On Jan. 3, in a stunning operation into Caracas, U.S. armed forces and law enforcement officers captured Venezuelan President Nicholas Maduro, who also served as the Commander-in-Chief of the Venezuelan armed forces, and First Lady Cilia Flores. The raid involved 150 crewed and uncrewed aircraft launched from 20 bases and vessels around the region. Reportedly using kinetic, electronic, and cyber tools, the United States turned the lights out on portions of Caracas, destroyed or disabled Venezuelan air defense capabilities, and created an air corridor through which it infiltrated helicopter-borne special forces and federal law-enforcement officers. Following an assault on Maduro’s fortified military compound, a substantial gun battle, and the capture, U.S. forces withdrew from Caracas. In their wake, they left between 70 and 100 dead, including civilians, members of the Venezuelan armed forces, and Cuban personnel responsible for guarding Maduro.
Little more than 48 hours later, Maduro and Flores appeared before a federal district court in New York City on narco-terrorism, narcotics, and weapons charges. When asked by the judge to identify himself, Maduro responded that he was the President of Venezuela and demanded to be treated as a prisoner of war (POW). Although it has not addressed the question of Maduro’s status directly, the administration has claimed that the United States is not at war with Venezuela. In the absence of an international armed conflict, there can be no prisoners of war.
The seizure of a sitting head of State serving as commander-in-chief raises complex questions for the court and the United States more broadly, such as whether Maduro is entitled to immunity ratione personae and whether the United States has the right to exercise enforcement jurisdiction in another State (see here). In this piece, we examine a narrow issue: whether Maduro might be entitled to POW status under international humanitarian law (IHL).
We begin by establishing that the United States and Venezuela were engaged in an international armed conflict (IAC) to which IHL applied at the time of the capture. Analysis then turns to entitlement to POW status. We set out three theories by which POW status might attach to a person in Maduro’s position, as well as the consequences of entitlement to that status. We conclude that Maduro likely qualifies as a POW under one (or more) of the theories explained below, and as such should be afforded that status while in U.S. custody. Should there be any doubt about his status, a judicial (or other competent tribunal) would need to make that determination. That is what treaty law ratified by the United States requires; summary conclusions by executive branch officials do not suffice to establish his status and the treatment to which he is entitled.
Initiation of an International Armed Conflict
By using its armed forces to attack Venezuela, the United States triggered an IAC with that State. Under the four 1949 Geneva Conventions, to which all States are party, an IAC exists in “all cases of declared war or of any other armed conflict which may arise between two or more [States], even if the state of war is not recognized by one of them” (Common art. 2, GC I-IV).
Unlike non-international armed conflicts (NIACs), the existence of an IAC does not depend on “protracted” armed violence at a significant level of intensity (Tadić, para. 70). Instead, as the International Committee of the Red Cross’s (ICRC) 2020 Commentary to Common Article 2 explains,
Any unconsented-to military operations by one State in the territory of another State, including its national airspace and territorial sea, should be interpreted as an armed interference in the latter’s sphere of sovereignty and thus may be an international armed conflict.
[T]here is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists (GC III Commentary, ¶ 270, 269).
Thus, while the United States’ one-sided campaign of airstrikes on narcotrafficking vessels operated by non-State criminal organizations has not constituted (and, one of us has argued, cannot constitute) an armed conflict governed by IHL, an IAC between the United States and Venezuela began no later than the moment the first American ordnance reached its target inside Venezuelan territory, a conclusion which a recently released Department of Justice Office of Legal Counsel (OLC) memo regarding the operation supports. The memo asserts: “we note . . . that the proposed operation will constitute an armed conflict under international law”(p. 5). Before the OLC memo was released, U.S. officials claimed that the United States is not at war with Venezuela, which is immaterial. Indeed, Common Article 2 specifically provides that an IAC may exist even if disavowed by one of the parties. The fact that one State has used armed force against another State, rather than a State’s characterization of such force, suffices.
Once triggered, an IAC brings into force the full extent of the 1949 Geneva Conventions, including the Third Geneva Convention (GC III) on prisoners of war and the Fourth (GC IV) on civilians, both of which address detention. It also triggers the rules of customary IHL applicable to IACs, some of which likewise address detention.
