Nicolás Maduro – Three Potential Defense Strategies

Is Nicolás Maduro a prisoner of war?

The seizure of Nicolás Maduro by American special operations forces on January 3, 2026, inaugurates an unprecedented chapter in transnational criminal jurisprudence. Defense counsel will undoubtedly advance multiple challenges to the jurisdiction of American courts, three of which merit particular scholarly attention: prisoner of war status under the Third Geneva Convention, head of state immunity, and the illegality of the apprehension itself as grounds for dismissal.

Each of these potential defense strategies finds its jurisprudential touchstone in established American case law—most notably United States v. Noriega, United States v. Alvarez-Machain, and the venerable Ker-Frisbie doctrine. This analysis examines these precedents and assesses the probable efficacy of each defensive theory.

• This is continuation of article The Cartel of the Suns Faces American Justice: A Legal Analysis of United States v. Nicolás Maduro

I. The Prisoner of War Defense

A. Legal Framework

The Geneva Convention Relative to the Treatment of Prisoners of War of 1949 (Geneva III) establishes a comprehensive protective regime for individuals captured during international armed conflict. Article 4 delineates the categories of persons entitled to prisoner of war status, while Article 2 defines the Convention’s scope of application as encompassing “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.”

Were Maduro to secure prisoner of war designation, numerous procedural arguments would become available—ranging from place of detention requirements (Article 22 prohibits internment of prisoners of war in penitentiaries), to repatriation rights following cessation of hostilities (Article 118), to limitations on prosecution (Articles 82-108).

B. The Noriega Precedent

United States v. Noriega constitutes the sole precedent in which an American court adjudicated the prisoner of war status of an individual exercising de facto authority over a foreign state. Analysis of this case reveals both the possibilities and constraints inherent in this defensive strategy.

In December 1989, President George H.W. Bush ordered the invasion of Panama (Operation Just Cause), deploying approximately 27,000 troops. The stated objectives included protection of American citizens, restoration of democracy, preservation of Panama Canal treaties, and apprehension of General Manuel Noriega to face federal drug charges. Noriega, who had declared a “state of war” with the United States on December 15, 1989, ultimately surrendered after seeking refuge in the Papal Nunciature for eleven days.

The United States government did not contest Noriega’s prisoner of war status, instead arguing that even if such status attached, the Geneva Convention would not divest the court of jurisdiction. Judge William M. Hoeveler, in his June 8, 1990 opinion, systematically analyzed Articles 82, 84, 85, 87, and 99, concluding that none precluded prosecution of a prisoner of war for common crimes committed prior to capture.

The court accorded particular significance to Article 85, which provides that “[p]risoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.” As Judge Hoeveler observed:

“Rather than supporting Defendants’ overall position pressed under the Geneva Convention, this Article appears to recognize the right to prosecute asserted by the Government.”

In December 1992, when addressing the appropriate place of confinement, Judge Hoeveler formally determined that Noriega qualified as a prisoner of war under Geneva III. He simultaneously confirmed, however, that this status did not preclude incarceration in a civilian facility, provided detention conditions comported with Convention requirements.

The court’s reasoning warrants extended quotation:

“The humanitarian character of the Geneva Convention cannot be overemphasized, and weighs heavily against Defendants’ applications to the Court. The Third Geneva Convention was enacted for the express purpose of protecting prisoners of war from abuse after capture by a detaining power. […] Here, the Government seeks to prosecute Defendants for alleged narcotics trafficking and other drug-related offenses – activities which have no bearing on the conduct of battle or the defense of country. The fact that such alleged conduct is by nature wholly devoid of ‘honorable motives’ renders tendance libérale inapposite to the case at bar.”

C. Application to the Maduro Case

Maduro’s defense confronts a fundamental threshold question: whether the operation of January 3, 2026, constitutes an “armed conflict” within the meaning of Article 2 of the Geneva Convention.

The Commentary of the International Committee of the Red Cross, upon which the Noriega court relied, defines armed conflict as follows:

“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 […]. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4.”

The distinctions between the Panama operation and the Venezuela operation are, however, substantial:

The Venezuela operation bore the hallmarks of a law enforcement action—the apprehension of an individual subject to outstanding criminal charges—rather than an armed conflict between states. Venezuelan armed forces mounted no organized resistance; no territorial occupation ensued; no state of war was declared. Under these circumstances, characterization of the operation as an “armed conflict” triggering Geneva Convention application appears doctrinally problematic.

Even assuming, arguendo, that the court were to find an armed conflict existed and accord Maduro prisoner of war status, the Noriega precedent clearly establishes that such status affords no protection against prosecution for common crimes—including narcotics trafficking—committed prior to capture. Article 119 of the Convention expressly provides that “prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment.”

