[Andreina Nicoletti is a PhD candidate at the Centre d’études internationales et européennes (CEIE), at the University of Strasbourg. Her research focuses on the institution, the use and the effects of the veto power by the permanent members (P5) of the United Nations Security Council]
On the early morning of January 3, 2026, Nicolás Maduro Moros and his wife Cilia Flores were removed by U.S. forces from Caracas and were transferred to a Detention Center in Brooklyn, New York, where they were presented with drug trafficking and weapon possession charges. These actions violated several rules and principles of international law, as has already been extensively demonstrated elsewhere (e.g., here, here and here). Less explored are the tangled and complex criminal cases Maduro is now facing: charges by the U.S. Courts for drug-trafficking and weapon possession; ICC’s investigations (Venezuela I) since 2018 and, as some speculate, a sealed arrest warrant (under Article 23 ter of the Rome Statute); a formal demand of extradition by Argentinian authorities for the commissions of crimes against humanity (case opened in 2024). At the same time, he claims to be still holding office as Venezuela’s President, therefore enjoying personal immunity protecting him from third country prosecutions. This post discusses whether these initiatives can deliver justice and accountability, and whether Maduro should be recognized as Head of State because he held effective power, notwithstanding the 2024 contested elections.
The Quest for Accountability: Parallel Proceedings Against Maduro
Once in the U.S. soils, the defendants Nicolas Maduro and Cilia Flores were presented with the superseding indictment. The indictment was altered – whether this was before or after the arrest isn’t clear – but the final charges against the two individuals remained unchanged. The previous indictment (S2) gave greater attention to the drug-trafficking Cártel de Los Soles and to the role of the late president Hugo Chávez, Maduro and others as high-ranking heads of the Cartel. The latest indictment (S4) still links the Cártel de Los Soles with the Maduro Family (para. 21.k.), but focuses more on the two defendants’ partnership with narco-terrorist groups such as the FARCs and ELN in Colombia, the Sinaloa Cartel and Zetas in Mexico and TdA in Venezuela.
The indictment charges Maduro, Flores and others with providing law enforcement cover and logistical support to these organizations for transporting cocaine and weapons to the U.S. (para. 21). The U.S. General Attorney argues that those actions caused great prejudice to U.S. interests by importing controlled substances in its territory, basing the U.S. court’s jurisdiction on “territorial” grounds and the “protective principle”, which allow prosecution for foreign crimes by non-nationals when they pose a threat to the State and its security.
The ICC, instead, still investigates Maduro for more heinous crimes: extrajudicial killings; arbitrary detentions; enforced disappearances; torture and other cruel, inhuman, or degrading treatment; and sexual and gender-based violence – but not for narco-terrorisms charges, which are not qualified as “international crimes”. There is no litispendence, under the principle of complementary, because the two proceedings, while involving the same individual, revolve around on fundamentally different conducts (Article 17.1 of the Rome Statute). On 12 March, the ICC Office of the Prosecutor dismissed the Venezuelan government’s strained attempt to shift responsibility for alleged crimes against humanity (Venezuela II), rejecting its claim that the crimes committed in Venezuela resulted from the imposition of U.S. sanctions, as this lacked evidentiary basis (para. 7).
If the speculations on a sealed ICC warrant are correct, one may wonder what the prospects are of Maduro being surrendered to The Hague. The U.S. is not a party to the Rome Statute and the Court can only invite non-state parties to collaborate (para. 32) through an arrest warrant referral, but cannot oblige execution (Article 59 of the Rome Statute). It is also safe to suppose that such an invitation would probably go unanswered, given the U.S.’s particular hostility toward the Court. The unsealing of an ICC arrest warrant would likely not affect the U.S. domestic proceedings.
Technically, the U.S. may hold Maduro accountable for international crimes through universal jurisdiction (invoked by the Argentinian courts). The U.S. has developed a practice for universal jurisdiction – often criticized as a challenge to sovereignty and an infringement of foreign officials’ personal and functional immunity – after the adoption of the Justice for Victims of War Crimes Act. As for the recent events, the U.S. has shown no intention to exercise it in the case of Maduro. By redirecting attention to transnational narcotrafficking, the U.S. is sidelining accountability for crimes in Venezuela, allowing Maduro and the other co-perpetrators to enjoy impunity for those heinous crimes and denying real justice to Venezuelan victims – at a time when it would be crucial to maintain the focus on the grave human rights violations and crimes against humanity committed against them.
The Argentinian proceedings may be a step in that direction. On February 4, 2026 the Argentinian Federal Judge Sebastián Ramos signed a formal demand seeking Maduro’s extradition amid the Argentinian proceedings for allegations of crimes against humanity and torture. For now, it remains unclear whether the Argentinian Ministry of Foreign Affairs has transferred the request to the U.S. counterpart and what the U.S. response will be. At least for the allegation of torture, the U.S. has the obligation of aut dedere aut judicare under the 1984 Convention Against Torture (Articles 5.2 and 8.1), of which the U.S. and Argentina are parties, and under U.S.-Argentinian extradition treaty.
