Male Captus, Bene Detentus? Some Observations on the Trial of Nicolás Maduro

Dr Mark Chadwick, Principal Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/mark-chadwick

(c) SWinxy via Wikimedia

In a covert pre-dawn military operation on 3^rd January 2026, US forces raided the home of Venezuelan President Nicolás Maduro, and his wife, Cilia Flores, as part of an invasion that killed an estimated 100 people – mostly military personnel but including some civilians.

Maduro’s seizure marks the culmination of an increasingly hostile US-Venezuela relationship. Since coming to power in a disputed 2013 election, Maduro’s regime has been characterised by political repression, appalling human rights violations, and a shattered economy. The international community has, for the most part, increasingly taken exception to Maduro’s brutal and corrupt regime, a stance that has informed a swathe of economic sanctions and widespread suspension of diplomatic relations. In 2021 the International Criminal Court (ICC) opened a formal investigation into “crimes against humanity allegedly committed in the territory of Venezuela”, an investigation that remains ongoing, with speculation suggesting that an arrest warrant for Maduro may be imminent.

The US, for its part, has increasingly blamed Maduro for an influx of illegal drugs, having indicted him in 2020 for “narco-terrorism [and] conspiracy to import cocaine”, amongst other offences. The indictment against him claims, inter alia, that Maduro “helped manage and ultimately lead […] a Venezuelan drug-trafficking organization comprised of high-ranking Venezuelan officials” and “participated in a corrupt and violent narco-terrorism conspiracy”. The indictment also alleges that “massive-scale drug trafficking has also concentrated power and wealth in the hands of [his] family, including his wife”, explaining Flores’ abduction alongside her husband. Whether there is, in fact, any concrete evidence to support this is unclear, and Maduro himself has always denied involvement in the drugs trade.

In any event, Maduro and his wife now find themselves in a New York prison, awaiting federal trial and ready (to use the words of US Attorney-General, Pam Bondi) to “soon face the full wrath of American justice on American soil in American courts”. Their seizure and detention raise a series of knotty legal issues, both domestic and international, that may characterise the litigation in the early stages of the trial.

The issue of perhaps greatest gravity revolves around the legality of the US use of force in Venezuela on 3^rd January. The UN Charter is categorical in that, per Article 2(4), “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. A couple of exceptions are permitted within the Charter itself, namely force authorised by the UN Security Council (Article 42) and the right to individual or collective self-defence in response to an armed attack (Article 51). Neither, though, is apparent here.

Other exceptions, though, might be permitted outside of the Charter, via the notion of customary international law, whereby rules can take shape and coalesce through State practice and “legal belief” (or opinio juris). Humanitarian intervention, for instance, is often pitched as a possible further exception to the general prohibition in Article 2(4), and could form the basis of a legal claim here, especially given Maduro’s crimes against his own people. The UK is amongst those States that advocate the existence of such a permissive rule, in circumstances where “there is convincing evidence […] of extreme humanitarian distress on a large scale, requiring immediate and urgent relief” and where “there is no practicable alternative to the use of force if lives are to be saved”. Along with the US and a small handful of other States, however, we are in the minority in defending this theory which, problematically, condones and promotes self-regulated unilateralist uses of force.

Beyond the contested theory of humanitarian intervention, the suggestion that the US might forcibly intervene in another State in order to enforce its own laws there is more tenuous still. The situation is not entirely without precedent. In May 1960, Israeli agents located Nazi logistician Adolf Eichmann living at liberty in Buenos Aires. Eichmann was promptly abducted and deported to stand trial for “crimes against the Jewish people” in Jerusalem, in a groundbreaking trial. Eichmann’s abduction from Argentina was roundly condemned by States but given the severity of his crimes, the issue was largely overlooked. The UK, for example, noted that “[t]he kidnapping by nationals of one state of a person […] within the territory of another state is clearly an illegal act, and one of which the international community must disapprove. On the other hand, we have the principle […] that those who are accused of terrible, almost inconceivable crimes […] should, by some means, be brought to trial”.

Thirty years later, in January 1990, the US arrested and deported Panamanian president Manuel Noriega following a fortnight-long military operation prompted, in part, by drugs charges issued against him by a federal court in Florida (a situation closely echoed by the events of 2026). Having sought refuge in the Vatican Embassy in Panama, Noriega gave himself up after ten days of the US military, infamously, blasting the likes of Van Halen, Guns N’ Roses, and Black Sabbath at an intolerable volume. Noriega went on to stand trial and the escapade was, for the most part, internationally condemned.

In summary, the Venezuela incursion can be characterised as an unlawful use of force and as an act of aggression. Indeed, it has been widely condemned by a majority of States as such. As a Venezuelan congressman noted in the aftermath of the raid, “[i]f we normalise the kidnapping of a head of state, no country is safe”. However repulsive we may find Maduro’s actions while in office, the idea of powerful States exercising force on a self-regulating unilateral basis, according to their own policy decisions, ought to perturb the international community as a whole.

