The global shock is enormous. The controversy, too. While some have lauded the capture and removal of Venezuelan dictator Nicolas Maduro to New York to stand trial, others have argued it is a violation of both U.S. and international law.
FindLaw offers no opinion regarding the merits, effectiveness, or ethical implications of U.S. foreign policy, nor do we comment on the political motivations behind any specific military operation.
However, in the context of claims that a military operation was conducted illegally, we can provide information concerning the relevant legal frameworks. This includes the War Powers Resolution and AUMF statutes. Internationally, we will examine the UN Charter and international reactions.
But first, let’s look at the criminal charges Maduro is facing.
The U.S. Case Against Maduro
The indictment against Maduro alleges that “For over 25 years, leaders of Venezuela have abused their positions of public trust and corrupted once-legitimate institutions to import tons of cocaine into the United States.” While the Trump administration has described him as a “narco-terrorist,” and uses that term in the indictment, it is not a term based on U.S. law. Maduro’s charges are for federal drug trafficking and weapons violations.
Maduro and his wife, Cilia Flores, appeared in court on Monday, January 5. Flores showed signs of having suffered minor injuries during the arrest, which her lawyer mentioned and requested that the judge order X-rays for a suspected fracture of her wrist.
Both pleaded not guilty to all charges. They also maintained they were the legitimate president and first lady of Venezuela, respectively, and claimed to have been kidnapped by the United States.
The presiding judge over the arraignment is 92-year-old U.S. District Court Judge Alvin Hellerstein. Not known for being a pushover, Judge Hellerstein interrupted Maduro after Maduro attempted to dive into his case in response to the question, “Are you Nicolas Maduro?”
The next hearing is scheduled for March 17. As it is still early in the criminal case, how Maduro may defend himself against the charges is still unclear, although we’ll offer some possibilities later. Meanwhile, Maduro and Flores will remain in detention at the Metropolitan Detention Center in Brooklyn.
U.S. Law Regarding Military Actions Abroad
As we’ve explained in our blog posts "International and Domestic Law on Attacking Cartels Outside of the U.S." and "Can the President Attack Another Country Without Congressional Approval?", the U.S. Constitution states that only Congress can declare war. However, historically, presidents have used congressional resolutions such as the Authorization for Use of Military Force (AUMF) to justify military actions.
Both Democratic and Republican leaders have carried out military actions in foreign territory under these congressional authorizations. The key, however, is that these actions must be temporary and in response to specific attacks and emergencies. This is stipulated in the War Powers Resolution of 1973.
The Trump administration argues that there was an imminent threat and direct harm to the U.S. from Maduro’s drug trafficking. Responding to previous criticisms regarding the U.S. military sinking Venezuelan ships in international waters, the Trump administration cited Article II powers to justify the attacks.
From an International Law Perspective
Those arguing the capture of Maduro violated international law claim that it is a violation of state sovereignty. The U.S. is a founding signatory of the UN Charter. Article 2.4 of the UN Charter states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
Article 51 of the UN Charter allows for the self-defense of member nations. However, critics allege that the U.S. was not facing an imminent threat and that the action does not fall under what is considered an act of self-defense. Drug trafficking and gang violence are considered criminal activities, but this does not mean they reach the level of armed conflict internationally accepted to justify a military response.
The UN has 193 member states, which are virtually all internationally recognized sovereign countries, as well as the Vatican and Palestine, which are observer states.
The U.S. did not have the authorization of the United Nations Security Council to carry out operations in Venezuela. We will address the international reaction to the operation shortly, but we can say that during the emergency meeting of the United Nations held on Monday, the condemnation of the U.S. action was overwhelming.
