How Should International Law Be Considered in the Case of Venezuela's Maduro?

The last couple of days have seen a sorry spectacle of some very good international law experts holding up that piece of paper known as the UN Charter and wagging their finger at US President Donald Trump, saying the only basis for using force on the territory of another state is self-defense. But as soon as humanity or human security norms began to take on a status equal to those protecting the territorial integrity of states—a process brilliantly laid out by Ruti G. Teitel in Humanity’s Law—simply shouting out article 2(4) of the charter was bound to ring hollow.  

In the 2003 case of Bosnian Serb detention camp commander Dragan Nikolić, the appellate chamber of the International Criminal Tribunal for the Former Yugoslavia pronounced a new approach to the abduction of international criminals, which was in fact foreshadowed decades before with the capture of Holocaust perpetrator Adolf Eichmann: One must determine whether “the damage caused to international justice by not apprehending [those] accused of serious violations of international humanitarian law is comparatively  higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory.”  

Instead of trying to prop up a crumbling Westphalian formalism around the charter, international lawyers could more usefully apply this balancing test to the Venezuela operation. While it isn’t clear that the balance would come out in favor of the Trump administration’s actions, it is also not clear whether Venezuelan President Nicolás Maduro’s alleged crimes fall short of the required gravity, or that the injury to Venezuela’s sovereignty—at least so far—has been excessive.

Within the framework of the International Criminal Court (ICC), sitting heads of state or government do not enjoy immunity, which explains the indictments of Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu, and others. Why then should they have immunity under customary international law?  

In its case law, the International Court of Justice (ICJ) has placed emphasis on the difference between immunity and domestic and international prosecution. But this is a poor surrogate for the essential question: Can we expect that a foreign leader will get due process in the domestic courts of another state? The Trump administration has sent Maduro to New York, where the federal courts have frequently stood up to the Trump administration, rather than cowering before it.  

Even if the ascent of humanity or human security as fundamental international law values need to be carefully considered before simply condemning the abduction of Maduro, the claim that the United States is entitled to use force to address economic injuries to its nationals—one which Trump and US Secretary of State Marco Rubio seem to be making—unravels more than a century of international law and takes us back to gunboat diplomacy. What had replaced gunboat diplomacy? Ultimately, investment arbitration—through which the international law clique has awarded billions of dollars to multinationals against poor countries and, in some cases, crippled the capacity of those countries to pay for basic social services. Gunboat diplomacy can cost lives, but we should not kid ourselves; bankrupting the treasuries of poor countries does as well. While one form of imperialism is roundly condemned by the international law mainstream, the other is touted as “rule of law.” But the latter has, after all, made more than a few international lawyers very wealthy through their roles as arbitrator or legal counsel.  

Considering the humanity law transformation of international legal norms, one might have thought that the community of jurists would have spent more effort developing a set of acceptable, principled justifications for breaching territorial sovereignty on human security grounds (as they did in effect in the Nikolić case). Some jurists, including Anne-Marie Slaughter, have tried to develop a doctrine of humanitarian intervention that responds to liberal sensibilities and hopes of the moment. But most of the crowd has held to the refrain that only self-defense can justify a use of force that is an apparent violation of the charter.

Resort to force is a grave act, for sure, and the spirit of the charter lives on in that such actions are subject to heightened scrutiny of not only states but to global public opinion. As Trump admitted himself during his press conference on Saturday, the Venezuela operation was risky, and it could easily have gone bad. It still could go bad. Charter purism is not helpful when debating the risks and costs—as well as the potential benefits—of intervention. We need a strong but flexible normative framework that considers consequences, not only principles. The burden of proof the Trump administration must meet is high because, despite good intentions, many such interventions have gone south in the past, resulting in less, not more, human security and even more violent and vicious regimes, if not chaos and failed states. But prissy charter violation talk evades that debate, rather than informing it usefully.  

In a world where Israel bombs whatever country in the region it feels like on a given day without much of an effort at justification and where regional powers can, with effective impunity, fuel with arms and money atrocities in Sudan on an even far greater scale than Israel in Gaza, making Trump the major villain in the breakdown in international law orthodoxy seems at least half blind. The last real victory of the UN framework was in fact because of, not despite, Trump. A Security Council resolution entrenching a path forward on Gaza, and indeed Palestine more generally, got through unvetoed. How many of the international jurists now demonizing Trump as the destroyer of the charter system cheered the passage of that resolution?    

We need to think about an approach to international law’s control of the use of force that is true to the moral and power political realities of today’s world. While Hugo Grotius, often considered the founder of modern international law, is frequently disdained these days as an apologist for the use of force, there is something to be said for a return to the Grotian sensibility—where legal, moral, and prudential restraints and justifications concerning the use of force are all considered together, fluidly, in evaluating the actions of states and their effects on the interests of humanity.