martes, 6 de mayo de 2014


Juan Cristobal Nagel

The most recent report by Human Rights Watch on the protests in Venezuela comprehensibly dismantles the government’s line of defense on allegations of human rights abuses. In page after page of meticulous research the NGO documents a pattern of routinized human rights abuse, a finding with deep implications in International Human Rights Law.
HRW has produced an investigative landmark and we just don’t feel we can do justice to it with with a single post. That’s why we will be writing about the report all this week: highlighting some of its stories in detail and presenting some of its lines of argument to dissect the implications for Venezuela, and for chavismo in particular.
Personally, the first thing that caught my eye is HRW’s finding of “systematic” human rights violations. This is no lexical meandering – the word has deep implications in human rights law.
Pay close attention to the language in which their main conclusions are presented (emphasis is mine):
  • “What we found during our in-country investigation and subsequent research is a pattern of serious abuse.” (Page 1)
  • “Judges often confirmed charges against detainees based on dubious evidence presented by prosecutors … Prosecutors and judges routinely turned a blind eye to evidence suggesting that detainees had been subject to abuses while in detention…” (P. 2)
  • “(O)ur research leads us to conclude that the abuses were not isolated cases or excesses by rogue security force members, but rather part of a broader pattern, which senior officers and officials must or should have known about, and seem at a minimum to have tolerated. The fact that the abuses by members of security forces were carried out repeatedly, by multiple security forces, in multiple locations across three states and the capital (including in controlled environments such as military installations and other state institutions), and over the six-week period covered in this report, supports the conclusion that the abuses were part of a systematic practice by the Venezuelan security forces.” (P. 3 and 4)
  • “Security forces routinely used unlawful force against unarmed protesters and other people in the vicinity of demonstrations.” (P. 8)
  • “In the scores of cases of detentions documented by Human Rights Watch, the majority of the detainees were participating in protests at the time of their arrests. However, the government routinely failed to present credible evidence that these protesters were committing crimes at the time they were arrested, which is a requirement under Venezuelan law when detaining someone without an arrest warrant.” (P. 10)
  • “In every case in which individuals were detained on private property, security forces entered buildings without search orders, often forcing their way in by breaking down doors.” (P. 10)
  • “Security forces repeatedly allowed armed pro-government gangs to attack protesters … ” (P. 12)
  • “The detainees were routinely held incommunicado for extended periods of time, usually up to 48 hours, and sometimes longer. While, in a few exceptional cases documented by Human Rights Watch, detainees were released before being brought before a judge, in the overwhelming majority of cases prosecutors charged them with several crimes, regardless of whether there was any evidence the accused had committed a crime.” (P. 19)
  • “In virtually all of the cases we investigated, detainees were not permitted to contact their families during the initial 48 hours of their detention despite repeated requests to do so.” (P. 19)
  • Virtually all detainees were not allowed to meet with their defense lawyers until minutes before their initial hearing before a judge.” (P. 20)
  • “Hearings were routinely and inexplicably held in the middle of the night, a practice that lawyers interviewed by Human Rights Watch had not experienced in other types of cases.” (P. 21)
  • “While most of those charged were granted conditional liberty in the cases we investigated, judges repeatedlyplaced conditions (medidas cautelares) on detainees’ freedom that prevented them from exercising their fundamental rights to freedom of assembly and expression, such as prohibiting them from participating in demonstrations or talking to the media.” (P. 21)
  • “Never before, (defense attorneys) said, had they encountered such a comprehensive battery of obstacles affecting so many cases.” (P. 22)
  • “(I)n many of these cases, the investigative police, the Attorney General’s Office, and the judiciary are themselves implicated in serious due process violations, as well as in failing to intervene to address abuses by security forces against detainees.” (P. 26)
The report is clear – these were not isolated incidents. The way in which people were mistreated implied a level of coordination beyond simple “rogue” security forces acting wild. It strongly suggests coordination between security forces, paramilitaries, prosecutors, and judges. From this, calling it a state-wide terror campaign … is just a hop and a skip away.
This is relevant because trials for human rights violations typically require showing not only that the events happened, but that they were part of a systematic policy, organized by somebody high up. For example, if someone comes to your house and tortures you, they are guilty of torture and robbery, but they don’t go to The Hague. In much the same way, had the National Guardsmen acted on their own, they wouldn’t be liable for human rights violations – in an international court at least.
The pattern, however, suggests it’s the state that is at fault, and that means its authorities could credibly be charged with human rights violations. Take, for example, the case of Chile under Pinochet. When analyzing the pattern of torture and political imprisonment of those years, the Valech Commission said,
“… political prison and torture were a state policy of the Military Regime, one that was defined and promoted by the political authorities of the time, whose design and execution required the movement of personnel and money from several public organizations, and who dictated decrees and laws providing legal cover for repressive conduct. The authorities were supported, explicitly and sometimes implicitly, by the only part of the State that was not part of the government: the judiciary.” (emphasis mine)
Similarly, in the indictment of Slobodan Milosevic, prosecutors claimed the former Yugoslav dictator was part of a conspiracy, a “joint criminal enterprise,” that violated human rights. In effect,
“From 1 August 1991 until June 1992, Slobodan Milosevic, acting alone or in concert with other known and unknown members of a joint criminal enterprise, planned, instigated, ordered, committed, or otherwise aided and abetted the planning, preparation, or execution of the extermination, murder, and willful killings of Croat and other non-Serb civilians in the territories of …” (Para. 39, emphasis mine)
Notice here that the operational term is “joint criminal enterprise” … in other words, a conspiracy in which mass murder was planned and ordered. If it were proven that soldiers acted alone, or at least without the direct knowledge of authorities, the case against Milosevic would probably have fallen apart.
HRW could have simply documented what happened and left it at that, but in the face of undeniable evidence, they went further, presenting evidence of coordination with explosive human rights implications.

Don’t get me wrong - the HRW report on its own does not prove that Maduro and company should be tried in The Hague. But inasmuch as these processes require showing that the actions were not simply caused by rogue agents, common criminals, or gangs, but rather were a systematic state policy, this HRW report has a significance well beyond the enumeration of specific instances of abuse.

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