US' seizure of Maduro has no legal basis

The United States' seizure of Venezuela's President Nicolás Maduro marks a dramatic escalation in Washington's long-standing practice of using force in Latin America to apprehend foreign leaders under domestic criminal indictments. While extraordinary, this episode is not without precedent. In Dec 1989, the United States invaded Panama to arrest General Manuel Noriega on drug trafficking charges, forcibly transferring him to the United States for trial.

Both cases involve the unilateral apprehension of a sitting head of state accused by Washington of involvement in narcotics trafficking. They raise fundamental questions of international law, particularly concerning the legality of the use of force against a sovereign state and the scope of immunity traditionally accorded to heads of state. Examined through the lenses of the United Nations Charter and the doctrine of state immunity, the seizure of Maduro stands on legally indefensible ground.

Article 2(4) of the United Nations Charter obliges all member states to refrain from the threat or use of force against the territorial integrity or political independence of any state. A military operation to capture a foreign head of state on that state's own territory constitutes a clear violation of this core principal. In this respect, the United States' action represents a breach of Venezuela's sovereignty and of the Charter itself.

Washington has attempted to justify its conduct by invoking self-defense, claiming that Maduro's alleged "Cartel of the Suns" constitutes a threat to US national security and even characterizing cocaine trafficking as a form of "weapon of mass destruction". However, under Article 51 of the UN Charter, self-defense is permitted only in response to an actual armed attack. Venezuela has launched no such attack against the US. By expanding the concept of self-defense to encompass transnational drug trafficking, the US has stretched the doctrine beyond recognition.

The invocation of "weapons of mass destruction" further underscores the weakness of this argument. While widely used in political discourse, WMD is not a term authoritatively defined by treaty or customary international law. Recasting narcotics as WMD exploits this legal ambiguity and runs counter to the principle of good faith enshrined in the Vienna Convention on the Law of Treaties.

The US might argue that Maduro's alleged crimes — such as torture or crimes against humanity — trigger universal jurisdiction, allowing any state to arrest perpetrators regardless of nationality or location. International law does recognize universal jurisdiction for certain grave offenses. However, the modern legal framework for prosecuting such crimes is centered on the International Criminal Court.

Under the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression — but only where states are unable or unwilling to prosecute. Crucially, the Court may exercise jurisdiction over a head of state only through established legal mechanisms, including referral by the UN Security Council under Article 13(b). Unilateral military abduction is not among them.

While the Rome Statute significantly erodes traditional head-of-state immunity —most notably through Article 27 — it does so within an institutional and legal framework designed to constrain power, not license its arbitrary use. The appropriate course for the United States, had it wished to pursue accountability, would have been to seek multilateral authorization through the Security Council and the ICC.

Instead, Washington has chosen to operate outside that system. The United States does not recognize the jurisdiction of the ICC and formally withdrew from the Rome Statute framework in 2002. In recent years, it has gone further, imposing sanctions on ICC judges and prosecutors. This posture underscores a deeper contradiction: the United States insists on global accountability for others while exempting itself from the very institutions designed to deliver it.

Given the United States' veto power, meaningful consequences through the Security Council are virtually impossible. If such actions carry no international cost, the erosion of the UN-centered order will accelerate, inviting comparisons to the League of Nations in the 1930s — an institution rendered impotent by the unilateralism of its most powerful members.

Resorting to military invasion and the arrest of a sitting head of state, the United States has effectively abandoned the rules-based international order it long claimed to uphold, replacing it with a Hobbesian security culture characterized by coercion, zero-sum logic, and jungle law.

The author is a scholar at Brussels Research Institute on Development, Governance and Empowerment, through law, Vrije Universiteit Brussel, Belgium.

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