By Gwyneth K. Shaw
On Jan. 3, as most of America slept, United States forces captured Venezuelan President Nicolás Maduro and his wife, Cilia Flores, then brought them to New York City to face a federal indictment that accuses them of a drug-trafficking conspiracy.
The raid — which followed months of targeted strikes against boats allegedly carrying drugs — set off a firestorm of criticism from inside Venezuela, within the U.S., and around the world. The Trump administration says the bombings and Maduro’s arrest are part of a larger effort to stop the movement of illegal drugs, and so far, the international community has taken no action against the U.S.
Below, Berkeley Law Professor and international law expert Saira Mohamed analyzes what’s happened, what could come next, and how governments and institutions outside the U.S. could and might respond.
Mohamed specializes in international law, criminal law, and human rights. Her forthcoming book, What a Country Owes Its Soldiers, examines how international and domestic law regulate the U.S. government’s treatment of military personnel.
Mohamed, who won the law school’s 2025 Rutter Award for Teaching Distinction, was awarded the Berlin Prize in 2023 and recently finished a stint as a vice president of the American Society of International Law from 2023 to 2025. She’s a life member of the Council on Foreign Relations, an elected member of the American Law Institute, and an appointed expert for the Moscow Mechanism of the Organization for Security and Cooperation in Europe.
The Trump administration says Maduro’s arrest and extraction was a “law enforcement operation” and that the U.S. was on firm legal footing because Maduro had been indicted here. What do international laws, including the charter of the United Nations, say about a situation like this one?
Several areas of international law are relevant here, and in the interest of relative brevity I’ll focus on two. First is the prohibition on a state’s use of military force. While the Trump administration has called this a law enforcement operation, and indeed it was done at least in part in order to capture Nicolás Maduro and Cilia Flores so that they could face prosecution in U.S. federal court, it was also a military operation against Venezuela. As a military operation against another state, it is subject to the rules of international law that govern the use of military force by one state against another.
International law broadly prohibits states from using military force against other states, except in self-defense and where authorized by the U.N. Security Council. Article 2(4) of the U.N. Charter provides that states must “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The obligations for states set forth in the U.N. Charter, a treaty that the United States ratified in 1945, are binding on the U.S. government.
The prohibition on the use of force also has the status of customary international law. (Among other authorities, the International Court of Justice has affirmed the customary international law status of the prohibition on a state’s use of force, as has the U.S. government.) So there is no question that the United States is bound by this prohibition on the use of military force in 2(4).
A state’s use of force against another state violates international law unless it falls into one of the two exceptions to the broad prohibition on the use of force. States can use military force in a situation of self-defense, and they can use military force when it is authorized by the U.N. Security Council. There was no Security Council authorization for the American military operation, so the only other grounds that could possibly justify the use of force is self-defense.
The United States has not claimed that the operation in Venezuela itself was an act of self-defense. Its justifications have varied a bit, but at this point we haven’t heard much about self-defense as a justification for the Jan. 3 operation. Chairman of the Joint Chiefs of Staff General Dan Caine stated that during the operation, when U.S. forces came under fire, “they replied [to] that fire with overwhelming force and self-defense.” But the United States hasn’t described the basis for the operation itself as self-defense, at least right now.
Without a legal justification in self-defense or Security Council authorization, the operation was an unlawful use of force in violation of Article 2(4) of the Charter and customary international law.
Now even though the administration hasn’t focused on self-defense for the Jan. 3 operation, it has used the language of self-defense to describe its strikes against boats in the Caribbean and Pacific. According to the latest reporting, the United States has carried out 35 strikes, and they have killed at least 123 people.
There is no plausible argument that can describe these attacks as lawful self-defense under international law. Just like under domestic criminal law, self-defense under international law applies only in very specific and narrow circumstances. First, the right of self-defense under international law is triggered only in the event of an imminent “armed attack,” in the language of Article 51 of the U.N. Charter. The government has said the strikes have targeted drug traffickers, that the actions of cartels “constitute an armed attack against the United States,” and that the crews of the boats they have targeted are “combatants.”
