The de facto government of Nicolás Maduro wants to justify the persecution of civil society organizations using as an excuse the fulfillment of its international obligations to combat money laundering and terrorist financing. With diligence that does not comply with international human rights obligations, the government now invokes international instruments emanating from the Financial Action Task Force (FATF), an intergovernmental body of which Venezuela is a member through the Caribbean Financial Action Task Force. More specifically, that government intends to implement recommendation number 8 (paragraph 11) issued in 2012 and aimed at preventing the abuse of non-profit organizations (NPOs) for the financing of terrorism and the proliferation of weapons of mass destruction. However, in addition to the aspects indicated by more than 700 civil society organizations, the measures provided for in Administrative Ruling No. 001-2021 are also contrary to international human rights law and do not conform to “good practices” presented in FATF documents.
The G7 created the FATF at the 1989 Paris summit to study and develop recommendations on money laundering. After the terrorist attacks of September 11, 2001, member states extended their mandate to terrorist financing. FATF recommendations are not technically legally binding international standards for member states and jurisdictions but have been developed in this way by many domestic laws. In particular, United Nations human rights bodies have widely criticized recommendation number 8 due to the abuses it has generated against civil society organizations in several countries. In response to these concerns, a 2015 document outlined the best practices for its application. Additionally, in 2016, the interpretative note (page 55) of that recommendation was revised. The revision delimited the recommendation’s scope, clarified that the implementation of this recommendation should respect the obligations of States under the Charter of the United Nations and international human rights law.
Despite these efforts, abuses by various governments have continued. For this reason, last February, the FATF decided to initiate a consultation process with research centers and civil society to mitigate the “unwanted” consequences of its recommendations. In particular, this consultation will study the results of the incorrect implementation of these recommendations in the eventual suppression of NPOs or the NPO sector as a whole. The consultation would also review the threats to fundamental human rights derived from the misuse of FATF recommendations or its evaluation processes to promulgate, justify or implement laws that may violate rights such as due process or the right to a fair trial. Persecuting independent social organizations by violating human rights, such as freedom of association, is part of the objectives of Administrative Providence No. 001-2021 of the National Office Against Organized Crime and Terrorism Financing, attached to the Ministry of the Interior, Justice, and Peace. In other words, that ruling should be the object of study in the consultation opened by the FATF.
It is clear that NPOs, including NGOs, must act within a transparent framework for their creation, operation and financing, but this cannot be at the cost of freedom of expression and association, victims’ right to privacy, or the right to receive funding. In the case of human rights organizations, these rights have been reiterated in the UN Declaration on Human Rights Defenders. Article 5b. states that every person has the right to “form non-governmental organizations, associations or groups, and to join or participate in them” and especially to “request, receive and use resources with the express purpose of promoting and protecting, by peaceful means, human rights and fundamental freedoms”. In this regard, in a 2013 report, the Special Rapporteur on the rights to freedom of peaceful assembly and association to the Human Rights Council, Maina Kiai, is categorical in stating that “the capacity of civil society organizations to accessing funding and other resources from national, foreign and international sources is an integral part of the right to freedom of association, and these limitations violate article 22 of the International Covenant on Civil and Political Rights and other human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights” (paragraph 20).
If we were before a democratic government that respects the rule of law, it would act with extreme prudence to avoid the unwanted consequences of FATF’s recommendation 8, even more so when human rights bodies have warned about the risks of this recommendation. As early as 2013, the then Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, had warned that: “the FATF does not offer concrete measures to protect the civil society sector from undue restrictions on the rights of freedom of association imposed by States, arguing that their measures are in line with FATF recommendation 8. The Special Rapporteur insists that it is necessary to combat terrorism, but warns against the application of restrictive measures, such as recommendation 8 of the FATF, which States have misused to violate international law” (paragraph 25). In 2014, the same Special Rapporteur warned that after the adoption and implementation of recommendation 8, a “wave of new restrictions on the financing of civil society around the world” followed, adding that “many of these restrictions sadly do nothing to legitimately promote the fight against money laundering and terrorism. Rather, some States have used the fight against crime and terrorism as a pretext to impose restrictions on the financing of civil society for political reasons” (Paragraph 36). The Special Rapporteur then concluded that FATF standards and other similar standards “pose a serious, disproportionate and unfair threat to those who have no connection with terrorism, including civil society organizations.”
In the same vein, the then Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism, Mr. Ben Emmerson, stated in 2015 that although the FATF “has recognized the importance of the role of civil society and has insisted that the measures taken should not disrupt or discourage legitimate charitable activities, recommendation 8 has proven to be a useful tool for some States as a means of reducing civil society’s room for maneuver and eliminate political opposition” (paragraph 24).
In more practical terms, the two aforementioned rapporteurs, together with the new Rapporteur on human rights defenders, spoke last November on norms issued by Serbia to stop and attack the work of NGOs: “Serbian authorities are using supervisory powers designed to attack terrorist financing to obtain banking information and information on financial transactions from more than 50 NGOs, media associations and other non-profit organizations. Those affected stand out for their work on human rights, investigation of war crimes, monitoring government work and other forms of investigative journalism.” These UN rapporteurs warned the FATF that it must ensure that the laws passed according to its recommendations do not violate the State’s human rights obligations.
Finally, it is worth asking if a de facto government that has dismantled the rule of law and the independence of powers could implement, and would be interested in implementing, the best practices proposed to the FATF member states to avoid the unwanted consequences of recommendation 8, respecting the Charter of the United Nations and international human rights law. In this sense, it is important to note that Venezuela is considered a high-risk country for money laundering and terrorist financing, ranking fourth in the region after Haiti, the Cayman Islands and Nicaragua, according to the Basel Institute for Governance. For this institute, this type of country has some or all of the following characteristics:
- Weak public institutions, political rights, and rule of law.
- Low levels of financial and political transparency.
- Restrictions on freedom of the press.
- Lack of resources to control the financial system.
- High levels of corruption and bribery.
In this context, it is not surprising that a measure such as Administrative Order No. 001-2021 is taken to attack NGOs since an active civil society plays, together with the free press, an essential role in exposing the crimes of money laundering and demand action against violators.
Undoubtedly, this administrative ruling and its immediate effects will be in the interest of the other 189 Member States and jurisdictions in the FATF, especially because Venezuela must be evaluated in the FATF between November of this year and May 2022, after its last evaluation in 2009. It will be the responsibility of national and international civil society organizations to report the situation to that body and its members. But also before the different institutions of the OAS, the UN, and even before the ICC Prosecutor’s Office. It must not go unnoticed that Prosecutor Bensouda considered that there were reasonable grounds to believe that since April 2017, crimes against humanity have been committed, including the crime of “persecution of a group or community with its own identity based on political motives, in accordance with article 7, paragraph 1, subparagraph h) of the Rome Statute” (paragraph 204). Administrative Ruling No. 001-2021 could easily become part of the body of evidence before the ICC.
