On 3 January 2025, the US carried out a military operation on Venezuelan territory that culminated in the capture and removal of Nicolás Maduro and his wife. This operation plainly breaches Article 2(4) of the UN Charter and may amount to an act of aggression (as explained here, here or here). Not only that, but it also constitutes a flagrant violation of the law of immunities. Even if one were to accept the US’s —highly contestable— narrative of combating drug trafficking, immunity ratione personae remains a hard bar to such unilateral forcible capture and the ensuing attempt to subject Maduro to domestic criminal proceedings. This contribution explains why none of the recognized exceptions to that immunity is applicable here.
Under Article 226 of Venezuela’s Constitution, the President of the Republic is both Head of State and Head of Government. On that basis, Maduro qualifies as the incumbent holder of the offices protected by personal immunity under customary international law, as the ICJ famously affirmed in the Arrest Warrant case (paras. 51-54). This has also been repeatedly stated by the ILC, including in its 2013 Report (65th session, Chap. V, pp. 43-47) and the 2nd Report of the Special Rapporteur on Criminal Immunities, 2013 (para. 59). The US has sought to avoid that conclusion since 23 January 2019 by recognizing Juan Guaidó as interim president. The same posture underpinned the DOJ’s 26 March 2020 announcement of criminal charges against Maduro, and it now sits alongside the unsealing of the latest superseding indictment in the Southern District of New York (SDNY) proceedings.
From immunity stems inviolability, which protects incumbents from detention by foreign authorities (ILC 6th Report, 2018, paras. 69-72). The US has in this regard stated that “in addition to immunity from criminal jurisdiction, heads of state, heads of government, and foreign ministers who enjoy personal immunity also benefit from personal inviolability, a protection that informs their treatment in the criminal context” (see the US Comments on the 2022 ILC Draft Articles on Criminal Immunity, pp. 3-4). Accordingly, a forcible detention breaches inviolability and, where it is aimed at subjecting the official to foreign criminal proceedings, constitutes a prima facie violation of immunity. None of that appears to be addressed in the Office of Legal Counsel memorandum that justified the operation.
The US would therefore need to show that one of the few recognized avenues for overcoming immunity ratione personae is present: prosecution in the official’s own courts; waiver by the official’s state; prosecution once the official leaves office; or proceedings before an international criminal court with jurisdiction (Arrest Warrant, para. 61). I argue that none applies here.
1. No “crime-based” exception to personal immunity
The SDNY superseding indictment charges Maduro with four offences: (i) narco-terrorism conspiracy; (ii) cocaine importation conspiracy; (iii) firearms offences involving machine guns and destructive devices in relation to drug trafficking; and (iv) conspiracy to commit those firearms offences, alongside forfeiture allegations.
None of this matters for personal immunity. Under customary international law, ratione personae immunity is status-based and —at present— recognizes no exception grounded in the gravity or nature of the crimes alleged (see the 2008 UN Secretariat Memorandum, paras. 147-148, or the ILC 5th Report, 2016, para. 240). That debate, to the extent it exists at all, concerns immunity ratione materiae and only in relation to a limited set of international crimes (genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance). If the US were to argue for a crime-based exception here, it would be more than awkward: it has itself maintained that no such exception exists even for ratione materiae immunity, including for the gravest crimes under international law (see here, pp. 19-20, 98-100).
2. No “private acts” exception to personal immunity
The US might then try a familiar move: recast the conduct alleged in the SDNY indictment as “private” (ultra vires) rather than “official”. US domestic case law has occasionally gestured in that direction. In Hilao v. Estate of Marcos, the 9th Circuit suggested that the Foreign Sovereign Immunities Act (FSIA) “does not immunize” an official for acts beyond the scope of lawful authority, treating conduct outside statutory limits as “individual and not sovereign” action. And in United States v. Noriega, the district court rejected the idea that alleged drug-trafficking and money-laundering protection could qualify as public acts, characterizing them instead as measures pursued for Noriega’s “private self-interest” and “personal financial enrichment”. For a more comprehensive treatment of “conduct-based” immunity, Keitner provides a clear analytical roadmap.
That line of argument, however, does not do the work the US would need it to do here. As a matter of customary international law, personal immunity is not act-based: ratione personae shields an incumbent head of state regardless of whether the impugned conduct is “official” or “private” (see ILC 2nd Report, 2010, paras. 35-37 and ILC 1st Report, 2024, para. 100). The official/private distinction becomes relevant only once the official leaves office, when the analysis shifts to the scope of a residual but retained ratione materiae immunity for acts performed in an official capacity —a point the US itself has endorsed (see here, paras. 146, 150).
In any event, the “private acts” framing sits uneasily with the indictment’s own theory of the case. The narrative is not that Maduro acted as a private criminal detached from the state. It is that he allegedly abused public office and state machinery —“positions of public trust”, “authority”, and corrupted “institutions”— to facilitate trafficking, using quintessentially official tools such as state protection, diplomatic documentation, and diplomatic cover for flights. In short: the act-based argument would be legally misplaced against ratione personae immunity and factually at odds with how the prosecution itself pleads the case.
