The Venezuelan Blockade of Humanitarian Aid as a Crime under the ICCSt

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The Venezuelan Blockade of Humanitarian Aid as a Crime under the ICCSt

Is the obstruction of humanitarian aid outside a situation of armed conflict covered by the ICCSt?

Author: Lukas Bollaert

Email: Lukas.bollaert@gmail.com Student number: 13320750

Master track: Public International Law (International and European Law LL.M.) Supervisor: Dr. K.J. (Kinga) Tibori Szabo

Date of submission: 01/07/2021

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Abstract

The aim of this paper is to answer whether the obstruction of humanitarian aid outside a situation of armed conflict is covered by the ICC Statute. While the blockade of humanitarian aid in times of armed conflict is generally recognized to be contrary to international law, it is rather unclear whether this applies in situations not covered by international humanitarian law. To answer this question, this paper looks at the recent denial and blockade of international humanitarian aid by Venezuela until April 2019. After a legal analysis, it is concluded that by denying and blocking humanitarian aid could incur individual criminal responsibility as crimes against humanity. In the case of Venezuela, the specific acts of murder, extermination and other inhumane acts are determined to have occurred with requisite intent directed at a civilian population. It is conceivable that the crime of genocide can also be evaluated in the context of obstruction of humanitarian aid, although no such conclusion could be drawn in the Venezuelan case.

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Introduction

International Humanitarian Law (IHL) prohibits the obstructing of humanitarian access and the starving of civilians.¹ The ICC Statute (ICCSt) explicitly covers this regarding international armed conflicts, but there is a good argument that it covers internal armed conflicts as well. Arguably, the ICCSt also covers those instances where of essential goods for survival are blocked in times of crisis not covered by IHL. This thesis will, therefore, aim to answer whether the ICCSt covers situations where aid is denied in situations not covered by IHL. An answer to this question will consider the specific case of the recent Venezuelan denial and blockade of humanitarian aid (HA).

The Venezuelan Blockade of Aid

The denial of aid by Venezuelan President Nicolás Maduro came at a time of a serious economic recession. Together with the denial of the humanitarian situation, was a concerted effort to prevent International HA (IHA) from reaching the country. By February 2019 the Venezuelan government had resorted to military methods to prevent IHA from entering the country. By early April 2019, under international pressure and consultation with the International Committee of the Red Cross (ICRC), Venezuela consented to allow some aid into the country.² While a deal was eventually struck, it was only achieved after years of denying and blocking IHA from entering the country.

Shortages in food and medicine had begun to plague Venezuela since 2010 and reached a critical point by 2015. Despite recognition by the powerless National Assembly of a humanitarian crisis, Maduro denied its existence. Large parts of the population left the country, while those that remained were faced with a worsening humanitarian situation. After years of denial, a concerted effort came in 2019 to get IHA into the country. Maduro’s response to this was to keep IHA out at all costs. When HA trucks tried to enter the country, they were shot at, and in some cases destroyed.

By sea, envoys were forced back by threat of the Venezuelan navy. While a deal has been reached with the ICRC, years of denying and blocking aid have prompted some to call for a criminal investigation of that conduct.

1 See Rule 55 in, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules (1st edn, ICRC 2005) p. 193

2 Anatoly Kurmanaev and Isayen Herrera, ‘Red Cross Granted Access to Deliver Aid in Venezuela’, The New York Times, (New York, 29 March 2019) <https://www.nytimes.com/2019/03/29/world/americas/red-cross-venezuela- aid.html>

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Purpose and Aim

The aim of this research is to answer whether the obstruction of HA outside a situation of armed conflict covered by the ICCSt. To answer this question, the Venezuelan blockade of IHA will be used as a case study. Venezuela is currently in the depths of a humanitarian crisis marked by violence, insecurity, and a lack of food, medicine, and essential services.³ While the situation is humanitarian in character, the country is not considered to be involved in an armed conflict, its people are in dire need of HA, the denial and blockade of which is devastating. Hence, the research question of this paper is:

Is the obstruction of humanitarian aid outside a situation of armed conflict covered by the ICCSt?

Scope, Methodology, and Limitations

The methodology of this paper is descriptive research conduct from an internal perspective.

Because this case is analysed according to the ICCSt, it therefore relies on the sources of law prescribed in Article 21 ICCSt.⁴ A formal investigation would show that the situation is far more nuanced. By relying on news sources, and publications from non-governmental organizations and UN agencies, a basic understanding of the situation is achieved.⁵ Nothing in this paper must be construed as finding that an international crime did in fact take place. This can only be determined in the context of a trial. Nevertheless, the facts examined are reliable and consistent to a degree

3 'Venezuela Situation' (UNHCR, 2021) <https://www.unhcr.org/venezuela-emergency.html> accessed 22 June 2021.

4 Article 21 of Rome Statute of The International Criminal Court, 2187 U.N.T.S. 90 (1997) (Hereafter referred to as ICCSt) “The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

5 See. Prosecutor v. Zoran Kupreskic and others., Decision on the Registrar’s Withdrawal of the Assignment of Defence Counsel, IT-95-16, 3 September 1999 ¶ 7

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which warrant an evaluation according to the "reasonable grounds to believe" criteria set by the ICCSt for a Pre-Trial Chamber (PTC) to issue an arrest warrant.⁶

6 Article 58(1) ICCSt

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1. An Overview of the Venezuelan Humanitarian Crisis and the Humanitarian Aid Blockade

The recent Venezuelan political and economic crisis has caused a major humanitarian disaster. In the last decade, corruption, price controls, expropriations, and other governmental attempts at centralizing the economy have plummeted the Bolivar. Fluctuating and unstable prices had resulted not only in shortages of basic commodities but also in mass industry flight.⁷ By the time Maduro gained the presidency, Venezuela had already accumulated massive debt. As the economic situation spun out of control; starvation, disease, crime, and mortality rates became prevalent. Such developments have caused the country to go into full rebellion. The government’s answer has been to ruthlessly crush opposition, deny the existence of a humanitarian crisis, and to dissolve democratic institutions. Around 5.4 million Venezuelans have fled in the hope of finding asylum.⁸ For the people that remain in the country, conditions are dire.

