The International Legality of Capturing a Sitting Head of State: The Case of Nicolás Maduro

Author: Lawson Boladuro Joan
Student, Lead City University

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💡 3 Quick Takeaways

  1. Head of state immunity: A sitting head of state may enjoy personal immunity from the criminal jurisdiction of foreign domestic courts, even where the prosecuting state does not recognise their government.
  2. The prohibition on the use of force: An operation involving the unconsented use of military force on another state’s territory raises distinct questions under Articles 2(4) and 51 of the UN Charter.
  3. Domestic jurisdiction is not international legality: A domestic court’s authority to try a defendant who has been forcibly brought before it does not, by itself, establish that the operation was lawful under international law.

Abstract

On 3 January 2026, United States forces reportedly carried out a military operation, code-named Operation Resolve, resulting in the capture of Venezuelan President Nicolás Maduro and his subsequent prosecution in a New York federal court. The operation raises important questions under international law. The first is whether a sitting head of state continues to enjoy personal immunity from the criminal jurisdiction of another state, even where that state does not recognise his government. The second is whether the use of force, without Venezuela’s consent, to arrest and remove its sitting president can be justified under Article 2(4) of the United Nations Charter.

This article examines these questions through the International Court of Justice’s decision in the Arrest Warrant case and the international legal rules governing the use of force. It also compares the Maduro operation with the 1989 capture of Panama’s Manuel Noriega. The article argues that the justifications attributed to the United States, particularly its characterisation of the operation as law enforcement and its reliance on self-defence, are difficult to reconcile with established principles of international law. Although United States domestic law may permit a court to try a defendant who has been forcibly brought before it, that does not necessarily resolve the separate question of whether the manner in which the defendant was brought into the country was lawful under international law.

Keywords: Head of state immunity; use of force; Article 2(4) of the UN Charter; extraterritorial jurisdiction; Operation Resolve.

I. Introduction

On the morning of 3 January 2026, United States forces reportedly struck targets across Venezuela and captured the country’s sitting president, Nicolás Maduro, along with his wife, Cilia Flores, before transporting them to New York to face criminal charges in a federal court. The operation, code-named Operation Resolve, brought an end to a presidency that had lasted since 2013 and raised legal questions concerning the relationship between state sovereignty, personal immunity, and the exercise of extraterritorial criminal jurisdiction.

Can a state lawfully seize another country’s sitting head of state through the use of force and prosecute him in its own courts? Does describing such an operation as “law enforcement” alter the legal analysis when the arrest is carried out through military personnel and airstrikes rather than extradition or judicial cooperation?

This article examines these questions through the Maduro operation, focusing on the relationship between two long-standing principles of international law. The first is the sovereign equality of states and the personal immunity that customary international law extends to certain senior state officials. The second is the prohibition on the use of force against another state. The article also compares the operation with the United States’ 1989 capture of Panama’s Manuel Noriega and considers whether the legal framework has developed since that earlier episode.

Part II examines the doctrine of head of state immunity. Part III addresses the prohibition on the use of force under the UN Charter. Part IV applies these principles to Operation Resolve and considers the justifications attributed to the United States administration. Part V examines the Noriega precedent, while Part VI distinguishes domestic criminal jurisdiction from the international legality of an arrest. Part VII considers international reactions to the operation. The conclusion assesses the implications of the episode for the international legal order.

II. Head of State Immunity: Who Determines Who Is President?

International law recognises that certain senior officials, including heads of state, heads of government, and foreign ministers, enjoy immunity ratione personae, or personal immunity, from the criminal jurisdiction of foreign domestic courts while they remain in office.

The International Court of Justice affirmed the scope of this immunity in the Arrest Warrant of 11 April 2000 case. The Court held that an incumbent foreign minister of the Democratic Republic of the Congo could not be subjected to a Belgian arrest warrant, even in connection with allegations of war crimes. The immunity was intended to protect the effective performance of the official’s functions in international relations, rather than to reward good conduct.¹ The Court also made clear that the seriousness of the allegations does not, by itself, remove an incumbent official’s personal immunity.²

The doctrine is therefore relevant to the question of Maduro’s status at the time of his capture. One argument advanced against recognising his immunity is that the United States and several other governments rejected the legitimacy of his 2024 re-election. However, recognition of a government and immunity from foreign criminal jurisdiction are distinct legal questions. A state’s refusal to recognise a particular government does not automatically establish that its officials have lost the immunities associated with their offices.

