The United States’ Attack Against Venezuela: Might Does Not Make Right

[Milena Sterio is James A. Thomas Distinguished Professor of Law at Cleveland State University College of Law and Managing Director of the Public International Law and Policy Group]

The United States’ attack on Venezuela, as well as the kidnapping of Venezuelan President Nicolas Maduro and his wife, have no justification in international law or international relations. This post will first discuss major international law issues implicated by this attack, including the prohibition on the use of force norm, possible exceptions to the use of force, as well as aggression. Next, this post will offer some thoughts regarding the implications of this attack for the international legal order. This post will conclude that the United States’ attack against Venezuela constitutes both a violation of international law, as well as a major threat to international peace and stability.

International Law Issues: Use of Force, Exceptions, Aggression

The international legal order, as has existed since 1945, clearly prohibits states from intervening in the sovereign affairs of other states. Article 2(4) of the U.N. Charter bans states from using force against the territorial integrity and political independence of other states. Customary international law has developed to embrace the same protection of state sovereignty and the same prohibition on the use of force. More importantly, many would agree that the prohibition on the use of force is today a jus cogens norm of international law, which is generally accepted by all nations as such and to which no derogations are permitted. 

As the International Court of Justice (ICJ) held in the Corfu Channel case, almost 80 years ago, intervention by a powerful state against the sovereignty of another less powerful one has no place in international law, as this would risk reserving intervention “for the most powerful States, and might easily lead to perverting the administration of international justice itself” (p. 34). Moreover, in the same judgment, the ICJ affirmed that the “respect for territorial sovereignty is an essential foundation of international relations” (p. 34). The ICJ has subsequently affirmed its own view on the foundational nature of the prohibition on the use of force under international law. In the Nicaragua v. U.S. case, the ICJ has acknowledged that the prohibition on the use of force is part of customary law (para. 187-190), as it has done in the Wall Advisory Opinion (para. 87). In the Armed Activities on the Territory of the Congo case (DRC v. Uganda), the ICJ referred to Article 2(4) of the U.N. Charter as a “cornerstone of the United Nations Charter” (para. 148).   

While some disagreement has occurred as to the exact content and scope of the prohibition on the use of force norm (regarding its applicability to non-state actors, humanitarian intervention as a possible exception, or the contours of preemptive self-defense), international practice squarely concludes that both treaty and customary law affirm the existence of the norm. Moreover, there is consensus in the international community that the prohibition on the use of force norm is to be construed broadly: that the norm prohibits not only the direct use of force by one state against another (such as the sending of troops into the sovereign territory of a sovereign state), but also the participation of a state in the use of force by another state or by private individuals against another state (for example, use of force by mercenaries or rebels). As the ICJ has stated in the Armed Activities on the Territory of the Congo case, states have a duty to refrain “from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State” and “from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to .. involve a threat or use of force.” (para. 162). In the same case, the ICJ held that training and military support given by a state to a private group to commit acts of violence on the territory of another state is a violation of the prohibition of the use of force principle (paras. 163-165).  

International law recognizes two exceptions to the prohibition on the use of force: Security Council authorization and self-defense under Article 51 of the U.N. Charter. While the former is self-explanatory, the latter merits some clarifications. First, in order for a state to invoke its right to self-defense, it must be under an armed attack or under the threat of an armed attack; the latter implies a sufficiently grave incident of armed force (Nicaragua v. U.S. ICJ case, paras. 195 and 211; Oil Platforms ICJ case, para. 51). Second, any act of self-defense must be necessary and proportionate (Nicaragua v. U.S. ICJ case, para. 194 and 237). Other possible “exceptions” to the prohibition on the use of force norm that have been invoked by scholars and states include the use of force by one state on the territory of another state to rescue the former state’s nationals, as well as humanitarian intervention – a use of force to protect the population of a state from atrocities or other violations committed by its own government. It is possible to argue in favor of the legality of the former, in circumstances where a state launches a narrowly tailored rescue operation to protect the lives of its own nationals, where the territorial state is unable or unwilling to guarantee their safety, and where the intervening state uses force only to effectuate measures strictly necessary for its nationals’ rescue. Some scholars have referred to this as an unwritten rule of customary law. However, this type of use of force remains limited and used only sporadically to respond to particular emergency situations where rescue of a state’s nationals is necessary. Regarding the latter, humanitarian intervention, it is important to note that the majority of scholars (see e.g. here) reject that humanitarian intervention is an exception to the prohibition on the use of force norm, and that humanitarian intervention remains a controversial issue in international law. 

Under international law the commission of prohibited acts of armed force may not only entail the legal responsibility of the State to whom those acts can be attributed, but also the criminal responsibility of individuals who were personally involved in the illegal violence. In fact, a political or military leader who orders the illegal use of force against another sovereign state can be held responsible for the act of aggression, which is defined in Article 8 bis of International Criminal Court’s Rome Statute as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”  Aggression has been considered a supreme international crime, as it is inherently a leadership crime, involving the preparing or carrying out of the act of aggression, by a person in a position to control or direct a state’s political or military action, such as a country president, prime minister, or commander of armed forces. Specific examples of aggressive acts under the ICC’s Rome Statute include an invasion or attack by a state’s armed forces against another state, military occupation or annexation, bombardment of another stats’ territory, blockage of a state’s ports or coasts, or the sending of armed groups or mercenaries into the territory of another state. Notable attacks throughout history recognized as aggression include World War II (the German attack and invasion against Poland as well as other states), Japan’s expansion in Asia (for example, Pearl Harbor), Iraq’s 1990 invasion of Kuwait, as well the Russian invasions of Afghanistan and Ukraine, most recently. 

