Concerns Raised Over Legality of Maduro's Seizure

TEMPO.CO, Jakarta - Venezuelan president Nicolas Maduro has been captured as part of a US military operation and brought to New York to face a series of charges related to drug trafficking and weapons possession conspiracies. 

The Trump administration’s unilateral action to extract Maduro from his country — an operation dubbed "Operation Absolute Resolve" — reportedly involved the use of 150 aircraft to strike locations in northern Venezuela, including the capital Caracas. Some reports suggest 40 people have died as a result of the US strikes.

The operation has been both welcomed and condemned by observers.

While many foreign policy and international law experts have said the removal of Maduro — widely seen as an illegitimate leader following a 2024 election that independent observers said he lost, and a record of persecuting his opponents — is good, there remain doubts over the legality of the US' actions.

A long build up to regime change

Trump's first administration in 2020 labelled Maduro a "narco-terrorist" and accused him of heading a loosely defined collective of Venezuelan officials who have prospered from the drug trade.

In his second term, seemingly friendlier early relations that saw the Maduro regime assist the repatriation of Venezuelans amid Trump’s hardline immigration stance quickly flipped into conflict, with the US targeting what it alleged were Venezuelan drug-running boats in the Caribbean. Trump also declared the drug fentanyl a weapon of mass destruction.

But little evidence to support these claims has been given.

Some suggested the Caribbean campaign and US naval build-up was designed to pressure the surrender of Venezuela’s oil reserves, and Trump's comments made since Maduro's capture add weight to this.

But the prospect of regime change became more evident following a recent, wide-ranging interview with Trump’s chief of staff Susie Wiles.

It's the manner of the regime change that has prompted condemnation, including from China. The Chinese Foreign Ministry accused the US of "hegemonic acts" against Venezuela and called the siezure of Maduro and his wife "a clear violation of international law."

Trump's move likely breach of core international principle

The US led the establishment of the United Nations and, in 1945, signed its foundational document, the UN Charter, which underpins many principles of international law, including territorial integrity.

Scholars have pointed to Article 2(4) of that charter to suggest the US’ actions violated international law. That article forbids the "threat or use of force against the territorial integrity or political independence" of another country.

"This was a use of force," said Marko Milanovic, Director of Global Law at the University of Reading in the UK.

"If you send 150 airplanes into another state, if you start bombing its air defenses, if you kidnap its president, if you kill dozens of people, that is a use of force in the sense of Article 2, paragraph 4."

There are exceptions, the most notable being authorization by the UN Security Council can to proceed with military action against another country. However, this approval wasn’t sought prior to Maduro’s seizure.

Another is self-defence, though given the US' outsized military strength relative to Venezuela, it is again unclear how this argument would hold up.

Even labelling fentanyl as a WMD, branding Maduro a narco-terrorist and charging him with conspiracy against the US is unlikely to be accepted by any international standard as a rationale for self-defence.

“Self-defense requires the existence of an armed attack," Milanovic told DW. "Simply allowing the exports of drugs from one country to another is not an armed attack and has never been treated as an armed attack."

Maduro's capture likely side-stepped domestic US law

Using the US military to attack a foreign country, as conceded by Wiles in her Vanity Fair interview, would also require congressional approval.

That approval was not secured.

At a press conference lead by Trump, US Secretary of State Marco Rubio appeared to cast the operation as one of law enforcement, rather than a war declaration, saying "… at its core, this was an arrest of two indicted fugitives of American justice and the Department of War supported the Department of Justice in that job."

Jeremy Paul, an expert on constitutional law at Northeastern University in the US, said Rubio's argument was "plausible," but subsequent statements by the president about the US "running" Venezuela and its oil fields "completely undermined" that rationale.

"We've apprehended him, he's now in custody, he's going to be tried in New York. That should be the end, right? There'd be no further reason for anything to be happening," Paul told DW.

"Everything that President Trump said about the oil fields, about running the country, about working with various Venezuelan officials … All of that completely undermines the rationale that that Secretary of State Rubio put forward. It's totally inconsistent."

Like other legal and political observers who have commented since the removal of Maduro, Paul stressed the illegitimacy of the former Venezuelan president, but is concerned by the process of his capture.

"The current administration's failure to follow either domestic law by consulting with the Congress or international law is troubling, and I hope that cooler heads will prevail," Paul said.

A precedent 36 years in the making

Maduro’s capture occurred exactly 36 years after the US under President George H.W. Bush ousted Panama’s dictator Manuel Noriega and brought him to Florida to face racketeering, drug smuggling and money laundering charges.

That moment in history parallels the Venezuelan situation having also come in the aftermath of a disputed election. Bush's operation was also condemned for breaching international law and failing to garner congressional approval.

It looks likely that a key US law will again allow the trial of a foreign leader on American soil. The Ker-Frisbie Doctrine is a long-standing, albeit controversial legal principle that enables a defendant to be prosecuted in the US legal system, irrespective of the manner in which they were apprehended.

"Ultimately Maduro will have lawyers, so that's something that's unquestionable, he'll have a lawyer all the way through," said Paul. "And ultimately that legal issue, if he's convicted, will probably be appealed all the way up to the Supreme Court."

Read: What's Next for Venezuela Oil After US Ousts Maduro?

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