The relevant inquiry concerns the official’s status under international law and the circumstances in which the claimed immunity arises. In the case of a disputed government, questions of effective control, recognition, and representation may complicate that inquiry. The fact that an election is contested does not, without more, resolve the question of personal immunity.

Before his capture, Maduro’s government continued to exercise control over Caracas and the institutions of the Venezuelan state and continued to represent Venezuela at the United Nations. These circumstances are relevant to the assessment of his position as the country’s incumbent head of state. They also demonstrate why a unilateral decision by another state not to recognise a government cannot, by itself, settle the international legal question of immunity.

Cilia Flores presents a separate issue. Unlike Maduro, she was not the head of state. The scope of any immunity available to her would depend on her official status and the nature of the acts concerned. The immunity of state officials ratione materiae, or functional immunity, generally concerns official acts performed on behalf of a state. The application of that doctrine to alleged criminal conduct raises separate questions that should not be conflated with the personal immunity of an incumbent head of state.³

III. The Prohibition on the Use of Force

A second, analytically distinct question concerns the manner in which Maduro was captured. Article 2(4) of the UN Charter requires member states to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.⁴

The Charter provides for recognised legal bases for the use of force, including individual or collective self-defence under Article 51 and enforcement action authorised by the Security Council under Chapter VII.⁵ A unilateral military operation conducted on another state’s territory, without its consent or Security Council authorisation, therefore raises a serious question under Article 2(4).

The self-defence justification attributed to the United States administration requires particular scrutiny. The article’s cited reporting refers to Ambassador Mike Waltz’s invocation of self-defence in a television interview and to Secretary of State Marco Rubio’s explanation, relayed by a United States senator, that force was used to protect personnel carrying out the arrest.⁶

The difficulty with this reasoning is that the operation itself reportedly created the circumstances in which United States personnel encountered resistance. The deployment of special forces into a foreign capital to capture its president cannot, without further analysis, establish a legal basis for the use of force under Article 51. The requirements for self-defence must be assessed independently; the existence of a military operation does not itself establish that those requirements have been met.

Drug trafficking, notwithstanding its serious consequences, does not automatically constitute an armed attack by a state within the meaning of Article 51. The fact that drugs eventually reach United States cities is not, by itself, sufficient to establish that Venezuela committed an armed attack capable of triggering the right of self-defence.⁷ The precise factual basis for the claimed justification, together with the applicable requirements of international law, must therefore be examined rather than assumed.

IV. Operation Resolve: What Happened on the Ground?

The reported circumstances of Operation Resolve are central to the legal analysis. According to the sources cited in this article, special forces and airstrikes targeted locations in Caracas, Miranda, La Guaira, and Aragua. Maduro’s security detail reportedly suffered serious casualties, while the Cuban government stated that thirty-two of its nationals were killed while assisting Venezuelan forces.⁸ Maduro and Flores were transported first to the USS Iwo Jima and then to New York, where the United States Department of Justice unsealed an indictment charging them, their son, and three other Venezuelan officials with offences relating to narco-terrorism, cocaine importation, and firearms.⁹

Attorney General Pamela Bondi reportedly described the operation as a law-enforcement action supported by military personnel. That characterisation, however, does not resolve the international legal questions raised by the operation. An arrest carried out through military strikes and the deployment of special forces across an international border differs substantially from an arrest conducted through ordinary domestic procedures or established channels of international cooperation.

The article’s cited reporting also refers to an internal memorandum reportedly prepared for the Department of Justice in the preceding month. The memorandum was said to conclude that neither United States law nor international law restricted the President’s authority to order the operation.¹⁰ As an internal executive-branch opinion, however, the memorandum represents the administration’s legal position; it does not, by itself, determine the content or application of international law.

A further issue concerns enforcement jurisdiction. A state’s authority to enforce its criminal law generally does not extend to the territory of another state without that state’s consent or another recognised legal basis. The exercise of criminal jurisdiction over an offence and the physical enforcement of that jurisdiction in foreign territory are distinct matters. The existence of an indictment in the United States does not, on its own, authorise United States personnel to enter Venezuela and arrest the accused there.

Accordingly, the absence of Venezuelan consent is central to the analysis. If no applicable legal basis authorised the operation, describing it as law enforcement would not remove the sovereignty concerns arising from the use of force on Venezuelan territory. Extradition, mutual legal assistance, and other forms of judicial cooperation provide established channels through which states may seek the surrender of accused persons, subject to the applicable legal arrangements. Whether those alternatives were available in the circumstances is a separate factual question, but the existence of criminal charges alone cannot settle the legality of the means used to secure custody.

