28 January 2025, NIICE Commentary 12293
E. V. A. Dissanayake
Under customary international law, heads of state enjoy a robust form of legal protection known as immunity ratione personae (personal immunity). This doctrine provides absolute protection from the criminal jurisdiction of foreign states for sitting heads of state, regardless of the nature or gravity of alleged offences. The rationale for this immunity is primarily functional: it ensures that leaders can execute their official duties without foreign interference, thereby maintaining the stability of international relations and respecting the sanctity of state sovereignty.
However, as the recent and unprecedented US military extraction of Venezuelan President Nicolás Maduro on 3rd January 2026 demonstrates, the traditional boundaries of this immunity are being tested by a new era of "judicial interventionism." The tension between the principle of state immunity and the global imperative for accountability has moved from the pages of legal journals to the forefront of global geopolitics.
The Legal Framework: A Temporal Shield
The current legal architecture, as outlined by the International Law Commission (ILC), divides immunities into two distinct categories:
Immunity Ratione Personae (Personal Immunity): This shields sitting heads of state from all foreign criminal jurisdiction, covering both official and private acts. Its purpose is to prevent foreign courts from disrupting state functions or triggering diplomatic crises. The International Court of Justice (ICJ) famously reaffirmed this in the Arrest Warrant Case (2002), stating that serving leaders enjoy absolute immunity while in office.
Immunity Ratione Materiae (Functional Immunity): Once a leader vacates office, they are protected only by functional immunity, which covers official acts performed during their tenure. Crucially, as argued by scholars like Antonio Cassese and William Schabas, this does not shield former leaders from prosecution for jus cogens violations—such as genocide, war crimes, or crimes against humanity.
Narco-Terrorism and the "Jus Cogens" Grey Zone
A critical point of contention in the 2026 Venezuelan President Maduro indictment is the nature of the charges themselves. While international law clearly identifies genocide, war crimes, and crimes against humanity as jus cogens violations—peremptory norms that allow for no derogation—the status of "narco-terrorism" remains in a legal grey zone. Under the Vienna Convention on the Law of Treaties, jus cogens norms are those recognized by the international community as so fundamental they override all other rules, including immunity.
Unlike these "core" international crimes, narco-terrorism is primarily a treaty-based offence rather than a universal norm of customary international law. This distinction is vital for the current immunity debate. For a foreign court to pierce the veil of functional immunity (ratione materiae), it must typically prove that the act in question violates a peremptory norm.
The US indictment unsealed in the Southern District of New York focuses on a "narco-terrorism conspiracy" rather than the systematic human rights atrocities often cited by NGOs. This creates a significant legal challenge: if narco-terrorism is not universally recognized as a jus cogens crime, can it legally justify the arrest of a sitting leader? By prioritizing narcotics charges over established human rights violations, the prosecution may inadvertently leave the door open for a robust immunity defense, as these acts could be argued to fall within the "official" (albeit criminalized) functions of a state under siege.
The Venezuela Precedent: Testing Article 2(4).
The capture of Venezuelan President Nicolás Maduro by US Special Forces during Operation Absolute Resolve represents a seismic shift in how these doctrines are applied. The US justification hinges on the claim that Venezuelan President Maduro's 2024 re-election was illegitimate, thereby arguing he was not a "legal" head of state entitled to ratione personae.
However, this "legitimacy-based" approach to immunity challenges the core of the UN Charter. Article 2(4) strictly prohibits the use of force against the territorial integrity or political independence of any state. By framing the extraction as a "law enforcement operation" rather than a military act, the US has bypassed the traditional requirement for a UN Security Council mandate or a clear case of self-defense. This raises a dangerous question: Can a foreign power unilaterally decide when a leader’s immunity expires simply by "de-recognizing" their domestic authority?
The Neutrality Dilemma
For the Global South nations, the Venezuela precedent presents a significant diplomatic and legal quandary. This reaction underscores a broader concern within the Global South: the fear that head-of-state immunity is becoming a "conditional" right, subject to the political preferences of powerful Western nations.
This debate is currently playing out in the ILC’s Seventy-Seventh Session (2025-2026) regarding Draft Article 7. This article seeks to codify exceptions to functional immunity for grave international crimes. While many Western states advocate for a broad list of exceptions, many middle powers argue that without clear, multilateral definitions, such exceptions will be "instrumentalized" to target leaders from the Global South. As noted by Yuval Shany, the goal of immunity is to avoid "disrupting the functioning of a state"—a goal that is increasingly at odds with unilateral judicial actions.
The Erosion of Absolute Immunity.
The Venezuela case highlights three critical implications for the future of international law:
- The De-recognition Weapon: If states can unilaterally "de-recognize" a leader to strip them of personal immunity, the legal predictability of international relations is compromised.
- The Narco-Terrorism Grey Zone: Indictments focusing on drug trafficking seek to categories such acts as "private" rather than official acts of state. This risks expanding the list of crimes that can pierce immunity even while a leader is in power.
- Judicial Imperialism: There is a growing perception that international law is being used as a tool for "regime change by other means," where domestic courts in one country act as the arbiter of legitimacy for another.
Conclusion: A Dynamic and Dangerous Landscape
While immunity remains a cornerstone of international law, the events of early 2026 suggest that its protection is becoming increasingly fragile. The interplay between personal and functional immunity reflects a shifting world order where the pursuit of justice is being used to justify the violation of sovereignty.
For policymakers, the challenge lies in ensuring that the pursuit of accountability for grave violations does not descend into a "law of the strongest." A robust international legal order must protect against impunity, but it must do so through established multilateral institutions—like the International Criminal Court (ICC)—rather than through unilateral military extractions that undermine the very foundations of the UN Charter.
E. V. A. Dissanayake is an Independent Researcher from Sri Lanka. She is a Robert Bosche Stiftung Fellow and a Visiting Scholar of Columbia University, USA.