1.1 The Authoritarian Rule of Nicolás Maduro

After gaining the presidency in 2013, and the political and economic situation worsened, Maduro violently cracked down on protesters, arresting opposition leaders, journalists and started a massive censorship campaign. In 2014, violent suppression of protesters resulted in international sanctions.⁹ Large scale protests flared up again in 2017 after the arrest of multiple opposition leaders. Subsequently, the Venezuelan Supreme Court ruled that the National Assembly’s legislative powers belonged to the Court, which was packed by Maduro with United Socialist Party of Venezuela (PSUV) members.¹⁰ A new institution, the National Constituent Assembly, was set

7 Francisco Monaldi, The Impact Of The Decline In Oil Prices On The Economies, Politics And Oil Industry Of Venezuela (1st edn, Columbia|Sipa: Center on Global Energy Policy: Columbia University New York 2021)

<https://energypolicy.columbia.edu/sites/default/files/Impact%20of%20the%20Decline%20in%20Oil%20Prices%2 0on%20Venezuela_September%202015.pdf> accessed 22 June 2021 p. 10

8 See supra note 3

9 William Neuman, ‘Obama Favors Sanctions for Abuse of Venezuela Protesters’ The New York Times (New York, 11 December 2014) <https://www.nytimes.com/2014/12/12/world/americas/obama-favors-sanctions-for-abuse-of- venezuela-protesters.html?searchResultPosition=2>

10 Nicholas Casey and Patricia Torres, ‘Venezuela Muzzles Legislature, Moving Closer to One-Man Rule’ The New York Times, (New York, 30 March 2017) <https://www.nytimes.com/2017/03/30/world/americas/venezuelas- supreme-court-takes-power-from-legislature.html>

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up to replace the National Assembly.¹¹ In reaction to these developments, in 2017, the UN and Inter-American Commission on Human Rights (IACHR) released a joint statement condemning the regime's behaviour.¹² As Venezuela’s economy was spiralling out of control, Maduro was able to cement his grip on power.

In a largely boycotted election, Maduro was re-elected for a second six-year term in May 2018. In defiance, Juan Guaidó, the President of the National Assembly, declared himself President of Venezuela on the 23rd of January 2019. More than 50 countries proceeded to recognize Guaidó’s presidency: including the US as well as Venezuela’s neighbours.¹³ Most notably, Russia and China chose to back Maduro.¹⁴ As a result, UN Security Council (UNSC) resolutions in regard to Venezuela have been successfully quashed by Russian and Chinese vetoes.¹⁵ With international recognition split, and UNSC action hindered, the Venezuelan political status quo was left intact.

Internally, Maduro’s tight control over the armed forces had prevented the coup d’etat from substantiation. Even as inflation spiralled out of control, Maduro made sure to increase pay and food security for the armed forces, as well as awarding high ranking officers with key positions in government and industry.¹⁶ The upcoming aid relief campaign was therefore had a simultaneous aim of persuading the armed forces to switch sides.

11 Nicholas Casey, ‘Venezuela’s New, Powerful Assembly Takes Over Legislature’s Duties’ The New York Times (New York, 18 August 2017) <https://www.nytimes.com/2017/08/18/world/americas/venezuela-constituent- assembly-maduro.html>

12 David Kaye and Edison Lanza, IACHR: Special Rapporteurship for Freedom of Expression, 'Joint Press Release R51/17: Venezuela / Protests: UN And IACHR Rapporteurs Condemn Censorship, Arrests And Attacks On Journalists' (26 April 2017) <https://www.oas.org/en/iachr/expression/showarticle.asp?artID=1062&lID=1>

accessed 22 June 2021.

13 The list of countries supporting Guaidó also includes most of the EU (with Cyprus, Norway, Slovakia, Greece and Italy taking a neutral stance) and most of Latin America

See. Amy Mackinnon, ‘Maduro vs. Guaido: a global scoreboard: Support is waning for the Venezuelan president, but he still has Russia and China on his side’, Foreign Policy (Washington D.C., 6 February 2019)

<https://foreignpolicy.com/2019/02/06/maduro-vs-guaido-a-global-scorecard-map-infographic/>

14 The list of countries supporting Maduro also includes Iran, Syria, Turkey, South Africa, as well as Bolivia and a handful of smaller States.

See. Ibid.

15 Michael Schwirtz, ‘Russia Block Venezuela Measure at U.N., Calling It a U.S. Ploy for Regime Change’, The New York Times, (New York City, 28 February 2019)

<https://www.nytimes.com/2019/02/28/world/americas/russia-venezuela-veto-united-nations.html>

16 Ana Vanesso Herrero and Rick Gladstone, ‘Maduro Speaks to Troops, Trying to Discredit Guaidó’s Call for Mutiny’, The New York Times, (New York City, 2 May 2019)

<https://www.nytimes.com/2019/05/02/world/americas/maduro-venezuela-troops.html>

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1.2 The Extent of the Venezuelan Humanitarian Crisis

Venezuela is currently in the midst of a humanitarian crisis marked by severe food and medicine shortages, high rates of child mortality, and high rates of formerly eradicated diseases.¹⁷ Until mid- 2019, the government had denied the existence of the crisis, and denied IHA.¹⁸ In February 2019, in light of the aid relief campaign, a considerable effort was made to prevent aid from entering the country. This paper, due to size constraints, will only focus on the hunger and health crises.

1.2.1 The Hunger Crisis

In 2013 the UN Food and Agriculture Organization (FAO) congratulated Venezuela for making big strides in reducing hunger. According to the FAO, the country had cut the number of hungry people in half in the past 20 years, from 13.5 % in 1990-92 to less than 5 % of the population since 2007.¹⁹ Nevertheless as the country plunged into financial turmoil, the following years became increasingly marked by food shortages. Official data on Venezuelan socio-economic and health status is largely unavailable: posing a serious challenge to fully understand the extent and severity of conditions.²⁰ Indeed, for almost a decade official nutrition statistics have not been available.²¹ Some organizations have collected data, which although not representative of the broader population gives a good indication of the effect of the food crisis on vulnerable groups.

After international sanctions starting in 2014, food security has become critical. By 2018, food shortage had become the primary motivation for migration out of Venezuela.²² Around 90% of households have indicated that they could not afford food, leading 80% to reduce meal size and 61% to go to bed hungry.²³ The UN estimated in 2018 that at least 11.7% of the population is

17 See supra note 3

18 See supra note 2

19 ‘Recognition of the FAO to Venezuela’ (FAO Regional Office for Latin America and the Caribbean, 2021)

<http://www.fao.org/americas/noticias/ver/en/c/230150/> accessed 22 June 2021.