V. The Noriega Precedent: A Similar Case with an Important Difference

The United States’ capture of Manuel Noriega in December 1989 provides a historical comparison. United States forces invaded Panama and captured Noriega, the country’s de facto ruler, who had been indicted in Florida on drug-trafficking charges two years earlier. He was transported to Miami, tried, convicted, and held in United States custody before eventually being extradited to France.¹¹

At the time, the United States advanced several justifications for the invasion, including self-defence, the protection of the Panama Canal treaties, and the promotion of democracy. These justifications attracted criticism from international lawyers who questioned whether they provided a sufficient legal basis for the use of force. The Noriega episode remains relevant to discussions about the relationship between a state’s domestic criminal proceedings and the international legality of the military action used to secure a defendant’s custody.

There are similarities between Noriega’s capture and the reported operation against Maduro. In both cases, the United States relied on domestic criminal charges against a foreign political leader while using force to bring that individual within the jurisdiction of its courts. Such a framing can place the emphasis on the individual’s status as an accused person rather than on the separate rights of the state whose territory was entered.

The cases nevertheless arose in different circumstances, and the legal questions cannot be treated as identical. In Noriega’s case, United States courts considered issues arising from his status and the manner in which he was brought before them. The domestic court’s decision to proceed with a prosecution did not itself establish that the invasion complied with international law.

The Arrest Warrant judgment, delivered in 2002, provides an important legal reference for assessing personal immunity. It confirms that the seriousness of allegations does not, by itself, remove the immunity of an incumbent official before foreign domestic courts.¹² The judgment therefore forms part of the legal framework against which the immunity question in Maduro’s case must be assessed, while the separate question of the use of force remains governed by the UN Charter and applicable customary international law.

VI. Custody Is Not the Same as Legality

The distinction between domestic criminal jurisdiction and international legality is illustrated by a line of United States Supreme Court decisions addressing the manner in which defendants are brought before domestic courts.

In Ker v. Illinois and Frisbie v. Collins, the Supreme Court held that the circumstances in which a defendant was brought before a court did not, in themselves, prevent the court from exercising criminal jurisdiction. The Court subsequently applied a similar principle in United States v. Alvarez-Machain, involving a Mexican national who had been abducted in Mexico and brought to the United States for prosecution.¹³

This principle is commonly associated with the maxim male captus, bene detentus, meaning, broadly, “wrongly captured, rightly held”. In the United States domestic-law context, it addresses whether the manner in which a defendant was brought before a court necessarily deprives that court of jurisdiction.

However, the existence of domestic jurisdiction does not resolve whether the conduct used to obtain custody complied with international law. A court’s authority to hear a criminal case and the international responsibility of the state whose agents carried out the capture are distinct legal questions. A domestic ruling on jurisdiction should not automatically be treated as a ruling on the legality of the underlying international operation.

The Alvarez-Machain decision attracted criticism outside the United States. As discussed in the sources cited here, the Inter-American Juridical Committee raised concerns about the implications of forcible abduction for territorial sovereignty. A group of Latin American governments also sought consideration of an advisory opinion from the International Court of Justice, although the request was not ultimately pursued to that outcome.¹⁴

The distinction is therefore fundamental: domestic law may permit a prosecution to proceed even where the means of securing custody remain contested under international law. The first question concerns the jurisdiction of the domestic court; the second concerns the obligations of states under international law.

VII. The International Response

The reported international response to Operation Resolve was divided. At an emergency meeting of the UN Security Council, China’s ambassador criticised the operation, arguing that it violated sovereign equality, non-interference, and the Charter’s prohibition on the use of force.¹⁵ Russia and Belarus also issued a joint statement condemning the operation as aggression against a sovereign state.¹⁶

Mexico’s president rejected the proposition that any single power could claim authority over the Americas.¹⁷ The European Union and its member states, with Hungary reportedly taking a different position, called for restraint and reaffirmed the importance of the principles of the UN Charter, while stopping short of expressly characterising the operation as unlawful.¹⁸ The United Kingdom adopted a similarly cautious position, welcoming Maduro’s removal from power while declining to reach a conclusion on the operation’s legality before the relevant facts had been established.¹⁹ Other governments, including Argentina and El Salvador, reportedly expressed support for the operation.²⁰

These reactions are relevant to the broader development of international law. The formation and identification of customary international law involve both state practice and opinio juris—the belief that a particular practice is legally required, permitted, or prohibited. Government statements and diplomatic responses may provide evidence of how states understand the applicable rules, although individual statements do not, by themselves, determine the existence or content of a customary rule.

