Maduro’s Capture Was Not a Legal “Law Enforcement Operation”

Photo by roger kuzna on Unsplash

The international legal implications regarding the U.S. capture of Venezuelan president Nicolás Maduro are profound. I want to clarify just one misconception that appears to be growing in importance. The Trump Administration has downplayed the military aspects of the operation by asserting that the U.S. military was simply aiding a law enforcement effort to serve an arrest warrant pursuant to U.S. criminal indictments. Before the Security Council today, U.S. Ambassador Mike Waltz described the U.S. operation as “a law enforcement operation in furtherance of lawful indictments.” But labeling the capture of Maduro as a law enforcement operation does not add any legal legitimacy to what the United States did in Venezuela.

The reframing may be an effort to blur two distinct concepts: the reach of U.S. laws and the reach of U.S. law enforcement. Under international law, a country’s laws may apply outside its borders, but its unilateral power to enforce those laws is strictly territorial.

For example, U.S. criminal laws can reach conduct by U.S. nationals anywhere in the world (“active personality jurisdiction”), some harms to U.S. nationals that occur anywhere in the world (“passive personality jurisdiction”), conduct outside the United States that causes harms within the country (“effects jurisdiction”), and certain threats to fundamental U.S. sovereign interests (like counterfeiting and espionage) regardless of where the actual conduct takes place (“protective principle jurisdiction”). U.S. prosecutors also use the federal wire fraud statute against defendants whose conduct and resulting harms occur entirely outside the United States but whose criminal dealings involve transfers of U.S. dollars through U.S. bank accounts (which provides a hook for good ol’ “territorial jurisdiction”).

But whether U.S. law applies to a defendant’s conduct is a separate question from whether the United States can enforce that law against a defendant. Under customary international law, a sovereign can only exercise enforcement jurisdiction in the territory of another sovereign if it has that sovereign’s consent. This hardline limiting enforcement powers to a sovereign’s own territory is clear and well established.

The U.S. indictment against Maduro may be valid under both U.S. and international law. And now that he is in the United States, he can be prosecuted before a U.S. court regardless of the legality of his capture. But labeling his capture a “law enforcement operation” does not make it legal or legitimate under international law.