The following analysis is an excerpt from a more in-depth paper to be published soon by the revamped The Delphi Institute

The problem of the perception of international law, and the facts

To understand the Venezuelan case, it is necessary to clarify a preliminary misunderstanding that conditions much of the public debate: the nature of international law. Unlike domestic law, it does not originate from a superordinate legislature that recognises and guarantees rights, but from a horizontal system in which it is the positions and interests of states that constitute the system itself. UN and international law do not coincide: the UN is not a global legislature, but a political space in which pre-existing power relations are managed and codified. The international order is not a pyramid, but a network based on practice, reciprocity and custom.

The most common mistake consistsin treating international law as an intrinsic value capable of imposing itself on power dynamics. In reality, it does not explain why certain events happen or how great powers act; at most, it describes how things should be. In moments of exception, the claim that law can override hegemonic instances turns out to be an idealistic construct.

What was – de jure- Absolute Resolve?

This is the background to the US operation in Venezuela. There was no war or an armed conflict in the technical sense: the intervention was swift, limited and without prolonged confrontation. For this reason, international humanitarian law is not automatically activated. The central legal issue does not concern the conduct of hostilities, but undoubtedly the legitimacy of the use of force under Article 2(4) of the UN Charter. Traditional categories of the law of armed conflict appear inadequate to describe operations of this kind.

The legal significance of the event is not exhausted in the military act itself, but must be reconstructed through a plurality of planes: the construction of the US domestic normative frame, its relationship with the international order, the question of immunities and the invocation of the democratic clause.

It is on this layering, more than on the use of force in the strict sense, that the true extent of the Maduro case is played out.

The preparation of the US regulatory frame

The US use of force in Venezuela is often portrayed as an unregulated political impulse. In reality, the operation is underpinned by a complex internal legal architecture that faithfully reflects USrule of law. The action against Nicolás Maduro is the product of a bureaucratic layering designed to lend a veneer of legality to a projective act of force. The exceptional nature of the intervention, far from denying the rule of the prohibition of the use of force, confirms its structure: the event is channelled within a sequence of formal legal acts provided for by the internal order.

First legal step – designation of status

The normative precondition was therequalification of the target. Ground was shifted from classical international law to criminal and counter-terrorism law. Department of State and the Department of Justice designated the Cartel de los Soles as a Foreign Terrorist Organisation; Maduro, who had been associated with the cartel for years, was qualified as its apex. This step is not merely formal: without this classification, the administration would not have been entitled to activate anti-terrorist instruments against a foreign state apparatus. Maduro’s qualification as a narco-terrorist thus makes it possible to circumvent diplomatic immunities and activate a universal jurisdiction based on the fight against transnational crime.

Second legal step – the architecture of operational powers

What happened is not a military operation conducted by the army. It would be misleading as a military ‘invasion’, also because in fact it is not. A combination of joint forces, including the DEA, FBI, CIA, military forces and Venezuelan apparatuses in opposition to Chavismo, was involved in carrying out the operation.

The legal key to activate this joint – force lies in Titles 10^[1] and 50^[2] of the US Code, in which there is a clear distinction between the authorities. Title 10 governsovert (overt) military operations, while Title 50 governs covert(covert) CIA operations. This is crucial since the capture of a leader in a foreign capital required the excellence of special forces( Delta Force, Navy SEALs) but under the cover of maximum secrecy, operators were ‘seconded‘ under Title 50 authority.

In this way, the US military was legally able to lend its ‘muscle’ to an operation that, legally, remained the sole responsibility of the CIA, guaranteeing deniability and the necessary flexibility.

Third step – the qualification of the action as an arrest

To prevent the operation from being qualified, nationally, as an international kidnapping, a pre-existing judicial basis was indispensable. This was provided by afederal indictment issued by a New York court. The kidnapping thus takes the form of an extraordinary rendition, in which the force acts as the enforcement arm of the law to bring a defendant before a US judge. Coordination between the DEA, FBI and the Department of Defence made it possible to build a case capable of passing judicial scrutiny once Maduro arrived on US soil.

Deriving the event as a mere invasion or declaration of war is therefore reductive. The operation is the product of an articulated internal legal engine that transformed Maduro from president of a sovereign state into an international fugitive under an arrest warrant. It is the primacy of internal procedure that is projected externally, generating a subjective legal position functional to US strategic interests.

Fourth profile – the conflict between jurisdiction to prescribe and jurisdiction to enforce

The operation highlights the rift between the power to issue rules with extraterritorial effects(jurisdiction to prescribe), legitimate in the presence of a recognised nexus, and the power toenforce them(jurisdiction to enforce). It is on this second level that international law intervenes: the exercise of public powers on the territory of another state without consent violates the principle of territorial sovereignty and the prohibition of interference, constituting in principle a violation of Article 2(4) of the UN Charter, regardless of the duration or ‘surgicality’ of the action.

The Venezuelan case in international law: force, immunity, democracy

At the international level, the arrest warrant for drug trafficking is not per se incompatible with the law. The critical point remains thecoercive execution on Venezuelan territory, contrary to a central customary norm on territorial sovereignty, as recognised by the jurisprudence of the International Court of Justice.

US response is placed within the perimeter of self-defence, invokingregional instability, drug trafficking and links with Iran and Hezbollah . However, pre-emptive or extended self-defence remains a controversial doctrine.
The ban on the use of force, while regularly circumvented in practice, formally admits only circumscribed exceptions.

Between the ‘Responsibility to Protect’ and the doctrine of immunities

Alongside these is the Responsibility to Protect doctrine, which in defence of violations erga omnes postulates military intervention, but does not authorise the unilateral use of force, remaining subordinate to the Security Council. On the level of immunity,personal immunity protects the leadership of the state in office and is linked to status, not conduct. The non-recognition of Maduro’s presidential status, reinforced by theOAS position, does not automatically remove the reality of actual power, as in international law recognition is an ancillary political act.

However, Maduro is not recognised as the true Head of Venezuela and according to the OAS, the sovereignty of Venezuela belongs to the Venezuelan people and not to its leader. The excommunication by the Inter-American Organisation is not a legal basis for an armed attack per se, but an additional requirement to declare Maduro’s presence in power illegitimate. If the American position on the waiver of immunity were to be considered, it would have to be based in part – in the writer’s opinion – on the fact that the president’s status is rejected not only by the US but also by the regionally competent human rights organisation.

How to read, finally, the American operation

In the absence of a collective mandate, the operation remains de jure a political gamble. Summing up US domestic procedure, regional disavowal, R2P appeal and the absence of widespread warlike effects, it is unlikely to result in significant legal consequences for Washington. The Venezuelan case thus lies in the grey space of the international order, where force does not create new norms, but continues to redefine power relations.

[1] Subtitle A-General Military Law (§§ 101 – 5553)

[2] 50 U.S. Code § 3093 – Presidential approval and reporting of covert actions

Venezuela, the end of a regime: has Maria Machado’s time come?– D.D’Andrea; L’Europeista

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