Flexing U.S. Power in Venezuela

0:00This is simply, under international law standards, a use of force by the United States against Venezuela, which is categorically prohibited.

0:14This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they've been made available. Today, we are going to be talking about yet another story ripped from the headlines, and I'm lucky to have my colleague Alan Weiner here with me. Alan is an alum of the law school. He's an international legal scholar, and he's got more directorates than the CIA. He's director of the Stanford Program in International Law and Comparative Law.

0:50He's the director of the Stanford Humanitarian Program, and he's the director of the Stanford Center on International Conflict and Negotiation. Before he came back to Stanford, Alan had a long and distinguished career in the State Department, both in the office of the legal advisor of the State Department in Washington, And then as legal counselor at the U.S. Embassy in The Hague, which is an extremely important position for anyone who's interested in international law, because so much of international law takes place in The Hague. But today we're not going to be talking about Holland, or at least we haven't yet invaded Holland, so we won't be talking about that right now.

1:27But we are going to be talking about the recent developments in Venezuela. So thanks so much for being on the show, Alan. It's a pleasure to be with you, Pam. Yeah. So as I understand it, the sort of claim is that we went to Venezuela to arrest Nicolas Maduro, who's the head of Venezuela, the president of Venezuela. We went to arrest him and his wife. So we sent FBI agents to arrest them on the theory that we can arrest people who violated U.S. law wherever we find them in the world. But in order for those FBI agents to be able to actually effectuate the arrest, we had to send in military troops as well.

2:10Am I getting that right? That is the basic theory, at least to the extent that it's been articulated. I mean, look, we have to think about this in terms of two bodies of law. Number one is domestic law, and number two is international law. And I think what you have described is basically the domestic law basis. We have an indictment against Maduro. The FBI, according to an OLC opinion from back in 1989 issued by Bill Barr, who later became the attorney general in the Trump One administration, concluded that the FBI can arrest people internationally without regard to whether that's a violation of international law.

2:52And so when they're going and do that, they need some safety net. They need a protection. So that's the theory. And then there are separate questions about the division of authority, responsibility for the use of force internationally as between the Congress and the president. There are some constitutional questions there as well. But those don't really address the international law question. I mean, whatever theory we might have about whether it's permissible under U.S. law for the FBI to go to Venezuela to arrest the president and for us to send along a military escort to make sure they're treated safely, international law does not recognize that at all.

3:27This is simply, under international law standards, a use of force by the United States against Venezuela, which is categorically prohibited by Article 2.4 of the UN. So let's start with the domestic and then we'll get to the international. And the domestic, you mentioned there was an OLC opinion. And for those of our listeners who don't know what that means, the Office of Legal Counsel is a part of the Department of Justice. that's essentially the executive branch's lawyers who give it opinions about constitutional questions. They're famous for opinions on whether the president should sign a particular piece of legislation or whether that piece of legislation is unconstitutional.

4:06They're supposed to read executive orders and the like and decide whether they are in the correct form and whether they're legal. And one of the things that's really interesting is this administration seems to rely much less on the Office of Legal Counsel, on legal advisors in the State Department, on legal advisors to the military, particularly the judge advocates general. I think that's true. I mean, I think to a certain extent, this actually began this not entirely novel phenomenon. You know, we had questions about the use of force come up quite prominently in the Obama administration with respect to the use of force against Libya around the time that we were using force there to try to safeguard civilians against atrocities carried out by the Qaddafi regime.

4:55There was a question about whether the War Powers Resolution applied to our use of force. The OLC actually took the position that the U.S. was introducing military forces into hostilities and the War Powers Resolution applied. We can talk about that later. The point is, in response to your question, the president, who was himself a lawyer, decided like, no, I'm going to go a different direction and relied on some guides, which admittedly did come from lawyers in the State Department. I don't think we have a terribly robust legal defense here. I think it will perhaps continue to evolve as the administration is pressed to offer more accounts about why it used force.

