Conquering Venezuela

Image by Gemini
By Joel Levin

After weeks of attacking Venezuelan boats that may or may not have been carrying drugs—drugs that may or may not have been fentanyl—on vessels that may or may not have been bound for the United States, and where the attacks may or may not have involved the killing of shipwrecked crew members (all matters implicating international shipping law, the law of the high seas, and the domestic war-making powers under Article I of the Constitution), the United States executed a land and air attack on Venezuela. Among other consequences, the operation resulted in the arrest and transport to the United States of President Nicolás Maduro and his wife to stand trial on various drug-related felony charges. These are early days, at least as of this writing, and much remains unknown. An administration hardly recognized for its veracity or candor has provided limited information. Still, the general picture is evident: a military intervention to remove a government that was not otherwise at war—or anything close to war—with the United States. What should we make of this? Any serious analysis must begin with two distinctions that are too often ignored, and whose absence makes reasonable judgment difficult. They are obvious distinctions, but in contemporary political discourse the obvious is often the first casualty.

Law and Morality
The first distinction is between the legal (what is legally required, permitted, or prohibited) and the moral (what is ethically right, good, or virtuous). Sometimes the two coincide—do not murder, do not discriminate. Sometimes they diverge dramatically—consider the legal systems of Nazi Germany, apartheid South Africa, or slaveholding societies. An action condemned as illegal may nonetheless be praised as moral, and vice versa. The more difficult question arises when the law itself is principled and morally grounded. Are there circumstances in which the right thing to do is nevertheless to disobey it? Gandhi and King believed so when they violated otherwise unexceptionable laws regulating traffic or public assembly. Thoreau believed so when he refused to pay taxes—not because he disputed the government’s authority to tax, but because those taxes supported slavery and the Mexican-American War. He was jailed for it. Did the administration violate the law in Venezuela? If so, was the law domestic or international? And even if violated, were those laws morally tainted or morally outweighed by the circumstances? Given how little we yet know, it is enough to focus on the two principal legal objections to the incursion.

International Law
Article 2(4) of the United Nations Charter provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” While international law admits of interpretive disagreement, the recognized exceptions to this prohibition are limited: authorization by the Security Council, self-defense, or invitation by the affected state. None appear to apply here. On its face, the law was violated. Is this law moral? Clearly so. It aims to prevent war, discourage violence, and resolve disputes without bloodshed. Like many democratic laws, it is a prima facie good general rule—one that admits of rare exceptions. It resembles a speed limit: a rule that ought to be followed except, perhaps, in a medical emergency. Consider an analogy to private property. If a neighbor hears evidence of abuse next door, are property rights—non-trespass and privacy—more important than stopping imminent harm? History offers sobering examples of state-inflicted atrocities: Stalin’s USSR in Ukraine, Hitler’s Germany, Talaat Pasha’s Türkiye, Pol Pot’s Cambodia, Idi Amin’s Uganda. In each case, millions were killed by their own governments. While there may have been pragmatic reasons for non-intervention, the ethical case for intervention—or at least for its justification—is powerful. Indeed, Vietnam’s intervention against Pol Pot and Tanzania’s against Idi Amin are often cited as morally defensible despite their legal ambiguity. Is Maduro’s Venezuela comparable? The evidence suggests it may be. A 2022 UN report concluded that Venezuelan intelligence services systematically repress dissent through grave crimes, including torture and sexual violence, and called for immediate investigation and prosecution. Amnesty International reported that following a stolen presidential election, thousands of arbitrary arrests were carried out against political opponents, journalists, and human rights defenders; hundreds of children were detained; detainees were allegedly tortured; and nearly eight million Venezuelans fled the country. The International Criminal Court opened an investigation in 2006, closed it for lack of evidence, and reopened it in 2018. It has since heard testimony from thousands of victims detailing arbitrary detention, torture, rape, and persecution. Deaths continue to mount amid endemic shortages of food and medicine. In 2018 alone, more than 7,500 people were reportedly killed by the Maduro regime. On these facts, the moral case for a swift and relatively low-casualty intervention is, at least initially, compelling. But that is only the beginning of the analysis.

