So if Maduro goes to trial in an American court, is this going to be a contested legal issue about whether he can even be tried based on whether he is the head of state of Venezuela? Is that something that American courts are going to have to weigh in on?
Yes, it is something that the American courts are going to have to weigh in on. It definitely is the case that his lawyers will make the argument that he’s a sitting head of state at the time that he was seized and that he remains the sitting head of state and therefore, under international law and under U.S. law, he should be given immunity, which means that he’s not subject to the jurisdiction of U.S. courts and can’t be criminally charged. This has come up once before with the criminal indictment of Manuel Noriega, the former leader of Panama, when the U.S. invaded Panama in 1989 and seized Noriega and then brought him back to the United States and indicted him for drug smuggling and money laundering.
Back then, Noriega argued that he enjoyed head-of-state immunity, and the executive branch argued that he didn’t because the United States had not recognized him as a legitimate leader of Panama. That gives us a hint as to what is likely to happen in this case. My guess is that the United States will argue that it’s never recognized Maduro as a legitimate leader of Venezuela and therefore he doesn’t receive immunity. And the courts are going to be in the position of having to decide whether they defer to the executive branch’s determination that he’s not head of state or whether they make an independent assessment of his legitimacy as a leader of Venezuela.
How did the Noriega case play out?
In the Noriega case, the courts deferred to the executive branch. They said they were going to accept that the executive branch said that he’s not a constitutional head of state, and therefore he can, in fact, be prosecuted.
Seems quite possible they will do so again now.
It seems likely they’re going to do the same thing. I mean, this is a weaker argument on the part of the executive branch.
Why weaker?
Maduro did clearly seize power after losing the election. But, nonetheless, he’s been acting as the head of state for quite a while, and he’s been recognized by a number of other countries as a legitimate head of state. He’s been exercising the powers of head of state. He’s been directing the military. He’s been running the country. Noriega had served as an unelected military dictator alongside various Panamanian Presidents. So he had a weaker claim to be head of state. But, to be clear, none of that justified the use of force.