D. Prognosis

The prisoner of war defense appears unlikely to succeed. First, the January 3, 2026 operation probably fails to satisfy the criteria for “armed conflict” under the Geneva Convention. Second, even were prisoner of war status conferred, it would not shield Maduro from prosecution for narcotics offenses committed prior to capture—a proposition firmly established by the Noriega precedent.

II. The Head of State Immunity Defense

A. Legal Framework

Head of state immunity (immunity ratione personae) ranks among the most venerable principles of international law. Under customary international law, sitting heads of state enjoy absolute personal immunity from foreign criminal jurisdiction—regardless of whether the alleged conduct was official or private in nature.

American law, however, does not regulate the immunity of foreign officials by statute. In the landmark case Samantar v. Yousuf, 560 U.S. 305 (2010), the Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to individual foreign officials—even those acting in an official capacity.

The case concerned Mohamed Ali Samantar, former Prime Minister and Minister of Defense of Somalia, sued by victims of torture and extrajudicial killings during the 1980s. Justice Stevens, writing for a unanimous Court, framed the issue precisely:

“The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act) … provides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner’s immunity from suit.”

The Court undertook a detailed textual analysis of the “foreign state” definition in § 1603 of the FSIA and concluded that the term does not encompass individual officials:

“Reading the FSIA as a whole, there is nothing to suggest we should read ‘foreign state’ in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.”

Critically, Samantar does not mean that foreign officials enjoy no immunity whatsoever—it means only that such immunity is governed by federal common law rather than the FSIA. As Justice Stevens explained:

“Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law.”

Under the common law regime, State Department “suggestions of immunity” assume determinative significance—courts treat them as conclusive. As the Samantar Court recalled, citing earlier precedent:

“If the request was granted, the district court surrendered its jurisdiction. … But ‘in the absence of recognition of the immunity by the Department of State,’ a district court ‘had authority to decide for itself whether all the requisites for such immunity existed.'”

B. The Noriega Immunity Analysis

In Noriega, the court confronted arguments that the defendant enjoyed jurisdictional immunity as a head of state. Noriega advanced three immunity theories: head of state immunity, the act of state doctrine, and diplomatic immunity.

The court rejected all three contentions. Determinative was the executive branch’s position on recognition:

“The United States has consistently refused to recognize the Noriega regime as Panama’s legitimate government, a fact which considerably undermines Noriega’s position.”

The court emphasized that Noriega had nullified the results of Panamanian presidential elections conducted shortly before the operation, and that the United States had recognized Guillermo Endara as the legitimate president. Under these circumstances, Noriega was, at most, a de facto leader, not a de jure head of state—and immunity attaches only to heads of state recognized by the prosecuting nation.

This disposition rests upon a fundamental constitutional principle: the executive branch possesses exclusive authority over recognition of foreign governments. The Supreme Court reaffirmed this doctrine in Zivotofsky v. Kerry, 576 U.S. 1 (2015), holding that the President is “the sole organ of the nation in its external relations” and possesses exclusive competence to recognize foreign sovereigns. Courts are constitutionally bound by this determination.

C. Application to the Maduro Case

Samantar bears directly upon Maduro’s circumstances and substantially complicates any immunity defense. First, Samantar confirms that the FSIA does not govern the immunity of individual foreign officials—even those at the highest levels of government. Maduro therefore cannot invoke the statutory immunity guarantees contained in the FSIA.

Second, because Maduro’s immunity claim falls to be assessed under common law, the State Department’s position assumes dispositive significance. As Samantar makes clear, under the common law regime courts traditionally respected State Department “suggestions of immunity” as conclusive. In the absence of such a suggestion, courts would independently assess whether the prerequisites for immunity had been satisfied—but would do so in light of “the established policy of the [State Department].”

Maduro’s recognition posture is considerably weaker than Noriega’s. In 2019, Venezuela’s National Assembly, invoking constitutional provisions, declared that Maduro had “usurped power” and was not the legitimate president. More than fifty nations—including the United States—refused to recognize Maduro and instead recognized Juan Guaidó as interim president. Following the disputed 2024 elections, the United States recognized Edmundo González as the legitimate president-elect.

Secretary of State Marco Rubio has repeatedly articulated the administration’s position:

“Maduro is NOT the President of Venezuela and his regime is NOT the legitimate government.”

This executive branch determination binds American courts. Because the United States does not recognize Maduro as Venezuela’s head of state, courts cannot independently accord him the immunity afforded to heads of state. The Noriega precedent applies directly: absence of recognition equals absence of immunity.