5:35It may be that people will let them go to the lawyers and say, we need an answer. But, you know, we haven't seen too much of a demand for an accounting for the legal justification for the U.S. strikes against Iran late last year. I mean, that was a deeply problematic use of force from an international law standpoint. And we just have not seen the kind of articulation of a legal theory that is really most common with respect to uses of force that have been characteristic of previous administrations. Yeah. I mean, one of the things that's interesting about the international in particular is who has the right to bring this stuff up?

6:11That is, you know, the War Powers Resolution, which is a domestic piece of law, the idea is Congress will do something about this. It's not as if the people who are being bombed can come into court and say anything, right? Right. And to the extent anybody has ever tried to bring a challenge arguing that the president had violated the War Powers Resolution, there's a long list. Our former colleague Tom Tom Campbell was one of the people who brought a claim arguing that the president had violated the War of Powers Resolution in carrying out the bombing campaign in Kosovo in 1999. Courts have routinely dismissed those on prudential or political question kinds of grounds.

6:51So they are largely unenforceable. And Maduro is likely to have no claim at all. I mean, because the Kerr-Frisbee doctrine essentially says that the fact that you were kidnapped and brought into a jurisdiction doesn't deprive the court of hearing a criminal case against you. Right. So with respect to the question of whether or not there was a violation of Venezuela's rights, if it was the victim of illegal aggression by the United States, you know, international law, this is something I have to explain to my students. International law functions quite differently than at least a well-functioning and a well-developed domestic legal system.

7:29They're not courts that ensure compulsory jurisdiction over all disputes. There's no police force out there to enforce the law. Now, it turns out we like that, states like that, especially powerful states like that, because we want to maximize our sovereign discretion, the space within which we can act. So most of international law, there are exceptions to this, but most of international law is enforced through horizontal enforcement, self-help measures. If you look at the way the international community has responded to Russia's invasion of Ukraine, for instance, heavy sanctions have been imposed on Russia.

8:03Its assets have been frozen. It's been isolated from international organizations. But obviously, if you're a powerful country like Russia, you can withstand these pressures. And certainly there is no reasonable prospect of horizontal enforcement that would affect U.S. conduct. Now, one of the things that people have not focused on too much, this is an interesting wrinkle in this story, is that Venezuela, you said we wouldn't talk about the Hague. We'll talk about the Hague a little bit because it turns out Venezuela is a party to the Rome Statute of the International Criminal Court. And so that means that the International Criminal Court has jurisdiction over against acts of aggression carried out on Venezuelan territory.

8:44So it will be very interesting to see whether there will be an investigation opened up by the ICC to look into this. Of course, the ICC knows that if it does, it will then be essentially declaring war on the United States, which is already hostile to the ICC because of its investigations of Israeli officials with respect to the war in Gaza. Yeah, so there's potentially some enforcement against individuals there also, right? I mean, the ICC could, I guess, charge an FBI agent with kidnapping. Could charge Donald Trump with aggression. Yeah, it was charged Donald Trump. But their likelihood of being able to actually arrest him and get him there is lower than with a lot of other heads of state who've been all there.

9:30That's exactly right. And, you know, it's interesting, you know, Putin has been indicted by the ICC. This now affects his travel options. He recently went to Mongolia, which is a state party to the ICC. They had assured him that they wouldn't arrest him. But when the G20 was held, the G20 meeting was held in South Africa last year, Putin didn't go because I think the South Africans could not assure him that they would not have a legal obligation to arrest him. I mean, if there were an indictment against Donald Trump, it would put, you know, European allies who are strong supporters of the ICC in an incredibly difficult position.

10:07when Donald Trump comes to the NATO summit in Brussels, will the Belgians actually arrest him and hand him over to the ICC? It's sort of a mind boggling question. And I think the ICC will be very, very cautious about proceeding with Trump because it knows that it would raise a potential existential struggle for it with the Americans. So let's turn to the international law issue, which is about the illegal, unlawful, under international law, use of force against the state of Venezuela, not against Maduro himself, right? That's correct. I mean, the obligations here arise from the United Nations Charter, which basically say that states, you know, are prohibited from using force in their international relations.

