The capture and transfer of Nicolás Maduro to the United States, without the consent of Venezuela or authorization from the UN Security Council, raises doubts about the legality of the military operation, which experts and some governments qualify as a violation of Venezuelan sovereignty, illegal use of force, and a possible crime of aggression.
The fact that the United States can prosecute a foreign leader in its national courts does not automatically make their capture a legal act, lawyers emphasize, who distinguish between internal criminal jurisdiction and the country’s international obligations.
The Colombian president, Gustavo Petro, warned that “without a legal basis to carry out an action against the sovereignty of Venezuela, the detention becomes a kidnapping” and lamented that the Americans have “destroyed the rule of law worldwide, have bloodily urinated on the sacred sovereignty of all Latin America and the Caribbean.”
Immunity
Incumbent presidents enjoy immunity that protects them from detention and trials by foreign courts while in office.
“As acting head of state, Maduro has immunity,” Marieke de Hoon, a Dutch expert in international law, tells EFE, warning of the risks of questioning that principle based on political recognition.
“It’s a very dangerous path to accept that another state can decide who is really a sitting president and who is entitled to immunity,” he says.
Several countries, including the European Union (EU), maintain that such protection would not be applicable by not recognizing the electoral legitimacy of Maduro, an argument that would set a problematic precedent.
“The EU has made it clear that the elections in Belarus were rigged, but that doesn’t mean we can invade the country and arrest its president,” he adds, referring to Belarusian dictator Alexander Lukashenko.
De Hoon warns that accepting this logic would open the door for any power to determine at will who retains their immunity and who does not.
Immunity can be lifted by the country itself, which a new Government could do
The capture of Maduro: the legal intricacies of a dubious military operation in Venezuela, and that would open the door to a trial without that legal obstacle.
However, in a democratic transition scenario, Caracas might want to try Maduro in its own territory. “They could choose to prosecute him for serious human rights violations and possible crimes against humanity, rather than for drug trafficking charges, which are much more difficult to prove,” he maintains.
Use of Force and Aggression
Another serious aspect of the case is the use of armed force, prohibited by the UN Charter. “There are only two exceptions: authorization from the Security Council or legitimate defense,” explains De Hoon, who points out that “the accusations of drug trafficking do not at all reach the threshold of an armed attack in international law.”
The operation “could be classified as a crime of aggression”, although it specifies that it is an open legal debate, and adds that a possible authorization from the US Congress would not alter that assessment: “That an action is legal under the domestic law of a country does not eliminate its illegality under international law.”
Likewise, the dissemination by US President Donald Trump of an image of Maduro handcuffed, with his eyes and ears covered, aboard a military ship in the Caribbean raises the question of whether the treatment received can be described as “degrading”, given the sensory restriction and symbolic humiliation.
The prohibition of cruel, inhuman or degrading treatment applies regardless of the detainee’s status, and the public exposure of a person deprived of liberty may violate international standards for the protection of human dignity, even in contexts of military custody or ongoing criminal proceedings.
Doubts about the admissibility of the case
On the other hand, the forced transfer of a person to the territory of another State, without judicial cooperation and without complying with recognized extradition processes, raises doubts about the admissibility of the case. “He has been illegally arrested,” says the expert.
There are exceptions to this principle when it comes to serious international crimes (genocide, war crimes, and crimes against humanity), but that does not apply to crimes such as drug trafficking or so-called “narco-terrorism”.
However, in U.S. law, there is an established doctrine according to which the illegality of an arrest abroad does not automatically invalidate criminal jurisdiction.
The case is reminiscent of that of Panamanian leader Manuel Noriega, captured during the invasion of Panama in 1989 and tried in the United States for drug trafficking and organized crime.
In that case, the US Justice system considered that the way the capture was carried out did not impede the criminal process, an approach that did not resolve the fundamental question about the international legality of that operation, but consolidated a practice that is now back at the center of the debate.
