I. Introduction
Economic sanctions, unilateral and multilateral, have a long pedigree in international relations. From South AfricaFootnote 1 and Israel,Footnote 2 to Iraq,Footnote 3 Iran,Footnote 4 and North Korea,Footnote 5 such measures have, with varying results, been used in diverse contexts to influence the behavior of states.Footnote 6 Some would celebrate the use of economic sanctions as a means of punishing “rogue states” for human rights violations or threats to the peace,Footnote 7 while others would condemn it as “imperialism” by powerful states against the weak.Footnote 8 Leaving aside Chapter VII enforcement action by the UN Security Council,Footnote 9 the imposition of unilateral sanctions raises far-reaching questions in respect of the rights and duties of states under international law.Footnote 10 A novel issue that has emerged recently is whether, in certain circumstances, such measures could even qualify as crimes against humanity.
This issue has arisen in the context of sanctions adopted by the United States (and other states) against Venezuela. Pursuant to Article 14 of the Rome Statute of the International Criminal Court (Rome Statute),Footnote 11 on September 26, 2018, six states referred the situation in Venezuela to the prosecutor of the International Criminal Court (Referral I), accusing the government of President Nicolás Maduro of having committed human rights abuses amounting to crimes against humanity.Footnote 12 Following this referral, on February 13, 2020, Venezuela submitted a competing, second referral (Referral II),Footnote 13 alleging that economic sanctions adopted by the United States (and other states) against Venezuela constitute crimes against humanity.Footnote 14
The U.S. sanctions are far-reaching. Their stated objectives included the removal of President Nicolás Maduro from office, and counteracting what the United States considered to be:
human rights abuses, including arbitrary or unlawful arrest and detention of Venezuelan citizens, interference with freedom of expression, including for members of the media, and ongoing attempts to undermine Interim President Juan Guaidó and the Venezuelan National Assembly's exercise of legitimate authority in Venezuela.Footnote 15
The first round of sanctions were imposed through Executive Order 13,808 on August 24, 2017;Footnote 16 those measures prohibited U.S. individuals and entities from dealing with the Venezuelan government and its state-owned oil company PDVSA.Footnote 17 Subsequently, on February 25Footnote 18 and March 1, 2018,Footnote 19 targeted sanctions were imposed on officials aligned with the Maduro government.Footnote 20 In April 2019, the United States reinforced its economic sanctions,Footnote 21 through the targeting of Venezuelan–Cuban oil shipments,Footnote 22 as well as the financial transactions of the Central Bank of Venezuela.Footnote 23
The sanctions have been described as follows:
Although the Trump administration's campaign of economic sanctions has effectively drained most avenues for funding by Maduro's government, the Trump administration has consistently exempted humanitarian assistance and insisted that the sanctions “do not target the innocent people of Venezuela.” Despite this assertion, Venezuela's economic situation has worsened severely under the prolonged sanctions, and the humanitarian crisis remains devastating.Footnote 24
The UN special rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, Alena Douhan, reported in 2021 that the Venezuelan government's revenue has contracted by 99 percent,Footnote 25 and that “[i]mpediments to food imports . . . have resulted in the steadily (sic) growth of malnourishment.”Footnote 26 The UN World Food Programme has reported that while 70 percent of Venezuelans “report that food is always available . . . access to food is difficult as the prices are too high when compared to household income,”Footnote 27 amidst accusations that “a vast corruption network . . . has enabled [the] Maduro . . . regime to significantly profit from food imports and distribution in Venezuela.”Footnote 28
There is no doubt that the aim of the Trump administration was—to adopt Sir Anthony Eden's metaphor for Colonel Nasser's capacity to impose an oil blockade against Great Britain during the 1955–56 Suez Crisis—to put a thumb on Venezuela's windpipe.Footnote 29 This policy has had a devastating impact. The question for present purposes is whether it is in violation of international law and, more specifically, whether it constitutes crimes against humanity.