20 Shannon Doocy and others, 'The Food Security And Nutrition Crisis In Venezuela' (2019) 226 Social Science &

Medicine p. 63

21 Ibid.

22 Supplementary Appeal: Venezuela Situation: Responding to the needs of people displaced from Venezuela (UNHCR, March 2018)

<https://reporting.unhcr.org/sites/default/files/UNHCR%20Venezuela%20Situation%202018%20Supplementary%2 0Appeal.pdf> p. 5

23 Ewan Watt, Venezuela’s children suffer in hunger and refugee crisis (Theirworld, 2018)

<https://theirworld.org/news/venezuela-children-suffer-hunger-malnutrition-refugee-crisis>

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undernourished.²⁴ In an effort to combat food scarcity, the Venezuelan government has giving out CLAP boxes (food boxes) since 2016. By 2017, around 75 % of households received CLAP boxes.

Yet the delivery of these boxes has become increasingly irregular: despite a promise of bi-monthly delivery: only 16% get such treatment, while 31% receive boxes once a month, and 54% on an even less frequent basis.²⁵ There are indications that voters who carry a PSUV member card are given preferential treatment for food allocation.²⁶ As 90 % of its population have dropped below the poverty line, it is estimated that in 2017 alone, the average citizen lost around 10 kg in weight.²⁷ In 2017, the Venezuelan Society of Childcare and Pediatrics reported that 72% of children requesting emergency care are due to malnutrition.²⁸ The estimation of acute malnutrition among children is set between 267,000 to 384,000.²⁹ According to a New York Times article documenting 21 hospitals across 17 Venezuelan States during 2017, there were a reported 400 deaths out of 2800 reported cases of acute malnutrition among children.³⁰ Despite a lack of comprehensive national data, it can be determined that the food crisis has affected millions of Venezuelans.

1.2.2 The Health Crisis

As with nutrition data, health data is no longer released at the national level. After releasing its annual report showing drastic increases (around 30%) in maternal mortality, infant deaths, and an increase of malaria cases by 76%, the Minister of Health Antonieta Caporale was fired and replaced by party loyal, Luis Lopez Chejade.³¹ The publications were consequently removed, and the ministry has since stopped reporting health data along with most public health institutions.³²

24 Latin America and the Caribbean 2018 : Regional overview of food security and nutrition: inequality and food systems (FAO, PAHO, WFP and UNICEF, 2019) <http://www.fao.org/3/ca2127en/CA2127EN.pdf>

25 See supra note 20. p. 64

26 ‘In Venezuela, Maduro regime used hunger to get votes’ (ShareAmerica.gov, 24 January 2019)

<https://share.america.gov/in-venezuela-maduro-regime-uses-hunger-to-get-votes/> see also, Vasco Cotovio and others, ‘Venezuela election comes amid humanitarian crisis, hunger’, CNN (New York City, 5 December 2020)

<https://edition.cnn.com/2020/12/05/americas/venezuela-election-preview/index.html>

27 Vivian Sequera, ‘Venezuelans report big weight losses in 2017 as hunger hits’, Reuters (London, 21 February 2021) <https://www.reuters.com/article/us-venezuela-food-idUSKCN1G52HA>

28 Meredith Kohut and Isayen Herrera, ‘As Venezuela Collapses, Children Are Dying of Hunger’, The New York Times (New York City, 17 December 2017)

<https://www.nytimes.com/interactive/2017/12/17/world/americas/venezuela-children-starving.html>

29 See supra note 20 p. 65

30 See supra note 28

31 Edith Bracho-Sanchez, ‘Infant deaths are on the rise in Venezuela, reversing years of improvements, study says’, CNN (New York City, 24 January 2019) <https://edition.cnn.com/2019/01/24/health/infant-mortality-venezuela- study/index.html>

32 Ibid.

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Nevertheless, some organizations provide sufficient data to determine severity, albeit not at a national level.

As with hunger, since 2014, Venezuela’s health system has been in crisis mode. By the end of 2017, pharmacies reported a shortage of around 85 % of drugs, and hospitals had less than 10 % of the supplies and medicine needed.³³ A Pan American Health Organization (PAHO) report suggests that almost half of all Venezuelan doctors had fled the country between 2012 - 2017.³⁴ In a 2018 survey of 104 hospitals, 79% had no running water, while 25% of ICUs were closed down.³⁵ This means that patients in urgent need of care were often left to fend for themselves. According to one report, 15% more people died from cancer in 2017 than in the previous year.³⁶ Similarly, concerning the 79,000 registered HIV patients, only 13 % are receiving adequate treatment due to a lack of medicine.³⁷ HIV cases have also increased by 24% from 2010-2016, while deaths have increased by 38%.³⁸ As vaccination programs are halted, previously eradicated diseases have made a comeback. Despite the elimination of the disease in Venezuela in 2007, measles has infected a confirmed 6,395 people in 2017 alone.³⁹ Similarly, 1,249 confirmed cases of formerly eradicated diphtheria have been recorded from 2016 to 2018.⁴⁰ By 2017, there were an approximate number of 411,00 cases of malaria; a drastic increase compared to just 50,000 cases in 2010.⁴¹ According to the same report, it is possible that in 2018 the caseload will have exceeded 1 million.⁴² Researchers also indicate a sharp increase in other diseases such as dengue, chikungunya, chagas disease, and zika.⁴³ Tuberculosis cases have reached their highest peak since 40 years ago.⁴⁴ Since

33 Anggy Polanco and Isaac Urrutia, ‘Venezuela’s chronic shortages give rise to 'medical flea markets'’ Reuters (London, 8 December 2017) <https://www.reuters.com/article/us-venezuela-medicine-idUSKBN1E21J4>

34164th Session of the Executive Committee: PAHO’s response to maintaining an effective technical cooperation agenda in Venezuela and neighbouring member states, CE164/INF/9, (PAHO and WHO, 14 June 2019)

<https://www3.paho.org/hq/index.php?option=com_docman&view=download&alias=49138-ce164-inf-9-e-paho- cooperation-venezuela&category_slug=164-executive-committee&Itemid=270&lang=en> ¶ 24

36 Vivian Sequera, ‘Venezuela healthcare collapse: Four children die in same hospital this month’ Reuters (London, 31 May 2019) <https://www.reuters.com/article/us-venezuela-health-idUSKCN1T122Q>

37 Michael Snyder, ‘The Venezuela Crisis and Infectious Disease Spread’ (Outbreak Observatory and Johns Hopkins: Center for Health Security, 28 February 2019) <https://www.outbreakobservatory.org/outbreakthursday- 1/2/28/2019/the-venezuela-crisis-and-infectious-disease-spread>

38 Ibid.

39 Ibid.

40 Ibid.

41 Ibid.

42 Ibid.

43 Ibid.

44 Ibid.

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2018, there has been increasing concern of the return of polio.⁴⁵ As Venezuela’s healthcare deteriorates, potentially millions in need of treatment are left behind while many are left bare to the spread of curable disease.

