On the surface, abducting a Head of State is a piratical act eschewed by States. A Head of State enjoys absolute immunity from foreign criminal jurisdiction, known as ratione personae, at least till the term of office concludes. The International Court of Justice was clear enough about this principle in the 2002 Arrest Warrant Case, holding that high ranked government officials such as a foreign minister are granted immunity under customary international law to enable the effective performance of their functions “on behalf of their respective States.”
That said, international law has been modified on this score by the jurisdiction of the International Criminal Court, whose founding Rome Statute stipulates that the official standing of a serving Head of State is no exemption from criminal responsibility. The effectiveness of this principle lies in the cooperation of State parties, something distinctly unforthcoming regarding certain serving leaders. (Israeli Prime Minister Benjamin Netanyahu springs to mind.)
US domestic law puts all of this to side with the highwayman logic of the Ker-Frisbie doctrine. Decided in Ker v Illinois in 1886, the decision overlooks the way, lawful or otherwise, a defendant is apprehended, even if outside the jurisdiction. Once American soil is reached, judicial proceedings can commence without challenge. The US Department of Justice has further attempted to puncture ancient notions of diplomatic immunity by recategorizing (how else?) the standing of a leader – in this case Venezuela’s Nicolás Maduro – as nothing more than a narco-terrorist. Maduro was seized, explains US Secretary of State Marco Rubio, as part of a law enforcement operation.
In addition to being a violation of the leadership immunity principle, the January 3 kidnapping of Maduro and his wife by US forces was an audacious breach of the sovereignty guarantee under Article 2 of the United Nations Charter. Operation Absolute Resolve involved 150 aircraft, strikes on military infrastructure including surface-to-air missile and communication systems, and various depots. The security fantasists from the White House to the State Department treated Venezuela as not merely a dangerous narco-state but one hosting undesirable foreign elements, but it has never posed a military threat to the US homeland.
In the face of such unalloyed aggression – a crime against peace, if you will – the response from Washington’s allies has been feeble and worse. This is made all the more grotesque for their claims to purity when it comes to defending Western civilisation against the perceived ogres and bogeymen of international relations: Russia and China.
From the United Kingdom, Prime Minister Keir Starmer could not have been clearer about his contempt for the processes of international law. “The UK has long supported a transition of power in Venezuela,” he declared in his January 3 statement. “We regarded Maduro as an illegitimate President and we shed no tears about the end of his regime.” Having given a coating of legitimacy to the banditry of the Trump administration, he could still claim to “support” international law. His government would “discuss the evolving situation with US counterparts in the days ahead as we seek a safe and peaceful transition to a legitimate government that reflects the will of the Venezuelan people.” Certainly, judging from this, the will of President Donald Trump.
An official statement from the European Union released by its high representative, Kaja Kallas, was even more mealy-mouthed: “The EU has repeatedly stated that Nicolás Maduro lacks the legitimacy of a democratically elected president and has advocated for a Venezuelan-led peaceful transition to democracy in the country, respectful of its sovereignty.”
The tactic here involves soiling the subject before paying some false respect for such concepts as democracy and sovereignty. We can do without Maduro, and won’t miss him, but make some modest effort to respect some cardinal virtues when disposing of him. All those involved should show “restraint […] to avoid escalation and to ensure a peaceful resolution of the crisis.”
The arrogance of this position is underlined by the concession to diplomacy’s importance and the role of dialogue, when there has been no dialogue or diplomacy to speak of. “We are in close contact with the United States, as well as regional and international partners to support and facilitate dialogue with all parties involved, leading to a negotiated, democratic, inclusive and peaceful resolution to the crisis, led by Venezuelans.”
From the Canadian Minister for Foreign Affairs, Anita Anand, there was not a whisper of Maduro’s abduction, or the US breach of the UN Charter. The phantom conveniently called the Venezuelan People stood as an alibi for lawbreaking, for they had a “desire to live in a peaceful and democratic society.” And there was the familiar call “on all parties to exercise restraint and uphold international law”, marvellous piffle in the face of illegal abductions.
Australian Prime Minister Anthony Albanese did little to improve upon the weak formula in his shabby statement, similarly skipping over the violations of the UN Charter and Maduro’s abduction. “We urge all parties to support dialogue and diplomacy in order to secure regional stability and prevent escalation.” A bland acknowledgement of “the need to respect democratic principles, human rights and fundamental freedoms” is made, along with the risible reference to supporting “international law and a peaceful, democratic transition in Venezuela that reflects the will of the Venezuelan people.”
Who, then, are these idealised people? Presumably these Venezuelans are the vetted ones, sanitised with the seal of approval, untainted by silly notions of revolution and the poverty reduction measures initially implemented by the government of Hugo Chávez. But if EU officials and other states friendly to Washington thought that a Venezuelan appropriately representative of the People’s Will might be the opposition figure and travesty of a Nobel laureate, María Corina Machado, Trump had other ideas. To date the Maduro loyalist Vice President Delcy Rodríguez, has caught his fickle eye. “I think,” he said with blunt machismo, “it would be very tough for [Machado] to be the leader. She doesn’t have the support within or the respect within the country. She’s a very nice woman, but she doesn’t have the respect”. The Venezuelan people’s choice will be, putting democracy and dialogue to one side, the same as Trump’s.
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