Ike Odionu, PhD
The first question that confronts everyone in the abduction of Nicolas Maduro by the United States military forces for a trial in the United States is the issue of sovereignty. Indeed, the United States had earlier set a precedent in the past in South America with the abduction and trial of Manuel Noriega, the then head of state of Panama in 1989.
By the application of customary international law, a sovereign or a state is entitled to immunity for the sovereign acts of the state. Also, the rules of customary international law enshrined the principle of equality of states, and by this, a state or sovereign cannot be subjected to the authority of another state. This is expressed in the maxim- par in parem no habet imperium (an equal cannot have authority over his equal).
These rules are to some degrees enshrined in the United Nations Charter. Article 2 (4) of the United Nations Charter enjoins members to refrain “from the threat or use or force against the territorial integrity and political independence of any state…”
Article 51 of the United Nations Charter, however, provides for the right of individual and collective self defence of a member state if an armed attack occurs against such state. This becomes an exception to the rule of non-interference in the internal affairs of another state under the United Nations Charter.
However, states have devised further exceptions to the rule of non-interference based on the interpretation and application of rules of customary international law as well as other treaties. One of such is human rights abuse. In the Augusto Pinochet’s case (No. 2), the British House of Lords ruled in 1999 that Pinochet’s immunity as a former head of state did not cover acts of torture and crimes against humanity, referencing particularly the United Nations Convention Against Torture.
Furthermore, the International Criminal Court established under the Rome Statute has also been inhibiting the sovereign immunity rule by issuing international warrants of arrests against sitting sovereigns, notably the warrants issued against Omar Al-Bashir (former president of Sudan), President Putin of Russia and Prime Minister Bibi Netanyahu of Israel.
These exceptions, and indeed others, will go to show that sovereign immunity is never absolute but relative even for sovereign acts of a state (acta jure imperii). For commercial acts of a state (acta jure gestionis), there is certainly no immunity.
In the case of Nicolas Maduro, a precedent had earlier been set in the United States with the arrest and trial of Manuel Noriega, then head of state of Panama. The two central issues in the case, that is, extraordinary renditon and immunity, were resolved against Manuel Noriega by the United States Court of Appeals for the Eleventh Circuit. On the issue of extraordinary renditon, the court held that the manner by which he was renditoned to the United States did not rob the court of jurisdiction. On the issue of sovereign immunity, the court ruled that Manuel Noriega could not claim sovereign immunity as the United States did not recognize him as the president of Panama.
Obviously, these essential issues raised in Manuel Noriega’s case will be in focus in the case of Nicolas Maduro, and quite significantly, the United Court of Appeals has resolved them. Just like the case of Noriega, the United States did not accept the legitimacy of Nicolas Maduro as the president of Venezuela following the fraudulent manner by which he emerged as the president of Venezuela.
No doubt, international law is essentially interpreted based on the whims and caprices of the powerful nations. However, there is an underlying fact that an act of criminality can constitute a limitation to the claim of sovereign immunity, which may necessitate foreign intervention on international humanitarian ground. In this case, apart from various abuses of human rights under Nicolas Maduro’s regime, there is the issue of the regime running a narcotic state with the United States as its primary market. This involves the employment of armed drug cartels that flood the United States with assorted illicit drugs. This may provide a raison d’etre or casus belli for the United States to intervene on grounds of self defence.
Ironically, some of those who are condemning the abduction of Nicolas Maduro by the United States are the ones promoting and championing the International Criminal Court which has been issuing international warrants of arrests on sitting sovereigns in defiance of sovereign immunity claims.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
