Maduro’s immunity claim tests US power to prosecute foreign leaders
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Venezuela's captured President Nicolas Maduro attends his arraignment to face US federal charges in New York on Jan 5.
PHOTO: REUTERS
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NEW YORK - Nicolas Maduro’s first appearance in a US courtroom offered a glimpse of the legal battle ahead over rarely tested questions – chief among them whether he can claim immunity from prosecution.
Maduro, who pleaded not guilty to narco-terrorism and cocaine charges
His lawyer, Mr Barry Pollack, signalled a second line of attack at the arraignment, promising voluminous litigation challenging what he called Jan 3’s “abduction” by the US military of Maduro and his wife.
At the heart of the case is whether Maduro, 63, is entitled to head-of-state immunity under international law – a doctrine that would protect him from being prosecuted for his alleged role in what the Justice Department calls a decades-long narco-terrorist conspiracy.
The US argues that Maduro has not been Venezuela’s president following a disputed 2018 election – a position that would weigh against granting him head-of-state immunity.
But Venezuela’s Attorney-General counters that the US lacks jurisdiction, and that Maduro remains immune as the country’s leader.
Law professor Caren Morrison at Georgia State College of Law, who is a former federal prosecutor, said immunity could pose a challenge for prosecutors, who claim Maduro was corrupt and used his office in the conspiracy.
Legal experts say the issue may hinge on whether Maduro’s alleged actions were part of his official duties as president. Most believe prosecutors are likely to prevail in the end.
Noriega unsuccessfully invoked similar argument
Head-of-state immunity is rarely litigated in criminal cases. Former Panamanian strongman Manuel Noriega unsuccessfully invoked it against charges of drug trafficking and money laundering after his 1989 capture by US forces during the Panama invasion. Unlike Maduro, Noriega never held the formal title of president.
US courts have dismissed civil lawsuits against heads of state recognised by the State Department, including one against Philippine President Ferdinand Marcos in 1975 and another in 2022 against Saudi Crown Prince Mohammed bin Salman over the killing of US-based journalist Jamal Khashoggi.
But courts can also throw out cases against former leaders and other government officials who can show their actions were part of their official duties. They can, however, be found liable for certain illegal acts.
A civil case involving a former prime minister of Somalia ultimately went to the US Supreme Court, which kicked it back to a lower court that held he was not immune from being held accountable for torture and extrajudicial killings.
Defence to press case against abduction
In addition to challenging the prosecution on immunity grounds, Maduro’s lawyer told the court on Jan 5 that his client would challenge what he called the leader’s “military abduction”, which scholars said may have violated international law.
Noriega made a similar argument after his capture, but a federal appeals court rejected it, citing Supreme Court rulings that forcible abduction does not violate due process or a court’s jurisdiction over a defendant.
Noriega was convicted by a US jury in 1992, and later served sentences in the US, France and Panama, where he died in 2017.
Prosecutors may be challenged to link Maduro to others
If Maduro cannot get the indictment dismissed, legal experts say he may still contest the government’s case.
The indictment describes a decades-long drug operation, but few events directly tie Maduro to the alleged narcotics and terrorism conspiracy described by US prosecutors.
“When you look closely at that indictment, there’s really not a lot of Maduro in there,” said Mr Zachary Margulis-Ohnuma, a defence attorney who represented Hugo Armando Carvajal Barrios, a former Venezuelan official who pleaded guilty to narco-terrorism charges.
To prove conspiracy, prosecutors must show Maduro agreed with others to commit a crime.
The indictment is thin on links to terrorist groups, said University of Detroit Mercy School of Law professor Richard Broughton.
He said the Justice Department may be holding back evidence to protect witnesses.
“Was a particular terrorist organisation paid by Maduro and his associates for any kind of protection, for assisting with any kind of shipment?” he said. “That’s the kind of stuff that I would want to know.” REUTERS