Prisoner of War Status
Article 4 of GC III lays out the basic framework for POW status. It identifies six categories of individuals entitled to that status: members of the armed forces of a party to an armed conflict (4(a)(1)); members of “other militia,” “other volunteer corps,” or “organized resistance movements” satisfying four conditions (4(A)(2)); members of the regular armed forces who profess allegiance to a government or authority not recognized by the party detaining them (4(A)(3)); and members of a levee en masse (4(A)(6)).
In addition to the specified categories of combatants, Article 4 accords POW status to two categories of civilians based on the services they provide to the armed forces. Notably, for our purposes, Article 4 makes no reference to heads of State, commanders-in-chief, or other senior governmental officials. The DoD Law of War Manual replicates these categories (§ 9.3.2).
Although the United States is not a Party to the instrument, Article 44(1) of the 1977 Additional Protocol I similarly provides, “any combatant . . . who falls into the power of an adverse Party shall be a prisoner of war.” Article 43(2) defines combatants as “members of the armed forces,” thereby creating congruency between the two instruments. Like GC III, it makes no mention of heads of State, commanders-in-chief, or senior government officials.
Finally, it merits note that qualification as a combatant not only affords the individuals concerned POW status if captured, but it also renders them subject to “status-based targeting” during the conflict. In other words, they may be attacked regardless of their actions at the time, solely because they are combatants. This is in distinction to conduct-based targeting, as in the case of civilians who directly participate in hostilities. The significance of this for POW status is that, while not every person entitled to POW treatment under Article 4 may be attacked on that basis (e.g., the civilians), every lawful combatant enjoys POW status upon capture.
Could Maduro be entitled to POW status under IHL?
Despite the absence of an explicit reference to heads of State, commanders-in-chief, or senior government officials in GC III, art. 4, there are at least three theories under which Maduro might qualify as a POW.
Before turning to them, we note that if an individual is on the “rolls” of the armed forces, that person is a member of the armed forces entitled to POW status under GC III, art. 4(A)(1) or (3), irrespective of holding any particular position in the government. Such individuals are listed on the official roster of military personnel and typically hold military rank. Some heads of State, such as General Manuel Noriega of Panama, the ruling dictator captured by U.S. forces in 1990, would qualify on this basis alone.
We do not know if Maduro is on the Venezuelan armed forces’ rolls, but—despite occasionally wearing a uniform for ceremonial purposes (as do heads of State of many countries like the UK)—he does not appear to have a formal military rank or otherwise serve as an officer in the Venezuelan armed forces. More facts are needed, but it seems unlikely that he qualifies as a POW on this basis.
1) POW status through membership in the armed forces as the commander-in-chief de jure
By the first theory, an individual constitutionally or otherwise designated as commander-in-chief of the armed forces under the State’s laws is, based on that position alone, a “member of the armed forces,” and therefore entitled to POW status. In other words, the individual needs only to be commander-in-chief de jure. Such an individual is a member of the armed forces, even if not on its rolls.
As an example, the United Kingdom’s 2004 Joint Service Manual of the Law of Armed Conflict provides, “Heads of State, whether sovereigns or presidents, are in some cases, by the constitutional law of their own states, commanders-in-chief of the armed forces and, accordingly, entitled to [POW] status” (page 148, fn 2). Some influential scholars have taken the same approach. For instance, L.C. Green, writing in his classic work, The Contemporary Law of Armed Conflict, observed, “A civilian head of state who is commander-in-chief of his nation’s forces becomes a prisoner of war if he falls into enemy hands” (3d ed., 2008).
The viability of this “status-based” approach depends on the meaning of the term “member of the armed forces,” which GC III does not define. However, the ICRC’s 2020 Commentary to the Third Geneva Convention helpfully explains, “the requirements for membership in the armed forces are not prescribed in international law. Rather, it is a matter of domestic regulation” (¶ 977). The status-based approach, therefore, treats designation as commander-in-chief in the laws of the State as sufficient to satisfy the “domestic regulation” criterion.
But to avoid being tautological, the argument that the commander-in-chief position equates to “membership” in the armed forces has to pass muster. Arguably, it does so through an interpretation according to which the key criteria of membership are affiliation and authorization: Is an individual affiliated with the armed forces, and has the State authorized that individual to become involved in the conflict in its name?
