In May 2017, as the number killed during protests against the regime of Nicolás Maduro in Venezuela climbed toward 40, and with more than 130 injured and over 1,300 arrests, many in the United States and the region asked, “How much longer could it go on?”
In addition to the crisis within Venezuela, the collapse of its economy and the escalating criminal and political violence have also produced a massive outflow of refugees to neighboring Colombia and Brazil, to the nearby Caribbean islands of Trinidad and Tobago, Aruba, and Curaçao, and to other locales throughout the region. In total, an estimated 1.5 million of Venezuela’s 32 million people have left the country since the government of Hugo Chávez came to power in 1999. Venezuela’s neighbors watch the unfolding drama not only with concern for the Venezuelan people but also from the perspective of how that crisis could affect them as it deepens and possibly becomes more violent.
The situation in Venezuela is often mistakenly diagnosed as principally a political or economic crisis. It is better understood as a criminal act without precedent in Latin America: the capture and systematic looting of a state, achieved by first capturing its institutions through mass mobilization and bureaucratic machinations, then increasing control of the state through military force, as the criminal nature of the act and its consequences become apparent to the nation’s citizens. Former Venezuelan government officials have suggested that as much as $300 billion may have been diverted over the last decade from national coffers to private accounts through the currency control system alone.
The crisis in Venezuela is a problem for the country and the region that neither international law nor existing multilateral institutions are well equipped to handle. For neighboring states, politically acceptable alternatives appear to be few. For example, it is unlikely that the United States, or organizations such as the United Nations or the Organization of American States (OAS), will choose to physically intervene or be able to act in a manner sufficiently impactful to alter the current trajectory of Venezuela toward a broader and more violent internal crisis. Yet, both the United States and multilateral institutions do have plausible alternatives and may yet have the ability to play a decisive role in managing the consequences of that crisis for the region without direct intervention.
The Situation in Venezuela
It is difficult to anticipate when or how the Maduro regime in Venezuela will collapse, yet it is clear that its current course is both economically and politically unsustainable. In economic terms, destructive government policies, including expropriations, price controls, and currency controls, in combination with rampant corruption and mismanagement in government enterprises, have progressively eliminated the capacity of the Venezuelan economy to produce even the most basic goods required by the people of the country to survive. Additionally, declining petroleum output, high production costs, debt service obligations, an accumulation of adverse legal judgements from past expropriations, and increasing reluctance of creditors (even politically supportive China and Russia) to lend new money are shutting off Venezuela’s access to hard currency to buy goods from abroad, even though international oil prices have recently trended upward.
Defaulting on the loan obligations of Petróleos de Venezuela, S.A. (Venezuela’s state-owned oil company, PDVSA) to use the hard currency to import more goods (to ease political pressures) would trigger legal consequences that could bring about the seizure of the company’s assets, even oil shipments abroad, aggravating the regime’s liquidity crisis in a way that could endanger its ability to maintain power. The Venezuelan government has thus engaged in an increasingly desperate series of delays, legal actions, and fund shifting to make bond payments, while making a minimum quantity of foreign currency available to state organs and friends of the regime for the purpose of importing goods to maintain the support of the military and other key regime support groups.
These measures have included drawing down remaining international reserves (largely in gold), continuing to expropriate companies such as General Motors, rolling over bond payments, mortgaging assets such as the petroleum refiner and distributor CITGO, seeking new loans from state partners such as China and trusted companies such as Rosneft, and filing creative legal actions to delay decisions and awards against the government. Yet, little new credit is coming in, and the government is running out of assets to mortgage and legal options to postpone payments.
Venezuela is unable to produce needed goods domestically and lacks the cash to import them. The result, as increasingly evidenced in reports coming out of Venezuela, is ever greater scarcity of everything from food and medicine to toilet paper. Store shelves are empty, and people are spending significant portions of their day seeking food and other necessities. Seventy-two percent of Venezuelans report having lost weight in the past year because of such shortages. As Wall Street Journal reporter John Forero put it, “Venezuela is starving.”
The Maduro government has attempted to address the political implications of such shortages by appointing the military to distribute scarce food. As a result, the system mainly channels the little available food to those who support the regime while also ensuring the military both has reliable access to food for itself as well as opportunities for earning money by selling food on the black market.
With respect to political dynamics, the maneuvers adopted by the Maduro regime have demonstrated its determination to maintain power at any cost and its unwillingness to pursue a sincere political compromise or a constitutional solution that could result in its loss of power. A string of events and U.S. government actions in recent years against leaders in the current Venezuelan regime has highlighted that there are likely solid criminal cases against a significant number of persons in that government, thus signaling to them that a loss of political power could lead to their extradition and imprisonment in the United States. Indicative events include the July 2014 arrest of former Venezuelan security chief Hugo Carbajal when he left the country to become his country’s ambassador to Aruba, the November 2015 arrest in Haiti (and subsequent conviction on narcotrafficking charges) of Maduro’s nephews, and the U.S. Treasury Department’s February 2017 designation of Venezuelan Vice President Tareck El Aissami as a foreign narcotrafficking kingpin.