There is no doubt that the United States has violated international law’s foundational norm on the prohibition of the use of force by attacking Venezuela through air strikes, and by abducting its sovereign leader, Nicolas Maduro. Such acts constitute an armed attack under international law, authorize Venezuela to respond in self-defense, and implicate the international legal responsibility of the United States, exposing it to claims of damages by Venezuela. There is also no doubt that the United States cannot invoke any plausible exceptions to the prohibition on the use of force. The United States’ military actions were not authorized by the Security Council, and the United States has not been under an armed attack or the threat of an armed attack by Venezuela. Even if one were to assume that Maduro is responsible for the smuggling of some drugs toward U.S. markets, such acts would not amount to an armed attack under international law. Moreover, the U.S. is not using force in Venezuela to rescue its nationals, nor is it doing so for humanitarian purposes. In sum, the United States has violated Article 2(4) as well as its customary international law corollary.  

The United States actions in Venezuela also amount to aggression. United States’ forces launched a military attack against Venezuela; the attack constitutes aggression, as it entails the use of armed force by a State (United States) against the sovereignty, territorial integrity or political independence of another State (Venezuela). Moreover, the attack was committed by a state’s armed forces (United States) against another state (Venezuela), which, as noted above, is a specifically enumerated prohibited act under the definition of aggression in the ICC Rome Statute. Finally, as mentioned above, the crime of aggression under the Rome Statute is a leadership crime, as it has to be committed by a person in a position of political or military control within the aggressor state. The attack against Venezuela was ordered by President Trump, a person in a position of both political and military control. United States leaders, including President Trump, in theory, expose themselves to individual criminal responsibility for such acts of aggression. While the prospects of criminal prosecution for aggression of Donald Trump or any other high-ranking members of his regime are incredibly slim, it is relevant to note that under international criminal law, those responsible for acts of aggression remain prosecutable. 

The United States’ Attack Against Venezuela: Implications for the International Legal Order

It is thus relatively easy to conclude that the United States has violated the foundational norms of international law, and that its leaders have exposed themselves to individual criminal responsibility. However, it is perhaps more important to examine the United States actions within the broader context of our existing international legal order. What do these attacks imply for the international legal order as it has existed and evolved in the post-World War II era? 

The most pessimistic view would be one of defeat – that the international legal order has been significantly undermined, and that the future will entail a series of sovereignty-breaching actions by powerful states to which there will be no consequences. While might may not make right, as Oona Hathaway and Scott Shapiro have eloquently written, might will imply unlimited power. It is possible to argue that the recent Russian full-scale invasion of Ukraine – a blatant act of aggression, illegal under international law – has already confirmed the existence of this new international legal order, where Great Powers act with relatively few repercussions and where state sovereignty exists on an uneven and sliding scale. United States’ actions in Venezuela fall in the same category of Might as trumping the sovereignty of a weaker state, and of Great Powers acting with impunity. A more intermediary view may be an emphasis of realism as a foundational theory of international relations – the idea that states act according to their own interests, and abide by the rules of international law when it suits them. According to this view, powerful states would continue to abide by some international law rules in some situations, while resorting to unliteral actions of questionable legality when pursuing their own interests. A third view would be one of significant push back, where other nations condemn the actions of Great Powers and emphasize the necessity of embracing our existing international legal order as a precursor to peace and stability throughout the world. In the wake of Russia’s full-scale invasion of Ukraine, most other nations condemned Russia and emphasized the illegal nature of its actions.

It will be interesting to observe the international community’s reaction to the United States’ actions in Venezuela. As of now, some states have been slow to condemn the United States. Israeli Prime Minister Netanyahu congratulated President Trump and praised his “decisive resolve,” and Argentina similarly referred to U.S. actions in Venezuela as “excellent news for the free world.” French President Macron has emphasized the need for a transition which is “peaceful, democratic, and respectful of the will of the Venezuelan people.”  German Chancellor Merz has stated that the legal assessment of the U.S. operation is complex, and has equally emphasized the need for a legitimate transition in Venezuela. Other states have more specifically criticized or condemned the United States. Spanish Prime Minister Sanchez has stated that Spain would not recognize “an intervention that violates international law and pushes the region toward a horizon of uncertainty and belligerence.” China and Russia have strongly condemned the United States, as have Mexico, Brazil, and Chile. But several states, such as Canada, Bolivia, Paraguay, Peru, the United Kingdom, Ukraine, Denmark, Uruguay, Norway have referred to international law as binding upon all states, and have called for the respect of relevant international law rules. It will be interesting to observe and assess whether this morphs into the prevailing view – the idea that a return to the existing international global order is necessary, as such order, however imperfect it may be, best guards against threats to international peace and stability.  

Regardless of the view that one adopts, it is important to emphasize that the U.S. attack against Venezuela poses a threat to the international legal order, as it underscores a blatant disregard for relevant international law rules and as it opens the door to other similar actions by powerful nations in the future. If the United States can abduct the President of Venezuela, declare that it will administer the country for the foreseeable future and essentially dictate who the next leader of Venezuela will be, what stops Russia from declaring the full annexation of Ukraine (or of another state), China from invading Taiwan, or North Korea from launching a military attack against South Korea? A world without the international legal order would be one where might prevails, and where war and violence, as an exercise of power, imperil peace and stability. Might does not and will not make right.

Photo attribution: Venezuelan President Nicolas Maduro is shown ‘on board the USS Iwo Jima’. Photo from US President Donald Trump on his Truth Social platform