Although the United States has not set out the legal basis for the sanctions under international law, the sanctions appear to have been adopted, in part, in response to human rights abuses. It is not clear, however, whether they constitute countermeasures, retorsions, or some other category. For its part, Venezuela's Referral II alleges that the U.S. sanctions are, first, a breach of general international law and, second, amount to crimes against humanity under Article 7 of the Rome Statute. If the first assertion is one that is sometimes heard in international law,Footnote 30 the second is entirely novel and has far-reaching implications for the rights and obligations of states, including in respect of peremptory norms.Footnote 31
This Article considers whether Venezuela's legal arguments in Referral II are consistent with general international law and the Rome Statute. It is not intended to be a general exposition on international law and economic sanctions; furthermore, it does not address in detail Venezuela's factual assertions in respect of the United States’ sanctions. Instead, it focuses on the specific question of whether and in what circumstances sanctions violate international law, and what implications this has on whether such measures qualify as crimes against humanity. Following the present introduction, Part II considers “Sanctions Under International Law,” focusing on Venezuela's arguments that, as a matter of general international law, it is unlawful to impose “unilateral coercive measures.” Part III considers Venezuela's contentions that imposition of sanctions, in the circumstances described above, amount to the commission of crimes against humanity.Footnote 32 This analysis is followed by brief conclusions, in Part IV, on the implications of the application of established doctrines of international law to such novel circumstances.
II. Sanctions in International Law
Section 4 of Referral II is entitled “Illegality of Unilateral Coercive Measures.”Footnote 33 It sets forth Venezuela's position as to the lawfulness of “unilateral coercive measures”—commonly referred to as “sanctions” in international law—as a predicate to its contentions regarding crimes against humanity. The present Part analyzes the most relevant authorities relied upon by Venezuela in support of its contentions and considers whether its claims are consistent with international law. Referral II makes a number of creative arguments relating to sanctions and crimes against humanity that are as yet untried. As set out below, its extensive reliance on sources that are at best “soft law,”Footnote 34 or simply devoid of any authority, does not withstand scrutiny in light of well-established doctrines of international law.
A. UN Friendly Relations Declaration of 1970
Venezuela maintains that the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States (Friendly Relations Declaration),Footnote 35 adopted by the UN General Assembly on October 24, 1970, lays down a prohibition of unilateral economic sanctions.Footnote 36 The Friendly Relations Declaration, which was famously adopted by consensus, sets out seven “basic principles of international law” that are considered to be authoritative interpretations of the UN CharterFootnote 37 and a codification of customary international law.Footnote 38
As Referral II recognizes, the issue is addressed in the ninth preambular paragraph of the Friendly Relations Declaration, which recalls:
the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.Footnote 39
The reason this appears only in the preamble—and not among the “basic principles of international law”—is that there was no agreement between states on the question of economic coercion.Footnote 40 The preamble sets out “views which did not find the necessary consensus to be included in the main text” and even its relevance for the interpretation of the principles has been regarded as “doubtful.”Footnote 41 In any event, the preambular paragraph does no more than “acknowledge the existence of a duty not to use economic coercion for the purpose of destroying or dismembering a State,”Footnote 42 rather than setting out a duty of wider application.
Although Referral II does not mention it, the Friendly Relations Declaration provides in its Third Principle that: “No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.” Ian Brownlie observed of this provision that it “is by no means easy to apply.”Footnote 43 The crux of the matter is the term “coerce,” on which a great deal turns.
As to the exact relationship between intervention and coercion, the editors of Oppenheim's International Law observed that, “to constitute intervention the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention.”Footnote 44 Measures such as suspending exports or a boycott of products will—although they are intended to persuade the target state to pursue, or cease, a particular course of conduct—be pressure that “falls short of being dictatorial and does not amount to intervention.”Footnote 45 It is true, as Sarah Cleveland has observed, that customary international law has traditionally “allowed States to use economic coercion for a wide range of purposes.”Footnote 46 “Nothing in customary international law,” she correctly concludes, as a general proposition, “appears to bar the use of economic coercion.”Footnote 47
As mentioned above, the stated objectives of the sanctions against Venezuela include counteracting what the United States considered to be human rights abuses, including arbitrary or unlawful arrest.Footnote 48 The proposition that there is nothing in customary international law that bars economic coercion applies a fortiori to matters which are not considered to be solely within the state's domestic jurisdiction (domaine réservé). In order to be inconsistent with the principle of non-intervention, conduct must not only be coercive, but also concern “matters in which each State is permitted, by the principle of State sovereignty, to decide freely.”Footnote 49 Arbitrary arrest and otherwise inhuman and degrading treatment are examples of matters that fall outside the state's domaine réservé.Footnote 50 The principle of state sovereignty does not (any longer) let states decide freely on matters relating to fundamental human rights.
