Pursuing Justice. Finding Solutions.

The Gonzaga Journal of International Law screened the documentary “Pray the Devil Back to Hell” on September 16, 2015. Amos Kofa is a student in the international program at Gonzaga University School of Law. Amos is from Liberia, attended the screening, and provided some background on the Liberian civil war during the event.

The Republic of Liberia is located in West Africa and bordered by Guinea, Sierra Leone and Ivory Coast. Liberia, which means “land of the free,” was established by free African-Americans and freed slaves from the United States in 1820. The initial group of 86 immigrants, who came to be called Americo-Liberians, established a settlement in Christopolis (the City of Christ) now Monrovia, named after U.S. President James Monroe on February 6, 1820.

Thousands of freed American slaves and free African-Americans arrived during the following years, leading to the formation of more settlements and culminating in a declaration of independence of the Republic of Liberia on July 26, 1847. The drive to resettle freed slaves in Africa was promoted by the American Colonization Society (ACS), an organization of white clergymen, abolitionists, and slave owners founded in 1816.


The settlers ruled Liberia for over a period of 133 years (1847-1980) with high level of class discrimination and marginalization between Americo-Liberians and indigenous Liberians. Americo-Liberian dominance came to an end on April 12, 1980, when the military led by Master Sergeant Samuel K. Doe overthrew the late President William R. Tolbert, Jr.

The Liberian civil wars raged from 1989 to 1996, claiming the lives of more than 200,000 Liberians and displacing a million others into refugee camps in neighboring countries. The Economic Community of West African States (ECOWAS) intervened in 1990 and succeeded in preventing Charles Taylor from capturing Monrovia. In July 1990 Prince Johnson, member of Taylor’s National Patriotic Front of Liberia broke away and formed the Independent National Patriotic Front of Liberia. On September 9, 1990 Prince Johnson’s forces captured and killed Doe.

Transitional Government

In October of 1990, an Interim Government of National Unity was formed in Gambia under the auspices of ECOWAS, headed by Dr. Amos C. Sawyer, former Professor & Dean of the Department of Political Science, University of Liberia. Taylor, the key player at the time, refused to work with the interim government and continued fighting. From there, the fighting only intensified, as different factions joined in.

Dr. Sawyer remained in power until March 7, 1994, and was succeeded by a rapid succession of heads of state (David Donald Kpormakpor, Wilton G. S. Sankawulo, and Ruth Sando Perry) acting as Chairmen of the Council of State for the Liberian National Transitional Government. Ruth Perry was Africa’s first non-elected female leader.

1997 Election

Elections were conducted in July 1997. Charles Taylor was declared winner, garnering nearly 75 percent of the vote. Some have speculated that Taylor won because many citizens believed that electing him was the only way to end the war.

Two years after Taylor’s election, an opposition movement to Taylor’s government within Liberia emerged. The opposition group, Liberians United for Reconciliation and Democracy (LURD), began to topple Taylor’s Government.  By 2000, LURD controlled nearly 80 percent of the countryside. Fighting between the government forces and LURD continued through 2002, but Taylor maintained control of Monrovia.

 Peace and the Role of Liberia’s Women

The war between Taylor and LURD continued to escalate, killing hundreds of thousands people. The women of Liberia, under the leadership of Leemah Gbowee, decided to engage Charles Taylor and the LURD leadership to seek reasons to the end the fighting. In the film “Pray the Devil Back to Hell,” women presented a positioned statement to Taylor asking him to act to prevent further bloodshed during the Liberian Civil War.

“Pray the Devil Back to Hell” demonstrates the major role played by the women of Liberia in the peacemaking process toward the end of the Liberian civil war. The movie presents the suffering of the Liberian people to the rest of the world. People who have not had the opportunity to view that movie are encouraged to so in order to understand how the women of Liberia fought for peace during Liberia’s civil war.

by Amos Kofa


Crimes Against Humanity in Venezuela

Susana Mijares Pena*

“Even in tragedy, Latin America can’t compete. . . the region’s poverty is not as grim as Africa’s, armed conflicts not as threatening as Asia’s, and terrorists not as suicidal as the Middle East’s. The problems in Latin America are often overshadowed by those in the rest of the world. . .” [1]


Hugo Chavez, and his socialism and revolutionary ideas, won the 1999 presidential elections in Venezuela with an overwhelming majority.[2] For some, this victory was the result of previous elected governments forgetting about the needs of the most popular sectors, and only a small part of society having real opportunities to progress and have a decent life. Chavez’s movement, so-called “Chavismo”, was said to give priority to the poorest sectors, giving them the opportunity to have better access to health, education and food sources.[3] This gave hope to thousands of Venezuelans, who, without suspecting how devastated their country would be fifteen years later, gave the charismatic leader, and his state policies, their unconditional support, including Chávez’s plan to form a political and economic alliance between Cuba and Venezuela.[4] To this aim, Chavez took control of the country’s legislative, executive, judicial and electoral branches.[5] Chavez died in March 2013 after fourteen years in power;[6] yet, Chavismo did not die with him. Chavez had publicly announced that it was Nicolas Maduro, Venezuela’s current president, who should continue as the head of the populist social movement in his absence.[7]

Since Chavez’s administration, there have been reports of serious accusations of offenses against the vital basic interests of the dissenting population; however, this paper is limited to the alleged crimes against humanity (“CAH”) recently committed during the ongoing anti-government protests in the South American country. Even though the category of CAH under customary international law is said to be sufficiently well-defined today,[8] the argued crimes could also be governed by national criminal laws as human rights violations. Therefore, this paper aims to discuss the set of common features that distinguish these offenses as CAH, having as the ultimate objective the protection of individuals from the abuses and misdeeds of their own governmental authorities. The argued murder, torture, and indiscriminate and mass arrests, as part of a state policy founded on political grounds and directed against a group of civilians, meet the ICC’s threshold on substance and gravity as to be considered international crimes, concerning the entire international community. Ironically though, an initial discouraging aspect of Venezuela’s current agony was its isolation;[9] this forced Venezuelan protestors to document all possible evidence, with the goal of being presented before international organizations, and the hope of future accountability for the perpetrators.

The first part of this paper provides a brief background on Venezuela and the reasons behind the ongoing demonstrations. Then, Venezuela’s current legal framework in the area of human rights is presented, including national obligations, as well as international treaties and conventions ratified by the country. Part III of the paper discusses the elements of CAH in order to prove that the crimes being committed by the Venezuelan National Securities Forces and the armed groups Colectivos[10] are within the category of CAH. The last part of the paper analyzes the viability of the International Criminal Court (“ICC”) having jurisdiction to prosecute the denounced offenses, once it is established that Venezuela’s judiciary is unable or unwilling to prosecute these crimes.


To date, Venezuela is the first oil producer in Latin America and the country with the largest oil reserves in the world.[11] However, the results of fifteen years of Chavismo are all too visible. Undeniably, this South America nation is the world’s homicide capital,[12] as homicides within the country have quadrupled in the past fifteen years;[13] has a “sky-high inflation”[14] rate of over 50 percent;[15] suffers acute scarcities of food and indispensable products;[16] and, has a weak and artificial economy where citizens “pay up to four times as much as the market price.”[17] Furthermore, there is evident censorship of the news media, as the government attempts to silence any expressions of dissent. The government, through the Venezuelan National Telecommunications Commission, controls a majority of the television stations.[18] Similarly, independent radio is practically non-existent, and the government also has control over the sale of newsprint.[19] Finally, Maduro was said to win the presidential election with a meager 1.5 percent margin of victory over the opposition’s candidate;[20] however, his victory was, and still is, disputed by the Venezuelan opposition, as the result is suspected to be fraudulent[21] and the government subsequently denied a vote recount.[22] Since then, the opposition population has considered Maduro an illegitimate president.[23] For all the mentioned reasons, students started protesting in the western part of the country. The protests turned violent,[24] and as a result, several students were arrested. It was this latter event that led to demonstrations in Caracas on February 12, 2014, Venezuela’s National Youth Day.[25] Opposition leaders and students from across the country came together in a peaceful manifestation to express their discontent with Maduro’s regimen, and also to call for the release of the arrested students.[26]

Clashes between anti-government protestors on one side, and the Colectivos and the security forces on the other resulted in the deaths of three people, dozens of injuries, and around another 100 arrested.[27] According to Venezuela’s Attorney General, more than one-third of those detained were students.[28] As a result, thousands of Venezuelans decided to enjoy the manifestations in different cities throughout the country; including at least nearly half of the population that voted against Maduro, meaning that the protestors included thousands living in poverty, a group which Maduro claims to represent.[29] For his part, Maduro condemned protestors as a group of “fascists” that form part of a subversive campaign hatched in the United States.[30] Hence, he has chosen to repress the dissenting demonstrations.[31] Even though the protests were initially peaceful, they often turned violent. Still, security forces have responded with “excessive and unlawful force against protestors on multiple occasions . . . including beating detainees and shooting at crowds of unarmed people.”[32] Additionally, national authorities have intentionally acted with a negligent attitude with respect to the participation of pro-government armed groups operating as paramilitary units and exercising acts of violence against civilians.[33]

The media censorship in Venezuela, as well as photo manipulation by both sides in the conflict, made it difficult initially for other countries and international organizations to form a complete picture of what was truly happening in the protests.[34] This is especially true since the local TV channels are barely covering the massive anti-government manifestations; therefore, Venezuelans have been turning to social media to stay informed.[35] Nonetheless, media blackouts have obstructed the flow of information during some of the most violent clashes between anti-government protesters and national authorities.[36] More alarming, in some states, the internet was completely shut off for several days;[37] transmissions of TV channels that criticized the government were blocked;[38] and other media were threatened in case they decided to cover the events in the streets in their news reports.[39] For instance, when CNN reporters’ coverage of the protests favored the opposition,[40] Maduro publicly announced possible measures to take the channel off the airwaves in Venezuela.[41] Likewise, local and international journalists covering the protests, as well as human rights activists “have reported being subject to acts of violence and intimidation by government agents or supporters.”[42]

For all these reasons, international organizations such as Amnesty International[43] and Human Rights Watch[44] have expressed concern about the situation in Venezuela. Similarly, a group of independent United Nations (“UN”) Human Rights Experts has prompted the Venezuelan government to clarify and investigate the allegations of arbitrary detention, with protesters reported having been tortured by security forces, kept isolated during detention, and denied access to legal assistance.[45] The UN Secretary General, Ban Ki-moon, has prompted the Venezuela government to “listen carefully to the aspirations”[46] of the opposition and engage in a peaceful dialogue. Meanwhile, local organizations engaging in the defense of human rights in Venezuela have documented, through witnesses, amateur videos, and pictures, the systematic violation of Venezuelan citizens’ human rights.[47] As a result, on March 10, 2014, Juan Mendez, Special Rapporteur of the United Nations Convention against Torture, received new allegations of cases of torture by the security forces.[48] Mendez, consequently, has solicited an intense investigation into these allegations, since he found substantiated evidence to sustain cases of severe torture against protestors.[49] On April 8, 2014, a petition to the ICC’s Prosecutor to investigate the alleged CAH committed by Maduro and other officials was submitted by the NGO Observatorio Iberoamericano de la Democracia.[50]

Many countries have formally rejected the violent repression by the Venezuelan government against protestors, including the United States, Panama, Chile, Canada, and Spain, as well as the European Community countries by majority votes in the European Parliament.[51] In general, member countries of the European Parliament have urged the Venezuelan government to ensure the security of all its citizens.[52] They demand the immediate disarming of the uncontrolled armed pro-government groups and the end of their impunity; the immediate liberation of arrested students and opposition leaders; and freedom of the press, information and opinion within the country.[53] Sadly, most countries in the region have supported the actions taken by the Venezuelan government, such as Ecuador, Bolivia, Cuba, Argentina and several Caribbean countries.[54] Perhaps the exchange of cheap oil for political alliances and a common left ideology are a more attractive alternative than the defense against CAH within the region, especially considering that the Venezuelan government has remained in power for the past fifteen years.


The Venezuelan Constitution (hereinafter, “Constitution”) is the supreme norm in the country; it fully guarantees the rights to freedom of peaceful public and private assembly,[55] association,[56] opinion and expression.[57] It also contains a principle that gives the Venezuelan people the right to reject any regimen, legislation or authority that contradicts democratic values or any other constitutional rights as to impair Venezuelans’ human rights.[58] In fact, the Constitution expressly establishes that any public act that violates or encroaches on the rights guaranteed by this supreme norm should be deemed as a void act.[59] In addition, public officials involved in such illegitimate acts will incur criminal, civil and/‌or administrative responsibility according to the case, regardless of whether they were obeying the orders of superiors.[60] The Venezuelan opposition frequently cites these constitutional norms, as all public officials responsible for implementing orders during the massive anti-government demonstrations could be held nationally liable for the human rights violations committed against protestors.[61] This is because orders impairing peoples’ human rights violate the spirit, purpose and reasons for the mentioned constitutional principles.

Moreover, the Venezuelan Constitution establishes that international treaties, covenants, and conventions on human rights, signed and ratified by the State, have constitutional rank and prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and exercise more favorable than those established by the Constitution and the laws of the Republic.[62] In this sense, Venezuela has ratified the International Covenant on Civil and Political Rights (hereinafter “ICCPR”),[63] as well as the Rome Statute of the International Criminal Court (hereinafter “ICC Statute”).[64] Venezuela is also a member of the Organization of American States (“OAS”);[65] however, in 2012, the government submitted a formal notice of denunciation of the Inter-American Commission on Human Rights (“ACHR”). This denunciation took effect in September 2013, leaving Venezuelans without the full protection of the ACHR.[66] Nonetheless, this entity will continue overseeing the human rights situation in Venezuela, as well as handling cases and precautionary measures, as the country continues to be an OAS member.[67]

Lastly, but not least, crimes like large-scale murder and torture form part of customary international law as well; thus, the government of Venezuela is bound to protect Venezuelans’ human rights related to those crimes, despite any ratification to the relevant international treaties expressly penalizing CAH.[68]


After years of law development, the current actus rea for CAH penalizes inhumane acts committed on a widespread or systematic basis.[69] To date, CAH also encompass inhumane acts committed during non-international armed conflicts, as its international element arises from the fact that the attacks are directed against a civilian population.[70] The legal elements of CAH have been crystalized in article 7 of the ICC Statute, which tried to codify existing customary law.[71] However, there are still difficulties in the interpretation and application of the threshold for CAH.[72] This section of the paper discusses the legal features and elements of CAH, and how they have materialized during the ongoing protests in Venezuela, thus exhibiting how the crimes committed in Venezuela should be deemed “serious crimes of concern to the [entire] international community;”[73] and consequently, being formally recognized as CAH committed by officials of the Venezuelan government.

IV.1. The Subjective Element: Who is Responsible for the CAH committed in Venezuela?

The most common perpetrators of CAH are official agents acting in their official capacity and on behalf of governmental authorities.[74] Therefore, these perpetrators usually act through general state policy to find support for their misdeeds.[75] In the recent massive protests in Venezuela, hundreds of cases denunciate the excessive and brutal use of force by different National Security Forces against civilians;[76] including cases alleging torture and inhumane treatment against detained students and protestors. Specifically, protestors allege torture across the country by the Bolivian National Guard (GNB); by the Body of Scientific, Penal, and Criminal Investigations (CICPC) in the States of Carabobo and Caracas; and by the Bolivian National Intelligence Services (SEBIN) in Caracas and Merida.[77] As a result, various national military commanders could initially be identified as perpetrators of CAH committed during the ongoing protests.[78]

These non-military and military superiors are criminally responsible for the potential unlawful orders given to their subordinates, as well as the CAH offenses that resulted from their failure to properly control the conduct of those under their command.[79]  The alleged CAH have taken place over a period of three months and in a similar manner all over the country. Therefore, by virtue of their positions as senior authorities of the groups directly controlling the protests, these commanders could have taken sufficient measures to prevent their subordinates’ unlawful conduct, and could have investigated the allegations of unlawful acts by them. Had they done this, they could have stopped the occurrence of these crimes.[80] It was reasonable and foreseeable for these high-ranking officials to acknowledge that their actions and omissions could result, or were about to result, in the commission of CAH offenses. These individuals are responsible irrespective of whether they acted pursuant to orders from their own superiors, such as orders from the President. They are also criminally responsible, even in the case that subordinate actors were held individually liable as a result.[81]

Furthermore, the scope of CAH also comprises those inhumane acts committed by non-state actors with a certain level of organization; particularly, these groups are intricately bound with the existence of non-international conflicts, such as in Venezuela.[82] These groups include paramilitary units and armed civilian groups.[83] In Venezuela, the armed groups, so-called Colectivos, have committed many of the alleged CAH; in fact, they are responsible for most of the deaths during the ongoing protests.[84] However, the most challenged element to satisfy, in order to deem the offenses committed by these armed groups as CAH, is the “policy [component] underlying the large-scale victimization.”[85] This will require linking these groups with the government and its organizational policy and systematic attacks.[86] President Maduro has publicly stated that his administration would not accept violent acts from these groups or any other group, and that the National Forces alone are responsible for controlling the ongoing protests.[87] However, amateur videos, witnesses, and pictures collected by the opposition have showed how these armed groups brutally act against unarmed civilians, despite the presence of the security forces.[88] The latter have not only protected the armed groups on some occasions, but have also acted in collaboration with them during the current repressive attacks across the country;[89] they have even been called a “fundamental pillar in the defense of the homeland.”[90] Evidence suggests that government officials directed, encouraged, instigated, or at least, tolerated a deliberate policy of widespread and systematic attacks by the Colectivos against the anti-government protestors.[91] This is also reflected by the fact that these armed groups have openly operated within the country for years; yet, the Venezuelan government still has not taken effective steps to disarm these groups.[92] Arguably, the Venezuelan government has complete control over the Colectivos, as the former has “intervened in the formation, financing, equipping, and planning of the activities” of these armed groups.[93] This has permitted the government to attack the opposition without taking the blame for their criminal acts. Therefore, it is worth noting that, according to international jurisprudence, this type of general control over these groups is a key element to determine the government’s international responsibility in situations of this nature.[94]

As a result, the individual and international criminal responsibility of some government authorities is clear;[95] not only for Colectivos’ positive acts, but also for the mentioned negligent attitude and the failure to protect the civilian population from attacks by these groups. As stated in the previous section, the State has a clear constitutional obligation to guarantee peoples’ right of life, expression, opinion, association and peaceful and public assembly.[96] Therefore, its failure to do what it is legally required to, and what it possesses the ability to could result in international criminal liability.[97] Lastly, the acts committed by the Colectivos could also be subject to prosecution on a CAH basis against the leaders of this armed group themselves.[98] This will require considering them as “agents” of the State, as well as the capacity of their civilian or military structure, or both, to “developing a policy similar to that of a state.”[99]

Among the masterminds of the CAH during the ongoing anti-government demonstrations in Venezuela is Maduro; as a President of Venezuela, he is also the General Commander of the National Armed Forces in Venezuela.[100] Maduro has the highest authority within the Army;[101] therefore, he is directly responsible for the excessive and cruel use of force by these authorities against dissenters, both during the protests and while detained. Due to his position, Maduro directs the overall development of any operation by the National Guard against protestors.[102] Furthermore, even though he initially attempted to distance himself from pro-regime Colectivos,[103] in a later controversial nationally televised speech, Maduro publicly admitted that he had called the Colectivos themselves to respond to the anti-government protests.[104] Maduro used the expression “candelita que se prenda, candelita que se apaga.”[105] These words have been interpreted as a direct order, or at least, a clear message encouraging and inciting the armed groups to attack and disperse the dissenting manifestations.[106] In fact, the Colectivos’ attacks significantly increased in the following hours and days.[107] For this reason, the mental element required for CAH was satisfied as Maduro’s intentional message was made with complete awareness and as part of a widespread and systematic attack.

Moreover, Diosdado Cabello, together with Maduro, is the most visible government official. Extra-officially, he is said to be the actual commander of the Colectivos.[108] He publicly said that the Colectivos are a force that exists and is organized to defend the homeland.[109] In addition, Cabello has openly identified himself with one of the Colectivos’ groups, the Battled Units Chavista (“UBCH”), who is known for currently repressing the dissenting protestors.[110] He even sent his condolences to the family of a Colectivos member after he died during a protest on February 12.[111]

Furthermore, Francisco Ameliach, governor of Carabobo, called, thorough his Twitter account, upon the Colectivos “to get ready for a crushing counterattack against the fascist protestors.”[112] He added to his statement that Cabello had given the order.[113] Even though the governor later erased this tweet, a reporter from CNN saved an image of the statement and showed it on the channel.[114] This evidence clearly shows Ameliach’s order and incitement to the Colectivos. Similarly, Tarel El Aissami, governor of Aragua, has been accused of letting the Colectivos openly operate and attack anti-government protestors in Aragua State[115]  For instance, a video posted by the CNN iReport website shows how the Colectivos, together with the local police of Aragua, brutally attacked an anti-government student.[116] Also, El Aissami has also posted controversial tweets, such as a Twitter message in which he wrote “[h]ard against those who want to destroy the country. Defending the legacy of Commander Hugo Chavez.”[117]

Finally, by virtue of their positions, Carmen Melendez Rivas and Miguel Rodriguez Torres, Minister of Defense and Minister of Interior, Justice and Peace, respectively, as well as the Attorney General, Luisa Ortega, must have also played a key role in implementing the state policy.

