Developing (uncorrected draft)
Donald Trump has set the United States on a dangerous course in its policy toward Venezuela.
The Trump administration seems to be following a strategy that is not thought through, and which bears considerable risks for the United States and its remaining diplomats in the country.
Venezuela’s dictator, Nicolás Maduro, has begun his second term as president after blatantly fraudulent elections. The United States has recognized the President of the National Assembly, Juan Guaidó, who recently announced that he has assumed the presidency of Venezuela. Maduro, however, retains control of the country and–at least for the moment–its military commanders.
On the diplomatic front, a number of major countries in Latin America have also recognized Guaidó as president. However, at a meeting of the Organization of American States in Washington on January 24, the United States failed to achieve even a simple majority vote of the organization’s 34 members in a move to recognize Guaidó as president. A qualified majority of two-thirds is required to take such action.
Maduro has ordered U.S. diplomats to leave the country within 72 hours, in accordance with the terms of the 1961 Vienna Convention on Diplomatic Relations. This period expires on Saturday, January 26, 2019. At that point, the remaining U.S. diplomats will be subject to arrest by the Maduro government.
If Maduro arrests the American diplomats, the United States could take military action to secure their release. At that point, the risk of further escalation to military confrontation could increase to a dangerous level.
The United States appears to be trying to pressure Maduro to leave office, or to provoke a confrontation between the military and the hundreds of thousands of pro-Guaidó protesters who have taken to the streets.
Secretary of State Mike Pompeo has advanced a curious and fallacious legal argument to justify ordering some U.S. diplomats to remain in Venezuela beyond the 72-hour deadline set by Maduro. The argument is that since Guaidó heads the government now recognized by the United States and has invited the diplomats to remain, they need not comply with Maduro’s orders.
The only problem with this argument is that Maduro and his military still control the country.
Under the U.S. rationale, Guaidó could invite United States military forces to enter Venezuela and assist him in putting down military and other opposition. It should also be noted that Maduro, the successor of Hugo Chávez and leader of his Chavista party, has had strong support among a large minority of the population. These supporters could offer determined resistance to any U.S. effort to overthrow the Maduro government, leading to a situation of civil war.
Trump and his administration seem to be trying to orchestrate a scenario in which the military and police forces, if ordered to put down demonstrations and/or to fire into a crowd, would refuse to do so.
The secret hope could be that, as occurred in the Ukraine in early 2014, military excesses might lead to a collapse of military and police support for the president, as it did in the case of Viktor Yanukovych. The latter’s government collapsed in February 2014 after sharpshooters had assassinated large numbers of the Maidán movement’s demonstrators.
Or the U.S. might even be reaching back into its playbook to recreate the domestic strife which led the U.S. to militarily intervene in the Dominican Republic in 1965 and to overthrow the democratically-elected government of Juan Bosch.
So far, however, the U.S. appears not to have moved naval and other military assets into position to intervene militarily in Venezuela. Given the country’s ability to deploy forces quickly, which surely exceeds its capabilities in 1965, this fact should not lead to a sense of complacency.
In terms of international law, the United States is on very weak ground indeed. It does not have the cover of the Organization of American States authorizing its actions by a two-thirds vote either under the OAS Charter or the Inter-American Treaty of Reciprocal Assistance (TIAR or “Rio Treaty”).
Given its history of U.S. military interventions in Latin America, from Veracruz in 1914 to Guatemala in 1954, Nicaragua in the early 1980’s, Grenada in 1982, and then Panama in 1989, and Haiti in 1994, there is very strong and deep sentiment in Latin America against any U.S. military intervention in the hemisphere.
Mike Pompeo and Trump and his White House advisers might usefully read the 1986 opinion of the International Court of Justice (or “World Court”) in the case of Nicaragua v. United States, holding that the United States had violated basic principles of international law in its military and paramilitary activities against Nicaragua.
Three points are central to the question of the legality of potential U.S. intervention in Venezuela under international law.
The first is that one state cannot simply recognize one faction in a civil conflict and then intervene to support that side as the new government, potentially by military means. Nor can it simply treat the assets of the established government as belonging to a faction that it has recognized as the new government. Rather, traditional international law concepts of requirements for the recognition of a government must be observed. The first among these is that the government in question effectively control the territory of the country.
The second point is that the U.S. is prohibited by international law from intervention in the internal affairs of Venezuela, and is in particular prohibited from the use of force against the territorial integrity or political independence of Venezuela or any other state under Article 2 paragraph 4 of the United Nations Charter.
The third point is that to circumvent the prohibition contained in Article 2 paragraph 4, the United States and some other countries have in the past asserted a a right of military “intervention to protect nationals”.
This asserted right has no basis in the texts of international treaties such as the U.N. Charter, the OAS Charter, and the Rio Treaty. Nonetheless, other states have in the past sometimes acquiesced when it has been asserted, usually in compelling circumstances. More often than not, however, the asserted right seems to have been used as a pretext for military intervention with objectives far beyond the protection of nationals.
The right of “intervention to protect nationals”, even if it is acknowledged, is limited to the safe evacuation of threatened nationals.
The U.S. appears to be laying the predicates for taking actions under the purported justification of this asserted right. It has, for example, advised U.S. citizens in Venezuela to leave the country.
In the case of Venezuela, the situation is particularly fraught, as there are some 50,000 American citizens living in the country. To intervene to protect them, even if they were actually endangered, would require a large military force and in effect amount to a large-scale military intervention, in a country with a population of over 31 million people.
One further consideration is particularly relevant. Any military intervention in Venezuela, if only to protect diplomats or other American nationals, could push the Maduro government to permit the establishment of Russian military bases in the country. Following the aborted Bay of Pigs invasion of Cuba in April 1961, the Soviet Union introduced nuclear missiles into Cuba, which led to the Cuban Missile Crisis in October 1962.
Few individuals, particularly among those that did not live through it, understand or appreciate the degree to which the world at that time came within a hair’s breadth of a nuclear war between the United States and the Soviet Union.
President Trump and Mike Pompeo should carefully consider any further moves in and against Venezuela, and indeed should reconsider actions such as ordering U.S. diplomats to remain—which have led to the current explosive situation.
There have been suggestions that Florida politics and politicians are influencing Trump’s decisions.
However, even the administration should bear in mind that if Trump moves against Venezuela with military force, and the U.S. gets bogged down there, he can probably forget any possibility of reelection in 2020.
The Trenchant Observer