Beyond the principle of non-intervention, however, general international law contains few, if any, obligations in this regard. Unless a state has bound itself through particular treaty commitments or other specific legal obligations to continue trade relations with another state, it is free to impose a trade embargo. As Vaughan Lowe and Antonios Tzanakopoulos have put it, “in the absence of specific legal obligations to engage in trade with another State, a general trade embargo may be a lawful measure”; the act would be “unfriendly but lawful.”Footnote 51 Thus, in Nicaragua, the International Court of Justice (ICJ) found that, although they were not inconsistent with the principle of non-intervention, some of “the acts of economic pressure” at issue in the case were in breach of the object and purpose of the treaty of friendship and commerce between Nicaragua and the United States:
A State is not bound to continue particular trade relations longer than it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation; but where there exists such a commitment, of the kind implied in a treaty of friendship and commerce, such an abrupt act of termination of commercial intercourse as the general trade embargo of 1 May 1985 will normally constitute a violation of the obligation not to defeat the object and purpose of the treaty.Footnote 52
On the other hand, other leading commentators have espoused a broader view. Venkateswara Mani has observed that the definition of “intervention” set out above is a strict one, implying that it is too strict.Footnote 53 Dire Tladi has similarly observed that the threshold of intervention has been met when a state compels another “to change its policy or cause of action, not through influence or persuasion but through threats or imposition of negative consequences.”Footnote 54 Nigel White has argued that states have no unilateral form of autonomous sanctioning power: only collective sanctions can be lawful in international law.Footnote 55 These views coincide with those put forward by a number of states, both in the context of UN resolutions and state practice, which is addressed below.
B. The Principle of Non-intervention
Venezuela's Referral II does not address the rights and obligations of states under general international law, including, in particular, the principle of non-intervention, which is especially relevant to coercive measures among states. It is evident that, in principle, every state can freely decide the manner in which it enters into economic relations with others.Footnote 56 In that regard, as Sir Humphrey Waldock pointed out, “the operation of political and economic pressures is part of the normal working of the relations between States.”Footnote 57 As mentioned above, the ICJ considered in the Nicaragua case whether the United States was “responsible for an ‘indirect’ form of intervention in its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an economic nature.”Footnote 58 This involved the termination of economic aid, a 90 percent reduction in the sugar quota for United States imports from Nicaragua, and a trade embargo.Footnote 59 The U.S. sanctions policy against Nicaragua has rightly been described as “a total trade embargo.”Footnote 60 Nicaragua argued that the measures constituted “a systematic violation of the principle of non-intervention.”Footnote 61 The ICJ concluded, however, that, even in these extreme circumstances, it was “unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention.”Footnote 62
As leading commentators have pointed out, the unilateral measures imposed by the United States that were “at issue in Nicaragua and found not to breach the principle of non-intervention are the most common, and potentially most severe, economic actions that can be employed against a state.”Footnote 63
C. Vienna Declaration of 1993
Venezuela relies on paragraph 31 of the 1993 Vienna Declaration and Programme of ActionFootnote 64 (Vienna Declaration), which called:
upon States to refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations that creates obstacles to trade relations among States and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights and international human rights instruments, in particular the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services.Footnote 65
Quite apart from the fact that such declarations are not binding,Footnote 66 the Vienna Declaration merely confirms that “unilateral measures” should be consistent with international law. It does not state that economic sanctions as such are unlawful. In fact, in 1993, the same year as the Vienna Declaration's adoption, a Note prepared by then Secretary-General Boutros Boutros-Ghali entitled Economic Measures as Means of Political and Economic Coercion Against Developing Countries, concluded based on a study of state practice that:
[t]here is no clear consensus in international law as to when coercive economic measures are improper, despite relevant treaties, declarations and resolutions adopted in international organizations which try to develop norms limiting the use of such measures.Footnote 67
D. Other Non-binding Instruments