Under international law, however, an “armed attack” is indeed an armed attack — it requires military force. So we’re missing a key requirement that would trigger a right of self-defense on the part of the United States. Beyond that, an “armed attack” for purposes of self-defense isn’t just any attack; it is, in the words of the International Court of Justice, satisfied by only “the most grave forms of the use of force.”
So not only are we missing a use of force; we’re also missing the gravity that would be required. Drug trafficking leads to deaths, yes; but it does not constitute an armed attack that gives rise to a right of self-defense under international law.
Let me step back for a moment to talk about the bigger picture here. The whole point of the U.N. Charter system is to stop states from using war as an instrument of foreign policy and permit a state to use military force only when a state absolutely must do so to defend itself against an impending attack. The prohibition on the use of force is the core rule of the U.N. Charter and really of the entire post-1945 world order.
The rules are not set up to allow states to use military force simply because they think it’s the best option to pursue their goals; in fact, it’s the opposite. There is no question that these killings by the United States cannot be justified as self-defense under international law.
The second area of international law I’ll discuss is the rules of jurisdiction. The Trump Administration has described this as a “law enforcement operation,” but the rules of customary international law also prohibit this kind of operation.
International law provides rules for three types of jurisdiction by states — jurisdiction to prescribe laws; jurisdiction to adjudicate them; and jurisdiction to enforce them. States have jurisdiction to prescribe laws that regulate extraterritorial conduct under some circumstances — think, for example, of using U.S. criminal laws to punish a national of another state who has committed an act of terrorism that kills Americans abroad.
But a state’s enforcement jurisdiction — the power to enforce these laws — is limited to its own territory. The only way a state can lawfully enforce its laws in another state’s territory is with the consent of that state. These are rules that have been developed through the practice of states, and of course they have — it is very troubling to imagine a foreign state’s military or law enforcement agents having the lawful authority to drop into U.S. territory to arrest and extract someone, or to imagine the U.S. military or law enforcement agents having the lawful authority to drop into a foreign state’s territory to arrest and extract someone.
I’ll note also that the killings of the persons alleged to be drug traffickers also could not be justified under international law by calling them law enforcement operations rather than self-defense under the jus ad bellum (the law governing the use of force). Just as the death penalty isn’t a permissible consequence for suspected drug trafficking under U.S. law, it is not a permissible consequence under international law.
Let’s keep talking about the boat strikes that took place throughout the fall. After the government had carried out the first few of these strikes, President Trump said the U.S. was in a “non-international armed conflict” with drug cartels. If those strikes weren’t in self-defense, were they still part of a war?
No. There was no armed conflict. International law classifies armed conflict as either international — between or among two or more states — or non-international — between a state and a non-state armed group or between two or more non-state armed groups (or involving multiple parties including a non-state group).
International armed conflict exists when there are armed hostilities between the involved states — for example, when one state bombs or invades the territory of another. A non-international armed conflict, meanwhile, requires (1) protracted and intense hostilities, and (2) an organized non-state armed group. On the second requirement, an organized armed group doesn’t just mean a group of people who are each armed; rather, the requirement of an organized armed group in the law of armed conflict is that there must be a group that is organized in the same sense of how a military is organized, even while they are not state actors, and that the group is armed against the state.
The individuals targeted and killed here were not part of an organized armed group. And there were no protracted and intense hostilities. The fact that these individuals were being killed by U.S. military forces did not turn their killing into a lawful act of war. (This should make sense, even intuitively; if a state uses its military to, say, kill protesters, it would be odd — not to mention a distortion of law — to say the military is in an armed conflict with the protesters and is allowed to kill the protesters simply because the state has declared a war against them.)
The paradigm case of a non-international armed conflict is a civil war. Another kind of non-international armed conflict, one we’ve seen more attention to in the last 25 years, is an armed conflict between a state and a non-state actor, like the armed conflict between the United States and al-Qaida. A state attacking individuals who may be involved in drug trafficking is not a non-international armed conflict.