Defense counsel may argue that Maduro exercised actual governmental authority in Venezuela—commanding the armed forces, controlling state apparatus, issuing decrees. This argument, however, is legally immaterial in light of both Noriega and Samantar.

In Samantar, the Supreme Court rejected the contention that a suit against an official must invariably be treated as a suit against the state:

“Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state. … [W]e do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity. But it does not follow from this premise that Congress intended to codify that immunity in the FSIA.”

Noriega likewise exercised actual control over Panama as commander of the Panama Defense Forces. The court explicitly held that immunity attaches to de jure leaders (those recognized), not de facto leaders (those exercising actual power). Because under the common law regime immunity determinations rest upon executive branch recognition, and the United States has consistently refused to recognize Maduro since 2019, his claim to head of state immunity lacks any legal foundation.

D. Prognosis

The head of state immunity defense has virtually no prospect of success. The executive branch’s position has been unequivocal and repeatedly stated since 2019: Maduro is not the legitimate president of Venezuela. American courts are constitutionally bound by this determination and cannot independently confer immunity contrary to the State Department’s position.

III. The Unlawful Apprehension Defense

A. The Ker-Frisbie Doctrine

The Ker-Frisbie doctrine, deriving from Supreme Court decisions rendered in 1886, establishes that the manner in which a defendant is brought before the court does not affect the court’s jurisdiction—even where that manner was unlawful, including forcible abduction from foreign territory.

In Ker v. Illinois, 119 U.S. 436 (1886), the defendant had been kidnapped from Peru by a private individual acting without governmental authorization. The Supreme Court held that “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.”

In Frisbie v. Collins, 342 U.S. 519 (1952), the Supreme Court reaffirmed this principle:

“This Court has never departed from the rule announced in [Ker] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.”

B. United States v. Alvarez-Machain

United States v. Alvarez-Machain, 504 U.S. 655 (1992), constitutes the most significant precedent for evaluating this defense, as it involved an official abduction authorized by a United States government agency (the DEA) from the territory of a nation with which the United States maintained an extradition treaty.

Humberto Alvarez-Machain, a Mexican citizen and physician, was indicted for participating in the kidnapping and murder of DEA Agent Enrique Camarena-Salazar. The DEA believed that Alvarez-Machain had prolonged the agent’s life to permit further torture and interrogation. On April 2, 1990, Alvarez-Machain was forcibly abducted from his medical office in Guadalajara by individuals acting at DEA direction and transported by private aircraft to El Paso, Texas.

Mexico immediately lodged formal diplomatic protests, arguing that the abduction violated the extradition treaty between the United States and Mexico. The District Court dismissed the indictment, holding that the treaty violation deprived it of jurisdiction. The Ninth Circuit affirmed.

The Supreme Court reversed, 6-3. Chief Justice Rehnquist, writing for the majority, articulated the following propositions:

First, the extradition treaty does not prohibit abductions:

“The Treaty says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs.”

Second, treaty silence signifies absence of prohibition:

“Neither the Treaty’s language nor the history of negotiations and practice under it supports the proposition that it prohibits abductions outside of its terms.”

Third, general principles of international law are insufficient to imply a prohibition:

“General principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. It would go beyond established precedent and practice to draw such an inference from the Treaty based on respondent’s argument that abductions are so clearly prohibited in international law that there was no reason to include the prohibition in the Treaty itself.”

Fourth, even if the abduction was unlawful, redress lies with the executive branch:

“While respondent may be correct that his abduction was ‘shocking’ and in violation of general international law principles, the decision whether he should be returned to Mexico, as a matter outside the Treaty, is a matter for the Executive Branch.”

Justice Stevens, joined by Justices Blackmun and O’Connor, dissented sharply, invoking Justice Brandeis’s admonition:

“In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

The dissent did not, however, alter governing law. The six-justice majority established binding precedent that remains undisturbed.

C. Distinguishing Rauscher from Ker

Defense counsel may attempt to invoke United States v. Rauscher, 119 U.S. 407 (1886), in which the Supreme Court held that a person extradited to the United States pursuant to an extradition treaty could not be prosecuted for offenses other than those for which extradition was granted (the doctrine of specialty).

The distinction, however, is fundamental. In Rauscher, the defendant was brought to the United States pursuant to the extradition treaty—hence the treaty’s provisions constrained the scope of prosecution. In Ker and Alvarez-Machain, the defendants were brought outside the treaty framework—hence the treaty had no bearing on jurisdictional questions.

As Justice Miller explained in Ker:

“[T]he facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government of the United States.”

