On Jan. 5, Nicolas Maduro pleaded not guilty to federal criminal charges in a Manhattan courtroom and told the judge, “I am still president.” This is an imagined conversation between two people in the courtroom, one of whom happens to be an international law professor.
Why did Maduro tell the judge he’s still president? Why does that matter?
Under international law binding on the United States (and all countries), the sitting head of state or head of government of one country can’t be sued or prosecuted in another country’s courts. That’s why the U.S. president can travel to other countries without worrying about being sued, prosecuted, or arrested. This is such a well-accepted principle that it’s not codified in any treaty, but it has been restated innumerable times, including by the International Court of Justice and the U.S. State Department. The technical term for this is immunity rationae personae, or personal immunity, and it also extends to foreign ministers. It is designed to protect leaders of foreign countries from being hindered in performing their duties and is rooted in the idea that all countries are equal on the international plane (that is, they have sovereign equality).
But didn’t the United States prosecute Manuel Noriega after abducting him from Panama in 1989?
Yes. The United States didn’t recognize General Manuel Noriega, who was a military dictator, as Panama’s head of state, and the government of Panama didn’t request immunity on his behalf. (Especially in contested cases, it matters whether the government of a country tells the court and/or the State Department that an individual holds a particular position in that government that entitles them to immunity.) So U.S. courts let that prosecution go forward. The Eleventh Circuit Court of Appeals reasoned that Noriega wasn’t entitled to immunity “given that the record indicates that Noriega never served as the constitutional leader of Panama, that Panama has not sought immunity for Noriega and that the charged acts relate to Noriega’s private pursuit of personal enrichment.”
It’s important to keep in mind, though, that recognition by one country alone doesn’t change whether a genuine head of state is entitled to immunity on that basis. If that were the case, countries could game the law by simply withdrawing their recognition, nabbing foreign leaders, and trying them in their courts. The Panama case was arguably more complicated because there were democratically elected authorities in Panama who also did not consider Noriega to be the legitimate head of state.
And more recently the U.S. also prosecuted the former president of Honduras?
Yes, although because Juan Orlando Hernandez was a former, not a sitting, head of state, his prosecution did not violate head of state immunity. Also, importantly, in that case the United States requested and obtained his extradition from Honduras through legal channels. In addition, a country can always waive its own official’s immunity or decline to support the official’s claim to immunity.
Who decides whether to waive an official’s immunity?
Generally, it is the de facto authorities of the official’s home country. It can be complicated, though, especially if there are different political groups within a single country that are all vying for power. There is definitely a risk that arrest and extradition can serve as a convenient way to get rid of political rivals. That’s why international human rights law requires that defendants receive procedural protections, both in the extradition process and when they are eventually tried and prosecuted. Most extradition treaties also have exceptions under which a country that is asked to extradite an alleged offender can refuse to do so on the grounds that the request is politically motivated–but this doesn’t help if the extraditing country also supports the prosecution.
Will a U.S. court allow the Department of Justice to prosecute a sitting foreign head of state?
U.S. courts have dismissed civil suits filed against foreign sitting heads of state. If the U.S. government tried to prosecute a foreign sitting head of state that the executive branch recognized as such, then international law would certainly require a court to dismiss the case. But U.S. courts haven’t faced this particular dilemma, because in Maduro’s case the executive branch isn’t seeking to prosecute someone that it recognizes as a sitting foreign head of state. Instead, it has argued (as in the Noriega case) that Maduro isn’t entitled to be treated as a head of state.
The judiciary does not owe absolute deference to the executive branch on all foreign affairs matters, but it does give the executive branch deference on recognition decisions. It would be interesting to see what a court did in a clear cut case where non-recognition was absurd on its face – for example, if the Department of Justice said “the United States doesn’t recognize Mark Carney as Canada’s head of government,” or “the United States doesn’t recognize Emmanuel Macron as France’s head of state.”