10:53So that is the law regulating the rights and obligations of states inter se, as between them. Now, there are other international law issues. I mean, the question is, if there has been a violation of Venezuela's sovereignty, would that give rise to any rights that Maduro himself could raise in U.S. courts? You've already indicated that in the U.S. we have a doctrine that says, well, if we arrest you illegally here in the United States, the Fourth Amendment means that we can't actually assert jurisdiction over you. But that does not apply under U.S. doctrine to people who are illegally abducted from abroad.

11:33There's a narrow exception to that, the Toscanino standard, where a court will say, well, if the circumstances under which you were brought into U.S. jurisdiction shock the conscience, We might decline on kind of prudential grounds as a court to assert jurisdiction over your case. We saw this, you know, with the invasion of Panama and the arrest of General Noriega in 1989 under Operation Just Cause, or what my wife at the time used to refer to as Operation Just Cause. We should say she's still your wife, but it was at the time that you replied to it. She referred to it as Operation Just Cause.

12:12I didn't want people to think things had gone south. My wife is grateful for this. And the same issues arose. Noriega alleged that he had been illegally arrested, tried to use that as a defense to his prosecution. He was prosecuted for drug crimes in U.S. courts. There's also a legal issue that may affect the status of individuals, And that is whether or not Maduro has immunity from U.S. courts as the head of state. And so there is a general expectation or understanding under international law that heads of states, foreign ministers, maybe secretaries of defense of countries are not subject to the jurisdiction of other states.

12:57The problem here, of course, is that for Maduro, the problem is that the United States, at least since 2019, has not recognized him as the head of state. And courts typically don't make their own judgment about who the head of state is. They defer to the executive branch view on this. So I think it is unlikely that Maduro will be able to avail himself of any international law principles as a defense to his prosecution in U.S. courts. And, you know, Venezuela can try to rely on horizontal enforcement to try to rally international support to put pressure on the United States. But I think the United States is likely to be able to withstand that.

13:38So again, we are facing what I often describe for my students, Pam, as the underdeveloped or immature nature of international law, which just doesn't function in the same way that a well-developed domestic society legal system does. And does international law have anything to say about going forward, kind of how we treat Venezuela? I mean, we're hearing all sorts of different things from the administration. On the one hand, you have the president saying things like, we're going to go run Venezuela. On the other hand, you have people like Secretary of State Rubio, who seem to be suggesting, no, what we'll do is we'll threaten various kinds of economic pressures that will lead the Venezuelans themselves to do what we want.

14:19I mean, is there any international law? Does the international law have anything to say about that? It does. So in the first instance, when you've waged war against a country and you really want to run the country, there's a well-settled set of legal norms about this. And this is a law of occupation, right? After World War II, when we defeated Japan and Germany, we actually ran those countries, right? We established a governing civilian bureaucracy and a security apparatus. And that was consistent with international law? And international law recognizes the law of occupation going back to the 1907 Hague Convention.

14:55And then in the 1949 Geneva Conventions, there are elaborate, detailed rules about what you can and can't do when you are an occupying force. But to be an occupying force or an occupant, you actually have to have de facto control of the territory. And so that manifestly is not the case here. Trump has talked about putting boots on the ground. But to be to occupy Venezuela, right, would require the deployment of 100 ,000 troops. And so we're obviously talking about something else. So what are we talking about? I don't know. We've heard President Trump say that the vice president, Delce, in Venezuela is going to be more cooperating with us.

15:34And if she isn't, it'll be worse than what's happened. Now, this is clearly a threat. Yeah. And I mean, I was kind of staggered. I read the interview, the report of the interview in The Atlantic, and I was kind of staggered by the idea we would do something worse to her, even though we haven't made any claim about her violating any U.S. law. So this, you know, the international law prohibits not only the use of force, but also the threat of force. At least if the circumstances in which you used force, if you carried out your threat would be unlawful, then it's unlawful to threaten that. hey, Czechoslovakia, I'm really loving the Sudetenland.

