The Capture Of Nicolás Maduro And International Law: Sovereignty, Force, And The Limits Of Power

Introduction: An Extraordinary Act with Ordinary Legal Rules

The reported capture of Venezuelan President Nicolás Maduro by United States forces represents one of the most legally provocative episodes in contemporary international relations. While framed by United States authorities as a law-enforcement action grounded in domestic criminal indictments, the operation directly implicates core principles of international law, most notably the prohibition on the use of force, respect for territorial sovereignty, and the personal immunity of sitting heads of state.

This article critically examines the legality of such an operation under international law, assesses whether it could amount to an act of war, and outlines the legal avenues theoretically available to Venezuela.

The Prohibition on the Use of Force and State Sovereignty

Article 2(4) of the UN Charter

Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of another state.¹ Any armed incursion by U.S. forces into Venezuelan territory, particularly for the purpose of apprehending the sitting president, engages this prohibition as a matter of prima facie illegality.

The International Court of Justice (ICJ) has repeatedly emphasized that this norm reflects customary international law, binding on all states irrespective of treaty participation.²

Absence of Recognized Exceptions

International law permits only narrow exceptions to the prohibition on force:

• Self-defense under Article 51, triggered by an armed attack;³
• Security Council authorization under Chapter VII of the UN Charter;⁴
• Consent or invitation by the territorial state.⁵

None of these exceptions appear clearly applicable. The ICJ has held that activities such as support for armed groups or transnational criminal conduct do not, without more, constitute an “armed attack” justifying self-defense.⁶ No publicly known Security Council authorization exists, and Venezuela has not consented to the operation.

Head of State Immunity and Criminal Jurisdiction

Personal Immunity (Immunity Ratione Personae)

Customary international law accords sitting heads of state absolute personal immunity from the criminal jurisdiction of foreign states. This principle was authoritatively affirmed by the ICJ in Arrest Warrant (Democratic Republic of the Congo v. Belgium), where the Court held that such immunity applies even in cases involving allegations of serious international crimes.⁷

Capture Versus Prosecution

While some domestic legal systems permit prosecution regardless of how a defendant is brought before the court,⁸ international law distinguishes between jurisdiction to try and legality of capture. An unlawful seizure on foreign territory may engage international responsibility even if domestic proceedings continue.

Law Enforcement or Extraordinary Rendition?

International law favours extradition and mutual legal assistance as the lawful means of securing suspects abroad.⁹ Unilateral seizure by armed forces without territorial consent resembles extraordinary rendition, a practice widely criticized for violating sovereignty and procedural safeguards.¹⁰

The characterization of such an operation as “law enforcement” does not alter its legal nature when military force is employed extraterritorially.

Does the Capture Constitute an Act of War?

International law does not require a formal declaration for a situation to qualify as an international armed conflict. Under Common Article 2 of the Geneva Conventions, any resort to armed force between states may suffice.¹¹

The forcible capture of a sitting head of state on foreign soil represents a profound interference with a state’s political independence. While not every unlawful use of force escalates into war, such an operation could reasonably be characterized as an act of aggression under customary international law and the definition reflected in UN General Assembly Resolution 3314.¹²

An unlawful use of force does not, by itself, necessarily amount to war. In practice, states often avoid framing such incidents as acts of war to contain escalation and manage political fallout. Even so, the operation may reasonably be classified as an act of aggression under customary international law, especially if viewed within a wider pattern of coercive conduct rather than as a singular arrest operation.

Precedents and Their Limits

The United States’ capture of Manuel Noriega after the 1989 invasion of Panama is often cited as a historical parallel. While Noriega was later prosecuted in U.S. courts, the invasion itself was widely condemned by the international community. The UN General Assembly explicitly criticized the intervention as a violation of Panama’s sovereignty, making clear that later criminal trials could not make the original use of force lawful.¹³

International law makes an important distinction between what states actually do, their actions, policies, or “state behaviour”, and what they are legally allowed to do. Just because a state acts in a certain way does not automatically make it lawful. For a practice to become customary international law, two conditions must be met:

1. The practice must be general and consistent, many states must do it repeatedly over time.
2. States must act with opinio juris, meaning they must behave that way because they believe it is legally required or permitted, not simply out of convenience, politics, or force of habit.¹⁴

Isolated or controversial actions, especially those that provoke protests or condemnation, fail both tests. They are not widespread, and the objections show that states do not recognize the conduct as lawful. In other words, even if a powerful state acts unilaterally, repeated criticism and formal protests prevent its behaviour from forming binding customary law.

For this reason, earlier cases of unilateral or forcible capture cannot be treated as legal precedent for similar actions today. Invoking past interventions to justify the extraterritorial seizure of a sitting head of state is therefore a political argument, not a legal one. Violations of international law do not create new rights, nor do they weaken the foundational rules of sovereignty and the prohibition on the use of force.

What Legal Options Are Available to Venezuela?

International Court of Justice

Venezuela could seek to institute proceedings before the ICJ alleging violations of sovereignty and the prohibition on the use of force. Jurisdictional barriers, particularly the requirement of U.S. consent, pose a significant obstacle.¹⁵

United Nations Security Council and General Assembly

Venezuela may pursue remedies through the Security Council or, failing that, the General Assembly under the “Uniting for Peace” procedure.¹⁶ While largely political, such processes shape legal narratives and state practice.

Countermeasures Under State Responsibility

Under the Articles on Responsibility of States for Internationally Wrongful Acts, Venezuela could adopt proportionate countermeasures short of force, including diplomatic or economic measures.¹⁷

Regional and Multilateral Forums

Engagement with regional organizations and multilateral bodies may not yield enforcement but contributes to international condemnation and norm-setting.

Conclusion: Power, Precedent, and the Fragility of Legal Constraints

From a doctrinal perspective, the capture of Nicolás Maduro is difficult to reconcile with the UN Charter, the law of state immunity, and established principles governing jurisdiction and enforcement. While domestic courts may proceed with prosecution, the international legality of the operation remains deeply contested.

The broader danger lies not only in this single incident, but in the precedent it risks setting: a gradual erosion of legal restraints on the use of force, replaced by unilateral assertions of power. If such practices become normalized, the distinction between law enforcement and armed coercion may increasingly collapse, weakening the international legal order itself.

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References:

1. UN Charter, art. 2(4). ↩︎
2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment, 1986 ICJ Rep 14, ¶ 190. ↩︎
3. UN Charter, art. 51. ↩︎
4. UN Charter, arts. 39–42. ↩︎
5. Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, 2005 ICJ Rep 168, ¶ 42. ↩︎
6. Nicaragua v. United States, supra note 2, ¶¶ 191–195. ↩︎
7. Nicaragua v. United States, supra note 2, ¶¶ 191–195. ↩︎
8. Nicaragua v. United States, supra note 2, ¶¶ 191–195. ↩︎
9. M. Cherif Bassiouni, International Extradition: United States Law and Practice (6th ed. 2014). ↩︎
10. UN Human Rights Council, Report on Extraordinary Rendition, UN Doc. A/HRC/13/42 (2010). ↩︎
11. Geneva Conventions of 1949, Common Article 2. ↩︎
12. UN General Assembly Res. 3314 (XXIX), Definition of Aggression (1974). ↩︎
13. UN General Assembly Res. 44/240 (1989). ↩︎
14. Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 2012 ICJ Rep 99, ¶ 77. ↩︎
15. ICJ Statute, art. 36. ↩︎
16. UN General Assembly Res. 377A (V) (Uniting for Peace). ↩︎
17. International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, arts. 49–54 (2001). ↩︎