This is a more complicated case. On the one hand, Venezuela now has an interim president, Delcy Rodriguez, sworn in shortly after Maduro’s capture. On the other hand, Rodriguez has publicly called for Maduro’s release and said he is still President of Venezuela. The case could take an interesting turn if Venezuela – through an amicus brief perhaps – informs the court that it has not waived Maduro’s immunity and he remains their head of state.
That said, the United States has not recognized Maduro as Venezuela’s head of state since 2019. That will likely be decisive for a U.S. judge under domestic law because of the executive branch’s exclusive recognition power, even though head-of-state status under international law does not depend on any single country’s recognition decision. Generally, under international law, if an individual has the legal authority to bind the country in its international relations, that person would be considered the head of state regardless of how that person assumed the position.
So international law doesn’t matter?
The United States always indicates when it files immunity determinations with U.S. courts that it is doing so after considering “the relevant principles of customary international law.” The biggest deterrent to violating international law regarding immunities is that other countries can start doing the same thing. The United States has often violated international law with apparent impunity, but every time it does so the international system becomes less stable and less predictable, in addition to less just. Moreover, it should go without saying that disregarding immunity for other countries or their officials also risks eroding the well-established norms that protect the United States and its officials in foreign courts.
Speaking of stability and predictability, what about the military operation to capture Maduro? Doesn’t that make his prosecution illegal?
There is zero international legal justification for conducting a military operation on another country’s territory to capture an alleged fugitive, let alone a foreign leader, without that country’s consent or authorization by the U.N. Security Council. But international law and U.S. law separate the question of how a defendant’s presence was obtained before a court from whether that defendant can be prosecuted. In international law, the principle is called male captus, bene detentus. It essentially boils down to the idea that a person can be unlawfully captured, but still lawfully prosecuted, as long as the proceedings themselves comply with applicable law.
Once Venezuela has a new acting president, will that change Maduro’s status? Can he claim immunity as a former head of state?
If relevant Venezuelan authorities do not treat Maduro as the head of state, then he would no longer be able to claim that status. As noted above, this question may be disputed if his successor maintains that he is still the head of state. Assuming a U.S. court determines he is not entitled to immunity as a sitting head of state, a different immunity analysis would apply.
Former foreign officials enjoy certain residual, conduct-based immunities for their official acts. However, drug trafficking and corruption do not fall within any head of state’s official duties. Such charges do not raise the immunity questions sometimes associated with legal proceedings against former foreign officials for international crimes such as torture that are necessarily committed under color of law. (There is also a separate question of immunity for international crimes before international courts; although Venezuela has announced its intended withdrawal from the International Criminal Court, its ratification of the treaty that created that court amounts to a renunciation of official immunities before the ICC for conduct that falls within the court’s jurisdiction.)
Setting aside Maduro’s unlawful capture, isn’t his prosecution a good thing?
That’s really a question for Venezuelans to answer, especially since the person who has now assumed power was Maduro’s vice president and close associate. It’s difficult for the United States to have credibility in upholding the rule of law when it so willingly violates it and applies inconsistent standards–whether it’s pardoning Hernandez while prosecuting Maduro and executing suspected drug couriers, or defying domestic court orders. Ideally, each country is responsible for ensuring its own compliance with both domestic and international law, with action by foreign or international courts available as a back-up when national institutions fail. In the U.S. legal and political system, the power to rein in a lawless executive branch lies primarily with Congress and with voters, not with courts. That’s one reason why the contours of domestic official immunity don’t necessarily mirror those of foreign official immunity.
International law outlaws coercive intervention in the internal and external affairs of other states precisely because there is a real danger of abuse and ulterior motives. The United States appears to feel that its military and economic superiority allow it to act unilaterally in violation of international law, and that cooperation and alliances are overrated. That might seem appealing in the short term, but the world has already seen where unchecked expansionism and claimed spheres of influence lead. The benefits of following agreed-upon rules have often been recognized only after significant harm caused by their disregard.
