Maduro’s Capture and International Law: The Noriega Precedent

David J. Scheffer is a senior fellow at the Council on Foreign Relations, with a focus on international law and international criminal justice. 

After the extraordinary U.S. operation to capture and extract Venezuelan leader Nicolás Maduro, it is worth recalling the circumstances of the U.S. invasion of Panama in 1989 and its resulting extraction and arrest of General Manuel Noriega on federal drug trafficking charges. Noriega was convicted in federal court, sentenced to a forty-year term of imprisonment, further convicted in French and Panamanian courts, and died in 2017.  

The Noriega case merits comparison with the unfolding situation in Venezuela. Both leaders were indicted in U.S. courts on sweeping narcotics-related charges, and in both cases, Washington pursued physical custody of a sitting (albeit disputed) head of state and more, raising difficult questions about international law and the extraterritorial reach of U.S. criminal law. The following excerpts from one of my chapters in Right v. Might: International Law and the Use of Force (Council on Foreign Relations, 2nd ed., 1991) highlight some of the relevant issues.  

From the ‘Reagan Doctrine’ to ‘thugs in high places’

As the Bush administration considered options against Noriega, it sought a policy and legal framework that went beyond the logic of the anti-Soviet Reagan Doctrine. One of the legal memoranda described below has also been cited in connection with the Maduro operation.  

“Relations between the United States and the authoritarian government of General [Manuel] Noriega … steadily deteriorated during the 1980s. The antidemocratic character of Noriega’s regime, as well as his alleged participation in the trafficking of narcotics to the United States, proved politically unacceptable to the [Ronald] Reagan and [George H.W.] Bush administrations. 

. . . 

[W]ould the extraterritorial reach of U.S. criminal law empower U.S. law enforcement agencies and armed forces to seize alleged criminals in foreign countries without the knowledge or permission of local authorities? In two legal memoranda [Bush’s] Justice Department reportedly concluded that the Federal Bureau of Investigation and the U.S. armed forces can legally seize fugitives in other countries under such circumstances, even though such arrests may contravene restrictions found in customary international law. The State Department legal advisor also argued, in supporting the FBI’s domestic legal authority to make nonconsensual arrests of fugitives abroad, that the ‘threats give rise to the right to resort to self-defense.’ Hence, arrests of this character could be regarded as legitimate acts of self-defense. 

What emerged from these events was the bare outline of a policy of intervention that differed from its predecessor, the Reagan Doctrine. The Bush policy appeared to endorse direct and indirect military intervention to promote democracy in totalitarian states and to combat international lawlessness. The administration did not conceive this policy as a reciprocal response to Soviet intervention. Rather, its target was thugs in high places, but only those thugs posing a threat to U.S. national interest. In some respects, the Bush policy presents a greater challenge to international law than did the Reagan Doctrine. The latter at least pegged its legitimacy on the right to counter-intervene against an external power—the Soviet Union—providing armed assistance to an oppressive government. The Bush policy offers no pretense of counterintervention. By the fall of 1989, it had evolved as a two-pronged policy: one aim was to remove a rogue leader, whether indirectly—by military coup, with its high, but acceptable, risk of assassination of government leaders—or directly—by the massive deployment of U.S. armed forces with orders to capture government leaders. The second aim was to promote democracy by force of unilateral military intervention against an ‘illegitimate’ regime. 

Washington chose the direct route in late December 1989, sending 14,000 U.S. armed forces to invade Panama in Operation Just Cause. As described by Bush administration officials in its early hours and days, the operation sought to achieve four objectives: to protect American lives, to restore the democratic process, to preserve the integrity of the Panama Canal treaties, and to apprehend Noriega. None of these objectives survives legal scrutiny with much credibility, a result that became increasingly evident as the facts about the operation belied the administration’s characterizations of them. Official statements revealed a jumble of legal rationales and vague generalities to justify the military intervention.” 

A blunt approach to gaining custody of a foreign leader 

There are significant legal hurdles to obtaining custody of a foreign leader that include the conditions that must be met under any applicable extradition treaty, the foreign leader claiming head of state immunity while resisting arrest or seeking to block any trial, and objections that might be raised as to the way the leader was captured and treated during a forcible “rendition” operation. The United States and Venezuela are parties to a long-standing bilateral extradition treaty. 

“The fourth stated objective of the Panama invasion—to arrest Noriega—was politically irresistible. Noriega was a particularly noxious foreign leader and under indictment in the United States for facilitating drugs smuggling operations. Bush was determined to apprehend him. International law certainly does not prevent a federal grand jury from indicting a foreign leader, but it has a lot to say about how to bring individuals under indictment to justice when they are in a foreign jurisdiction. Normally, an extradition treaty between two nations provides the legally acceptable mechanism by which to transfer alleged criminals from one sovereign jurisdiction to another. The United States and Panama are parties to such a bilateral treaty. Not surprisingly, the United States could not employ the treaty against the very leader whose approval was required to implement it. … Another method, which customary international law endorses, permits U.S. law enforcement agencies to pursue and apprehend a fugitive on foreign territory, provided the host government approves of such action. Again, in Noriega’s case, that approval was impossible to obtain. 