There is longstanding support for the two criteria. The 1863 Lieber Code, for example, provided that a “prisoner of war is a public enemy . . . attached to the hostile army for active aid (art. 49, emphasis added). Similarly, the Code noted that an individual is a “belligerent” (combatant) once they have been “armed by a sovereign government [authorization] and take the soldier’s oath of fidelity [affiliation]” (art. 57). The U.S. Supreme Court approached the question of combatant status from precisely this perspective in its 1942 Ex parte Quirin decision. Finding that the alleged Nazi saboteurs were combatants who behaved unlawfully and, therefore, were subject to trial by military commission, the Court pointed to the facts that they received instructions (authorization) from the German High Command as to what actions to undertake and, as instructed, wore German uniforms upon coming ashore (affiliation) (pages 21-22). In other words, they were affiliated with and authorized by the German armed forces, and thus combatants. However, the court found that they were unlawful combatants as they, inter alia, acted surreptitiously while out of uniform (page 35).
Article 236 of Venezuela’s Constitution designates the Venezuelan President as Commander-in-Chief of the Venezuelan armed forces, thereby satisfying the affiliation prong of membership. Moreover, it unambiguously authorizes him to engage in activities related to hostilities by assigning him the “following . . . attributions and duties”:
5) To direct the National Armed Forces in his capacity as Commander in Chief, exercise supreme hierarchical Authority over the same and establish their contingent.
6) To exercise supreme command over the National Armed Forces, promote their officers at the rank of colonel or naval captain and above, and appoint them to the positions exclusively reserved to them.
Logically, it would seem incongruent to place the head of State in “command” of the armed forces but treat that individual as other than a member of those armed forces. Command is, after all, a military term of art, defined by the DoD Dictionary of Military and Associated Terms as “[t]he authority that a commander in the armed forces lawfully exercises over subordinates by virtue of rank or assignment.” That authority Maduro certainly enjoyed.
It is also worth noting that it is not a precondition to qualification as a “member of the armed forces” that the individual concerned be involved in military operations; many have no combat role, but are undeniably members. For instance, a uniformed faculty member at a military academy who has never seen combat, nor likely ever will, is no less entitled to POW status under GC III, art. 4 than a combat commander. By analogy, it is arguable that there should be no requirement that the commander-in-chief engage in any particular activity to be considered a member of the armed forces for POW purposes.
2) POW status only if the commander-in-chief actively commands
According to the second theory, which is “conduct-based,” a commander-in-chief must actually exercise the authority of the position to be considered a member of the armed forces. In other words, the individual must be the de jure and de facto commander-in-chief of the armed forces. This approach adopts an interpretation of membership that accepts the aforementioned affiliation and authorization criteria but goes further by requiring the commander-in-chief to act as such.
To illustrate this approach, a head of State who has not been designated commander-in-chief under the State’s laws but who engages in military decision-making at the operational or tactical level of war is a civilian who is “directly participating in the hostilities.” They lose their protection from attack while doing so, but if captured, they are civilian detainees treated pursuant to GC IV. Along the same lines, if a head of State is so designated but does not engage in decision-making at those levels (only engaging at the strategic level of war, as in deciding to go to war or join alliances), the person is likewise a civilian detained as such.
But once the individual is making decisions about operational plans, force disposition, targeting, battlefield cease-fires, and the like, they are exercising the authority of a commander-in-chief. They are making military, rather than political, decisions.
The U.S. Department of Defense appears to adopt this approach. The DoD Law of War Manual, for instance, asserts that “Leaders who are not members of an armed force or armed group (including heads of State, civilian officials, and political leaders) may be made the object of attack if their responsibilities include the operational command or control of the armed forces” (§ 5.7.4, emphasis added). Significant in this regard is the fact that the text appears in the Manual’s section entitled “combatants,” indicating that DoD is of the view that a leader, such as a commander-in-chief, who exercises “operational command or control,” is a combatant. They would, perforce, be entitled to POW status upon capture.