Not relied on by Venezuela, but more to the point than the Vienna Declaration, are a number of more recent declarations and statements on the question of unilateral sanctions. In a Joint Declaration on the promotion of international law, the People's Republic of China and the Russian Federation expressed the view that the “imposition of unilateral coercive measures not based on international law” was an example of the imposition by some states of their will on other states,Footnote 68 which could potentially “defeat the objects and purposes of measures imposed by the Security Council, and undermine their integrity and effectiveness.”Footnote 69 The element “not based on international law” is no doubt key to understanding the Sino-Russian position. The same wording was used in a statement, from April 2014, by China, Russia, and India, stating that “[g]ood faith implementation of principles of sovereign equality of States, non-intervention in the internal affairs of States and cooperation excludes imposition of unilateral coercive measures not based on international law.”Footnote 70 Despite their significance, it would be difficult to maintain that such statements, along with resolutions of the General Assembly to the same effect,Footnote 71 have crystallized a new rule of customary international law. As one commentator puts it, it might “be questioned whether State practice comports with the high-minded statements of the General Assembly”: an obvious example is the embargo of Organization of Arab Petroleum Exporting Countries in 1973–74 against Canada, Japan, the Netherlands, the United Kingdom, and the United States for their support of Israel in the Six Days War.Footnote 72 Similarly, China's state practice seems not to comport with the words of the Joint Sino-Russian Declaration, as China has begun to impose unilateral sanctions of exactly the kind denigrated in the Joint Declaration.Footnote 73 It is generally accepted, no doubt correctly, that a rule of customary international law against economic sanctions does not exist.Footnote 74
E. Whether Sanctions May Be Imposed Only by a Competent International Organ
Venezuela goes on to assert that, for sanctions to be lawful, they must be imposed by a competent international organ, such as the UN Security Council.Footnote 75 This is wrong. International law recognizes the right of states to adopt unilateral measures against other states,Footnote 76 whether acting alone or with others, in respect of either unlawful, or merely unfriendly, conduct, in order to induce the other state to change its conduct.Footnote 77 To deny this is to misunderstand the nature of international law, which in spite of the multilateralization of recent decades, remains essentially “a network of bilateral relations.”Footnote 78
As has been stated, “[s]anctions are not an invention of the UN system; on the contrary, they have a long pedigree in the history of inter-state relations.”Footnote 79 Such measures come in the shape of countermeasures and retorsions. As the UN International Law Commission (ILC) has observed, a state may take countermeasures against another state “which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations”Footnote 80 though subject to certain limits such as the protection of fundamental human rights.Footnote 81 Countermeasures are, as the ICJ has observed, “among the circumstances capable of precluding the wrongfulness of an otherwise unlawful act in international law and are sometimes invoked as defences.”Footnote 82 They “may have a coercive character”Footnote 83 and, though they would otherwise be unlawful, their wrongfulness is precluded because their function or objective is to induce the wrongdoing state to comply with its obligations.Footnote 84 Retorsion, by contrast, describes lawful measures that one state may take against another simply in response to an unfriendly act.Footnote 85 As the ILC has stated, “acts of retorsion may include the prohibition of or limitations upon normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid programmes.”Footnote 86
It is thus incorrect to assert that only international organs may impose economic sanctions.Footnote 87 There is, in fact, extensive state practice supporting the unilateral right to impose economic sanctions. An example may be found in the 1993 Resolution of the European Parliament in relation to the Arab sanctions of Israel, which emphasized that under international law “every sovereign state is at liberty to take measures restricting trade in order to protect its national security interests.”Footnote 88 Another example is the imposition of unilateral economic sanctions by the Nordic countries against South Africa for its policy of apartheid.Footnote 89 Similarly, the United States imposed unilateral sanctions against Iran in 1980 in connection with the hostage-taking of its diplomatic staff in Tehran,Footnote 90 and against India and Pakistan for conducting nuclear weapons tests in 1998.Footnote 91 Another example is the imposition of economic sanctions against Argentina by several states, including Australia, Canada, and New Zealand, following Argentina's military action in the Malvinas/Falklands Islands in 1982.Footnote 92 Yet another example is the United Kingdom's unilateral sanctions regime relating to Burma (Myanmar), in force from December 31, 2020.Footnote 93 None of these sanctions, imposed unilaterally by states, has been held to be inconsistent with international law.
F. Human Rights Obligations Under the UN Charter
Venezuela also invokes human rights principles,Footnote 94 which raises the question of the extent to which the UN Charter and UN human rights conventions impose obligations in respect of unilateral economic sanctions. Article 1(3) of the UN Charter provides that one of the purposes of the United Nations is: “To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”Footnote 95 While it is an important statement of purpose,Footnote 96 this provision does not actually set out the content of human rights obligations in any detail and, in any event, does not prohibit economic sanctions as such.