IV.2. The Objective Elements:

IV.2.a. Widespread or Systematic Attack:

Most of the time, a widespread attack requires that the underlying offenses resulted in the cumulative effect of numerous inhumane acts resulting in a large number of victims.[118] However, “no numerical limit has been set” to determine what constitutes a widespread attack, which could also be fulfilled by “a singular massive act of extraordinary magnitude.”[119] The cumulative inhumane acts committed against the dissenting population in Venezuela were initiated on February 12, 2014 and have been prolonged for two months in various parts of the country.[120] Also, it is estimated that the massive national protests in Venezuela have involved tens of thousands of students alone.[121] The civil society has also joined the anti-government manifestations, significantly increasing the number of Venezuelans protesting against the government’s regime.[122]

Furthermore, the systematic threshold requires the organized planning of the attack and its methodical execution.[123] The plan needs to provide guidance to the individual perpetrators with regard to the attack, including the specific victims targeted.[124] According to the Venezuelan NGO Control Ciudadano, the same images and events have been repeated across the country.[125] First, the National Security Forces and the Colectivos have brutally and cooperatively repressed dissenting demonstrators: while security forces fire an excessive amount of tear gas, the Colectivos on motorcycles directly shoot at protestors with firearms.[126] Curiously, during these confrontations, President Maduro often appeared on national TV; perhaps it is also part of the state policy. Another pattern across the country is the non-random occurrence of frightening attacks on residential buildings where mostly anti-government citizens reside.[127] A specific pattern by security forces when holding protestors in custody has also been reported: detainees are physically and mentally tortured; detainees are unable to communicate with their families and lawyers for days; use of absolutely inadequate detention centers; and the confiscation of detainees’ cellphones and cameras to erase pictures and videos showing the abuse of authorities.[128] The use of illegal toxic substances and firearms for the control and dispersion of massive public protests is another pattern observed across the country.[129] Several victims with fatal gunshot wounds to their heads have been also reported.[130]

Furthermore, according to Human Rights Watch, “the Maduro government has reacted with an abusive combination of censoring news outlets, arbitrarily locking up a prominent political opponent, and bringing brutal force down on protesters.”[131] The cumulative effect of all the mentioned circumstances suggests that the attacks against the Venezuelan opposition are “thoroughly organized and follow a regular pattern.”[132] Therefore, the state’s public institutions, personnel and resources must have been used for the commission, or at least for refraining from preventing the commission of the underlying offenses. As was discussed in the previous section, the government’s tolerance for the Colectivos is sufficient to link the former with the CAH committed by the latter as part of this state policy; it shows the State’s clear instigation, encouragement, or endorsement of these armed groups and their criminal actions.

The underlying offenses also are required to be part of an attack to be deemed as CAH.[133] The term “attack” no longer requires the presence of armed conflict, as the “mistreatment of the civilian population”, by means of certain prohibited acts, would be sufficient to deem offenses as CAH.[134] Moreover, according to the ICC Statute and international criminal law (“ICL”) jurisprudence, there must be at least multiple acts in order to justify the label “attack against a civilian population”; these acts could be “of the same or different type.”[135] As will be discussed in the next sections, the actions taken against the massive protests by the different security forces and the Colectivos since February 12, 2014, have resulted in several deaths, hundreds of injured victims, thousands of detainees, at least fifty-nine cases of torture and many other cases of inhumane acts.[136] According to international standards, the “use of live ammunition by security forces would only be lawful . . . if their targets pose an imminent threat to the life of or of injury to the security forces or third parties.”[137] Thus, while it is true that some protests have turned violent, within the hundreds of videos posted online, none of them show protesters carrying and using firearms against security forces or third parties.[138] Only in a few identified cases have protestors been exhibited throwing Molotov cocktails at the security forces.[139] Protesters have also erected barricades and thrown back the tear gas used by these forces to control and disperse the manifestations;[140] nonetheless, these actions do not pose an imminent threat to the lives of the security forces or third parties. In their vast majority, the violent protestors make reference to students insulting and throwing rocks at soldiers.[141] Therefore, the cumulative actions described later in this paper could collectively be described as an attack directed against the dissenting population in Venezuela.

IV.2.b. Directed Against a Civilian Population:

Another important feature of CAH is that a civilian population, non-combatant individuals, must be the primary target of the perpetrator – this includes attacks of a State against its own civilians.[142] However, the entire population does not need to be targeted for offenses to be deemed as CAH.[143] As mentioned, the major protagonists in the ongoing demonstrations in Venezuela are students.[144] The main opposition political leaders and the middle-class majority have also joined them.[145] Hence, the targeted population in these protests is clearly non-combatant individuals, civilians identified as opponents of a regime. Even though a few protestors have used Molotov cocktails during the demonstrations, ICL jurisprudence has held that CAH can be “committed even where the victims at one time bore arms.”[146]

The following section discusses the underlying offenses resulting from the stated attacks directed against a civilian population.


CAH cover a number of crimes, most of which are ordinary human rights violations domestically proscribed, and which consequently are within the national jurisdiction of a state.[147] However, the following cases of murder, torture, imprisonment, and other inhumane acts appear to be the result of an intentional and planned state policy against the dissenting population in Venezuela, rather than “unforeseen” and unavoidable events.[148] Therefore, there are significant reasons to sustain that the following crimes constitute CAH offenses.

V.1. Murder:

Over forty individuals have died around the country since the protests started in Venezuela.[149] While all of these cases took place during events directly or indirectly related to the anti-government manifestations, not all of them constitute CAH. Thus, for the purpose of this paper, only those potential CAH cases will be discussed.

Bassil Da Costa was the first victim killed during the first massive protest in Caracas City; he died after receiving a fatal gunshot wound to the head.[150] The newspaper Ultimas Noticias posted an online video where uniformed security forces, accompanied by men in civilian clothing, fired with handguns on fleeing protesters.[151] Among them was Da Costa, who is seen falling to the ground after being shot.[152] All evidence indicates that Da Costa and his companion demonstrators were peacefully protesting, not carrying firearms or using lethal force against security forces or third parties.[153] In addition, the video shows the security forces’ negligent attitude when armed civilians started shooting at protestors. In fact, the video shows how these armed men initially came together with members of the security forces at the scene of confrontation.[154] Similarly, the second victim of the security forces was the 23-year-old student Geraldine Moreno, who died after being shot in the face by a soldier (apparently at close range) with rubber bullets.[155] According to witnesses, Moreno was protesting at the entry of her building when two National Guards on a motorcycle approached and started shooting.[156] Witnesses maintain that she was running when she fell as sparks from the shots went near her face; she tried to get up but the soldiers fired again, shooting her in the face.[157] These events took place in Naguanagua, Carabobo State, on February 22, 2014.[158]

On February 23, 2014, Alejandro Marquez died in Caracas after being brutally beaten by security forces for recording their repressive actions against protestors; witnesses maintain that these forces were openly firing against the demonstrators that night.[159] A video posted online by CNN shows how Marquez was running (unarmed) from the national forces when he fell and was captured.[160] The security forces later transported him to the hospital; the hospital reported that when Marquez arrived, he had serious bruises all over his body, including on his head, arms and neck, yet he was conscious, agitated, and speaking nonsense. The hospital also explained that he had suffered a cranial fracture and bleeding in the skull.[161] Experts sustain that it is unlikely that these injuries resulted from the single and recorded accident.[162] Therefore, it is sustained that he must have been brutally beaten by these forces in order to explain his physical condition at the time of his death, as from the moment he fell until his admission, he was in the custody of security forces. In fact, Marquez’s sister reported to Amnesty International that the hospital’s employees informed her that securities forces continued to beat Marquez in the X-ray room.[163]

Despite the mentioned repressive action by the security forces, the Colectivos are responsible for most of the fatal cases during the ongoing manifestations. On February 12, 2014 Roberto Redman was the first victim of these armed groups; he was shot by a Colectivos member from a motorcycle in Caracas.[164] According to witnesses, the man directly fired on a group of approximately thirty protestors, among which was Redman and some others who were seriously injured.[165] Redman was a journalist; tragically, he reported on his Twitter account earlier that day how he helped to carry Da Costa after the first shooting, and how he had been beaten by security forces.[166] The next victim was Genesis Carmona, a 21-year-old student who was fatally wounded after being shot in the head during a protest in Valencia on February 18, 2014.[167] Multiple accounts reported that Colectivos members on motorcycles opened fire on peaceful demonstrators, resulting in other protestors being shot as well.[168] Under similar circumstances, Daniel Tinoco was shot in the chest by Colectivos in Táchira Sate on March 10, 2014.[169] Two other protestors were injured as a result of the attack.[170] Likewise, Jesús Eduardo Acosta was shot in the head on March 12, 2014 during a “bloody day”[171] of violent confrontations in Valencia. Witnesses reported that Acosta was trying to seek refuge as Colectivos groups attacked opposition protestors.[172] Lastly, Willmer Carballo Amaya was shot in the head by the Colectivos in Aragua State on February 24, 2014.[173] According to witnesses, an anti-government demonstration was taking place in his neighborhood when an armed group on motorcycles started firing on protestors.[174] Carballo was not protesting; however, he went outside to check on what was happening while wearing an anti-government cap, when he was presumably confused with the protestors and shot in the head.[175]

It is clear that the security forces and armed groups involved in all the mentioned cases intended to kill, or at least, inflict grievously bodily harm likely to cause death. Therefore, the mental element for CAH was satisfied.[176] This is especially true considering that a “lesser mental element” is required for CAH offenses: “it is sufficient for the perpetrator ‘to cause the victim serious injury with reckless disregard for human life.’”[177]

V.2. Imprisonment:

An important novelty introduced by the ICC Statute was the expanded meaning of the term “imprisonment,” as it now includes “not only detention in prison-like conditions,” but also “other severe deprivation of physical liberty.”[178] To constitute a CAH offense, the detention must have resulted from an arbitrary decision,[179] such as those resolved without due process; without legal basis; or in violation of any other “fundamental rules of international law.”[180] The NGO Foro Penal Venezolano reported that 2,322 protestors have been detained during the ongoing protests across the country, of which only 384 had been completely freed; 1,361 were freed under conditions such as monthly court appearances; 94 were deprived of their freedoms; 60 remain detained; in addition to another 422 cases which were unverified at the time of the riots.[181] The UN High Commissioner for Human Rights, Navi Pillay, has also received reports indicating cases of irregular detention among them.[182] As a result, a group of UN independent experts have asked the Venezuelan Government for the prompt clarification of allegations of the arbitrary detention of protesters.[183]

President Maduro has blamed opposition leaders for the violent developments in the country, and, consequently, some of these leaders have been arbitrarily detained and prosecuted.[184] Perhaps the most notable figure is Leopoldo López, accused as the main person responsible for the fatal events during the demonstrations on February 12.[185] Lopez initially faced charges of terrorism and murder;[186] however, after Ultimas Noticias posted the mentioned video, these accusations were reduced to arson and conspiracy.[187] López has denied the charge and has repeatedly called for demonstrators to act peacefully.[188] He remains behind bars at a military prison outside Caracas, where an unconstitutional court was set up for his hearing.[189] This is a clear violation of due process in Venezuela, as the Constitution states that everyone should be judged in liberty when no credible evidence is presented by the authorities.[190] However, in Venezuela, it is very rare for a judge to make a lawful decision if it goes against government interests.[191] Curiously, the decision against López occurred hours after the president of the National Assembly, Cabello, personally held López accountable for the events which occurred on February 12.[192]  This is clearly a violation of López’s right to be presumed innocent.[193] It also suggests that, in Venezuela, there is not a separation of powers. It is worth mentioning that this is not the first time that the government has tried to silence the political leader. In the past, López had been banned from running for elected office because of corruption allegations;[194] this decision was made despite the ICHR’s decision condemning the clear violation of the American Convention on Human Rights and Lopez’s entitlements.[195] According to Amnesty International, López’s charges “smack of a politically motivated attempt to silence dissent in the country,”[196] as no evidence for substantiating these charges has been found. Therefore, there have been calls for the immediate release of the opposition leader.[197]

Two opposition majors have also been detained, Enzo Scano and Daniel Ceballos.[198] Both had been accused of conspiracy and civil rebellion for having permitted barricades in their jurisdictions.[199] In addition, Scano and Ceballos were removed from office and sent to prison for ten and twelve months respectively.[200] It is asserted that these two mayors were sentenced through unprecedented summary procedures.[201] Alarmingly, Scano’s sentence was not published by the Supreme Tribune of Justice (“TSJ”) in accordance with the Venezuelan rules of civil procedure.[202] This has impeded the political leader from appealing the ruling, as the content and the legal basis of the judgment remain unknown.[203] Lastly, an arrest order has been issued for Carlos Vecchio, another leader of López’s political party who remains a captive.[204]  The Prosecutor Office’s charges against Vecchio are similar to those of Lopez, conspiracy theories without incriminating evidence.[205] Indeed, all of these irregular detentions have concerned international organizations, as they suggest that the protests can easily turn into political persecution as well.[206] Some of these organizations have even stated that these detentions are “mounting proof that Venezuela ceased to be a democracy long ago.”[207]

In addition, journalists monitoring and reporting the protests have also been the subject of continued and arbitrary detentions by these forces, such as the case of the Italian-photographer and journalist Francesca Commisario.[208] She was detained during a confrontation between security forces and protestors, which she was covering while possessing nothing but her camera.[209] However, the report by the security forces stated that she was in possession of a Molotov cocktail.[210] After her release, her stripped camera was not returned nor was any record of its existence.[211] Another similar case is that of Mildred Manrique, a Venezuelan reporter for the daily 2001.[212] The National Guard troops broke into her apartment and said they were searching for violent protesters.[213] She was detained without charges for four hours, and three of her computers were confiscated and never returned.[214] Eighty-seven acts of aggression against reporters were reported by the NGO Espacio Publico,[215] including twenty-two cases of arbitrary detention.[216] As a result, the international media has increasingly questioned this type of repression by the Venezuelan security forces.[217]

There have been hundreds of allegations of the arbitrary detention of peaceful demonstrators without warrant or having been caught in the act of committing an offense, such as the case of Carlos Requena, a mentally challenged man who was brutally beaten and detained by the security forces.[218] According to witnesses, Requena could not even defend himself due to his mental condition.[219] In other cases, individuals not participating in the demonstrations but incidentally near the protest area were arbitrarily detained.[220] According to police records, some of these detentions occurred because security forces presumed that the detainees were about to commit a crime, instead of being caught in flagrante.[221] Additionally, illegal detentions within residential buildings and houses without a required search warrant have been reported as well.[222] Lastly, violations of due process have been reported in several cases, as the detainees were not allowed to be in communication with their families and lawyers for at least forty-eight hours, and the public authorities did not provide information regarding their locations, conditions, and reasons for the arrests.[223] Therefore, the capacity to defend themselves in front of a judge were directly affected, as prompt access to a lawyer is an important safeguard against torture, ill-treatment, and confessions made under duress and other abuses.[224]

V.3. Torture

To date, the prohibition against torture is well-recognized as a norm of customary law.[225] The ICC Statute defines torture as follows: “[T]he intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”[226]

Human rights activists in Venezuela have reported that several demonstrators have been abused while in custody or under the control of the security forces, including physical and mental abuse, such as threats with beatings or rape.[227] These claims have been received by the UN, which expressed its deeply concerns about the situation in the country, and “asked the Venezuelan Government for prompt clarification of allegations of arbitrary detention and excessive use of force and violence against protesters, journalists and media workers during recent protests.”[228]

The case of Juan Manuel Carrasco, a 21-year-old student detained in Valencia, is among the most disturbing claims. During the forty-eight hours that Carrasco remained detained, he was seriously beaten with arms and helmets, losing consciousness at least three times;[229] he was threatened with death;[230] and more alarmingly, he was separated from the other students and raped with a long gun by the military troops.[231] According to ICL jurisprudence, rape “can constitute a form of torture” under Carrasco’s circumstances.[232] Jorge Luis León was also arrested with Carrasco – he reported that they were threatened with dog attacks; he said that the dogs even licked their wounds.[233] Additionally, he reported that three of the soldiers began to play football with them, kicking students in the back while shouting “goal!”[234] Like Carrasco and Leon, many other students have reported being threatened with rape and death, and having been beaten and kicked.[235] In fact, there have been registered cases of students being beaten with a helmet until the helmet broke.[236]

Another case worth mentioning is that of Marvina Jimenez, a 36-year-old woman who was brutally assaulted while under the control of a GNB.[237] She was surrounded and captured by a group of security forces for taking pictures with her cellphone of their repressive actions.[238] A female National Guard member took physical control of Jimenez, threw her on the ground, and started hitting Jimenez’s head with her helmet.[239] Jimenez was then detained, during which time she was not permitted to contact her family and lawyers.[240] Witnesses in the area recorded and made public these shocking events.[241]

Other cases of torture include, but are not limited to, students being forced to remain kneeling or facing a wall for hours;[242] students receiving multiple electric shocks;[243] a student was forced to remain naked, handcuffed and went without sleep for nine hours;[244] students bathed with gasoline and threatened with being burned;[245] and detained students not receiving food or water.[246] In addition, there were several cases of torture committed by the armed groups Colectivos during the ongoing demonstrations in Venezuela.[247]  According to the elements stated by the ICC Statute, these cases could be considered CAH since the linkage between the act of torture and a commission by a public official is not required.[248] However, for the purpose of this paper, cases of alleged torture and inhumane acts against protestors are limited to those committed only by the National Security Forces.

All the mentioned examples certainly satisfy the elements of torture as an underlying offense of CAH. In all these instances, the security forces were acting in their official capacity and when in the custody or control of the victims. Also, it is presumed that the purpose of these acts was to punish and humiliate the protesters, or even obtain confessions from them; nevertheless, it still uncertain whether this latter element is actually needed by customary law to deem the offenses as CAH.[249] What does seem certain is that the Venezuelan Government has permitted, and perhaps ordered, this serious and cruel treatment against anti-government protestors.  Thus, it is alleged that these acts are part of a state policy that permitted the attacks against the dissenting population.

V.4. Other Inhumane Acts:

Perhaps the most common CAH committed in Venezuela during the recent anti-government protests involve cases of inhumane acts or degrading treatment, resulting in protestors’ bodily and mental harm. This is because repression against protesters, including minors, has involved not only beating, but also excessive and illegal use of toxic substances, as well as unjustified shootings at crowds of unarmed people.[250] These types of offenses could be covered by the so-called residual clause of article 7 of the ICC Statute.[251]

Among the cruelest cases of assault, battery, and inflicting physical harm against innocent civilians is that exposed in a video recorded in Aragua State, when a group of security forces kicked and jumped over a student who was completely unarmed and unconscious on the floor.[252] In another video, transmitted by Univision,[253] Roberto González is shot, with a 9mm gun and at close range, by a National Guard; Gonzalez had tried to mediate between protesters and soldiers beating people in the area.[254] In another case, a student was watching officers beat and insult other protesters when he unexpectedly received a kick to the face, and was later forced to spend two hours on his knees.[255] The kick resulted in three facial fractures.[256] Moreover, journalists have continually been victims of physical violence as well. For instance, Gabriel Osorio suffered a broken rib, pellet burns, head injuries, multiple bruises, and a stolen wallet, after six national guards attacked him for taking pictures of student protests.[257]

Furthermore, hundreds of pictures across the country have shown the cruel and indiscriminate use of pellets by the security forces without clear warning and directly to the body of the demonstrator,[258] employing not only rubber bullets, but also metal and marble[259] bullets.[260] Among the victims injured with marble bullets was Rafael Gallardo, who was arbitrarily shot, at a close range, by the National Guard. Gallardo was at his residence in Barinas when intersected by the security forces.[261] He was seriously injured as the bullet pierced his large and small intestine; he required surgical intervention.[262] Another alarming case is that of Jeremias Jimenez, a unarmed student who was shot several times from a National Guard tank and at close range.[263] Moreover, pellets have even been fired at residential areas in order to avoid barricades, and without the protesters being given warning or the option to evacuate.[264]

The indiscriminate and excessive use of tear gas by the security forces has also been said to cause significant physical harm to protestors. First, tear gas has been fired directly against residential properties when people have protested from their apartments.[265] This could have caused serious damage to the people within those apartments, as the chemical components of these devices cause damage to health when used in closed spaces, particularly with children and the elderly.[266] In one confrontation between students and the National Forces, around 840 used tear gas containers were recollected at the scene of the events; this particular event resulted in twenty-five people having symptoms of asphyxia, of which fifteen needed immediate medical assistance.[267] The dangers related to the arbitrary use of these toxic substances are even more significant as it was reported that security forces had used expired tear gas.[268] Finally, in some cases, tear gas was fired at such a close range that it seriously injured unarmed protestors. This was the case of Carlos Tejada; a 22-year-old student who may lose an eye after security forces fired on a group of demonstrators building a barricade without warning.[269]

While it is true that protesters engaging in violence or vandalism should be held accountable, under no circumstances is it lawful to shoot at people who are unarmed and protesting peacefully.[270] Even when using “less lethal” projectiles, such as pellets with rubber bullets, it must be the only and absolute way for security forces to protect their lives, or in self-defense, or to prevent serious injury to third parties;[271] besides, at all times, it is required to give appropriate warning to protestors.[272] Firearms should only be used when less extreme means are insufficient to achieve this goal in order to reduce the risk of unnecessary and unjustified harm.[273]

Indeed, all victims’ testimonies described that the security forces “inflicted great suffering, or serious injury to body or to mental or physical health by means of inhumane acts.”[274] The fact that similar patterns were reported in different states across the country and at different occasions confirms the widespread and systematic character of these actions. Also, all the victims agreed that the security forces acted with full awareness and with the intention to cause harm to the dissenting protestors. As a result, the mental element to deem these offenses as CAH seems to be satisfied.


