In the early hours of January 3, the United States armed forces executed an astounding operation. American air, land, and sea units destroyed Venezuela’s air defenses, sent in Special Forces that took out President Nicolás Maduro’s security team, and brought the dictator and his wife back to the U.S. for trial. But rather than applaud the removal of an illegitimate dictator and his wife, many foreign leaders quickly condemned the snatch-and-grab.
If critics correctly argue that the attack on Venezuela violates international law, they have unintentionally revealed that international law—not the United States—must change. Removing Maduro was just: The dictatorship has killed tens, if not hundreds of thousands, of Venezuelans, destroyed the country’s economy, and denied the electoral wishes of the Venezuelan people for new leadership. But international law did nothing about this crisis, and countenanced no solution. Because it prevents Western democracies from using force to preempt grave threats from disruptive nations, such as Venezuela or Iran, while posing little obstacle to the designs of our rivals in Beijing or Moscow, international law no longer serves as an instrument of global stability. The United States must lead an effort to reform it to allow more stability-enhancing interventions in the new era of great-power competition that we are entering.
Opponents of the American intervention in Venezuela have a good case that Trump acted outside of legal norms. The U.S., along with virtually every nation in the world, has ratified the United Nations Charter, which forbids “the threat or use of force against the territorial integrity or political independence of any state.” The charter provides exceptions only when nations act under “the inherent right of individual or collective self-defense” or participate in actions approved by the UN Security Council (of which the U.S. is a member and enjoys an absolute veto). These opponents argue that the attack was not covered under either of these exceptions, and that no attack on the United States, its personnel, or its assets was imminent—a circumstance that international legal authorities generally concede would permit the preemptive use of force in self-defense.
[Graeme Wood: The messiness of a post-Maduro world]
Secretary of State Marco Rubio has offered an alternative justification for the Venezuela strike. He claims that the U.S. has the right to carry out its criminal law—here, executing an arrest—and to use armed force to protect law-enforcement agents, even within the territory of another nation without its permission. This is difficult to accept. Indeed, if such a rule took root, nations could use force against any other country in the world simply by indicting its leader. Rather than a law-enforcement operation, the attack on Venezuela constituted an act of war. It came in the midst of a broader conflict in which the United States has placed an oil blockade on Venezuela, destroyed alleged drug-running boats leaving Venezuelan ports, closed its airspace, leveled sanctions on its economy, and struck infrastructure targets. If any U.S. personnel had been captured in these operations, the White House surely would have demanded that they receive the protections under the Geneva Conventions for lawful combatants in an armed conflict.
The Trump administration should give up on any half-hearted legal defense of its attack. Rather, the United States should use this opportunity to change international law to be more flexible, specifically by shifting it away from the criminalization of preventive action. Washington itself promoted rules prohibiting aggression after World War II to stop another Nazi Germany or Imperial Japan from invading its neighbors. But such rules will not meaningfully deter Russia in Ukraine, or China in the South China Sea. Nor should democratic nations have to wait until troops are amassed at their borders or they have suffered a devastating attack before international law recognizes their right to act.
An international law that forbids all uses of force except for self-defense or force authorized by a paralyzed Security Council no longer fits today’s world. At the end of World War II, the United States attempted to use its vast power to create an international order that reflected its liberal values—peace and nonaggression, free trade, and democracy. But the U.S., aided by its democratic allies, no longer bestrides the world as a colossus. As the first Trump administration’s and the Biden administration’s national-security strategies recognized, the world is returning to great-power competition. Communist China has taken advantage of its rapid economic growth to embark on an astounding military building program, one that can already claim the largest navy in the world. Russia has launched the deadliest war in Europe since 1945 and seeks to test NATO’s viability. A loose axis of dictatorships in Moscow, Beijing, and Tehran is waging an assault, both open and covert, on the U.S.-led liberal order.
Democracies need room to maneuver as they strive to defend peace and security in the Western Hemisphere, Europe, and Asia from these illiberal regimes. International law should adopt a cost-benefit approach to interventions. It should allow military intervention today to prevent greater harms tomorrow, such as human-rights catastrophes, severe political and economic oppression by authoritarian regimes, the spread of weapons of mass destruction, and the operations of international terrorist groups.
Reforming global rules will not affect the relationship between democracies and their opponents; the decision to use force will, as always, depend on their relative power and the likelihood of a successful military campaign, balanced against material losses and the possible destabilization of a region. Nations will create a far more effective deterrent to great-power conflict by deploying a capable military than by relying on the UN Charter. Changing the rules will not interfere with the great powers’ ability to balance one another, but instead should provide democracies with the legal right to protect peace and order from the destabilizing threats of dictatorships.
[Anne Applebaum: Trump’s ‘American dominance’ may leave us with nothing]
Abiding by current international rules only raises the costs of intervention in places such as Venezuela. A system that deems such interventions illegal will discourage allies from cooperating in the military actions needed to keep the peace; the British reportedly have refused to share intelligence with the U.S. on Caribbean drug traffic. It will inhibit the private sector from helping in the reconstruction and management of war-ravaged countries—oil companies will face uncertainty, because of the questionable legality of the American use of force, over any investments in Venezuela’s oil industry. (The U.S. dealt with a similar problem initially in Iraq, as I saw firsthand when I was working at the Justice Department at the time). International law thus is contributing to the disincentives that already discourage the United States and its allies from devoting the resources necessary to maintain global welfare. International rules should follow power relationships, rather than the other way around.
This is not to argue that global affairs should return to the law of the jungle (if there ever was one). International law should continue to prohibit pure aggression that serves no positive end, such as any effort by the U.S. to take Greenland or, for that matter, Russia’s efforts to annex Ukraine. We are fortunate to live in an age when civilized nations have made progress in reducing the destructiveness of war by demanding necessity and proportionality in the use of force and, expanding a norm that dates back to ancient times, greater protection for civilian life. But international law is not truly law in the domestic sense. It lacks compulsory jurisdiction and coercive enforcement mechanisms. It operates successfully only when it is aligned with the distribution of power and the wishes of nations. Justice Oliver Wendell Holmes Jr. famously said that the common law was not a “brooding omnipresence in the sky,” whose eternal principles come down from on high to govern all human activity for all time. Neither is international law. When any international legal rule has outlived its usefulness, nations can replace it with one that better suits their needs.
That is the case today. Global power is shifting, and old fictions are collapsing. If international law is to retain relevance, it will have to follow power, not pretend to constrain it. The United States can use the Venezuela operation to recognize that the unipolar moment is over, that great-power politics have returned, and that international law must serve the greater good of allowing the democratic nations of the West to protect themselves and their people from a new rising axis of dictatorships.