Venezuela further invokes Articles 55 and 56 of the UN Charter, which provide:
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination, the United Nations shall promote: . . . (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language, or religion.Footnote 97
Article 56
All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.Footnote 98
Exactly what obligations are imposed by Articles 55–56 is a matter of contention.Footnote 99 Member states are arguably under “at least a moral—and, however imperfect, a legal—duty to use their best efforts, either by agreement or, whenever possible, by enlightened action of their own judicial and other authorities, to act in support of a crucial purpose of the Charter.”Footnote 100 In that sense, it may even be said that these provisions “legally obligate” member states “to respect and protect human rights,”Footnote 101 and that they impose “the legal obligation on member States singly or jointly to stand up for respecting human rights.”Footnote 102 But, crucially, “human rights still have to be filled with substance either by means of conventions or customary international law.”Footnote 103 In other words, the manner in which states comply with Articles 55–56 is through compliance with conventions and rules of customary international law to which they have consented to be bound. These human rights obligations are considered below.
G. The UN Human Rights Covenants
The International Covenant on Civil and Political Rights (ICCPR)Footnote 104 and the International Covenant on Economic, Social, and Cultural Rights (ICESCR)Footnote 105 both provide, in common Article 1(2), that: “In no case may a people be deprived of its own means of subsistence.”Footnote 106 This obligation relates to the right of a people exercising self-determination freely to dispose of their natural wealth and resources.Footnote 107 Thus, “measures taken in the framework of inter-state relations should not be such as to threaten starvation of the people of a State.”Footnote 108 To the extent that economic sanctions breach that rule—and have the effect of threatening the starvation of a whole people—they are illegal under international law. In the description of one prominent author, “measures that tend to asphyxiate a country” are illegal.Footnote 109 In principle, this can be the case only in extreme circumstances, and, as regards the UN Human Rights Conventions, where a state exercises control over the territory of another state, as further explained below.
H. ICCPR
For states parties to the ICCPR, there are certain other specific obligations that may be potentially relevant to economic sanctions. Where, for example, such measures cause hunger and malnutrition that results in the loss of life, it might be argued that the right to life under Article 6(1) of the Covenant is implicated. The Human Rights Committee has stated that: “The duty to protect life also implies that states parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.” It noted that “[t]hese general conditions may include . . . widespread hunger and malnutrition . . . .”Footnote 110 However, the question is whether and under which circumstances a state's obligations under the ICCPR are extraterritorial, such that it owes them to persons who are in the territory of another state. According to ICCPR Article 2(1), “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.”Footnote 111
The ICJ has interpreted the term “within its territory and subject to its jurisdiction” under Article 2(1) to mean “‘covering both individuals present within a State's territory and those outside that territory but subject to that State's jurisdiction.”Footnote 112 In this context, the UN Human Rights Committee has clarified that where a state party exercises jurisdiction over an individual, it may be responsible for extraterritorial violations only “if it is a link in the causal chain that would make possible violations in another jurisdiction” such that “the risk of an extra-territorial violation must be a necessary and foreseeable consequence and must be judged on the knowledge the State party had at the time.”Footnote 113 Determining the extent of extraterritorial obligations “is a matter of determining which rights are applicable vis-à-vis the relevant state in the light of the nature and extent of the external exercise of that state's public power.”Footnote 114
It would be difficult to conclude that the imposition of economic sanctions as such constitutes extraterritorial exercise of jurisdiction. Whether and when a person that is outside a state's territory is to be regarded as within the jurisdiction of the state is a vexed question on which differing views have been expressed by different human rights bodies and tribunals. It is, however, generally accepted that jurisdiction for these purposes simply means that the state exercises authority and control over the person, and for that reason owes them human rights obligations. Thus, in addition to the “spatial model” where a person falls within the jurisdiction of a state because they are in territory that is under the control of that state, jurisdiction can also be “personal” where an individual is “within the power or effective control of that state Party, even if not situated within the territory of the State Party.”Footnote 115 All human rights bodies have accepted some form of the personal model of jurisdiction.Footnote 116 What has remained unclear is precisely what form of authority, power, or control would bring a person within the jurisdiction of the state. In its General Comment 36, the Human Rights Committee adopted the view that a state party to the ICCPR has the obligation to respect and ensure the right to life to “all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.”Footnote 117 This is as far as any human rights body has been prepared to go. When this view is combined with the position that the right to life includes an obligation to protect from starvation, one might begin to construct an argument that the imposition of sanctions could amount to a breach of the right to life under the ICCPR. The Human Rights Committee, however, was careful to stipulate that a person is only within the jurisdiction of a state as a result of control where the enjoyment of rights are affected by the states’ “activities in a direct and reasonably foreseeable manner.”Footnote 118 While it may be argued on this basis that imposing sanctions on another state might lead to economic problems which might lead to worsened circumstances which might in turn, in extreme circumstances, lead to starvation, it will be necessary to establish that this was a direct and foreseeable consequence of such measures.