“[I]t is the duty of every State to exercise its criminal jurisdictions over those responsible for international crimes.”[275] In this sense, the ICC’s jurisdiction shall only be complementary to the national jurisdiction,[276] as the former is a court of last resort.[277] One of the biggest challenges faced by the CAH victims in the ongoing protests is the corrupt and government-controlled character of all public institutions. The division and independence of powers does not exist in this country, as the judicial branch undoubtedly acts under the Presidency’s guidance, making the institution unconditionally subservient of the government’s interest.[278] Therefore, unless the government democratizes the judicial system, which is improbable, international criminal law would only be enforced against those with the highest responsibility for the CAH committed in Venezuela through the ICC per article 17(2) of the ICC Statute.[279]

The origin of the current structure of the judicial system in Venezuela dates back to 2004, when government supporters took control of the National Assembly by almost reaching 100% of this institution’s seats.[280] This permitted the official party to adopt several measures in order to extend the government’s control over other fundamental institutions, including the judiciary. A key instrument was the adoption of certain policies that would permit a significantly faster process for judges’ appointments, thus enabling the more prompt appointment of the TSJ’s pro-government judges.[281] Once the government ensured its control over the highest Court, gaining control over its inferiors was easy. The TSJ simply held that provisional and temporary judges at an inferior level could be removed from office at the discretion of a Judicial Committee specially created within the TSJ.[282] Naturally, this Committee is preceded by members of the official party, which clearly undermines the judicial independence.[283] This has allowed new judges to be elected without following the objective and independent competition process established in the Constitution. The ICHR and the UN have both stated that these types of discretionary dismissals of judges are contrary to international obligations aiming to ensure judicial independence, as it increases the risks of interfering with the judiciary.[284]

The mentioned circumstances resulted in the judicial system not exercising its role as an impartial and independent arbiter of the State’s actions and omissions. For example, the vast majority  (around ninety-three percents)[285] of the cases between 2007 and 2010 involving claims against any government official or member of the official party were declared without merit or no material decision was ever made.[286] Furthermore, several of the judges of the TSJ have openly rejected the notion that the judiciary should be independent of the executive branch.[287]  Rather, they have suggested that the role of the courts in the country was, and still is, to support the political agenda of Chavez and his “social” revolution.[288] These rejections of the principle of the separation of powers have also been reflected in case law.[289] Other examples discrediting the reputation of the Venezuelan judicial branch include, but are not limited to, arbitrarily dismissing a solicitude requesting information regarding the salaries of senior officials and any other government officials, as well as establishing additional and excessive requisites to this aim;[290] prohibiting and censuring propaganda that criticizes the government’s proposed bills by sustaining that this would represent a serious threat to democracy;[291] and arbitrarily prosecuting, detaining, and removing a judge from her position for having decided in favor of a former political prisoner.[292] This has resulted in Venezuelan judges, both at lower courts as well as the superior courts, being extremely cautious when deciding a case that could embarrass the government.[293]

Furthermore, Venezuela ranks 160 out of 177 countries surveyed for corruption.[294] For this and the previously mentioned reasons, “it is not surprising that the first high-profile arrest in the political violence was one of Venezuela’s most visible opposition leaders, Leopoldo Lopez, rather than any Colectivo member.”[295] To date, fourteen members of different National Security Forces have been detained for investigations of human rights abuses during the ongoing protest; however, no member of the Colectivos has been detained by the National Authorities or questioned by the Prosecutor’s Office.[296] Perhaps these authorities have no doubt that any action against these groups will be a direct attack on the “Bolivian Revolution.” Another inquiring fact is that one of the suspected murderers of Bassil Da Costa, Jonathan Rodriguez, is a man of extreme trust of the current Minister of Interior and Justice; Rodriguez is a current sergeant of the Army, the Minister’s personal escort,[297] and he is also said to be a member of the Colectivos.[298] Up to today, there are no signs of his location.[299] In contrast, trials against political dissent leaders and students have taken place through summary proceedings.[300]

The most recent example of the lack of separation of powers in Venezuela was the TJS approved unconstitutional removal of Deputy María Corina Machado, stripping her of legislative immunity.[301] This ouster clearly violated the rule of law and the Constitution of Venezuela.[302] Finally, it is apparent that neither the Attorney General’s Office nor the Ombudsman have carried out their duties with due diligence, demonstrating a serious renunciation of their institutional functions. This has definitively collaborated with the bias role played by the judiciary.

There are several others cases supporting the lack of independence and impartiality as well as the Venezuelan judicial national authorities’ unwillingness to bring the real offenders of the CAH committed against the civilian population in the ongoing demonstrations to justice.[303] For this reason, it is believed that the case of Venezuela would almost certainly satisfy the admissibility criteria stated in article 17(2) of the ICC Statute. In addition, as Venezuela’s denunciation of the ICHR took place in 2013, an ad hoc international criminal tribunal created by the UN Security Council, and the ICC are the only two other mechanisms left for the protection of Venezuelans’ human rights. For economic reasons, however, the establishment of an ad hoc international criminal tribunal for the prosecution of the argued CAH in Venezuela seems realistically unlikely.  Therefore, it is under this type of scenario that the inherent jurisdiction of the ICC should be triggered, in order to ensure that impunity does not prevail over accountability. Undeniably, not only did the Venezuelan judicial system ceased to be independent a long time ago, but no longer are the public prosecutors and the Ombudswoman independent. Therefore, founding a new, honest, and competent judiciary, truly devoted to the well-being of the Venezuelan people, will take years or even decades. Meanwhile, there is no doubt that the Venezuelan judiciary is unwilling and unable to exercise criminal jurisdiction over the crimes committed against the civilian population during the anti-government protests.


The ongoing protests in Venezuela have shown the world what kind of creature the Venezuelan revolution really is.[304] Sufficient evidence suggests the existence of widespread and systematic violations of human rights in Venezuela. These attacks against civilians’ human dignity have been perpetrated by military, police, and militias’ bodies, as well as armed groups, with the ultimate objective of silencing the dissenting population and staying in power. The use of firearms and arbitrary ammunition against unarmed protestors has resulted in several people being seriously injured and even killed. Dissenting protestors have also been victims of torture, and cruel, inhumane and degrading treatment seeking to cause pain or severe physical and mental suffering. This has been widespread and systematically perpetrated against students while under the control or custody of security forces. Therefore, these human rights violations will entail individual criminal responsibility for the CAH of those who have ordered, executed, cooperated, and incited their commission. For all the mentioned reasons, the events that have taken place in Venezuela over the last year meet the ICC’s threshold on jurisdiction and gravity.

In the past, there have been serious violations of human rights in Venezuela and national courts have not prosecuted offenders, or even worse, have blamed innocent people. Therefore, it is clear that the Venezuelan judiciary will not recognize victims of CAH by the executive in the absence of a division of powers, as it itself is part of the claimed denounced state policy. This exhibits the incapacity of the Venezuelan judiciary. Thus, the ICC is the most suitable entity to prosecute those mastermind leaders involved in the argued CAH offenses, which, without doubt, include President Maduro and the National Assembly’s President Cabello.

In a last thought about Venezuela’s agony today, all democratic countries, especially those within the region, should reject the inhumane acts recently committed in the South American country. Sympathy for left-sided ideals is one thing, but ignoring the commission of CAH against at least half of a country is another. “If nothing else, the atrocities of war, genocide and crimes against humanity throughout our human history have taught us that silence can be the deadliest of all weapons.”[305]



Editor’s Note: this Article was written during the antigovernment protests in Venezuela, which took place from February to April of 2014.

* Susana Mijares Peña is a qualified lawyer in Venezuela, having earned her undergraduate degree in law in 2008 at Universidad Católica Andrés Bello. She also completed her LLM degree at Osgoode Hall Law School in 2011. She has recently completed her JD at Western Law. Her area of concentration is international business transactions. Susana would like to dedicate this paper to those who lost their lives for the dream of a better country.

[1].         Moises Naim, The Tragedy of Venezuala, The Atlantic (Feb. 25, 2014, 8:20), http://www.theatlantic.com/international/archive/2014/02/the-tragedy-of-venezuela/284062/.

      [2].       Estas son las 14 elecciones de la administración de Hugo Chávez, Noticias24 (Sept. 27, 2010, 7:44 AM), http://www.noticias24.com/actualidad/noticia/173997/estas-son-las-14-elecciones-de-la-administracion-de-hugo-chavez/.

      [3].       Charles L. Briggs & Clara Mantini-Briggs, “Misión Barrio Adentro”: Medicina Social, Movimientos Sociales de los Pobres y Nuevas Coaliciones en Venezuela, 3 Salud Colectiva 159, 159-61 (Aug. 2007), available at http://www.redalyc.org/pdf/731/73130205.pdf.

      [4].       Enrique Krauze, Venezuela’s Angry Students, N.Y. Times (Feb. 27, 2014), available at http://www.nytimes.com/2014/02/28/opinion/venezuelas-angry-students.html?hp&rref=opinion&_r=2.

      [5].       Human Rights Watch, Tightening the Grip: Concentration and Abuse of Power in Chavez’s Venezuela 1-4 (Jul. 17, 2012), available at http://www.hrw.org/sites/default/files/reports/venezuela0712webwcover.pdf [hereinafter Tightening the Grip].

      [6].       Loreto Concha, Venezuela conmemora los dos años de muerte de Hugo Chávez en plena crisis económica y política, Latercera (Mar. 5, 2015, 10:07 AM), available at http://www.latercera.com/noticia/mundo/2015/03/678-619393-9-venezuela-conmemora-los-dos-anos-de-la-muerte-de-hugo-chavez-en-plena-crisis.shtml.

      [7].       Marjuli Matheus, Chávez nombró a Nicolás Maduro como su sucesor, Ultimas Noticias (Dec. 9, 2012, 6:00 AM), http://www.ultimasnoticias.com.ve/noticias/actualidad/politica/chavez-nombro-a-nicolas-maduro-como-su-sucesor.aspx.

      [8].       Antonio Cassese & Paola Gaeta’s International Criminal Law 90 (3d ed. 2013).

      [9].       Jackson Diehl, Venezuela, the Uprising No One is Noticing, Wash. Post, Mar. 3, 2014, available at http://www.washingtonpost.com/opinions/jackson-diehl-venezuela-the-uprising-no-one-is-noticing/2014/03/03/19ab5828-9fc7-11e3-b8d8-94577ff66b28_story.html.

    [10].       Armed groups acting as paramilitary at the service of the Chavismo. In some of the poorest neighborhoods in the country, this organization has taken such force that is now seen as the only authority. They act as prosecutors, judge and jury – especially in areas of Caracas where the police do not dare to enter. They operate with some degree of autonomy, and are supported and protected by government authorities within the Chavismo – these authorities provide the Colectivos with financing, equipment, and weapons in exchange for their assistance and services to the regime in various ways. Chavez himself was among the first to recognize the benefits of incorporating these left-leaning groups into the ranks of the revolution. He invested in leadership training of these groups. The leaders of the Colectivo groups have gone through a process of socialist ideological education and have traveled to Cuba, where Cubans have prepared them for armed combat. See Daniel Wallis, Venezuela Violence Puts Focus on Militant ‘Colectivo’ Groups, Reuters (Feb. 13, 2014), http://www.reuters.com/article/2014/02/13/us-venezuela-protests-colectivos-idUSBREA1C1YW20140213.

    [11].       Share of World Crude Oil Reserves 2013, Organization of the Petroleum Exporting Countries, http://www.opec.org/opec_web/en/data_graphs/330.htm (last visited Mar. 8, 2015).

    [12].       Naim, supra note 1.

    [13].       Venezuela’s Homicide Rate Quadruples in Fifteen Years, NGO Reports, Huff. Post: Latino Voices (Dec, 27, 2013, 12:11 AM), http://www.huffingtonpost.com/2013/12/26/venezuela-homicide-rate_n_4506363.html.

    [14].       Mery Mogollon & Chris Kraul, Venezuela Seeks Opposition Figure’s Arrest; Protest Death Toll Rises, L.A. Times (Feb. 28, 2014, 1:01 PM), http://www.latimes.com/world/worldnow/la-fg-wn-venezuela-protests-death-toll-20140228,0,281699.story#axzz2ufNG4UxA.

    [15].       Emilia Diaz-Struck & Nick Miroff, Carnaval Could Sap Venezuela Protests, Wash. Post (Feb. 26, 2014), http://www.washingtonpost.com/world/the_americas/carnaval-could-sap-venezuela-protests/2014/02/26/50088b96-9f10-11e3-878c-65222df220eb_story.html.

    [16].       Víctor Salmerón, Venezuela’s Food Shortage in January the Highest in Five Years, El Universal (Feb. 13, 2014, 10:47 AM), http://www.eluniversal.com/economia/


    [17].       Virginia Lopez, Venezuela Toilet Paper Shortage Sends Ordinary Lives Around the Bend, The Guardian (May 23, 2014, 8:01 AM), http://www.theguardian.com/world/2013/may/23/venezuela-toilet-paper-shortage.

    [18].       Venezuela: Freedom of the Press 2014, Freedom House (2014), https://freedomhouse.org/report/freedom-press/2014/venezuela#.VRxKgpPF-Ad.

    [19].       Id.

    [20].       Naim, supra note 1.

    [21].       Protests in Venezuela: Stop the Spiral, The Economist (Mar. 1, 2014), available at http://www.economist.com/news/leaders/21597900-dialogue-not-repression-way-nicol-s-maduro-save-his-government-and-his.

    [22].       Ewald Scharfenberg, Venezuela rechaza el recuento de votos que exige la oposición, El Pais (Apr. 28, 2013, 22:57 PM), http://internacional.elpais.com/internacional/2013/04/28/actualidad/1367121157_828792.html.

    [23].       Alex Váquez, Capriles: “Maduro es un presidente ilegítimo,” El Nacional (Apr. 16, 2013, 12:01), http://www.elnacional.com/politica/tu_decides/Capriles-seguir-acciones-descarta-impugnar_0_172782966.html.

    [24].       What Lies Behind the Protests in Venezuela?, BBC News (Mar. 27, 2014), http://www.bbc.com/news/world-latin-america-26335287.

    [25].       Daniel Pardo, Venezuela: Dentro de las protestas del #12F en Caracas, BBC News (Feb. 13, 2014), http://www.bbc.co.uk/mundo/noticias/2014/02/140213_venezuela_caracas_violencia_protesta_12f_dp.shtml.

    [26].       Id.

    [27].       Id.

    [28].       Mogollon & Kraul, supra note 14.

    [29].       Naim, supra note 1.

    [30].       Diaz-Struck & Miroff, supra note 15.

    [31].       Krauze, supra note 4.

    [32].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch (Feb. 28, 2014), http://www.hrw.org/news/2014/02/28/venezuela-oas-should-proceed-meeting[hereinafter Venezuela: OAS Should Proceed with Meeting].

    [33].       Juancarlos Vargas, Lesa humanidad en Venezuela, El Universal (Feb. 20, 2014, 12:00 AM), http://www.eluniversal.com/opinion/140220/lesa-humanidad-en-venezuela.

    [34].       Mariano Castillo, Searching for Truth in Venezuela, CNN (Feb 21, 2014), http://www.cnn.com/2014/02/21/world/americas/venezuela-fact-from-fiction/.

    [35].       Andrew Cawthorne & Daniel Wallis, Jailed Venezuela Protest Leader Mocks Maduro’s Talks, Reuters (Feb. 28, 2014), http://www.reuters.com/article/2014/02/28/us-venezuela-protests-idUSBREA1R14P20140228.

    [36].       Castillo, supra note 34.

    [37].       Meghan Neal, Not Satisfied with Blocking Twitter and TV, Venezuela Shuts off the Internet, Motherboard (Feb. 20, 2014), http://motherboard.vice.com/read/not-satisfied-with-blocking-twitter-and-tv-venezuela-shut-off-the-internet.

    [38].       Id. (this was the case of the only foreign television station reporting live, the Colombian outlet NTN24).

    [39].       Krauze, supra note 4.

    [40].       Id.

    [41].       Venezuela Leader Nicolas Maduro Seeks Talks with Obama, BBC News (Feb. 20, 2014), http://www.bbc.com/news/world-latin-america-26298133.

    [42].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

    [43].       Amnistia Internacional, Venezuela: Los Derechos Humanos en Riesgo en Medio de Protestas 15-16 (Mar. 2014), available at https://www.es.amnesty.org/uploads/media/Informe_Venezuela._Los_derechos_humanos_en_riesgo_en_medio_de_protestas.pdf.

    [44].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

    [45].       UN Human Rights Experts Urge Probe into Recent Violence Amid Venezuelan Protests, UN News Centre (Mar. 6, 2014), http://www.un.org/apps/news/story.asp?NewsID=47287&Cr=protest&Cr1=#.Ux3SveewKes.

    [46].       UN’s Ban Ki-moon Urges Venezuela to Hear Protestors’ Demands, BBC News (Mar. 3, 2014, 6:46 PM), http://www.bbc.com/news/world-latin-america-26424779.

    [47].       Maye Primera, La soledad de Venezuela, El Pais (Feb. 14, 2014), http://internacional.elpais.com/internacional/2014/02/14/actualidad/1392411720_214693.html.

    [48].       ONU recibe nuevas denuncias de torturas en Venezuela, El Universal (Mar. 10, 2014, 11:49 PM), http://www.eluniversal.com/nacional-y-politica/protestas-en-venezuela/


    [49].       Id.

    [50].       Piden a la Haya que investigue a Maduro por crímenes de lesa humanidad, VenteVenezuela (April 8, 2014), http://www.ventevenezuela.org/piden-a-la-haya-que-investigue-a-maduro-por-crimenes-de-lesa-humanidad.

    [51].       Mark P. Sullivan, Cong. Research Serv. R. 43239, Venezuela: Background and U.S. Relations 15 (Oct. 2, 2014), available at https://www.fas.org/sgp/crs/row/R43239.pdf; see also European Parliament Resolution on the Situation in Venezuela, 2015/2582 (RSP) (Nov. 3, 2015), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+P8-RC-2015-0236+0+DOC+XML+V0//ES&language=es#_part1_ref3; Cancillería chilena rechaza violencia en Venezuela y expresa condolencias al pueblo y Gobierno de ese país, DiarioUChile (Feb. 15, 2014, 8:35 PM), http://radio.uchile.cl/2014/02/15/canciller%C3%ADa-chilena-rechaza-violencia-en-venezuela-y-expresa-condolencias-al-pueblo-y-gobierno-de-ese-pa%C3%Ads; Antonio Maestre, Venezuela y la preocupación por los derechos humanos del PP, LaMarea (Mar. 17, 2015, 12:10), http://www.lamarea.com/2015/03/17/venezuela-y-la-preocupacion-por-los-derechos-humanos-del-pp/.

    [52].       Venezuela: Peaceful and Respectful Dialogue Only Way Out of the Crisis, MEPs say, European Parliament News (Feb. 27, 2014), http://www.europarl.europa.eu/news/en/news-room/content/20140225IPR36958/html/Venezuela-peaceful-and-respectful-dialogue-only-way-out-of-the-crisis-MEPs-say.