Armed with the two legal memoranda of the Office of Legal Counsel in the Justice Department, which sanctioned nonconsensual arrests abroad by the FBI and by U.S armed forces, Bush swept aside the international legal impediments to a search-and-seizure venture against Noriega. 

The Bush administration’s four objectives were of a decidedly political character. Each embodied a perception of the national interest as the circumstances dictated. An overarching principle of international law, however, was needed to identify them as legally sound objectives: the administration relied chiefly upon the principle of self-defense to justify the political objectives and then used the political objectives to explain the legal principle.” 

A dubious ‘self-defense’ argument and international law 

In both the Noriega and Maduro cases, U.S. officials have framed large-scale narcotics conspiracies and threats to democracy as national security dangers, sometimes in language that blurs the line between crime and “armed attack.” 

“The administration invoked the self-defense provisions of the UN Charter (Article 51) and of the [Organization of American States] Charter (Article 21), and claimed it had exhausted all peaceful avenues. But rather than speak forthrightly of an armed attack against the United States, U.S. officials spoke of the four objectives in the language of self-defense: American lives had to be defended, the democratic process had to be defended, the ‘integrity’ of the Panama Canal treaties had to be defended, [and] America itself had to be defended from Noriega. 

This last claim proved particularly novel. Administration officials described Noriega’s alleged drug trafficking activities as acts of ‘aggression’ against the United States. Thomas Pickering, the U.S. permanent representative at the United Nations, associated Noriega with ‘a war as deadly and as dangerous as any fought with armies massed across borders’ and went on to say that ‘the survival of democratic nations is at stake.’ … Deputy Secretary of State Lawrence Eagleburger labeled Noriega’s alleged assistance to the cartels that shipped drugs into the United States and thus corrupted American youth an ‘intervention’ in America’s internal affairs. He warned that the United States would not tolerate any such intervention. 

These pregnant distortions of the language of international law—as attractive as they may have been to the American people—fell far short of the legal requirement for an armed attack giving rise to the right of self-defense. Drug trafficking across national borders remains a criminal activity demanding the targeted response of law enforcement agencies acting in accordance with established international criminal law procedures. Full-scale invasions to topple corrupt governments engaged in drug trafficking violate those procedures, regardless of whatever good may emerge from such use of force. 

The U.S. invasion of Panama distorted the principle of self-defense. A political agenda that tolerated few of the limitations international law imposes upon even the most well-intentioned nations overtook the principle’s central tenets—necessity, proportionality, and immediacy.”  

The global response 

Given the international law at stake in unilateral armed interventions that led to the capture of Manuel Noriega in Panama, and now of Nicolás Maduro in Venezuela, the United States faces significant criticism from other nations. Moreover, expect Russian President Vladimir Putin and Chinese President Xi Jinping to use the Venezuela precedent to promote their expansionist territorial ambitions in defiance of international law. 

“It is not insignificant that few governments endorsed the American action [in Panama]. At the United Nations, after the United States, the United Kingdom, and France blocked action in the Security Council, the General Assembly voted 75–20 on December 29, 1989, to condemn the U.S invasion and demand a withdrawal of the invasion force. The OAS found no legitimacy in the U.S. intervention and voted 20 to 1 to condemn it (the United States cast the dissenting vote). The principle of nonintervention in the internal affairs of nations—which traditionally was viewed as being consistent with and protected by the right of self-defense—was repeatedly invoked in debates before these bodies. 

Thus, as peaceful revolutions against communism were sweeping across Eastern Europe, the United States employed massive, direct, and unilateral use of its armed forces as the self-proclaimed enforcer of democracy and U.S. criminal law in the Western Hemisphere. The events in Panama, including the rapid military success, the apprehension of Noriega, and the installation of the [Guillermo] Endara government, restored American confidence in the use of force. ... In the case of Panama, it is very difficult to square the narrow political objectives of the U.S. action with the code of conduct among nations that international law represents. 

The Bush policy on overt unilateral use of force eclipsed the Reagan Doctrine on covert unilateral use of force but offered no superior claim to legitimacy. The far different response to the Iraqi invasion and occupation of Kuwait in August 1990 may well cast Operation Just Cause as a historical anomaly. But precedents of such significance as the U.S. invasion of Panama typically do not fade from the global political arena easily. In the future there no doubt will arise other lawless regimes whose conduct major powers like the United States find particularly threatening to their national interest or simply embarrassing. Whether international law holds firm in the face of more unilateral ventures or bends to conform to the political agendas of impatient governments remains to be seen.” 

These excerpts from the book Right v. Might: International Law and the Use of Force (Council on Foreign Relations, 2nd ed., 1991) have been edited to include analysis on the developments in Venezuela. Footnotes from the original text have been removed for clarity and readability. This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.