I. ICESCR
The provisions of the ICESCR are more directly relevant to economic sanctions and frequently invoked by Venezuela in Referral II. Article 2(1) obliges states parties “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”Footnote 119 This obligation of conduct is “programmatic and promotional,”Footnote 120 and requires good faith efforts to realize progressively the relevant rights, rather than achieving a particular result. The ICJ has clarified that the ICESCR guarantees rights that are “essentially territorial,” though “it is not be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.”Footnote 121 The obligation to achieve, particularly by legislative measures, the full realization of the rights under the ICESCR is by its nature territorial in scope.Footnote 122 In this regard, the leading commentary on the ICESCR clarifies that:
While the subject of the potential for arguing that the ICESCR generally, and Article 11 specifically, impose upon states extra-territorial responsibilities has gathered pace in recent years, the fact remains that in terms of legal obligation the Covenant, the Committee [on Economic Social and Cultural Rights] and the relevant [UN] Special Rapporteurs talk mainly in hope rather than expectation.Footnote 123
This is consistent with the ICESCR Committee's observation that compliance with such obligations:
does not in any way call into question the necessity for the imposition of sanctions in appropriate cases in accordance with Chapter VII of the Charter of the United Nations or other applicable international law.Footnote 124
It notes however, though without specifying specific obligations, that the right of states to adopt such measures is not unlimited:
the inhabitants of a given country do not forfeit their basic economic, social and cultural rights by virtue of any determination that their leaders have violated norms relating to international peace and security. The aim is not to give support or encouragement to such leaders, nor is it to undermine the legitimate interests of the international community in enforcing respect for the provisions of the Charter of the United Nations and the general principles of international law. Rather, it is to insist that lawlessness of one kind should not be met by lawlessness of another kind which pays no heed to the fundamental rights that underlie and give legitimacy to any such collective action.Footnote 125
Venezuela refersFootnote 126 to a UN study by Marc Boussuyt,Footnote 127 which recommends in general terms that unilateral sanctions should “meet all the requirements for such sanctions inherent in the [UN] Charter, including conformity with the principles of justice and international law.”Footnote 128 In this regard, the leading ICESCR commentary observes that:
[e]ven economic sanctions are generally not treated as prohibited interventions under international law, despite attempts by developing states to change the law in that direction. . . . While various UN resolutions have attempted to prohibit economic coercion by unilateral sanctions, with many developing states supporting such efforts, there is strong opposition from certain developed countries which utilize such sanctions and thus insufficient consensus on a prohibition.Footnote 129
Others similarly observe in respect of the ICESCR that:
[t]he standard limiting embargoes or boycotts that harm the economic interests of the citizens of the target state is very permissive, because the background doctrine of national independence supports the freedom not to trade.Footnote 130
It is thus very difficult to conclude as a general principle that sanctions would necessarily violate obligations under the ICESCR. Customary international law does not bar the use of economic coercion.Footnote 131 In the absence of specific legal obligations to engage in trade with another state, an embargo will in principle be a lawful measure.Footnote 132 Where general international law does impose a limit is in the extreme circumstance where unilateral sanctions rise to the level of depriving a people of its own means of subsistence or threatens the starvation of the people of a state.Footnote 133 There is in general international law a “duty not to use economic coercion for the purpose of destroying or dismembering a State.”Footnote 134 This would seem to be some way removed from the U.S. sanctions against Venezuela, whether their ostensible objective is merely to confront human rights violations or to achieve “regime change.” In any event, aside from this specific factual context, what matters for present purposes is that conduct that is permissible under general or particular international law cannot qualify as crimes against humanity, as discussed in the following Part.
III. Sanctions and Crimes Against Humanity
Section 6 of Referral II is entitled “Crimes Against Humanity.”Footnote 135 It asserts that the economic sanctions imposed on Venezuela qualify as crimes against humanity under Article 7 of the Rome Statute. The present Part considers Venezuela's arguments and whether they are consistent with international criminal law.