Reflecting such incentives to maintain power, Maduro and his fellow Chavista elites have violated Venezuela’s constitutional order in increasingly egregious ways, demonstrating that a resolution of Venezuela’s political and economic crisis through democratic processes is increasingly improbable. Key actions in this regard include dubious rulings by the pro-Maduro National Electoral Council and the Venezuelan Supreme Court
- preventing the opposition from using the supermajority it won in December 2015 elections (by blocking the seating of three opposition congressmen, giving pro-Maduro legislators two-thirds of the chamber);
- blocking a constitutionally stipulated recall referendum against the president;
- stripping the opposition-dominated congress of budgetary and other authority;
- ruling unconstitutional virtually all of the initiatives passed by that congress;
- postponing state and local elections; and
- eliminating key opposition leaders, including jailing Leopoldo López and disqualifying Henrique Capriles.
The Maduro regime has further begun a process of “renewing” the nation’s political parties, likely designed to disqualify parties and leaders hostile to the regime if currently delayed local elections or future presidential elections are held. Its boldest step to date, however, was its May 2017 initiative to form a constituent assembly and rewrite the constitution, a process almost certain to eliminate the elected opposition-dominated parliament.
If such actions demonstrate the unwillingness of the Maduro regime to respect constitutional processes and limits that could lead to their loss of power, the Venezuelan military has equally demonstrated its unwillingness to intervene to restore the democratic order or to avert a further economic and political meltdown in the country. While Venezuela’s armed forces have traditionally acted as guarantors of the nation’s constitutional order, during the eighteen years of rule by populist leader Hugo Chávez and his successor, Maduro, the military has been politicized and heavily indoctrinated with pro-regime ideology. In addition, virtually the entire cadre of its senior leaders has been replaced by regime loyalists.
Further decreasing the likelihood that the armed forces would act to restore Venezuela’s constitutional order, the military leadership (and particularly the National Guard) has become too deeply involved in drug trafficking, contraband, and other illicit activities to risk allowing or bringing about such change. Furthermore, the regime has embedded Cuban intelligence and counterintelligence agents throughout the military to keep an eye out for defectors.
While the United States has been highly critical of the actions of the Maduro regime, it has not, to date, indicated a disposition to move beyond the imposition of economic sanctions. And, while the OAS under Secretary Luis Almagro has strongly denounced the interruption of the democratic order in Venezuela, the organization principally functions on consensus, and the block of left-leaning anti-U.S. governments represented by the Bolivarian Alliance for the People of Our Americas (ALBA) continues to oppose any anti-Venezuela action by the OAS. Venezuela’s fellow ALBA countries may not agree with Maduro’s decisions in governing Venezuela, but, arguably, they do not find it in their strategic interest for the OAS (in which the United States is an important actor) to condemn Venezuela or play a significant role in the region’s politics in general. Even if the OAS were to expel Venezuela from the organization for violation of its democratic charter, the Maduro regime already gave its notice in April of its intention to leave the body.
Similarly, while the United Nations Security Council, in theory, could authorize an intervention in Venezuela, permanent members Russia and China would likely veto such action, insofar as each has significant business interests in the country, as well as strategic interest in the persistence of a Venezuelan regime that actively resists the expansion of U.S. influence in the region.
Adding to Venezuela’s problems, the probability that violence will escalate is increased by the government’s creation and deployment throughout the country of collectivos, relatively undisciplined armed bands of civilians, to enforce its will. This will ensure a high cost in lives of Venezuela’s own military or of a foreign military if anyone attempts to change the regime by force.
Potential Scenarios for Venezuela
The plausible scenarios for Venezuela (all negative) loosely fall into three groups, based on assumptions regarding which side prevails and whether violence is sustained or dissipates: (1) resistance burnout and consolidation of the criminal state, (2) escalating violence resolved by imposition of a pseudodemocratic compromise regime, and (3) prolonged criminality, repression, and insurgency.
Resistance burnout and consolidation of the criminal state. In this scenario, the military and the government maintain cohesion, and there is no foreign intervention. Eventually, through the regime’s control of resources and brutal repression (including violence by the collectivos), the majority of civil resistance is suppressed or flees the country. Millions depart the country as economic or political refugees, or to escape the criminal violence. With the diminishing of resistance, the regime consolidates its totalitarian order, probably imposing a new constitution and legislative body. Following the imposition of stability, Maduro is killed or pressured to step down, and power passes to a new leader, similarly committed to the populist ideology and the criminal enterprise, but with more rational economic policies and improved managerial capabilities.
