White House Can’t Make Venezuela Attack Legal

Marjorie Cohn rebuts the efforts by the Trump administration — including the president’s claim that the U.S. owns Venezuela’s oil — to justify its illegal aggression.

By Marjorie Cohn
Truthout

The Trump administration’s massive military attack on Venezuela, launched with 150 aircraft, reportedly killed upwards of 80 people, including civilians.

In utter defiance of the mandates of the United Nations Charter, U.S. forces launched the attack as they kidnapped Venezuelan President Nicolás Maduro and his wife, First Lady Cilia Flores, who have been transported to New York, where they face drug trafficking charges.

After two world wars claimed more than 100 million lives, 50 countries came together and enacted the U.N. Charter to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The United States, one of the drafters of the Charter, is a party to that treaty.

Under the Supremacy Clause of the U.S. Constitution, treaties are the supreme law of the land, and judges across the country are bound by them.

Article 2 (4) of the Charter declares,

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The only two exceptions to that prohibition are when a country acts in self-defense after an armed attack or when the U.N. Security Council approves the use of force. The attack on Venezuela and the kidnapping of Maduro and Flores did not constitute self-defense nor did the Security Council authorize it.

Venezuela had not launched an armed attack on the U.S. or any other country, nor did it pose an imminent threat. In a stark example of the tail wagging the dog, Gen. Dan Caine, chairman of the Joint Chiefs of Staff, said in the press conference following the invasion that the U.S. military engaged in “multiple self-defense engagements as the force began to withdraw out of Venezuela.”

Indeed, it is Venezuela that has the right to exercise self-defense in response to the armed attack by the United States.

Illegal Aggression

Donald Trump’s Jan. 3 attack constituted illegal aggression. In its 1946 judgment, the International Military Tribunal at Nuremberg held:

“To initiate a war of aggression … is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of whole.”

Under the Rome Statute for the International Criminal Court, an

“‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” That includes “the invasion or attack by the armed forces of a State of the territory of another State.”

The U.S. military attack violated the sovereignty, territorial integrity, and political independence of Venezuela, and thus constituted aggression.

Trump attempted to justify his aggression by claiming that Maduro was the kingpin of an operation that brought drugs into the U.S., saying in his press conference after the abduction that Maduro “sent savage and murderous gangs, including the bloodthirsty prison gang, Tren de Aragua, to terrorize American communities nationwide.”

But an assessment by U.S. intelligence agencies from February 2025 determined that Tren de Aragua was neither controlled by the Venezuelan government, nor committing crimes in the U.S. on its orders.

[See: Behind the DOJ’s Politicized Indictment of Maduro]

And most of the cocaine coming into the U.S. is thought to travel not through the Caribbean but rather through the Pacific, according to data from Colombia, the U.S., and the United Nations. Venezuela doesn’t have a Pacific Coast.

Trump also stated at his press conference that he intends to take over Venezuela’s oil and sell it to other countries because it belongs to the United States and U.S. corporations.

But the U.S. has never owned Venezuela’s oil or territory. In 1976, Venezuelan President Carlos Andrés Pérez nationalized Venezuela’s oil industry. In a process contemporaneously described by The New York Times as “peaceful and orderly,” U.S. and European oil companies that had previously been operating in Venezuela were compensated with about $1 billion.

Foreign oil companies have lodged and won awards in further complaints against Venezuela in the World Bank’s state-corporate dispute arbitration system after then-President Hugo Chávez nationalized other segments of the country’s oil production in 2007, which Venezuela has not paid out. Even if Trump’s bizarre claim that the U.S. owns Venezuela’s oil were true, that would not provide a legal basis for his military attack.

Secretary of State Marco Rubio put forth still a different rationale for the military operation. He claimed it was “largely a law enforcement operation” to arrest Maduro and Flores, on charges in a U.S. indictment alleging that they and other members of the Maduro government committed narco-terrorism and conspiracy to import cocaine.

But a state has no enforcement jurisdiction in the territory of another state unless the latter has given its consent. Without consent, it is a violation of the second state’s territorial sovereignty.

Moreover, under customary international law, Maduro has “head of state immunity” from foreign enforcement jurisdiction. The U.S. withdrawal of recognition of him as head of the Venezuelan government does not negate his personal immunity under customary international law. These are two defenses Maduro will invariably raise when his case is heard in the United States.

The 1989 OLC Opinion

In an attempt to justify its illegal aggression against Venezuela, the Trump administration will undoubtedly rely on an opinion written in 1989 by then-Assistant Attorney General Bill Barr for the Department of Justice’s Office of Legal Counsel (OLC). The opinion was dated six months before President George H. W. Bush’s invasion of Panama, in which the U.S. arrested Gen. Manuel Noriega on drug-trafficking charges.

That opinion says that the president has inherent constitutional authority to order an extraterritorial arrest even if it violates customary international law by intruding “on the sovereignty of other countries.”

The opinion also asserts that domestic U.S. law trumps the U.N. Charter, which prohibits the “use of force against the territorial integrity” of any state. Barr wrote that the Charter doesn’t “prohibit the Executive as a matter of domestic law from authorizing forcible abductions” abroad.

“The OLC opinion completely failed to address numerous recognitions of the founders, framers, and Supreme Court justices that the president and members of the executive branch are bound by international law,” Jordan Paust, professor emeritus at the University of Houston Law Center and former captain in the U.S. Army JAG Corps, told Truthout. “Further, the express constitutional duty is to faithfully execute the law — not to disobey law.”