To avoid confusion, note that the provision refers to not being a member of “an armed force” (as in a fighting unit), rather than “the armed forces.” Thus, it does not preclude the Commander-in-Chief from being a member of the latter and therefore entitled to POW status. Additionally, the Manual makes clear that it is not treating such individuals as civilians who are directly participating in the hostilities, for it distinguishes “leaders who have a role in the operational chain of command [from] leaders taking a direct part in hostilities “(§ 5.7.4). As noted, the latter are civilians covered by GC IV, not GC III, if captured.
And driving home the point that the title as commander-in-chief alone does not suffice, the Manual observes, “the reigning monarch of a constitutional monarchy with an essentially ceremonial role in the State” would not be targetable on this basis, contrasting such a position with the U.S. President (§ 5.7.4). This exclusion would encompass, for example, King Charles, even though he is constitutionally the head of the United Kingdom’s armed forces, often referred to as “His Majesty’s Armed Forces.” In other words, qualifying as a combatant requires conduct, not just status.
This is also the view of the late Yoram Dinstein, perhaps the foremost contemporary IHL scholar: “Political leaders can nevertheless be deemed combatants if they are part – or at the apex – of the operative military chain of command. This is true, in particular, of a Head of State who is the Commander-in-Chief of the armed forces” (Conduct of Hostilities, 3d ed., page 119).
There are indicia typical of membership in armed forces that Maduro likely lacks. Members of a State’s armed forces carry identification indicating the status they should be accorded upon capture; they generally wear uniforms; and they hold rank and usually wear insignia that reflect it. For example, Manuel Noriega, who served in the Panamanian armed forces before becoming the country’s dictator, wore a uniform and held the rank of general. Eventually, a U.S. federal district court accepted his status as a POW. Maduro, in contrast, never served in the Venezuelan armed forces, holds no rank other than commander-in-chief, and we do not know whether he carried an identification card issued by Venezuela’s armed forces.
But if Maduro’s authority over the Venezuelan armed forces is comparable to that of the U.S. President, who regularly makes military decisions at the operational level of war, then he would be a commander-in-chief de jure and de facto, entitled to POW status upon capture by this second theory.
3) POW status as head of State
Finally, it may be that heads of State and certain other senior government officials are a special case, falling outside GC III’s enumerated categories but entitled to POW status irrespective of their membership in the armed forces or their operational command or control. This appears to have been the U.S. government’s view through at least World War II. Article 50 of the 1863 Lieber Code (General Orders 100), for example, provided, “The monarch . . ., the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured on belligerent ground, and if unprovided with a safe conduct granted by the captor’s government, prisoners of war.”
The U.S. Army’s 1914 Rules of Land Warfare, which replaced the Lieber Code, likewise treated senior officials as POWs: “In addition to the armed forces . . . , the following may be made prisoners of war: The sovereign . . ., the President or head of a republican State, and the ministers who direct the policy of a State” (art. 47(a)). This approach was maintained nearly verbatim in the 1940 Rules of Land Warfare. Similar statements, however, do not appear in later publications, such as the Army’s 1956 Law of Land Warfare manual or the U.S. Army/Marine Corps 2019 Commander’s Handbook on the Law of Land Warfare, which adopts the Law of War Manual’s approach to “leaders” discussed above (¶ 2-67).
In the past, eminent scholars have embraced versions of this view. For example, writing in 1880, William Edward Hall asserted that, although targeting an enemy’s sovereign, ministers, high officers of government, or diplomatic agents with lethal force was prohibited, they could be made prisoners of war (International Law). Likewise, in 1911, James Molony Spaight observed that “[h]igh civil functionaries . . . are also liable to be made prisoners of war; to capture a war minister . . . or a sovereign . . . would be justifiable as tending to disorganize the administration of the enemy State and to weaken indirectly its fighting efficiency ” (War Rights on Land). And Hersch Lauterpacht noted in 1952 that “[t]he head of the enemy State and officials in important posts, in case they do not belong to the armed forces, . . . are so important to the enemy State . . . that they may certainly be made prisoners of war” (Oppenheim’s International Law).
Under this view, President Maduro would be entitled to POW status solely by virtue of his role as President of Venezuela. There is no need that he be commander-in-chief, a member of the armed forces, or that he exercised “operational command or control” in the conflict.
The weakness in the theory that the head of State or other senior officials are entitled to POW status is that despite numerous scholarly and governmental assertions to that effect prior to the adoption of the Geneva Conventions in 1949, GC III focused on the concept of “members of the armed forces,” which, as explained above, may rationally be interpreted as encompassing a head of State who acts as commander in chief of the armed forces. But GC III makes no suggestion that head of State status, as such, triggers the entitlement.
It is notable that the pre-GC III assertions of POW status for heads of State were largely developed against the backdrop of a serious lack of protection for civilians falling into the hands of the enemy. The goal of these earlier pronouncements, then, may have been to ensure heads of State are not afforded worse treatment than captured enemy forces. If that is correct, then it follows that the fully elucidated framework of protections for civilians in the Fourth Geneva Convention may have rendered superfluous the need to ensure protections upon capture for a head of State who was not a combatant.
The Consequences of POW Status
GC III entitles POWs to specific treatment with respect to, inter alia, food, housing, medical care, work, contact with the outside, and ICRC visitation. For instance, General Noriega eventually received visits from the ICRC while serving his sentence in a U.S. prison.
Prisoners of war may be prosecuted under the law of the detaining power for offenses committed before (or after) capture, provided that the proceedings comply with the essential judicial guarantees of GC III (arts. 82-85, 105-108). During this period and any imprisonment, they retain GC III protections until their release and repatriation. Under the convention, POWs are to be “released and repatriated without delay after the cessation of active hostilities” (art. 118) and retain their POW status until that occurs (art. 5). However, those “against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment” (art. 119). As noted by the 2020 ICRC Commentary to that latter provision, “Whenever the Detaining Power continues to detain the prisoners after active hostilities have ceased pursuant to Article 119(5), however, the prisoners keep their prisoner-of-war status until they are released and repatriated and the Detaining Power must ensure that they are repatriated without delay after they have served their sentences.”
Therefore, if President Maduro qualifies as a POW under one of the theories set forth above, he may still be prosecuted in a U.S. federal court (because the U.S. federal court system provides the essential judicial guarantees required by GC III) and imprisoned if convicted. Throughout this time, he would remain entitled to POW treatment.
If President Maduro does not qualify as a POW, he would be a civilian under IHL and, like his wife, a “protected person” entitled to protection as such under GC IV. Protected persons are those who “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4). Like POWs, protected persons may be prosecuted for violations of the law of the detaining State, and must also receive a fair trial with all essential judicial guarantees.
Cases of Doubt
Should there be any doubt as to whether Maduro qualifies as a POW, under Article 5 of GC III, he must be treated as a POW until a “competent tribunal” determines his status. This could be a U.S. federal court, as occurred in the Noriega case. However, as noted in the Army/Marine Corps Commander’s Handbook on the Law of Land Operations,
In U.S. practice, tribunals have been three-person administrative boards. A captured person is entitled to notice in a language he or she understands that a tribunal will be held and he or she will be given the opportunity to testify or otherwise address the tribunal. The standard for reaching a determination has been a “preponderance of the evidence” (¶ 3-54).
U.S. officials should recall that how the United States treats detainees matters. The United States has soldiers stationed globally, and if any of them were detained in an armed conflict, it would insist on their entitlement to POW status and treatment.
Concluding Thoughts
Whether Nicolas Maduro qualifies for POW status under international humanitarian law is dependent on how his positions as Venezuela’s head of State and commander-in-chief are interpreted within the framework of the Third Geneva Convention. While the Convention does not expressly address the issue of either heads of State or commanders-in-chief, there are multiple theories under which he would be entitled to POW status. These include his constitutional designation as commander-in-chief de jure, that designation combined with operational command of the armed forces de facto, or historical State practice recognizing heads of State as entitled to POW status. Should any doubt regarding his entitlement to POW status arise, he would have to be treated as a POW until an Article 5 tribunal resolved that doubt.
Given the multiple theories according to which Maduro may qualify as a POW, it would seem clear that the United States must do one of three things: 1) afford him that status, 2) seek a judicial determination of his status, or 3) convene an Article 5 tribunal to make a status determination. In our view, failure to take one of these three steps would constitute a violation of U.S. obligations under the third Geneva Convention and customary international law.
– Tracey Begley, Benjamin R. Farley and Michael Schmitt, Published courtesy of Just Security.
