Was the US attack on Venezuela and seizure of Maduro legal?
The United States' attack on Venezuela, which led to the seizure of Venezuelan President Nicolas Maduro and his wife Cilia Flores, violated both US and international laws, several legal experts have told Middle East Eye.
Venezuela's left-wing leader and his wife were seized from their home in Caracas on Saturday after a brazen series of attacks - involving more than 150 US aircraft - resulted in two key military installations being bombed and a reported 100 people killed.
US President Donald Trump and his administration have maintained that their assault was legally justified and have referred to the violation of Venezuelan airspace, the ensuing air strikes and the seizure of Maduro as a law enforcement operation rather than a military attack.
Trump has also justified Maduro's seizure as a way for the US to seize "stolen" oil from Venezuela, and has promised that the US would "run" Venezuela for the foreseeable future while American energy companies take control of the country's rich oil reserves.
Currently standing trial in New York on drugs, weapons and "narco-terrorism" charges, Maduro, 63, has insisted he is "still president" of Venezuela, and told a federal judge on Tuesday that he had been illegally "captured" and was "a prisoner of war".
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Venezuela's neighbours, including regional heavyweight Brazil, have condemned both the attacks and Maduro's forcible ouster, and pleaded with the international community, in particular the UN, to respond.
UN experts have also condemned the attacks saying they "set a dangerous precedent" and represent a "grave, manifest and deliberate violation of the most fundamental principles of international law".
J Wells Dixon, a senior staff attorney at the Center for Constitutional Rights (CCR), told MEE that despite the US' insistence that the attacks were justified, they violated both US as well as international laws.
"There's no credible basis under US law for an invasion of Venezuela" Dixon said.
'There’s no credible basis under US law for an invasion of Venezuela'
- J Wells Dixon, Center for Consitutional Rights
"There's no authority to do that, and there's no other legal basis that would purport to provide that kind of authority," he said.
"For example, the government of Venezuela did not launch an armed attack on the US, which would give a US president legal authority to repel the attack," he added.
Dixon said that the Trump administration's attack was also unlikely to have received the blessing of congress.
The US Senate is expected to vote on a war powers resolution on Thursday that seeks to prevent Trump from taking further military actions against Venezuela.
Eugene R Fidell, a senior research scholar at Yale Law School, with expertise in military law, emphatically said that the US attack was illegal.
"My own view is that a declaration of war was required, and since Congress enacted no declaration of war beforehand, this was an unconstitutional act under American law," he said.
Fidell said he couldn’t find anything in the US Constitution that would provide grounds for bombing Venezuela.
"We were not attacked," he said. "Drug smuggling is not an invasion. This was not an act of self-defence. Only Congress has the right to declare war, and they didn't do so".
"The attack is illegal under both US law and international law".
Long history of US interventions
Meanwhile, Ingrid Brunk, a scholar of international law at Vanderbilt Law and the Helen Strong Curry chair in international law, claimed that Trump's capture of Maduro did not violate the Constitution because decades of historical precedent exist.
She said it was crucial to look at how Trump approached the attack on Venezuela, which she believed came from a "law enforcement" rather than a "war" angle.
While the US Constitution vests Congress with the power to declare war, and the president with the power as commander in chief, she said, adding that it has raised difficult questions of when force is used abroad.
"Does the president need congressional authorisation or not? Whatever the framers of the Constitution meant in the 18th century, there have been a very large number of uses of force by presidents in both administrations that have not sought congressional authorisation in that way".
She also said that Trump's decision not to seek authorisation from congress was not new, especially when it came to a "one-off kind of surgical strike," citing President Barack Obama’s strikes on Libya in 2011 as one such example.
"Go in, take out Maduro and bring him back for law enforcement purposes. You might argue - and many scholars do - that this is something for which he should have sought congressional authorisation. But there is a very long history of presidents taking these actions without congressional authorisation."
Brunk said that the grounds of discourse would change if the US puts troops on the ground. Then it would move from a matter of law enforcement to military involvement. The introduction of a long-term military engagement in Venezuela would raise questions regarding the War Powers Act.
"I think this is why we haven't heard much from President Trump about putting boots on the ground," she said. "This is classic US practice. We bomb, and this limits US casualties and political pushback in the United States".
Abduction and US trial
Dixon from the CCR said the seizure of both Maduro and his wife violated both domestic and international law.