1.3 The Denial and Blockade of Humanitarian Aid

Despite a serious food and health crisis, Maduro had refused to recognize its existence. IHA was, for the most part, rejected. Only HA coming from the last remaining allies, such as Russia, was allowed to enter the country.⁴⁶ In 2018, Venezuela’s Health Minister Luis Lopez explained the country’s stance; “No way are we going to allow this right-winger to impose a supposed HA when our people are already being tended to by President Maduro''.⁴⁷ With aid continuously blocked, an aid relief campaign became a calling card for the opposition. As the crisis worsened, the delivery of HA became a political battle between Maduro and the opposition. In February 2019, Guaidó’s plan to bring IHA into the country through neighbouring countries ended bloody

1.3.1 The 2019 Aid Relief Campaign

Aid became the focal point of the opposition policy. In light of Maduro’s rejection of IHA, Guaidó jumped on the chance by accepting aid shipments.⁴⁸ In addition to the humanitarian concern, the aid campaign was intended to put further pressure on the armed forces to take sides.⁴⁹ The international coalition was to bring aid to three collection points, the Colombian city of Cúcuta, the Brazilian State of Roraima, and the island of Curaçao. As aid began piling up, a relief operation to bring the aid into Venezuela was attempted. On the 23rd of February 2019, IHA was forcibly prevented from entering the country.

45 Alberto E. Paniz-Mondolfi and others, 'Resurgence Of Vaccine-Preventable Diseases In Venezuela As A Regional Public Health Threat In The Americas' (2019) 25 Emerging Infectious Diseases.

46 Anatoly Kurmanaev, ‘Why Is Russia Helping Venezuela’ The New York Times (New York City, 8 March 2019)

<https://www.nytimes.com/2019/03/08/world/americas/russia-venezuela-maduro-putin.html>

47 Kejal Vyas and Ryan Dube, ‘Venezuelans Die as Maduro Government Refuses Medical Aid’ The Wall Street Journal (New York City, 6 April 2018) <https://www.wsj.com/articles/venezuelans-die-as-maduro-government- refuses-medical-aid-1523025805>

48 Michael Schwirtz, ‘U.N. Appeals to Maduro and Guaido to End Battle Over Humanitarian Aid’ The New York Times (New York City, 27 March 2019) <https://www.nytimes.com/2019/03/27/world/americas/venezuela-united- nations.html?searchResultPosition=5>

49 ‘Guaido vs Maduro: Who is backing whom in Venezuela?’ Reuters (London, 30 April 2019)

<https://www.reuters.com/article/us-venezuela-politics-support-factbox-idUSKCN1S62DY>

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1.3.2 Denial of a Humanitarian Crisis by the Venezuelan Government

On the 12th of February 2019, Maduro gave an infamous interview to BBC’s Orla Guerin outlining his government’s policy towards incoming aid. When asked about why the aid was not allowed to enter the country, Maduro responded that the humanitarian crisis is not actually and that aid was a pretext for an invasion. According to Maduro, Venezuela is “a country that has the capacity to satisfy all the necessities of our people”, and its people “do not beg from anyone”.⁵⁰ He added, that the BBC and American media have fabricated a situation in Venezuela which does not exist. While Maduro admits the country has problems, he adds that hunger is not one of them. Maduro claimed that “Venezuela has the highest levels of nutrients, and has extremely high levels of access to food”.⁵¹ He also claimed that the large numbers of refugees were actually a fabrication and only 800,000 Venezuelans have left the country in the past two years.⁵² He claimed that they already wanted to return. According to him, thousands of South Americans long to go to Venezuela due to the many work opportunities.⁵³ Maduro does however admit there is an economic struggle due to international sanctions. Nevertheless, when asked about the 1,000,000 % inflation rate, Maduro dismissed it as a lie propagated by western media.⁵⁴ When asked about the 50 countries that have recognized Guaidó, Maduro dismissed it as a lie. According to Maduro, this is all put forward by the agenda of the “Ku Klux Klan, that rules the White House” and wants to take over Venezuela and all other Latin American countries that are against him, are involved in this complot.⁵⁵ According to Maduro, there have been no recent violent protests. In sum, according to him, there is no humanitarian crisis and that any information that seems to point to this is fabricated in a conspiracy to invade Venezuela. Following the interview, Vice President Delcy Rodriguez claimed that aid coming from the US was a biological weapon to poison the people.⁵⁶ Maduro quickly arrested aid workers that were setting up humanitarian camps in Venezuela in anticipation for the

50 Interview of Nicolás Maduro by Orla Guerin (transcript), ‘Venezuela President Nicolás Maduro: Full transcript’

BBC (London, 12 February 2019) <https://www.bbc.com/news/world-latin-america-47211509>

51 Ibid.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid.

56 Rachelle Krygier and Siobhan O’Grady, ‘In Venezuela, humanitarian aid has become a political weapon’ The Washington Post (Washington D.C., 15 February 2019) <https://www.washingtonpost.com/world/the_americas/in- venezuela-humanitarian-aid-has-become-a-political-weapon/2019/02/14/5eab781a-3089-11e9-8781-

763619f12cb4_story.html>

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aid relief. Airways and maritime borders with the Dutch Caribbean islands were closed on the 17th.⁵⁷

1.3.3 The February 2019 Border Clashes

On the 20th of February 2019, the Pemon indigenous population blocked the entry of the Venezuelan armed forces in the Gran Sabana region. On the 22nd, the armed forces fired upon the protesters.⁵⁸ Two were killed, and fifteen injured.⁵⁹ Another border conflict, where the National Guard and colectivos attacked protesters in San Antonio del Tachira and Urena resulted in at least four dead and twenty injured.⁶⁰ The next day, four more were killed and twenty-four injured. The Brazilian army claims that Venezuelan armed forces were shooting live ammunition at people trying to accept aid.⁶¹ The biggest attempt to get aid into the country was at Cúcuta on the 23rd of February. Here, Pro-Maduro militias fired upon demonstrators in San Antonio del Tachira, right across the border.⁶² Five trucks made a daring attempt to cross the border. Two of the trucks were set ablaze, two were stolen by militia men and one was returned to Colombia.⁶³ A final attempt was made through the Caribbean Sea, but failed due to threats from the Venezuelan Navy.⁶⁴ By the 24th of February, the Organization of American States (OAS) reported more than 285 injured.⁶⁵ Sporadic clashes continued the following days. While not as successful as planned, between the 23rd of February and the 5th of April, 1,225 Venezuelan military personnel and police deserted in protest.⁶⁶

