous analysis, the government has rejected, since the beginning of 2016, several offers of humanitarian aid, has blocked humanitarian actors from entering its territory, has repeatedly refused to seek international assistance and the local authorities have even arrested people who accepted external help. This conduct of Venezuelan government cannot be deemed as random, but rather it follows a pattern. The government adopts a series of decisions that violate international law for a period over a year now, affecting the lives of millions of Venezuelans and aggravating human suffering. Taking the above into consideration we could conclude that the conduct of rejecting offers of humanitarian aid in a continuous manner, in the light of a humanitarian crisis, can be considered as an attack.
We could even view the existence of humanitarian crisis as an attack which was generated or at least accelerated by the Venezuelan government’s conduct. During the 1970s, Venezuela was the richest country in Latin America, with the world’s largest oil reserves. In
145 Blaškić (n 115) para 206.
146 Prosecutor v Kordić & Čerkez (Judgment) IT-95-14/2-T (26 February 2001) para 179.
147 Prosecutor v Popovic et al (Judgment) IT-05-88-T (10 June 2010) para 752; Kunarac (n 116) para 86;
Akayesu (n 114) para 581; Prosecutor v Taylor SCSL-03-01-T (18 May 2012) para 506.
148 Popovic (n 147) para 767.
149 Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises (Bloomsbury Publishing,
20 April 2017); Stuard Ford ‘Is the failure to respond appropriately to a natural disaster a crime against humanity? The responsibility to protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis’ (2010) 38 Denv J. Int’l L. & Policy 227; Scheinert (n 117)
