All posts by Juan Carlos Portilla

Juan Carlos Portilla is a Visiting Scholar at Boston College Law School. He is representing before the Human Rights Committee of the United Nations two students of the Venezuelan political opposition, who are victims of unlawful detention in Caracas. He previously worked for the government of Colombia. He is a lawyer from the Sabana University School of Law, Colombia, and holds a LL.M. in International Law from The Fletcher School of Law and Diplomacy, Tufts University.

The Venezuelan Paradox


At 3:00 a.m. on May 8, 2014, Venezuelan government troops abruptly arrived at camps in Caracas to evict students who were peacefully assembled to protest against the oppressive policies of the Venezuelan regime. Security forces arbitrarily arrested hundreds of undergraduates and detained them on military bases. Actions such as this are evidence of the Venezuelan government’s large-scale plan to detain students and silence political opposition. Not only has the government systematically violated the human rights of opposition leaders, but breaches also include abuses against detainees and the decision to withdraw from the Inter-American Court of Human Rights, which left Venezuelans without its protection. Although the government continues to repress its citizens, the country is currently seeking a non-permanent seat on the UN Security Council. Abuses such as the May 8 arrests underscore Venezuela’s lack of compliance with international law and constitute behavior that should bar Venezuela from a UN Security Council seat.

Even while the Venezuelan government seeks a non-permanent seat on the UN Security Council, it actually criminalizes the right of peaceful assembly and the right to freedom of expression. These rights are protected under the International Covenant on Civil and Political Rights, which Venezuela ratified in 1978. Yet, the government consistently silences and violates the rights of opposition leaders. Notably, Leopoldo Lopez, the National Coordinator of Popular Will, which is one of the Venezuelan opposition political parties, is on trial for inciting violence by encouraging street protesters against President Maduro in 2014. Lopez was targeted by the government after he demanded a complete investigation of the government’s role in more than forty-five human rights violations cases that occurred during February 2014 demonstrations, which brought thousands of Venezuelans to protest against the government’s failure to manage rising crime and a scarcity of essential goods and services. Similarly, on March 19, the government arrested Daniel Ceballos, who is the Mayor of San Cristóbal, a city located in a state bordering on Colombia. Authorities announced on TV that Mayor Ceballos was detained “on charges of ‘civil rebellion’ and ‘conspiracy.’” There is also the case of Sairam Rivas, a twenty-one-year-old student of the Central University of Venezuela, who also marched to protest against the government and called upon students to join her and “her protest.” On May 8, Rivas became the youngest political prisoner of the regime and a “trophy of the dictatorship.” These cases show unequivocally that dissent is being criminalized in Venezuela.

In addition to arresting opposition leaders, human rights abuses in detention facilities are rampant. El Helicoide, which is a detention facility and the headquarters of the Venezuelan Intelligence Services, has housed more than forty-six political detainees over the past decade and is one site where the most violations are perpetrated. Violations include the sunlight deprivation policy, which can cause serious diseases such as osteoporosis. Iván Simonovis, a political prisoner arrested in 2004 under President Chavez and victim of the sunlight deprivation policy, was held at El Helicoide for nine years. He developed “severe osteoporosis, particularly on his spine and femur, with a significant risk of fracture.” Sairam Rivas is another victim of the sunlight deprivation policy at El Helicoide, in addition to suffering many threats against her personal integrity. The facility has become the main theater for Venezuelan security forces to perpetrate abuses against political detainees.

The case of Raúl José Díaz Peña, a college student detained at El Helicoide under the Chavez era who was subjected to constant torture by Venezuelan security forces, highlights not only the Venezuelan governments policy of abuse, but also the importance of international courts as an outlet for victims. The case of Díaz Peña was brought to the attention of the Inter-American System of Human Rights, leading to a hearing with The Inter-American Court of Human Rights. In 2012, the Court found Venezuela responsible for violating the rights of Díaz Peña protected by the American Convention on Human Rights, which Venezuela had ratified in 1977. The Court ordered Venezuela to adopt measures to improve the conditions at El Helicoide, which have been abusive and dangerous toward detainees for years. Nevertheless, the government did not respect the judgment of the Court, and, instead, withdrew from it. Withdrawing from the Court left Venezuelans without legal protections or a forum within the Inter-American System of Human Rights to which they can bring human rights cases when the domestic remedies prove futile.