    [53].       Id.

    [54].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

    [55].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, arts. 7, 53. (Venez.).

    [56].       Id. at art. 52.

    [57].       Id. at art. 57.

    [58].       Id. at art. 350.

    [59].       Id. at art. 25.

    [60].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 25 (Venez.).

    [61].       See e.g., Constitución venezolana ampara protestas de la oposición, TV Net Media Group Blog (Apr. 4, 2014), http://tvnet.us/constitucion-venezolana-ampara-protestas-de-la-oposicion/; Oscar Medina, Una violación más de la Constitución – Adiós al Artículo 44, El Weblog de Infragon Blog, (Mar. 2, 2014, 8:40 AM), https://infragon.wordpress.com/2014/03/03/una-violacion-mas-de-la-constitucion-adios-al-articulo-44/.

    [62].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 23. (Venez.).

    [63].       International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/RES/2200(XXI) (Dec. 19, 1966), available at https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf.

    [64].       Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, available at https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187.pdf [hereinafter, “ICC Statute”].

    [65].       Member States: Venezuela, Organization of America, http://www.oas.org

/en/member_states/member_state.asp?sCode=VEN (last visited Mar. 12, 2015).

    [66].       Venezuela’s Withdrawal from Regional Human Rights Instrument is a Serious Setback, Amnesty International (Sept. 6, 2014), http://www.amnesty.ca/news/news-releases/venezuela%E2%80%99s-withdrawal-from-regional-human-rights-instrument-is-a-serious-setback.

    [67].       Id.

    [68].       Robert Cryer, et al., An Introduction to International Criminal Law and Procedure 11 (2d ed., Cambridge University Press 2010).

    [69].       Id. at 234-35.

    [70].       Id. at 233.

    [71].       Cassese, supra note 8, at 92.

    [72].       William Schabas, Punishment of Non-State Actors in Non-International Armed Conflict, 26 Fordham Int’l L.J. 907, 923 (2002) (citing to ICC Statute, supra note 64, at 7(1)).

    [73].       Mba Chidi Nmaju, Violence in Kenya: Any Role for the ICC in the Quest for Accountability?, 3 Afr. J. Legal Stud. 78, 82 (2009) (citing to the ICC Statute, supra note 64).

    [74].       Cassese, supra note 8, at 100.

    [75].       Id.

    [76].       Among these, National Security Forces, in particular, are the Bolivian National Guard (“GNB”), the Body of Scientific, Penal and Criminal Investigations (“CICPC”), the Bolivian National Intelligence Service (“SEBIN”), and the Milicias Bolivarianas.

    [77].       Manuel Felipe Sierra, Los colectivos están mejor armados que las policías, actúan contra personas, la propiedad privada, propician saqueos: El ABC de Tamara Sujú – Abogada del Foro Penal Venezolano, ABC de la Semana (Mar. 13, 2014), http://www.abcdelasemana.com/2014/03/13/el-abc-de-tamara-suju-abogada-del-foro-penal-venezolano/.

    [78].       Id. (the list includes, but is not limited to, the General Justo Noguera Pietri, Commander-in-Chief of the GNB; the General Orlando Alexis, Second-in-Command of the GNB; the General Alexis Marquez Jaimes, General Inspectors of the GNB; the General Antonio Benavides Torres, Strategic Director of the GNB; Manuel Bernal, ex-Director of the SEBIN; and José Humberto Ramírez Márquez, Director of the CICPC).

    [79].       ICC Statute, supra note 64, at art. 28.

    [80].       M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 526-27 (Cambridge University Press 2011).

    [81].       Id. at 528-29.

    [82].       Schabas, supra note 72, at 914-15.

    [83].       Bassiouni, supra note 80, at 40.

    [84].       Venezuela Motorcycle Gang Videos Show Terror and Violence in Support of Maduro, The World Post (Feb. 25, 2014), http://www.huffingtonpost.com/2014/02/25/venezuela-motorcycle-gangs-vidoes-colectivos_n_4855640.html.

    [85].       Bassiouni, supra note 80, at 40-41.

    [86].       International Legal Protection of Human Rights in Armed Conflict, at 23-27, U.N. Doc. HR/PUB/11/01, U.N. Sales No. E.11.XIV.3 (2011), available at http://www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf.

    [87].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch (Feb. 21, 2014), http://www.hrw.org/news/2014/02/21/venezuela-violence-against-protesters-journalists [hereinafter Venezuela: Violence against Protestors, Journalists].

    [88].       See, e.g., El material de Palaima nunca llegó a la planta televisiva, CNN Español (April 3, 2014), http://cnnespanol.cnn.com/2014/04/03/globovision-el-material-de-palaima-nunca-llego-a-la-planta-televisiva/ (video posted by CNN Español showing National Guards and presumed Colectivos acting in collaboration against protestors).

    [89].       Venezuela: Así actúan Tupamaros con protección del chavismo, Peru21.pe (Feb. 22, 2014, 12:55 PM), http://peru21.pe/mundo/venezuela-asi-actuan-tupamaros-proteccion-chavismo-video-2171222.

    [90].       A Tale of Two Prisoners, The Economist (Feb. 22, 2014), available at http://www.economist.com/news/americas/21596945-after-opposition-leader-arrested-violence-continues-unabated-tale-two-prisoners.

    [91].       Id.; see also Video que llevó María Corina Machado para mostrar en la OEA, El Universal (Mar. 21, 2014, 4:42 PM), http://www.eluniversal.com/nacional-y-politica/protestas-en-venezuela/140321/video-que-llevo-maria-corina-machado-para-mostrar-en-la-oea (video presented by congresswoman Maria Corina Machado to the OAS).

    [92].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

    [93].       Vargas, supra note 33.

    [94].       International Legal Protection of Human Rights in Armed Conflict, supra note 86, at 23-27.

    [95].       The list of officials alleged to have ordered, encouraged and/or incited the Colectivos to brutally and inhumanely attack the anti-government protesters include, but are not limited to: Nicolas Maduro, President of Venezuela; Diosdado Cabello, President of the National Assembly; Iris Valera, Minister of Popular Power for the Prison Service; Francisco Ameliach, Governor of Carabobo State; Tarek El Aissami, Governor of Aragua State. See e.g., Grupos armados terminan con protestas estudiantiles en Venezuela, El Economista (Mar. 28, 2014, 3:30 PM), http://eleconomista.com.mx/internacional/2014/03/28/grupos-armados-terminan-protestas-estudiantiles-venezuela; Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica (Mar. 19, 2014), http://www.alianzaparlamentaria.com/?p=282; At Least Eight People Shot in Protests in Valencia, North Venezuela, El Universal (Feb. 19, 2014), http://www.eluniversal.com/nacional-y-politica/140219/at-least-eight-people-shot-in-protests-in-valencia-north-venezuela; Turning a Corner: Who Ordered Protesters Shot in Venezuela?, Tenacitas Blog (Mar. 24, 2104), http://tenacitas-intl.com/turning-corner-ordered-protesters-shot-venezuela/; Valera: Colectivos son el pilar para la defensa de la patria, El Universal (Feb. 15, 2014, 1:39 PM), http://www.eluniversal.com/nacional-y-politica/140215/varela-colectivos-son-el-pilar-para-la-defensa-de-la-patria.

    [96].       See Venezuela’s Human Rights Obligations, supra part III.

    [97].       Cassese, supra note 8, at 180-181.

    [98].       Schabas, supra note 72, at 922.

    [99].       Bassiouni, supra note 80, at 29.

  [100].       Ley Organica de la Fuerza Armada Nacional [National Armed Forces Statute], art. 7, (Venez.).

  [101].       Id.

  [102].       Id. at art. 6.

  [103].       A Tale of Two Prisoners, The Economist, supra note 70.

  [104].       Maduro: Candelita que se prenda, candelita que se apaga, El Nacional (Mar. 6, 2014, 9:31 PM), http://www.el-nacional.com/politica/Maduro-mataron-guarimberos_0_367763465.html.

  [105].       Id.

  [106].       Grupos armados terminan con protestas estudiantiles en Venezuela, El Economista (Mar. 28, 2014, 3:30 PM), http://eleconomista.com.mx/internacional/


  [107].       Daniel Lozano, Contraataque fulminante de los paramilitares del chavismo, El Mundo (Mar. 7, 2014, 11:28 AM), http://www.elmundo.es/internacional/2014/03/06/5318cdc222601d5b6e8b4587.html [hereinafter Lozano, Contraataque fulminante].

  [108].       Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica (Mar. 19, 2014), http://www.alianzaparlamentaria.com/?p=282.

  [109].       Lozano, Contraataque fulminante, supra note 107.

  [110].       Diosdado Cabello también será denunciado en La Haya, señalan diputados latinoamericanos, Alianza Parlamentaria de Latinoamerica, supra note 108.

  [111].       Diosdado Cabello confirma la muerte de un miembro de colectivos del 23 de Enero y pide calma, YouTube.com (Feb. 12, 2014), https://www.youtube.com/watch?v=XL_kI0NZGVQ (amateur video posted on YouTube showing VTVCanal8 live news feed).

  [112].       At Least Eight People Shot in Protests in Valencia, North Venezuela, El Universal (Feb. 19, 2014), http://www.eluniversal.com/nacional-y-politica/140219/at-least-eight-people-shot-in-protests-in-valencia-north-venezuela.

  [113].       Id.

  [114].       Fernando del Rincón de CNN en Español MIENTE sobre mensaje de Ameliach, YouTube.com (Feb.19, 2014), http://www.youtube.com/watch?v=WWEbSe9xh5c (last visited Mar. 13, 2015) (amateur video posted on YouTube showing CNN Español live news feed of Francisco Ameliach’s Twitter feed).

  [115].       Brutal agresion policia Aragua y Colectivos le caen a palo a un estudiante, CNN Español (Mar. 20, 2014), http://ireport.cnn.com/docs/DOC-1109798.

  [116].       Id.

  [117].       Investigan muerte de hombre de origen canario en protestas Venezuela, El Universal (Feb. 25, 2014), http://www.eluniversal.com/nacional-y-politica/protestas-en-venezuela/140225/investigan-muerte-de-hombre-de-origen-canario-en-protestas-venezuela.

  [118].       Cryer, supra note 68, at 236.

  [119].       Id.

  [120].       Including in the municipalities of Baruta, El Hatillo, Chacao, and Sucre in Caracas, in some parts of Tachira state, where protests would be more widespread, and in the states of Merida, Carabobo, Aragua, Lara, Barinas, Miranda, Zulia, and Yaracuy.

  [121].       Krauze, supra note 4.

  [122].       Id.

  [123].       Cryer, supra note 68, at 236.

  [124].       Translation: The Judgment Against Fujimori for Human Rights Violations, 25 Am. U. Int’l. L. Rev. 657, 800-01 (2010) (trans. Aimee Sullivan) quoting Kai Ambos, Estuios de Derecho Penal Internacional 133-35 (2007).

  [125].       Denuncian la existencia de un nuevo “patrón” para reprimir: Señalan actuación “conjunta” de bandas armadas y efectivos militares, El Universal (Feb. 23, 2014, 12:00 AM), http://www.eluniversal.com/nacional-y-politica/140223/denuncian-la-existencia-de-un-nuevo-patron-para-reprimir.

  [126].       Maolis Castro & Francis Custode, Colectivos y guardias atacaron edificios en Caracas, El Nacional (Feb. 19, 2014, 11:15 PM), http://www.el-nacional.com/sucesos/Atacan-edificios-Caracas_0_358764363.html.

  [127].       Noche de ataques a residencias vivieron vecinos de Santa Fe, El Universal (Apr. 24, 2014), http://www.eluniversal.com/caracas/140424/noche-de-ataques-a-residencias-vivieron-vecinos-de-santa-fe.

  [128].       See Observatorio Iberoamericano de la Democracia, Informe sobre las Violaciones Generalizadas y Sistemáticas de Derechos Humanos en Venezuela: La Masacre Del 12 De Febrero o del DíA de la Juventud 32 (Buenos Aires, Mar. 20, 2014), available at http://www.ventevenezuela.org/wp-inter/uploads/2014/04/250384125DENUNCIA.pdf.

  [129].       Capriles denunció que ya hay más de 500 casos de represión brutal, Infobae (Feb. 23, 2014), http://www.infobae.com/2014/02/23/1545674-capriles-denuncio-que-ya-hay-mas-500-casos-represion-brutal (it should be noted that the use of firearms for the control and dispersion of massive public has now been officially authorized by the Venezuelan government. See Edgar Lopez, Autorizan uso de armas mortales contra protestas, El Nacional (Mar. 20, 2015), available at http://www.el-nacional.com/politica/Autorizan-uso-armas-mortales-protestas_0_564543734.html).

  [130].       Venezuelan 14-Year-Old Shot Dead During Anti-Government Protest, The Guardian, (Feb. 24, 2015, 5:23 PM), http://www.theguardian.com/world/2015/feb/24/venezuelan-14-year-old-shot-dead-anti-government-protest; http://www.buenosairesherald.com/article/152509/venezuelan-beauty-queen-killed-in-protest-shot-in-the-head; Venezuelan Beauty Queen Killed in Protest, Shot in Head, Buenos Aires Herald (Feb. 19, 2014), http://www.buenosairesherald.com/article/152509/venezuelan-beauty-queen-killed-in-protest-shot-in-the-head; Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [131].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

  [132].       Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the confirmation of charges, ¶ 396 (Sept. 30, 2008), http://www.icc-cpi.int/iccdocs/doc/doc571253.pdf.

  [133].       Cryer, supra note 68, at 236-77.

  [134].       Id. at 237.

  [135].       Id.

  [136].       William Neuman, In Venezuela, Protestors Point to Their Scars, N.Y. Times, Apr. 28, 2014, available at http://www.nytimes.com/2014/04/28/world/americas/in-venezuela-protesters-point-to-their-scars.html?_r=1.

  [137].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [138].       Id.

  [139].       Venezuela Opposition Marches Keep Up Momentum Despite Carnival Holiday, CBC News (Mar. 2, 2014, 10:25 PM), http://www.cbc.ca/news/world/venezuela-opposition-marches-keep-up-momentum-despite-carnival-holiday-1.2557352.

  [140].       Id.

  [141].       Id.; see also Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [142].       Cryer, supra note 68, at 241.

  [143].       Id.

  [144].       What Lies Behind the Protests in Venezuela?, BBC News, supra note 24.

  [145].       Id.

  [146].       Cassese, supra note 8, at 104.

  [147].       See e.g., Constitución de la República Bolivariana de Venezuela [Constitution] 1999, arts. 27, 29, 46. (Venez.).; Código Penal de Venezuela [Crim. Code], art. 167, 175, 181, 183, 407, 411, 412 (Venez.).

  [148].       Chile Eboe-Osuji, Crimes Against Humanity: Directing Attacks Against a Civilian Population, 2 Afr. J. Legal Stud. 118, 124 (2008).

  [149].       Ewan Robertson, Where is Venezuela’s Political Violence Coming From? A Complete List of Fatalities from the Disturbances, Venezuelanalysis.com (Apr. 5, 2014), http://venezuelanalysis.com/analysis/10580.

  [150].       Thabata Molina, Who Died in Venezuela’s 2014 Protests?, PanamPost  (Feb. 11, 2015), http://panampost.com/thabata-molina/2015/02/11/who-died-in-venezuelas-2014-protests/; see also, Bassil Da Costa, el estudiante asesinado tras recibir disparo en protesta opositora, Ultimas Noticias (Feb. 13, 2014, 10:00 AM), http://www.ultimasnoticias.com.ve/noticias/actualidad/sucesos/fotos—-bassil-da-costa-el-estudiante-asesinado-tr.aspx.

  [151].       Video: Uniformados y civiles dispararon en Candelaria el 12F, Ultimas Noticias (Feb. 19, 2014), http://www.ultimasnoticias.com.ve/noticias/actualidad/investigacion/video—-uniformados-y-civiles-dispararon-en-candel.aspx; see also William Neuman, Venezuela is Divided Even on its Death Toll, N.Y. Times (Feb. 23, 2014), available at http://www.nytimes.com/2014/02/24/world/americas/venezuela-is-divided-even-on-its-death-toll.html?ref=venezuela.

  [152].       Video: Uniformados y civiles dispararon en Candelaria el 12F, supra note 151.

  [153].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [154].       Video: Uniformados y civiles dispararon en Candelaria el 12F, supra note 151.

  [155].       Amnistia Internacional, supra note 43, at 11; see also Neuman, supra note 151.

  [156].       Tensión en Venezuela #24F: minuto a minute, CNN Español (Feb. 23, 2014), http://cnnespanol.cnn.com/2014/02/24/venezuela-24f-minuto-a-minuto/.

  [157].       Murió la estudiante Geraldine Moreno, El Universal (Feb. 22, 2014), http://www.eluniversal.com/nacional-y-politica/140222/murio-la-estudiante-geraldine-moreno.

  [158].       Id.

  [159].       En Conclusiones investigan la muerte de José Alejandro Márquez en Venezuela, CNN Español (Feb. 28, 2014), http://cnnespanol.cnn.com/2014/02/28/conclusiones-investiga-la-muerte-de-jose-alejandro-marquez-en-venezuela/ [hereinafter En Conclusions investigan]; see also Amnistia Internacional, supra note 43, at 11.

  [160].       En Conclusiones investigan, CNN Español, supra note 159.

  [161].       Id.

  [162].       Id.

  [163].       Amnistia Internacional, supra note 43, at 11.

  [164].       Compare Roberto Redman, el estudiante que tuiteó su muerte en Caracas, UnivisionNoticias (Feb. 13, 2014), http://noticias.univision.com/article/1850697/2014-02-13/america-latina/venezuela/roberto-redman-el-estudiante-que-tuiteo-su-muerte-en-caracas; with William Neuman, Venezuela Accuses Intelligence Officers of Murdering, N.Y. Times (Feb. 26, 2014), available at http://www.nytimes.com/2014/02/27/world/americas/venezuela-accuses-intelligence-officers-of-murdering-2.html?_r=1.

  [165].       Herido relata como fue la muerte de Roberto Redman, El Nacional (Feb. 13, 2014), http://www.el-nacional.com/sucesos/Herido-relata-muerte-Roberto-Redman_3_355194479.html.

  [166].       Roberto Redman, el estudiante que tuiteó su muerte en Caracas, UnivisionNoticias (Feb. 13, 2014), http://noticias.univision.com/article/1850697/2014-02-13/america-latina/venezuela/roberto-redman-el-estudiante-que-tuiteo-su-muerte-en-caracas.

  [167].       Donna Sawyer, Desperate Dash to Save Dying Beauty Queen: Venezuelan Woman, 22, Dies Hours After Being Gunned Down on the Street, Daily Mail (Feb. 19, 2014, 11:25AM), http://www.dailymail.co.uk/news/article-2562670/Venezuela-awaits-fate-jailed-opposition-leader.html.

  [168].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [169].       Venezuelan Student Leader Shot Dead at Protest, BBC News (Mar. 11, 2014), http://www.bbc.com/news/world-latin-america-26525145.

  [170].       Id.

  [171].       Robertson, supra note 149.

  [172].       Id.

  [173].       El hombre que murió ayer en Cagua por impacto de bala solo había salido a ver la protesta, Noticias24 (Feb. 25, 2014), http://www.noticias24.com/venezuela/noticia/224400/fallecido-en-aragua-recibio-impacto-de-bala-por-asomarse-a-ver-la-protesta/.

  [174].       Id.

  [175].       Id.

  [176].       Cryer, supra note 68, at 245-46.

  [177].       Cassese, supra note 8, at 94.

  [178].       Cryer, supra note 68, at 250; ICC Statute, supra note 64, at art. 7.

  [179].       Cryer, supra note 68, at 250.

  [180].       Id. at 182-83.

  [181].       Resumen de detenidos, Foro Penal Venezolano, http://www.foropenal.com (at the time this article was written, 422 cases were unverified.  However, in 2015, the Venezuelan Attorney General, Luisa Ortega Diaz, confirmed that there were in total 3,351 detainees during the protest, from which 41 remain imprisoned. Venezuela: 41 personas siguen detenidas por protestas de 2014, según fiscalía, BBC News (Feb. 10, 2015), http://www.bbc.co.uk/mundo/ultimas_noticias/2015/02/150210_venezuela_protestas_detenidos_ac).

  [182].       Venezuela Unrest: Pillay Urges Respect for Human Rights, and Halt to Inflammatory Rhetoric, United Nations Human Rights, Office of the High Comm’r of Human Rights (Feb. 28, 2014), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14292&LangID=E.

  [183].       Venezuela/Demonstrations: UN Experts Ask for Clarification on Alleged Arbitrary Detentions and Use of Violence, United Nations Human Rights, Office of the High Comm’r of Human Rights (Mar. 6, 2014), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14318&.

