I always enjoy reading Mike Schmitt's work. One can learn a lot of law, especially international law that way.
There is a reason lawyers tell their criminal clients not to say anything to the police unless they are present:
"President Donald Trump quickly took to Truth Social to announce, “The United States of America has successfully carried out a large scale strike against Venezuela and its leader, President Nicolas Maduro, who has been, along with his wife, captured and flown out of the country." (https://www.justsecurity.org/127981/international-law-venezuela-maduro/)
However, I find it ironic that Schmitt argues that Venezuela has or had a legitimate, responsible government that could grant consent for the United States to execute a law enforcement arrest within Venezuela as follows:
"The United States claims, rightfully so, that Maduro’s presidency is not “legitimate.” However, that has no bearing on this situation. Even though the United States does not recognize the Maduro government as legitimate, international law provides that the relevant officials to grant consent are those of the government that exercises “effective control” over the territory, in this case, officials in the Maduro administration (Tinoco Arbitration, pages 381-82). Obviously, no such consent has been granted."
It seems to me that is a real stretch. First, Tinoco was a dispute between Great Britain and a new government in Costa Rica, over a bank deposit for a contract that had been nullified by laws enacted by the Costa Rican government. The decision cited is a decision by an arbitrator resolving a dispute between two parties, not a court of law.
There is another irony as well. Mike states "this operation, striking Venezuela and abducting its president, is clearly a violation of the prohibition on the use of force in Article 2(4) of the UN Charter. That prohibition is the bedrock rule of the international system that separates the rule of law from anarchy, safeguards small States from their more powerful neighbors, and protects civilians from the devastation of war. " That provision prohibits one state from attacking another state because it violates state sovereignty, just as going into another state to conduct law enforcement activities without consent violates sovereignty.
Let's apply this to Ukraine. Vladimir Putin is an indicted war criminal. Let's assume for a moment that the International Court of Criminal Justice decided to prosecute Putin. Since the ICJ does not have a police force, they ask Germany to go to Moscow, arrest Putin, and bring him back to the Hague so he can be tried.
The Russian government, unsurprisingly, doesn't consent. Germany doesn't go, Putin continues to commit war crimes and a couple of million Russians, Ukrainians, Koreans, Chinese, Africans, Europeans, etc. die. How did this UN Charter article protect civilians?
Would it not have been better for some country to take Putin off the stage and let those people continue to live?
It is unfortunate that 40, or so (possibly 150), people were killed in Venezuela. I put the responsibility for that on Maduro. He was offered alternatives and refused to leave peacefully.
I understand why lawyers go to international law as a first resource to find illegality applicable to Trump's actions. I also understand why it is important for us as individuals and nations to adhere to the rule of law. However, when the law doesn't work, we sometimes have to take action to protect ourselves and those who depend on us.
Chuck, you may be right. However, you view this action as an attack on Venezuela rather than as a law enforcement action with the protection of those enforcing the law.
Maduro occupied the office of President, but was not recognized as President by the United States or other countries due to the flawed 2024 election results that showed that his opponent actually won the election. Therefore, the protection the head of state enjoys does not apply to Maduro, his wife, or his criminal associates.
With regard to law enforcement actions in a foreign country requiring agreement by the foreign nation involved, there was no sovereign to grant agreement since Maduro was head of a criminal enterprise and not the President of Venezuela. In addition, the entire administration, legislature, and judiciary of Venezuela were Maduro-supportive. The Venezuelan government would not agree to have Maduro arrested and removed.
I have no problem with the capture and extraction of Maduro and his wife to stand trial in the U.S. for crimes committed against U.S. citizens. I am extremely concerned about the "running" of the country. Trump seems to favor Ms. Rodriguez because she seems to be able to understand the oil resources of Venezuela, and President Trump does not value human rights to any appreciable degree. One encouraging note is that Trump has designated Secretary Rubio to lead the effort to establish stability in Venezuela. I don't know if Rubio will be able to do that, but speaking fluent Spanish and being very well-informed about the Cuban and Venezuelan population in Florida is a good start.
We will know more tomorrow and in the following weeks. What will the various Maduro-supporting ministers decide to do? What will the military leadership decide to do? What will the Maduro supporters in the general population decide to do? We don't know that for sure. I would be a little more confident if someone other than Gabbard were DNI. Having John Ratcliffe at the CIA is a good thing.
We are not at war with Venezuela, and I hope we don't have to go to war to clean out the Maduro supporters and drug cartels. I don't have a lot to base that hope on, but when the military didn't roll out into the streets, that was a good sign to me.
There are times, like this, when protection of the citizens of the United States takes priority over concerns with compliance with international law that does not directly address the threat at hand. In that situation, Article II of the U.S. Constitution gives the President immense powers to act.
I think Congress has about two weeks to fund the government. I hope they spend some time on that important task rather than spending all of their time in front of cameras talking about what they do or don't like about what Trump has done.
Thanks for the thoughtful comment. On the issue of the need for consent, I though Schmitt et al have the best answer: "The United States claims, rightfully so, that Maduro’s presidency is not “legitimate.” However, that has no bearing on this situation. Even though the United States does not recognize the Maduro government as legitimate, international law provides that the relevant officials to grant consent are those of the government that exercises “effective control” over the territory, in this case, officials in the Maduro administration (Tinoco Arbitration, pages 381-82). Obviously, no such consent has been granted." Similarly they point out that "withdrawing recognition of a government does not remove the personal immunity that the incumbent head of state enjoys under customary international law. "
If this was in fact illegal, what impact does that have on the officers and troops that obeyed an illegal order?