16:12It would be great if you gave it to me. And if you don't, I'll destroy Prague. Okay, that's an impermissible threat. I think what President Trump has said is that if she doesn't go along with us, what will happen to her is worse. Sounds to me like a threat of force. Now, in international relations, countries all the time try to use influence against one another. And we try to use diplomatic techniques and economic techniques. And so influence and pressure is common. There's a point at which it crosses the line and is seen as violating the prohibition on unlawful intervention in the internal affairs of another state.

16:54And exactly where that line is drawn is obviously contested, ambiguous. It's a standard, not a bright line rule. But I think this is what remains to be seen. We have been trying to use coercive techniques, sanctions, diplomatic isolation in the organization of the American states against the Maduro regime for many, many years now. And it didn't produce the outcomes that we wanted, which makes me suggest, which suggests to me that what the Trump administration is threatening is actually another military action, including a possible assassination. Right. When I hear. It's hard to think of what's worse than being hauled off.

17:33to the Eastern District and then facing indictment and facing life in prison in a maximum security facility in the United States. How many worse things could you threaten? Nice country you got here. It'd be a shame if something happened to it. Nice job you have of being president. It would be a shame if something happened to me. So it does sound to me like a threat of force, which international law also prohibits. And some level of intervention in Venezuela's internal affairs would cross the line of the prohibition on internal intervention. And the only real constraint on President Trump doing all of this are political constraints inside the United States.

18:14Is that accurate? I think that, I mean, there will be, we'll see how the international community will respond to this. You know, the president has managed, I think, to intimidate and kowtow lots of leaders around the world. I think if any other country had done something like this, the condemnation from European states would have been loud and emphatic and unqualified. And, you know, I was speaking to a journalist from Deutsche Welle, a German publication, who said that, you know, the German prime minister had said, like, the legal issues here are quite complicated. And I thought, no, they're really not complicated at all.

18:53They're actually quite simple. This is an illegal use of force against Venezuela. So So the first form of constraint or check would be international political and diplomatic pressure. I think there will be real limits to the extent to which countries will be willing to take on the United States. And the second response, ultimately, at least in a democracy, is exactly what you said, is our domestic political response. And to what extent will the American people say, we don't like Nicolas Maduro. He was a dictator. He stole an election. He perpetrated human rights abuses against his people. But we actually don't think that it is appropriate for the United States to go around and to simply invade countries in the pursuit of our national interest.

19:43It's why it's interesting to me, Pam, that the administration has not made more of a human rights argument. Yeah, I mean, that's also the interesting thing is if the claim is we had to go in to Venezuela because Nicolas Maduro was a dictator who was engaged in various kinds of narcotics dealing and conspiracy and like, and we had to take him out because of the injuries that the United States is suffering from that and look at how he treats his own people. You would think we would talk more about that and less about how we're going to send U.S. oil companies in to rebuild the oil infrastructure and make millions of dollars of profit for the shareholders.

20:22I agree with you. And, you know, there is a contested, I mean, I think it's really not so contested. I think it's a rejected doctrine of international law called humanitarian intervention. Normally, states are prohibited from using force in their international relations. There are two exceptions. Number one is if you sustain an armed attack, you have the right to use force in self-defense. Maybe if there's an imminent threat of attack, you also have the right to use force in self-defense. Or if the Security Council authorizes the use of force, that's permitted. There's another doctrine out there.

20:53People have sometimes advocated for the notion of a right of humanitarian intervention, which is to say states can use force to basically prevent governments from slaughtering their own populations. We in the United States government don't want to adopt that as a legal justification for the use of force. We are afraid that it will be subject to extravagant claims, to error and abuse. Vladimir Putin has invoked kind of humanitarian intervention arguments as his justification for one of his justifications for the invasion of Ukraine. He has to stop the Ukrainians from committing atrocities against Russian-speaking Ukrainians in Ukraine, even though there are no such atrocities.