So why would a government call this a non-international armed conflict when there are no plausible grounds for calling it that? I don’t know the motivation of those who came up with this idea. But I do know from my own research that in the United States, calling something a war makes a lot of people think that there are bad guys who are on the other side. And it makes them think that whatever needs to be done should be done. Here the language of war was used to justify killing people who posed no immediate threat to the United States.
Now you might be wondering whether, now that the U.S. has used military force against Venezuela (an act of war that would be classified as an international armed conflict, as it was initiated by one state against another), does that change the legality of the boat strikes? I’ll be brief here, but it’s important to understand that the Jan. 3 operation does not turn those killings into lawful killings in a war.
There still was no armed conflict when those killings were taking place. Beyond that, even if there had been an armed conflict then, they still would have been unlawful killings. The existence of an armed conflict means that combatants may be targeted and killed. But those individuals were not combatants.
To be sure, there is debate in the law of armed conflict about what constitutes direct participation in hostilities for purposes of crossing the threshold from a protected civilian into a person who can be targeted in armed conflict. But there is no question that drug trafficking does not constitute participation in hostilities, and so engaging in drug trafficking does not transform a person from being non-targetable to being targetable.
The only thing that the existence of an armed conflict would change is that if these killings happened in the context of an armed conflict, they would be war crimes, as opposed to crimes that take place outside of war. (This is to say nothing of information that has been disclosed about what may otherwise constitute war crimes beyond the killings themselves, such as killing of shipwrecked survivors and perfidy.) But because the killings did not happen in the context of an armed conflict, regular U.S. domestic criminal laws — including the Uniform Code of Military Justice, the criminal code that governs the conduct of military personnel — apply.
U.S. obligations under human rights law, meanwhile, apply both in peacetime and wartime; the killings undoubtedly constitute violations by the government of the right to life, which requires the United States to not subject individuals to arbitrary deprivations of life pursuant to its obligations under the International Covenant on Civil and Political Rights and under customary international law. I also think there is a strong case to be made that the killings constitute crimes against humanity (which, like other human rights abuses, exist in both wartime and peacetime).
Getting back to the operation in Venezuela, are there precedents for this type of operation, and what happened then?
There have been a lot of comparisons, including by the Trump administration, to the 1989 capture of General Manual Noriega in Panama. There, too, the justification for the military operation focused on threats to American lives, but the circumstances were different from those today.
In his War Powers Resolution report to Congress the day after the operation, President George H.W. Bush called attention to two events precipitating the capture of Noriega. First, the week prior to the operation, the Panamanian National Assembly declared that the country was in a state of war with the United States. Second, following that declaration of a state of war, Noriega’s forces in Panama killed a U.S. Marine, and committed acts of violence against a Naval officer and his wife. The Panama invasion is also distinct in that the U.S. government described it as a lawful exercise of self-defense under the U.N. Charter.
So the circumstances of the Panama operation were different. But it also was unlawful. In this regard, it might be helpful to recall not only the nature of the Panama invasion, but also the aftermath. The U.N. General Assembly quickly adopted a resolution condemning the U.S. action. The General Assembly stated that it “strongly deplore[d] the intervention in Panama” by the U.S. military and described it as a “flagrant violation of international law and of the independence, sovereignty and territorial integrity of states.” The General Assembly resolution was based on a similar one that had been put forward in the U.N. Security Council, but the United States, France, and the United Kingdom vetoed.
Can the U.N. take action here, and if so, what are the options and how would you gauge the likelihood of any of them?
The United Nations is in part a forum in which states announce their views about international events like these. But the response of individual states is filtered through the General Assembly, which is a plenary body of the full U.N. membership, and the Security Council: a body of 15 states, 10 of which are elected for two-year terms and five of which are permanent members.
