Written by Ryan Meister

Introduction

On January 3, 2026, American special forces conducted Operation Absolute Resolve.¹See Julio Blanca, How the U.S. Attack on Venezuela, Abduction of Maduro Unfolded, Al Jazeera (Jan. 4, 2026), https://www.aljazeera.com/news/2026/1/4/how-the-us-attack-on-venezuela-abduction-of-maduro-unfolded (on file with American University International Law Review). The United States launched a military strike in Caracas, Venezuela, where Venezuelan President Nicolás Maduro and his wife were captured.²See id. Maduro and his wife were transported to New York City, where they now face narco-terrorism and drug trafficking charges in the Southern District of New York.³See generally Sealed Superseding Indictment, United States v. Maduro Moros, No. S4 11 Cr. 205 (AKH) (S.D.N.Y. Jan. 3, 2026), https://www.justice.gov/opa/media/1422326/dl (on file with American University International Law Review). The U.S. has characterized this operation as a “law enforcement operation” that it claims was in furtherance of indictments against Maduro which have existed for years.⁴See Ambassador Mike Waltz, U.S. Rep. to the U.N. Remarks at a U.N. Security Council Briefing on Venezuela (Jan. 5, 2026), https://usun.usmission.gov/remarks-at-a-un-security-council-briefing-on-venezuela-2/ (on file with American University International Law Review). The U.N. Secretary-General called the American actions a “dangerous precedent” with “potential worrying implications” for the region, expressing his concern that the rules of international law have not been respected.⁵ee UN News, U.S. Actions in Venezuela ‘Constitute a Dangerous Precedent’: Guterres (Jan. 3, 2026), https://news.un.org/en/story/2026/01/1166698 (on file with American University International Law Review). This operation and capture of Maduro raises an important question in international law on whether a sitting head of state enjoys absolute immunity from foreign criminal jurisdiction and if so, whether  a state can sidestep that immunity.

Background

The doctrine of head of state immunity is a rule of customary international law.⁶See Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, 21 Eur. J. Int’l L. 815, 818 (2010) (“It has long been clear that under customary international law the Head of State and diplomats accredited to a foreign state possess such immunities from the jurisdiction of foreign states.”). The doctrine provides that the sitting head of state or its government cannot be sued or prosecuted in another country’s courts.⁷See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 3, ¶ 54 (Feb. 14, 2002) (holding that head-of-state immunity protects officials against acts of authority that would hinder them in acting out their duties). This immunity is necessary to preserve viable diplomacy and to avoid fears of arrest or charges when on a diplomatic visit.⁸See id. (describing how senior officials’ exercise of international functions will be hindered if they are arrested in a foreign state). The International Court of Justice (ICJ) has previously held that a sitting head of state enjoys absolute personal immunity from arrest and prosecution by a foreign state, even if accused of serious international crimes.⁹See Arrest Warrant Case, 2002 I.C.J. 3, ¶¶ 53–55, 58. While not codified in any treaty, this understanding of the doctrine has been restated numerous times, including by the U.S.¹⁰See e.g. Richard C. Visek, Acting Legal Adviser, U.S. Dep’t of State, Suggestion of Immunity, in Cengiz v. bin Salman, No. 1:20-cv-03009 (D.D.C. Nov. 17, 2022), https://tlblog.org/wp-content/uploads/2022/11/State-Department-Determination-Re-MBS-11-17-22.pdf (finding that Saudi Crown Prince Mohammed bin Salman is to be awarded head of state immunity in a civil suit for the murder of Jamal Khashoggi) (on file with American University International Law Review). In the case of Maduro, the U.S. will likely argue that Maduro is not entitled to immunity because it has not recognized him as Venezuela’s legitimate head of state.¹¹See Jorge Contesse, Head of State Immunity and Maduro on Trial, Just Security (Jan. 12, 2026), https://www.justsecurity.org/128073/head-of-state-immunity-maduro-trial (“The prosecution will likely argue that, given the United States’ non-recognition of Maduro as a legitimate leader, he is not entitled to head-of-state immunity.”) (on file with American University International Law Review). This, however, creates a conflict. Under international law, the head of state is determined by control over state institutions, not by individual recognition.¹²See Akande & Shah, supra note 6, at 817–818 (explaining that immunity under customary international law attaches to the office held, not to individual state recognition of legitimacy). Although American precedent may allow American courts to proceed with Maduro’s prosecution, Operation Absolute Resolve violated the customary international law doctrine of head of state immunity.

