On January 3, the US attacked military facilities, ports and airports in Venezuela and captured the President of the country, Nicolás Maduro, along with his wife. Maduro has since been brought to New York and arraigned on charges relating to narcotics and weapons possession in a US federal district court.

On January 5, it was reported that Maduro had sought Prisoner of War (PoW) status. The New York Times said, quoting legal experts, that “it would be a stretch for Mr. Maduro to receive prisoner-of-war status. He never was a combatant, nor has he ever served in the Venezuelan military, although he has worn a military uniform with the presidential rank of commander in chief.”

This article seeks to answer the question of whether Maduro can claim PoW status under the laws of war -international humanitarian law-. It does not touch upon other questions relating to his arraignment which involve questions of US domestic law or head-of-state immunity.

Existence of an Armed Conflict

For the laws of war to apply, there must be an armed conflict. Under Common Article 2 to the Geneva Conventions (1949), the Conventions ‘shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’ In its remarks to the Security Council two days after the capture, the US Ambassador to the UN stated that it was “a surgical law enforcement operation facilitated by the U.S. military against two indicted fugitives of American justice”.

However, the recently released Justice Department memo from the Office of Legal Counsel acknowledges that under international law, the operation would constitute an ‘armed conflict’ to which the law of armed conflict would apply. It further refers to Pictet’s Commentary (1952) to Common Article 2 that “Any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2” (page 32). This is also consistent with the US’ accepted interpretation of CA2 as including “any situation in which there is hostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting” (DoD Manual, updated 2023, section 3.4.2). Therefore, the operation is an international armed conflict.

 Prisoner of War Status

 The second question then is whether Maduro constitutes a combatant under Article 4A of the Third Geneva Convention (GCIII) who may gain the secondary status of Prisoner of War when he has “fallen into the power of the enemy.” As Venezuela is party to Additional Protocol I but the US is not, only GCIII will be considered.

Under Article 4A(3) of GCIII, PoW status is given to members of regular armed forces who profess allegiance to a government or an authority not recognised by the Detaining Power. It is likely this provision would apply to Maduro as the US refused to recognise him as Venezuela’s President or his regime as the government after the 2024 contested election. This is because the failure by one State to not recognise another is not a barrier to the recognition of prisoner-of-war status for members of the armed forces (ICRC Commentary (2020), 1043).

Commander-in-Chief

Would Maduro as commander-in-chief of the Venezuelan armed forces constitute a member of the regular armed forces for the purposes of Article 4A(3)? Or would it be, as the New York Times states, ‘a stretch’? According to Sassòli, Heads of State are combatants “only if they are members of the armed forces, including as nominal or effective commanders-in-chief”. Green agrees that a “civilian head of state who is commander-in-chief of his nation’s forces becomes a prisoner of war if he falls into enemy hands” (Green, page 225). However, in some States the position of commander-in-chief is purely ceremonial, with actual command being undertaken by another arm of government. For instance, the UK’s monarch, King Charles III, is the nominated Head of the Armed Forces for the UK but this authority is actually held de facto by the Prime Minister and the Cabinet. Therefore, some appraisal of domestic law and arrangements would be required.

This is mirrored in the US’ DoD Manual which states that “as the commander-in-chief of the U.S. armed forces, the President would be a legitimate target in wartime, as would, for example, the Prime Minister of a constitutional monarchy. In contrast, the reigning monarch of a constitutional monarchy with an essentially ceremonial role in State affairs may not be made the object of attack (DoD Manual, updated 2023, section 5.7.4). It seems that for the US so long as the role is not held in a purely ceremonial fashion, even a nominal commander-in-chief would be targetable and therefore a combatant.

Under Article 236 of Venezuela’s Constitution (1999 (revised in 2009), the President’s duties include directing the “National Armed Forces in his capacity as Commander in Chief and to “exercise supreme hierarchical Authority over the same and establish their contingent”. He is also obliged to “exercise supreme command over the National Armed Forces, promote their officers at the rank of colonel or naval captain and above, and appoint them to the positions exclusively reserved to them”. Therefore, this is not a purely ceremonial position.

Other commentators have argued that a Commander in Chief is not a combatant by status but may be targetable by conduct, for instance, if they directly participate in hostilities by being directly involved in military decision-making. However, targetability does not affect an individual’s primary or secondary status in an armed conflict. Under this approach, a Commander-in-Chief would be a civilian and therefore a protected person upon capture, targetable for so long as they directly participate in hostilities, but not a combatant or PoW. This may be an unconvincing approach for a leader such as Maduro given his role under the constitution, the fact that he would wear military uniform, and given his position, was making military decisions for Venezuela. For instance, in the weeks leading up to the invasion, when he decided that he would mobilise millions of armed militiamen to defend the country as well as his involvement in decisions to promote soldiers.

Lack of Uniform

Another issue would be whether Maduro’s lack of uniform would deprive him of PoW status. Under Article 4A(2) of GCIII, members of other militias, volunteer corps, and organised resistance movements, must fulfil the conditions of being under a responsible command, having a fixed distinctive sign, carrying arms openly, and conducting operations under the laws of war. There is debate as to whether this applies to regular armed forces under Articles 4A(1) or (3), as case law such as Ex Parte Quirin and Mohamed Ali seems to support the the notion that the rules under Article 4A(2) also apply to Article 4A(1) or (3) regular armed forces. The US’ DoD manual also seem to agree with this as it states that “[i]f an armed force of a State systematically failed to distinguish itself from the civilian population and to conduct its operations in accordance with the law of war, its members should not expect to receive the privileges afforded lawful combatants (section 4.6.1.3).

However, the ICRC argues that in its opinion, the “four conditions in subparagraph 4A(2) do not attach collectively to regular armed forces covered by subparagraph 4A(3)” (ICRC Commentary (2020), 1044). The ICRC moreover states that the obligation to distinguish only applies during a military operation and therefore being captured in camp when not wearing a uniform would not be a ground to deny a person PoW status (ibid, 986). This would also distinguish Maduro’s case from the facts of Ex Parte Quirin or Mohamed Ali as well as the DoD manual’s reference to a ‘systematically’ failing to distinguish on the part of the Venezuelan armed forces. As a result, the lack of uniform would not deprive Maduro of PoW status.

Previous US State Practice

Panaman leader Manuel Noriega (who also held the title of Commander in Chief) had sought PoW status when he appeared before a US court on charges for federal criminal offenses after the US invaded his country and captured him in December 1989. While Noriega was initially denied PoW status, a few years later, a judge formally granted General Noriega prisoner-of-war status after his conviction in 1992 under Article 4A(3) of GCIII. Moreover, in December 2003, Iraq’s President Saddam Hussein was captured by US forces during the occupation phase of the conflict in civilian attire. Saddam was presumed to be a combatant given he commanded the Iraqi army, often wore a military uniform, and frequently went about armed and was given PoW status (Solis, page 189).

Conclusion

In Noriega’s case too, the US denied it was at war with Panama under its domestic law. However, the US has admitted here that under international law it was in a state of armed conflict with Venezuela to which the laws of war apply, as well as ‘combatant privilege’. As a result, it would not be a ‘stretch’ for Maduro to claim Prisoner of War status. Under Article 4A(3) GCIII, the US must give Maduro PoW status and all the rights accorded to him under the laws of war by virtue of that status. This is also consistent with the US’ own past practice in the capture of Noriega and Saddam Hussein.

Ayesha Alam Malik is Director of the soon-to-be-launched War Law Institute, Adjunct Faculty at the Lahore University of Management Sciences, and a contributing op-ed writer for the Pakistani newspaper Dawn.