57 Maiana Zuniga and others, ‘Amid chaos and defiance, Venezuela opposition faces off against security forces as Maduro digs in’, The Washington Post (Washington D.C., 24 February 2019)

<https://www.washingtonpost.com/world/the_americas/guaido-and-supporters-prepare-to-challenge-maduros- blockade-of-aid/2019/02/22/b77eff44-3632-11e9-8375-e3dcf6b68558_story.html>

58 Maria Ramirez, ‘Soldiers held hostage, villagers killed: the untold story of Venezuelan aid violence’ Reuters (London, 21 May 2019) < https://www.reuters.com/article/us-venezuela-politics-pemon-insight-idUSKCN1SR1L0>

59 Ibid.

60 Nicholas Casey and others, ‘Some Aid From Brazil Pierces Venezuela’s Blockade, but Deadly Violence Erupts’

The New York Times (New York City, 23 February 2019)

<https://www.nytimes.com/2019/02/23/world/americas/venezuela-aid-border-maduro.html>

61 Ibid.

62 Emma Graham-Harrison and Joe Parkin Daniels, ‘Venezuela: at least four dead and hundreds injured in border standoff’ The Guardian (London, 24 February 2019) <https://www.theguardian.com/world/2019/feb/23/venezuela- border-latest-maduro-guaido>

63 Ibid.

64 Ibid.

65 Ibid.

66 ‘1.225 militares venezolanos en Colombia esperan el estatus de refugiados’, El Nacional (Caracas, 5 April 2019)

<https://www.elnacional.com/venezuela/politica/1225-militares-venezolanos-colombia-esperan-estatus- refugiados_277913/>

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1.3.4 Aftermath of the Humanitarian Aid Blockade

In light of international outcry, on the 29th of March 2019, the ICRC received permission from Venezuela to deliver HA and assist the government in its struggle against the humanitarian crisis.⁶⁷ This marked the first acknowledgement of such a humanitarian crisis. The Red Cross became the first official global relief organization to launch a campaign within Venezuela.⁶⁸ By the time this deal was announced, a leaked UN report indicated that around 7 million Venezuelans were in need of HA.⁶⁹ Nevertheless, the HA effort that has gone underway is not enough to alleviate the population’s suffering.⁷⁰ Not only is more aid needed, vast structural, economic and political changes will have to be made for there to be any alleviation of the crisis.

1.4 Humanitarian Aid Blocked in Numbers

Tons of aid containing essential food and medicine was blocked from entering the country.

According to the U.S. Agency for International Development (USAID), only 8 out of 368 tons of U.S. aid bound for Venezuela between February and April 2019 made it into the country.⁷¹ Aid blocked at the border on the 23rd of February 2019 was estimated to be worth around 64 million USD.⁷² While the actual amount of aid that could have been sent is unknown, recent numbers of donated aid might give a good indication as to how much aid could have been brought to the country. HA from USAID alone constituted 156 million in aid in 2020.⁷³ In 2020, The European Union (EU) pledged 144.2 million EUR for immediate HA, medium and longer-term development assistance and conflict prevention interventions to Venezuelans in Venezuela and in neighbouring

67 See supra note 2

68 See supra note 2

69 ‘Venezuela’s needs ‘significant and growing’ UN humanitarian chief warns Security Council, as ‘unparalleled’

exodus continues’ UN News (New York City, 10 April 2019) <https://news.un.org/en/story/2019/04/1036441>

70 See supra note 2

71 Julia Marnin, ‘Just 8 of 368 Tons of U.S. Aid to Venezuela Actually Reached Country, Report Says’, Newsweek (New York City, 29 April 2021) <https://www.newsweek.com/just-8-368-tons-us-aid-venezuela-actually-reached- country-report-says-1587503>

72 Siobhán O'Grady, ‘The U.S. says Maduro is blocking aid to starving people. The Venezuelan says his people aren’t beggars’, The Washington Post (Washington D.C., 8 February 2019)

<https://www.washingtonpost.com/world/2019/02/08/us-says-maduro-is-blocking-aid-starving-people-venezuelan- says-his-people-arent-beggars/>

73 ‘U.S. Foreign Aid by Country’ (USAID, 2021)

<https://explorer.usaid.gov/cd/VEN?measure=Obligations&fiscal_year=2020>

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countries.⁷⁴ The UN Humanitarian Response Plan (UNHRP) of 2019 set a target of 222.7 million USD of which 77.4 million was funded. The 2020 UNHRP required 762.5 million USD, of which 173.5 million was funded. The current 2021 UNHRP plan requiring 762.5 million has until now received around 2% of funds needed.⁷⁵ While the data shows that humanitarian response plans do not come close to their targets, hundreds of millions of USD are allocated each year. Around half of the amounts set out by the UNHRPs for Venezuela is focused on health and food security.⁷⁶ By denying the existence of a humanitarian crisis and blocking entry of HA, potentially hundreds of millions USD worth of aid was prevented from reaching vulnerable groups.

74 ‘EU mobilizes international donors to support Venezuelan refugees and migrants and countries in the region’ (EU Commission, 26 May 2020) <https://ec.europa.eu/international-partnerships/news/eu-mobilises-international- donors-support-venezuelan-refugees-and-migrants-and-countries-region_et>

75 ‘Humanitarian aid contributions 2019 - 2021’ (UNOCHA: Financial Tracking Service, 2021)

<https://fts.unocha.org/>

76 See Humanitarian Response Plan: with humanitarian needs overview Venezuela (OCHA, July 2019)

<https://reliefweb.int/sites/reliefweb.int/files/resources/venezuela_hrp_2020_en_vf.pdf>, Humanitarian Response Plan: with humanitarian needs overview Venezuela (OCHA, July 2020)

<https://reliefweb.int/sites/reliefweb.int/files/resources/venezuela_hrp_2020_en_vf.pdf>, Humanitarian Response Plan: with humanitarian needs overview Venezuela (OCHA, July 2021)

<https://reliefweb.int/sites/reliefweb.int/files/resources/venezuela_hrp_2020_en_vf.pdf>

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2. Blocking and Denying Aid as an International Crime

The actions of the Venezuelan government can be conceivably assessed according to the ICCSt.