I always enjoy reading Mike Schmitt's work. One can learn a lot of law, especially international law that way.
There is a reason lawyers tell their criminal clients not to say anything to the police unless they are present:
"President Donald Trump quickly took to Truth Social to announce, “The United States of America has successfully carried out a large scale strike against Venezuela and its leader, President Nicolas Maduro, who has been, along with his wife, captured and flown out of the country." (https://www.justsecurity.org/127981/international-law-venezuela-maduro/)
However, I find it ironic that Schmitt argues that Venezuela has or had a legitimate, responsible government that could grant consent for the United States to execute a law enforcement arrest within Venezuela as follows:
"The United States claims, rightfully so, that Maduro’s presidency is not “legitimate.” However, that has no bearing on this situation. Even though the United States does not recognize the Maduro government as legitimate, international law provides that the relevant officials to grant consent are those of the government that exercises “effective control” over the territory, in this case, officials in the Maduro administration (Tinoco Arbitration, pages 381-82). Obviously, no such consent has been granted."
It seems to me that is a real stretch. First, Tinoco was a dispute between Great Britain and a new government in Costa Rica, over a bank deposit for a contract that had been nullified by laws enacted by the Costa Rican government. The decision cited is a decision by an arbitrator resolving a dispute between two parties, not a court of law.
There is another irony as well. Mike states "this operation, striking Venezuela and abducting its president, is clearly a violation of the prohibition on the use of force in Article 2(4) of the UN Charter. That prohibition is the bedrock rule of the international system that separates the rule of law from anarchy, safeguards small States from their more powerful neighbors, and protects civilians from the devastation of war. " That provision prohibits one state from attacking another state because it violates state sovereignty, just as going into another state to conduct law enforcement activities without consent violates sovereignty.
Let's apply this to Ukraine. Vladimir Putin is an indicted war criminal. Let's assume for a moment that the International Court of Criminal Justice decided to prosecute Putin. Since the ICJ does not have a police force, they ask Germany to go to Moscow, arrest Putin, and bring him back to the Hague so he can be tried.
The Russian government, unsurprisingly, doesn't consent. Germany doesn't go, Putin continues to commit war crimes and a couple of million Russians, Ukrainians, Koreans, Chinese, Africans, Europeans, etc. die. How did this UN Charter article protect civilians?
Would it not have been better for some country to take Putin off the stage and let those people continue to live?
It is unfortunate that 40, or so (possibly 150), people were killed in Venezuela. I put the responsibility for that on Maduro. He was offered alternatives and refused to leave peacefully.
I understand why lawyers go to international law as a first resource to find illegality applicable to Trump's actions. I also understand why it is important for us as individuals and nations to adhere to the rule of law. However, when the law doesn't work, we sometimes have to take action to protect ourselves and those who depend on us.
Chuck, you may be right. However, you view this action as an attack on Venezuela rather than as a law enforcement action with the protection of those enforcing the law.
Maduro occupied the office of President, but was not recognized as President by the United States or other countries due to the flawed 2024 election results that showed that his opponent actually won the election. Therefore, the protection the head of state enjoys does not apply to Maduro, his wife, or his criminal associates.
With regard to law enforcement actions in a foreign country requiring agreement by the foreign nation involved, there was no sovereign to grant agreement since Maduro was head of a criminal enterprise and not the President of Venezuela. In addition, the entire administration, legislature, and judiciary of Venezuela were Maduro-supportive. The Venezuelan government would not agree to have Maduro arrested and removed.
I have no problem with the capture and extraction of Maduro and his wife to stand trial in the U.S. for crimes committed against U.S. citizens. I am extremely concerned about the "running" of the country. Trump seems to favor Ms. Rodriguez because she seems to be able to understand the oil resources of Venezuela, and President Trump does not value human rights to any appreciable degree. One encouraging note is that Trump has designated Secretary Rubio to lead the effort to establish stability in Venezuela. I don't know if Rubio will be able to do that, but speaking fluent Spanish and being very well-informed about the Cuban and Venezuelan population in Florida is a good start.
We will know more tomorrow and in the following weeks. What will the various Maduro-supporting ministers decide to do? What will the military leadership decide to do? What will the Maduro supporters in the general population decide to do? We don't know that for sure. I would be a little more confident if someone other than Gabbard were DNI. Having John Ratcliffe at the CIA is a good thing.
We are not at war with Venezuela, and I hope we don't have to go to war to clean out the Maduro supporters and drug cartels. I don't have a lot to base that hope on, but when the military didn't roll out into the streets, that was a good sign to me.
There are times, like this, when protection of the citizens of the United States takes priority over concerns with compliance with international law that does not directly address the threat at hand. In that situation, Article II of the U.S. Constitution gives the President immense powers to act.
I think Congress has about two weeks to fund the government. I hope they spend some time on that important task rather than spending all of their time in front of cameras talking about what they do or don't like about what Trump has done.
Thanks for the thoughtful comment. On the issue of the need for consent, I though Schmitt et al have the best answer: "The United States claims, rightfully so, that Maduro’s presidency is not “legitimate.” However, that has no bearing on this situation. Even though the United States does not recognize the Maduro government as legitimate, international law provides that the relevant officials to grant consent are those of the government that exercises “effective control” over the territory, in this case, officials in the Maduro administration (Tinoco Arbitration, pages 381-82). Obviously, no such consent has been granted." Similarly they point out that "withdrawing recognition of a government does not remove the personal immunity that the incumbent head of state enjoys under customary international law. "