Democratic elections? Brief overview of the irregularities occurred in Venezuela

As you may already know, due to Hugo Chávez's death, Venezuela held presidential elections on April 14, 2013. The National Electoral Council ("CNE" for its acronym in Spanish) announced that the difference between the government's candidate, Nicolás Maduro, and the leader of the opposition, Henrique Capriles, was an scarcely 1,58%. 

This image shows an illegal but common practice in Venezuela. Government supporters "assisting" people while they vote, presumably to make sure that they vote for the government's candidate

These results, as requested by the opposition, independent international observers and international organizations such as the Organization of American States and the European Union, must be confirmed by a final manual audit of the total votes. 

However, and without entering to consider such step, it is important to make a brief summary of all the irregularities that occurred during the election day. Such violations to the laws and regulations were mainly carried out by government supporters with the inaction and silence of the armed forces, which clearly calls into question the transparent and fair character of the process, and also the fairness of the CNE and the state of democracy in Venezuela. 

1. Serious allegations of the existence of clandestine voting centers, which counted with the protection of the armed forces, who were supposedly called upon to uphold the respect for the different laws and regulations. Namely, there were reports of clandestine voting centers in the offices of PDVSA Maracaibo, PDVSA La Campiña in Caracas, and PDVSA Gas in Cumaná. 

2. Sympathizers of the government, armed and in motorcycles, trying to sow fear in the population around the country. Again, the armed forces did nothing about it. News about specific events are already emerging, especially a shocking one which reveals that the coordinator of a voting center in the state of Zulia was murdered by government followers.

3. Several reports showing that in some cases, government supporters voted before dawn in various voting centers, even though the official starting time to start casting votes was 6:00 AM. Other concrete irregularity was the constant abuse of all the state media without even prompting a warning by the CNE. The main official TV channel, Venezolana de Televisión, blatantly violated the electoral laws without any consequence. Also, polling centers which remained inactive for more than 5 hours due to problems with the electoral machines, did not pass to the manual voting required by law and in some cases, the armed forces took the boxes with the votes before the mandatory audits were held. 

4. Airplanes of PDVSA, the famous oil state-owned company, and helicopters from the armed forces were used to transport government sympathizers across the country and even from Colombia, for the purposes of adding votes to Nicolás Maduro. 

5. Although the CNE had decided to use the same electoral register that in the last presidential election of October 7, 2012, as the day advanced, multiple allegations emerged sustaining that people who had not been able to vote on October 7, 2012 for not being registered, were voting, thus clearly suggesting the illegal manipulation of the electoral register. Moreover, pictures emerged of government supporters who voted even though when their identity card number is entered in the CNE web page, the corresponding information shows they are not registered in the electoral register. 

6. Other serious irregularities that emerged were the following: attempts to eliminate all the casted votes in a polling station since it was discovered that someone voted with a false identity card; in some voting centers it was found that the same footprint was associated with 5 identity cards; the immigration process was seriously slowed down in the capital's main airport in order to try to prevent more votes in favor of Henrique Capriles. 

7. To top it off, there is proof of government supporters doing political propaganda on election day (which is clearly prohibited) and very near to the voting centers. More specifically, a person related to a member of the Venezuelan National Assembly was found distributing identity cards outside a voting center in Caracas, clearly violating the laws and regulations applicable to the process. 

8. Today, April 15, 2013, reports emerged that members of the armed forces are destroying the voting receipts which are issued by the voting machine in order to boycott a possible audit of all the votes of the election and destroy proof of any irregularity, which would eliminate any credibility the CNE has left. 

9. The mandatory audit process of some electoral boxes carried out yesterday was also full of irregularities. Members of the armed forces were allegedly intimidating voters who oppose the government during such audits. In relation to that event, after the closing of the polls, motorized government sympathizers were seen firing into the air to intimidate the population. 

10. Finally, it must be highlighted that yesterday, as it was confirmed by the Vice-president, the government knocked down for a few minutes the Internet connection of almost all the country, which not only generated delays in the transmission of electoral results, but clearly affected the communications all over the country. Such action, clearly unconstitutional, was also seen as a form of frightening the people. 

Venezuela had elections, but they weren't free or fair. What the opposition is now requesting is a simply manual recount of every single vote, since Henrique Capriles has categorically denounced that he is the real winner. Democracy is in danger here, which can turn out a fatal blow to Latin America. It is time to call for peace and request the help of the international community not to overthrow Maduro, but to guarantee an independent recount of the vote. That's a simple request.

Kosovo, the International Court of Justice and Judicial Restraint

Although the International Court of Justice, delivering an advisory opinion last week, simply said that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence, many minorities in the international community will find the opinion of the main judicial body of the United Nations as an ally in their way to achieve independence. No doubt, the International Court of Justice has just given a major boost to all of those aspiring for independence.

First, let us remember that the International Court of Justice has an advisory jurisdiction, pursuant to Article 65 of its Statute, to answer any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations. Thus, some months ago the General Assembly asked the ICJ the following question: 

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law”? 