This chapter evaluates whether the ICC has jurisdiction over the conduct. After considering this jurisdiction, this chapter evaluates the conduct in question in relation to genocide, war crimes and crimes against humanity.

2.1 A Transgression of International Law

There is a strong indication that international law has been breached by the Maduro government, by denying a humanitarian crisis and blocking HA. The ICC Office of the Prosecutor (OTP) received a State Referral from Argentina, Canada, Colombia, Chile, Paraguay, and Peru regarding the situation in the Bolivarian Republic of Venezuela since 12 February 2014, on the 17th of September 2018.⁷⁷ These States requested an investigation on crimes against humanity allegedly committed in the territory of Venezuela since 12 February 2014, and which persons should be charged with their commission. By 2020, the OTP concluded that there is a reasonable basis to believe that crimes against humanity had been committed, particularly in the context of detention.⁷⁸ Nevertheless, various commentators have called for the blockade of HA to be taken into consideration as well. Following the border clashes, Colombian Foreign Minister, Carlos Holmes Trujillo, stated that the blocking of aid was a crime that gives more reason to the investigation of the ICC.⁷⁹ Similarly Venezuelan National Assembly member, Miguel Pizarro, announced that the National Assembly would denounce the destruction of aid at the border as an international crime to be investigated by the ICC.⁸⁰ The Lima Group of Latin American (LGLA) has similarly urged the ICC to investigate the blockade of HA as a crime against humanity.⁸¹ The LGLA countries and

77 Referral of the situation in Venezuela under Article 14 of the Rome Statute submitted by the Republic of

Argentina, Canada, the Republic of Colombia, the Republic of Chile, the Republic of Paraguay and the Republic of Peru (ICC: OTP, 26 September 2018) <https://www.icc-cpi.int/itemsDocuments/180925-otp-referral-

venezuela_ENG.pdf>

78 Report on Preliminary Examination Activities 2020 (ICC: OTP, 14 December 2020) <https://www.icc- cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf> ¶ 204

79 Roberta Rampton and Luis Jaime Acosta, ‘Venezuela hit with new U.S. sanctions after clashes over food aid on border’, Reuters (London, 25 February 2019) <https://www.reuters.com/article/us-venezuela-politics-limagroup- idUSKCN1QE1XZ>

80 Sammy Paola Martinez, ‘Asamblea Nacional llevará a la CPI el incendio de camiones que contenía ayuda humanitaria’, El Pitazo (Caracas, 23 February 2019) <https://elpitazo.net/politica/asamblea-nacional-llevara-a-la- cpi-el-incendio-de-camiones-que-contenia-ayuda-humanitaria/>

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Canada have urged the ICC to declare Venezuelan President Maduro’s refusal to allow in HA a CAH.⁸² This paper, in line with that request, explores whether denying and blocking HA can be added to that list of crimes against humanity.

2.1 ICC Jurisdiction over the Situation in Venezuela

According to the ICCSt, the ICC’s jurisdiction extends over the territory and personality of a State Member.⁸³ Venezuela ratified its 1998 signature to the ICCSt on the 7th of June 2000. It has therefore consented to this jurisdiction.⁸⁴ It has not ratified the crime of aggression

amendment. The court may exercise jurisdiction over a case if it is either referred to it by a State party, a UNSC referral, or by the Prosecutor’s initiation.⁸⁵ The Situation in Venezuela is

currently under investigation and has reached phase II of a Preliminary Examination.⁸⁶ On the 8th of February 2018, a prosecutorial investigation was initiated on the basis of Article 15 ICCSt.

A State referral on the basis of Article 14 ICCSt followed on the 27th of September 2018, by the Argentine Republic, Canada, the Republic of Colombia, the Republic of Chile, the Republic of Paraguay and the Republic of Peru. Referred to the Court was the situation in Venezuela since the 12th of February 2014.⁸⁷ The Court, therefore, has jurisdiction over the conduct.

2.2 Crime of Genocide

Article 6 ICCSt defines the “genocide” as the commission of acts enumerated in (a) to (e) of that Article with the intent to “destroy, in whole or in part, a national, ethnical, racial or religious group”.⁸⁸ The acts listed are (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.⁸⁹ By refusing to recognize a humanitarian crisis, and denying and blocking aid

83 Article 12(2)(a) and (b) ICCSt

85 Article 13 ICCSt

86 ‘ICC: Preliminary Examinations’ (ICC, 2021) <https://www.icc-cpi.int/pages/pe.aspx>

88 Article 6 ICCSt

89 Article 6 (a) to (e) ICCSt

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from aiding persons affected, conditions were inflicted upon a population to conceivably amount to the acts prescribed by Article 6 (a), (b) and (c). An important reason behind the refusal of HA has been to control its distribution, in an effort to favour Maduro’s supporters and punish

dissidents.⁹⁰ Dissidents, however, are classified according to political affiliation not according to an “national, ethnical, racial or religious” classification. For this reason, the intent requirement cannot be met and no evaluation according to each act is needed. Because no genocidal intent can be identified, Article 6 does not apply.

2.3 War Crimes

The ICCSt deals with war crimes in Article 8. According to Article 8(1), the court has

jurisdiction if the crimes were committed “as part of a plan or policy or as part of a large-scale commission of such crimes”.⁹¹ Article 8(2)(a) lists grave breaches of humanitarian law as defined by the Geneva Conventions (GC), applying to both international armed conflicts (IACs) and non-international armed conflicts (NIACs).⁹² Potentially relevant to blocking HA is “torture or inhuman treatment” and “wilfully causing great suffering, or serious injury to body or

health”.⁹³ Under Article 8(2)(b) other serious violations of ‘the laws and customs applicable’ are listed. Herein, Article 8(2)(b)(xxv) is relevant, wherein the crime of starvation of civilians is postulated. Accordingly, starvation amounts to “depriving… [civilians] ... of objects

indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”.⁹⁴ While the original text States that these are only applicable in IACs, a recent amendment has included the crime of starvation for NIACs. On the 6th of December 2019, following a Swiss proposal, the ICC Assembly of State Parties unanimously decided to include the war crime of starvation in the context of NIACs.⁹⁵ However, Article 121(5) ICCSt, which lays out the effects of amendments, explains that this will only apply to the Member States which ratify that amendment and that it can only apply one year after ratification.⁹⁶ In essence, a

