Maduro y la batalla legal en Estados Unidos: Posibles alegaciones frente su enjuiciamiento

Legal and Politico-Strategic Review José Luis Herrero García, “Maduro and the Legal Battle in the United States: Possible Preliminary Defences against His Prosecution”, CODESEL Bulletin (Cadre of Defense and Security Law), Vol. 2, No. 7, February 2026 This article constitutes a rigorous and technically sophisticated examination of the possible legal defences available to Nicolás Maduro and his spouse before United States federal courts, following their forcible apprehension abroad and subsequent transfer to U.S. jurisdiction. Its primary contribution lies in the systematic reconstruction of the doctrinal architecture governing extraterritorial criminal jurisdiction in U.S. law, combined with a careful engagement with public international law constraints, including sovereignty, immunities, and international humanitarian law. From a strictly legal standpoint, the article excels in its detailed analysis of U.S. jurisprudence on extraterritorial jurisdiction, with particular emphasis on the precedent set by United States v. Noriega. By revisiting the Ker–Frisbie doctrine and its later qualifications through cases such as Toscanino, the author demonstrates how U.S. courts have historically privileged the fact of physical custody over the legality of capture, limiting due process guarantees to the fairness of the trial itself rather than the lawfulness of the defendant’s apprehension. This exposition is doctrinally precise and avoids common simplifications regarding the scope of the Due Process Clause. The discussion of violations of international law is equally nuanced. The article correctly underlines that, under U.S. case law, breaches of international treaties—such as the UN Charter or the OAS Charter—do not automatically deprive domestic courts of jurisdiction unless the injured sovereign State formally protests. The analysis is particularly compelling in its application of this principle to the Venezuelan case, where issues of recognition of government and the absence of an explicit protest by a recognized authority significantly weaken potential international-law-based objections. This aspect of the article highlights the decisive role of political recognition in shaping legal outcomes, revealing the permeability between law and foreign policy. A major strength of the article is its thorough treatment of jurisdictional immunities. The author systematically addresses the doctrines of act of State, head-of-state immunity, and diplomatic immunity, situating each within both U.S. practice and customary international law. The comparison with cases such as Noriega and Marcos convincingly supports the conclusion that alleged criminal conduct related to narcotrafficking cannot be characterised as sovereign acts, thereby excluding functional immunity. The analysis accurately reflects the U.S. approach whereby executive recognition—or the lack thereof—plays a determinative role in the availability of personal immunities. The examination of the possible claim to prisoner-of-war status under the Third Geneva Convention is particularly noteworthy. The article correctly distinguishes between the applicability of international humanitarian law and its procedural effects on criminal jurisdiction, emphasising that POW status does not preclude prosecution for acts committed prior to capture. This section demonstrates a sound understanding of the interaction between international humanitarian law and domestic criminal proceedings, avoiding the frequent misconception that POW status entails blanket immunity from prosecution. From a politico-strategic perspective, the article implicitly exposes the tension between rules-based international order and power-driven enforcement mechanisms. While remaining doctrinally restrained, the analysis reveals how extraterritorial criminal law functions as an instrument of strategic pressure, especially in contexts where military force, regime non-recognition, and transnational criminal law converge. The reference to doctrines such as the political question doctrine further illustrates the structural limits of judicial review in matters deeply entangled with foreign policy and national security. Overall, this contribution stands out as a high-level doctrinal analysis that successfully bridges criminal law, international law, and strategic studies. It provides a clear, legally grounded framework for understanding the Maduro case while simultaneously offering broader insights into the evolution of extraterritorial jurisdiction, sovereignty erosion, and the juridification of geopolitical conflict. The article is of significant value to scholars and practitioners working in international criminal law, security law, and international relations.