Legally speaking, this method of question referral is worth studying, since in a political body like the General Assembly it is very important how you draft the question in order to get the sufficient votes for the referral to the International Court of Justice, but it is precisely the narrow scope of a determined question that affects the final result of an advisory opinion. 

The genuine issue with Kosovo is not really whether the unilateral declaration of independence is in accordance with international law, but whether there is an obligation in international law for third States to recognize Kosovo, considering the circumstances of its independence. However, the International Court of Justice, in what seems a landmark application of the interpretation theory of judicial restraint, said that although it recalls that in previous cases it had departed from the language of the question put to it where the question was not adequately formulated, in the present case, the question posed by the General Assembly is clearly formulated. Specifically, it said: 

The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council, when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated. 

In regards to the core issue of the opinion, that is, the legality in international law of Kosovo’s declaration of independence, the Court was very straightforward, establishing that in the second half of the twentieth century there is no evidence of the emergence in international law of a new rule prohibiting the making of a declaration of independence. In other words, there is no conclusive international custom at the present time that would make illegal that a determined minority declares its independence, being this one of the most dangerous affirmations the Court made.

More importantly, the ICJ stated that the principle of territorial integrity does not apply in cases of declaration of independence, because, in the words of the Court, “it is confined to the sphere of relations between States”, hinting that a declaration of independence is respectful of international law at least if it does not involves the unlawful use of force or other serious violations of international law, like jus cogens norms. 

It is worth noticing that the most controversial issue during the development of the advisory proceedings, was not answered by the Court, since the majority of the judges thought that the question of the right to remedial secession under international law was highly contentious among the States that participated in the proceedings and was not relevant in order to answer the question the General Assembly of the United Nations submitted to the Court.

In my humble opinion, the Court has done here a very dangerous thing, since while not answering completely the legal issues surrounding the Kosovo case, there is still no clear law regarding the complex relation between the principle of self-determination, secession and recognition of new States, and now probably some separatist groups are just going to think that they can easily declare independence from their States, causing a severe political crisis in several countries. However, it is also true that the Court cannot surpass the political will of the Member States of the United Nations, determining what the international law is, leaving us that with the conclusion that the Court should not have accepted to give the opinion in the first place. 

Anyhow, it is important to notice the judicial restraint of this International Court of Justice, compared with the one that decided the Wall Advisory Opinion. After all, it does not correspond to the judiciary, especially in a setting like the United Nations, to say what the law is, but to apply the law. In any case, it is important to keep in mind that declarations of independence are mainly domestic affairs and the United Nations does not reprove them except there is a violation of international law involved in the making of the declaration. Therefore, States better hurry in prohibiting minorities to declare independence in their domestic legal systems.

Colombia's Presidential Election & The Use of Force against Terrorists

Over the next months, Colombia is set to decide its next President. Apparently, the fight for a spot in the Casa de Nariño, official home and principal workplace of the President, comes down to two main candidates: Juan Manuel Santos, former Minister of National Defense of President Álvaro Uribe, well-known for executing a military operation leading to the death of FARC Secretariat member Raúl Reyes in an air strike against a guerrilla camp located within Ecuador’s borders. Additionally, Mr. Santos acquired global recognition after leading the non-violent rescue of former presidential candidate Ingrid Betancourt, along with 14 other hostages.

However, on his way to defeat him is Antanas Mockus, a former mayor of Bogotá and the candidate of a newly formed Green Party, who surprisingly has been leading the polls over the last few weeks. Mockus lead is shocking because Mr. Santos is President Alvaro Uribe’s candidate, who is extremely admired for his succeeding security build-up and offensive against the FARC guerrillas. Still, many Colombians loathe the scenario of scandal that has surrounded his government, and see in Mr. Mockus a new alternative for combating violence under democratic legality. To be more precise, Colombians are tired of “the end justifies the means” philosophy that has led to serious human rights abuses from Colombia’s government, a policy that Mr. Santos is committed to prolong. 

Mr. Mockus is a descendant of Lithuanian immigrants and has a reputation for integrity and an inflexible repudiation for corruption. He was elected twice as mayor of Bogotá as an independent candidate, always rejecting to negotiate with Colombia’s main political parties. Supporters from across the country say they want to witness decency in the presidency, and that above all Mr. Mockus is a good person. By founding the Green Party with two other successful mayors of Colombia’s capital, Mr. Mockus symbolizes an Obama-styled transformation in local government that has recently changed Colombia’s bigger cities. 

Although being on the centre may represent a plus to conquer the vote of those who are neither with nor against President Uribe, Mr. Mockus greatest Achilles' heel is that he does not have ties with political machinery to exchange cash in return for votes. Moreover, were he to win, governing would be tough since his party recently won just 5 seats in the 102-seat Senate and only four in the lower house. Basically, Mr. Mockus represents an uprising nationwide mood asking for change, and despite of his rise, it is interesting to notice that 40% of his surveyed supporters have said that they believed Mr. Santos will be Colombia’s next President. 