  [184].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

  [185].       Id.

  [186].       Mariano Castillo et al., Venezuelan Opposition Leader Lopez Faces Court Behind Bars, CNN (Feb. 19, 2014), http://www.cnn.com/2014/02/19/world/americas/venezuela-


  [187].       Diaz-Struck & Miroff, supra note 15.

  [188].       William Neuman, Crude Weapons Help Fuel Unrest in Bastion of Venezuelan Opposition, N.Y. Times (Feb. 25, 2014), available at http://www.nytimes.com/2014/02/26/world/americas/crude-weapons-help-fuel-unrest-in-bastion-of-venezuelan-opposition.html?src=rechp&_r=0.

  [189].       Castillo et al., supra note 186.

  [190].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 44 (Venez.).

  [191].       Human Rights Watch, Tightening the Grip, supra note 5, at 42.

  [192].       Amnistía Internacional exige la liberación de Leopoldo López, Infobae (Jan. 16, 2015), http://www.infobae.com/2015/01/16/1621252-amnistia-internacional-exige-la-liberacion-leopoldo-lopez.

  [193].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, art. 49. (Venez.).

  [194].       Case of Lopez Mendoza v. Venezuela, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 233 (Sept. 1, 2011), available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_233_ing.pdf.

  [195].       Id. at ¶¶ 181-85.

  [196].       Venezuela: Trial of Opposition Leader an Affront to Justice and Free Assembly, Amnesty International (Feb, 19, 2014), http://www.amnesty.ca/news/news-releases/venezuela-trial-of-opposition-leader-an-affront-to-justice-and-free-assembly.

  [197].       Id.

  [198].       Juan Francisco Alonso, El TSJ destituyó al alcalde Ceballos y lo condenó a 12 meses de cárcel, El Universal (Mar. 25, 2014, 9:11 PM), http://www.eluniversal.com/nacional-y-politica/protestas-en-venezuela/140325/el-tsj-destituyo-al-alcalde-ceballos-y-lo-condeno-a-12-meses-de-carcel.

  [199].       Id.

  [200].       Id.

  [201].       Id.; see also Venezuela: HRF Condemns Ongoing Crackdown on Increasingly Disenfranchised Opposition, Human Rights Foundation (Apr. 2, 2014), http://humanrightsfoundation.org/news/venezuela-hrf-condemns-ongoing-crackdown-on-increasingly-disenfranchised-opposition-00370.

  [202].       TSJ no publicó sentencia sobre caso Scarano y Lucchese en plazo previsto, La Patilla, (Apr. 2, 2014, 11:32 AM), http://www.lapatilla.com/site/2014/04/02/tsj-no-publico-sentencia-sobre-caso-scarano-y-lucchese-en-plazo-previsto/.

  [203].       Id.

  [204].       Venezuela: OAS Should Proceed with Meeting, Human Rights Watch, supra note 32.

  [205].       Jose Miguel Vivanco, The Criminal Prosecution of Leopoldo López, Human Rights Watch (Mar. 12, 2014), http://www.hrw.org/news/2014/03/12/criminal-prosecution-leopoldo-lopez.

  [206].       Castillo et al, supra note 186.

  [207].       Human Rights Foundation, supra note 201.

  [208].       Fotógrafa italiana detenida por la GNB en Altamira, El Nacional (Feb. 28, 2014, 10:26 PM), available at http://www.el-nacional.com/sucesos/Fotografa-italiana-detenida-GNB-Altamira_0_364163851.html.

  [209].       Venezuela: la Guardia Nacional golpeó y arrestó a periodistas, Infobae (Mar. 1, 2014), http://www.infobae.com/2014/03/01/1547183-venezuela-la-guardia-nacional-golpeo-y-arresto-periodistas [hereinafter Venezuela: la Guardia Nacional].

  [210].       Tatiana Ferrin, En libertad periodista italiana detenida en Caracas en medio de las protestas, Miami Diario (Mar. 2, 2014), http://www.miamidiario.com/internacional/venezuela/caracas/detenidos/protestas/nicolas-maduro/francesca-commissari/320879.

  [211].       Venezuela: la Guardia Nacional, Infobae, supra note 209.

  [212].       Venezuelan Journalists Detained Covering Protests, Committee to Protect Journalists (Mar. 26, 2014), http://cpj.org/2014/03/venezuelan-journalists-attacked-detained-covering.php.

  [213].       Id.

  [214].       Id.

  [215].       Espacio Público/Venezuela: 12 de Febrero al 12 de Marzo de 2014, los trances de la libertad de expression, Provea (Mar. 14, 2014), http://www.derechos.org.ve/2014/03/14/espacio-publico-venezuela-12-de-febrero-al-12-de-marzo-de-2014-los-trances-de-la-libertad-de-expresion/.

  [216].       Amnistia Internacional, supra note 43, at 13.

  [217].       Id.

  [218].       Inaceptable: Fuerzas de represión golpean y detienen a joven especial, La Patilla (Mar. 15, 2014), http://www.lapatilla.com/site/2014/03/15/inaceptable-fuerzas-de-represion-golpean-y-detienen-a-joven-especial-fotos/.

  [219].       Id.

  [220].       Amnistia Internacional, supra note 43, at 9.

  [221].       Id.

  [222].       Id.

  [223].       Id.

  [224].       Id.

  [225].       Cryer, supra note 68, at 251.

  [226].       ICC Statute, supra note 64, article 7(2)(e).

  [227].       Amnistia Internacional, supra note 43, at 6.

  [228].       UN News Centre, supra note 45.

  [229].       Daniel Lozano, Violados por la GN, Tal Cual (Feb. 19, 2014), http://www.talcualdigital.com/Nota/visor.aspx?id=99156&tipo=REP [hereinafter Lozano, Violados por la GN].

  [230].       Amnistia Internacional, supra note 43, at 12.

  [231].       Id.

  [232].       Cryer, supra note 68, at 253.

  [233].       Lozano, Violados por la GN, supra note 229.

  [234].       Id.

  [235].       Amnistia Internacional, supra note 43, at 10.

  [236].       Daniel Pardo, Las denuncias de maltratos en las protestas de Venezuela, BBC News (Feb. 25, 2014), http://www.bbc.co.uk/mundo/noticias/2014/02/140218_venezuela_protestas_denuncias_dp.shtml.

  [237].       Amnistia Internacional, supra note 43, at 10-11.

  [238].       Id. at 10.

  [239].       Id.

  [240].       Id. at 11.

  [241].       Video: Salvaje y despiadado el castigo a una manifestante, Diario Las Americas (Feb. 27, 2014),

  [242].       Tortura y humillación reciben estudiantes detenidos por parte de la Guardia Nacional, RunRunes (Feb. 14, 2014), http://runrun.es/inbox/102772/la-patilla-tortura-y-humillacion-reciben-estudiantes-detenidos-por-parte-de-la-guardia-nacional.html.

  [243].       Observatorio Iberoamericano de la Democracia, supra note 129, at 16.

  [244].       Amnistia Internacional, supra note 43, at 10.

  [245].       Pardo, supra note 236.

  [246].       Tratos inhumanos, Tal Cual (Apr. 6, 2014), http://www.talcualdigital.com/nota/visor.aspx?id=101204&tipo=AVA.

  [247].       Amnistia Internacional, supra note 43, at 3-4.

  [248].       Cryer, supra note 68, at 251-53.

  [249].       Id. at 252.

  [250].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [251].       ICC Statute, supra note 64, princ. 7(1)(k).

  [252].       See Policia de Aragua Venezuela, golpeando estudiantes hasta la muerte!!!, YouTube.com (Feb. 15, 2014), http://www.youtube.com/watch?v=KztbsT6jgLo&desktop_uri=%2Fwatch%3Fv%3DKztbsT6jgLo&app=desktop (amateur video filmed by civilian and posted on YouTube).

  [253].       Leonor Suarez, Venezuela anoche no durmio entre gases y disparos, Univision Noticias (Feb. 20, 2014), http://www.youtube.com/watch?v=y2s90bAHF7M(YouTube.com channel).

  [254].       Id.; see also José Rafael Mata, Joven fue herido por la Guardia Nacional en la Panteón, Ultimas Noticias (Feb. 20, 2014), http://www.ultimasnoticias.com.ve/noticias/actualidad/politica/joven-fue-herido-por-la-guardia-nacional-en-la-pan.aspx.

  [255].       Amnistia Internacional, supra note 43, at 12.

  [256].       Id.

  [257].       Human Rights Watch, Punished for Protesting: Rights Violations in Venezuela’s Streets, Detention Centers, and Justice System 69-70 (2014), available at http://www.hrw.org/sites/default/files/reports/venezuela0514_ForUpload_0.pdf.

  [258].       See United Nations Human Rights, Office of the High Comm’r of Human Rights, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, princ. 11(e), http://www.ohchr.org/Documents/ProfessionalInterest/firearms.pdf [hereinafter Basic Principles on the Use of Force].

  [259].       Ya no son perdigones: GNB dispara metras a manifestantes, La Patilla (Feb. 24, 2014), http://www.lapatilla.com/site/2014/02/24/ya-no-son-perdigones-gnb-dispara-metras-a-manifestantes-imagenes-fuertes/.

  [260].       Lorena Evelyn Arráiz, Tres heridos de bala durante protestas en San Cristóbal, El Universal (Feb. 28, 2014), http://m.eluniversal.com/nacional-y-politica/140228/tres-heridos-de-bala-durante-protestas-en-san-cristobal.

  [261].       Id.

  [262].       27F Herido de Bala (metra) joven barinés quien fue intervenido y extraído parte del intestine, Venezuela Awareness (Feb. 28, 2014), http://www.venezuelaawareness.com/2014/02/27f-herido-de-bala-metra-joven-barines-quien-fue-intervenido-y-extraido-parte-del-intestino/.

  [263].       See Tanqueta hiere y detiene a Jeremias Jimenez en Urb. Los Cardones, YouTube.com (Apr. 15, 2014), https://www.youtube.com/watch?v=gQN4Qv_PCAc (amateur video posted on YouTube).

  [264].       Amnistia Internacional, supra note 43, at 7.

  [265].       El Universal, supra note 91.

  [266].       For examples of tear gas being used on or near children, see William Neuman, In Venezuela, Protest Ranks Grow Broader, N.Y. Times (Feb. 24, 2014), available at http://www.nytimes.com/2014/02/25/world/americas/in-venezuela-middle-class-joins-protests.html.

  [267].       Amnistia Internacional, supra note 43, at 7.

  [268].       Violence Escalates as Protests Continue in Venezuela, Global Voices (Feb. 20, 2014), http://globalvoicesonline.org/2014/02/20/violence-escalates-as-protests-continue-in-venezuela/.

  [269].       Andrea Montilla, Casi pierde un ojo por una bomba lacrimógena, El Nacional (Feb. 20, 2014), http://www.el-nacional.com/sucesos/pierde-ojo-bomba-lacrimogena_0_359364255.html.

  [270].       Venezuela: Violence against Protesters, Journalists, Human Rights Watch, supra note 87.

  [271].       United Nations Human Rights, Basic Principles on the Use of Force, supra note 258, princ. 9.

  [272].       Id., princ. 11(e).

  [273].       Id., princ. 14.

  [274].       Bassiouni, supra note 80, at 410.

  [275].       ICC Statute, supra note 64, preamble.

  [276].       Id., art. 1, 17.

  [277].       Cryer, supra note 68, at 153.

  [278].       See Human Rights Watch, Tightening The Grip, supra note 5.

  [279].       ICC Statute, supra note 64, art. 17(2).

  [280].       Human Rights Watch, Tightening The Grip, supra note 5.

  [281].       Id.

  [282].       Id.

  [283].       Id.

  [284].       Id.

  [285].       David Smilde & Hugo Pérez Hernaíz, Venezuela’s Withdrawal from the Inter-American Court of Human Rights, Venezuelan Politics and Human Rights (Apr. 2, 2012), http://venezuelablog.tumblr.com/post/28591587859/venezuelas-withdrawal-from-the-inter-american-court-.

  [286].       Human Rights Watch, Tightening The Grip, supra note 5.

  [287].       Id.

  [288].       Id.

  [289].       Id.

  [290].       Id.

  [291].       Human Rights Watch, Tightening The Grip, supra note 5.

  [292].       Id.

  [293].       Id.

  [294].       Corruption Perceptions Index 2013, Transparency International, http://www.transparency.org/cpi2013/results (last visited Mar. 22, 2015).

  [295].       Grace Jaramillo, How Chavez Planted the Seeds of Violence, The Globe and Mail (Feb. 27, 2014), available at http://www.theglobeandmail.com/globe-debate/how-chavez-planted-the-seeds-of-violence/article17124138/.

  [296].       Fiscal: Quedan 41 personas detenidas por protestas de 2014, El Universal (Feb. 10, 2015), http://www.eluniversal.com/nacional-y-politica/150210/fiscal-quedan-41-personas-detenidas-por-protestas-de-2014.

  [297].       12F: Los asesinos Melvin Collazos y Jonathan Rodríguez del SEBIN, Reportero24 (Feb. 18, 2014), http://www.reportero24.com/2014/02/12f-los-asesinos-melvin-collazos-y-jonathan-rodriguez-del-sebin/.

  [298].       Huyó presunto asesino de Bassil Dacosta y Juancho Montoya, Somos Noticias COL (Feb. 20, 2014), http://www.somosnoticiacol.com/site/huyo-presunto-asesino-de-bassil-dacosta-y-juancho-montoya/.

  [299].       Id.

  [300].       Luis Izquiel, Juicios sumarios, El Universal (Mar. 28, 2014), http://www.eluniversal.com/opinion/140328/juicios-sumarios.

  [301].       Daniel Wiser, Venezuela Ousts Leader of Opposition Protest Movement, The Washington Free Beacon (April 2, 2014), http://freebeacon.com/national-


  [302].       Constitución de la República Bolivariana de Venezuela [Constitution] 1999, preamble, art. 136 (Venez.).

  [303].       Human Rights Watch, Tightening The Grip, supra note 5.

  [304].       Javier Corrales, Why Venezuela’s Student Protesters Have Already Won, Wash. Post (Feb. 29, 2014), available at http://www.washingtonpost.com/opinions/why-venezuelas-student-protesters-have-already-won/2014/02/28/b4f94d2a-a009-11e3-9ba6-800d1192d08b_story.html.

  [305].       Laura Meschino, Op-Ed: I Am Your Voice Venezuela!: #SOSVenezuela, Canadian Civil Liberties Association Rights Watch Blog (Feb. 21, 2014), http://www.ccla.org/rightswatch/2014/02/21/op-ed-i-am-your-voice-venezuela-sosvenezuela/.



Stephen R. Layne*



Imagine a scenario where a large multinational corporation signs an investment agreement with an underdeveloped nation to work on a mining project in that country. The corporation expects to receive substantial profits from the enterprise, while the government of the underdeveloped nation anticipates security and economic growth from the investment that the corporation has made in its economy. Suppose further that, as is sometimes the case, the corporation has more economic resources than the nation itself and thus holds substantial power over the nation.[1] The government of the nation cares little about the fates of its citizens, focusing only on the potential growth to be had from the foreign investment.

The citizenry opposes the mining project, as it will result in the displacement of many citizens from their homes to accommodate the corporation. In order to ensure compliance so that the corporation’s project can be completed on schedule, the government corrals up the troublemakers and executes them, while also bombing several villages to instill fear into its citizens.[2] The corporation does not directly participate in the government’s actions but is aware of them. Eventually, survivors of the attacks seek to hold the corporation responsible for its complicity in these human rights violations. Unfortunately, they are most likely barred from redress in their own country because of their corrupt and greedy government.[3]

As terrible as this hypothetical scenario sounds, the sad truth is that there have been numerous examples of instances where corporations either encouraged and were active participants in violations of human rights, or were aware of such violations by national governments and did nothing to stop them from occurring.[4] The question among many legal scholars today is whether corporations should be held responsible for human rights violations and, if so, how such an obligation should be enforced.[5] Until recently, the United States provided an available forum for foreign citizens to bring claims for human rights violations under the Alien Tort Statute (ATS);[6] however, in 2013, the United States Supreme Court limited the scope of the ATS, calling into question its availability for such actions in the future.[7] Consequently, legal writers are unsure of the direction the legal community will take with regard to holding corporations responsible for human rights violations.[8]

This article provides a background to this divisive issue and lays out the current structures in place that exist to hold corporations responsible for human rights violations. Part I gives an overview of corporate structure and duties generally, as well as a discussion of corporate personality and nationality. Part II examines the human rights that are at issue in the discussion as well as particular instances where corporations have been implicated in human rights violations. Part III reports the redressability of these violations in international law and the current structures in place that impose requirements on corporations. Part IV looks at the history of the United States’ approach toward corporations under the ATS and the current legal landscape after the Supreme Court’s recent decision. Finally, Part V surveys some of the legal scholarship on the issue.

I.  The Characteristics of Corporations

Corporations have been in existence for centuries, and today there are over 70,000 multinational corporations that have over “700,000 subsidiaries and millions of suppliers around every corner of the globe.”[9] These multinational corporations wield tremendous power, particularly in underdeveloped countries that need foreign investment to support their economies.[10] Corporations are creatures of state law, and they possess certain characteristics that set them apart from other organizations.[11] Some of the main characteristics that corporations possess are “separate legal personality, the ability of one corporation to own shares in another, and limited liability.”[12]

1.  Corporations as Legal Persons

That corporations possess a separate legal personality is not a new phenomenon, and this legal personhood was confirmed in a recent case before the United States Supreme Court.[13] In Citizens United v. Federal Election Commission, Citizens United, a nonprofit corporation, produced a documentary film entitled Hillary: The Movie, which largely portrayed then-Senator Hillary Clinton in a negative light.[14] Citizens United sought to promote the film by providing public access through “video-on-demand” during the 2008 primary contests; however, a federal statute banned corporate funded political expenditures aimed at supporting or challenging a particular political candidate.[15] The Court held that “First Amendment protection extends to corporations,” particularly in the context of political speech.[16] Consequently, the Government cannot have laws in place that “suppress political speech on the basis of the speaker’s corporate identity.”[17] As a result, the federal statute that prohibited corporate expenditures for political causes was found unconstitutional.[18] This holding confirmed that corporations are legal persons, and they possess many of the same rights as natural persons.[19] With those rights also come responsibilities, however.[20]


2.  Corporate Structure and Corresponding Duties

Corporations are created under state law, and often times they are composed in a parent-subsidiary relationship, where a large parent corporation holds an interest in smaller subsidiary corporations.[21] Importantly, each subsidiary corporation maintains its own separate legal personhood apart from the parent corporation.[22] As globalization has increasingly affected businesses, more and more of these subsidiary corporations are now located in other countries.[23] One of the key advantages of the corporate form is that it provides limited liability to the shareholders, directors, and officers; however, this limited liability can negatively impact corporate accountability for human rights in certain contexts.[24]

Corporations are controlled by their boards of directors, and in the United States, many corporations incorporate in Delaware because of the favorable approach Delaware courts have taken toward corporations.[25] Delaware courts typically take a “management-friendly” position and are loath to grant shareholders expansive rights.[26] If a corporation is incorporated in Delaware, the internal affairs doctrine applies to “all claims arising from the fiduciary duties of directors and officers of any entity within the corporate structure that is itself incorporated or headquartered in Delaware.”[27] The internal affairs doctrine “confers upon the state of incorporation jurisdiction to decide matters ‘peculiar to corporations, that is, those activities concerning the relationships [among or between] the corporation, its directors, officers and shareholders.’”[28] Corporate directors have a number of fiduciary duties that they owe to the corporation and to its shareholders, and scholars have begun to argue that protection of human rights fall within the fiduciary duties of directors.[29]

The primary fiduciary duties that corporate directors owe to the corporation and its shareholders are the duty of care and the duty of loyalty.[30] The duty of care requires directors to avoid “gross negligence,” and the decisions of the directors are protected by the business judgment rule.[31] The business judgment rule prevents courts from “second-guess[ing] business decisions of the board as long as the directors acted on an informed basis, in good faith, and in the honest belief that the action was in the best interests of the corporation.”[32] On the other hand, “the duty of loyalty requires the fiduciary to act in the best interests of the corporation without self-dealing and to disclose the nature of any conflict of interest or opportunity that may confer a financial benefit upon the fiduciary that is unavailable to other shareholders or to the corporation.”[33] Subsumed under the duty of loyalty is the duty of good faith, which can be violated

where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties.[34]

Directors also owe a duty of oversight to the corporation and its shareholders.[35] This duty of oversight requires directors to ensure legal compliance throughout the corporation by “‘attempt[ing] in good faith to assure that a corporate information and reporting system, which the board concludes is adequate, exists.’”[36]