Vigilantism and Just War
Vigilantism—whether by individuals or states—is dangerous. The world is full of injustice, and responding to it through force often produces consequences worse than the wrongs it seeks to remedy. That is not always the case; NATO’s intervention in Yugoslavia to stop ethnic cleansing in Kosovo, though imperfect, was largely successful. Still, military action carries predictable risks. It may embolden bad actors to justify their own unjustified interventions, as in Ukraine today or potentially Taiwan tomorrow. It may rest on catastrophic miscalculations, as in Afghanistan, where a justifiable response to 9/11 devolved into an endless war ending with the Taliban’s return to power. Any intervention must therefore be evaluated against the criteria of the just war tradition, articulated by Aquinas and refined by Michael Walzer. These include: (1) action by a competent authority; (2) a reasonable probability of success; (3) last resort; and (4) response to a grave public evil. Whether the administration possessed competent authority absent congressional authorization, whether intervention was truly a last resort, and whether alternatives existed remain open questions. So too do the broader consequences: erosion of the UN Charter, damage to the international legal order, and normalization of vigilantism.

Domestic Law
The domestic legal question is more straightforward. Article I, Section 8 of the U.S. Constitution assigns to Congress—not the President—the power to declare war. Interfering with shipping on the high seas, bombing another country, storming its presidential palace, arresting its head of state and his spouse, and transporting them to the United States plainly resemble acts of war. Again, legality is not the end of the inquiry. Moral necessity may justify illegality in extreme circumstances. But bypassing Congress and waging war against a country posing no direct threat to the United States raises serious constitutional concerns. Such actions could be morally justified only by the scale and urgency of crimes against humanity that could not otherwise be halted while Maduro remained in power.

What Is Law?
Before concluding that the law was violated, one final caveat is necessary. Jurisprudence itself is divided over what counts as “law.” Legal positivists—from Austin and Kelsen to Hart and Raz—argue that law consists of authoritative rules enforced by institutions, largely independent of morality. A law may be unjust, but it remains law. Others, including Ronald Dworkin and John Finnis, argue that law necessarily contains a moral dimension. When legal systems depart too radically from justice, they lose their claim to authority and become mere exercises of power. On this view, profoundly immoral legal commands may cease to count as law at all.

Right Actions, Wrong Reasons
The second crucial distinction is between doing the right thing for the right reason and doing the right thing for the wrong reason. Why did the United States intervene in Venezuela? If the motive was to stop torture, killing, starvation, mass displacement, and electoral theft, then the moral case is strong. If the motive was self-interest—oil, geopolitical leverage, or neo-colonial control—the case collapses. Here, statements by President Trump are troubling. He declared, “We are going to run the country,” emphasized U.S. “presence … as it pertains to oil,” questioned whether María Corina Machado—the overwhelmingly popular opposition leader—could govern, and insisted that sanctions would remain in place. These are not reassuring moral justifications. Machado’s words strike a different tone: “Venezuelans, the hour of freedom has arrived.” Whether Venezuela emerges with democracy and sovereignty or slides into neo-colonial domination and continued authoritarianism remains to be seen. Only the former could justify the legal transgressions involved.

Final Reflections
Personal moral judgment in defiance of democratic law is a last resort. Threatening Colombia today or Greenland tomorrow is not moral policy. Exigencies themselves carry risks, often underestimated. And a culture of disregard for lawful process—even in the name of justice—can corrode peace and stability in lasting ways. Still, motives are not everything. If someone saves a drowning child for selfish reasons—glory, praise, or self-advancement—the child is nonetheless saved. For the millions of Venezuelans suffering at home and in exile, that distinction may matter less than the result. It is early. Conquering heroes are often later seen as unwanted occupiers. But for now, at this moment of inception, this may yet prove to have been a very good day for Venezuela—and for those who care about it.