With some stability and improved leadership, key anti-United States statist investors such as the Chinese and the Russians begin loaning new money to the regime, further expanding their access to Venezuela’s oil resources. New credit from these allies, possibly assisted by rising petroleum prices, supports further consolidation of power by the regime.
Escalating violence resolved by imposition of a compromise regime. In this scenario, violence increases significantly over that manifested in May 2017, possibly involving sporadic major confrontations between collectivos and Venezuelans identifying with the opposition and demanding the restoration of the previous constitutional order. Armed, self-interested groups are involved on all sides.
Violence exceeds the ability of Venezuela’s National Guard to control; the regular military, already reluctant to participate in the repression of civilians, is deployed but refuses to act, possibly with some units dissolving or declaring themselves loyal to the opposition. Key extrahemispheric players, including the Chinese and the Russians, make a tacit agreement with the opposition in return for guarantees of the protection of their businesses and other interests in the country. Maduro and other key regime leaders are killed or leave the country, while others cut a deal for a power transition, with the support of key military leaders, in return for limited immunity and protection from extraditions.
Prolonged criminality, repression, and insurgency. In this scenario, like the prior one, violence increases significantly, and the regular military splinters or is too unreliable to be employed. Some key figures possibly flee the country. By contrast to the previous scenario, however, a deal involving a power transition cannot be achieved. Key external players such as Russia and China maintain a “wait-and-see” posture. Protest-based violence, including selective attacks against protesters by collectivos, deteriorates into broader, bloodier efforts by pro-regime forces to intimidate or silence regime opponents through large-scale violence, sparking reprisals by anti-Maduro groups, and occasionally drawing the National Guard and regular military forces into the conflict.
Continuing violence, including possible sabotage of oil installations and other government assets, leads to a broad economic collapse and the highest outflow of refugees of the three contemplated scenarios. In this scenario, major foreign actors, including China, would likely coordinate to evacuate their workers. Depending on the risk posed to Russian, Chinese, and other oil installations, United Nations Security Council agreement to a peacekeeping or peace enforcement mission could be possible, presuming that Chavista forces would see permitting such deployments as advantageous, or would no longer be able to block them.
There is no inherent limit to the deepening of suffering, violence, and criminality that could occur. Indeed, the economic plight and abuses by the regimes in Zimbabwe and North Korea serve as reminders of how much a people can suffer at the hands of a totalitarian regime that pursues irrational policies but is determined to maintain itself in power with the acquiescence of its military.
Implications for Venezuela’s Neighbors
Each scenario discussed implies an expansion of the already significant outflow of refugees to neighboring Colombia and Brazil, nearby Caribbean islands such as Aruba, Curaçao, and Trinidad and Tobago, and the rest of the region, as well as the export of arms and broader impacts on the criminal and political landscape.
Colombia. Historically, people and goods have always moved relatively freely across the Venezuela-Colombia border; the mother of Maduro was born in Colombia, and possibly the president himself was as well. Nonetheless, the influx of Venezuelans into Cúcuta and other Colombian border towns has created some resentment among Colombians. Some perceive the new arrivals as competing with them for jobs, particularly in the informal sector, and some believe the refugees have undermined security.
In 2016 alone, over 150,000 people entered Colombia from Venezuela. Some enter on a temporary basis to earn money in the informal or illicit economy and purchase goods not available in their home country, while others choose to remain indefinitely. The Colombian border town of Cúcuta has been the focus of this movement, with significant increases in the population of Venezuelans in the city, including those who work in the informal sector as prostitutes and street vendors, and in other activities. A portion of those crossing the border from Venezuela into Colombia are actually Colombians by birth who had immigrated to Venezuela years or decades prior in search of economic opportunity or to escape violence.
Colombia’s major cities such as Bogotá, Medellín, and Cali have also registered significant increases in Venezuelans. However, because two major roads from Venezuela’s capital, Caracas, converge on the Colombian border near Cúcuta, an expanded flow of migrants from a deteriorating situation in Venezuela would probably concentrate there and, to a lesser extent, to the north in La Guajira department, including the town of Riohacha, and Valledupar in Cesar department. Nonetheless, some of those leaving Venezuela will also enter Colombia at more southerly points, including Arauca, Puerto Carreño, and Inírida, where controls are weaker.
Of those who initially migrated to Venezuela from Colombia, many now returning are expected to settle in the border region, since they have family or other contacts in the region. Of those arriving from cities on Venezuela’s Caribbean coast, such as Caracas, Puerto Cabello, Maracay, and Valencia, many will likely migrate toward Colombia’s own Caribbean coast, to cities such as Maicao, Barranquilla, and Sincelejo, where the climate and culture are familiar. By contrast, Venezuelans coming from more rural areas to the south of the nation’s principal mountain range will likely gravitate toward cities in the interior of Colombia on the other side of its flatlands, such as Villavicencio and Bogotá.
