On Saturday morning the President Donald Trump announced that the US military, in cooperation with American law enforcement agencies, carried out a strike in Venezuela, capturing the country's president, Nicolas Maduroand his wife Celia Flores. Maduro has been indicted in federal court in New York for his role in what the administration claims is a narco-terrorism plot. At a news conference later Saturday, Trump said: “We are going to run this country until we can have a safe, proper and reasonable transition.” He also said he was not concerned about “boots on the ground,” referring to the American military presence.
On Saturday morning, I spoke by phone with Una Hathaway, a professor at Yale Law School and director of its Center for Global Legal Issues. She is also the president-elect of the American Society of International Law. During our conversation, which has been edited for length and clarity, we discussed whether Maduro can legally be tried in U.S. courts, the long history of U.S. intervention in Latin America, and what makes Trump's decision so unique and dangerous.
What is the legal basis for such an action?
Unfortunately, I don't think there is a legal basis for what we are seeing in Venezuela. Of course, the administration is going to make legal arguments, but all the arguments I've heard so far don't hold water. None of them really justify what the president appears to have ordered done in Venezuela.
What arguments have you heard from people in the administration or their supporters?
We are still in the early stages, but the arguments that have been made in the lead-up to this full-scale effort have largely focused on self-defense against drug traffickers who they claim are supported or perhaps even directed by Maduro and his administration. The problem is that this doesn't really work according to international law. The UN Charter provides for the right of self-defense, which allows states to use force in self-defense against armed attack. But it was never used for anything like drug trafficking. So, all these boat strikes that have happened in the last couple of months, justified as self-defense, do not fall under anything that could be considered self-defense under international law. Self-defense usually requires an armed attack. And they seem to be making a similar argument here to justify Maduro's takeover and use of force on land in Venezuela.
What do you think about the claim that many people in America die from drug overdoses and that this is a form of self-defense?
Look, when the UN Charter was written eighty years ago, it included a critical prohibition on the use of force by states. States are not allowed to decide for themselves whether they want to use force against other states. This was intended to reinforce this relatively new idea at the time that states could not simply go to war whenever they wanted. In the old world, in the world before the UN Charter, it would have been okay to use force if you felt that the drug trade was harming you, and you could find a legal justification for it. But the whole point of the UN charter was essentially to say, “We are no longer going to fight for these reasons.”
The Charter included a very narrow exception regarding the use of self-defense. The idea was that we would certainly not have to wait for the Security Council to authorize the use of force to defend ourselves if we were attacked. But this was supposed to be a narrow exception.
If drug trafficking is a reasonable justification, then a number of possible arguments can be made that essentially mean that self-defense is no longer a true exception. This is a new rule. Why couldn't you make the same argument for infectious diseases? Bird flu came from the country, and therefore we have a legal justification for the use of military force. Once we start down this path, the idea that there are any limitations evaporates. I mean, yeah, drugs are terrible. Are they causing loss of life in the United States? Absolutely. There is no doubt about it. This is a terrible disaster, but the idea that drugs are coming from a country justifies an invasion and a change of administration in that country, essentially removing any restrictions on the use of force.
What other arguments have you heard from the administration?
One of the claims is that Maduro is not actually the leader of Venezuela. This is what they have been saying for a long time: that he is not the legitimate leader of the country, that they do not recognize him as the head of state. And this could justify his arrest and indictment, although the use of military force to do so would not be justified. I don't know how they got to the argument that they could use military force in Venezuela.
What exactly do you mean by “capture and charge” him? Elections have taken place in Venezuela. These were not free elections. He declared himself president, and he is widely recognized as the president of Venezuela, but, again, he was not freely elected by the people of Venezuela. What could justify his accusation in an American court?
I should retreat. In this military operation, at least one of the key goals appears to have been the capture of Maduro and his wife, who are facing criminal charges in the Southern District of New York. The only way to do this is to claim that he is not the head of state, since heads of state are given immunity and heads of state are not subject to criminal prosecution in the domestic courts of other states. This is simply a basic rule of international law. The United States has long recognized this.
So you weren't saying that the fact that he rigged the election itself meant that you could capture him and try him in an American court, but rather that if he weren't the head of state, that would at least allow him to be tried in an American court, which usually doesn't happen?
Right. So unless he is actually the head of state, then head of state immunity does not apply. And this ties into the broader issue of the use of military force, since they could argue (though I haven't seen this yet) that since he is not the legitimate head of state, they somehow have the legal right to use force to capture him. But, again, these two concepts are not related. The problem is that simply saying he is not the head of state does not justify the use of military force in Venezuela.
