Flexing U.S. Power in Venezuela

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

Pam Karlan: This 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 Allen Weiner here with me.

Allen is an alum of the law school, he’s an international legal scholar and he has more directorates than the CIA. He’s director of the Stanford Program and International Law and Comparative Law. He’s the director of the Stanford Humanitarian Program and he is the director of the Stanford Center on International Conflict and Negotiation. Before he came back to Stanford, Allen 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. But we are going to be talking about the recent developments in Venezuela. Thanks so much for being on the show, Allen.

Allen Weiner: It’s a pleasure to be with you, Pam.

Pam Karlan: Yes, as I understand it, the claim is that we went to Venezuela to arrest Nicolás 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.

Am I getting that right?

Allen Weiner: That is the basic theory, at least to the extent that it’s been articulated. 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 what you have described is basically the domestic law basis.

We have an indictment against Maduro. The FBI, according to an OLC [Office of Legal Counsel] opinion from back in 1989, issued by Bill Barr, who later became the Attorney General in the Trump I administration, concluded that the FBI can arrest people internationally without regard to whether that’s a violation of international law. And so, when they go to do that, they need some safety net, they need 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.

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. This 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 ….

Pam Karlan: Let’s start with the domestic and then we’ll get to the international. 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 branches 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. They’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.

Allen Weiner: I think that’s true. I think to a certain extent this actually began … this is not entirely novel phenomenon. 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 by the Gaddafi regime. There 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 “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. It may be that people will let them go to the lawyers and say we didn’t answer. 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. 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.

Pam Karlan: One of the things that’s interesting about the international [lens] in particular is, who has the right to bring this stuff up? That is, 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?

Allen Weiner: 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 Campbell, was one of the people who brought a claim arguing that the president had violated the War Powers Resolution in carrying out the bombing campaign in Kosovo in 1999. Courts have routinely dismissed those on prudential or political question kinds of ground, so they’re largely unenforceable.

Pam Karlan: And Maduro is likely to have no claim at all. Because the Ker-Frisbie 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.

Allen Weiner: With respect to the question of whether or not there was a violation of Venezuela’s rights—that is, if it was the victim of an illegal aggression by the United States—international law—and this is something that I have to explain to my students—international law functions quite differently than at least a well-functioning in a well-developed domestic legal system.

There are not courts that ensure compulsory jurisdiction over all disputes. There’s no police force out there to enforce a 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. Its 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—well, 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 acts of aggression carried out on Venezuelan territory.

So 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 in investigations of Israeli officials with respect to the war in Gaza.

Pam Karlan: Yeah, so there’s potentially some enforcement against individuals there also, right? The ICC could, charge an FBI agent with kidnapping?

Allen Weiner: They could charge Donald Trump with aggression.

Pam Karlan: Yes, charge 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 ….

Allen Weiner: That’s exactly right. And you know it’s interesting: 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.

If there were an indictment against Donald Trump, it would put European allies who are strong supporters of the ICC in an incredibly difficult position. When Donald Trump comes to the NATO summit in Brussels, will the Belgians actually arrest him and hand him over to the ICC? It’s a mind-boggling question. And I think the ICC will be very cautious about proceeding with Trump because it knows that it would raise a potential existential struggle for it with the Americans.

Pam Karlan: 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?

Allen Weiner: That’s correct. The obligations here arise from the United Nations charter, which basically says that states are prohibited from using force in their international relations.

So that is the law regulating the rights and obligations of states inter se, as between them. Now, there are other international law issues. 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. There’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 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.”

Pam Karlan: We should say she’s still your wife, but it was at the time…

Allen Weiner: She’s my wife, but at the time she referred to it as operation just ’cause…

Pam Karlan: I didn’t want people to think things had gone south.

Allen Weiner: 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. 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. The 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 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.

So 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.

Pam Karlan: And does international law have anything to say about going forward, how we treat Venezuela? 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. Is there any international law … does the international law have anything to say about that?

Allen Weiner: It does. 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. 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. We did that in…

Pam Karlan: And that was consistent with international law?

Allen Weiner: And international law recognizes the law of occupation going back to the 1907 Hague Convention. And 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 occupy Venezuela would require the deployment of a hundred thousand troops.

And so we’re obviously talking about something else. What are we talking about? I don’t know. We’ve heard President Trump say that the vice president Delcy [Rodriguez] in Venezuela is going to be more cooperating with us, and if she isn’t, it’ll be worse than what’s happened. This is clearly a threat, right?

Pam Karlan: Yes. And I was staggered. I read the interview, the report of the interview in The Atlantic, and I was 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.

Allen Weiner: 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, it would be great if you gave it to me, and if you don’t, I’ll destroy Prague.” That’s an impermissible threat.

What President Trump has said is that if she doesn’t go along with us, what will happen to her is worse. That sounds to me like a threat of force. 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. But 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. And 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 with the American States against the Maduro regime for many years now, and it didn’t produce the outcomes that we wanted, which suggests to me that what the Trump administration is threatening is actually another military action, including a possible assassination …

Pam Karlan: It’s hard to think of what’s worse than being hauled off to 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 somebody with?