"There is precedent for the US to apprehend and arrest individuals overseas and bring them to the US for criminal prosecution with consent from the foreign country," he said.
The US and Venezuela do have an extradition treaty in place since 1922, which is protective of Venezuelan nationals. But non-nationals have been extradited to the US in the past. The US did not seek extradition or consent through any legal process regarding the Maduros.
"It does not appear that there was consent here. Venezuela did not consent, in any respect, to what happened," he added.
'The mere fact that he (Maduro) was kidnapped and illegally brought to the US will not prevent the criminal trial from going forward'
- Ingrid Brunk, scholar of international law
Brunk, however, said that the US court system would not be concerned with how Maduro and Flores were brought into the country, as there was, once again, a historical precedent.
"There is a widely accepted doctrine that allows criminal trials to go forward, even if the defendant was kidnapped or otherwise brought illegally into the US," she said.
Brunk said this was not unique to the US and recounted how Israelis abducted Nazi criminal Adolf Eichmann from Argentina and took him to Israel for trial.
"Basically, the courts said it was illegal to kidnap him (Eichmann) and bring him here, but now that he's here, it doesn't mean we have to stop the trial. The mere fact that he (Maduro) was kidnapped and illegally brought to the US will not prevent the criminal trial from going forward".
Brunk added that the US was not alone in how it handles cases like this.
Fidell agreed that the US can proceed with the trial.
"Under current law, it doesn't matter whether the Maduros were kidnapped or given a free plane ride in terms of whether they can be tried in federal court. US law doesn’t make an issue of how we acquire an arrest. Courts have not prevented prosecutions based on that".
Can the US prosecute a head of state?
Fidell said he expected more contention around whether Maduro will enjoy immunity as a head of state.
"I expect that to be litigated in the federal court, before trial. The Trump administration's position, obviously, is that he doesn't have immunity [because they don’t view him as the head of state]."
Meanwhile, Dixon said it is illegal to try a sitting head of state in the US, as heads of state normally enjoy immunity from arrest and prosecution under international law.
Brunk said that a legal precedent for Maduro’s case is that of Manuel Noriega, who was an unelected leader of Panama. After the US invaded Panama in 1989, Noriega was brought to the US and indicted for drug smuggling and money laundering, among other charges.
In court, Noriega argued that he had immunity from trial as a head of state, while the US courts argued they did not recognise him as the country's leader. Noriega was, however, considered a prisoner of war under the Geneva Conventions.
Noriega was then tried, convicted and served out a term in a US prison before being extradited to France and then ultimately back to Panama.
Brunk said that if Maduro could prove he is a prisoner of war, he would be given protection under the Geneva Conventions, which are binding in the US.
"The US is not going to characterise this as a war. They're characterising it as a law enforcement action," Brunk said, but the US have so far avoided putting troops on the ground," she said.
"I think this is Trump's calculus here. If he can control the Venezuelan government to his satisfaction without using any additional force, it doesn't look like a war," she added.
The Monroe Doctrine
Since the attack, the Trump administration has been repeatedly invoking the Monroe Doctrine, which established the western hemisphere as under the US sphere of influence.
"This is the western hemisphere. This is where we live and we're not going to allow the western hemisphere to be a base of operation for adversaries, competitors, and rivals of the United States," US Secretary of State Marco Rubio said in a TV interview during the weekend.
'The claim that the United States is reviving the Monroe Doctrine amounts to a declaration that the Trump Administration intends to ignore the UN Charter'
- Oona Hathawa, Yale Center for Global Legal Challenges
But Fidell said the Monroe Doctrine had no legal teeth, and it is "simply a statement of policy, which no one other than the United States accepts".
"It's like using the phrase manifest destiny, that it was inevitable that the US would expand to the Pacific Ocean. That's a nice narrative, but it's not a statement of law".
Oona Hathaway, a professor of international law at Yale, director of the institution's Center for Global Legal Challenges, and president-elect of the American Society of International Law, said that it was "troubling" that the US was "looking to revive the Monroe Doctrine".
"The claim that the United States is reviving the Monroe Doctrine amounts to a declaration that the Trump Administration intends to ignore the United Nations Charter," Hathaway said.
"That should be troubling to anyone who cares about peace and security in the world," she added.
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