21:31But we made those kinds of arguments in 1999 when we used force against Kosovo. And that led to a 78-day-long bombing campaign. It was a quite extensive military operation. No boots on the ground, but an extensive military operation. We had Security Council authorization, but we used force in 2013 to protect civilians in Libya from the abuses by the Qaddafi government, which ended up leading to the overthrow of Qaddafi. And it has always been kind of a powerful justification for the use of force to say that we're rescuing lives, we're saving people. And so, again, I share your incredulity that we think that it's going to be attractive to the American public to think, you know, we are making Venezuela safe for Exxon as a justification for this use of force.

22:23So we'll see, you know, in general, there's always an initial rally around the flag phenomenon when a country uses force. I will say, from all I've been able to tell, the military executed this operation in an incredibly impressive and sophisticated manner. And so it's a technical, you know, kind of a tour de force. But I wonder whether or not in the long term, both people on the right who have a more isolationist tendency and say, wait a minute, you promise us no more forever wars and you've become increasingly aggressive attacking Iran, attacking Venezuela and people on the left who are skeptical about the projection of American force abroad.

23:07So I think, yeah, to long meandering answer, the real enforcement tool ultimately is going to be a domestic political response. And I assume that from some of the things that both the president and Secretary Rubio have said, that they don't think this all stops with Venezuela. They have some more places on their list, most notably Cuba. Yeah, Cuba's on the list. You know, Colombia is on the list because the Colombian president, who's a leftist, has been critical of Trump and has alienated him. And of course, then we have, you know, our long, I mean, ever since you and I were children, Pam, I know we used to dream of doing Christmas in Greenland, right?

23:54But, you know, Greenland is also, you know, I think, in the crosshairs. You know, I used to teach in my in my I used to teach a freshman class and I used to kind of try to tease out that people actually care about the reasons why country use countries use force, that the moral basis for a use of force matters to whether or not we want to support it or not. And I used to begin with an absurd hypothetical, you know, which involved us, you know, using force to invade Panama to reclaim the Panama Canal. Right. Well, I can't use that as an absurd hypothetical anymore because it's, you know, I think somebody is drawing up operational plans for this in the in the Pentagon.

24:40And I do think that's maybe, in the short term, it's very worrying that the president, if he sees this operation as having been a success, and he's carried out two military operations back to back, Iran and Venezuela, which I think at least tactically, he is judging to have been a success. And will that embolden him to want to pursue more operations like this? The broader concern that I have is, you know, because international law doesn't have a police force to enforce it. There's a quote from our colleague, Harold Koh, who says, you know, international law is almost never enforced, but almost always obeyed.

25:24Harold Lou Henkin, the late kind of distinguished international law professor, said almost all nations obey almost all of their international legal obligations almost all of the time. And that's because we enter into these agreements or these commitments. I'm a voluntarist. I'm a positivist. I basically believe states are bound under international law only by those rules that they accept. We accept these restraints on our sovereignty, on our freedom to act in order to gain the reciprocal benefits of other countries similarly accepting restraints on their conduct. Yeah. And that brings me to maybe the last thing for us to talk about, which is the so-called Don Roe Doctrine that President Trump has announced.

26:11The famous Monroe Doctrine was a doctrine of the early 19th century. It said essentially that the Western Hemisphere was not a place that Europe should interfere with. that the Americas were for the Americas, which of course meant the United States would have a major role. And I think if the United States says we're entitled to do all of this in the Caribbean, and this also includes obviously things like the bombing campaign we've had against alleged narcotics ships and the like, what does this tell the Chinese about their entitlements or the Russians about their entitlements, the Chinese with regard, obviously, to Taiwan and the Russians with regard to Ukraine now and presumably other parts of the former Soviet Union later?