Other migration routes notwithstanding, the focus of migration on Cúcuta and La Guajira raises particular concerns for Colombia since the area, particularly Catatumbo and other parts of the province of Norte de Santander, is a hotbed of criminal and terrorist activity, with Colombia’s notorious Gulf Clan and the National Liberation Army (ELN) vying to fill in areas being vacated by the Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia, or FARC). In this complex dynamic, the newly arriving immigrants are both potential victims of and recruits for those organizations. Indeed, given the established history of cross-border smuggling, Colombian security officials believe that some people crossing the border are moving drugs and contraband, among other illicit activities.
Venezuela and Neighboring Countries
Further to the south, in border towns such as Arica, Puerto Carreño, and Inírida, although the current and expected volume of immigration from Venezuela is less of a problem, the area is the center of the illicit mining for coltan, a strategic mineral used in a wide array of advanced batteries and electronics products.
In addition to the potentially destabilizing impact of refugee flows on both the Colombian economy and centers of organized crime in the country, Colombian security experts worry that some of Venezuela’s collectivos and other groups will sell their FN FAL (light automatic) rifles and other military equipment to help maintain themselves, flooding contested criminal areas such as Catatumbo with arms as well as people in economic need.
As the Venezuelan crisis deepens and the flow of refugees grows, de facto encampments are likely to form, particularly around Cúcuta. It will be in the interest of Colombia to formally manage such camps to alleviate suffering and to prevent them from becoming centers of criminal recruitment and victimization, given the challenging environment of the zone.
In preparation for a refugee crisis, the Colombian government has an established system, the “national entity for the management of the risk of disasters,” that was used when Venezuela expelled more than six thousand Colombians from the country in August 2015. Nonetheless, security experts in Colombia are concerned that the resource requirements and the complexity of a massive flood of refugees from Venezuela would likely overwhelm the system’s capacity.
For Colombia, such challenges come at a time in which its military’s resources for operations and maintenance are declining significantly, while the government is searching for the resources to fund the substantial obligations that it incurred in the agreement that it signed with the FARC in November 2016. Colombia must also deal with the upsurge of criminal and other violence between the ELN and criminal bands as the FARC demobilizes and withdraws from its former territory.
Beyond outflows of people and guns, as the position of the Maduro leadership in Venezuela becomes more uncertain, Colombian security and defense professionals also worry that Venezuela could seek to provoke a war; this would serve to divert the attention of the Venezuelan people and the international community as well as maintain the unity of the Venezuelan military. Indeed, Venezuela has a long history of aggressive posturing toward Colombia, including territorial claims over La Guajira and substantial parts of Colombia’s eastern plains in Venezuela’s 1999 constitution. In March 2008, then President Chávez called to move ten Venezuelan armored brigades to the Colombian border in response to Colombia’s signing of a base status agreement with the United States. It further conducted a war game that year, Guaicaipuro, focused on a preemptive Venezuelan invasion of the Guajira. More recently, provocative Venezuelan actions include its conduct of a nationwide mobilization exercise, Zamora 200; its deployment of a small military force across the Arauca River into Colombia in March 2017; and the increasingly bellicose rhetoric of the Maduro regime toward Colombia, calling the nation a “failed state.”
Brazil and Guyana. While Colombia has, to date, borne the brunt of the spillover effects of the Venezuela crisis, Venezuelans have also crossed into the Brazilian state of Roraima. On one weekend in June 2016 alone, an estimated 150,000 Venezuelans crossed into Brazil, although only a portion stayed, while others came to purchase food and other goods. In May 2017, the mayor of the Brazilian city of Manaus declared an emergency after more than 350 Venezuelan refugees appeared on its streets, while more Venezuelan refugees have also been seen in the provincial capital of Boa Vista.
With respect to Venezuela’s other neighbor, Guyana, although the two countries share a land border, the relative lack of infrastructure connecting the two across Guyana’s Essequibo region and the lack of population in the area has limited the migration of Venezuelans to Guyana to date. As with Colombia, however, Guyanese worry that in a moment of crisis, the Maduro regime could provoke a military crisis with Guyana as a diversionary tactic, based on a historical dispute over the Essequibo region. The Maduro regime attempted to resurrect the dispute in September 2015, just months after ExxonMobil discovered significant oil deposits off the coast of the disputed area.
Island nations. In addition to the countries that share a land border with Venezuela, instability in the country is affecting its neighbors in the Caribbean. Venezuelans looking to obtain supplies or to escape economic and other hardship in the country are crossing the relatively narrow expanse of Caribbean water to the nearby islands of Aruba, Curaçao, and Trinidad and Tobago. In Trinidad and Tobago, Venezuelans reportedly take a ferry or hire local boats to cross the seven kilometers of water separating the two countries in order to buy goods in Trinidadian stores. In some cases, they bring guns from Venezuela to trade for food and other basic goods. And, the interchange between Venezuela and its island neighbors, exacerbated by the combination of sheer economic need and the breakdown of law and order, has also contributed to piracy off its coast.
