According to a report by Reuters on October 8th, the US prosecution is expected to charge Nicolas Maduro and his wife Cilia Flores with additional crimes related to the ‘torture’ of several American citizens while they were detained in Venezuela.
If the new charges are officially established, the Maduro case will touch upon three very sensitive aspects of the American judicial system.
The first question is:
The answer may actually be the easiest to resolve among the three legal hurdles.
The U.S. criminal law inherently includes strong provisions regarding extraterritorial jurisdiction. For example, Section 2340A of Title 18 of the U.S. Code stipulates that torture committed outside the United States can also be investigated and prosecuted in the U.S. As long as the suspect is a U.S. citizen, or if the suspect later “reappears within the U.S.”, U.S. courts may assume jurisdiction, without requiring the victim to be a U.S. citizen.
This also caused the Moro case to emerge with a substantial legal controversy:
If the prosecution further alleges that Venezuela uses American citizens as leverage to demand concessions from Washington, then the 'Hostage-taking' law could also provide a similar basis for extraterritorial jurisdiction—U.S. law explicitly allows prosecution of hostage-taking acts that occur overseas and involve American citizens or the U.S. government.
The real thorny issue is the second question.
According to many people's intuition, if a country does not follow the extradition process but instead sends its army into another sovereign country to arrest people, then the court should at least address the issue of ‘how the person came to be there’.
But the historical cases of the U.S. Supreme Court are not exactly like this.
In the 1992 case "United States v. Alvarez-Machin," a Mexican doctor was forcibly taken from Mexico to the United States for trial. The Supreme Court ultimately ruled that, even if the defendant was taken by force, as long as the relevant extradition treaty does not explicitly require the dismissal of the lawsuit in such cases,
In other words, within the American judicial tradition, the question of "does the United States have the authority to arrest someone" and "whether a court can try someone after they are arrested" can be broken down into two separate questions.
This is precisely the most important and dangerous aspect of the Maduro case.
The third line of defense is...
Maduro has formally requested that the Federal Court in New York dismiss the case. His lawyer argued that, while arrested, he was still the President of Venezuela and therefore entitled to immunity as a head of state under international law. Additionally, the U.S. government argued that taking Maduro through military action was illegal. The core argument from the U.S. government is that Washington no longer recognizes Maduro's legal presidential status. The related proceedings are expected to continue in November.
Here is another famous precedent: After the United States invaded Panama in 1989 and took Manuel Noriega prisoner, the U.S. courts did not accept his claim to immunity as a head of state. One of the key reasons was that the U.S. government also did not recognize Noriega as someone who had the status of a head of state under law.
Therefore, for Ma Du Luo, the most troublesome thing might not be proving that he was "forcibly taken by the United States," but having the United States courts admit:
This is also why the impact of the Maduro case may far exceed Venezuela.
If American courts ultimately confirm three things simultaneously—that the United States can apply criminal law to its actions abroad, that military arrests will not prevent trials in court, and that the U.S. executive branch can weaken immunity by "not recognizing the head of state"—then what is formed is actually a very powerful set of logic.
Of course, other countries may also consider this practice to be a violation of international law.
Precisely because of this, what truly deserves attention in the Maduro case is not whether he will be imprisoned or not.
This answer may not only apply to Maduro in the future.
