Does Venezuela’s Maduro enjoy head of state immunity from prosecution?

Thursday’s announcement of drug trafficking charges against Nicolas Maduro raises a thorny legal question: does the U.S. legal system have jurisdiction to put him on trial considering that he is the current ruler of the sovereign state of Venezuela.

Under international law, foreign heads of state enjoy certain immunity from prosecution by other governments. But experts say this does not apply in the case of Maduro – for two reasons.

Firstly, and most importantly, while Maduro may consider himself head of state, the U.S. government – along with more than 50 other countries – does not. That’s because he is accused of stealing the May 2018 presidential elections via massive fraud.

While some countries, notably China, Russia and Cuba, still recognize Maduro, but that counts for zero in U.S. court system.

“Immunity is a privilege granted by the executive branch, not by the courts,” former top U.S. federal prosecutor, Richard Gregorie, told Univision Noticias.

Gregorie knows a thing or two about the issue, as he was the chief of the narcotics division of the Southern District of Florida who led the February 1988 indictment of General Manuel Noriega in Panama on similar charges of exploiting his official position as head of the Panamanian Defense Forces, to receive payoffs in return for assisting and protecting Colombia’s Medellin cocaine cartel.

Before he retired in 2018, Gregorie also worked on the Maduro case.

The Noriega case is often cited – incorrectly – as legal precedent for the U.S. indictment of a foreign head of state. In fact, when Noriega was indicted Panama had a president named Erik del Valle. Of course, Noriega was effectively in control of the country as head of the Panama Defense Forces.

However, while del Valle was widely considered a puppet of Noriega, he was recognized all across the world, including in the United States, as the head of state.

Ironically, Noriega did later declare himself head of state on December 15, 1989 - five days before the U.S. invaded Panama to arrest him.

The only other near example is Norman Saunders the former Chief Minister of the Turks and Caicos, the tiny island territory in the Caribbean. He was arrested in Miami in 1985 and sentenced to eight years in prison on conspiracy charges related to drug smuggling. But he was also not the head of state as the Turks and Caicos are a British territory and the head of state is Queen Elizabeth ll.

Gregorie recalls that case well, as he was the prosecutor.

“When I did it (indicted Saunders) everybody said you can’t do this. There is an international law that you can’t indict a foreign head of state who is in power,” he told Univision. “But the head of state there is the Queen, so I used that as my cover,” he added.

Gregorie then used the Saunders case “as my precedent for the Noriega indictment,” he went on.

Noriega and the CIA

It didn’t make him very popular in Washington with the administration of George H Bush. In a major embarrassment for U.S. foreign policy at the time, it was well known that Noriega has worked for years as a CIA asset, including when Bush was director of the CIA.

Gregorie recalls going to Washington twice to get the Noriega case approved and ran into resistance from the intelligence agencies who were worried about their dirty secrets being revealed.

“We had been investigating Noriega for more than a year. I even went to the CIA to see what they had on him. They gave me a tiny file with almost nothing in it,” he said.

The U.S. has in other cases resisted indicting sitting heads of state even if they had substantial evidence of wrongdoing. Haiti's President Jean-Bertrand Aristide came close to being indicted by U.S. prosecutors on drug charges prior to his ouster in by an armed popular rebellion in 2004, but no action was taken in part because he was recognized as the legitimately elected head of state.

Similarly, President Juan Orlando Hernandez of Honduras has been named as a co-conspirator in a New York case involving his brother, who was convicted last year on drug trafficking and weapons charges. But no charges have been brought against President Hernandez, who is recognized as head of state by the United States.

President Hernandez has vehemently denied the allegations.

Limits of immunity

Even if Maduro were legally recognized in the United States, his immunity still faces a second challenge. Head of state immunity is only considered to apply when a ruler is exercising his duties in the interests of his countrymen, said David Weinstein, a former federal prosecutor now in private practice with the lawfirm Hinshaw & Culbertson.

For example, this could include drastic measures taken during an international
disputes, or in wartime, when extreme acts may be required that cost lives.

“Immunity only applies to legal actions that you are undertaking as part of your duties as head of state on behalf of your citizens,” said Weinstein.

But they do not apply when the ruler is acting illegally in his own self-interest for personal financial gain, such as international money laundering as alleged in the Maduro case.

“In this case (Maduro) the government is saying he used his position to make his country a narco state. That’s hardly in anyone’s interest, except his own,” he added.

If Maduro is ever brought to trial in the United States, his lawyers are sure to try and dismiss the charges using the immunity defense. Indeed, that is what Gen Noriega’s lawyers tried, unsuccessfully, to argue before his trial in 1990.

But a federal judge, William Hoeveler, ruled “the United States has consistently refused to recognize the Noriega regime as Panama’s legitimate government, a fact which considerably undermines Noriega’s position.”