In Trinidad and Tobago, as in the La Guajira region on the Caribbean coast of Colombia, an additional risk is created by the possible migration of persons with ties to radical Islamic groups such as Hezbollah. During recent years, Iran reportedly used Venezuela as a point of entry for its Qods forces (religious paramilitary agents), while Venezuelan authorities sold government-issued passports to refugees from Syria and other parts of the Middle East.While there has been little evidence of the outflow of such migrants to date, the established Muslim communities in Trinidad and Tobago and La Guajira make both a logical destination if the crisis in Venezuela deepens. Given that Trinidad and Tobago is already a leading source on a per capita basis for foreign fighters to the Middle East, migration from Venezuela of those affiliated with radical Islamic groups would have a potentially radicalizing and destabilizing effect on the Islamic communities in those areas.
Recommendations for the United States
Despite the systemic looting of Venezuela by the Maduro regime, U.S. intervention in Venezuela would be strategically unwise. While such action could topple Venezuela’s Bolivarian socialist government, it would reinforce the historic perception of the United States in the region as interventionist, sowing distrust and other anti-U.S. sentiment. In addition, in the short-term, it would leave behind an economically decimated, highly corrupted and politically polarized state. Following intervention, the United States would face the dilemma of allowing the newly “liberated” but broken Venezuelan state to continue as a source of criminality and instability in the region or engaging in the lengthy, expensive effort of trying to rebuild the country. In the process, as in the Middle East, the U.S. presence in Venezuela would likely become the focal point for rallying anti-U.S. sentiment, and U.S. forces in Venezuela would present a tempting target for the Chavista “resistance” and leftist terrorist groups posturing as resistors of the “yanqui invasion.”
While it would be unwise for the United States to intervene in Venezuela and unrealistic for the international community to do so, both nonetheless have an important role in shaping the evolution of the situation in a positive direction, and in managing the consequences of the crisis in Venezuela on its neighbors. With respect to Venezuela itself, the United States should give the fullest support possible to the OAS, currently under Secretary Almagro, in condemning the departure from the democratic order established by Venezuela’s constitution, and it should support the OAS and other multilateral and bilateral efforts pressuring the Chavista elite to restore that order. Also, it is imperative that the United States continue to highlight publicly the illegitimacy of the Maduro regime as a criminal elite that has, through administrative machinations, stolen control of the resource-rich state from its people, and which is increasingly relying on the force of arms to continue looting the state with an eye to making good a “getaway” with the money.
As part of such efforts, the United States must lead the international community in isolating the Chavista leadership through individually targeted economic sanctions, cooperating with other players in the international community to deny the Chavistas sanctuary in other countries after their rule. The U.S. State Department, Treasury Department, and other appropriate organizations should particularly focus on the legal and financial arenas, supporting Venezuela’s National Assembly as it invalidates contracts made by the Chavista elite outside the constitutional order. This approach may have only limited short-term impacts in Venezuela itself, but it may help change the calculations of key Maduro regime benefactors such as China and Russia, convincing them that their best strategy for securing their oil holdings and other interests in the country is by working through the constitutionally legitimate National Assembly rather than the executive branch, whose operation outside the constitution leaves its commitments of Venezuelan resources to others without legal validity.
Beyond addressing the crisis in Venezuela itself, the United States should actively work with the country’s neighbors to prevent the byproducts of the crisis, including the outflow of refugees and arms, from destabilizing the region. Venezuela’s neighbor, Colombia, confronts the double challenge of being the country most impacted by the flow of Venezuelan refugees and arms (and possible military provocations), while dealing with the enormous resource and internal security challenges arising from its government’s peace agreement with the FARC. While the Colombians take pride in their own capabilities, they will need more (and different) support from the United States, not less, in the months ahead.
In the short term, the United States should coordinate with Colombia, as well as Aruba, Curaçao, Trinidad and Tobago, and other states, in conjunction with the International Committee of the Red Cross and other nongovernmental organizations, to support the needs of the refugees. It should collaborate with the governments of the region to provide logistics, intelligence, and other support as permitted by national laws to help protect those refugees from victimization and criminal recruitment, as well as to monitor who is coming in, where they are going, and how they are affecting the local criminal environment. Particularly in Colombia, the United States should consider increased intelligence, training, and material support to police, prosecutors, and special military units combatting organized crime, which will likely expand through the refugee and arms flows.