The Personal Immunity of an Alleged President
But would Maduro enjoy personal or functional immunity for charges of crimes against humanity? Since Venezuela is a State party to the Rome Statute, Maduro’s (alleged) official capacity as Head of State would not shield him from criminal responsibility before the ICC (Article 27 of the Rome Statute). The ICTY ruled that under customary law, those responsible for international crimes cannot invoke immunity from national or international proceedings even if they perpetrated such crimes while acting in their official capacity (ICTY Blaškić, para. 41). The ICJ ruled that personal immunity applies without exception for Head of State before foreign domestic courts (Arrest Warrant, para. 51) but only until the individual holds office, while functional immunity does not apply for acts committed outside their official duties, provided that the foreign State has jurisdiction (para. 61).
One may argue that in the case of Maduro, there are valid grounds to exercise universal jurisdiction. Crimes against humanity (or narco-terrorism) don’t fall under presidential official duties, so functional immunity should be excluded. One may also argue that Maduro ceased to hold office with his abduction and Delcy Rodriguez’s sworn-in. So, Maduro would not be immune from foreign domestic proceedings, although he would have enjoyed personal immunity against the initial arrest. The U.S. Courts would probably resolve this through their Ker-Frisbie Doctrine, according to which the original illegality of an arrest does not deprive a court of jurisdiction.
One may also contend that Maduro did not enjoy personal immunity to begin with, being merely an alleged or disputed President who held power through coercive means and in violation of his own domestic law. Can Maduro hide behind immunity if he holds power only through force and coercion? Arato and Uribubu answer to this question positively (cf. ICJ Arrest Warrant). According to the ILC, immunity ratione personae for the Troika is devoid of any exceptions, rooted in the idea that all countries are equal and that a sitting Head of State cannot face proceedings in another country (Keitner). Following this doctrine, sovereign prerogatives (such as immunity) must be recognized to whomever occupies the office of Head of State as a matter of fact rather than of law (de facto as opposed to de jure), regardless of whether power was acquired through unlawful means, which should be left to each country’s internal affairs. In the present case, Maduro would be granted personal immunity even in the U.S. proceedings, since he claims to be still holding office.
This approach, grounded in the doctrine of effective power, was originally conceived to protect States from external interference and to safeguard the people’s right to self-determination. In practice, however, it has taken a darker turn, being invoked by authoritarian governments to shield themselves from accountability and perpetuate oppressive rule. In a case of “contested presidency” as in Venezuela in 2019 and again after the 2024 elections, recent State practice has increasingly called into question the recognition of individuals exercising effective power irrespective of how that power has been acquired or exercised. But how can the human cost of a dictatorship simply be understood as an “internal matter”?.
Take for example international State representation. Generally, State representatives at the UN are designated by the country’s government, as a prerogative of their sovereignty. But, for instance, the permanent mission of Afghanistan to the UN to this day is still assured by a representative of the former republic, even after the Talibans seized effective power in 2021 (see here, pp 650 et seq). In Venezuela, this already happened in 2019, when more than fifty States and international organizations – the European Union and the Organization of American States (OAS) – recognized sovereign prerogatives to Juan Guaidó as Venezuela’s legitimate Interim President and cut diplomatic relations with the Maduro’s government, even if he was still sitting in Miraflores (the Presidential Palace). Would Maduro have enjoyed immunity then?
In that same context, the Inter-American Court of Human Rights (IACtHR) recognized in Chirinos Salamanca (paras. 44-68) that Guaidó and his government were accepted as the competent authority under public international law to represent Venezuela at the OAS. Even if Guaidó did not hold the effective power, he was recognized sovereign prerogatives as the Head of a Government duly accredited by the democratically elected institution in Venezuela, the National Assembly. Prioritizing de jure over de facto, the IACtHR ruled that Guaidó’s declaration ratifying the American Human Rights Convention with retroactive effect, approved by the National Assembly and recognized by the OAS, left Maduro’s denunciation of the Convention without effect, even if he held the effective power.
In the 2024 Venezuelan presidential elections Maduro announced his victory again through State-controlled media. Independent bodies (The Carter Center; UNIFFMW) stated that the elections did not meet international standards and where just another chance for the Maduro’s government to perpetuate the oppression of the population, reactivating rapidly and intensively the system of harassment and violent repression against real or perceived opponents (para. 34). Maduro self-proclaimed himself as the President claiming to enjoy all the sovereign prerogatives attached to the office even if he didn’t show any official data and proofs of his victory, violating the Venezuelan Constitution (Article 120).
But international law confers immunity by virtue of office, not by self-proclamation, and under Venezuelan domestic law, virtue of office has to be recognized to the elected President and not the self-proclaimed one. The opposition candidate González presented proofs corroborating that even under oppression, the Venezuelan people chose him as their President by 60% of votes. However, due to Maduro’s persecutions, González was unable to take office and had to flee the country. In this context, it could be argued that in line with some of the recent practice challenging the effective power’s doctrine, sovereignty privileges like immunity cannot be recognized to Maduro, who maintained power de facto but not de jure, through unlawful and coercive means and in violation of Venezuela’s domestic law and international obligations like the Carta de Lima.
Conclusion
The proceedings in the U.S. appear as the most likely to take place in concrete. In that context, the Judges will probably quickly dismiss the issue of immunity following the Noriega precedent and the One Voice doctrine, for which the non-recognition by the Trump’s and the Biden’s administration of the Maduro presidency would pre-empt any sovereignty privileges attached to his persona. Yet perhaps, Venezuela presents a greater opportunity for international criminal justice to reconsider how personal immunity claims are treated when effective power is established without a valid mandate under domestic law and through a blunt violation of the people’s self-determination.