Each of these permanent members — the United States, China, France, Russia, and the United Kingdom — has a veto power, meaning any one of the permanent members can prevent the Council from adopting a resolution simply by voting against it. And so in these two bodies, we might expect to see dynamics similar to what happened in the aftermath of the Panama invasion.
During a Jan. 5 meeting in the Security Council, several states condemned the operation, but we should not expect to see any resolution from this body, given the U.S. veto. The Security Council also is the body that has legal authority to order member states to take particular actions, like imposing sanctions against states or individuals, or, as I mentioned before, authorizing the use of military force. The U.S. veto ensures that the Security Council will not issue any decisions that, say, require states to impose sanctions against the United States.
The United Nations also has its own machinery that addresses violations of international law through experts and expert bodies, and we quickly saw responses there, including a statement by the U.N. Secretary-General, who expressed “deep[] concern[]” about the U.S. military action. A group of U.N. experts, meanwhile, issued a more strongly-worded statement that condemned the actions of the United States as a grave and manifest violation of international law and urged U.N. member states to condemn the act of aggression by the United States.
This statement was such a striking difference from the muted response of many European states. And that muted response is very troubling. International law, just like any other body of law, is violated sometimes. And the continued vitality of international law, just like any other body of law, depends on the actors in the legal system continuing to value it. International law also has the unique feature that customary international law depends on state practice, and that violations of customary international law can actually change the content of the law.
And so when there are violations of customary law, it is crucial for states, as well as other actors like scholars, to condemn those violations and make clear that they are violations so that the violations do not erode the rule. So I am very concerned that some states have not described the U.S. operation as a violation of international law.
If there aren’t repercussions for this, are there other countries you think might try and take a similar action?
I think there is great reason to be concerned that a lack of repercussions, both at home and abroad, might embolden the United States and its leaders — the Trump administration’s threats against Greenland have only escalated since Jan. 3, and I’d say the lawlessness of government actors has, too.
There is great concern that any flagrant violation of international law that is not condemned or subject to other costly consequences has the potential to embolden other states, too — so will the U.S. operation in Venezuela make it more likely or easier for China to attack Taiwan? I don’t know whether China is waiting for the United States to wage war against a country so that it can, too; this is a question that is better left to others to answer.
I do want to say, though, that the potential to inspire other countries to carry out similar operations is not the only reason to be concerned and even outraged by these events. Whether or not this happens, the prospect of a broader acquiescence or even acceptance of blatantly illegal acts is a concern itself, because it signals a broader acquiescence or acceptance of the idea that power — not peace or stability or the rule of law or human rights — is the foundation of the international order, and of our national order, too.
No matter what happens next, we should be troubled by the United States flouting the central rule of international law — the prohibition on the use of force — and the failure by many states, including European states, to condemn it. We should be troubled that the government is casually bandying about the possibility of running another country or invading Greenland, and that this operation in Venezuela was preceded by killings of more than 100 people whose deaths the government justified with nothing except the claims that they were drug traffickers.
Beyond that, we should be resisting the administration’s efforts to use the language of international law to justify these actions. Calling the killings of these individuals self-defense in a non-international armed conflict doesn’t make it so. There is no self-defense; there was no armed conflict with these individuals; there was just a series of killings under circumstances that we normally call murder.
And this is not just about the use of force. We should be concerned about a broader assault on international law, and a broader assault on the rule of law. A world in which power governs all is a world in which every person is less safe. It’s a world in which basic humanity and dignity are of no consequence.
Anything else that you think is important to know as part of this conversation?
The international law questions here are pretty straightforward: Neither the killings of individuals in the Pacific and Caribbean nor the operation in Venezuela were permissible uses of force under international law. The international law violations here are, of course, not unprecedented. The United States and other countries have absolutely violated the prohibition on the use of force before. But I don’t think that makes it any less important to recognize the gravity of this situation now.
A final note is about the military itself. There has been a lot of attention on six Democratic members of Congress who released a video last fall that addressed the permissibility of military personnel disobeying illegal orders. Five of those senators and members of Congress are now being investigated by the Justice Department; the sixth, Sen. Mark Kelly, a former Navy captain, is being subject to a process by which his military retirement grade could be reduced.
