When international law is not enough, states rediscover their own criminal justice systems as a tool for geopolitical pressure: the Maduro case as a paradigm of contemporary lawfare by Andrea Monti – adjunct professor of digital identity, cybersecurity and privacy at Sapienza University of Rome – Initially published in Italian by Formiche.net
Leaving aside the political merits of the case, which are not the subject of this article, the arrest manu militari of Nicolás Maduro Moros, motivated by the charges brought by the Grand Jury of the US District Court for the Southern District of New York, highlights the growing inadequacy of international law to manage crises between peers—i.e. between post-Westphalian States—and the equally growing recourse to domestic law to achieve (geo)political goals.
Maduro’s arrest, similar to the conviction of Salvatore Aitala—a judge of the International Criminal Court—handed down in absentia by a Russian court, demonstrates how states are increasingly entrusting their own courts with the task of constructing a legal basis to support political decisions that are removed from the assessment of supranational or, rather, a-national bodies, such as the UN or the various courts established by treaties.
The prosecution of crimes committed abroad or from abroad
In strictly legal terms, any country has every right to try before its own courts anyone accused of having committed crimes abroad or from abroad that are provided for and punished by its domestic law.
In Italy, this power is conferred on the judicial authorities by Article 6 of the Criminal Code, which considers a crime to have been committed in Italy if the action or event takes place within the national borders. Furthermore, the following Article 7 punishes, under Italian law, citizens or foreigners who commit, among other things, crimes against the Italian state abroad. Similar rules exist in the legal systems of the United States, the United Kingdom, France and, in general, in those of several other countries.
The limits of habeas corpus and the State’s powers of arrest abroad
We have seen that, within the limits of the law, it is undisputed that a State has the right to prosecute anyone (citizen or foreigner) who has committed crimes on its national territory or abroad. However, in accordance with the principle of habeas corpus, as a rule, a trial can only be held if the accused is brought before the judge. The application of this principle has two implications: the first is that trial in the absence of the accused is an exception, and the second, relevant to the Maduro case, is whether, in order to comply with habeas corpus, the accused can be directly arrested abroad, with the cooperation of the armed forces.
The cases of U.S. v. Yunis and U.S. v. Rezaq
In general terms, the separation of powers requires that the judicial authority be completely autonomous in carrying out its investigative and repressive functions. Hence the establishment of the judicial police as an instrument for the exercise of these functions and, consequently, the impossibility for the military to cooperate in the administration of justice. In the US, however, the Posse Comitatus Act of 1878 allows the use of the armed forces for law enforcement purposes in cases provided for by law.
The application of the Posse Comitatus Act to arrests made abroad with military support was discussed in the leading case U.S. v. Yunis of 1991, where a hijacker arrested abroad by the FBI in collaboration with the navy was tried. In this specific case, the suspect was first induced to board a yacht crossing the eastern Mediterranean, arrested once they reached international waters, and then transported to the US in several stages involving the navy and air force.
The decision of the Court of Appeal for the District of Columbia Circuit is very detailed and applies only partially to the Maduro case. The ruling, in fact, limits itself to considering the passive contribution of the armed forces, consisting of the custody and transport of the arrested person, to be legitimate, considering that these activities did not constitute an encroachment on the field of judicial authority.
While the Yunis case recognised the possibility of using the armed forces to bring a suspect located abroad to justice in the United States, the subsequent case of U.S. v. Rezaq, decided by the same Court of Appeal, addresses in more precise terms the real problem of arrests abroad, namely whether they can be carried out in other countries even by force or other means. In this regard, the Court states in no uncertain terms that “the Court finds that the forcible removal of a person to the United States to stand trial for committing an offence under the Anti-Hijacking Act does not constitute an unlawful manufacturing of the jurisdictional element of the offence”.
The Abu Omar case and the prevalence of national law over that of the country carrying out the arrest
If, from the point of view of the law of the proceeding country (the United States, in this case), acts committed in a third country for the purposes of justice or national security are therefore lawful, this does not automatically make them legitimate under the law of the country in question. A paradigmatic example of this is the case of the rendition of Mullah Abu Omar, who was kidnapped in Milan in 2003 by CIA agents with the support of the Italian authorities and then transferred to Egypt to be interrogated by US intelligence. Following a complex and troubled legal case, the CIA agents were convicted in absentia and then, in some cases, pardoned by Presidents Napolitano and Mattarella.
Strictly speaking, Omar’s rendition cannot be classified as an arrest carried out under the Posse Comitatus Act because it took place within the exercise of executive power and not judicial power. However, it is useful for establishing the principles of (criminal) responsibility for (clandestine) actions committed by national operators abroad and the analogous extension of this responsibility to arrests carried out outside the framework of international judicial cooperation agreements.
From the rule of law to lawfare
Following on from this analysis, it is clear that Maduro’s case is undoubtedly the most impactful from various points of view, but it is not the only one based on the application — or, rather, the subtle interpretation — of national rules in such a way as to make them prevail over international rules and treaties.
Although the widespread perception is that the latter are binding in absolute terms, in reality they are valid only as long as a state considers it useful or functional to comply with them. A paradigmatic example of this occurred in 2021 with the United Kingdom’s substantial departure from the Convention on Human Rights: while respecting the form of the Convention, the automatic applicability of the Court’s judgments was suspended in order to subject them to a review of compatibility with domestic law.
Examples of such legal phenomena are not limited to Western jurisdictions because, even more so, in other political and economic blocs, including the EU, domestic rules have become a tool for pursuing political objectives.
This political choice made by the executive branches marks another decisive step towards the consecration of lawfare(i.e., the use of law to achieve (geo)political objectives), in which the rule of law becomes rule by law, i.e., one of the tools available to an executive branch and not a principle for the protection of citizens and the community.
The end of international law?
The Maduro case, and the others mentioned above, clearly show the consequences of the current extreme fragmentation of the system of international relations.
This fragmentation translates, first and foremost, into the loss of role of multilateral forums, which have proved ineffective, paralysed or unable to mediate specific claims.
In view of this, it is not surprising that states with a greater capacity to assert their positions have rediscovered the role of national law, applying it unilaterally according to logic of opportunity and force.
In this space, where lawfare is now established as a standard technique for managing relations between states, features of a different world order are emerging that goes beyond the concept of spheres of influence and is organised into a top-down structure where roles and positions are defined primarily by the ability to assert them by any means available.