Allen Weiner: “Nice country you got here. It would 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.

Pam Karlan: And the only real constraint on President Trump doing all of this are political constraints inside the United States. Is that accurate?

Allen Weiner: I think there will be … We’ll see how the international community will respond to this. The president has managed, I think, to intimidate lots of leaders around the world. I think if any other country had done something like this, the condemnation from European states would’ve been loud and emphatic and unqualified. I was speaking to a journalist from Deutsche Welle, the German publication who said that the German Prime Minister had said the legal issues here are quite complicated.

And I thought, no, they’re really not complicated at all. They’re actually quite simple. This is an illegal use of force against Venezuela. 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 Nicolás 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.”

It’s interesting to me, Pam, that the administration has not made more of a human rights argument.

Pam Karlan: Yes, that’s was … that’s also the interesting thing: if the claim is we had to go in to Venezuela because Nicolás Maduro was a dictator who was engaged in various kinds of narcotics dealing and conspiracy, 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.

Allen Weiner: I agree with you. There is a contested—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 is permitted.

There’s another doctrine out there that people 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 humanitarian intervention arguments as 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.

But 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 Gaddafi government, which ended up leading to the overthrow of Gaddafi. And it has always been 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 “we are making Venezuela safe for Exxon,” as a justification for this use of force. So, we’ll see. In general, there’s always an initial “rally round 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 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. I think “yes,” as a long meandering answer, the real enforcement tool, ultimately, is going to be a domestic political response.

Pam Karlan: And I assume that from some of the things that both the president and Secretary Rubio have said, they don’t think this all stops with Venezuela. They have some more places on their list, most notably Cuba.

Allen Weiner: Yes, Cuba is on the list. 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 our long …ever since you and I were children, Pam, I know we used to dream of doing Christmas in Greenland, but Greenland is also, I think, in the crosshairs. I used to teach a freshman class, and I used to try to tease out that people actually care about the reasons why countries use force. That the moral basis for the use of force matters whether or not we want to support it or not. And I used to begin with an absurd hypothetical which involved us using force to invade Panama to reclaim the Panama Canal. I can’t use that an absurd hypothetical anymore because it’s … I think somebody’s drawing up operational plans for this in the Pentagon.

And 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 is 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. Will that embolden him to want to pursue more operations like this?

The broader concern that I have is: because international law doesn’t have a police force to enforce it … There’s a quote from our colleague Harold Koh, who says, “international law is almost never enforced, but almost always obeyed.” Lou Henkin, the late 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.

Pam Karlan: That brings me to the last thing for us to talk about, which is the so-called “Donroe Doctrine” that President Trump has announced … The famous Monroe Doctrine was a doctrine of the early 19th century that 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 the boats, 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?

Allen Weiner: I think that’s exactly what my concern is. We can think about the United States as having two different kinds of interests. It can have a systemic interest in stability in the international system, or it can have a transactional interest. Do we want … is it in our interest if Maduro is no longer the president of Venezuela? Let me stipulate that the answer to that question is “yes,” but there’s a systemic interest in preserving this rule (that we were the leaders in including in the UN charter) that states are prohibited from using force in their international relations. In the era before World War II, or at least maybe before World War I, when states had a beef with one another, they just resolved those through using force. Paraphrasing the Prussian political scientist [Carl] von Clausewitz: War was the continuation of politics by other means.

So, if we now say powerful countries can act on the basis of their short-term transactional interests whenever they want, or can claim unfettered authority to act in their sphere of influence, I don’t know, Pam, what answer we give when somebody says: Why do we object to the Russians invading Ukraine? Or if they make a move in Georgia? Or if they make a move in Moldova?

China and Taiwan is complicated, but what about the nine-dash line and the extravagant territorial claims that China has made in the South China Sea? We’ve objected to those, in part, because we say they violate international law. And if China says, “Yes, but this is our region and we’re powerful and we can control these seas,” I’m not really sure what answer we have to China’s actions in that regard, if our own behavior suggests that’s what we believe, that’s how the international system functions.

Pam Karlan: It goes back even before  von Clausewitz. If you think about the famous Melian Dialogue in Thucydides’ History of the Peloponnesian Wars, where the millions say, “What you’re doing to us is totally unfair,” and the Athenians respond, “The strong do what they will and the weak suffer what they must.”

Allen Weiner: Exactly.

Pam Karlan: And that seems where we are now.

Allen Weiner: Yes.

Pam Karlan: Allen, I just want to thank you again for coming on the show and talking about this. It’s tremendously interesting and important stuff, and I’m sure we’ll have you back again shortly to discuss even more of this because this is not the beginning. This is not the end. This is not even the end of the beginning, I think.

So, thanks to Allen Weiner. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves our show and helps new listeners to discover us.

I’m Pam Karlan. See you next time.