BY BRIAN PATRICK BOLGER
The ‘Rules Based’ International legal order, that convenient phantom, had its coffin nailed at Nuremburg in 1945. Yet the accepted mainstream news take on Venezuela was that Maduro’s flight of fancy to the US was something crashing the norms of the ordered world of modernity. A usurpation of the decent normalcy of the twentieth century. Please. As Cicero opined “In time of war, the laws are silent” (Inter arma enim silent leges).
On 3 January 2026, United States armed forces carried out a military operation in Venezuela that resulted in the capture of President Nicolás Maduro and his wife, Cilia Flores, who were transported to the United States to face federal criminal charges. The intervention has since generated intense legal debate, centring on whether the actions violated international law, constitutional constraints on the use of force, and longstanding principles of sovereignty and immunity.
Legal scholars and international law authorities rolled out the usual verbatim responses. That the use of force by one state against another is tightly circumscribed by the United Nations Charter, particularly Article 2(4), which prohibits the threat or use of force against the territorial integrity or political independence of any state absent Security Council authorisation or a valid claim of self-defence. According to international law expert Geoffrey Robertson KC, the operation’s conduct “was contrary to Article 2(4) of the United Nations Charter” and constitutes a ‘crime of aggression’, describing it as ‘the worst crime of all.’
Professor Elvira Domínguez-Redondo similarly concluded that the attack amounts to an ‘unlawful use of force’ and defined it as a ‘crime of aggression’ under the charter, adding that there was ‘no evidence whatsoever’ justifying the operation either through an authorised Security Council resolution or a genuine self-defence claim.⁽¹⁾ Both Robertson and Domínguez-Redondo underscore that international law sets a high bar for intervention that was not met in this case.
The United Nations’ leading officials have echoed these concerns at the institutional level. UN Secretary-General António Guterres warned that the operation sets a ‘dangerous precedent’ for how disputes among states are conducted, since unilateral force without broad international consent undermines the architecture of the post-World War II order.⁽²⁾
Critics also point to wider implications for sovereign immunity and the protection afforded to sitting heads of state under international law. As articulated by the panel of UN human rights experts, the unprovoked use of armed force on Venezuelan sovereign territory is a breach of international law and may ‘also constitute the international crime of aggression attributable to the individual political and military leaders involved.’ They further noted that under international law, a sitting head of state like Maduro enjoys immunity from the criminal jurisdiction of foreign courts while in office, complicating the legal basis for his abduction and prosecution.⁽³⁾
On the U.S. constitutional side, critics argue that relying on domestic criminal indictments alone cannot justify unilateral military force. Without a clear Authorization for Use of Military Force (AUMF) or express congressional approval, there is no statutory basis empowering the president to employ such force abroad for law enforcement purposes. Furthermore, while U.S. courts historically apply the ‘Ker-Frisbie doctrine’ to uphold jurisdiction irrespective of how a defendant is brought before the court, this judicial practice does not validate the underlying military action that made the abduction possible.
Proponents of the administration’s rationale, including some U.S. officials, have framed the operation as a “surgical law enforcement operation” against indicted fugitives of American justice, but legal experts caution that labelling does not transform an act of war into a lawful enforcement action under international law. They stress that powerful states cannot rely on domestic criminal law as a shield for what is otherwise internationally unlawful use of force.
The broader concern among legal scholars is that permitting such actions without robust legal justification weakens international legal norms. If one state can use force on another’s territory based on indictments or alleged criminal conduct, the prohibition on the use of force that underpins the UN Charter would be severely eroded, potentially inviting reciprocal interventions by other powers. These are the juridical arguments for and against the intervention.
These legal rationales exist only at one level of the ‘law’. Carl Schmitt , in ‘The Nomos of the Earth’ ( 1950) wrote that:
The traditional European international law rested on a concrete spatial order; once that order dissolved, international law became a collection of norms without a concrete guarantor.” (4)
This was the ‘jus publicum Europaeum’, roughly from Westphalia 1648 to the First World War. There were a limited number of recognised European sovereigns and shared assumptions about war, territory, and authority. This was not ‘international law’ in the modern universal sense. It was a regional legal order among roughly equal powers. The order of Europe worked because each state controlled its territory, wars occurred between states, not as moral crusades. Enemies were recognised as legitimate opponents, not criminals. The onset of a commercial imperialism in the twentieth century and its denouement in globalisation has ensured a chaotic period of missionary liberalism. The presumptions being visible in governance and development for example.
The rise of the universalist ideologies, liberalism and communism, combined with decolonisation and the multiplication of formally equal but materially unequal states, led us to were we are today. A bit like playing football with a square ball. This has meant that a messianic belief in a ‘correct’ way continues unabated . The kick back is the multipolarity of the present debacle. This is reflected in the apparatus of legitimacy -the reality of sanctions enforcement. Robert Pape in a study of UNSC and general sanctions estimates that about 5% of sanctions have any useful effect (5).
Thus the precedents set by Nuremburg. That was that the victor in war dictates the legal norms. There were no Soviet nomenklatura standing trial for the alleged 2 million murders (and rapes) of civilians in Germany in 1945. The real raison d’etre behind the Trump Doctrine is that the UN is incapable of enforcing anything but a continuous monologue of resolutions, usually vetoed, without any force based backstop. The new Marilyn Monroe Doctrine, when the ‘Spectacle’ blends with reality, is an attempt to carve out a return to realpolitik and geographic realities. This is a descriptive not normative formulation. It is not hoping what the world ‘ought to be’ but ‘what it is’. It has no political affiliation. It is underpinned by Mearsheimer et al who echo the nasty, brutish and short history of International Law since the onset of the twentieth century. Thucydides, an Athenian general, in his ‘History of the Peloponnesian War (the Melian Dialogue, Book V)‘ called it out at the onset of state formation:
The strong do what they can and the weak suffer what they must.”
Brian Patrick Bolger has taught International Law and Political Philosophy at Universities in Europe. His articles have appeared in leading magazines such as The Spectator, The Salisbury Review etc and journals worldwide in the US, the UK, Italy, Canada, etc. His new book- ‘Nowhere Fast: Democracy and Identity in the Twenty First Century’ is published now by Ethics International Press. He is an adviser to several Think Tanks and Corporates on Geopolitical Issues.
Footnotes
2.https://press.un.org/en/2026/sgsm22974.doc.htm
3.https://www.ohchr.org/en/press-releases/2026/01/un-experts-condemn-us-aggression-against-venezuela
4. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (1950), trans. G.L. Ulmen (New York: Telos Press, 2003)