Venezuela's crisis is deepening - here's what the world is doing about it

The conditions leading to the current political crisis have actually been brewing for some time (see past coverage in the WOLA Venezuela Weekly on December 12, December 20, January 10, and January 22). Nicolás Maduro’s claim to a second term came as the result of the May 2018 electoral process widely considered unfair and lacking credibility.

Many countries made clear that they would not recognize Maduro as Venezuela’s legitimate president if he were to be sworn in. With that stance already in view, just what to do once Maduro did claim the presidency, as he did on January 10, has been debated both in Venezuela and among international actors.

The leading interpretation of the current course of action among the Venezuelan opposition comes from language in Article 233 of Venezuela’s Constitution, which states:

“When an elected President becomes permanently unavailable to serve prior to his inauguration, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. Pending election and inauguration of the new President, the President of the National Assembly shall take charge of the Presidency of the Republic.”

After Juan Guaidó assumed the presidency of the National Assembly on January 5, he stated that he would indeed be taking charge of the presidency, but that he needed time to gain the support of the people and the Armed Forces. In the following two weeks, he successfully carried forward a mobilization effort based on open-air meetings, called “cabildos abiertos.” This strategy was enormously successful, animating the opposition base and making Guaidó the focus of renewed hope.

From the day he was sworn in as leader of the National Assembly, Guaidó pointed to January 23 as the day the Venezuelan people would mobilize to reject the government of Nicolás Maduro as illegitimate. That day, turnout in major protests in Caracas and across the country was indeed massive and crossed class lines, with ample participation among working-class Venezuelans.

During the January 23 Caracas rally, Guaidó announced that he was assuming the functions of the presidency of the country, and was quickly recognized by the United States and members of the Lima Group, including Canada, Colombia, and Brazil.

Venezuela’s Constitution doesn’t contain a precise blueprint for what to do when an elected leader attempts holds on to power past his term, meaning political actors must be guided by constitutional interpretations. In normal circumstances, these interpretations could be argued before a court of law that would emit a ruling. However, given that Venezuela’s judiciary has been co-opted and controlled by the executive branch, this is not a viable path. Still, there is debate among some analysts over the strict constitutionality of Guaidó’s claim to the interim presidency and in particular over whether or not the president is truly “permanently unavailable to serve” by the letter of the law.

If one accepts that Guaidó is the interim president, the legitimacy of his role is premised on the organization of new elections. Article 233 actually says they should be held within 30 days. However, this is impossible with Maduro in power, and would be close to impossible for logistical reasons even if he were not.

Given the difficulties in interpretation and application, many Venezuelan human rights groups have preferred, like the Venezuelan Education-Action Program on Human Rights (PROVEA), not to weigh in on the constitutional debate or offer their own judicial interpretations, and instead focused on the path forward: free and fair elections by which Venezuelans can choose their own leader.

Following major nationwide protests on January 23, recent days have seen serious human rights violations in Venezuela. The UN High Commissioner for Human Rights Michelle Bachelet cites evidence that at least 20 people were killed by security forces or pro-government armed groups, and that well over 350 people were detained, all in less than 72 hours. On January 27, President of the National Assembly Juan Guaidó denounced the deaths that occurred and said the legislature would be reaching out to human rights NGOs for further information. He also called on Bachelet to move up a planned visit to Venezuela.

The United States, 11 countries of the Lima Group, Ecuador, Australia, Israel, Albania, and Kosovo, have all announced that they recognize Guaidó as the legitimate president of Venezuela. The European Union has effectively given Nicolás Maduro an ultimatum, saying that if there is no “announcement on the organization of fresh elections with the necessary guarantees over the next days, the EU will take further actions, including on the issue of recognition of the country’s leadership in line with article 233 of the Venezuelan constitution,” and will address the issue during the next meeting of EU foreign ministers.

There are a number of questions about how exactly non-recognition will play out in the longer term. The United States is likely to move forward in working with the opposition to seize the Maduro regime’s assets in US territory and turn them over to forces friendly to the opposition. However, a situation in which the international community does not communicate with a government that has actual control over key institutions in its own territory is untenable. It is likely that countries that officially recognize Guaidó will continue to deal with Maduro as de facto leader as long as they have to in some form.

Much of the messaging from both the opposition and the international community in recent days have been focused on outreach to the armed forces, And indeed, without the military breaking from Maduro in support of new elections, a transition is unlikely. However, to date there has been no split within the ruling coalition, let alone the armed forces.

Defense Minister Vladimir Padrino Lopez declared that they are completely loyal to Maduro in a public address on January 24, flanked by other members of the top brass. The one major exception so far has been the military attaché at the Venezuelan Embassy in Washington, Col. José Luis Silva, who announced his break from Maduro on January 26.

Importantly, Guaidó and the opposition-controlled National Assembly seem to have recognized that no transition in Venezuela can occur without the support of some members of the government. The National Assembly has proposed an amnesty law offering certain guarantees for civilian and military officials that break from Maduro, and Guaidó has at various points extended a hand to dissidents in Chavismo in public statements.