Consequently, the board of directors of a Delaware corporation owes a number of fiduciary duties to the corporation and its shareholders. With these duties as a background, it is certainly understandable that legal scholars have argued that these fiduciary duties extend to the responsibility to protect human rights.[37] However, enforcement issues arise when corporations play a role in human rights violations that occur in foreign countries due to the fact that corporations have particular nationalities.[38]

3.  Nationality of Corporations

In the Barcelona Traction case, the International Court of Justice confirmed the principle that the state where a corporation is incorporated possesses the primary right to bring an action to seek a remedy for injury caused to the corporation’s shareholders.[39] In that case, Belgium sought reparations from Spain due to injuries that Spain allegedly caused to the shareholders of the corporation, some of whom were Belgian nationals.[40] However, the corporation was incorporated and had its head office in Canada, not Belgium.[41] The court noted that “[t]he traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office.”[42] As a result, Barcelona Traction was a Canadian corporation, and Canada thus possessed the sole right “to decide whether its protection [would] be granted, to what extent it [would be] granted, and when it [would] cease.”[43] Because Canada had not yet taken any steps to make a claim on behalf of the shareholders of the Canadian corporation, Belgium could not preemptively bring a claim on behalf of the Belgian shareholders.[44] The court noted that Canada still retained the ability to bring an action on behalf of the corporation and its shareholders.[45] Therefore, this case established the principle that corporations possess the nationality of their states of incorporation, and those states have the primary right or responsibility to take actions with regard to their corporate nationals.[46]

II.  Human Rights and Corporations

The principle of corporate nationality leads to questions regarding instances where corporations have been involved either directly or passively in human rights violations in foreign countries. First, the question arises as to what particular actions constitute human rights violations. Another question is how to determine whether corporations have been involved in human rights violations and how they can be held accountable. Scholars vary in the types of actions that they argue constitute violations of human rights, but certainly jus cogens violations would qualify as violations of human rights.[47] A jus cogens norm is a norm that is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”[48] Based on the current structure of international law, jus cogens violations are the only human rights violations that corporations could be held liable for, although the number of jus cogens violations under international law could increase over time and expose corporations to a wider range of liability.[49] With that principle established, human rights generally fall into the following categories.[50]

1.  The Human Rights at Issue

In general, “[f]undamental human rights include all those rights violations which would shock the conscience of mankind.”[51] These fundamental human rights have been grouped into three main categories: (1) “human rights preserving the security of persons”; (2) “human rights preserving fundamental labor rights”; and (3) “human rights preserving non-discrimination.”[52] Human rights under the first category, those preserving the security of persons, include “the freedom of human beings from torture, inhumane and degrading treatment, arbitrary killings, arbitrary detention, enforced disappearances, rape, and sexual slavery, extrajudicial killings, genocide, war crimes, crimes against humanity, and other violations of humanitarian law and other international crimes against the human person as defined by international law.”[53] Without a doubt, a number of these crimes have reached the level of jus cogens peremptory norms under customary international law, meaning that states and individuals absolutely cannot commit these crimes without creating erga omnes obligations.[54] Erga omnes obligations are those owed by states to “the international community as a whole,” and these “obligations derive . . . from the outlawing of acts of aggression, and of genocide, [as well as] protection from slavery and racial discrimination.”[55] Consequently, corporations have an obligation to avoid violating many of the human rights preserving the security of persons, because rights under this category, such as freedom from genocide, slavery, torture, and war crimes, have risen to the level of jus cogens peremptory norms that cannot be violated under international law.[56]

The second category of fundamental human rights encompasses those protecting fundamental labor rights.[57] Fundamental labor rights include the “freedom of association, the right to collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor, and the elimination of employment and occupational discrimination.”[58] As noted, slavery covers all forms of forced and compulsory labor and has risen to the level of a peremptory norm under customary international law.[59] The United Nations has argued that slavery in contemporary society includes

the sale of children, child prostitution, child pornography, the exploitation of child labour, the sexual mutilation of female children, the use of children in armed conflicts, debt bondage, the traffic in persons and in the sale of human organs, the exploitation of prostitution, and certain practices under apartheid and colonial regimes.[60]

Therefore, corporations clearly possess an obligation to prevent modern forms of slavery; however, whether they have legal obligations to refrain from other violations such as the freedom of association or the right to collective bargaining is unclear because those violations have not yet risen to the level of jus cogens peremptory norms.[61]

The third category of fundamental human rights includes the right of all human beings “to fair and equal treatment and freedom from discrimination.”[62] The freedom from discrimination extends to “race, colour, sex, language, religion, political opinion, national or social origin, social status, indigenous status, disability, [and] age.”[63] These rights are extended in the Universal Declaration of Human Rights passed by the General Assembly of the United Nations, which specifically posits that the rights included in the declaration are to be protected without discrimination.[64] However, it is again unclear to what extent corporations have legal obligations to refrain from discriminatory human rights violations because only the most extreme human rights violations have risen to the level of jus cogens peremptory norms.[65] Therefore, scholars have called for legislators to clarify the human rights obligations of corporations so that there can be a “uniform approach.”[66]

2.  Particular Instances Where Corporations Have Been Involved in Human Rights Violations

Regardless of the lack of clarity on the extent to which corporations possess human rights obligations, scholars agree that corporations have been involved in human rights violations throughout the world, particularly in “poor communities in developing countries.”[67] In 2006, the United Nations reported that the “‘extractive sector—oil, gas and mining—utterly dominates [the] sample of reported abuses, with two thirds of the total.’”[68] Unfortunately, the majority of “reported cases involve direct forms of company involvement in the alleged violations, where the company is alleged to have directly committed violations through its own acts or omissions.”[69] There have been numerous instances where corporations were involved in human rights violations, and the most prominent have sparked international outrage.[70]

a.  German Corporations During the Holocaust

The human rights violations committed by the Nazis during the Holocaust are truly horrific; however, what many people are unaware of is the extent to which German corporations were involved in either aiding or benefitting from the Nazi atrocities.[71] German banks in particular benefited from the Nazi killings because they “pocketed the deposits of families who were exterminated.”[72] Additionally, “hundreds or even thousands of German companies benefited from the slave labor of eight to ten million people.”[73] While we often picture Nazi prisoners languishing in death camps, these figures show that a significant number of them worked as slaves for German corporations.[74] Other corporations participated in the Nazi atrocities by building the Auschwitz concentration camp, providing chemicals for experimentation on prisoners, and “suppl[ying] punch cards for Nazi record-keeping.”[75]

b.  Newmont Mining Corporation in Indonesia

A more modern example of alleged human rights violations occurred in Indonesia recently as a result of the activities of the Newmont Mining Corporation, an American company with its headquarters located in Denver, Colorado.[76] Newmont produces more gold worldwide than any other corporation, but while it asserts that “safety is first, and the environment is second,” regulators have charged Newmont with toxic chemical pollution both in the United States and in foreign countries.[77] Newmont’s biggest problems have arisen in Indonesia, where its subsidiary, Newmont Minahasa Raya, operates.[78] Indonesian citizens filed suit against Newmont, as did the Indonesian government, which accused Newmont of “discharging 5.5 million tons of waste containing arsenic and mercury into Buyat Bay from 1996 to 2004.”[79] As a result, Indonesia accused Newmont of poisoning the majority of the residents of Buyat Bay because it failed to adhere to environmental standards.[80] Newmont adamantly denied these accusations, but Indonesia’s Environmental Minister “claimed Newmont was trying to cut corners to boost its profits, Newmont knew all along about the release of mercury, and the company failed to properly report it.”[81] Scientific studies conducted after the allegations arose have revealed substantial pollution, even though the original scientist “retracted her statements,” claiming she was not coerced to do so.[82] This modern example shows the dangers caused when corporations pursue profits at the expense of environmental standards or human rights protections.

c.  Unocal in Myanmar

While some corporations, such as the German corporations during Nazi rule, have been directly involved and taken an active role in human rights violations, other corporations have taken a more passive stance while still allowing human rights violations to occur.[83] Unocal Corporation, a now-defunct California corporation, entered into a partnership with Myanmar to construct a pipeline that was “anticipated to provide $400 million per year to the nation’s government.”[84] Myanmar has one of the world’s “most repressive [military] regimes,” and numerous instances have been reported where the military raped and murdered citizens, tortured citizens for information, and forcibly recruited child soldiers.[85] Because of these horrific human rights abuses, the United States cut off foreign investment in Myanmar in 1997; however, Unocal’s relationship with Myanmar allowed the military regime to stay in power through the financial support Unocal provided.[86] As the pipeline was constructed, Myanmar citizens accused their government of violating human rights by essentially enslaving pipeline workers, “forcibly displac[ing]” families, and raping and murdering pipeline workers.[87] Therefore, Unocal’s indirect support of the Myanmar government through the construction of the oil pipeline allowed Myanmar to perpetrate some extreme human rights abuses.[88] Unfortunately for Unocal, consultants reported Myanmar’s history of human rights abuses when Unocal was considering whether to proceed with the pipeline construction.[89] As a result, “Unocal may have knowingly aided and abetted the Myanmar government in subjecting individuals to human rights violations,” especially because Unocal failed to “actively monitor and prohibit the systematic abuse of pipeline workers.”[90]

III. Redressability of Human Rights Violations in International Law

As the above examples demonstrate, corporations have been involved in international human rights violations, and they have either directly participated in violations of human rights or taken a passive role by allowing human rights violations to occur while not taking any preventive actions.[91] The international community has taken a variety of responses to address corporate involvement in human rights violations.[92] In the most extreme cases, namely the Nazi human rights violations that occurred in Germany during World War II, the corporate perpetrators were prosecuted in the Nuremberg Tribunals.[93] In the more modern examples, the United Nations has sought to take a soft law approach, encouraging corporations to voluntarily impose human rights obligations on themselves.[94]

1.  The World War II Industrialist Cases

The Nuremberg Tribunals established a critical principle in international law, namely, “the imposition of criminal liability on individuals” under international law.[95] Crucially, individuals could now be held responsible for violations of international law “even when their conduct was explicitly sanctioned or even required by their country of nationality.”[96] In three particular Nuremberg cases, leaders of German corporations “were prosecuted for crimes against peace[,] . . . war crimes, and crimes against humanity” for their participation in enslaving people and other human rights violations during World War II.[97] While the individual leaders of these corporations were the ones charged, not the corporations themselves, the tribunal in the I.G. Farben case found

that the proof established beyond a reasonable doubt that offenses against property . . . were committed by Farben, and that these offenses were connected with, and an inextricable part of the German policy for occupied countries. . . . The action of Farben and its representatives, under these circumstances, cannot be differentiated from acts of plunder or pillage committed by officers, soldiers, or public officials of the German Reich. . . . Such action on the part of Farben constituted a violation of the Hague Regulations [on the conduct of warfare].[98]

However, Julian Ku points out that while this language appears to be imposing responsibility on the corporations directly, the Nuremberg Tribunals made it clear “‘that the corporate defendant, Farben, [was] not before the bar of [the] Tribunal and [could] not be subjected to criminal penalties in [those] proceedings.’”[99] Consequently, Ku argues that the Nuremberg Tribunals do not provide precedent for American courts to find support for holding corporations legally responsible for international law obligations.[100] Nevertheless, other scholars have argued that the Nuremberg Tribunals established corporate duties under international law, and American courts in particular have relied on these cases as precedential support for such corporate obligations.[101]

2.  The United Nations’ Soft Law Approach

In contrast to the possible imposition of international legal obligations on corporations taken by the Nuremberg Tribunals, the United Nations and other non-governmental organizations (NGOs) have largely avoided an obligatory approach by encouraging corporations to voluntarily impose obligations to respect and protect human rights.[102] The most important of these soft law approaches are the United Nations’ Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Norms), the Global Compact, and the Framework.[103] The primary drawback to these approaches that scholars have noted is that they do not impose mandatory obligations on corporations to respect and protect human rights.[104] However, scholars have posited that soft law approaches provide impeachment value through contradiction if corporations voluntarily impose obligations upon themselves and then fail to adhere to their obligations.[105]

a.  The United Nations’ Norms

The United Nations promulgated its Norms in August 2003, and the Norms are non-binding on corporations, meaning corporations must voluntarily acquiesce to follow the Norms.[106] The Norms explicitly assert “the obligation of [transnational corporations] to ‘promote, secure the fulfillment of, respect, ensure respect of and protect human rights.’”[107] Whether in their home or host country, corporations are implored to protect indigenous people, particularly their “rights to ‘own, occupy, develop, control, protect, and use their lands, other natural resources, and cultural and intellectual property.’”[108] Additionally, corporations are required to “abide by international agreements, principles, and standards regarding the environment” and are instructed to “make periodic assessments of the impact of their activities on human rights and prepare impact statements.”[109] For implementation purposes, “[t]he Norms expect individual states to establish the legal framework to force [transnational corporations] to comply with the human rights standards established in the [Norms]”; however, states often avoid imposing these obligations on their own corporate nationals for various reasons, and as a result, the Norms lose much of their force.[110]

b.  The Global Compact

The Global Compact is a United Nations initiative passed in 1999 “designed to induce corporations to reject complicity in human rights violations.”[111] The Global Compact “states that ‘[b]usinesses should support and respect the protection of internationally proclaimed human rights,’” and it “requires that corporations ‘make sure that they are not complicit in human rights abuses.’”[112] As of March 2011, “more than 4,858 companies from over 100 countries” had declared their membership in the Global Compact.[113] While not mandatory, businesses that are members of the Global Compact can be impeached if their practices violate the requirements in the Compact.[114] These violations would raise doubts as to the credibility of the member corporations by showing that they are acting hypocritically.[115] Unfortunately, critics have noted that many corporations have joined the Compact purely for publicity purposes and to “pacify stakeholders.”[116]

c.  The Framework

In 2008, John Ruggie, the Special Representative to the Secretary-General of the United Nations, conducted an in-depth investigation into the applicability of legal obligations on corporations to protect international human rights and promulgated the Framework.[117] Ruggie’s Framework consists of three principles:

(1) state duties to protect against third party human rights violations through enforcement of trade practices, investment agreements, and lending arrangements; (2) corporate responsibility to respect human rights through the exercise of formal due diligence, to include human rights impact assessments, tracking and monitoring, and other measures; and (3) access by victims of human rights abuses to effective remedies, both judicial and nonjudicial.[118]

Without question, the “Framework is the most comprehensive set of transnational rules, norms, and implementation mechanisms” in the modern era.[119] However, the Framework “remains a solely voluntaristic system without the power to compel,” and consequently, human rights activists have not seen as extensive progress as they would like in the realm of corporate responsibility for human rights.[120] It appears that the soft law approaches taken by the United Nations, while admirable, do little more than bring attention to the human rights issues corporations face and do not have any real power to compel corporations to protect and respect human rights in situations where the corporations should have that responsibility.[121]

IV.  The Alien Tort Statute: The United States’ Approach Toward Corporations

In contrast to the approach taken by the United Nations, until recently, certain federal courts in the United States have allowed aliens to bring claims for human rights violations against corporations under the ATS, holding that corporations have a legal obligation to protect against certain human rights violations. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[122] As a result, at the time the ATS was enacted in 1789, the ATS covered “(1) violation of safe conducts; (2) infringement on the rights of ambassadors; and (3) piracy.”[123] Since 1789, the law of nations has expanded to include more crimes that constitute violations of jus cogens peremptory norms, such as genocide, slavery, torture, war crimes, and crimes against humanity.[124] Consequently, the basis for ATS jurisdiction currently only includes jus cogens violations, and courts have been willing to examine whether particular violations constitute jus cogens violations or not.[125]

1.  The United States’ Approach Before Kiobel v. Royal Dutch Petroleum Co.

Even though the ATS was enacted by Congress in 1789, it was not addressed by the courts until the Second Circuit’s 1980 ruling in Filartiga v. Pena-Irala.[126] Filartiga involved Paraguayan citizens who “brought an action [under the ATS] against another Paraguayan citizen alleging that the defendant wrongfully caused the death of plaintiff’s son by the use of torture.”[127] After examining the fluid concept of the law of nations, the court ultimately held “that torture was prohibited by the law of nations, and that the prohibition ‘is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens.’”[128] Filartiga has been understood to stand for the principle that individuals possess rights under international law and can bring cases in United States district courts against perpetrators who have violated those rights.[129]

a.  Federal Decisions Post-Filartiga

After Filartiga, the Court of Appeals for the District of Columbia Circuit made the next ruling interpreting the applicability of the ATS in Tel-Oren v. Libyan Arab Republic in 1984.[130] In Tel-Oren, “injured Israelis and family members of deceased Israelis brought a claim against a group allied with the Palestinian Liberation Organization (“PLO”), alleging that the group committed murder and torture during an armed attack of a civilian bus.”[131] The D.C. Circuit dismissed the case for lack of subject matter jurisdiction, and the judges explained various reasons for the dismissal in their concurring opinions.[132] For example, Judge Edwards dismissed the case because of “the lack of international consensus” on whether “the law of nations extended to persons not acting under the color of law.”[133] In contrast, Judge Bork dismissed the case by relying on the political question doctrine and the act of state doctrine.[134] Bork argued that “separation of powers principles prevented the court from establishing a cause of action” under the ATS for aliens.[135] He also cautioned against “allowing the court to meddle in the other [political] branches’ powers to decide matters of foreign relations under Articles I and II” of the United States Constitution.[136] As a result, federal courts reached divergent decisions interpreting the ATS until the Supreme Court handed down a decision in 2004 clarifying the issue.[137]

For example, in 1995, the Second Circuit reached another expansive interpretation of the ATS, finding that individual non-state actors can be held responsible for violations of international law.[138] In Kadic, “Croation and Muslim citizens of Bosnia-Herzegovina brought the action against Radovan Karadzic, leader of the Bosnian-Serb forces, alleging that they were victims or representatives of victims of atrocities committed as part of the insurgent groups’ genocidal campaign in the course of the Bosnian Civil War.”[139] Contrary to Karadzic’s position, the court ruled that “‘certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of the state or only as private individuals.’”[140] Consequently, Karadzic could be held individually liable for the genocide and war crimes he committed during the course of the war.[141] The court’s ruling in Kadic ran counter to Judge Edwards’ concurring opinion in Tel-Oren and provided further ammunition to those seeking to hold more entities responsible for violations of international law.[142]

b.  The Supreme Court’s Decision in Sosa

In 2004, the Supreme Court decided Sosa v. Alvarez-Machain, and the Court ruled that the ATS is not a “jurisdictional convenience to be placed on the shelf for the use by a future Congress or state legislature that might, some day, authorize the creation of causes of action.”[143] Sosa involved a situation where a Mexican national, suspected of involvement in the torture and murder of an American Drug Enforcement Agency (DEA) agent, was kidnapped by other Mexican nationals under the guidance of the DEA and brought to the United States, where federal officers subsequently arrested him.[144] Alvarez-Machain sued under the ATS for arbitrary arrest and detention,[145] but the Court ruled that “arbitrary detention did not rise to the level of a violation of international law, unless it was prolonged and encouraged, or condoned as a matter of state policy.”[146] In determining which torts fall under the law of nations, the Court stated that “the judiciary ‘should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [ATS] was enacted.’”[147] Consequently, Alvarez-Machain sought to assert a claim for arbitrary arrest, which is included in the Universal Declaration of Human Rights, but the Court found that the Declaration was “aspirational” and thus “could not create a cause of action under ATS.”[148] In a footnote that has been interpreted differently by numerous courts since the decision, the Court also stated that in determining whether a norm is definite enough, “[a] related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”[149]

c.  The Ninth Circuit’s Decision in Unocal

In a crucial case deciding whether corporations can be held liable for human rights violations, the Ninth Circuit upheld a California district court’s ruling that allowed plaintiffs from Myanmar to bring claims under the ATS against the Myanmar government and Unocal Corporation.[150] Unocal was the first federal case to deny a defendant corporation’s motion to dismiss claims arising under the ATS.[151] The court ruled that Unocal could be held privately liable “for the alleged jus cogens violations of murder, torture, slavery, rape, and forced labor.”[152] The court also held that “Unocal could be found liable under an aiding and abetting standard if they engaged in ‘knowing practical assistance or encouragement that ha[d] a substantial effect on the perpetration of the crime.’”[153] Thus, in the Ninth Circuit at least, corporations could be found liable for certain international human rights violations after Unocal. However, although there have been a number of claims brought against corporations under the ATS, none of the cases resulted in corporations having to pay damages.[154] Nevertheless, “some corporations have paid large settlements to avoid costly litigation.”[155]

