Trump OLC’s Punt on the Global Legal Case for Venezuela Matters

President Donald Trump can make a case that the military raid in Venezuela was justified under international law, but the Office of Legal Counsel memo released Jan. 13 explicitly punts on international law, focusing only on US law. Prior administrations have bent international law to become more permissive of force in the United Nations era, but the Trump administration’s lack of engagement with it altogether threatens to break the framework that has prevented a third world war for generations.

The UN was created to prevent a recurrence of the cataclysmic great-power world wars of 1914 to 1945 in which more than a hundred million people died, including by state-orchestrated genocide and by nuclear weapons. Article 2(4) of the UN Charter requires members to “refrain” from “the threat or use of force against the territorial integrity or political independence of any state.”

At the same time, Article 51 preserves the right of self-defense, and military operations with the invitation or consent of the legitimate government of a state don’t constitute prohibited use of force. And the Western permanent Security Council members have framed military intervention to avert a humanitarian crisis as an additional legal justification for the international use of armed force.

Article 42 empowers the Security Council to use force “as may be necessary to maintain or restore international peace and security.” Any such Security Council authorization requires the “concurring votes” of its five permanent members—the US, the former Soviet Union, China, the UK and France—also known as the Perm 5. However, the onset of the Cold War between the US and the Soviet Union and their allies neutered the Security Council’s critical role in authorizing use of force to maintain international peace and security.

Consequently, the Perm 5, led by the US and the then-Soviet Union, engaged in numerous military operations without Security Council approval in proxy conflicts around the globe, invoking expansive interpretations of self-defense, invitation, and humanitarian intervention.

At the same time, powerful states did “refrain” from a reprise of the great world wars and the use of nuclear weapons in compliance with the UN Charter. The hours-long Venezuela raid doesn’t come close to violating this core UN Charter norm, by contrast, say, to Russia’s invasion of Ukraine.

In the 21st century, stopping the use of weapons of mass destruction has also emerged as a possible fourth international-law basis for the use of force. For instance, in 2018, three Perm members—the US, UK, and France—conducted military strikes in Syria based on credible evidence that Bashar al-Assad had used chemical weapons against domestic political opponents during a non-international armed conflict. All three states argued that the limited and proportionate scale of the Syria strikes were important in rendering them permissible under international law.

Trump and his allies have alluded to self-defense, invitation, humanitarianism, and weapons-of-mass-destruction rationales in public statements regarding Venezuela, but as the OLC memo indicates, the Trump administration has made no authoritative statement as to whether it’s relying on one or more of these grounds to justify the Jan. 3 raid under international law.

Instead, Trump has dismissed the need for compliance with international law, a troubling theme echoed in Assistant Attorney General William Barr’s 1989 OLC memo assessing the legality of the invasion of Panama to apprehend military leader Manuel Noriega.

But given the evolving, customary nature of international law regarding use of force, plausible arguments are available. And making those arguments not only improves transparency but can generate focal points for support from allies—and can signal adversaries as to future military operations.

Consider self-defense. Obama administration lawyers argued that the extrajudicial killing by drone strikes of non-state terrorists were lawful under international law. They relied on intelligence that the targets helped “attack” the US and were located in countries with which the US wasn’t at war but where the host governments were “unwilling or unable” to apprehend the non-state terrorists. That isn’t much of a stretch from the Trump administration’s extraterritorial Venezuela raid to capture Nicolas Maduro based on intelligence that he backed non-state terrorist groups shipping lethal drugs into the US resulting in thousands of American deaths.

There’s also a plausible case for invitation. The US has never recognized Maduro’s regime as the legitimate government of Venezuela. The leader of the opposition party has expressed approval of the Jan. 3 raid and is meeting with Trump Jan. 15 to discuss next options. Former President Bill Clinton’s unopposed invasion of Haiti in 1994 to remove military dictators who had deposed the democratically elected president in 1991 provides support for the claim that an opposition with no effective control of territory for years still has legal authority to invite US troops to invade to uphold democracy. Moreover, the regime in power after Maduro’s removal is also reported to have invited the deployment of US naval warships to blockade unauthorized shipments of Venezuelan oil out of the country. That’s a reasonable basis to conclude that any objection on Venezuela’s part to violation of its sovereignty on Jan. 3 has been waived after the fact.

Finally, there’s a viable case for a humanitarian crisis in Venezuela too, according to the UN. A 2021 report by the UN’s human rights committee documented Maduro’s corrupt mismanagement of his country’s oil-rich economy and “crimes against humanity” including extrajudicial killings, disappearances, and torture of political opponents. That humanitarian crisis has sparked the mass exodus of millions of Venezuelan refugees, including hundreds of thousands into the US.

The bottom line is that the UN Charter’s use-of-force regime is restrictive but not rigid and has evolved over decades of state practice following World War II. Furthermore, compliance with procedural and use-of-force rules such as the notice requirement of an Article 51 letter to the Security Council if self-defense is invoked and prisoner-of-war treatment for Maduro while he is being held for US criminal trial (which we accorded to Noriega), are not onerous but would go a long way to showing our allies and partners that the US takes its legal obligations seriously.

What is important is ensuring that the US stays faithful to the UN Charter’s commitment to ensuring a world safe from global war, genocide, and nuclear holocaust.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Thomas H. Lee is a professor at Fordham Law School and author of the forthcoming book, “Justifying War.” He was also a senior Pentagon lawyer in the first Trump administration and a US naval cryptologist.

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