90 See Part 1, Section 1.2.1

91 Article 8 ICCSt

93 Article 8(2)(a)(ii) and Article 8(2)(iii) ICCSt (respectfully)

94 Article 8(2)(b)(xxv) ICCSt

95 Resolution on amendments to article 8 of the Rome Statute of the International Criminal Court, Resolution ICC- ASP/18/Res.5, on 6 December 2019 (ICC:ASP, 6 December 2019) <https://asp.icc-

cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Res5-ENG.pdf>

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State which has not ratified the amendment is not bound by it. One exception is a UNSC referral acting under Chapter VII of the UN Charter. A referral can be made under Article 13(b) ICCSt without regard to whether a State has ratified the amendment.⁹⁷ However, given the veto regime in the UNSC and the fact that only three States have ratified the amendment,⁹⁸ it seems unlikely that any such case on that basis will go through any time soon.

According to Article 8 ICCSt, for war crimes to apply; crimes must occur in the context of an armed conflict as defined by the Geneva Conventions (GC).⁹⁹ In order for the situation in Venezuela to be covered by IHL, it must achieve the classification of an armed conflict. While government crackdown on demonstrations have been particularly violent, there is little evidence to support the conclusion that the country is currently in a civil war. There is currently no organized armed group fighting the government, let alone one that is holding territory with the means to carry out military operations. Suffice to say, that Article 8 of the Statute is not relevant to the Venezuelan situation. Venezuela’s denial and blockade of HA can therefore not be

assessed as a war crime.

2.4 Crimes Against Humanity

Article 7(1) ICCSt defines a “crime against humanity” as the commission of acts enumerated in (1)(a) to (k) of that Article “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.¹⁰⁰ The acts enumerated are “(a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e)

imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)

persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender [...], or other grounds that are universally recognized as impermissible

97 Article 13(b) ICCSt

98 New Zealand, Andorra, and the Netherlands have ratified the amendment

‘The Netherlands accepts starvation amendment: one year on’ (Global Rights Compliance, 11 December 2020)

<https://www.globalrightscompliance.com/en/news/the-netherlands-accepts-starvation-amendment-one-year- on#_ftn3>

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under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.¹⁰¹ It is clear from the facts that there has been suffering as a result of State policy.¹⁰² This gives some indication that some acts

enumerated in Article 7 could have been committed in the context of a widespread or systematic attack. In this, it can be said that there is at least a prima facie indication that crimes against humanity could have been committed. The next chapter will therefore deal with a detailed analysis in order to come to a more concrete answer.

2.5 Conclusion

The ICC is entitled to exercise jurisdiction over the conduct in question. Not only does the prosecutor have the right to initiate an investigation over the conduct, but the Court has arguably already asserted this jurisdiction through its ongoing investigation. A preliminary evaluation of the conduct makes clear that no evaluations of the conduct can be made regarding the crime of genocide or war crimes. No evaluation of genocide can be made due to a lack of genocidal intent, while no evaluation of war crimes can be made due to a lack of armed conflict. Crimes against humanity, however, seem to offer a feasible avenue for evaluation.

101 Article 7(1)(a) to (k) ICCSt

102 See Part 1, Sections 1.2.1 - 1.4

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3. Blocking and Denying Aid as a Crime Against Humanity

Part 1 of this paper outlined the Venezuelan government’s denial of a humanitarian crisis, denial of aid, and the blockade of aid at the border. The government’s refusal of offered aid, together with the blockade, as well as the refusal to recognize a humanitarian crisis resulted in avoidable deaths, hunger and suffering. This chapter will evaluate this conduct according to crimes against humanity. Before advancing to that end, omissions liability at the ICC must first be addressed due to its importance to the following evaluations. Subsequently, each act enumerated under Article 7(1) will be addressed. There are two common criteria listed in the elements of all these crimes, namely; that they are committed in connection with “a widespread or systematic attack directed against any civilian population” and that “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population”.¹⁰³ Because of their commonality, these requirements will be addressed on their own after each individual evaluation.

3.1 Actions and Omissions

While there is a strong argument in suggesting that the humanitarian crisis in Venezuela is man- made, this is not relevant to the case. The humanitarian crisis exists regardless of accepting or denying aid. While it is the humanitarian situation which has caused the Venezuelan population’s suffering, it itself is not the attack. Instead, the consequences of the government’s policy of denial and blocking of aid are to be considered the attack. In essence, what caused the crimes was the government’s active denial and blockade of aid. In combination with these acts, however, is the general omission on the part of the government to prevent mass suffering. The government’s behaviour in relation to the humanitarian crisis therefore works at two levels, one of actively perpetuating suffering, and another failing to take care of its people; both working in tandem to result in the conduct under scrutiny. Before moving on to an evaluation of each act, it is therefore necessary to consider the relevance of omissions liability under the ICCSt.

103 See Article 7(1)(a), (b), (h) and (k) ICC Elements of Crimes (ICC, 2011)

<https://www.refworld.org/docid/4ff5dd7d2.html> (Hereafter referred to as Elements of Crimes)

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3.1.1 Omissions at the ICC

Determining whether omissions amount to crimes against humanity is new territory. On its face, it seems unclear whether omissions, outside specific crimes, are covered. The ICC Draft Statute did contain a general actus reus article outlining general omission liability.¹⁰⁴ However, as no consensus could be reached on omission requirements this was consequently deleted.¹⁰⁵ Explicit mention of omission liability is restricted to Article 28, referring to command responsibility, and crimes of omission, for example the crime of extermination under Art. 7(1)(b).¹⁰⁶ According to Per Saland, the former chairman of the working group of Part 3: General Principles of Criminal Law of the ICCSt, the exclusion of an explicit omission liability article was in order to allow future case law to develop its scope.¹⁰⁷ While the ICC has not developed this case law yet, arguably Article 21 ICCSt, outlining the sources of law, allows for its inclusion. According to Article 21, Customary international law and general principles are sources to which the ICC can resort.¹⁰⁸ In Duttwiler’s research, omission liability has a strong foundation as a general principle of law across various legal systems.¹⁰⁹ Similarly, Saland has concluded that the concept is prevalent in most national legal systems which recognize omission liability in criminal cases, in spite of a lack of explicit mention in criminal codes.¹¹⁰ Omission liability is also found across the case law of ad hoc international criminal law tribunals which have established that most offences incorporate omission liability despite their statutes referencing it only in respect to command responsibility.¹¹¹ Notably in the ICTY case, Karadžić, the argument that omission liability was restricted to articles where it was explicitly mentioned was rejected.¹¹² It, therefore, still remains up to the court to

104 See, Article 28 of the 1997 Draft Articles as included in:

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court:

Report of the Preparatory Committee on the Establishment of an International Criminal Court,

A/CONF.183/C.1/WGGP/L.4/Add.1. (UNGA, 14 April 1998) <https://digitallibrary.un.org/record/253772?ln=en>

105 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Report of the Preparatory Committee on the Establishment of an International Criminal Court,

A/CONF.183/C.1/WGGP/L.4/Add.1. (UNGA, 14 April 1998) <https://digitallibrary.un.org/record/253772?ln=en> p.