2.  Kiobel and the United States’ Subsequent Approach

In stark contrast to the Ninth Circuit’s ruling in Unocal, the Second Circuit made a groundbreaking ruling in 2010 that corporations cannot be held liable under the ATS for human rights violations.[156] In Kiobel, Nigerian citizens brought claims under the ATS alleging that “in the early 1990s, members of the Nigerian military attacked their villages by shooting, killing, beating, and raping Ogoni residents and destroying and looting property.”[157] In an allegation that is terrifying to consider, the plaintiffs claimed that the “defendant corporations provided transportation to the military forces . . . and compensated the soldiers,” thus aiding the Nigerian government in its commission of these human rights violations.[158] The Second Circuit reasoned that it had to find a norm of customary international law to find the corporations liable under the ATS.[159] In seeking for a norm of customary international law, the court noted that the Nuremberg Tribunals “‘declin[ed] to impose corporate liability under international law in the case of the most nefarious corporate enterprise known to the civilized world [and] expressly defined liability under the law of nations as liability that could not be divorced from individual moral responsibility.’”[160] Ultimately, the court refused to “recognize corporate liability under [the] ATS, because corporate liability had simply not risen to the level of a ‘specific, universal, and obligatory’ norm encompassed in ‘the law of nations.’”[161]

a.  The Circuit Split

In spite of the Second Circuit’s adamant position against corporate liability under the ATS, a number of other federal circuit courts of appeal found that corporations can be held liable under the ATS.[162] For example, the Eleventh Circuit simply found that there was no express language in the ATS that exempted corporations from liability.[163] The D.C. Circuit, on the other hand, ruled that the “ATS applied extraterritorially, and that ‘aiding and abetting liability is available under the ATS’ for those defendants that meet the ‘knowledge’ mens rea standard.”[164] That court found that there is historical support for finding corporate liability under the ATS and additionally held that the lack of an express right to sue corporations under customary international law does not provide “corporate immunity.”[165] The Seventh Circuit also weighed in on the discussion by finding that “a corporation or any other non-natural person (in this case a limited liability company) could be held liable under [the] ATS.”[166] That court in particular “noted that imposing liability on an entity that ‘does not breathe’ is well-grounded in the precedent of parties obtaining in rem judgments against pirate ships.”[167] Additionally, the Ninth Circuit ruled that the ATS applied extraterritorially and that corporations could be held liable under the ATS.[168] Thus, the Seventh, Ninth, Eleventh, and D.C. Circuit Courts of Appeal found grounds for corporate liability under the ATS, causing a circuit split on this issue.[169]

b.  The Supreme Court’s Answer

In light of this split amongst the federal circuit courts, the Supreme Court in 2013 granted certiorari to the Second Circuit’s Kiobel decision.[170] The Court determined that the issue it needed to decide was whether the ATS applies extraterritorially “for violations of the law of nations occurring within the territory of a sovereign other than the United States.”[171] In analyzing jurisdiction under the ATS, the Court referred to the “presumption against extraterritorial application,” which is a canon of statutory interpretation that “provides that ‘[w]hen a statute gives no clear indication of an extraterritorial application, it has none,’”[172] and it “reflects the ‘presumption that United States law governs domestically but does not rule the world.’”[173] The Court noted that the purpose of the presumption against extraterritoriality is to prevent clashes between the United States and foreign governments, and the Court explained that the Legislative and Executive branches of government are in a better position than the Judiciary to make foreign policy decisions.[174] The Court also found that foreign policy issues are particularly implicated when the underlying event that courts are asked to adjudicate under the ATS occurred in “the territory of a foreign sovereign.”[175] Additionally, the Court noted that its decision in Sosa granted federal courts jurisdiction under the ATS “only for alleged violations of international law norms that are ‘specific, universal, and obligatory.’”[176]

After considering all of these principles, the Court first concluded that the ATS does not apply extraterritorially because the text of the ATS does not reveal that Congress intended for the statute to have extraterritorial application.[177] The Court also found that nothing in the historical record provides support to overcome the principle against extraterritorial application.[178] The Court examined two contemporary examples shortly after the ATS was passed, where it was invoked as a basis for jurisdiction, and found conclusively that the underlying acts took place in the United States, lending no support to the argument that the ATS applies extraterritorially.[179] Examining the unique case of piracy, the Court noted that “pirates may well be a category unto themselves”; because pirates operate on the high seas, they do not fall within any particular jurisdiction, and they are “fair game wherever found, by any nation.”[180]

Finally, the Court found that the ATS was not intended “to make the United States a uniquely hospitable forum for the enforcement of international norms,” particularly for events that occurred in the territory of foreign sovereigns.[181] In fact, a number of nations have objected to the extraterritorial application of the ATS in recent years, and the Court exposed the frightening possibility that if American courts apply the ATS extraterritorially, other nations might follow suit to the disadvantage of American citizens.[182] The Court pointed out that in this case, all of the underlying circumstances occurred outside the United States, “[a]nd even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”[183] Importantly, many corporations are transnational, and the Court found that “mere corporate presence” provided too remote a connection in order to provide jurisdiction under the ATS.[184] Ultimately, the Court held that the “presumption against extraterritoriality applies to claims under the ATS.”[185]

With the release of Kiobel, undoubtedly many actions for relief under the ATS have now been chilled and curtailed, as the Supreme Court greatly limited the scope of jurisdiction under the ATS.[186] However, the Court importantly “did not bar [the ATS’s] application to corporate entities or alter the scope of claims that may be brought under the [ATS].”[187] Therefore, it is entirely possible that actions can be brought against corporations under the ATS in the future, provided that there is more of a connection between the corporation and the United States than “mere corporate presence,” and the underlying events giving rise to the claim touch the United States with sufficient force to displace the presumption against extraterritoriality.[188]

IV.  Current Scholarly Theories on Corporate Responsibility

In light of the challenges faced in seeking to hold corporations responsible for human rights violations at the international and domestic levels, scholars have posited various theories of corporate responsibility.[189] One scholar notes that parent corporations have legal obligations with regard to their subsidiaries and can consequently be held liable for human rights violations committed by their subsidiaries.[190] Alternatively, another scholar created a multi-factor test to determine whether corporate responsibility should be implicated in particular situations.[191]

Robert McCorquodale posits a theory alleging that states and corporations have an obligation to avoid acting in a way that would cause extraterritorial human rights violations.[192] Notably, even though the corporate structure of many transnational corporations involves a parent with numerous subsidiaries, the parent “can be held liable for actions of its subsidiaries.”[193] This potential liability applies even when the subsidiaries are incorporated in different states than the parent itself.[194] States themselves have an obligation to protect their citizens from “the actions of non-state actors, including corporations, which violate human rights.”[195] Additionally, states are responsible for actions taken that have extraterritorial effects that would constitute human rights violations.[196] Ultimately, “[i]f a state’s legislation or other practices allow a corporate national to act extraterritorially in a manner that violates human rights, then that state could be held responsible in certain instances.”[197] It seems logical to consider that parent corporations hold this same responsibility as states when it comes to their subsidiary corporations.[198]

On the other hand, Steven Ratner developed a separate theory for corporate responsibility under which “corporate duties are a function of four clusters of issues: the corporation’s relationship with the government, its nexus to affected populations, the particular human right at issue, and the place of individuals violating human rights within the corporate structure.”[199] Under the first issue, corporate enterprises that have closer ties to the government “ha[ve] prima facie a greater set of obligations in the area of human rights.”[200] The second factor relating to the corporation’s nexus to affected populations “suggests, all other things being equal, that as the proximity of the corporation to individuals—the extent to which the enterprise and the population form a meaningful association—lessens, the duties of the corporation toward those individuals lessens as well.”[201] This nexus factor would arguably apply to territorial control as well, where corporations that do not have a sphere of control over a particular area would not have as many duties toward citizens living in that area as they would in an area over which they exert more control.[202]

In examining the substantive rights at issue, “the company’s responsibility must, as an initial matter, turn on a balancing of the individual right at issue with the enterprise’s interests and on the nexus between its actions and the preservation of its interests.”[203] Importantly, Ratner questions calls for corporations to actively promote respect for human rights because active promotion appears unrelated to the corporation’s key purposes, although he notes that corporations do have the responsibility to avoid harming human rights either directly through their own actions or “through complicity with the government.”[204] Under the fourth factor, Ratner tackles the problem of attributing actions to the corporation, and he finds that “the element of control” must be present to make such a determination.[205] By exhibiting control over actions taken by contractors, for example, corporations that “had actual dominion over the contractor” would be presumed to “be prima facie responsible for acts of contractors and subcontractors.”[206] In addition, because corporations are not individuals and cannot intentionally violate international law, “Ratner advocates using a duty of care standard, whereby, if a corporation could show that it used due diligence to prevent violations of international law it could absolve itself of any wrong doing.”[207]


Corporations are continuously expanding, and in today’s era of rapid globalization many corporations have subsidiaries in a number of foreign countries.[208] Unfortunately, some of these foreign countries have lower human rights standards than are acceptable under international law, and in recent times, a number of corporations have been involved either directly or implicitly in international jus cogens human rights violations.[209] Members of the international community have taken a variety of responses to corporate involvement in human rights violations. The United Nations has largely taken a soft law approach, seeking to compel corporations to voluntarily impose obligations on themselves to protect human rights.[210] On the other hand, prior to 2013, United States federal courts allowed foreign nationals to bring claims against corporations for international human rights violations under the ATS, but after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., the jurisdictional reach of the ATS has been highly curtailed.[211] As a result, it is difficult to predict how corporations can be held more accountable for their involvement in international human rights violations. Clearly, the soft law approach taken by the United Nations does not provide enough protections and a hard law approach is needed; however, no such approach has yet been taken.[212] The international community needs to take action to hold corporations responsible for these violations, because with the continuing rise of globalization, these violations seem destined to continue.


* Senior Managing Editor, Michigan State Law Review; J.D. 2015, Michigan State University College of Law; B.A. 2011, Clemson University. The author would like to thank his wife, Emilyrose Layne, for her unconditional love and support during this process, and his parents, Desmond and Cheryl Layne, for teaching him the values of hard work and dedication that made this Article possible.

[1].          See Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int’l L. 45, 46 (2002) (noting that the multi-layer organization of corporations gives them immense power and causes difficulties in regulating their activities); Shanaira Udwadia, Note, Corporate Responsibility for International Human Rights Violations, 13 S. Cal. Interdisc. L.J. 359, 385-86 (2004) (pointing out problems that arise when a government is controlled by corporations that participate in human rights violations or when a government encourages corporations to violate human rights).

      [2].       See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1168 (C.D. Cal. 2005) (discussing a complaint alleging that the corporation encouraged the Colombian government to bomb a village, ostensibly to protect the corporation’s oil pipeline from insurgents).

      [3].       See Geoffrey Pariza, Article, Genocide, Inc.: Corporate Immunity to Violations of International Law After Kiobel v. Royal Dutch Petroleum, 8 Loy. U. Chi. Int’l L. Rev. 229, 229 (2011) (providing a hypothetical example that this scenario is partially based upon).

      [4].       See id.

      [5].       See, e.g., Jernej Letnar Cernic, Corporate Human Rights Obligations at the International Level, 16 Willamette J. Int’l L. & Disp. Res. 130, 140-42 (2008) (arguing that corporations have human rights obligations and that new enforcement protocols are required); Mark D. Kielsgard, Unocal and the Demise of Corporate Neutrality, 36 Cal. W. Int’l L.J. 185, 186 (2005) (claiming that voluntary norms provide an excellent means of ensuring corporations take responsibility for human rights violations because they allow for impeachment and lead to binding norms); Robert McCorquodale, Spreading Weeds Beyond Their Garden: Extraterritorial Responsibility of States for Violations of Human Rights by Corporate Nationals, 100 Am. Soc’y Int’l L. Proc. 95, 101-02 (2006) (positing that states have an obligation to protect the human rights of their nationals and a responsibility to prevent extraterritorial human rights violations committed by corporate nationals).

      [6].       See 28 U.S.C. § 1350 (2012) (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”).

      [7].       See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013) (holding that “the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”).

      [8].       See, e.g., Jennifer L. Karnes, Comment, Pirates Incorporated?: Kiobel v. Royal Dutch Petroleum Co. and the Uncertain State of Corporate Liability for Human Rights Violations Under the Alien Tort Statute, 60 Buff. L. Rev. 823, 894 (2012) (noting that the legal landscape on the issue of corporate responsibility for human rights violations is uncertain and courts differ in their interpretation of international law on corporate liability).

      [9].       Cernic, supra note 5, at 135.

    [10].       See id. at 132.

    [11].       Virginia Harper Ho, Of Enterprise Principles and Corporate Groups: Does Corporate Law Reach Human Rights?, 52 Colum. J. Transnat’l L. 113, 132 (2013) (explaining that the law of the jurisdiction of incorporation controls the corporation).

    [12].       See id.

    [13].       See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (holding that corporations have the protections provided by the First Amendment to the United States Constitution).

    [14].       Id. at 319-20.

    [15].       Id. at 320-21; see also 2 U.S.C. § 441(b) (2002).

    [16].       Citizens United, 558 U.S. at 342; see also U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

    [17].       Citizens United, 558 U.S. at 365.

    [18].       Id.

    [19].       See Mara Theophila, Note, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 Fordham L. Rev. 2859, 2861 (2011) (citing Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819)) (providing an in-depth discussion of early American approaches under the ATS and laying out the hierarchy of sources under international law).

    [20].       See id.

    [21].       See Ho, supra note 11, at 133.

    [22].       Id.

    [23].       See id. at 134.

    [24].       See id. at 135-37.

    [25].       See id. at 139.

    [26].       Ho, supra note 11, at 139.

    [27].       Id. at 141.

    [28].       Id. (quoting In re Am. Int’l Grp. Inc., 965 A.2d 763, 817-18 (Del. Ch. 2009) (citing Draper v. Paul N. Gardner Defined Plan Trust, 625 A.2d 859, 865 (Del. 1993)).

    [29].       See id. at 149.

    [30].       Id. at 150, 152.

    [31].       Ho, supra note 11, at 150 (quoting Smith v. Van Gorkom, 488 A.2d 858, 858 (Del. 1985)).

    [32].       Id. (citing Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984)).

    [33].       Id. (citing Guth v. Loft, 5 A.2d 503, 510 (Del. 1939)).

    [34].       Stone ex rel AmSouth Bancorporation v. Ritter, 911 A.2d 362, 369 (Del. 2006) (quoting In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 67 (Del. 2006)).

    [35].       See Ho, supra note 11, at 156.

    [36].       Id. at 157 (quoting In re Caremark, 698 A.2d 959, 970 (Del. Ch. 1996)).

    [37].       See, e.g., id. at 149.

    [38].       See discussion infra Section I.C.

    [39].       Barcelona Traction, Light and Power Co., LTD. (Belg. v. Spain), 1970 I.C.J. 3, ¶ 70 (Feb. 5).

    [40].       Id. ¶¶ 1, 9.

    [41].       Id. ¶ 8.

    [42].       Id. ¶ 70.

    [43].       Id. ¶¶ 71, 79.

    [44].       Barcelona Traction, Light and Power Co., LTD., ¶¶ 81, 88.

    [45].       Id. ¶ 83.

    [46].       See id. ¶ 70.

    [47].       See Cernic, supra note 5, at 149.

    [48].       Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980).

    [49].       See Cernic, supra note 5, at 149.

    [50].       See discussion infra Section II.A.

    [51].       Cernic, supra note 5, at 168.

    [52].       Id. at 169.

    [53].       Id. at 170.

    [54].       See id. at 171.

    [55].       Barcelona Traction, Light and Power Co., LTD., ¶¶ 33, 34.

    [56].       See Cernic, supra note 5, at 171.

    [57].       Id.

    [58].       Id. at 172.

    [59].       Id. at 174.

    [60].       See id. at 173 (quoting Office of the High Comm’r for Human Rights, Fact Sheet No. 14, Contemporary Forms of Slavery (1991), available at http://www.ohchr.org/Documents/Publications/FactSheet14en.pdf).

    [61].       Cf. Cernic, supra note 5, at 174.

    [62].       Id. at 176.

    [63].       Id. at 179.

    [64].       See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), at art. 2 (Dec. 10, 1948).

    [65].       Cf. Cernic, supra note 5, at 171.

    [66].       Id. at 180.

    [67].       Id. at 135.

    [68].       Special Representative of the Secretary General of the U.N. Comm’n on Human Rights, Promotion and Protection of Human Rights, ¶ 25, U.N. Doc. E/CN.4/2006/97 (Feb. 22, 2006) (by John Ruggie), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/110/27/PDF/G0611027.pdf?OpenElement.

    [69].       Cernic, supra note 5, at 136.

    [70].       See discussion infra Subsections II.B.1-3.

    [71].       See Stephens, supra note 1, at 49.

    [72].       Id.

    [73].       Id. at 50.

    [74].       See id.

    [75].       Id.

    [76].       Tracy M. Schmidt, Comment, Transnational Corporate Responsibility for International Environmental and Human Rights Violations: Will the United Nations’ “Norms” Provide the Required Means?, 36 Cal. W. Int’l L.J. 217, 223 (2005) (discussing the United Nations’ voluntary norms on transnational corporate responsibility for human rights as well as providing a modern example of corporate involvement in human rights violations).

    [77].       See id. at 223-25 (noting examples in Turkey and Peru where Newmont mines discharged significant levels of cyanide).

    [78].       Id. at 226.

    [79].       Id.

    [80].       See id. at 226-27.

    [81].       Schmidt, supra note 76, at 229-30.

    [82].       Id. at 231.

    [83].       Compare Stephens, supra note 1, at 49-50 (showing examples of German corporations actively committing human rights violations), with Udwadia, supra note 1, at 359-62 (discussing Unocal’s involvement in aiding the government of Myanmar’s violations of human rights by essentially funding the government through its pipeline project).

    [84].       Udwadia, supra note 1, at 359.

    [85].       Id. at 359-61.

    [86].       Id. at 361.

    [87].       Id.

    [88].       See id. at 361-62.

    [89].       See Udwadia, supra note 1, at 362.

    [90].       Id.

    [91].       See discussion supra Section II.B.

    [92].       See discussion infra Sections III.A-B.

    [93].       See discussion infra Section III.A.

    [94].       See discussion infra Section III.B.

    [95].       See Julian G. Ku, The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking, 51 Va. J. Int’l L. 353, 378 (2011) (arguing that American courts have mistakenly found corporate liability for human rights violations when, in reality, there was no such precedent).

    [96].       See id. at 378-79.

    [97].       See Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 477 (2001) (describing four sets of key actors in human rights violations and creating a theory for finding corporate responsibility for human rights violations in particular situations).

    [98].       See id. at 477-78 (quoting United States v. Krauch, in 8 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 1140 (1952) (U.S. Mil. Trib. VI 1948) [hereinafter CCL No. 10 Trials], available at http://www.worldcourts.com/ildc/eng/decisions/1948.07.30_United_States_v_Krauch.pdf).

    [99].       See Ku, supra note 95, at 380-81 (quoting 8 CCL No. 10 Trials, supra note 98, at 1153).

  [100].       See id. at 382.

  [101].       See, e.g., Ratner, supra note 97, at 478. But see Ku, supra note 95, at 382.

  [102].       See William Bradford, Beyond Good and Evil: The Commensurability of Corporate Profits and Human Rights, 26 Notre Dame J.L. Ethics & Pub. Pol’y 141, 166-78 (2012) (giving an excellent overview of the current regulatory structures in place and describing the various soft law approaches regarding corporate responsibility for human rights violations); Kielsgard, supra note 5, at 193-203; Schmidt, supra note 76, at 233-41.

  [103].       See Bradford, supra note 102, at 166.

  [104].       See Schmidt, supra note 76, at 239.

  [105].       See Kielsgard, supra note 5, at 203.

  [106].       See Schmidt, supra note 76, at 233-34; see also United Nations, Comm. on Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 55th Sess., Aug. 13-26, 2003, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003) [hereinafter Norms on Human Rights].

  [107].       See Schmidt, supra note 76, at 235 (quoting Norms on Human Rights, supra note 106).

  [108].       See id. (quoting Norms on Human Rights, supra note 106).

  [109].       See id. at 235-36.

  [110].       See id. at 237.

  [111].       See Bradford, supra note 102, at 166.

  [112].       Id. at 166-67 (quoting The Ten Principles, United Nations Global Compact, http://www.unglobalcompact.org/abouttheGc/TheTenprinciples/index.html (last visited Apr. 7, 2015)).

  [113].       See id. at 167.

  [114].       See id.

  [115].       See id.

  [116].       See Bradford, supra note 102, at 168.

  [117].       See id. at 177-78.

  [118].       Id. at 178 (citing Report of the Special Representative of the Secretary General, U.N. Human Rights Council, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007) (by John Ruggie)).

  [119].       Id.

  [120].       Id.

  [121].       See discussion supra Part III.

