In this post, I want to provide a couple of thoughts on some aspects of the unlawful US attack on Venezuela on 3 January. Before doing so, however, I should simply say that I completely endorse the analyses of colleagues here on EJIL: Talk! and on Just Security. The illegality of the US military operation again Venezuela is so obvious, so manifest, and so egregious, that the issue is simply not open to reasonable disagreement. Contrary to the tepid remarks of the leaders of some US allies, and to their careful obfuscations at the Security Council meeting on Monday, there is nothing legally complex about this situation. The violations of international law are as plain as day, as is the display of shameless American imperialism.
Having said that, in this post I will discuss: (1) some aspects of the justifications the US has so far offered for its actions, which, most importantly, took the lives of some 80 people; (2) the use of cyber in the operation; and (3) the continuing violation by the United States of the prohibition of intervention in Venezuela’s internal affairs.
The US justifications
Having watched President Trump’s press conference, and then the Security Council meeting a few days ago, I was struck by the absence of an articulated legal justification by the US government for its actions. This is, I’m sure, partly due to the general disdain of the current administration for (international) law, and partly due to the total amateur hour situation at the highest levels of government – anyone who watched US Ambassador Mike Waltz address the Council would, I’m sure, share my sentiment. Apparently, however, there is some kind of memorandum by the US Department of Justice that gave its blessing for the operation, the contents of which are yet to be disclosed – one can only imagine the pliant lawyering that took place there.
So, having suffered through watching Waltz do his little waltz at the Council, I thought his silences were more remarkable than what he actually said. In particular, he did not mention the only conceivable justification for its use of force that the US could offer, and that is self-defence. That term simply doesn’t appear in his halting speech before the Council, even though he did mention it, prominently, in an appearance on Fox News the day before. One imagines the omission was deliberate. Obviously, self-defence is completely inapplicable here – the idea that the ‘narcoterrorist’ Maduro had committed an armed attack against the United States in the sense of Article 51 of the Charter is laughable. But I nonetheless thought it was quite surreal to compare this speech (and Trump’s press conference) to how Putin extensively discussed self-defence and the Charter in his speech justifying the invasion of Ukraine. How far we’ve come in such a short time.
The justification that Waltz offered instead was this:
As Secretary Rubio has said, there is no war against Venezuela or its people. We are not occupying a country. This was a law enforcement operation in furtherance of lawful indictments that have existed for decades. The United States arrested a narcotrafficker who is now going to stand trial in the United States in accordance with the rule of law for the crimes he’s committed against our people for 15 years.
A similar action was taken in 1989 against Manuel Noriega. He was arrested, indicted, convicted in a court of law, served in prison in the United States and in Panama. And the Panamanian people, the American people, are safer for it. And undeniably, the region was more stable.
‘There is no war’ – what is it then, a special military operation? Of course this was a use of force, and of course under international law no state can engage in ‘law enforcement’ on the territory of another state without its consent, whether the person being arrested was a foreign head of state or a purely private individual. And then there is the justification of one unlawful action (Venezuela) by reference to another (Panama). Who exactly is meant to be persuaded by such reasoning?
Interestingly, one US official did repeatedly mention self-defence when referring to the 3 January attack, and that is the Chairman of the Joint Chiefs of Staff, General Dan Caine, during Trump’s press conference. The general noted that when US helicopters came under fire ‘they replied [to] that fire with overwhelming force and self-defense,’ and that ‘[t]here were multiple self-defense engagements as the force began to withdraw out of Venezuela.’
Needless to say, when the US invades another country, and the armed forces of that country respond by using force, it is the invaded country that is exercising self-defence and not the United States. This would be like a Russian general saying that his forces in Ukraine opened fire on the Ukrainian military in self-defence. Perhaps General Cain was here referring to some legally irrelevant notion of ‘unit’ self-defence. In jus ad bellum terms, however, his forces in Venezuela where clearly the aggressors.
Killing eighty to abduct two
The saddest aspect of this whole episode is that Trump et al care not one bit about the suffering of the people of Venezuela, including about what Maduro did to them. Nor do they care about what future awaits them. The second saddest is that the human cost of Trump’s show of force is completely disregarded. Venezuelan officials have stated that 80 people were killed in the raid, while American officials assess that number to be about 75. While the US operation was undoubtedly impressive from a military standpoint, including here the fact that no American soldiers were killed, the callous disregard for the 80 people who were killed is nonetheless shocking to me. As if their lives mean nothing.
