President Trump’s recognition of Venezuelan opposition leader Juan Guaido as “interim president” could smooth the way for U.S. military intervention in the economically stricken South American country, legal analysts say.
A senior administration official on Wednesday emphasized economic and diplomatic responses if President Nicolas Maduro “chooses the route of violence.” The official told reporters, “In our sanctions, we’ve barely scratched the surface on what actions the United States can take.” But in August 2017, Trump said that he was not ruling out “the military option” for Venezuela. When the official was asked whether the United States might impose a naval blockade or take some other military action, the response was: “Everything is on the table, all options.”
The Maduro regime has “no immediate future. They will have no immediate livelihood, and they will have their days counted,” the official added.
International law forbids “the threat or use of force against the territorial integrity or political independence of any state.” There are several pathways around that prohibition, including two exceptions explicitly mentioned in the U.N. Charter: self-defense and collective action authorized by the U.N. Security Council, neither of which have been met in Venezuela. Some countries, including the United States, have also claimed a right to use force for humanitarian intervention. (NATO’s 1999 intervention in Kosovo is one high-profile example; the theory has remained controversial because it highlights an unresolved tension between the relative values placed on human rights and sovereignty in international law.)
There is one other potential carve-out: the widely accepted principle that a host country can “consent” to military intervention by another country.
“The real implication is what it would mean all of a sudden that the Maduro government is a non-state actor from the U.S. perspective,” said Steve Vladeck, a national security professor at the University of Texas Law School. “The government we are purporting to recognize might consent to U.S. actions on Venezuelan soil that are actually quite hostile to the Maduro regime.”
Perhaps the best modern parallel for that scenario is in Iraq, where the internationally recognized government — installed after the American invasion in 2003 — has since authorized the United States to base its war against the Islamic State in Iraq.
“In accordance with international law and the relevant bilateral and multilateral agreements, and with due regard for complete national sovereignty and the Constitution, we have requested the United States of America to lead international efforts to strike ISIL sites and military strongholds, with our express consent,” Iraq wrote in a 2014 letter to the UN.
Military and regional analysts caution that any military intervention into Venezuela faces a host of practical challenges that make it an unlikely — and many say unwise — policy choice.
“Militarizing the crisis in Venezuela would require going basically from 0-100,” tweeted defense analyst Dan Trombly. “The disorganized and largely non-violent VZ opposition would be unable to match even Libya's incoherent militia patchwork anytime soon and would very likely require foreign ground support.
“Precisely because Venezuela is *not* yet in a civil war, there is very little the US could even fantasize about doing to strike VZ or militarily help along this opposition without sliding into a full-blown Iraq-like effort to collapse existing Venezuelan state institutions.”
Domestic law would require Trump to obtain congressional approval for any conventional long-term military involvement — an unlikely prospect in a Democratic-controlled House.
But it’s possible Trump’s recognition of Guaido might open the door for special operations forces to provide their particular brand of clandestine aid under Title 10 of the U.S. Code, which lays out the role of the armed forces — like “assisting friendly foreign governments, which the opposition technically now is, it would seem,” said Bobby Chesney, also a national security professor at the Texas University School of Law.
“Hard to imagine this would be anything other than providing intelligence, funding, perhaps communications equipment,” Chesney said in an email. “Is there really anything practically different about that prospect, as opposed to whatever covert action program we surely already had underway to provide such aid? Probably not.”
Trump’s recognition of Guaido caps off years of simmering tensions between Maduro and the United States government. The Venezuelan president took power in 2013 and has been twice re-elected in elections widely seen as fraudulent. Under his administration, Venezuela has sunk into an increasingly desperate economic and political crisis. Hyperinflation has crippled the economy and millions of citizens have fled the country amid food and medicine shortages, as Maduro has jailed opponents and amassed virtually all legislative and judicial power in Caracas.
The Trump administration has steadily escalated sanctions on people linked to his regime and officials have said previously that further economic penalties are under consideration. Republicans have long clamored for tougher treatment of Venezuela, an historic backer of the Castro regime in Cuba. In conservative circles, the grim humanitarian situation in Venezuela has become a popular case study against progressive policies.
Over the past year, the Trump administration reportedly met in secret with rebel Venezuelan military officers who sought to overthrow Maduro, although U.S. officials ultimately rebuffed the plotters. In 2017, Trump repeatedly asked advisors about the possibility of a military intervention, and even suggested it publicly. “Why don’t we just invade? We’ve done it in other parts of the world,” he asked then-national security advisor H.R. McMaster, according to The Washington Post. McMaster, according to current and former officials, recommended “other approaches.”
Some analysts fear that even a threat of force by the United States could backfire, allowing Maduro to consolidate popular support by playing on long-held regional grievances over U.S.-backed coups and plots in countries across the region. The increasingly authoritarian leader has held onto power in part by claiming that opposition is part of a U.S. conspiracy to depose him.
“I am the only president of Venezuela,” Maduro said, as quoted by the Venezuelan news outlet Diario La Verdad. “We do not want to return to the 20th century of gringo interventions and coups d’états.”
For now, the situation in Caracas remains fluid. On Wednesday, Maduro severed diplomatic ties with the United States and ordered all American diplomats out of the country within 72 hours. Guaido swiftly declared the order invalid, as did some prominent Venezuela hawks in the United States. A number of countries, including Canada, France, and several South American countries, have also acknowledged Guaido. But Mexico and Spain — key players in the Spanish-speaking world — withheld their support.
Should a broad coalition of key countries recognize Guaido’s claim to the presidency, it could lend legitimacy to any hypothetical consent he might give for a military intervention, Vladeck said.
But it’s far from clear that Guaido will be successful in his bid for authority. For now, his claim to be the rightful president of Venezuela is still rhetorical. He could be jailed before he is able to take advantage of any offers of U.S. assistance, financial or military.
“When — as here — it’s not quite as obvious who is actually in control, it’s opening the door to a whole lot of potential mischief because of the centrality of sovereignty to international law,” Vladeck said.