D. Application to the Maduro Case

Maduro’s procedural position is weaker even than that of Alvarez-Machain, for one straightforward reason: no extradition treaty is active between the United States and Venezuela (A bilateral extradition treaty between the US and Venezuela was signed January 19-21, 1922, and entered into force April 14, 1923, but Venezuela refused to honor it—making extradition practically unavailable)

In Alvarez-Machain, defense counsel could at least argue—albeit ultimately unsuccessfully—that the abduction violated the U.S.-Mexico Extradition Treaty. Maduro lacks even this theoretical avenue. Absent a treaty, there exists no instrument to violate—and the Ker-Frisbie doctrine applies without any treaty-based complications.

Defense counsel may advance the following arguments:

Argument 1: The operation violated international law, including Article 2(4) of the United Nations Charter prohibiting the use of force against the territorial integrity of states.

Response: The Supreme Court in Alvarez-Machain expressly held that violations of international law do not, standing alone, divest courts of jurisdiction. The question of whether a defendant should be returned to his country of origin as redress for international law violations “is a matter for the Executive Branch”—not grounds for dismissal of criminal proceedings.

Argument 2: The operation was “shocking to the conscience” and violated due process standards.

Response: In Frisbie v. Collins, the Supreme Court held that “due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.” The manner of bringing a defendant before the court is immaterial to the due process analysis.

Argument 3: The court should exercise its supervisory powers to dismiss the indictment, thereby declining to legitimize unlawful governmental conduct.

Response: Judge Hoeveler directly addressed this argument in Noriega. He characterized challenges to “the very morality of war itself” as presenting “a political question in its most paradigmatic and pristine form”—beyond judicial competence. Even were the court to find the operation “shocking to the conscience,” this finding would have no application to prosecution for narcotics offenses, because the court would be “condemning a military invasion rather than a law enforcement effort.”

E. Prognosis

The unlawful apprehension defense presents the weakest prospects among the three strategies analyzed. The Ker-Frisbie doctrine has remained undisturbed since 1886 and was reaffirmed by a six-justice majority in 1992. The absence of an extradition treaty between the United States and Venezuela further weakens the defense position—eliminating even the theoretical possibility of arguments premised on violation of a specific international legal instrument.

IV. Conclusion

Analysis of the three potential defense strategies yields unambiguous conclusions.

Prisoner of war status requires demonstration that the January 3, 2026 operation constituted an “international armed conflict” within the meaning of the Geneva Convention. The targeted nature of the operation, the absence of organized resistance by Venezuelan armed forces, the lack of territorial occupation, and the absence of any declaration of war render this characterization highly doubtful. Moreover, even were prisoner of war status conferred, the Noriega precedent clearly establishes that such status provides no shield against prosecution for common crimes committed prior to capture.

Head of state immunity requires recognition by the executive branch. The United States has consistently refused to recognize Maduro as Venezuela’s legitimate president since 2019. This position is binding upon American courts pursuant to the constitutional principle of exclusive executive authority over recognition of foreign governments. The Noriega precedent directly forecloses immunity for individuals whom the United States does not recognize as heads of state.

The unlawful apprehension defense confronts the Ker-Frisbie doctrine, which has governed American jurisprudence since 1886 and was reaffirmed in Alvarez-Machain (1992). That doctrine provides that the manner in which a defendant is brought before the court does not affect jurisdiction—even where that manner involves official governmental abduction from foreign territory, in the presence of an extradition treaty, and notwithstanding formal protests from the country of origin. The absence of any functioning extradition treaty between the United States and Venezuela further undermines this defense.

American jurisprudence thus presents a comprehensive doctrinal framework in which none of the traditional defenses based on circumstances of apprehension possesses realistic prospects of success. Maduro’s defense will necessarily concentrate on substantive matters—challenging evidentiary foundations, impeaching witness credibility, and raising procedural objections unrelated to the capture itself.

For legal practitioners, the paramount conclusion is this: American criminal law exhibits remarkable imperviousness to arguments premised on the manner of obtaining jurisdiction over a defendant. Since 1886, courts have consistently distinguished questions of apprehension legality (which may properly be subjects of diplomatic dispute or interstate claims) from questions of criminal jurisdiction (which depend solely upon the defendant’s physical presence and the court’s subject matter jurisdiction). This separation—however controversial from the perspective of international law—constitutes an entrenched feature of the American legal system, alteration of which would require either legislative intervention or Supreme Court reconsideration of settled precedent.

Nicolás Maduro will stand trial in the Southern District of New York. The precedents indicate clearly that there he will remain—regardless of the circumstances by which he arrived.

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.