How has the Trump administration justified the invasion of Venezuela and capture of President Nicolás Maduro and his wife?
The Trump administration has claimed that the regime change operation in Venezuela was not an act of war but rather, a law enforcement operation carried out by U.S. armed forces. They point to the criminal indictment for President Maduro and his wife, Cilia Flores, for drug-related offenses. Following the operation, Attorney General Pam Bondi said that Maduro and his wife “will soon face the full wrath of American justice on American soil in American courts.”
The invasion of Venezuela was not a law enforcement matter.
As legal expert and former State Department attorney Brian Finucane says, the claim that this operation, which involved more than 150 military aircraft, drones, and other technology, was a law enforcement operation is “a silly argument.” “Just because you drag along a couple DEA agents doesn’t transform this massive military operation as a whole into a law enforcement operation,” said Finucane.
There are several other reasons why the invasion of Venezuela cannot be characterized as a law enforcement matter:
- No consent was obtained. Any law enforcement operation on another state’s territory requires the consent of that state. The issue of an indictment for President Maduro has no bearing on this requirement. As no consent was obtained here, the operation constitutes a violation of Venezuela’s territorial integrity, in breach of Article 2(4) of the U.N. Charter. While it is accurate to claim that Maduro is not the “legitimate” head of state of Venezuela, he did exercise “effective control” over its territory. Under international law, only the officials who exercise “effective control” over the territory can grant consent for a law enforcement operation.
- Maduro had Head of State immunity. Certain holders of high-ranking office, including the Head of State, Head of Government and Minister for Foreign Affairs, are immune from both civil and criminal prosecution in other states. This includes protection from arrest by other states while in office.
- The use of lethal force in the operation was unlawful. At least 80 people were killed during the attack, including civilians. Law enforcement operations require that deadly force is only used when necessary to prevent an immediate threat of death or grievous bodily injury. These strikes went well beyond this high threshold for harm.
- There is no U.S. self-defense claim. The administration has claimed that airstrikes conducted in Venezuela were defensive in nature, claiming “unit self-defense.” This defense is only available if U.S. actions in the country were lawful in the first place. They were not. This U.S. claim of “defensive” airstrikes in Venezuela is akin to a burglar arguing that they could shoot a homeowner if the homeowner defended themself.
What is the 1973 War Powers Resolution and how can it prevent war against Venezuela?
Congress passed the War Powers Resolution (WPR) in 1973 over concern at President Nixon’s unilateral use of military force in the Vietnam War without Congressional approval. It provides a framework around the constitutional division of war powers between the executive and legislative branches. Section 5(c) of the WPR provides that Congress can pass a resolution directing the president to remove U.S. forces from “hostilities” that have not been authorized by Congress. As Congress has not authorized any military action in Venezuela, it has the authority under the WPR to pass a resolution to end this invasion.
