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In this second piece related to crimes against humanity, we dive deep into their context in order to determine the circumstances in Venezuela that cause them. We also list some of the types of crimes against humanity that may have occurred or are still occurring in Venezuela.

Context of crimes against humanity in Venezuela:

As we explained in last week’s piece, crimes against humanity are defined as generalized or systematic attacks against a civilian population, with knowledge of such attacks. As such, point A of article 7.2 of the statute defines “attack against a civilian population” as a line of conduct that consists in the committal of multiple acts of violence (explicitly listed in article 7.1) against the population, according to the policy of a state or of an organization with the purpose of committing such attacks or promoting such policy.

The International Criminal Court, in its decision to open an investigation in Kenia (2010), declared that a systematic character refers to “the organized character of violence acts and the improbability of their occurrence by mere chance”. In the case against Katanga, the Pre-trial chamber I added that the term “has been interpreted as an organized plan in accordance with a common policy, that follows a regular pattern and gives way to a constant committal of crimes or criminal patterns, in a way that the crimes make part of a deliberate and familiar delictive pattern in a periodic way.” With greater detail, the pre-trial chamber II, in the case against Ntaganda, held that the attack had been systematic because “the authors had employed similar means and methods to attack various locations knowingly, they approached their targets simultaneously, in large numbers and from different directions, they attacked villages with heavy weapons and systematically persecuted the population with similar methods, registering every home and searching in bushes, burning down every building and sacking them.”

Since at least February 2014, it has been observed the possible occurrence of systematic attacks against political dissenters or those perceived as opponents that participate in protests against the government of Nicolas Maduro. These acts of violence include the indiscriminate repression of political manifestations, jailings during and after protests, torturing of those detained, according to a policy or common plan for the joint or separate acting of agents of state or of armed paramilitary groups known as “colectivos”, with the “Plan Zamora” being evidence of its articulation and execution.

Such attacks are not limited to the political opposition, as the report by the panel of experts designated by the Secretary-General of the OAS clearly states, “the government increasingly persecutes members of the Armed Forces who do not demonstrate enough support for the regime and do not defend the political ideology of ‘21st Century Socialism’”. Additionally, as is recounted in the testimony of General Garcia, the attacks have widened in scope, targeting any civilian that criticizes the government, now considered an “internal enemy” of the state.

With respect to operations of civil security (OLP and FAES), the recurrent and methodical way in which murders have been committed, reflect the existence of patterns that evidence the systemic nature of their actions according to a policy or common plan to commit such assassinations. As was reflected in the compiled testimonies in the 2017 and 2019 reports by the Office of the United Nations High Commissioner for Human Rights, as well as the report presented in june 2019 by Amnesty International.

The plan or policy that enables the carrying out of crimes against humanity may, in exceptional circumstances, be executed by means of a deliberate omission to act and that knowingly aims to encourage attacks of such kind, as was stated by the ICC in the case against Bemba. In that way, attacks perpetrated by armed groups such as “colectivos” operate in conformity to a state plan that conceives deliberate omission as the chosen means to carry out such crimes.

Finally, regarding the plan or policy, in the sentence against Gbagbo, the ICC held that policy, to the effects of the statute, is the active promotion or encouragement of attacks against a civilian population on behalf of a state or organization. Nonetheless, it must be taken into account that the requirement of the perpetrator’s knowledge of the attack must not be interpreted as the necessity that they are fully aware of all the characteristics of the attack nor of the detailed aspects of the plan or of the policy of the state or the organization.

The requirement that the attack is carried out against a civilian population, in conformity to the statute, does not mean that the entire population in a given geographical location must be the target of the attack. On the contrary, the definition indicates that the collective character of the crime means it is an attack against multiple victims. The attacks committed in Venezuela have affected numerous victims in practically the entirety of the national territory, according to common characteristics: political opposition groups, people who participate in anti government demonstrations and young men between 18 and 35 years of age who live in poor neighborhoods.

Categories of crimes against humanity that have been committed or may be underway in Venezuela:

Article 7.1 a)-k) of the Rome statute codifies forbidden acts that constitute crimes against humanity. For the occurrence of one of these acts, both contextual elements (which are analyzed in advance), as well as the specific elements of each act must concur, which are enshrined in the Elements of Crimes (Art. 7). It’s worth mentioning that for people that carry out some of these acts commit, in fact, a crime against humanity, it is not necessary that the person perpetrates several acts, but instead that the act is part of a generalized or systematic attack targeting a civilian population. It is also not required that the act is executed during the generalized attack against the population so that it fits the criteria, since the crime can be part of the broader attack if it can be sufficiently linked with it.

We believe there’s a reasonable basis to affirm that the following crimes against humanity may have been committed or are currently underway in Venezuela:

Murder (Art. 7.1 a): The Rome Statute states that for this crime to materialize it is necessary that “The author has killed one or more people”.

Jailing or another serious deprivation of liberty (Art. 7.1.e): It is required that the author has “jailed one or more people or has subjected them in any other way, to a grave deprivation of their physical liberty”; Additionally, the infraction must amount to an infraction of fundamental norms of international law. According to the Elements of crimes, the author must also be “aware of the circumstances that determined the seriousness of their conduct”

Torture (Art. 7.1 f): Article 7.2 e defines torture as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;” On the other hand, in the Elements of Crimes establishes that “it is not necessary to establish any specific intention with relation to this crime.” This definition is identical to the one described in Art. 1.1 of Convention against Torture, but the requirement of needing a specific purpose is removed.

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity (7.1 g): Rape as a crime against humanity is of particular interest regarding the situation in Venezuela, In the Elements of Crimes, Rape is defined as an act that implies that “The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.” It is necessary that said invasion had taken place forcefully, or under the threat of violence, or, due to coercion caused by fear of violence, intimidation, detainment, psychological oppression or abuse of power, against said person or any other person by taking advantage of an environment of coercion, or if the act was committed against a person incapable of giving their full consent. In the Elements of Crimes, it is stated that the act of Rape is indifferent regarding the gender of the victim.

Persecution of a group or collectivity with an own identity (Art. 7.1 h): We will address this category of crime against humanity in a separate issue.