Juan Manuel Santos, for his part, is the candidate of the Social Party of National Unity, Colombia’s second most important political party. He studied in the University of Kansas, obtaining a degree in Economics and Business Administration. Later, he acquired master’s degrees in Economics, Economic Development and Public Administration in the London School of Economics, in business and journalism in Harvard University, and in law and diplomacy from the Fletcher School of Law and Diplomacy. 

Being raised in one of the most traditional families in Colombia, Mr. Santos quickly became a well-known politician in his country, representing Colombia in the International Coffee Organization in London. As well, he has wielded important positions such as Sub-Director of his family owned newspaper El Tiempo. He started in top public office positions as Minister of Foreign Trade during the administration of President César Gaviria in 1991, following with the Ministry of Finance and Public Credit with Andrés Pastrana’s administration, to finally hold the position of Minister of National Defense with Álvaro Uribe from 2006 to 2009, resigning with the sole purpose of becoming Colombia’s next President. 

Mr. Santos has emphasized the importance of persisting with President Uribe’s security plan, and has recurrently denounced the threat represented by Venezuela’s President Hugo Chávez. His decisive attack on the FARC has led to public support for the legality of intervening in foreign countries on the ground of self-defense, causing major conflicts with the governments of Venezuela and Ecuador. 

Interestingly, Mr. Santos’s biggest weaknesses have being his desperate attempt to portrait himself as a reincarnation of President Uribe. Before starting the campaign he even said he would run only once Uribe gave him the green light, showing that his eventual presidency would be a sequel of Álvaro Uribe´s. In addition, Santos has forgot that Uribe became president because he was the expression of an alternative to politics as usual. His repeated words of how deep the roots of the experience he has in politics, has reminded voters that Mr. Santos is part of the disastrous traditional political scenario. The truth is that Colombians may have grown tire of the scandals and the corruption increasingly surrounding Mr. Santos Ministry of Defense administration, specifically the extra-judicial killings of more than 1000 young men by the military and the illegal interception and activities of the Colombia’s secret service agency.

From what has been written above, it is obvious that the result of Colombia’s presidential election will have very important consequences in regard to the country’s international law policy. With Mr. Santos, Colombia will continue to upheld that the use of force against terrorists is permitted under international law, while Mockus is expected to take a much more legalistic approach, considering very carefully any step that could entail the violation of territorial sovereignty of another State. 

Whether States have the right to use force against terrorists located in another State is a matter of controversy under international law. The United Nations Charter does not provide an unambiguous solution, but international practice seems to have re-adjusted in order to tolerate forceful actions against terrorism under more light circumstances. This practice is justified under the right of self-defense, which is understood as an exception to the prohibition to use force enshrined in the UN Charter. 

It is very important to understand that the right of self-defense cannot require a State to await an actual attack before lifting a finger to protect itself – though it positively requires the most serious efforts to avoid the use of force. Therefore, it has been understood by States such as the United States of America, that under the principle of self-defense, it is not possible to rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. This doctrine of pre-emption has been represented as a policy of dealing with threats before they become threats. The concern is not simply that it might be used as an excuse for specific uses of force that are shown in retrospect not to have been justified, but rather that the assertion of the right to take pre-emptive action is in effect a statement of a permanent right to intervene with force in third States by the handful of States that have the technology and equipment to enable them to do so. Nevertheless, some States like for example, the United Kingdom, have categorically stated that international law permits the use of force in self-defense against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote. 

The line between deterrence and prevention is certainly difficult to draw, but the important point is that international law gives no warrant to States to use violence to terrify those whom it fears may be disposed to attack it in order to give them a taste of what they might expect if an attack is executed. 

The requirement of proportionality is fundamental while exercising the right of self-defense. But it is not easy to pin down what the requirement of proportionality entails. The first approach establishes that the degree of force should be calibrated against the scale of violence that would occur if the threat against which the State is defending itself were to be realized. The second approach demands that the degree of force should be measured against the force that is necessary to prevent the attack. These two approaches might produce very different results. One State may threaten the use of force against another but be unable to bring sufficient military power to bear to cause more than minor damage, while another State may threaten massive destruction from an attack, but be easily deterred by a symbolic display of force. 

There is no doubt that the right of self-defense is a legal exception to the prohibition to use force, and that the international community is moving towards a broader understanding of such exception. For Juan Manuel Santos it will be important to remember that it is not as easy as to invoke the idea that the end justifies the means. On the contrary, if he were to be the President of Colombia, he must know that the right of self-defense applies only when the terrorist attack is imminent, which means that the attack must be likely to occur in any moment. Additionally, Colombia must seek to be proportional while exercising its right to self-defense. Mr. Mockus, for its part, must be reminded that a State cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations. The legal arguments are far from clear for now, so we can only hope that States make use of the exception in cases where there are true legitimate causes for it.