However, ambiguities in the amnesty measure may be a factor in the lack of an uprising so far. For instance, the bill states that individuals who break from Maduro and support a transition can be eligible for immunity from prosecution, but that this must be in accordance with the Constitution. Article 29 of the Constitution clearly states that human rights violations and crimes against humanity “are excluded from any benefit that might render the offenders immune from punishment, including pardons and amnesty.”

In addition, the Prosecutor of the International Criminal Court in the Hague is currently carrying out a “preliminary examination” into whether crimes against humanity have occurred in Venezuela. Thus, there are serious doubts that the measure could apply to anyone accused of human rights violations or crimes against humanity.

However, some proponents of the measure have noted that officials may be comforted by the fact that the actors responsible for implementing the opposition’s amnesty law are military and civilian tribunals. These courts are dominated by judges appointed by Chavismo, who would seem to be less likely to adopt a strong interpretation of Article 29 of the Constitution. Of course, this has fueled alarm among Venezuelan human rights groups that are deeply concerned about the potential for impunity.

Much of the opposition and international messaging in the wake of January 23 amounted to signaling to encourage dissident factions in the armed forces to rise up against Maduro. However, advocates of this strategy tend to underestimate the factors working against such an uprising, as well as the extent to which the military is compromised by corruption and organized crime.

Virtually since he was first elected in 2013, Maduro has leaned heavily on Venezuela’s military to maintain his hold on power, giving high-ranking officers access to important perks like privileged access to official rate dollars, control over imports of food and other basic goods, and oversight of the state-owned oil industry. If high-ranking officers in the armed forces were to force Maduro out, there is no guarantee they would support Guaidó, let alone hold new elections.

The optimal path for restoring democratic institutions in Venezuela would be some kind of negotiated political settlement that leads to free and fair elections. The question is how to achieve the conditions necessary for such a process to have any meaningful weight. The Maduro regime has used prior attempts at talks to divide the opposition and buy itself time, so opposition leadership and base are understandably wary of “dialogue.”

However, polling shows that most Venezuelans would support negotiation if it led to removing Maduro from power. The international community can, and should, help create conditions needed for more promising negotiations.

One important tool for doing so is pressure. Any sanctions should be coordinated, linked to concrete and clearly-communicated objectives that advance this goal, and must avoid worsening the country’s dire humanitarian emergency.

However, as we have written in a recent memo to US policymakers, pressure must be accompanied with strategic engagement in order to be productive. Informal communication and backchannel communication with Maduro, as well as with key actors in his inner circle, should be maintained. Anonymous US intelligence sources have told reporters that Padrino threatened to resign if Maduro didn’t step down. Thus one can imagine, under the right circumstances, military officials telling Maduro it is time for new elections.

More extreme options, such as the “military option” that President Trump floated in August 2017, have not been ruled out though this does not appear to be a policy preference for the administration. When asked if he was considering supporting military intervention in Venezuela on January 24, Trump told reporters: “We’re not considering anything, but all options are on the table.”

Foreign military intervention in Venezuela would be catastrophic. It would be bloody, costly, and devastating to an already suffering population. What’s more, it would be deeply unpopular: recent polling has made it clear that a clear majority of Venezuelans are opposed to the idea of foreign military intervention.

Ultimately, there is a strong tactical argument for the international community to avoid any of extreme proposals: even threatening them tends to stir divisions in the opposition. At a time when the Venezuelan opposition is more united and energized than ever before, it would be counterproductive to jeopardize this momentum.

As noted above, this process has been brewing for some time and is fundamentally generated by dynamics internal to Venezuela. However, it was clear at the time that Guaidó’s big step on January 23 was coordinated with the United States, since the Trump administration was prepared to recognize him immediately.

In subsequent days, news reports have detailed the extent of the coordination, revealing that Guaidó actually traveled to Washington in the weeks before his January 23 announcement and remains in communication with top national security officials in the White House.

Coordination in itself is noteworthy; indeed one characteristic of past democratic transitions in other countries is the coordination of national and international actors. But as we have argued repeatedly, the United States, because of its own history and reputation in the region, is not in a position to lead on Venezuela and should instead seek to collaborate in a multilateral coalition.

Until now the Trump administration has seemingly understood the importance of showcasing a broad multilateral consensus in rejecting Maduro’s authoritarianism. But in the past week, the US government has sought the spotlight of a very public leadership role. Vice President Mike Pence’s Twitter video on January 22, Trump’s statement recognizing Guaido on January 23, and Secretary of State Mike Pompeo’s urging for the international community to “pick a side” on January 26 had predictable effects. They displaced attention from the contest between the Maduro regime and the Venezuelan people demanding change into a confrontation between Venezuela and the United States.

This has not only put the Maduro government on more comfortable rhetorical terrain. It risks uniting Maduro supporters against an external menace while making it easy to paint the domestic opposition as actors being orchestrated from Washington.