54 106 Gerhard Werle, Principles Of International Criminal Law (2nd edn, TMC Asser Press 2009) p. 639

107 Per Saland, 'Chapter 7: International Criminal Law Principles', The International Criminal Court: The making of the Rome Statute (1st edn, Martinus Nijhoff Publishers 1999) pp. 212-213.

108 Article 21(1)(b) and (c) ICCSt

109 Michael Duttwiler, 'Liability For Omission In International Criminal Law' (2006) 6 International Criminal Law Review p. 1

110 See supra note p. 212.

111 See. Prosecutor v. Tihomir Blaskic, Trial Chamber Judgment, IT-95-14-T, 3 March 2000 ¶¶ 154, 186 and;

Prosecutor v. Jean Kambanda, Trial Chamber Judgment, ICTR-97-23-S, 4 September 1998 ¶ 40.

112 Prosecutor v. Radovan Karadžić, Trial Chamber Judgment, IT-95-5/18-T, 24 March 2016 ¶¶ 2, 19-20

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determine the limits of omissions liability at the ICC. This paper, therefore, takes the view that because omission liability is not explicitly included in the ICCSt does not mean it is excluded and advances it in its arguments.

3.2 Addressing the Acts under Article 7(1)

3.2.1 Acts Excluded from Scope

Several acts listed in Article 7(1) cannot possibly be present in the current case. Due to clear differences in the elements of crimes and the relevant facts of the current case, the following analysis will not look at enslavement, imprisonment or other severe deprivation of physical liberty, torture, sexual crimes, enforced disappearance of persons, and the crime of apartheid.

The remaining acts enumerated, murder, extermination, deportation or forcible transfer of population, persecution and other inhumane acts, will therefore be considered below.

3.2.2 Murder

As a CAH, murder consists of three elements: “(1) the perpetrator killed (caused death) to one or more persons (2) the conduct was committed as part of a widespread or systematic attack directed against a civilian population (3) the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population”.¹¹³ The criteria will be considered below.

While it is probable that, due to the extent of the crisis, that deaths would have occurred despite the distribution of aid:¹¹⁴ there would have at least been some aid in preventing the extent to which the deaths occurred. According to Article 25(c)(3) ICCSt, a person is criminally responsible for facilitating the commission of a crime.¹¹⁵ The ICC has yet to form a more concrete stance on the actus reus requirement of this Article.¹¹⁶ The ad hoc international criminal tribunals do offer a more instructive view. According to ICTY case, Brđanin, deaths are caused by the perpetrator if

113 Elements of Crimes, p. 5

114 See Part 1, Section 1.3.4

115 “For the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its

commission or its attempted commission, including providing the means for its commission.” Article 15(c)(3) ICCSt

116 Anna Olofsson, 'Aiding And Abetting International Crimes: In The Light Of International Legal Pluralism' (PhD, Stockholm University 2021) p. 41

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an act or omission contributed substantially to the deaths.¹¹⁷ The blockade and denial of HA must therefore have substantially contributed to deaths to be considered as murder as a crime against humanity.

The deaths associated with denying and blocking aid are both direct and indirect. The direct effects are those caused by the active blockade itself. In their effort to block the Venezuelan armed forces, two Pemon protesters were killed. National guard and pro-government militias killed at least eight non-violent protesters at the borders. While there is no official death statistic, several protesters were killed.¹¹⁸ The indirect effects include all those that have died as a result of aid that was denied to them. As the evaluation in section 3.2.2 will argue, potentially thousands of persons have died as a result of the government’s active denial and blockade of HA. For now, it is not important to determine the number of deaths, as a single death can be a murder. It can therefore be concluded that the governmental policy of denying and blocking aid resulted in the death of civilians.

The mens rea for murder includes both dolus directus (direct intent) and dolus eventualis (indirect intent). In case of dolus directus, the perpetrator had the desire to kill while performing the act or omission, while in case of indirect intent, the perpetrator had knowledge of the probable result of his act or omission. In the Katanga case, the Court gave the criteria that the result must be nigh or impossible for him or her to envisage that the consequence will not occur.¹¹⁹ The actions of the Venezuelan government that led up to deaths are an example of indirect intent. Despite the government’s denial of the crisis, figures outlining the severity of the situation were widely available, coming from objective international and national sources.¹²⁰ By denying and blocking aid, the government either knew or thought it probable that deaths would happen. By virtue of this, there is sufficient evidence to conclude that there was an intent to cause deaths.

117 “The act of assistance need not have caused the act of the principal offender, but it must have had a substantial effect on the commission of the crime by the principal offender. The assistance may consist of an act or omission, and it may occur before, during, or after the act of the principal offender.” (emphasis added) Prosecutor v. Radoslav Brđanin, Trial Chamber Judgment, IT-99-36-T, 1 September 2004 ¶ 271; see also; Prosecutor v. Radovan Karadžić, Trial Chamber Judgment, IT-95-5/18-T, 24 March 2016 ¶¶ 574-576; Prosecutor v. Charles Ghankay Taylor, Appeals Chamber Judgment, SCSL-03-01-A, 26 September 2013 ¶ 385; Prosecutor v. Pauline Nyiramasuhuko and others, Appeals Chamber Judgment, ICTR-98-42-A, 14 December 2015 ¶ 3332.

118 See Part 1, Paragraph 3.1.3

119 Prosecutor v. Germain Katanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7 March 2014 ¶ 777

120 See Part 1, Sections 1.2 and 1.3.2

The Venezuelan Blockade of Humanitarian Aid as a Crime under the ICCSt