This post was contributed by Professor Wade Mansell, Module Convenor for Public International law.
First, let me extend my best wishes and commiserations to you all under such stressful circumstances entirely beyond the control of any of us. I do hope that you are all safe and well. This blog post concerns the recent travails of Venezuela and of its claimed Head of State, Nicolas Maduro as its President. It is particularly relevant to the discussions in the Public International law module with regard to Head of State immunity.
In late March, 2020, after the failure of Juan Guaidó to wrest de facto control of the state of Venezuela from President Maduro despite support from (and recognition by) the US and some fifty other states, the US Department of Justice unveiled criminal indictments against Maduro and thirteen others of his current or former members of his government. In addition to the indictments, rewards of ‘up to $15 million for information leading to the arrest and/or conviction of Maduro’ were offered. The allegations justifying the indictments concern ‘narco-terrorism, corruption, drug trafficking and other criminal charges’. The evidence supporting these indictments does not concern us in considering whether Maduro as Head of State, should enjoy immunity from such charges. Of course had these indictments been from the International Criminal Court, on the precedent of Al Bashir no question of immunity would arise, but as you will remember, the US has elected not to be a party to the Rome Treaty. In fact, Al Bashir was referred to the ICC by the Security Council which evidenced US approval as it did not veto the referral. At the present time the ICC is considering whether to open an official investigation into crimes against humanity committed by the Maduro regime. This case was referred to the prosecutor by six nations – Argentina, Canada, Chile, Colombia, Paraguay, and Peru – some eighteen months ago. For its part the Maduro government then self-referred the situation on its territory to the ICC, alleging that by its sanctions against Venezuela, the US had caused such suffering among Venezuelan citizens as itself to be guilty of crimes against humanity.
Leaving aside the ICC then, what issues arise concerning head of state immunity in the courts of the USA? Obviously there are some precedents although they are not identical to the Maduro case where, although he remains in control of Venezuela, the US and more than fifty states do not recognise him as President because, they maintain, he was re-elected President in 2018, only after stealing the election by ‘massive fraud’. He is however still recognised as President by many states, including China, Russia, Turkey, and Cuba. His Ambassador to the UN was accepted in December 2019 by the General Assembly as the only representative of Venezuela.
The most relevant precedent in the US courts, concerns the 1988 indictment of General Noriega of Panama on narcotics charges. The case is distinguishable however, as at the time of his indictment, the actual head of state, while undoubtedly a Noriega puppet, was President Erik Delvalle. Noriega did declare himself head of state once more, five days before the Panamanian invasion by the US in which he was captured and taken to the US for trial. Regardless of the consequent rejection of the claim of immunity, it has also been argued within the US, that the privilege of immunity is granted, not by the courts but by the executive. Either way, it seems unlikely that, should President Maduro ‘find himself’ before a court in the US that a claim of head of state immunity would be accepted. He would have no right of appeal beyond the courts of the USA.
This position needs to be compared with what was said of the Pinochet case where it is suggested that had General Pinochet been the head of state of Chile at the time of his arrest his claim of immunity would have been successful, even for acts of torture. You may remember in your reading for this module that, while admitting that this is ‘unfortunate’ for those who have suffered such torture, it was explained that any denial of immunity to a head of state would be devastating to international relations as many heads of state would be unable to leave their state without fear of arrest. Such states would obviously include The Philippines, Saudi Arabia, Israel, El Salvador, Honduras and, at least theoretically, Russia, China and the USA!
Although not strictly relevant, it is interesting to consider what distinguishes Venezuela in the eyes of the USA, from other states with worse human rights records, even in the same region.