The Abduction of a President: Shock, Illegality, and the Implications for Human Rights Law

[Diana Kearney is a former Visiting Instructor of Clinical Law at Cardozo Law School Human Rights & Atrocity Prevention Clinic]

The Trump administration’s abduction of Venezuelan President Nicolas Maduro and subsequent announcement that the U.S. intends to run the nation is the administration’s most shocking move to date– a tall order for a President that has generated a steady torrent of economic chaos, racial oppression, and democratic upheavals in its short tenure. Removing a sitting head of state is astonishing in its own right. But the ripple effects are far more pernicious: the incursion exacerbates the deteriorating humanitarian crisis for a nation already teetering on the brink; leaves a dangerous power vacuum that introduces “rapid destabilization rather than transition;” shatters U.S. credibility as it maneuvers to convince other superpowers not to invade their own neighbors; and threatens the global order. 

The incursion is also illegal under U.S. law. Deploying military force without consulting Congress violates separation of powers and limits on executive authority. As Senator Andy Kim observes, the administration “rejected our Constitutionally required approval process” by failing to secure a declaration of war from Congress, seek congressional approval under an Authorization of Use of Military Force, or notify Congress per the War Powers Act (while the administration purports to have met the 48-hour notification requirement in the War Powers Act, it failed to provide prior notification as required for particularly sensitive operations. Characterizing an act of war as “law enforcement actions” in no way obviates the constitutional requirements of alerting Congress to a military strike.) And while careful scrutiny of domestic law lies beyond the scope of this article, the abduction also likely implicates the Fifth Amendment’s due process requirements; the federal kidnapping statute (18 U.S.C. § 1201); and the federal extradition statute (18 U.S.C. §§ 3181–3196), which prohibits transferring prisoners without a formal international agreement, which the U.S. and Venezuela do not have.

Perhaps even more consequential are the glaring violations of international law. The attack violates the prohibition against the use of force found in Article 2(4) of the UN Charter and customary international law. Few breaches could be more disruptive to the status quo: this principle has served as 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.”  The attack similarly violates longstanding tenets of sovereignty, the ICCPR’s prohibition on arbitrary arrest (Art. 9(1)), the right to life in light of the unlawful killings of the eighty-plus Venezuelan and Cuban nationals, and head of state immunity (which, ironically, Trump has fought to secure for himself before a kowtowing Supreme Court). 

While the brazen illegality of the invasion itself is disturbing, the administration’s contorted legal justification is particularly alarming. The administration points to much-derided 1989 memo written by William Barr claiming the executive may ignore the UN Charter as a “non-self-executing” treaty, reasoning that since these treaties do not create a private right of action in federal court, they are not enforceable. This pretext is expertly unraveled by Ryan Goodman, who rightly points out that non-self-executing treaties are indeed legally binding on the President – whether a treaty obligation is justiciable in court is irrelevant to the question of the agreement’s binding or hortatory nature. As Goodman notes, many federal statutes similarly do not create a private right of action. This conclusion is shared by the U.S. Library of Congress which likewise observes that “the self-execution doctrine…does not affect the United States’ obligation to comply with the provision under international law.” The administration’s conclusion that treaty law “doesn’t count” in this instance also conveniently forgets Article VI Clause 2 of the Constitution, which affirms that treaties are the “supreme Law of the Land.” (What’s more, the prohibition on aggression has crystallized into customary international law, meaning that even if we were to accept the specious argument that the UN Charter is irrelevant, the U.S. would be bound regardless.)

Why does the administration’s justification matter? Accepting this flawed logic is so dangerous because most U.S. treaties are non-self-executing in whole or in part; as such, normalizing this justification would have sweeping implications for a significant percentage of the country’s international agreements. Applying the Barr-concocted, Trump-adopted rationale to our treaty obligations would vanish critical human rights protections overnight: the International Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, and the Convention Against Torture (CAT) are all non-self-executing treaties (note that certain obligations outlined by CAT have been implemented in domestic regulations regardless: CAT protections appear in the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA); the U.S. Criminal Code (18 U.S.C. 2340-2340A); and Department of Homeland Security, Department of Justice, and State Department regulations 8 C.F.R. §§ 208.16-208.18). While some non-self-executing treaties like the Genocide Convention and the Refugee Convention have been incorporated into domestic legislation (see the Genocide statute 18 U.S.C. § 1091 and the Immigration and Nationality Act, respectively), this appears to be the exception rather than the rule. Adopting Barr’s theory would mean the Trump administration is no longer bound by these crucial instruments – a terrifying thought given the administration’s penchant for using violence and consolidating power. Other vital agreements outside of the human rights sphere, like the Treaty on the Non-Proliferation of Nuclear Weapons and the Chemical Weapons Convention, are similarly non-self-executing. To argue that non-self-executing treaties do not bind on the executive could render them functionally meaningless, eviscerating protections for human rights, human safety, and global security. 

The possible domino effects appear equally foreboding. If left unchallenged, other governments may be tempted to make similar claims to avoid their human rights and other legal obligations they deem inconvenient. The International Covenant on Economic, Social, and Cultural Rights; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination Against Women; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; and the Convention on the Rights of Persons with Disabilities are all non-self-executing in whole or in part. If dualist states embrace Barr’s toxic logic, crucial protections could disappear worldwide.   

The implications of the administration’s (mis)use of the UN Charter run deeper still. The administration has adopted an erratic approach to international law, simultaneously rejecting Article 4(2)’s validity when it would constrain aggressive military action, while invoking Article 51’s right to self-defense to justify armed attacks against sailors allegedly working for drug cartels – including deliberately targeting civilians that clearly pose no threat to the United States. The administration, it seems, would use international law as a smokescreen to justify murder: as law professor Rebecca Igner explains, “[i]t is manifestly unlawful to kill someone who’s been shipwrecked.” Such a cynical application of international law corrodes the system. The utility of law is premised upon the legitimacy of its use, and such open hypocrisy by the world’s most powerful nation undermines the very foundation of international law.  

As political analysts at the Brookings Institute conclude, “[t]he grievous damage that Trump’s illegal attack on Venezuela has inflicted on international law and multilateral cooperation is perhaps the least tangible but most consequential of outcomes.” And perhaps the cost is not as intangible as we may like to think: Professor Oona Hathaway notes, without hyperbole, that the “blatant assault on the international legal order…. threatens to end an era of historic peace and return us to a world in which might makes right. The cost will be paid in human lives.” Few will shed tears for a dictator who has maintained his grip on power through torture, extrajudicial killings, and economic policies that have pushed his population past the brink of starvation. But the trail of destruction left in Maduro’s wake is, for the present analysis, irrelevant. We must push back not only on the Trump administration’s violation of Venezuela’s sovereignty, but on the dangerous legal theory being advanced to justify aggression.