How should the international community deal with the arrogance of the military and economic superpowers?

In the early hours of 3 April, the US invaded Venezuela by armed force without a declaration of war and bombed the capital Caracas. It is thought that at least 40 people were killed, including civilians, as well as most of President Maduro’s security team. Moreover, even if President Maduro is an authoritarian dictator, the Trump-US administration’s abduction of him and his wife is an indefensible act of barbarism against a sovereign state. The reason for the armed invasion and abduction is stated to be “countering the drug influx” to protect the US from President Maduro, who is letting drugs into the country. However few people, including the US public, will seriously believe the excuses of the Trump administration. Many reports suggest that the real objective is resource concessions and the expansion of political influence in South America.

The President’s drug smuggling charges are baseless

The US Trump administration has not officially announced drug seizures, but UNODC (United Nations Office on Drugs and Crime) and the US’s own DEA (Drug Enforcement Administration) report that the leading sources for drugs imported into the US are: first Mexico (approximately 9 tonnes of fentanyl and several hundred tonnes of cocaine, methamphetamine and heroin), then Colombia (cocaine and other drugs), China in third place (fentanyl precursors), India in fourth place (precursor chemicals) and Canada in fifth (approximately 19.5 kg of fentanyl). Venezuela does not even number among these leading countries. Further, Venezuela is thought to be only a transit country for Colombian cocaine on a small scale, much less a drug producer.

The use of force and the abduction of the leader violate international law

The use of force by the US to violate Venezuela’s sovereignty and abduct President Maduro and his wife clearly violates international law. Firstly, the UN Charter is based on the principle of “sovereign equality of all its members”. Sovereign states have equal legal status with each other and no state may unilaterally violate their sovereignty. Armed aggression and detention of leaders are typical acts of violation of sovereignty.

Article 2(4) of the UN Charter [Prohibition of the Use of Force] stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. Military attacks against other states are illegal without the approval of the UN Security Council. The armed attack against Venezuela and the detention of the President are in conflict with this UN article as they are not based on Security Council resolutions.

Article 2(7) of the UN Charter [Non-interference in domestic affairs] clearly states the principle that no state may intervene in the administration of another state or in the internal political system of its territory. The armed invasion of the capital and the detention of President Maduro, as well as the unilateral declaration that the US will “run” Venezuela after the abduction of the incumbent president, are acts that ignore the sovereignty of another state and thus also in clear violation of this principle.

Article 51 of the UN Charter [Right to Self-Defence] states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. The article is clear that this right exists only in the event of “an armed attack’. Unless there is a direct military attack on the US from Venezuela, the use of force on the basis of this clause is not permitted. The interpretation that “drug smuggling” constitutes an armed attack has not been established as customary international law.

The criminal jurisdiction of US courts is questionable

Prosecution of a foreign head of state as a defendant by a US federal court is itself a possible procedure based on US domestic criminal law, but only after a lawful arrest and extradition process. A “legally valid extradition” from another sovereign state is required. In this case, the use of the US legal system on persons who have been abducted and taken by force is highly questionable under international law.

Difficult to bring US acts to justice in international courts

However, the US is not a signatory to the Rome Statute and, like China and Russia, is outside the jurisdiction of the ICC (International Criminal Court: an international criminal court that judges individual war crimes, including crimes of aggression and crimes against humanity, without reference to the UN). The ICJ (International Court of Justice: a UN judicial institution that adjudicates disputes between states, including territorial disputes) is also subject to a “Compromis” (agreement to submit to adjudication by the ICJ) by the countries concerned. It is highly unlikely that the US, at least under the Trump administration, will agree to a referral to the ICJ. The ICJ also has jurisdiction over countries that have declared voluntary acceptance of it in advance (about 70 countries), but the US withdrew its declaration in the Nicaragua case in 1986, so it would be difficult for Venezuela to appeal to the ICJ.

The Trump administration’s international law officers may have decided on this latest outrage in anticipation that the US would not actually be tried in international justice if it forcefully overthrew, by force and in violation of international law, the regime of a country that did not comply with the US. The US Republican Party did not comply with the ICJ’s 1986 ruling on the use of force against Nicaragua and interference in its internal affairs, even though the ICJ ruled that it violated the sovereignty of the state; rather, it withdrew its acceptance of jurisdiction just before the ruling was made. In 2003, the US-led “Coalition of the willing” overthrew the Hussein regime, claiming that it possessed weapons of mass destruction without grounds. However, none of the countries involved have been effectively punished under international law.

If the ICJ were to hold a trial and issue a judgment against the US, the judgment would not be implemented. At that point, the ICJ could refer the case to the Security Council for a sanctions resolution, but enforcement of the ICJ judgment would be virtually impossible against the US because the US itself can exercise its veto power. However, the inability to bring the case to court is an entirely different matter from whether or not international law has been violated.

What stance should the international community take?

Is the international community powerless to do anything about the most powerful country in the world, both militarily and economically, and has it no choice but to comply? The ICJ is not directly influenced by the Security Council. However, as mentioned above, in practice, the ICJ has not been able to play an effective judicial role in the face of the Security Council’s veto power. The Security Council is based on the major victors of the Second World War 80 years ago, with five permanent members – the US, Russia, China, the UK and France – having veto power. However, the international situation is very different from 80 years ago. Of the five countries with veto power, in addition to Russia and China, now three countries, including the US, are ruled by authoritarian powers that ignore democratic principles such as “rule by law”, “respect for human rights” and “national sovereignty”. In those countries, the “separation of powers” has become a skeleton and is not functioning. The fact that the Security Council veto, perhaps the most powerful power in international politics, has belonged to five countries for 80 years has given rise to pride and the belief that they will not be judged even if they ignore international law.

First of all, the UN General Assembly, not the Security Council, should convene a “Uniting for Peace” and adopt a condemnation resolution. Unlike the Security Council, a resolution of the UN General Assembly is not legally binding, but it is highly significant to state clearly that most of the world’s countries condemn the unrestrained and illegal acts of the major powers.

The Security Council should then establish a rule that a party cannot veto a proposal that is agreed by a majority of the members of the Council, if the permanent member is a party to that proposal. It is not a perfect analogy, but it is somewhat like a defendant in a criminal trial doubling as a judge in his own trial, which is manifestly unreasonable. The dysfunction of the Security Council stems from the fact that it cannot pass a condemnation resolution, let alone a sanctions resolution against a State even if all members except the condemned state agree. If this continues any longer, the Security Council meetings themselves could become a waste of time and there would be an increasing danger that the international community will shift from the “rule of law” to the “logic of force and military factions”.

The security strategies of small and medium-sized states in particular will be left with no choice but to either be exploited as a vassal state of a superpower or, like North Korea, to equip themselves with nuclear weapons and weapons of mass destruction to defend themselves. A cycle of distrust and military expansion will ensue. There is also concern that a “new normal” will be formed, in which international law is to be upheld by small and medium-sized states, and large states can ignore it when it is inconvenient.

However, introducing the above rules would require an amendment to Article 27 of the UN Charter, which, according to paragraph 3, requires “the approval of nine countries, including all permanent members”, which is a high hurdle. It will take time until this is achieved, but we should continue to isolate authoritarian leaders from the international community by building up a “Uniting for Peace” at the UN General Assembly.