In the unlikely, but not inconceivable, event that the Maduro administration attempts to provoke a military conflict with Colombia or Guyana, the United States should be prepared to provide military and other support to defend the territorial sovereignty of each. However, it should avoid direct military intervention in Venezuelan territory aside from possible selective removal of offensive capabilities being used against Venezuela’s neighbors, such as combat aircraft and helicopters in their bases, or forward-deployed armored vehicles.
As the United States supports the countries of the region in their response to the Venezuelan crisis, it should, wherever possible, work through the OAS and other multilateral institutions of the Inter-American System, including a coordinated response to the handling of refugees. The United States should also look for ways to leverage the events of the Conference of American Armies, of which it is head during the current two-year cycle, as a vehicle for such coordination in military affairs. Finally, the United States should be prepared to work with the United Nations to deploy a peacekeeping or peace enforcement force into the region when the evolution of the crisis and the positions of the permanent members of the United Nations Security Council make such action feasible.
The crisis in Venezuela is a tragedy with grave implications for its neighbors and the region. Yet, in that tragedy, there is also opportunity for the United States to strengthen its relationship with countries in the region by tangibly demonstrating its commitment to work with them to mitigate the effects of the crisis. It is also an opportunity to do so in a way that strengthens the OAS and Inter-American System (in whose functionality the United States has a strategic interest) as the principal multilateral vehicle for addressing regional security issues.
The Venezuela crisis may be the first opportunity of the Trump administration to define its vision for democracy, security, and good governance in the region, and to demonstrate its commitment to the partner nations with which the United States shares the Western Hemisphere. Given U.S. connectedness to the region through geography, commerce, and family ties, doing so is critical not only for the Trump administration and Venezuela’s neighbors but also for the United States and the region as a whole.
First published in the Journal “Military Review” July-August 2017, Republished by Author’s permission
In Praise of the Lioness of Law: Ruth Bader Ginsburg and her Jurisprudence
The death of the US Supreme Court Judge Ruth Bader Ginsburg has created an abyss in the court for the liberal voice where justice Ginsburg was seen as the linchpin of the liberal block of the Supreme Court at a time when that block was shrinking. Especially late judge had vociferously advocated for women ‘rights, environmental issues and often came up with unique dissents in delivering her judgements which were propelled by her jurisprudence which embodied the solemn ideal in American legal system “Equal Protection under the Law “. She was on a quest to defend the delicate balance between honoring the timelessness of American Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances.
She grew up in an era where men held the helm in every aspect of social life and especially the legal profession was utterly dominated by men. Recalling her legal studies at Harvard law school in the 50’s judge Ginsburg had stated later how she was once asked by the Dean of Harvard law school to justify her position as a law student that otherwise would have gone to a man. Yet she had the spunk to overcome all the obstacles stood on her way and excelled as a scholar becoming the first female member of the Harvard Law Review.
In tracing her legal career that it becomes a salient fact, Judge Ginsburg marked her name in American legal history even decades before she joined the bench. While at the American Civil Liberties Union in the early seventies she made an upheaval in American in legal system in famous Supreme Court Case Reed Vs Reed. In Reed Vs Reed the brief drafted by Ginsburg provided an astute analysis on the 14th Amendment to the US Constitution, the Equal Protection Clause. Ginsburg’s brief changed the aged long practice existed in the State of Idaho on favoring men over women in estate battles by paving the path for a discourse on gender equality rights in the USA.
Judge Ginsburg’s appointment to the Supreme Court in 1994 during Clinton administration marked the dawn of new jurisprudential chapter in the US Supreme Court. Two terms later, in the United States v. Virginia (VMI), Justice Ginsburg applied her lucid perspective to a sharply disputed constitutional claim. The United States challenged Virginia’s practice of admitting only men to its prestigious military college, the Virginia Military Institute. Writing for six Justices, Ginsburg held this policy unconstitutional under the Equal Protection Clause. In reaching this result, Ginsburg adroitly cut away potentially confounding issues about women’s participation in the military or the advantages of single-sex education.
Her robust activism in securing gender equality often attracted the admirations of the feminist scholars and activists, but it should be noted that her contribution was not only confined to the protection of gender equality. She was a robust critique of racial dissemination which still pervades in American society and she frequently pointed out how racial discrimination has marred the constitutional protections guaranteed to every citizen. Especially in the case of Gratz Vs Bollitnger, she stressed on the commitment that the state ought to fulfil by eliminating the racial biases existing employment and education. Moreover, disabled citizens. In Olmstead v. Zimring, she held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” violating the Americans with Disabilities Act.45 She elaborated a two-fold concept of discrimination, noting that unneeded institutionalization both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”.
In remembering the mortal departure of this prudent judge that one cannot forget her keenness in incorporating international law into her judgements regardless of the disinclination shown by conservative judges like Antony Scalia. Going beyond the mere textualism approach to the law, Ginsburg’s jurisprudence was much more akin to using international law to make substantive decisions. For instance, in her concurring verdict in Grutter Vs Bollinger, Justice Ginsburg relied upon international human rights law, and in particular upon two United Nations conventions, to support her conclusions.