Acts that are lawful under general international law cannot at the same time be crimes for which individuals, and particularly state officials, can be held responsible under international criminal law. For instance, the International Criminal Tribunal for the former Yugoslavia (ICTY) has endorsed the view expressed by Bassiouni that:Footnote 136
“[i]t is a well-established truism in international law that if a given conduct is permitted by general or particular international law, that permissibility deprives the conduct of its criminal character under international criminal law. But if a given conduct is prohibited by general or particular international law it does not mean that it is criminal ipso jure. The problem thus lies in distinguishing between prohibited conduct which falls within the legally defined criminal category and that which does not.”Footnote 137
Accordingly, to the extent that sanctions are permitted by general or particular international law, as discussed above, those same acts cannot amount to crimes against humanity. Furthermore, even if they are unlawful, that does not necessarily mean that they constitute an international crime.
It is important to note that, as recognized by the ILC Articles on Crimes Against Humanity, both states and individuals may be responsible for the commission of crimes against humanity.Footnote 138 Furthermore, the preamble to the ILC Articles recalls “that the prohibition of crimes against humanity is a peremptory norm of general international law (jus cogens).” It would seem illogical to assert that acts which are permissible in international law, or in respect of which the worst that could be said is that there is a debate as to their lawfulness, constitute a violation of a peremptory norm. For a rule of international law to be part of jus cogens, it must be “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”Footnote 139 Where an act is, by contrast, accepted as lawful by the international community, it cannot be said at the same time that the international community of states as a whole accepts a rule that such an act must not be performed and also that no derogation from such rule is permitted.
The principle that acts which are permitted under international law ought not to be regarded as crimes against humanity is reflected in the definition of a number of the specified acts which are prohibited as crimes against humanity. Where the particular type of act is by definition wrongful, for example, murder, extermination, enslavement, and rape, the definition in the Rome Statute does not specifically refer to the fact that the act must not be unlawful under international law. This is understandable because such acts are mala in se (even if there can be questions as to whether a particular act falls within the definition of, say, murder). However, and by contrast, where the type of act is one which is not in itself wrongful, the Rome Statute (and customary international law) excludes from the definition of crimes against humanity those acts in that category which are lawful under international law. Thus, “deportation or forcible transfer of population” is a crime only where it is “without grounds permitted under international law”; “imprisonment or other severe deprivation of liberty” is a crime only when committed “in violation of fundamental rules of international law”; and “persecution” occurs where there is “intentional and severe deprivation of fundamental rights contrary to international law.”Footnote 140
This inextricable relationship with general international law is a function of the prevailing view that “crimes against humanity as understood today are closely linked to the gradual expansion of international human rights law. In fact, the category of crimes against humanity has become the criminal law response to gross violations of human rights.”Footnote 141 While this crime was included in the 1945 Charter of the International Military Tribunal (IMT) at NurembergFootnote 142—and thus pre-dates the post-World War II human rights conventions—it is widely accepted, both in the jurisprudenceFootnote 143 and literature,Footnote 144 that the protected interests underlying the criminal law prohibitions are the human rights of the victims. Indeed, in its 1991 draft Code of Crimes Against the Peace and Security of Mankind, the ILC even considered renaming “crimes against humanity” as “systematic or mass violations of human rights.”Footnote 145 One of the leading commentaries on the Rome Statute observes that:
Crimes against humanity might usefully be viewed as an implementation of human rights norms within international criminal law. Just as human rights law addresses atrocities and other violations perpetrated by a State against its own population, crimes against humanity are focused on prosecuting the individuals who commit such violations.Footnote 146
Thus, in principle, economic sanctions would constitute crimes against humanity under international criminal law only where the acts amount to widespread or systematic violations of fundamental human rights under general international law.
As Referral II notes, the UN Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (DPRK) found that “decisions and polices violating the right to food, which were applied for the purposes of sustaining the current political system, in full awareness that such decisions would exacerbate starvation and related deaths of much of the population” amount to crimes against humanity.Footnote 147 That finding was based on the fact that “relevant DPRK officials adopted a series of decisions and policies that violated international law and aggravated mass starvation.”Footnote 148 It was noted in particular that there were deliberate “violations of the right to food and other human rights”Footnote 149 and that the DPRK violated its obligations under ICESCR Article 11(2) to ensure “the fundamental right of everyone to be free from hunger” within its jurisdiction.Footnote 150 This was obviously based on the fact that the violations took place on the territory of DPRK. It would be an entirely different thing to hold that a state has violated its human rights obligations and imposed starvation by virtue of its economic policies toward another state, the territory of which it does not occupy or otherwise control. As set out above, a state's obligations to fulfill the right to food apply only within its territory, or otherwise, in cases where it exercises control over the territory of another state.Footnote 151
Referral II also invokes the jurisprudence of the IMT at Nuremberg in respect of deliberate starvation during Germany's belligerent occupation of Poland. It maintains, in the context of a discussion of the “economic policies that result in shortages of food and medicine,” that there is nothing in the definition of crimes against humanity “that excludes the possibility that the policies of one state constitute an attack on a civilian population other than its own even when it does not exercise control over the territory.” This assertion, however, does not find support in international law, whether in general international law or in the provisions of the ICCPR or the ICESCR discussed above. Here, too, it may be recalled that, according to the ICJ, the ICESCR “guarantees rights which are essentially territorial,” applicable “to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.” Where there is no legal obligation on states in respect of conduct relating to territories beyond their jurisdiction, it would be exceedingly difficult to conclude that the same conduct amounts to crimes against humanity.
