Economic Sanctions in International Law: Venezuela’s Conundrum
I. Introduction
The Congressional Research Service defines economic sanctions as “coercive economic measures taken against a target to bring about a change in behavior. . .[S]anctions can include . . . trade embargoes; restrictions on particular exports or imports; denial of foreign assistance . . . blocking of foreign assets under U.S. jurisdictions; and the prohibition on economic transactions that involve U.S. citizens or businesses.”[1] International organizations and governments have a long history of imposing economic sanctions as a method of altering or influencing the conduct of states.[2] Economic sanctions typically occur when the actions of a state threaten an international entity’s interests or violate customary behavior.[3]
The Western world has arguably been the staunchest supporter of economic sanctions and has utilized this policy tool in response to numerous geopolitical challenges, such as North Korea’s nuclear program and Russia’s intervention in Ukraine.[4] Supporters of economic sanctions argue that recent years have demonstrated the effectiveness of this international instrument, in particular as a response to human rights violations, while critics contend that sanctions are “rarely successful in changing a target’s conduct”[5] and are a form of “imperialism” leveraged by powerful states against weaker ones.[6]
II. United States Sanctions in Venezuela
Venezuela has remained a significant area of interest for international law, in particular with the March 2020 indictment of Former President of Venezuela Nicolás Maduro Moros and other high-level politicians for narco-terrorism, corruption, drug trafficking, and other related criminal charges.[7] In addition, global concern is growing in response to economic sanctions imposed by the United States and how the COVID-19 pandemic has exacerbated the disparate impact of the sanctions.[8] The United States initially sanctioned Venezuela in 2006, which prohibited “all commercial arms sales and retransfers in response to a lack of cooperation on anti-terrorism efforts and concerns about narcotics trafficking.” [9] More economic sanctions have been imposed since 2006, targeting individuals and corporations with “illicit trade” connections, with a specific focus on the Venezuelan government and military personnel after the highly controversial special election of former President Nicolas Maduro.[10]
During the Trump administration, sanctions against Venezuela dramatically increased, with the number of “blacklisted” individuals rising from twenty-four to hundred-sixty-six by 2017.[11] The United States also froze all of the Venezuelan government assets and threatened to sanction companies or states that were in support of the Maduro administration, which lead to the Venezuelan population suffering a thirty-five percent reduction in their economy in 2019.[12] Despite the Biden administration acknowledging that unilateral sanctions have not been successful in accomplishing “democratic reform,” the current administration has not rolled back any of the aforementioned sanctions.[13]
Noticeably, the collapse in the oil industry in Venezuela has rendered the country unable to afford food imports, which account for eighty-five percent of the food supply.[14] In 2020, the humanitarian crisis worsened in Venezuela, coinciding with the COVID-19 pandemic.[15] Hospitals are currently facing significant shortages, such as sanitation products and running water.[16] Although Venezuela has received some humanitarian aid, donor countries have been hesitant to render aid due to the “complexity surrounding U.S. sanctions” and the government’s record of human right violations.[17] The Venezuelan economic situation has raised questions of overstepping by nations and concerns of crimes against humanity.
III. Economic Crimes Against Humanity?
Venezuela sought the assistance of the International Criminal Court (“ICC”) concerning the pressing economic situation.[18] They claim that the United States is actively participating in crimes against humanity through the strict economic sanctions they continue to impose.[19] While the sanctions have been in place for years, the issue has recently become concerning due to COVID-19, with UN experts requesting that the United States lift economic sanctions in Venezuela and other states.[20] Venezuela argues that these sanctions amount to acts of murder, extermination, deportation, persecution, and other inhumane acts.[21] However, under Article 7 of the Rome Statute, these acts can only be considered crimes against humanity if “committed as part of a widespread or systemic attack directed against a civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[22] In Prosecutor v. Germain Katanga, the Chamber held that there must be a nexus between the acts of murder or deportation and the sanctions to demonstrate that one State was attempting to commit an attack through sanctions against another State’s population.[23] In this matter, as conceded by Venezuelan authorities and reiterated in their brief, the “actual purpose of the sanctions is not to commit any of these acts, but to produce regime change.”[24] However, this assertion does little to alleviate the fact that thousands of Venezuelan citizens are suffering from the economic sanctions imposed by the United States government.