Indeed, the demise of Ruth Ginsburg is a major blow for the liberalists in the USA, especially in an era where liberalist values are at stake under the fervent rise of populist waves propounded by Donald Trump. Especially late judge had been one of the harsh critics of Trump even before ascendency to the Oval office. The void created by the demise of judge Ginsburg might change the role the US Supreme Court if the successor to her position would take a more conservative approach and it will fortify the conservative bloc in the US Supreme Court. Trump has already placed Justices Neil Gorsuch and Brett Kavanaugh and the third pick would more deeply entrench the conservative views in the US Supreme Court, which would inevitably undermine the progressive policies taken during Obama’s administration towards issues such as the environment. The political storm appeared after the death of the late judge has already created a tense situation in US politics as president Trump is determined to appoint a judge to fill before the presidential election in November.
The Politics of (In)security in Mexico: Between Narcissism and Political Failure
Security cannot be that easily separated from the political realm. The need for security is the prime reason why people come together to collectively form a state. Providing security is, therefore, one of the most basic functions of the state as a political and collective entity.
Last Friday, the Mexican president, Andrés Manuel López Obrador (AMLO) laughed during his daily morning press briefings over a national newspaper headline about 45 massacres during his presidency. This attitude summarises in a macabre way his approach to insecurity: it is not his top priority. This is not the first time that AMLO has showed some serious and deeply disturbing lack of empathy for victims of crimes. Before taking office, he knew that insecurity was one of Mexico’s biggest challenges, and he has come to realise that curbing it down will not be as simple as he predicted during his presidential campaign.
Since the start of the War on Drugs in 2006, Mexico has sunk into a deep and ever-growing spiral of violence and vigilantism as a result of the erosion of the capacity of the state to provide safety to citizens. Vigilantism is when citizens decide to take the law into their own hands in order to fill the vacuum left by the state, or to pursue their own very particular interests. Guerrero, Michoacán, Morelos, Tabasco, Tamaulipas and Veracruz have over 50 vigilante organisations that pose substantial danger to the power of the state.
Vigilantism is not the only factor exacerbating the security crisis in Mexico: since 2006, young people have also started to join drug cartels and other criminal organisations. There are important sectors of the population who feel that the state has failed to represent them. They also feel betrayed because the state has not been able to provide them with the necessary means to better themselves. These frustrations make them vulnerable to the indoctrination of organised crime gangs who promise to give them some sort of ideological direction and solution to their problems.
As a result, it is not enough to carry out a kingpin arrest strategy and to preach on the moral duties we have as citizens as well as on human dignity. People need to be given enough means to find alternative livelihoods that are attractive enough to take them out of organised crime, Mexico can draw some important lessons from Sierra Leone who successfully demobilised and resettled ex-combatants after the armed conflict. Vigilantism, recruitment by organised crime, and insecurity have also flourished because of a lack of deterrence. The judicial system is weak and highly ineffective. A large proportion of the population does not trust the police, or the institutions in charge of the rule of law.
A long-term strategy requires linking security with politics. It needs to address not only the consequences but also the roots of unemployment and deep inequality. However, doing so requires decisive actions to root out widespread and vicious corruption. Corruption allows concentration of wealth and also prevents people from being held accountable. This perpetuates the circle of insecurity. Mexico has been slowly moving towards a borderline failed state. The current government is starting to lose legitimacy and the fragility of the state is further perpetuated by the undemocratic, and predatory governance of the current administration.
Creating a safer Mexico requires a strong, coherent, and stable leadership, AMLO’s administration is far from it. His popularity has consistently fallen as a result of his ineffective policies to tackle the pandemic, worsening insecurity, and the economic crisis. Mexico has reached over 72,000 Covid-19 deaths; during his initial 20 months as incumbent president, there has been 53,628 murders, among them 1800 children or teenagers, and 5888 women (11 women killed per day) This criminality rate is double than what it was during the same period in the presidency of Felipe Calderón (2006-2012); and 55% higher than with the last president, Enrique Peña Nieto (2012-2018). Mexico is also experiencing its worst economic recession in 90 years.
Insecurity remains as the issue of most concern among Mexicans, seeing the president laughing about it, can only fill citizens with yet more despair and lack of trusts in the government and its institutions. AMLO’s catastrophic performance is not surprising, though. Much of his failures and shortcomings can be explained by both ideology and a narcissistic personality. Having someone with both of those traits ruling a country under normal, peaceful times is already dangerous enough, add an economic crisis and a pandemic to the mix and the result is utter chaos.
