“Colectivo” Responsibility

Could the Bolivarian Republic of Venezuela be found responsible, under international law, for Colectivos’ abuses? Yes. Here’s why.

CAR102. CARACAS (VENEZUELA), 9/10/2014. Un grupo de personas participa hoy, jueves 9 de octubre del 2014, en el velorio de las cinco personas abatidas por la Policía venezolana el pasado martes en Caracas (Venezuela). Cientos de integrantes de los llamados colectivos chavistas asistieron hoy a los entierros de las cinco personas abatidas que, según los cuerpos de seguridad, pertenecían a una banda de delincuentes, lo que ha sido negado por familiares y amigos. EFE/MIGUEL GUTIERREZ

It’s not a word you’re used to hearing at the OAS: “Colectivos”. But at recent Permanent Councils, Venezuela’s pro-government armed gangs have become an object of heated debate. The shift signals a change in what the international community is now willing to tolerate from the Bolivarian Government.

The word “colectivo” is a catch-all term used —not always precisely— to describe a wide range of grassroots pro-government groups. Some, such as the UBChs (sometimes described as “Revolutionary Battle Units” by state propaganda) and the Frente Francisco de Miranda, are formally part of the ruling party and openly financed by both the public budget and off-budget slush funds. Others, such as the Tupamaros, Frente Alexis Vive and La Piedrita, sometimes pre-date the government, though they actively work together with it. Still, other groups are directly armed and organized by the ruling party and take direct orders from political bosses to terrorize opponents. Opposition talking heads often describe them as paramilitaries when in fact, they should be referred to as para-police, since there is no internal conflict in Venezuela  —yet— that would fall under the appropriate definition under international humanitarian law.

Some of these “organizations” amount to little more than armed gangs. They receive commands (both express and implied) from PSUV officials, government higher-ups and at times ministers, the Vice President and the President himself. Several are hechos públicos y comunicacionales, public acts openly aired on national radio and television.

There are hundreds of videos online now showing active collusion between armed civilian gangs and the security forces, working shoulder to shoulder with the police and national guard, often clearly there to do the dirty work that requires some semblance of deniability from the state. These include firing live ammo at civilians, beatings, apprehensions and renditions to the police.

There appear to be clear instances of instructions, direction and at times control by the government.

In order for a state to be held responsible for internationally wrongful acts or omissions, two things must happen:  That the act or omission is (a) attributable to the State under international law; and (b) that it constitute a breach of an international obligation of the State.

The tricky part here is to link the actions of colectivos to the Bolivarian Republic of Venezuela.

States have been “contracting out” their dirty work since there were privateers in the high seas and Hashshashin in Persia. However, case law concerning attribution of their conduct to states as proxies is as recently established as during the Yugoslavian and Rwandan genocides.

When it comes to non-state actors, the articles on State Responsibility, as covered by articles 8 and 11, point to two moments in establishing attribution. First, before acts occur, in which case the individuals or organizations carrying them out should a) have received instructions from the state, b) be under the direction of the state or; c) be under the control of the state. Secondly, after they occur, in which case they can be attributable to the state insofar as the state acknowledges them and adopts them as its own.

 To put this in context, the International Court of Justice held that the Contras were not under the control of the United States, even though the U.S. had armed, trained, financed and assisted them with operational details and intelligence. However, the court did hold the U.S. responsible for partially directing and instructing the Contras and therefore found liability in breaches of sovereignty and other obligations. The major claim of Nicaragua was that the Contras had violated International Humanitarian Law, and for these actions the US was not held liable.

In the case of Colectivos, there appear to be clear instances of instructions, direction and at times control by the government. Of course, each Human Rights violation would need to be scrutinized separately.

At recent Permanent Councils, Venezuela’s pro-government armed gangs have become an object of heated debate.

One of the most notorious of these instances occurred during the 2014 La Salida series of protests when Maduro himself went on national television and instructed Colectivos to “turn off the little flame” on any guarimba or street blockage that may be put up by opposition sympathizers. One could clearly establish, under this premise, that Maduro was instructing, albeit in a lightly veiled way, colectivos to use violence to quell these protests. It could also be interpreted that there was direction embedded in his comment and therefore what followed could conceivable be attributed to the state.

With regards to the Ex Post adoption of non-state actors by the state, the two paramount cases are those of the Iran Hostages and the Eichmann Case. In the first case, the Ayatollah Khomeini turned what were the independent acts of students in taking the U.S. Embassy in Tehran (1979) and later keeping its diplomatic and consular staff hostage, into state acts by going on national television and giving orders to the students, thereby prolonging the hostage situation and conducting negotiations for their release. In the second case, even though Adolph Eichmann was originally apprehended in Buenos Aires by individuals who were not identified as Israeli officials, the State of Israel took custody, tried and finally executed Eichmann after his rendition to Jerusalem by these individuals, thereby making these acts its own.

There are many documented instances where colectivos have apprehended individuals in the vicinity of protests and turned them over to Venezuelan state police who have in turn jailed or tortured these civilians. In these cases, any violations of due process or bodily harm would certainly be attributable to the state. However, instances of Ex Post public adoption of colectivo offenses are rarer and it would take very careful pairing of these public interventions to concrete actions in order for attribution to be established. What is clear is that top PSUV officials openly describe UBChs as “Combat Units for the Defense of the Nation.”

While all of these cases could be made and retribution for victims procured, the fact remains that no court in Venezuela would allow such a case to be brought, let alone heard. Moreover, Venezuela denounced the treaty making it part of the Inter-American System of Human Rights. The Inter-American Commission could not espouse a claim on behalf of the victims against Venezuela.

Maduro was instructing, albeit in a lightly veiled way, colectivos to use violence to quell these protests.

If a new government held Venezuela to its previous human rights obligations, it would certainly mean that a major change in circumstances would have occurred and any reparation would not be ordered or made by those who were at the helm when the violations occurred. Rather, as in the case of El Caracazo, a new government’s budget would become responsible financial burden of actions it did not commit and the issues would need to be part of a broader discussion on transitional justice issues in the event of regime change in Venezuela; or absent this, international criminal jurisdiction which would have very different consequences from the financial ones and enforcement for which would be quite difficult to obtain.

But the overall picture should be clear: there is plenty of evidence even now to declare Venezuela responsible for crimes committed by groups under the government’s instructions. Denial only works when it’s plausible. In Venezuela, it isn’t.