As a legal matter, some of the people killed were members of the Venezuelan military, and as combatants in an international armed conflict were lawful targets under international humanitarian law. But many of these people were civilians – and that likely includes the Cubans who were acting as Maduro’s security detail. The morally completely uninvolved bystanders were definitely civilians. And all of these people were killed just so that Maduro and his wife could be brought to trial before a court in New York. How this counts as ‘law enforcement’ is beyond me. From a human rights law perspective, I also don’t see how these deaths could be anything other than arbitrary killings.
Cyber
One aspect of the US attack that has gone a bit unnoticed is how the use of kinetic force was preceded by a cyber operation. This is how the New York Times describes it:
Inside Venezuela, the effort began with a cyberoperation that cut power to large swaths of Caracas, shrouding the city in darkness to allow the planes, drones and helicopters to approach undetected.
This cyber operation likely does not qualify as an ‘attack’ in the sense of IHL, if it only resulted in a temporary disruption to the electricity network in Caracas. This is because attacks require violent consequences – foreseeable death, injury or damage. A minority of experts and states have argued that losses of functionality, which do not lead to such consequences, could nonetheless count as attacks. My sense is that we would need to know more about the actual effects of the electricity cut in Caracas to have a final determination of whether the cyber operation was an attack, which would then entail the application of IHL targeting rules. As a general matter, even if these rules did apply, the operation could be justified under them if it was done, as the reporting suggests, to disable part of Venezuela’s air defence system. (See more Rule 92 of the Tallinn Manual 2.0 and commentary; and see also this post by Mike Schmitt discussing attacks on power infrastructure more generally).
So, as things stand at least I see nothing legally problematic under IHL about the use of cyber here as such. What is problematic is the use of cyber to facilitate a series of internationally wrongful acts – the kinetic use of force, including the killing of 80 people, and the abduction of Maduro and his wife. That is the legal issue here – cyber complicity, rather than cyber illegality per se. Such complicity could have state responsibility aspects, were a third state to assist the US in its wrongful acts (which is not the case here), or it could have individual criminal responsibility aspects. As a general matter, the episode clearly shows how cyber could be used to facilitate kinetic acts (which could themselves be criminal). I would refer readers in that regard to the ICC Office of the Prosecutor’s recent Policy on Cyber-Enabled Crimes under the Rome Statute, esp. paras. 109-116.
Intervention and coercion
The final point I wish to discuss here is just how blatantly the US action on 3 January, and various statements and acts that have followed it, have constituted a continuing breach of the prohibition of intervention in the internal affairs of other states. The point is again so obvious that it hardly needs to be made. Readers will recall that, as authoritatively interpreted by the ICJ in the Nicaragua case (para 205), prohibited intervention has two elements which both need to be met: (1) an interference in the internal or external affairs of another state, which is (2) coercive in character:
[The principle of non-intervention] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force […]
As I have explained in detail elsewhere, coercion can take two forms: coercion-as-extortion, where through threats of harms, or the implementation of such harms, the coercing state compels the leadership of the coerced state to take a course of action that they otherwise would not have taken; and coercion-as-control, a direct deprivation of the victim state’s ability to control its internal or external affairs, e.g. through the fomenting of coups or interference with elections, without the demand-threat-harm dynamic that characterizes coercion-as extortion (see more here, here, here, here and here).
Both of these forms of coercion are present here. The United States has directly deprived Venezuela of its ability to control its political system, by kidnapping Maduro and apparently engineering some kind of deal with the leftovers of his regime, especially Vice-President Rodriguez and her brother, the speaker of the national parliament, who was apparently the main conduit for negotiations with Trump. Trump has made clear demands of the Venezuelan government – these now include not only the continuing presence of American companies in the Venezuelan oil industry, but also the physical transfer of millions of barrels of oil to the US, and the severing of ties with Russia and China. All of these are matters that squarely fall within Venezuela’s internal and external affairs. And these demands are clearly backed by severe threats – of renewed use of force by the US against Venezuela, and even of direct harm to the regime leaders, with Trump expressly telling Rodriguez that ‘if she doesn’t do what’s right, she is going to pay a very big price, probably bigger than Maduro.’
That’s simply where we stand today: the United States is clearly flouting the prohibition of intervention, with the US president behaving as a racketeering mafia don – the Donroe Doctrine and the ‘Trump Corollary’ being fancy names for the kind of bullying behaviour that all Americans, who still live in a democracy capable of keeping its leaders in check, should be greatly ashamed of. Those who endorse such behaviour, or fail to condemn it, should equally be ashamed and share the responsibility for the failing global order. The irony that the people of Venezuela will likely continue to suffer under a dictatorship that for now remains largely intact and will likely cooperate with Trump just adds insult to injury. And 2026 has barely even begun.