The differing responses to Operation Resolve therefore form part of the wider discussion about state sovereignty and the prohibition on the use of force. They do not, without further analysis, establish a settled international consensus on the legality of the operation. The legal assessment must continue to turn on the applicable rules, the relevant facts, and the legal justifications advanced.

VIII. Conclusion

The reported capture of Nicolás Maduro raises distinct questions concerning personal immunity, the prohibition on the use of force, and the exercise of domestic criminal jurisdiction. Under the principles considered in this article, the use of force on Venezuelan territory without the state’s consent requires a legal justification under the UN Charter. The invocation of law enforcement or self-defence cannot, without more, establish that such a justification exists.

The personal immunity of an incumbent head of state presents a separate issue. The Arrest Warrant judgment demonstrates that the seriousness of criminal allegations does not, by itself, remove an incumbent official’s immunity before foreign domestic courts. Nor does a state’s refusal to recognise a government automatically resolve the question of immunity.

At the same time, a domestic court may consider itself competent to proceed with a prosecution even when the defendant was forcibly brought within its jurisdiction. The United States decisions discussed above illustrate why that domestic jurisdictional question must be distinguished from the international legality of the operation that secured custody.

These distinctions do not require approval of Maduro’s government or of its conduct. The legitimacy of a government, the accountability of individuals for alleged crimes, and the legality of another state’s use of force are separate questions. Maintaining that distinction is essential to a legal analysis grounded in the UN Charter and customary international law.

Whether Operation Resolve is ultimately treated by states as an exceptional episode or as a precedent for future conduct will depend, in part, on their subsequent legal positions and practice. The central issue remains whether the rules governing sovereignty, personal immunity, and the use of force are applied consistently, including when a powerful state seeks to prosecute a foreign leader.

Endnotes

  1. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002 I.C.J. 3, paras. 53–55 (Feb. 14, 2002).
  2. Ibid., para. 61.
  3. International Law Commission, “Immunity of State Officials from Foreign Criminal Jurisdiction,” United Nations, https://legal.un.org/ilc/summaries/4_2.shtml (last visited Sept. 2, 2026).
  4. Charter of the United Nations, art. 2(4).
  5. Ibid., art. 51 and Chapter VII.
  6. John Curtis, “The US Capture of Nicolas Maduro,” House of Commons Library (Jan. 6, 2026), https://commonslibrary.parliament.uk/research-briefings/cbp-10452/.
  7. Justina Uriburu and Julian Arato, “Trump’s Illegal Attack on Venezuela and Its Consequences,” EJIL: Talk! (Jan. 5, 2026), https://www.ejiltalk.org/trumps-illegal-attack-on-venezuela-and-its-consequences/.
  8. Curtis, supra note 6.
  9. “Report to Congress on U.S. Capture of Venezuela’s Nicolas Maduro,” USNI News (Jan. 7, 2026), https://news.usni.org/2026/01/07/report-to-congress-on-u-s-capture-of-venezuelas-nicolas-maduro.
  10. Jeremy Roebuck and John Hudson, “Previously Secret Memo Gave Legal Basis for U.S. Mission to Nab Maduro,” The Washington Post (Jan. 13, 2026), https://www.washingtonpost.com/national-security/2026/01/13/venezuela-maduro-trump-legal-memo/.
  11. United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990), aff’d, 117 F.3d 1206 (11th Cir. 1997).
  12. Arrest Warrant of 11 April 2000, supra note 1.
  13. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952); United States v. Alvarez-Machain, 504 U.S. 655 (1992).
  14. Uriburu and Arato, supra note 7.
  15. Curtis, supra note 6.
  16. Ibid.
  17. “Ousted Venezuelan President Maduro Arraigned in U.S. Court; Trump Threatens Other Nations,” CBS News (Jan. 6, 2026), https://www.cbsnews.com/live-updates/venezuela-trump-maduro-charges/.
  18. Curtis, supra note 6.
  19. Ibid.
  20. Uriburu and Arato, supra note 7.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of The Lawscape.

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