3. The non-recognition argument
The argument that the US is most likely to press is non-recognition: that, because it does not recognize Nicolás Maduro as Venezuela’s president, he cannot claim personal immunity before US courts. The playbook is familiar. On 15 December 1989, Manuel Noriega —then Panama’s de facto ruler— had himself declared “Head of State”. Five days later, the United States invaded Panama, captured him, and brought him to the Southern District of Florida to stand trial. When Noriega invoked head-of-state immunity, the district court rejected the claim on the ground that recognition of foreign governments and their leaders is a discretionary foreign-policy decision committed to the Executive Branch and conclusive upon the courts, and that the US did not recognize Noriega as Panama’s head of state. The court also relied on the Ker–Frisbie doctrine, under which a criminal court is not deprived of jurisdiction merely because the defendant was brought before it through unlawful means.
The same logic is visible in Lafontant v. Aristide. There, the court affirmatively sought the US government’s position, and the State Department issued a suggestion of immunity. In Samantar v. Yousuf, the US Supreme Court held that immunities are governed not only by the FSIA but essentially by common law. The Court, however, did not displace the practice that the Executive’s position is essential to immunity determinations (see a commentary here and here). This so-called “one voice” doctrine is also reflected in other jurisdictions, such as the UK, (as Talmon and Webster explain).
In any case, the argument of non-recognition to circumvent personal immunity is, in my view, unconvincing for three reasons. First, customary international law recognizes no non-recognition-based exception to personal immunity. Even if the ILC initially considered not to address the issue of recognition in relation to immunity (see here, para. 124), in its 2022 Report (73rd session) it stressed that “the conditions under which [the official] acquires the status of Head of State” are irrelevant so long as they “actually hold that office” (p. 215, draft article 3, commentary 5).
Second, creating an exception through non-recognition would cut against the function and very purpose of personal immunity. As the French Cour de Cassation recently ruled in the Bashar Al-Assad case (paras. 16-20), the object of personal immunity requires that it not be linked to recognition of head-of-state status by the forum state, since recognition is a unilateral and political act. Conditioning immunity on recognition would hand every state a discretionary license to authorize domestic prosecutions against foreign heads of state, thereby hollowing out personal immunity. That would be incompatible with the rationale of immunity, which is not granted for the official’s personal benefit but to ensure the effective performance of their functions and to prevent foreign interference (see Arrest Warrant, para. 54).
Third, US domestic law does not compel the further step from recognition to immunity. The fact that the Executive has the authority to (de)recognize foreign governments does not automatically translate into the domestic legal consequence of denying immunity. In Guaranty Trust Co. v. US, the Supreme Court held that while the Executive’s act of recognition is conclusive on domestic courts, “they are free to…decide for themselves its legal consequences in litigations pending before them” (pp. 137-138). Otherwise, recognition would shift from an executive determination to a lawmaking act —a move Yelin has criticized.
4. The “retrospective/retroactive waiver” argument
The United States might alternatively argue that a “new” Venezuelan government could waive Maduro’s immunity. That argument is equally unpersuasive. Any waiver must be express, clear, and unequivocal, and it must emanate from the competent authority under Venezuelan domestic law (ILC 7th Report, 2019, paras. 70-79, 83). As matters stand, the succession mechanism under Article 233 of the Venezuelan Constitution —assigning interim presidential authority to the President of the National Assembly in cases of absence— has been followed, and Delcy Rodríguez has been formally sworn in. That latter development could be invoked to argue that Maduro no longer qualifies as head of state. Such a characterization has been explicitly rejected by Vice President Delcy Rodríguez, who insists that Maduro remains “the only President of Venezuela”. Further, Article 233 of the Venezuelan Constitution frames “absolute absence” as an internal constitutional trigger for a succession mechanism, which does not readily appear transposable to a scenario in which the incumbent is forcibly removed from power by a foreign nation.
More fundamentally, and in any event, the grant of a waiver is an exercise of sovereignty (see Fayed v. Al-Tajir) and must therefore reflect a free and genuine form of “consent”, not a position produced under external control or political coercion. That assumption is difficult to sustain where the Trump Administration openly asserts that it will “run” the country. In any event, a post hoc waiver cannot retroactively sanitize a prior breach of ratione personae immunity and inviolability. At most, it could affect the future conduct of proceedings (ex nunc), not erase the primary violation allegedly committed at the moment of forcible capture (which would require an ex tunc effect).
Taken together, it appears that the US cannot offer a persuasive argument for having violated the personal immunity of an incumbent head of state. In my view, the prevailing absolutist reading of ratione personae can, at times, frustrate accountability. But if personal immunity is ever to be pierced, it should not be in this case —under these circumstances—and certainly not on the back of “narco-terrorism” charges. At the very least, it should not hinge on those allegations alone, given the far graver abuses widely attributed to Maduro, including torture, extrajudicial killings, and enforced disappearances, which may amount to crimes against humanity. Crimes that, curiously (and perhaps deliberately), are absolutely absent from the current indictment.