The UN must take Venezuela’s withdrawal from the Inter-American Court of Human Rights into account when considering Venezuela for a non-permanent seat on the Security Council. The above-mentioned human rights abuses committed by the Venezuelan government against students and members of the political opposition contravene the spirit and the letter of the UN Charter. What is more, Venezuela has violated parts of the UN human rights system to which it is a signatory, including the International Covenant on Civil and Political Rights and its Optional Protocol. If Venezuela secures the two-thirds majority of votes at the UN General Assembly in October to win a Security Council seat, the UN human rights system as whole will be weakened. As Venezuela spends millions of its petrodollars to secure votes amongst UN members, its government continues repressing domestic political opposition. This is the Venezuelan paradox that the UN General Assembly can avert in the upcoming days.

Prosecuting Bashar Al-Assad: Can The International Criminal Court Exercise Jurisdiction Over Syria?

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On September 16, 2013, the United Nations released its report affirming that chemical weapons were used on a relatively large scale in the Ghouta area of Damascus, Syria in August 2013 and resulted in numerous civilian casualties. The use of chemical weapons represents a gross violation of international law and should be punished. In particular, Bashar Al-Assad and his lieutenants should be prosecuted under the auspices of the International Criminal Court (ICC), a judicial institution established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. Yet before this can happen, the ICC must find a way to exercise jurisdiction over Syria even though the country has not ratified the Rome Statute of the ICC, the foundational treaty of the ICC. Once it has established jurisdiction over Syria, the ICC should prosecute the perpetrators of the chemical weapons attack individually and guarantee their rights to a fair trial and due process. Finally, the ICC must prove that the perpetrators did indeed commit a punishable crime.

Can The ICC Exercise Jurisdiction Over Syria?

Yes, but getting the perpetrators of the chemical weapons attack to come before the ICC may require some diplomatic maneuvering.  Diplomacy proved to be successful in forcing Syria to join the Chemical Weapons Conventions (CWC), so the international community may also be able to convince Syria to ratify the Rome Statute to avert a military attack from abroad. Moreover, under Article 13 (b) of the Rome Statute, the UN Security Council (UNSC) has the authority to refer ICC crimes—genocide, crimes against humanity, war crimes, and, after January 2017, crimes of aggression—to the ICC Prosecutor, who is responsible for conducting investigations of ICC crimes.   To refer a case to the ICC, the UNSC must pass a resolution under Chapter VII of the UN Charter. To date, the UNSC has referred the cases of Libya and Darfur (Sudan) to the ICC.

There are two caveats to this scenario: first, Russia may exercise its veto power on the UNSC to block any resolution referring Syrian perpetrators to the ICC. Second, Syria has not ratified the Rome Statute.  This second hitch can be overcome given that Syria is a signatory to the Rome Statute and under Article 28 of the Vienna Convention on the Law of Treaties (VCLT), signatory states must refrain from acts that defeat the object and purpose of a treaty. Thus, Syria must comply with interim obligations under the Rome Statute. Technically speaking, the ICC Prosecutor can initiate a criminal investigation in Syria right away on these grounds.

Individual Criminal Responsibility

The ICC has jurisdiction over individuals, not states. Thus, if the ICC finds a way to exercise jurisdiction over Syria, Bashar Al-Assad would be prosecuted as an individual before the ICC.  Syrian military commanders and other government officials in the chain of command may be brought before the ICC as well.  The Rome Statute applies equally to a head of state and senior officers, regardless of their immunities and privileges or whether or not they committed the crime in an official capacity. In short, the ICC may prosecute those who planned and executed the chemical weapons attack in Syria whether they committed the crime individually, jointly with other military personnel, or through military units.

Punishing the Crime 

To convict the perpetrators of the chemical weapons attack in Syria, the ICC Prosecutor must prove that their actions constituted a crime against humanity and entailed systematically attacking civilians per state policy. Pursuant to the Rome Statute, serious violations of the laws and customs of war committed in the context of a civil war, including murder and intentional attacks against civilians, may constitute crimes against humanity. UN Secretary-General Ban Ki-moon could use the Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013 as evidence that the chemical weapons attack constituted a grave violation of customary international law, a war crime, and a violation of the 1925 Geneva Protocol, which prohibits countries from using chemical weapons. Additionally, under the ICC, war crimes must be committed under a policy or plan pursuing “a large-scale commission of such crimes.”  In this instance, the ICC has legal precedent to draw from: in authorizing a criminal investigation in Kenya, the ICC reasoned that a crime planned and executed by local units of the state could meet the requirement of a state policy.

The international community must strive to prosecute Bashar to Al-Assad and his lieutenants in the ICC, not only to deliver justice to the victims of the chemical weapons attack, but also to enhance the credibility of the ICC, a white elephant on the global stage that has cost more than $900 million since its inception.

The Syrian Conflict Through The Lens Of International Law

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There is growing evidence that an estimated 1,429 civilians—including more than 400 children—died torturous deaths in a chemical weapons attack in Syria at the hands of Syrian President Bashar Al-Assad’s regime. Western powers are now contemplating launching a limited military strike in Syria to deter the government’s further use of chemical weapons. Several military, political, and moral calculations are being weighed. Yet equally important to consider, and largely underreported, are the legal issues underlying Western powers’ decision to launch a military strike in Syria.  In particular, it is important to ask whether the Syrian government violated international law when it used chemical weapons against civilians and whether Western powers are legally obligated or allowed to retaliate with military force. While the answer to the first question is a resounding yes, international law is not as clear on the second.  However, given that the UN is the only body that can authorize the use of force to maintain or restore international peace and security, the international community must get UN approval before militarily intervening in Syria.

Did the Syrian Government Violate International Law?

By using chemical weapons on civilians, the Syrian government violated jus in bello normslaws governing the conduct of armed conflicts. In 1992, the UN General Assembly approved the Chemical Weapons Convention (CWC), which prohibits nations from producing, stockpiling, and using chemical weapons and which has become customary international law. Currently, 189 states have ratified the CWC. Two countries have signed but not ratified the treaty and there are five non-signatory states, including Syria. Although Syria is not party to the CWC, it still cannot use chemical weapons as a method of warfare, because the 1949 Geneva Conventions and their Additional Protocols—a cluster of international treaties dealing with the protection of civilians during conflict—dictate that all parties to the Syrian civil war must distinguish between civilians and military personnel. Additionally, the International Committee of the Red Cross (ICRC) published a compendium in 2005 on customary international law governing armed conflicts, which included the prohibition of the use of chemical weapons.

Legal Justifications for Intervening in the Syrian Conflict

The main source of international law to consult in this case is the UN Charter, which outlaws war but makes exceptions in the case of individual or collective self-defense.  However, self-defense does not apply in the Syrian case, because Article 51 of the UN Charter states that an armed attack must occur against any member of the UN to legitimate the use of force by a state or a group of nations acting in self-defense. Although the Syrian Armed Opposition is a party to the internal conflict and was the target of a chemical weapon attack launched by the Syrian regime, it is not a member of the UN.

Other exceptions to the prohibition of the use of force are more applicable to the Syrian case.  The UN Security Council (UNSC) can authorize the use of force to maintain or restore international peace and security. Additionally, there exists a responsibility to protect policy (R2P), whereby countries must protect their own people from genocide, war crimes, ethnic cleansing, and crimes against humanity. When a country fails to do so, other countries may take collective actions to stop the killings. Nonetheless, there is no treaty governing R2P, thus any collective action taken under R2P must have UNSC authorization.

If the UNSC fails to authorize an intervention in Syria, the UN General Assembly (UNGA) could step in. However, passing a resolution at the UNGA is difficult and time-consuming, since decisions regarding the maintenance of international peace and security must be made with a two-thirds majority of members present and voting. If unable to get authorization by the UNSC or the UNGA, Western powers could take enforcement actions against Syria through regional organizations, as they did during the NATO bombing on Yugoslavia during the Kosovo War, but this would violate the UN Charter.

What Legal Course Should Western Powers Take?

Countries should come together to stop the killing of civilians by chemical weapons, which are illegal under international law, and foster peace in Syria.  However, they must carry out enforcement actions through the limits and scope of the UN Charter.  Only the UNSC has the power to authorize the use of force; yet, UNGA could step in if UNSC fails to execute its responsibilities under Article 24 of the UN Charter. Thus, getting UN authorization for an intervention in Syria is the only legal course of action the global community should take. As President Obama and his administration weigh their options, they must avoid damaging the UN system, a regime that after all was shaped according to the strong and positive influence of the American vision of international order after World War II.