The U.S. Ambassador to the UN, Mike Waltz, defended the mission based on the following arguments:
- Maduro was an illegitimate ruler
- Trump gave Maduro several opportunities to resolve the conflict through diplomatic means
- The evidence against Maduro will be presented publicly in court
- Maduro will receive due process
- The U.S. is not occupying the country, but rather conducted a law enforcement military operation
- Article 51 of the United Nations Charter gives the U.S. the right to act in self-defense
- Venezuelans around the world are celebrating the arrest
How Extraditions Work
Because the U.S. is framing this as something closer to an extradition than a military engagement, let’s briefly look at extradition law. Extradition is an internationally recognized legal procedure by which one state requests another to surrender a person accused of a crime so that they can be tried or serve a sentence in the requesting country. There are certain important considerations for this:
- The act on which the extradition is based must be recognized as a crime by both countries
- Domestic law must permit extradition for that crime. Generally, extradition does not apply to political offenses
- There usually needs to be a treaty signed between the countries
- The crime must carry a sentence of more than one year of imprisonment
- The accused cannot have been previously tried or punished for that crime
- The accused cannot be tortured or sentenced to death if extradited
- The accused cannot be a national of the requested country
According to U.S. law, extradition can only be granted under a treaty, although 1996 amendments to 18 U.S.C. sections 3181 and 3184 allow the United States to extradite individuals who have committed violent crimes against U.S. nationals in foreign countries regardless of the existence of a treaty.
Venezuela and the U.S. do have extradition treaties, although their application is limited. Of course, Maduro was not going to surrender to the U.S. voluntarily regardless of any treaties.
Secretary of State Marco Rubio presented the military action as an execution of extradition. The controversy is that this execution involved an unauthorized entry into another country's territory. An operation that concluded with the Venezuelan head of state being captured. In addition, despite the characterization of the action as an effort at law enforcement, the U.S. has pledged to “run” the country for an indefinite period while bringing in U.S.-based oil companies to extract Venezuela’s oil reserves.
Maduro’s Defense
Most of the world agrees that Maduro was a bloodthirsty dictator and that his removal is positive; the problem critics are pointing to is that the U.S. lacked the authority to carry out a military operation.
That’s why it is highly likely that the defense of Maduro and Flores will request that the case be dismissed and/or take other actions based on the following arguments:
- The U.S. court lacks jurisdiction to prosecute a foreign leader, and the operation was a “military kidnapping” that violated international law, thus challenging the court's jurisdiction.
- Maduro should have judicial immunity as a head of state. While perhaps a long-shot argument, Trump himself enjoyed this privilege by virtue of his status as president in the case of Trump v. United States. In that case, the Supreme Court ruled that presidents and former presidents enjoy absolute immunity from criminal prosecution for acts performed in the exercise of their exclusive constitutional powers.
- They could request the discovery of confidential government information related to the military operation, leading to lengthy litigation under the Classified Information Procedures Act (CIPA).
What Are World Leaders Saying?
Unsurprisingly, the reaction was mixed. The predominant reaction was perhaps concern over the violation of international law and the potential for regional instability.
As expected, China, Russia, and Iran condemned the capture, but the condemnation didn't come only from direct adversaries of the U.S.
Brazil, Chile, Colombia, Mexico, Spain, Cuba, and Uruguay condemned the unilateral military action, calling it a violation of international law and an attack on state sovereignty. Other countries that criticized the U.S. action include South Africa, Pakistan, Uganda, North Korea, Indonesia, and Nicaragua.
On the other side were the countries that openly supported the U.S. action: Argentina, Israel, Ukraine, Trinidad and Tobago, El Salvador, and Ecuador. Panama affirmed that opposition leader González Urrutia is the president-elect of Venezuela and called for an orderly transition.
Other countries showed caution. British Prime Minister Sir Keir Starmer refused to comment on whether the military action might have violated international law. German Chancellor Friedrich Merz stated that the legality of the U.S. operation was "complex," and French President Emmanuel Macron said that the transfer of power should be peaceful and respect the will of the Venezuelan people.
What’s Going on In Venezuela?
Many Venezuelans received the news as a liberation and cause for celebration, albeit with some skepticism. Many suspect that the drug trafficking charges are merely a pretext to obtain oil.
For now, former Vice President Delcy Rodríguez was sworn in as the acting president on Monday, January 5. However, the reaction from the Venezuelan community has been one of emotion, euphoria, and relief. It is the reaction of a people who, in the words of Venezuelans themselves, had lost faith that a solution through "peaceful," "diplomatic," and "democratic" means was possible. It is the reaction of a people with approximately a quarter of its population in exile. For the Venezuelans scattered throughout the U.S. who have already mourned their displacement, the canceled Temporary Protected Status (TPS), and the revoked visas, their reaction on social media shows a mix of feelings: uncertainty, caution, and hope that, finally, there will be a change.
Related Resources
- Separation of Powers Under the U.S. Constitution (FindLaw's U.S. Constitution)
- Article II – The Executive Branch (FindLaw's U.S. Constitution)