I am deeply troubled by the administration’s targeting of them. There is no question that under U.S. and international law, military personnel have an obligation to refuse orders that are manifestly illegal or that the person knows are illegal. (Indeed, the Department of Defense Law of War Manual uses firing upon a shipwrecked person as an example of a clearly illegal order.) This is a high standard, and orders are presumed to be lawful.
But the obligation to disobey is real. I see the administration’s response to these lawmakers as part of its broader assault on the rule of law, and as part of the broader assault on law in the context of the military. U.S Secretary of Defense Pete Hegseth began his term by firing the military’s top lawyers, and he has a history of disparaging law and lawyers in the military. This attitude is deeply misguided.
The laws that govern war protect the individuals in the military. And by that I don’t just mean these laws protect them from physical harm. Yes, people might understand the idea of reciprocity — a state should comply with the law of war in hopes that its adversary will do the same. But this is not the whole story. The law of war offers military personnel a moral and ethical framework for being able to do this job.
Removing the constraints that are provided by the law of war is harmful to military personnel themselves, and so is a system that operates with disdain for those laws and makes individuals afraid of protecting the rule of law. And so I also want to emphasize here another point: Government and military leaders are doing wrong by ordering members of the military to engage in illegal operations.
It might feel like something of a stretch to think of military personnel and their leaders in this way. It’s so common to think of military personnel as instruments of the state — they should simply do what they’re told, except in the exceptional circumstances when they’re supposed to disobey. It might be hard to imagine the government having real obligations to soldiers. Even human rights lawyers hardly ever think of military personnel as having rights to proper treatment by their governments. And we tend to look away — we say that those in the military have chosen to be a part of the military, and they have to take whatever comes. This misses that a person who has authority in the military has a set of responsibilities to use that authority responsibly and lawfully, and that means using their subordinates responsibly and lawfully.
Officers in the military are obligated under federal law to be examples of good conduct and to protect their subordinates from immoral practices. Those who are in positions of authority are understood to have an obligation to protect their subordinates. This means not just protecting them from physical abuse, but also protecting them by not ordering them to engage in illegal activity. There is even a provision in the Uniform Code of Military Justice that prohibits superiors from ordering their subordinates to break the law. It’s a crime — but of course leaders are not punished for oppression, as it’s called, when they order their subordinates to, say, engage in torture or other abuses.
When the leaders order the kinds of horrific crimes we’ve seen in the last few months, we don’t think of the leaders as abusing the subordinates themselves. We rarely even think of the leaders as having any responsibilities at all toward those subordinates. But they do. To be clear, the individuals who commit those crimes are responsible for their actions. Still, I want us all to think harder about the fact that leaders are not only abusing their positions of authority in these operations; they’re abusing the military personnel themselves. To put it simply, no one — not the President, not the Secretary of Defense, not the head of the U.S. Southern Command, not any individual commander — should be ordering a soldier to commit murder.
This concern I have — that we fail to recognize that the government has real obligations to protect the lives of military personnel — is one that is longstanding; it’s not a concern that’s unique to this administration. I’ve been writing about this for some time, and I have a book coming out later this year on this topic. But even though this concern is one that we can see at other moments, too — think of, say, the torture program in the early 2000s, and the fact that only low-level military personnel were prosecuted for their conduct — I think it’s a particularly important time to be talking about these matters.
These military actions have caused so much suffering, and they will continue to cause so much suffering. There are 123 people who have been killed at sea; and an estimated 75 who were killed during the Jan. 3 operation. My point is not to take attention away from the destruction that these actions have caused. But I hope that we also can move toward some better understanding that when the government is using its military in these profoundly lawless ways, part of the damage it is inflicting is on the soldiers themselves. And that should be a concern to us all. Because when we turn our backs on the government’s misuse of the military, we are giving a free pass to the government turning a group of people into mere instruments to accomplish their wrongdoing.