The unlawfulness of Maduro’s capture may not render the trial itself illegal as such, however: the doctrine of male captus, bene detentus suggests that legality of seizure and the legality of the trial may be separate but related enquiries. In the Nikolić case, for example, the International Criminal Tribunal for the former Yugoslavia (ICTY) was called on to consider whether it could exercise jurisdiction over an accused given his abduction and deportation from the Federal Republic of Yugoslavia “by some unknown individuals”. Echoing reasoning from Eichmann, the court held that “the correct balance must […] be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”. Hence, the court suggests, we must weigh the extent to which the illegal seizure impacts the rights of the defendant, against the severity of the crimes with which he is charged. This reasoning has been echoed by the European Court of Human Rights (Stocké, Öcalan).

The suggestion, then, is that jurisdiction in such circumstances is normatively conditional: neither impermissible nor automatic. The US, for its part, has long endorsed such practice under the Ker-Frisbie doctrine, a 150-year-old domestic legal principle stipulating that “forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him”.

Maduro and his wife may yet, though, have one card left to play. As Head of State for Venezuela, Maduro has immunity from prosecution in overseas domestic courts, a principle that is largely uncontested in international law on the basis that State leaders act on behalf of the State rather than in a personal capacity, and that incumbent leaders require immunity from overseas prosecution to effectively carry out their diplomatic duties. The principle, however, does not apply uniformly, having been eroded by cases such as Pinochet, and jurisprudence from the ICTY, which suggest that Heads of State may not claim immunity in relation to serious international crimes. Moreover, the US may argue that Maduro was never the legitimate President of Venezuela or that, in any case, he is no longer in post (a point which returns us to the previously discussed legality of his seizure and of the subsequent US claim to jurisdiction).

There is one final, but critical, potential twist in this tale: the looming possibility that the ICC may still issue a warrant for Maduro’s arrest. Head of State immunity would not present a hurdle for the ICC given that, by ratifying the Rome Statute, Venezuela has agreed to waive any such immunities. From a victim-centric perspective, the ICC would present, arguably, a more appropriate venue for Maduro’s prosecution, with the focus shifting to the crimes against humanity through which he has terrorised and impoverished Venezuela’s population, bringing justice and validation to those most affected by his reign.

The idea, however, of the US now handing Maduro over to the ICC is fanciful, given that it does not recognise the Court and has been distinctly hostile towards it under the Trump presidencies. For now, Maduro and Flores appear destined to await their fate in New York, while the world reflects on whether the old adage, “might is right”, has once again come to dominate global relations.

Further Reading:

Cases:

US Supreme Court, Ker v. Illinois, 119 U.S. 436 (1886)

Supreme Court of Israel, Eichmann v. A-G Israel, 36 International Law Reports (1968)

ECtHR, Stocké v Germany, 11755/85, Judgment (Merits), 19/03/1991

UK House of Lords, Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147

ECtHR, Öcalan v Turkey, Judgment (Merits and Just Satisfaction), 46221/99, 12/05/2005

ICTY, Prosecutor v Nikolić (Dragan), Decision on interlocutory appeal concerning legality of arrest, Case No IT-94-2-AR73, ICL 869 (2003)

United States District Court: Southern District Of New York, United States of America v Nicolás Maduro Moros et al, indictment unsealed 3^rd January 2026

Treaties:

United Nations Charter, 1945

Rome Statute of the International Criminal Court, 1998

News Articles / Press Releases:

“Music torture: How heavy metal music broke Manuel Noriega”, BBC News, 30^th May 2017

“Statement from President Donald J. Trump on the Maduro Regime in Venezuela”, White House press release, 21^st May 2018

“Manhattan U.S. Attorney Announces Narco-Terrorism Charges Against Nicolas Maduro, Current And Former Venezuelan Officials, And Farc Leadership”, US Department of Justice press release, 26^th March 2020

“ICC Prosecutor, Mr Karim A.A. Khan QC, opens an investigation into the Situation in Venezuela and concludes Memorandum of Understanding with the Government”, ICC Press Release, 5^th November 2021

Richard Hall, “Trump Says U.S. Has Captured Venezuelan President Following ‘Large-Scale’ Strikes”, Time, 3^rd January 2026

Greg Lewis, “State kidnapping: how the world responded to the

Eichmann ‘snatch’”, 4^th January 2026 (https://greglewisinfo.com/2026/01/04/state-kidnapping-how-the-world-responded-to-the-eichmann-snatch/)

Donovan Slack, Grace Eliza Goodwin and Kayla Epstein, “What is Maduro charged with and what is the evidence?”, BBC News, 6^th January 2026

“Venezuela's interior minister says 100 people died in U.S. attack”, Reuters, 7^th January 2026

Maya Lester KC and Michael O’Kane, “Venezuela: Sanctions Regime”, Global Sanctions: Law, Practice and Guidance

Social Media:

Attorney-General Pamela Bondi (@AGPamBondi), post on “X”, 3^rd January 2026, 12:25pm

Other:

Andrew B. Campbell, “The Ker-Frisbie Doctrine: A Jurisdictional Weapon in the War on Drugs” 23 Vanderbilt Journal of Transnational Law (1990) 385

UK Government policy paper: Syria action – UK government legal position, 14^th April 2018

Kevin Jon Heller, “The Illegality of ‘Genuine’ Unilateral Humanitarian Intervention, 32 European Journal of International Law (2021) 613

Cyril Laucci, “US Sanctions Against the ICC: From Stupor to Action”, OpinioJuris, 19^th December 2025