  [122].       See 28 U.S.C. § 1350 (2012).

  [123].       See Pariza, supra note 3, at 231.

  [124].       See supra notes 51-56 and accompanying text.

  [125].       See Karnes, supra note 8, at 834.

  [126].       630 F.2d 876 (2d Cir. 1980).

  [127].       See Karnes, supra note 8, at 828 (citing Filartiga, 630 F.2d at 878).

  [128].       See id. at 829 (quoting Filartiga, 630 F.2d at 884).

  [129].       See Pariza, supra note 3, at 233.

  [130].       726 F.2d 774 (D.C. Cir. 1984) (per curiam).

  [131].       See Karnes, supra note 8, at 830 (citing Tel-Oren, 726 F.2d at 775).

  [132].       Id.

  [133].       Id. (citing Tel-Oren, 726 F.2d at 776 (Edwards, J., concurring)).

  [134].       Id. at 831 (citing Tel-Oren, 726 F.2d at 803-04 (Bork, J., concurring)).

  [135].       Id. (citing Tel-Oren, 726 F.2d at 805 (Bork, J., concurring)).

  [136].       Karnes, supra note 8, at 832 (citing Tel-Oren, 726 F.2d at 822 (Bork, J., concurring)).

  [137].       See id. at 833.

  [138].       See id. at 838 (citing Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995)).

  [139].       Id. (citing Kadic, 70 F.3d at 236-37).

  [140].       Id. (quoting Kadic, 70 F.3d at 239).

  [141].       See Karnes, supra note 8, at 839 (citing Kadic, 70 F.3d at 241-44).

  [142].       Compare Kadic, 70 F.3d at 240, with Tel-Oren, 726 F.2d at 776 (Edwards, J., concurring).

  [143].       542 U.S. 692, 719 (2004).

  [144].       See id. at 697-98.

  [145].       See id. at 698.

  [146].       See Karnes, supra note 8, at 836 (citing Sosa, 542 U.S. at 738).

  [147].       Id. at 834 (quoting Sosa, 542 U.S. at 732).

  [148].       Id. at 835 (citing Sosa, 542 U.S. at 734).

  [149].       Sosa, 542 U.S. at 732 n.20.

  [150].       See Karnes, supra note 8, at 839 (citing Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002)); see also discussion supra Subsection II.B.3.

  [151].       See Karnes, supra note 8, at 839.

  [152].       See id. at 839-40 (citing Unocal, 395 F.3d at 944-46).

  [153].       See id. at 840 (quoting Unocal, 395 F.3d at 947).

  [154].       See id. at 843.

  [155].       See id.

  [156].       See Karnes, supra note 8, at 844-49 (citing Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148-49 (2d Cir. 2010)).

  [157].       See id. at 844-45 (citing Kiobel, 621 F.3d at 123).

  [158].       See id. at 845 (citing Kiobel, 621 F.3d at 123).

  [159].       See id. at 846 (citing Kiobel, 621 F.3d at 128).

  [160].       See id. at 847 (quoting Kiobel, 621 F.3d at 135).

  [161].       See Karnes, supra note 8, at 849 (quoting Kiobel, 621 F.3d at 148-49).

  [162].       See id. at 858.

  [163].       See id.; Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).

  [164].       See Karnes, supra note 8, at 860 (quoting Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 20 (D.C. Cir. 2011)).

  [165].       See id. at 861-62 (citing Exxon, 654 F.3d at 26, 42, 50).

  [166].       See id. at 864 (citing Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1013 (7th Cir. 2011)).

  [167].       See id. at 866 (quoting Flomo, 643 F.3d at 1021).

  [168].       See id. at 866-67 (citing Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), vacated, 133 S. Ct. 1995 (2013)).

  [169].       See supra notes 162-65 and accompanying text.

  [170].       See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663 (2013); see also supra notes 156-58 and accompanying text.

  [171].       See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1662 (2013).

  [172].       See id. at 1664 (quoting Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2878 (2010)).

  [173].       See id. (quoting Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454 (2007)).

  [174].       See id.

  [175].       See id. at 1665.

  [176].       See Kiobel, 133 S. Ct. at 1665 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)).

  [177].       See id.

  [178].       See id. at 1666.

  [179].       See id. at 1666-67 (discussing the 1784 incident where a French foreign minister was assaulted in Philadelphia and the 1787 incident where an officer arrested the servant of the Dutch Ambassador in New York).

  [180].       See id. at 1667-68.

  [181].       See Kiobel, 133 S. Ct. at 1668-69.

  [182].       See id. at 1669.

  [183].       See id.

  [184].       See id.

  [185].       See id.

  [186].       See Ho, supra note 11, at 122.

  [187].       See id. (citing Kiobel, 133 S. Ct. at 1669).

  [188].       See Kiobel, 133 S. Ct. at 1669.

  [189].       See, e.g., McCorquodale, supra note 5, at 97-101; see also Ratner, supra note 97, at 496-523.

  [190].       See infra notes 192-95 and accompanying text.

  [191].       See infra notes 199-207 and accompanying text.

  [192].       See McCorquodale, supra note 5, at 101.

  [193].       See id. at 97.

  [194].       See id.

  [195].       Id.

  [196].       See id. at 99.

  [197].       McCorquodale, supra note 5, at 101.

  [198].       Cf. id. at 97.

  [199].       Ratner, supra note 97, at 496-97.

  [200].       Id. at 497.

  [201].       Id. at 508.

  [202].       See id. at 509.

  [203].       Id. at 513.

  [204].       See Ratner, supra note 97, at 517-18.

  [205].       See id. at 519.

  [206].       See id. at 520.

  [207].       See Pariza, supra note 3, at 252 (citing Ratner, supra note 97, at 522-23).

  [208].       See discussion supra Part I.

  [209].       See discussion supra Section II.B.

  [210].       See discussion supra Section III.B.

  [211].       See discussion supra Part IV.

  [212].       See Schmidt, supra note 76, at 239.

Recently, Both the European Space Agency (ESA) and the Chinese government have made separate announcements concerning space exploration and opening it to the private sector. Taking cues from the history of the United States, both the ESA and the Chinese government hope that by including private enterprises in space exploration will help drive innovation, increase expertise and compete with U.S. companies. While the ESA’s announcement was broad, asking for any and all ideas that will help the ESA further the goal of new technology, mining and space exploration. The Chinese government, however, will break its own monopoly on its space program by now allowing private companies to invest in space programs.These announcements, however, begs the question of who will be the new leading authority in space technology and exploration. With NASA currently paying Russia to shuttle its astronauts to space. As well as  private US companies like SpaceX and Virgin Galactic increasing their presence in the public and private sector markets. It looks as though a modern day “Space Race” may be on the horizon.  Typically, with increased competition we see an increase in innovation. As seen during the 1960’s “Space Race” between the United States and the Soviet Union. However, the current situation differs, whereas then, there was popular national support, backed with governmental funds, a decade was dedicated to a single cause of putting a man on the moon. Today, while there may be some national support for space exploration in general, trust of the government and for-profit corporations may be at an all time low. Will these announcements prompt a greater international dialogue on the desire and need for space exploration. Will opening up the ability of many countries to operate outside of Earths atmosphere fuel global support? These announcements may provide many opportunities for nations with space agencies to unite in a common goal or may create decisive rifts for in accomplishing national goals.

The article can be found here.

By Bryce Myrvang

By: Andrew Fleming

A recent article in The Guardian outlined the struggles of a group of fisherman who make their living fishing the Caspian Sea. Due to the effects of pollution and over-fishing in the Caspian the fisherman are experiencing lessening yields making it extremely difficult for these fisherman and many like them to make a decent living. This article does a good job of shining a personal spotlight on a global problem. According to a National Geographic article by Fen Montaigne, some scientists are reporting as much as a 80% decline in some ocean fish populations due to the effects of pollution and over-fishing. With the increasing popularity of seafood, the problem will only increase in magnitude unless something is done.

While international quotas do exist in an attempt to regulate commercial fishing, they are not always followed. A problem Montaigne discusses in the context of Blue Fin Tuna fishing. When quotas are exceeded, more fish enter the market and the prices are driven down forcing local fisherman to either exceed quotas in order to produce enough fish to feed their families or comply and risk being forced out of business. One way to combat this could be to impose harsher penalties for exceeding the quotas, particularly if the violator is a large scale fishing organization. Another problem is that the quotas are only applicable to the signatories of the treaties imposing them, therefore fisherman of some countries only have to comply with any self-imposed regulations that may or may not exist. If these problems are not addressed, more and more local fisherman will be forced to close up shop having a detrimental impact on many cultures that traditionally subsist off the marine resources. That’s not to mention any larger environmental impact over-fishing and marine pollution will have on the planet. Are there any other ways you can think of to protect marine resources as well as local fishermen?


By Upendra D. Acharya

Israeli Prime Minister Benjamin Netanyahu on Tuesday warned Congress that a “bad deal” being negotiated with Iran would destroy Israel. He indicated that no deal is better than the deal now being negotiated.

Many have observed that Netanyahu demonstrated his patriotic commitment to the Israeli people by making the U.S. Congress his forum for re-election, and that Republicans used the prime minister to gain votes and donations from the American Jewish community and its supporters. This is nothing new, just politics as usual.

Of course, there is a potential constitutional issue concerning whether the Speaker of the House had the authority to invite a foreign leader to speak on a foreign policy matter.

Also, Israel’s interests are always a special foreign policy concern of the United States. The U.S. has not only provided a huge amount of economic and military aid to Israel, but also has stood behind Israel many times before the United Nations and in many other international forums. However, the immediate concern is the “deal.”

The merit of the issue is whether there should be a deal with Iran. Netanyahu suggests that there should be no deal because it is inevitably going to be a bad deal, that any deal with Iran would make it more capable of enriching and possessing nuclear weapons, and that Iran has pledged to destroy Israel. The prime minister has long been lobbying the U.S. against Iran’s nuclear program. And Iran certainly has been working toward making nuclear weapons. However, there has not been a single bit of proof that Iran possesses nuclear weapons.

The Obama administration is working with members of the International Atomic Energy Agency to complete the deal. It does not seem that Netanyahu’s speech is going to slow down or halt negotiations.

Russia and Iran have made bilateral deals to develop nuclear power plants. In this context, “do nothing” could be the worst option since doing nothing has not stopped Iran from expanding its nuclear capacity, or from making deals with Russia for its power plants. From 1992 to date, do nothing has done nothing.

So, it is in the interest of both the U.S. and Israel that a deal be made; not only to stop Iran from producing nuclear weapons, but also push Russia to behave in a transparent manner when dealing with Iran on nuclear power plants. Under international law, Iran is a member of the Nuclear Non-Proliferation Treaty, and can legally seek to have a peaceful nuclear energy program under the treaty.

What are the apparent current possibilities?

Do nothing, which would allow Iran to continue building its nuclear capability, and looking for more partners like Russia.

Russia will keep making deals with Iran on nuclear enrichment programs, and no Israeli prime minister can stop Russia from doing so.

Use force, with the U.S. and Israel destroying Iran’s known nuclear facilities. But if the Iranian public decides that Iran has the right to the peaceful use of nuclear energy, and sees the enrichment activities as matters of national need and pride, the use of force would be counterproductive by inspiring more extremist groups. And there is no guarantee that Iran would not restart its enrichment program.

Deal with Iran, which is the last and the best option. The U.S. and Iran would continue working toward completing a deal. It would be better if Congress and Israel worked with President Obama to ensure that the terms and conditions in the deal stipulate that Iran cannot enrich nuclear material to a level that would make nuclear weapons possible. If Iran carries on, there will be internationally agreed upon consequences, with Iran strictly following all IAEA inspection and monitoring requirements.

It is important for Congress, the president and even the American public to understand that the U.S. is required to address the entire global front in its foreign policy matters, which are interrelated and complex. Any small or large mistake could have domino effects in its foreign policy matters and global leadership. U.S. foreign policy must consider that in the 21st century, nations will be much more interdependent than at any other time in the past.

Upendra Dev Acharya is an associate professor at Gonzaga Law School and is the faculty advisor for the Gonzaga Journal of International Law.

This article originally appeared in the Spokesman-Review on March 7, 2015. You can find the original article here:


By Bryce Myrvang

Recently, The United States government, particularly the Federal Aviation Administration (FAA), has taken preliminary steps to encourage and regulate commercial development on the moon. It has been proposed that the FAA will use their “existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.” However, this raises regulatory issues not only within the the United States government but for foreign space-faring nations as well. All of which have an interest in lunar property rights and mineral rights but have not been adequately discussed since the 1970’s. A 1967 United Nations treaty that, in part, governs activity on the moon, may provide a legal framework from which to build a regulatory infrastructure for the U.S. and other nations. It will, however, have to include both national interests as well foreign interests. Needless to say, these regulations are in their infancy. But with growing public awareness of the viability of commercial space flight and exploration, there are barriers that the United States, as well as foreign nations with an interest in space regulations will need to overcome.

Source Article can be found here.

By Adrian Mejia

In 2016, 80 individuals will own a level of wealth equivalent to that of the world’s poorest 3.5 million individuals. This is not the beginning of a sci-fi blockbuster starring Matt Damon. That, is what we learned from a recent report from the anti-poverty NGO, Oxfam.  In addition to widely publicizing its findings, Oxfam has presented a plan at the World Economic Forum on how governments can tackle the widening gap. While we continue to hear more on inequality in terms of how it violates an innate sense of what we consider to be fair, it is important to step back and consider why it actually is corrosive. After all, if everyone where well-off what would be the problem with some of us having a lot more than others? A problem of inequality is not necessarily a problem of poverty.

Social Epidemiologist Richard Wilkinson, tell us that we now have the data to point to exactly what is wrong with unchecked inequality. This social scientist concludes from comparative studies, that societies with “large income differences,” suffer from more pervasive social problems. These “include physical and mental illness, violence [including higher rates of homicide], low math and literacy scores among young people, lower levels of trust and weaker community life, poorer child well-being, more drug abuse, lower social mobility and higher rates of imprisonment and teenage births.” Worthy of note is the fact that in these societies, “The police, prisons and public services needed to defend ourselves against these problems are expensive and often not very effective.”

These are the real costs to leaving gross inequality unaddressed. The bigger the economic distance between people, the more people feel disrespected, the more people feel disrespected, the higher the propensity for societal breakdowns.

Putting this in the context of the global community, it follows that a wide gap between the world’s rich and its poor, would be a cause of global strife. What are the costs associated with global inequality?


Larry Elliot and Ed Pilkington, “New Oxfam report says half of global wealth held by the 1%” The Guardian January 19, 2015, http://www.theguardian.com/business/2015/jan/19/global-wealth-oxfam-inequality-davos-economic-summit-switzerland

Quotations in this article come from Wilkinson article.

Richard Wilkinson, “Why inequality is bad for you — and everyone else,” CNN November 6, 2011, http://www.cnn.com/2011/11/06/opinion/wilkinson-inequality-harm/index.html

By: Andrew Fleming

According to a  NY Times article, A British court ruled against GCHQ, a British intelligence service, that in conjunction with the NSA collected and shared private information retrieved from personal computers without the owners’ knowledge. The Internet has allowed for new lines of  communication to be formed and knowledge to be shared. This has brought people from many different backgrounds closer together allowing for the formation of a larger global community. However, this increased connectivity also has risks. The increased use of digital storage and the Internet has led to the private information of people to be increasingly vulnerable to theft. It will be interesting to see how laws will develop on the international level to better protect citizens globally.


Globalizing Justice: Deficiencies in the Quest and Discontents

of World Development


Dr. Ahmed Jehani and Dr. Kishor Uprety

Pragya Foundation, 2009. 198 pp. ISBN-13: 9789937818414

Reviewed by Lars Lundberg, Gonzaga University School of Law, llundberg@lawschool.gonzaga.edu

In “Globalizing Justice,” Dr. Uprety and Dr. Jehani underscore the correlation between legal structure and development.  The authors examine this relationship from the perspective of jurists viewing international relations through the lens of developing countries.  The main objective of this book is to refute hasty conclusions offered to explain the failed attempts to transfer a legal system from one society to another – namely from a developed nation to a developing nation.  Rather than ignorantly blaming the societies receiving the transplanted legal structure, this book examines the systemic failures of the contemporary international legal structure.  The current state of international justice and the deficiencies associated within are summarized in an effort to emphasize the need for an alternative, rights based approach to development.  Such an alternative approach necessitates an international decision making environment that is truly international, rather than a system financed by and organized to serve the interests of powerful states.

Readers will benefit from the authors’ keen insight on the topic, undoubtedly garnered from their international professional background – both have experience in senior legal positions at the World Bank.  To start, the authors provide a thorough overview of the current international justice system. The overview varies in depth, on one hand examining the broad reaching landscape of the international justice system, and on the other, exploring the deeply rooted jurisprudential tension regarding the definition of international law.  This examination includes whether international law should be approached through the lens of a realist or formalist.  The book’s focus then turns to the problems and possible solutions related to globalizing justice.

The authors point to four main problems that hinder the progress of global justice.  First, the anachronistic nature of the United Nations is examined, with special attention given to the flawed approach to participation and power sharing.  Also addressed are the conflicts of laws between high and low developed nations and the resulting preservation of the status quo, especially the high-developed nations’ technological superiority.  The second problem relates to the contradictions in trade and human rights interplay.  The authors assert that modern globalization is solely focused on economic globalization, and in effect, allows basic human rights and individual dignity to be a mere afterthought.  Third, the oligopolistic form of the international law making system is analyzed to emphasize the fact that the voices of high-developed countries drown out the low-developed countries; thus, the international law making system promotes the wealthy countries’ interests rather than promoting the development of justice.  The fourth problem, interdependent growth, relates to the fact that each nation is driven to protect its own political, economic, and local interests rather than promote global interests.

The authors’ analysis of the problems related to global justice introduces a discussion addressing the need for a just legal system.  Interestingly, the authors concede that a one-law-fits-all approach to improving global justice is futile; rather, a just global legal system should integrate the varied spiritual and philosophical foundations of each society.  From this, it can be gathered that despite each society’s differences, an overlap of foundational justice is possible among the varied spiritual and philosophic approaches.  To illustrate the point, the authors examine the common thread of justice development running through religions and philosophies ranging from Hindiusm, Judaism, Islam, to Ghandhi’s and Rawls’ theories of justice.

Dr. Jehani and Dr. Uprety’s analysis leads to many conclusions about the current international justice system’s ability to address globalizing justice, especially in developing nations.  The underlying result is that the current system functions as a mechanism to transplant high-developed nations’ law wholesale to developing nations.  As is no surprise to the authors, the transplant is not effective.  Dr. Jehani and Dr. Uprety are of the opinion that misplaced blame is given to the receiving countries.  Rather than continue to blame various aspects of the receiving societies, the authors examine the complex systemic flaws in the international justice system.  While there is no cut and dry solution to the problem, Dr. Jehani and Dr. Uprety highlight the nonnegotiable ideals that must permeate any proposed improvement or solution.

Transitioning from the discussion of the need for a just legal system, and distilling the discussion of various approaches to justice, the authors note that regardless of the philosophical and spiritual source, a successful approach to the development of justice is one where the decision makers are the ultimate beneficiaries.  This approach is known as the rights based approach.

The authors assert that a rights based approach to developing global justice would be an improvement on the current framework.  The current framework for development is focused on the industrialization of low-developed countries, and in effect does away with the historical identity of the society.  On the surface, industrialization may appear to be progress because the low-developed countries are aligning with the high-developed countries’ consumer based society.  However this runs contrary to a rights based approach because the low-developed countries are not the ultimate beneficiaries of the development.  The authors suggest that the current economic oriented measures of global development such as gross national product and general wealth accumulation must be replaced with measures relating to human existence and human dignity.  Discussed in parts five and six, the authors posit that reforming the current international justice system and implementing the proposed rights based approach to development requires an international and domestic law-making arena where all voices are heard.

After a comprehensive analysis diving into the intricacies of the need, the alternative, and the method and implementation of the proposed alternative, the authors step back and provide a holistic conclusion.  The authors repeat that the current international justice system is certainly not international, and requires a massive overhaul rather than minor adjustments.

An extraordinary feature of this book is the broad coverage of the intricacies related to the international justice system.  The authors provide a thorough historical account of the developments that created the modern system.  The historical foundation is established to contextualize the authors’ comments and criticism.  The authors’ product represents a comprehensive analysis of the problems involved and offers persuasive improvements to the currently flawed international justice system.  Both the specialist as well as the novice will benefit from this book because the reader is introduced to the landscape of international justice while provided with an intricate examination of the topic.  For the specialist, Dr. Jehani and Dr. Uprety’s distinguished backgrounds provide unique insights on international law, making “Globalizing Justice: Deficiencies in the Quest and Discontents of World Development” an essential read.