Legal Analysis

Maduro held de facto control over Venezuela at the time of his capture.¹³See Sealed Superseding Indictment ¶ 2, Maduro Moros, No. S4 11 Cr. 205 (AKH). Under the ICJ’s standard held in DRC v. Belgium, this is sufficient to establish head of state status under international law, regardless of American recognition of that status.¹⁴See Arrest Warrant Case, 2002 I.C.J. 3, ¶ 54. Head of state immunity attaches to the office of head of state, not the specific individual.¹⁵See Akande & Shah, supra note 6, at 817–818. Diplomatic status is dependent on actual authority, not a state’s recognition of the individual in that office.¹⁶See id. Thus, the U.S.’ argument that their non-recognition of Maduro does not strip Maduro of his immunity. Even when the U.S. has condemned a foreign leader’s conduct, as was the case with Saudi Prince Mohammed bin Salman after the killing of Jamal Khashoggi, the U.S. has respected the immunity doctrine.¹⁷See Visek, supra note 10.

In Ker v. Illinois, Frederick Ker was kidnapped by a messenger from Peru and brought back to the U.S.¹⁸See Ker v. Illinois, 119 U.S. 436, 444 (1886). While the messenger had all required extradition papers, there was no official to meet his request to extradite Ker, and so, the messenger kidnapped him and brought him to the U.S.¹⁹See id. Ker challenged due process claims, where the Supreme Court eventually ruled that forcible abduction is not sufficient reason as to why the party should not answer when brought within the jurisdiction of the court.²⁰See id. at 443–44 (holding that forcible abduction is not a reason as to why a party should not answer to the court when brought into its jurisdiction).  This standard was confirmed in Frisbie v. Collins, where the Court ruled that forcible abduction does not impair the jurisdictional capabilities of the court.²¹See Frisbie v. Collins, 342 U.S. 519, 522 (1952) (reaffirming the court’s decision in Ker, determining forcible abduction does not take away a court’s jurisdiction). These two cases would establish the Ker-Frisbie Doctrine, where courts generally hold jurisdiction over defendants regardless as to how they were brought to the court.²²See id. (establishing the Ker-Frisbie Doctrine).  Notably, this standard was used in United States v. Alvarez-Machain, where the Supreme Court rejected international law principles against abductions, in favor of the Ker-Frisbie Doctrine.²³See United States v. Alvarez-Machain, 504 U.S. 655, 670 (1992) (rejecting the argument that forcible abduction violates an extradition treaty and holding Ker-Frisbie’s application). The doctrine would likely shield the case against Maduro from dismissal on jurisdictional grounds. However, this does not make the capture of Maduro legal under international law.

Adding complexity to the case is Maduro’s head of state status. The U.S. government is likely to cite United States v. Noriega, where the Eleventh Circuit held that the U.S. had jurisdiction over Manuel Noriega.²⁴See United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) (rejecting Noriega’s head of state immunity claim as Noriega never was the constitutional leader of Panama). Despite being the de facto leader of Panama, the U.S. had not recognized him as such, arguing that the Panamanian Constitution did not recognize him as head of state, but rather the leader of Panama’s military.²⁵See id. This argument, however, is weakened in its application towards Maduro, as Noriega never held the official position as President of Panama, while Maduro did hold the official office of Venezuelan President.²⁶See id.

This creates a conflict between American courts and international law, leading to the question as to which supersedes the other. The Supreme Court has held that customary international law is common law and must be applied where no treaty, executive, legislative, or judicial act control.²⁷See The Paquete Habana, 175 U.S. 677, 700 (1900) (holding that customary international law is part of the law and must be applied where there is no controlling act of government). However, where customary international law conflicts with Supreme Court precedent, domestic law tends to prevail in American courts.²⁸See Garcia-Mir v. Meese, 788 F.2d 1446, 1455 (11th Cir. 1986) (determining that although international law is considered American law, it is considered lesser than to the Constitution and Congressional acts). This however, creates a dangerous international precedent, opening the possibility to states kidnapping other heads of states they may not approve of.

Conclusion

The American argument for its capture of Maduro has serious potential legal ramifications. If the U.S. argues that the simple non-recognition of Maduro’s head of state status is enough to strip immunity, any state could use non-recognition to justify military action against another head of state. This undermines the system of diplomacy that head of state immunity is designed to protect. While the Ker-Frisbie Doctrine may keep Maduro’s capture legal in domestic American courts, it cannot justify the capture under customary international law. The precedent set here, allowing non-recognition to change immunity status, poses a serious risk to international law. If a major world power treats customary international law as optional when it is inconvenient, other states may be disincentivized comply with international law.