AMLO embodies the prototypical narcissist: he has a grandiose self-image; an inflated ego; a constant need for admiration; and intolerance to criticism. He, like many other narcissists, thinks about himself too much and too often, making him incapable of considering the wellbeing of other and unable to pursue the public interest. He has a scapegoat ready to blame for his failures and mistakes: previous administrations, conservatives, neoliberalism, academics, writers, intellectuals, reporters, scientists, you name it, the list is long and keeps getting longer.
AMLO keeps contradicting himself and he does not realise it. He has been claiming for months that the pandemic is under control: it is not. He declares Mexico is ready to face the pandemic and we have enough tests and medical equipment: we do not. He says Mexico is on its way to economic recovery: it is not. He states corruption is a thing of the past: it is not. He says Mexico is now safer than ever before: it is not. When told the opposite he shrugs criticism off and laughs, the behaviour of a typical narcissist.
AMLO, alike narcissists, due to his inability to face criticism, has never cared about surrounding himself by the best and brightest. He chose a bunch of flunkies as members of his cabinet who try to please and not humiliate their leader. A further trait of narcissistic personalities is that they love conflict and division as this keeps them under control. The more destabilisation and antagonism, the better. AMLO since the start of his presidency has been setting states against states for resources and for pandemic responses, instead of coordinating a national response. He is also vindictive: playing favourites with those governors who follow him and punishing those that oppose him.
Deep down, narcissistic leaders are weak. AMLO is genuinely afraid to lead. He simply cannot bring himself to make decisions that are solely his. This is why he has relied on public referendums and consultations to cancel projects or advance legislation. He will not take any responsibility if something goes wrong: It was not him who decided, it was the people, blame them. He inherited a broken system that cannot be fixed during his term, blame the previous administrations, not him.
AMLO is a prime example of a textbook narcissist, unfortunately he is not the only one: Donald Trump, Boris Johnson, Recep Erdogan, Rodrigo Duterte are only a few more examples of what seems to be a normalised behaviour in contemporary politics. Every aspect of AMLO’s and other leaders presidencies have been heavily marked by their psychopathology. Narcissism, however, does not allow proper and realistic self-assessment, self-criticism, and self-appreciation therefore such leaders will simply ignore the red flags in their administration and have no clue how despicably and disgracefully they will be remembered.
Minor Successes And The Coronavirus Disaster: Is Trump A Dead Duck?
That reminder from the Bible, ‘He who is without sin, let him cast the first stone’ may give us pause — but not journalists who by all appearances assume exemption. And the stones certainly bruise.
Evidence for the bruises lies in the latest poll numbers. Overall, Joe Biden leads Donald Trump 50 to 43 percent, a margin that has continued to increase since January. It is also considerably wider than the few points lead Hillary Clinton had over Trump four years ago. It gets worse for Trump.
In the industrial states of Michigan and Pennsylvania, which Trump in 2016 won by razor thin margins, he is losing by over 4 percent. Also key to his victory was Wisconsin where, despite his success in getting dairy products into Canada, he is behind by a substantial 7 percent. Key states Ohio and Florida are also going for the Democrats.
Trump was not doing so badly until the coronavirus struck and during the course of his news conferences he displayed an uncaring persona larded with incompetence. Dr. Anthony Fauci, the man he fired for correcting Trumpian exaggerations became a hero and Trump the bully.
If that bullying nature won him small rewards with allies, he hit an impasse with China and Iran … while bringing the two closer to each other. Then there is the border wall, a sore point for our southern neighbor Mexico. President Lopez Obrador made sure the subject never came up at the July meeting with Trump, Thus Mexico is not paying for it so far and will not be in the foreseeable future.
The United Arab Emirates, a conglomeration of what used to be the Trucial States under British hegemony. have agreed to formalize its already fairly close relations with Israel. In return, Israel has postponed plans to annex the West Bank. Whether or not it is in Israel’s long term interest to do so is a debatable question because it provides much more powerful ammunition to its critics who already accuse it of becoming an apartheid regime. However, it had become Prime Minister Netanyahu’s sop to the right wing who will have to wait. Of course, the reality is that Israel is already the de facto ruler.
If Mr. Trump was crowing about the agreement signed on September 15, although it is akin to someone signing an agreement with Puerto Rico while the United States remains aloof. As a postscript, the little island of Bahrain also signed a peace deal with Israel. Bahrain has had its own problems in that a Sunni sheikh rules a Shia populace. When the Shia had had enough, Saudi and UAE troops were used to end the rebellion. Bahrain is thus indebted to the UAE.
How many among voters will know the real value of these historic (according to Trump) deals particularly when he starts twittering his accomplishments as the election nears?
There things stand. As they say, there is nothing worse than peaking too early. Bettors are still favoring Trump with their money. The longer anyone has been in politics the more there is to mine, and for an opponent to use to his/her advantage. Time it seems is on Trump’s side.
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