Even in the middle of a pandemic, the Trump administration has shown it will keep up the pressure on Venezuela’s Nicolás Maduro to step down, as illustrated most recently with new sanctions and now a criminal indictment. While the primary focus has been on the Maduro regime’s corruption, manipulation of the election process, and narco-terrorism activities, the U.S. government would be remiss in pursuing accountability if it didn’t also address Maduro’s egregious human rights abuses.
The recent indictments brought by the U.S. Department of Justice accuse Maduro and his inner circle of stealing billions from the Venezuelan people to fuel a narco-terrorism criminal enterprise aimed at flooding drugs into the United States. While ending the Maduro regime’s trafficking of illicit narcotics is an important goal, Maduro’s criminality also extends to crimes against humanity and other atrocities against his own people. The survivors of Maduro’s widespread abuses want him brought to account for his regime’s brutal repression of dissidents through arbitrary detention, torture, sexual violence, enforced disappearances, and extrajudicial killings.
There is no reason Maduro can’t be held responsible for the full breadth of his illicit activities. The evidence and the mechanisms exist. Their enforcement simply depends on the willingness of global and national systems to use them, and to expand authorities where necessary to aid in achieving justice.
Doing so would benefit the United States as well: it could demonstrate its commitment to promoting human rights around the world at a time when that is in serious doubt, while also encouraging bolder action from the international community in holding Maduro accountable. This will also hold true if the Democrats win back the White House in November, since supporting human rights in Venezuela is an issue that enjoys strong bipartisan support.
First, U.S. federal prosecutors could make use of existing U.S. laws, such as the federal extraterritorial torture statute, Section 2340A of Title 18 of the United States Code, to charge Maduro and his inner circle with mistreatment of the Venezuelan people. Since the torture statute requires that the perpetrator be a U.S. national or be “present in” the United States, it would be difficult to charge torture through a superseding indictment or separate indictment at this time. However, if extradition — from Venezuela following a leadership shift, or another state where the perpetrators might seek protection — is a possibility in the future, then counts of torture could be added if the extraditing state was willing to forgo the “principle of speciality.”
Congressional Legislation
A second potential route to holding Maduro responsible for human rights abuses would require congressional passage of a long-debated crimes against humanity statute and a federal criminal statute on extrajudicial killings, with retroactive application. While the federal torture statute might be applicable to Maduro’s case should he eventually be hauled to the United States to stand trial, the proposed new laws would give U.S. prosecutors more tools to charge him and future perpetrators for a broader range of crimes.
The text for a U.S. federal law on crimes against humanity, introduced by Senator Richard Durbin (D-IL) in 2009, proposed making it a crime to commit a widespread and systematic attack against a civilian population that involves murder, enslavement, torture, rape, arbitrary detention, extermination, hostage taking, or ethnic cleansing. This text should be re-introduced and passed, with the goal of providing a vehicle for liability for regime perpetrators from Venezuela, Syria, Iran, and elsewhere, when other sections of Title 18 may not suffice.
As for extrajudicial killings, there is an accepted U.S. civil law definition under the terrorism exception to the Foreign Sovereign Immunities Act and the Torture Victim Protection Act. But there is no corresponding criminal statute under U.S. federal law, with extraterritorial application. That civil law definition could be repurposed for a federal criminal statute on extrajudicial killing to patch up this gap in Title 18.
While the crimes against humanity bill was previously unsuccessful and the text of an extrajudicial killings statute bill has yet to be introduced, the Trump administration and members of Congress, regardless of party, have demonstrated a willingness to embrace extraterritorial legal measures when it comes to U.S. government adversaries like Venezuela and Iran. The potential that such criminal statutes could be used to hold to account members of the Maduro regime, the Iranian leadership, and other bad actors, might spur renewed bipartisan interest on Capitol Hill.
The creation of new authorities is important because there is a tendency to treat human rights matters, narcotics, and counterterrorism matters as separate portfolios. However, there is often significant overlap in the underlying conduct that gives rise to these crimes. The artificial separation is partly due to structural design — for example, the way U.S. government investigative and prosecutorial teams are constituted, which does not encourage a cross-sectional approach among departments.
This fragmentation has resulted in outcomes such as returning ISIS fighters and supporters being charged under U.S. federal terrorism laws but not being charged with war crimes or other human rights crimes, even where there is a strong evidentiary showing to support those charges. U.S. prosecutors and Congress should address that here and ensure that Maduro and his cronies are charged with human rights violations and atrocity crimes as well, wherever possible.
State Sponsors of Terrorism List
Third, the U.S. government can help the Venezuelan people in their quest for accountability for human rights abuses by adding the regime to the U.S. state sponsors of terrorism list. In the virtual press conference discussing the indictments against Maduro, U.S. Attorney General William Barr was asked directly about this possibility. His response was that the administration would be taking things “one step at a time.”
Adding Maduro’s regime to the list — currently comprised of Syria, Iran, Sudan, and North Korea — would allow U.S. citizen plaintiffs to bring civil lawsuits for damages against the State of Venezuela for criminal acts, including torture, hostage-taking and extrajudicial killings.
Prior to the issuance of the narco-terrorism indictments against Maduro and his inner circle, observers questioned if the state sponsor of terrorism label was even appropriate. There is also the matter of what happens if and when Juan Guaidó takes office and if Venezuela is then saddled by debts from outstanding court judgments. On the first concern, given that the U.S. federal indictments include allegations concerning the Maduro regime’s support of the FARC in Colombia, which the U.S. Department of State has designated as a foreign terrorist organization since 1997, it seems the U.S. government has made its determination already. On the second concern, countries have been added and then removed from the list with negotiated settlements when there has been a change in government or for diplomatic reasons, such as with Iraq in 2004 and Libya in 2006.
International Courts
Another route to accountability for Maduro would involve the international courts. The U.S. issued its narco-terrorism indictment at a time when the chief prosecutor of the International Criminal Court (ICC) is still considering whether to open an official investigation into crimes against humanity committed by Maduro’s regime. It is unclear why this decision has not been finalized 1 ½ years after six countries – Argentina, Canada, Chile, Colombia, Paraguay, and Peru – referred the case to the prosecutor, a first in the history of the court, and more than two years since the prosecutor first opened a preliminary examination.
The Maduro regime then self-referred the situation on its territory to the court in February 2020, alleging that the United States, with its sanctions, has caused suffering among the Venezuelan people that constitutes crimes against humanity. Of course, that narrative ignores the regime’s brutalization and starvation of its own people. In any case, whenever a state refers itself to the ICC, the prosecutor can consider all crimes and actors on state territory.
It is no secret that the Trump administration has taken a particularly acrimonious approach to the ICC. Nonetheless, the court remains a vital body in furthering globally accepted norms of justice. Perhaps the inquiry into Maduro’s human rights abuses could provide an area of cooperation between the United States and the ICC, similar to when President George W. Bush softened his longstanding hostility towards the ICC and allowed a Security Council referral to go forward, which resulted in the Court issuing an arrest warrant for Sudanese President Omar al-Bashir for killings in Darfur.
Whether it is achieved through a U.S. court or the ICC, the Maduro regime must be held accountable for its grave human rights abuses. Adding human rights-focused charges to the U.S. indictments against Maduro, or expanding the authorities under which to do so, would create a path to bring thousands of survivors of state-sanctioned human rights abuses in Venezuela one step closer to justice—and perhaps even inspire the ICC chief prosecutor to act. Given the posture of the Trump administration towards the Maduro regime, it stands to reason that any extra tool to cast Maduro and his inner circle unfavorably would be politically welcomed at this time.