Professor Alexander Orakhelashvili
In their recent post on Just Security, Tracey Begley, Benjamin R. Farley and Michael Schmitt seem to suggest that President of Venezuela Nicholas Maduro is a prisoner of war and that, on that basis, he can be tried in the United States for crimes that he may have committed before his capture. This rather bold suggestion depends, for its viability, on President Maduro having been captured as a prisoner of war during an international armed conflict (IAC) governed by 1949 Geneva Conventions.
The Conventions apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (Article 2). The contended issue is whether an IAC could exist in the absence of continuing or protracted hostilities between armed forces of two or more States. It bears recalling here that the US invasion of Venezuela lasted for about a couple of hours; it involved gun battle in which members of President’s security team and Cuban servicemen were killed. From the above data, it appears difficult to conclude that Venezuela’s armed forces would manage to put up a proper or substantial resistance to the US forces before the latter achieved their objectives and left. Therefore, it is very unlikely that that there was a proper or sustained confrontation between armed forces of two States and hence there was an international armed conflict in which President Maduro could be captures as a prisoner of war.
Begley, Farley and Schmitt suggest that “the existence of an IAC does not depend on “protracted” armed violence at a significant level of intensity” and cite, in support of that proposition, paragraph 70 of the ICTY’s interlocutory appeal decision in Tadic. However, it is not clear at all that the Tribunal adopted in that case a binary and straightforward distinction between international and internal armed conflicts. Beyond what the three above authors cite, the Tribunal said, in relation to both types of armed conflicts, that “International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.” In other words, IHL applies to armed conflicts that last and involve hostilities over a certain period of time. Hence, on a more careful reading of Tadic, hostilities ought to have taken place, as something that has been initiated, continued and ended, in order for any armed conflict including IAC to exist in the first place. This position is not changed by that fact that some internal document of the US Government says that the Venezuela operation “will constitute” an IAC.
It will be recalled that the same partial reading of paragraph 70 of Tadic as one above has been employed in the commentary to the Third Geneva Convention prepared by the International Committee of the Red Cross (ICRC). The Commentary suggests that “There is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists” (paras 251, 269-270). As explained earlier, there are multiple flaws in the ICRS’s approach to this matter, ranging from analytical flaws to evidentiary ones.
Therefore, the outcome is that IHL did not apply to the US use of force in Venezuela, that operation was governed by other areas of international law such as jus ad bellum (under which it was plainly an act of aggression) and human rights law, and consequently President Maduro does not qualify as a prisoner of war. The argument that IHL applies to this situation serves not other purpose than to justify the trial of a foreign head of State in the USA for which there is no other legitimate ground available under international law. Instead, under both jus ad bellum and human rights law, as well as pursuant to secondary rules on State responsibility, US authorities are obliged to release President Maduro, because legal consequences of aggression cannot be lawfully maintained intact, because under human rights law the male detentus principle applies, and because under the law of State responsibility US authorities are bound to cease the ongoing violation of international law (as they were also told by the International Court relatively recently), provide a restitution in kind and abstain from any conduct that maintains the consequences of a serious breach of peremptory norms. Also, albeit somewhat more tenuously, head of State immunity issue would also have to be addressed. The invocation of IHL purports to sweep away legal consequences required by international law in the name of the same international law. Though it may be open to question whether that is worth the effort, given the recent and unprecedented candour offered from the White House on this matter.
The problem is obviously not limited to the Venezuela situation. While here the IHL is invoked to justify a trial of a person in violation of international law, in other cases the projected relevance of IHL could be invoked at the service of other agenda, for instance one to justify or label the harm caused through the aggression as harm caused within the limits of military necessity or to military objects. In all such cases, the chief consequence of bringing in IHL would be to protect the aggressor by confusing or explaining away the law that applies to the act of aggression.