Whether War or Police Action, the U.S. Strike on Venezuela Was Illegal
The recent U.S. attack on Venezuela and rendition of President Nicolas Maduro to New York, where he will be tried on long-standing drug-trafficking charges, was decried by member states of the United Nations Security Council as a violation of the U.N. Charter’s protections of national sovereignty and prohibition on wars of aggression. But President Donald Trump’s administration has justified it as a “law enforcement operation” rather than an act of war. In addressing the Security Council, the U.S. ambassador to the U.N., Mike Waltz, affirmed, “There is no war against Venezuela or its people. We are not occupying a country.”
The Trump administration’s actions and justifications for them raise obvious legal concerns under the U.N. Charter, as well as under older norms of sovereign immunity, which among other things protect sitting heads of state from arrest and prosecution. But the wider question of howlethal force against third parties was used to capture Maduro also requires careful attention. One reason this matters is because international law on the use of lethal force distinguishes between armed conflict and law enforcement, and the bar for collateral harm to civilian bystanders is much higher for the latter than for the former.
At this time, it is not truly known how many civilians were harmed by the operation. Two direct deaths have been confirmed, alongside 75-80 Venezuelan and Cuban security personnel. But SOUTHCOM’s battle damage assessment is ongoing, and civilian casualties are typically undercounted in the early days after a conflict event. Even if deaths remain low, civilian harm also includes injuries and extensive property damage. And according to the online investigate outlet Bellingcat, several residential buildings were destroyed.
Moreover, civilians throughout Caracas were also widely affected by the loss of electrical power, which has been attributed to the U.S. attack through some as-yet unspecified means. Even if power is cut only for a short period, a temporary blackout can be deadly to individuals on life support in hospitals or reliant on oxygen at home. For longer blackouts, the toll in terms of civilian harm can be much higher. The civilian population’s reliance upon electricity for essential services explains why the International Committee of the Red Cross typically frowns upon deliberate attacks on power grids.
A full accounting of civilian harm from the operation, including non-kinetic deaths and injuries such as those from electrical outages, will take time and likely reveal a larger number of casualties depending on how they are measured. But setting aside things like the targeting of electrical power—and the wider problems of ignoring the U.N. Charter and treating a civilian sitting head of state as a military objective—and focus solely on the number of deaths initially reported, two civilian dead and approximately 75-80 military would likely be considered a reasonably proportional strike in the context of an actual ongoing war.
However, the problem with adopting a laws of war perspective on this operation is the very fact that the U.S. claims it is not in a state of war with Venezuela, which in order to be fully legal would have required either a genuine situation of self-defense against armed attack or the blessing of the U.N. Security Council, in addition to adherence to the Geneva Conventions in conducting the attack.
In law enforcement operations, the international humanitarian law concept of proportionality in attack doesn’t apply.
Instead, the U.S. characterizes this as a law enforcement mission. And in law enforcement operations, the international humanitarian law concept of proportionality in attack doesn’t apply. The correct standard is peacetime human rights law, and the bar there is far higher with regard to the use of means and methods that put bystanders at risk of death, injury or loss of property even when apprehending criminal suspects.
Consider the rules in the United States for law enforcement. Numerous Department of Justice rules prohibit police from using deadly force on suspects except in cases of self-defense, imminent harm to others or when a fleeing individual is suspected of having caused or being about to cause serious bodily harm to others. Even under these situations, the rule is to shoot only at the suspect, and the shots should disable rather than kill. Importantly, every effort must be made to use types of force that avoid affecting innocent bystanders.
Take, for example, the reaction to the killing of Renee Good, a civilian protester in Minneapolis, by an ICE agent the same week as the Venezuela raid. Even if some Americans believe the Trump administration’s claims that Good attempted to use her car to harm the agent, most also agree that his use of force—shooting her in the face as she drove her vehicle—was disproportionate and dangerous to others. Moreover, Department of Justice policy explicitly precludes firing at motorists in moving cars precisely because, regardless of a suspect’s intent, the aftermath could cause a careening car to damage surrounding pedestrians, motorists or property.
In short, even where law enforcement operations allow for lethal force against suspects in limited cases, they place very strong safeguards against damage to bystanders. It is nearly unheard of in advanced democracies for police to approach suspects using imprecise high explosives capable of demolishing surrounding residential buildings, as is common in urban warfare when targeting military objectives. In situations where SWAT teams have inadvertently caused collateral damage in the course of apprehending a suspect—such as the 1993 raid on the Branch Davidian compound in Waco, Texas, which killed nearly 80 people—the political fallout has been significant.
And unlike in armed conflicts, it is unheard of for law enforcement to cut electricity to an entire neighborhood or city in order to arrest an individual. As noted, such an indiscriminate use of infrastructure attacks can harm, cripple or even kill those reliant on electrical power for their very lives, and would be considered disproportionate in a police context. Law enforcement is expected to treat suspects with dignity and due process—as one could argue has been the case with Maduro and his wife. But they are also required to avoid—not simply minimize—harm to bystanders.
These standards are reflected not only in domestic U.S. law, but also in global standards applicable to international law enforcement efforts. INTERPOL includes in its constitution a commitment to uphold the principles laid out in the Universal Declaration of Human Rights, and it maintains a standing commission dedicated to combatting states’ use of its Red Notice system to criminalize and persecute political opponents abroad. Human rights expectations are also enshrined in international standards for data-gathering, arrest and in particular the use of lethal force.
This is why the military and military weaponry—including high explosives but also non-kinetic means such as disruption to power grids—are typically reserved for armed conflicts in which the rules of proportionality are loosened and norms against deadly force are relaxed due to the exigencies involved in protecting entire state populations from invasion.
By characterizing the use of military force as law enforcement, the U.S. appears to be willfully blurring the context in which military force is meant to be applicable and legally evaluated, while muddling the important distinction between military operations and law enforcement. It is also applying a laws of war standard to civilian casualty mitigation in what the United States claims was really only a police operation. To meet that latter standard, the raid would have required a far more targeted, discriminate approach. The Trump administration cannot have it both ways.
Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter.