The U.S Army’s Delta Force and the 160th special Operations Aviation regiment under Operation Absolute Resolve, carried out a large-scale strike against Venezuela. The Venezuela’s president Nicolas Maduro and his wife, Cilia Flores, were captured and abducted to the US, raising serious questions about the legality and rationality of the US action. Both the President and his wife have been charged by the US Department of Justice in the New York city under drug trafficking and weapon possession including Narco-Terrorism Conspiracy, Cocaine Importation Conspiracy, Possession of Machineguns and destructive Devices, and the conspiracy to possess machineguns and Destructive Devices against the United States. The president of the United States, Donald Trump, has announced that the US will run affairs of the Venezuela until the moment safe, proper and judicious transition could be ensured in Venezuela.
Operation Absolute Resolve follows on the heels of 35 boat strikes which the US justified based on self defence and a strike on a docking facility in Venezuela alleged to have been managed by drug cartels. President Trump, in part, justifies strike against Venezuela and its leader based on self defence against menace of drug trafficking into the United States.
However, striking Venezuela and abducting its president stand as a direct contravention of prohibition on the use of force under article 2(4) of the UN Charter. This prohibition is the central tenet of international legal order, upholding the boundary between rule of law and anarchy. That prohibition shields small states from their powerful neighbours. The abduction of President Madura and the strike against Venezuela is flagrant violation of prohibition on the use of force except in case of self defense in an armed attack or with the authorization of the U.N. Security Council. As per article 2(4) of the UN Charter, members are advised to refrain from threat or use of force against the political independence of any state or territorial integrity, or in manner that stand inconsistent with the purposes of the United Nations. Venezuela and the United States both are parties to the Charter, making prohibition binding under treaty law. This prohibition against threat or use of force reflects customary international law, binding the United States in a similar fashion. Therefore, consequences of brazenly flouting this rule are likely to extend beyond the forcible ouster of President Maduro.
In prima facie, operation absolute resolve is a breach of international law as it was not backed by the authorization by the UN Security Council under Chapter VII of the U.N Charter and it is not an inherent act of self defense given under Article 51 of the Charter and customary international law. Article 51 of the Charter clearly implicates right to individual or collective self defense in case an armed attack occurred against the member of the United Nations. Venezuela has not engaged in any armed attack against the United States. Therefore, the US response was neither necessary nor proportionate, the two conditions that set tone for self defence. The hurdle has not been crossed clearly by Venezuela. President Trump has earlier clarified strikes, on boats allegedly carrying drugs, in defense of the vital US interests and the collective defense of neighbouring states. These assertions will only make sense in case drug trafficking is charactised as an armed attack against the US. Maduro and other officials of his government have been indicted with involvement in activities of drug cartels. Thought drug trafficking is a criminal activity, yet it is not considered as use of force, hostilities or combat that triggers right to self defense in international law.
The United States in 1989 had faced condemnation from the UN General Assembly for conducting operation against General Manuel Noriega in Panama, deploring intervention in Panama by the US armed forces as the blatant violation of international law. In case of Venezuela, as per the US position of all wrongful uses of force are armed attacks, Venezuela reserved the right to use proportionate and necessary force against the US armed attack and may calls for assistance from other states in collective self defense.
The abduction and ouster of Madura is not only violation of prohibition of use of force but it is a clear infringement in the internal affairs of Venezuela. President Madura’s abduction amounts to coercive act of regime change. President Trump’s threats that incumbent Venezula government must bow to the US desires to run the country or else would invite US wrath, creating concern for international rules-based order regarding Venezula’s sovereignty. As per the State’s domaine reserve, sovereign has the right to decide fate of state without considering international legal obligations.
Moreover, the Trump administration have framed abduction of President Madura in the context of law enforcement. International law permits the prescriptive jurisdiction, power to pass laws in offences that are committed abroad. However, the adjudicative power to enforce these laws rest with the state itself and even in case of another state’s territory, consent of other state is mandatory. Without state consent, action would deem in congruent to territorial sovereignty of state. In case of Venezuela, Trump administration has committed usurpation of inherent government function, law enforcement, which is an exclusive right of state.
Apart from this, customary international law grants President Maduro immunity from foreign enforcement jurisdiction. International court of Justice in its judgement on Arrest Warrant mentions immunity from jurisdiction in other states for high-ranking officials in both criminal and civil matters. The United States did not recognize President Maduro government; yet lack of recognition does not remove personal immunity for a head of state under customary international law. The use of lethal force to exercise enforcement jurisdiction in Venezuela, for ouster of President Madura, is without legal merit according to the UN Human rights Committee. Trump administration has accused Venezuela of stealing US oil assets, and offers the US companies to recover their wrongfully seized assets. President Hugo Chavez converted oil extraction contracts into state-controlled joint ventures in 2007. However, the US cannot seize these oil assets by force. This could be a violation of law of armed conflict for pillaging another state’s natural resources.
President Trump remarks of controlling the affairs of Venezuela are in clear violation of law of occupation outlined in the Fourth Geneva Convention (GCIV). By doing so, President Trump would be held responsible for initiating international armed conflict. Therefore, operation Absolute Resolve against President Maduro and his wife is tantamount to violation of foundational principles of international law. There is no justification of violation of prohibition on use of force in customary international law and there is no room for extraterritorial enforcement of domestic law even against the narco-traffickers in absence of other state’s consent. Not only does the abduction of Maduro is violation of sovereignty of Venezuela but it has also erode long standing rule of immunity ratione personae for high government officials. With this operation, the US has started an armed conflict that would have long standing implications for international legal order, including system that prevents war and ensure states from infringing into prerogatives of other states.