Additionally, a significant difference between the Noriega and Maduro cases is that before Bush ordered the arrest of Noriega, Panama’s general assembly had formally declared war against the United States.

Illegal Regime Change & US Occupation

After Maduro’s abduction, Trump said that the United States would occupy Venezuela and “run” the country. “We’re going to stay until such time as the proper transition can take place. So we’re gonna stay until such time as, we’re gonna run it, essentially, until such time as a proper transition can take place.”

Forcible regime change is illegal. The U.N. Charter; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights all guarantee the right to self-determination.

The two covenants have the same first sentence of Article 1: “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”

By kidnapping President Maduro and removing him from Venezuela, Trump engaged in illegal regime change and violated the right of the Venezuelan people to self-determination.

After Maduro’s abduction, Venezuelan Vice President Delcy Rodríguez was sworn in as interim president. Trump has expressed his desire that Rodríguez cooperate with the U.S. agenda. But she has stated in no uncertain terms that Maduro remains “the only president” of Venezuela.

“We had already warned that an aggression was underway under false excuses and false pretenses, and that the masks had fallen off, revealing only one objective: regime change in Venezuela,” Rodríguez declared.

“This regime change would also allow for the seizure of our energy, mineral and natural resources. This is the true objective, and the world and the international community must know it.”

When asked in an interview with The New York Post whether U.S. troops would be deployed to help run Venezuela, Trump replied, “No, if Maduro’s vice president — if the vice president does what we want, we won’t have to do that.” Trump later said, “If she doesn’t do what’s right, she is going to pay a very big price, probably bigger than Maduro.”

Just before that interview, Trump had told reporters at the press conference that he was “not afraid of boots on the ground” in order to secure Venezuela’s oil. In essence, he stated his willingness to maintain a U.S. occupation of Venezuela.

An illegal occupation violates the U.N. Charter. If the use of force to establish the occupation was not justified by self-defense or U.N. Security Council authorization, it is unlawful. A U.S. occupation would violate the right of the Venezuelan people to self-determination.

“No territorial acquisition resulting from the threat or use of force shall be recognized as legal,” the International Court of Justice reiterated in a 2024 advisory opinion. “Occupation is a temporary situation to respond to military necessity, and it cannot transfer title of sovereignty to the occupying Power.”

There is no military necessity for the U.S. to occupy Venezuela. And the U.S. as an occupier would be forbidden from exploiting Venezuela’s natural resources, including its oil.

As demonstrated above, Trump’s attack on Venezuela cannot be validated by self-defense or Council approval. Thus, a U.S. occupation of Venezuela would be illegal.

War Powers Resolution

The U.S. War Powers Resolution allows the president to introduce U.S. armed forces into hostilities or imminent hostilities only after Congress has declared war, or in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” or when there is “specific statutory authorization,” such as an Authorization for Use of Military Force.

But before mounting their regime-change attack on Venezuela, the Trump administration refused to brief leaders of the Senate and House Armed Services committees.

Trump did, however, brief U.S. oil companies both “before and after” the invasion.

“A U.S. invasion of Venezuela to depose its president and arrest him is illegal,” Sen. Tim Kaine (D-Virginia), who serves on the Senate Armed Services Committee, told NPR.

The Senate will vote this week on the War Powers Resolution that Kaine sponsored, which says that

“Congress hereby directs the President to terminate the use of United States Armed Forces for hostilities within or against Venezuela, unless explicitly authorized by a declaration of war or specific authorization for use of military force.”

Rep. James Walkinshaw (D-Virginia), a member of the Military and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Affairs, wrote on X, “Trump’s regime change war in Venezuela is flat out illegal and yet another betrayal of the commitments he made to the American people.”

When asked at the Jan. 3 press conference whether the administration had notified Congress before the military attack on Venezuela, Rubio claimed that “We called members of Congress immediately after.

This was not the kind of mission that you can do congressional notification on.” Trump added, “Congress will leak, and we don’t want leakers.” Neither of those claims excuse the administration’s failure to comply with the War Powers Resolution.

Trump has intimated that Mexico and Cuba may be next. His new National Security Strategy includes the “Trump Corollary” to the Monroe Doctrine, signaling a return to U.S. military interventions in Latin America.

“Venezuela has apparently become the first country subject to this latter-day imperialism, and it represents a dangerous and illegal approach to America’s place in the world,” The New York Times editorial board wrote.

During his press conference, Trump said that “Cuba is gonna be something we’ll end up talking about, ’cause Cuba is a failing nation right now, very badly failing nation.” Rubio added, “So yeah, look, if I lived in Havana and I was in the government, I’d be concerned at least, a little bit.”

In a Jan.  3 interview with Fox News, Trump said, “Something is gonna have to be done with Mexico” after noting that the cartels, not Mexican President Claudia Sheinbaum, are running Mexico: “She’s not running Mexico.”

Masses of people around the world have taken to the streets to protest Trump’s imperialist aggression in Venezuela.

The Military Task Force of the National Lawyers Guild issued a statement calling for international resistance to the U.S. invasion — asking, for example, for foreign military and civilian workers to refuse to assist U.S. military warships and warplanes, and for foreign governments to withdraw from military cooperation agreements with the U.S. and to hold responsible officials accountable through the means at their disposal.

We must make it clear in every way we can that we oppose U.S. imperialism in Venezuela, the rest of the Western Hemisphere, and around the world.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.

This article first appeared on Truthout.

Views expressed in this article and may or may not reflect those of Consortium News.