America Cannot Kidnap Its Way to Justice -By Fransiscus Nanga Roka

But this is no ordinary drug trafficking case and the story of Nicolás Maduro is far from over. This is a constitutional stress test of whether an American courtroom will enforce international law, even when that would interfere with American power.

Maduro has asked US District Judge Alvin Hellerstein in Manhattan on Sept. 2 to dismiss narcoterrorism and cocaine-importation conspiracy charges in a different racketeering case. His lawyers contend that, as Venezuela’s head of state at the time of his indictment and apprehension, he enjoyed blanket personal immunity from foreign criminal jurisdiction. The Justice Department has until October 2 to respond, with a hearing set for November 17 and trial on June 1, 2027. Maduro was arrested in Brooklyn after being captured by American forces in Caracas on January 3 and has pleaded not guilty.

The alleged crimes are grave. Maduro is accused by prosecutors of having weaponized Venezuelan institutions as part of efforts to traffic cocaine into the U.S. But the more troubling question is not what America believes he did. This is how America got him—and if Washington then gets to say that a foreign president is illegitimate, invade his country, capture him and turn it over to its judiciary for washing the outcome clean.

That is, jurisdiction by coercion instead of by right.

What underlies the claim by Maduro is almost entirely immunity ratione personae: customary international law generally protects a sitting head of state from having to answer to another nation’s criminal courts for allegedly public or private conduct. It is procedural, temporary and status-based protection; does not establish innocence or eliminate liability. Although prosecution after leaving office may remain feasible through vindication of legal process by Venezuelan courts, waiver by Venezuela or an international tribunal properly exercising jurisdiction.

Washington will probably respond with political acknowledgement. The US ceased recognising Maduro as Venezuela’s president in 2019 and dismissed his elections since then as rigged. American courts have historically been extremely deferential to the executive branch on both recognition and immunity. Prosecutors could also rely on the precedent of Manuel Noriega, who lost his argument for immunity in a case after US forces captured the Panamanian dictator.

Yet the pages of Noriega make for a shaky foundation: he was not even officially Panama’s president. Maduro wielded the machinery of Venezuela’s state and was still within its borders the legally sanctioned leader. The recognition is not a geopolitical eraser that lets Washington to create jurisdiction by simply stripping an emblematic label of diplomacy. But otherwise only leaders with good standing with powerful governments would enjoy immunity.

Alleged drug trafficking must, however, not be sufficient by itself to represent an official act entitled to immunity ratione materiae. Drug trafficking is not a proper function of sovereignty. However, that narrower finding does not address Maduro-defense while he remained arguably the head of state and it certainly does not legalize his forcible extraction from Venezuelan territory.

The stakes extend well beyond Maduro. By having made a ‘conquest first, adjudicate later’ approach US courts wash Washington provides every rival power not only with imitation of life but precedents as well: brand the leader of another state illegitimate, overthrow said leader and hold a sham trial in own country on domestic charges.

Judge Hellerstein should compel the government to divulge its entire legal justification for the operation, independently assess Maduro’s status at capture, and distinguish personal from functional immunity. Judicial Review and Extraterritorial Seizures of Foreign Officials Where domestic prosecution is not possible, Washington ought to support a credible mechanism for accountability at the international level.

The protection of Maduro must not go above the law. However, neither may the United States put themselves above international law. A conviction secured through unlawful means would punish one alleged dictator but give force to a worldwide system of abduction.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya dan Managing Partner Law Firm Victorious Indonesia