In a recent report by the United Nations Special Rapporteur on the impact of economic sanctions on human rights in Venezuela, Ms. Alena Douhan urged all the parties to remember their obligations under the UN Charter to “observe principles and norms of international law, including principles of sovereign equality, political independence, non-intervention in the domestic affairs of states, and peaceful settlement of international disputes.”[25] Specifically, the Special Rapporteur emphasized that political concerns should not trump humanitarian concerns and that “no good intention justifies the violation of fundamental human rights as collateral damage.”[26] Economic sanctions have always generated controversy and debate; however, the use of sanctions has often coincided with a State’s abuse of human rights and other international policies as a way to curtail bad behavior. The recent developments in Venezuela have significantly impacted the way international organizations view unilateral economic sanctions and whether they should remain a tool to be utilized in international law.
[1] Economic Sanctions: Overview for the 117th Congress, Cong. Res. Serv. (Jan. 15, 2021), www.crsreports.congress.gov/product/pdf/IF/IF11730.
[2] Jonathan Masters, What Are Economic Sanctions?, Council on Foreign Rel. (Aug. 12, 2019), www.cfr.org/backgrounder/what-are-economic-sanctions [https://perma.cc/D4PB-NQED].
[3] Id.
[4] Id.; see also Steven Pifer, Managing US sanctions toward Russia, Brookings Inst. (Dec. 11, 2020), www.brookings.edu/blog/order-from-chaos/2020/12/11/managing-us-sanctions-toward-russia [https://perma.cc/V2XJ-RTPA] (need parenthetical for “see also” signal). The United States sanctioned Russia for its aggression towards Ukraine, due to its “cyber and disinformation activities aimed at affecting US domestic politics.” Id. The sanctions were imposed through executive orders and legislation, which resulted in visa denials, assets frozen, while other sanctions focused on companies, and the Russian economy, specifically the “financial, energy, and high-tech sectors.” Id. As a result, the United States imposed sanctions have had a significant impact on Russia's economic growth. Id.
[5] Masters, supra note 2.
[6] Dapo Akande et al., Economic Sanctions, International Law, and Crimes Against Humanity: Venezuela's ICC Referral, 115 Am. J. Int’l L. 493–512 (2021).
[7] Maduro, and Other High Ranking Venezuelan Officials Allegedly Partnered with the FARC to Use Cocaine as a Weapon to "Flood" the United States, U.S. Dept. of Justice (Mar. 26, 2020), www.justice.gov/opa/pr/nicol-s-maduro-moros-and-14-current-and-former-venezuelan-officials-charged-narco-terrorism [https://perma.cc/H39Z-5EMQ].
[8] Neval Mulaomerovic, Venezuelan Sanctions: Weaknesses in US Leadership in Latin America, Medium (Mar. 30, 2021), medium.com/una-nca-snapshots/venezuelan-sanctions-weaknesses-in-us-leadership-in-latin-america-df94719f87a [https://perma.cc/SAY2-KXRG].
[9] Id.
[10] Id. In 2013 Nicolas Maduro assumed the presidency in what many individuals alleged was a fraudulent special election. Id.
[11] Id.; Kristin Martinez-Gugerli and Geoff Ramsey, Venezuela Targeted Sanctions Update: Individual Sanctions Under Trump, Venez. Pol. and Hum. Rts. Blog (Feb. 1, 2021), www.venezuelablog.org/sanctions-update-individual-sanctions-trump/) (explaining that a foreign individual’s assets located in the United States are frozen when that individual is sanctioned, or “blacklisted,” by the U.S. government).
[12] Mulaomerovic, supra note 8.
[13] Id.
[14] John Otis, Venezuela’s Food Chain is Breaking, and Millions Go Hungry, Wsj (Oct. 1, 2020), www.wsj.com/articles/venezuelas-food-chain-is-breaking-and-millions-go-hungry-11601544601.
[15] Moises Rendon, COVID-19 in Venezuela: How the Pandemic Deepened a Humanitarian Crisis, Csis (Sept. 23, 2020), www.csis.org/analysis/covid-19-venezuela-how-pandemic-deepened-humanitarian-crisis.
[16] Id.
[17] Id. As of September 2020, Venezuela was estimated to require $760 million in COVID-19 related aid, yet had only received around $140 million.
[18] Federico J. Wynter, US Sanctions in Venezuela: Economic Crimes Against Humanity?, Opiniojuris (May 23, 2020), www.opiniojuris.org/2020/05/23/us-sanctions-in-venezuela-economic-crimes-against-humanity [https://perma.cc/EU8N-KTWK].
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. See also Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment pursuant to Article 74 of the Statute (March 7, 2014) (holding under Article 7(2)(a) an attack must be “pursuant to or in furtherance of a State or organizational policy to commit such attack.”)
[24] Id.
[25] Preliminary Findings of the Visit to the Bolivarian Republic of Venezuela by the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, U.N. Off. of the High Comm’r (Feb. 12, 2021), www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26747.
[26] Id.