By Charles H. Camp, Lisa Bernier and Christine Magume
Article 2 of the Convention on Internationally Protected Persons[1] prohibits “kidnapping or other attack upon the person or liberty of an internationally protected person,” such as President Nicolás Maduro and his wife. The U.S. Government’s seizure of President Maduro and his wife were blatant violations of the Convention.
Introduction
At dawn on 3 January 2026, the United States launched a large-scale military operation in Caracas, Venezuela, leading to the capture of Venezuelan President Maduro and his wife, Cilia Flores. They forcibly were extracted from Venezuelan territory, transferred to a United States warship, and flown to New York, where they were arrested and charged in U.S. federal courts with narcotics, weapons, and “narco-terrorism”-related offenses. On 5 January 2026, Maduro was brought before a federal judge in Manhattan, declaring: “I am innocent. I am not guilty. I am a decent man” and that he is the legitimate President of Venezuela and a prisoner of war having been taken by the U.S. Military.
Under International Customary Law, Each State Determines Who Is Its Head of State.
Under customary international law, head of state status is determined by the internal constitutional law of the state concerned and by the effective exercise of governmental authority. This approach reflects the doctrine of the International Court of Justice (ICJ) that the organization of a state’s political authority is a matter of domestic jurisdiction, protected by Article 2(7) of the United Nations Charter.[2]
In Nicaragua v. United States, the ICJ held that external attempts to influence or dictate a state’s political system violate the principle of non-intervention.[3] Similarly, in Bosnia and Herzegovina v. Serbia and Montenegro, the Court treated the identification of heads of state as a matter determined by domestic law and factual authority rather than foreign approval.[4] Accordingly, head of state status in international law depends primarily upon an internal constitutional claim to office and the effective exercise of governmental authority, rather than external recognition by other nations. This point is central to the legal analysis.
This determination matters because a sitting head of state and members of his or her family with him,[5] enjoy immunity ratione personae, conferring absolute immunity from foreign criminal jurisdiction for the duration of office. In Arrest Warrant (Democratic Republic of the Congo v. Belgium), the ICJ affirmed that subjecting a sitting head of state to foreign criminal process would, amount to exercising jurisdiction over the state itself.[6] Similarly, the French Court of Cassation held in 2001 that international custom precludes the prosecution of sitting heads of state before foreign criminal courts.[7]
While the United States may make its own political determinations as to who is Venezuela’s Head of State, if that determination conflicts with Venezuela’s continuing internal legal and political determination that Maduro is its President and thus Head of State, he and his wife have absolute immunity from foreign criminal prosecution under customary international law.
President Maduro Has Been Venezuela’s Head of State Since April 2013, And Will Remain Such So Long As Venezuela’s Government Continues To Recognize Him As Its President.
Following the death of President Hugo Chávez in 2013, Maduro, Chávez’s designated successor, served as interim president until he was declared the winner of the April 2013 presidential election. He claimed victory in the 2018 and 2024 elections. Both were widely criticized for irregularities, restricted opposition participation, and limited transparency. Nevertheless, until 3 January 2026, Maduro remained in office and retained control of the Venezuelan state apparatus.
Despite external non-recognition by certain states, and until his seizure by the United States on 3 January 2026, Maduro continued to exercise effective control over Venezuela’s territory, institutions, armed forces, and foreign representation. The military remained loyal, ministries and courts operated under his authority, and Venezuela’s diplomats and United Nations representatives acted on his instructions. No rival authority exercised governmental power inside Venezuelan territory. Under the doctrine of effectivity[8], this establishes head-of-state status regardless of external recognition disputes.
Customary International Law Dictates That Maduro and His Wife Have Absolute Head of State Immunity From Foreign Criminal Prosecution.
The United States’s capture is unlawful not only under customary international law, but also under the United States’ own international policy, the Restatement (Third) of Foreign Relations Law of the United States Section 702(e). Section 702(e) states that “a state violates international law if, as a matter of state policy, it practices, encourages, or condones prolonged arbitrary detention.”[9] Arbitrary detention includes actions that are not pursuant to law/there is no valid legal basis for the detention.[10]
Thus, not only does the seizure of Maduro and his wife from their home in Venezuela violate their Head of State Immunity, any guilty verdict by the U.S. Federal Court in New York likewise will violate customary international law and their Head of State immunity.
In Sosa v Alvarez-Machain, the U.S. Supreme Court confirmed that U.S. courts may give effect to clearly defined and universally accepted norms of customary international law, while cautioning that ordinary unlawful detention alone does not meet that threshold. The long-recognized prohibition on attacks against internationally protected persons, however, belongs to the class of established international norms that Sosa expressly preserved.[11]
Conclusion
U.S. Government over-reach in Venezuela poses a profound question for peaceful World Order. How can U.S. actions taken by force that are contrary to customary international law—supposedly the “supreme Law of the Land” under the U.S. Constitution—be curtailed in this time of grave danger for our World—and does international law matter? In other words, is state sovereignty dependent upon recognition by other states of its Head of State, or upon the state’s own determination of its Head of State? According to established doctrine, each state chooses its own Head of State, and immunity results from the position held rather than from approval from other states. The foundations of diplomatic stability and state sovereignty will disappear if strong states have the ability to unilaterally redefine another state’s leadership to eliminate absolute Head of State Immunity and, thus, to take over effective control of the other state.
About the Authors
Charles H. Camp is an international lawyer in Washington, D.C. with over forty years of experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. Mr. Camp has taught international negotiations at George Washington University Law School for the last eighteen years.
Lisa Bernier is Counsel at the Law Offices of Charles H. Camp, P.C. She received her legal education in France in business law and holds an LL.M. in Business and Finance Law from George Washington University Law School. Her practice focuses on international business and transactions as well as corporate matters.
Christine Magume is a Law Clerk and Teaching Assistant to Mr. Camp and a third-year law student at the George Washington University Law School. Ms. Magume also is President of GW Law’s Moot Court Board, and holds a B.A. in Foreign Affairs from the University of Virginia.
References
[1] Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (hereafter the “Convention on Internationally Protected Persons”) art. 1(a), Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167 (including, within definition of “internationally protected person,” “a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him“).
[2] U.N. Charter art. 2(7).
[3] Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14.
[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. Rep. 43.
[5] Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, art. 1(1)(a), Dec. 14, 1973, U.N. Doc. A/RES/3166(XXVIII), annex (entered into force Feb. 20, 1977).
[6] Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 3.
[7] Cass. crim., Mar. 13, 2001, Bull. crim. No. 64 (Fr.) (Gaddafi).
[8] Restatement (Third) of the Foreign Relations Law of the United States § 203 cmt. b (Am. L. Inst. 1987); 1 Oppenheim’s International Law § 45 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
[9] REST 3d FOREL § 702(e).
[10] Id at § 702 comment h.
[11] Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004).