The foregoing observations on why lawful sanctions cannot fall within the definition of crimes against humanity follow from the requirement in the chapeau of Article 7(1) of the Rome Statute that such acts must be part of “a widespread or systematic attack directed against any civilian population.”Footnote 152 Article 7(2)(a) clarifies that this fundamental element of an “attack directed against any civilian population” “means a course of conduct involving the multiple commission of acts . . . [such as murder, extermination, enslavement, etc.] . . . pursuant to or in furtherance of a State or organizational policy to commit such attack.”Footnote 153 International criminal tribunals, including the ICC, have held that for an attack to be directed against a civilian population, the civilian population must be the “primary object of the attack,”Footnote 154 rather than an incidental victim of the conduct in question. As the ILC has observed: “the term ‘directed’ places its emphasis on the intention of the attack rather than the physical result of the attack.”Footnote 155
Thus, for instance, even if sanctions could qualify as murder, “the killing of only a select group of civilians—a number of political opponents to the regime—could not be regarded, in principle, as a crime against humanity; in such a case, no ‘population’ can be said to have been attacked.”Footnote 156 In particular, where sanctions are directed primarily at the state leadership, it would be difficult to qualify such measures as an attack directed primarily against a civilian population, even if there are (very serious) adverse physical results for the population as a result. In appropriate circumstances, however, sanctions directing an attack against a civilian population—including by means of deliberate starvation—in order to weaken or overthrow a government could qualify as crimes against humanity: this is connected inter alia to the principle of international law that “measures taken in the framework of inter-State relations should not be such as to threaten starvation of the people of a State.”Footnote 157
IV. Conclusions
Venezuela's Referral II raises questions with far-reaching implications on the scope of the rights and obligations of states. While the right to adopt sanctions is not unlimited, international law allows considerable freedom of action in respect of unilateral measures of this kind. Unilateral economic sanctions are not permitted by international law when they threaten starvation of the people of a state, by depriving a people of its own means of subsistence; but that will only be the case in extreme circumstances. As regards sanctions permitted by international law, which is the general position, there can be no basis for a conclusion that their imposition amounts to crimes against humanity under Article 7 of the Rome Statute. Furthermore, even if the sanctions are not permitted under international law, there must be proof that they constitute an attack directed primarily against a civilian population. Absent these crucial elements, there would be no basis to conclude that “a crime within the jurisdiction of the Court has been or is being committed” within the meaning of Rome Statute Article 53(1)(a), and thus no basis for the prosecutor to initiate an investigation.
The paradox is that while sanctions could—in extreme circumstances such as deliberate starvation of a people—result in violations of fundamental human rights obligations and even amount to crimes against humanity, they tend to be invoked in order to pressure states to respect human rights, or otherwise to cause a state to refrain from conduct that is deemed to be a threat to peace and security. Even those most critical of unilateral sanctions would find it difficult to argue, for instance, that such measures against the apartheid regime in South Africa were not permissible under international law. Whether in particular circumstances those motivations are genuine or not, the controversy in connection with “unilateral coercive measures” is an opposition between competing appropriations of human rights and international criminal law—as forcefully demonstrated by the contrast and sequence between Referral I and II. Whatever criticism may be levelled against U.S. policy, however, Venezuela's expansive arguments do not find support in international law. Attempts to weaponize accusations of crimes against humanity must be resisted by the ICC if it is to maintain its integrity as a judicial institution. This is so however much one might sympathize with the sentiment (with which the writers agree) that those who suffer most from sanctions tend to be “those whom we were supposed to be helping,”Footnote 158 in the present situation, long-suffering, ordinary Venezuelans.
