Rebuilding Venezuela

Some legal questions emerge gradually. Others arise because reality moves faster than the law. How should international law judge a situation where a criminal organization no longer infiltrates a State from the outside but instead captures the State itself—and then invokes sovereignty as a shield against accountability? On January 3, 2026, a United States military and law-enforcement operation removed Nicolás Maduro, the ostensible president of Venezuela, from Caracas and transferred him to United States jurisdiction. Is this operation an act of aggression against the Venezuelan State, or is it better understood as an action directed against a transnational criminal alliance that had captured and displaced Venezuelan statehood, leaving only its formal shell intact? 

In 1999, extreme poverty in Venezuela was about 22.6 percent; by 2021, it had reached 76.6 percent. Venezuelan economist Ricardo Hausmann called it the largest economic collapse in human history (outside wars). Nearly eight million Venezuelans have fled. Health, water, education, and electricity systems have collapsed. The United Nations Fact-Finding Mission — most recently in September 2025 — has documented extrajudicial executions, enforced disappearances, torture, and crimes against humanity committed as part of a coordinated State policy since at least 2014. The rule of law has completely collapsed: Venezuela ranks last among 142 countries in the World Justice Project’s Rule of Law Index.  

Members of the alliance include, among others, Colectivos —pro-government armed groups and paramilitary forces; Colombian guerrillas, the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN), which dominate almost the entire Colombia–Venezuela border; Hezbollah, which has established logistical and financial networks inside the country; and the Cartel de los Soles, a network of senior military and government officials engaged in narcotrafficking, which was designated a Foreign Terrorist Organization in November 2025.  

The Center for Strategic and International Studies described Venezuela as a criminalized State that uses transnational organized crime as an instrument of State power. In that context, sovereignty became a rhetorical shield rather than an attribute of a genuine State. 

Sovereignty has been the cornerstone of the international order; in principle, it grants a State its standing and voice, and it protects equality, independence, and self-government against external interference. But every legal principle has a purpose. It is inconsistent, both in theory and in practice, to demand the protective shield that sovereignty grants to a State once that entity has ceased to be the very thing sovereignty is meant to protect, namely, the State itself. Sovereignty exists to protect a constitutional State that serves its people—not a criminal structure that has captured the institutions created to protect them. Yet sovereignty was never meant to serve as the shield of an apparatus that has ceased to be a State in any substantive sense and has instead become a transnational criminal organization, one that hides its true nature behind a mask that part of the world still prefers to see as legitimate, so as to avoid confronting the atrocities of its actions. Professor Janina Dill of Oxford argues that Maduro’s arrest violated the most fundamental rule of international law: the prohibition on the use of force under Article 2(4) of the U.N. Charter. First, the prohibition in Article 2(4)—like the crime of aggression in the Rome Statute—is framed as a prohibition against states. It presupposes a sovereign State party to be protected whose territorial integrity could be or has been endangered. A transnational criminal apparatus wearing the shell of statehood is not that counterpart. Second, the analysis cannot stop at Article 2(4). It must take into account the inherent right of self-defense —and the unwilling-or-unable doctrine that has developed in State practice since 9/11, invoked against Al-Qaeda, against ISIS, against actors operating from territory their host State cannot or will not control. 

This reality invites us to revisit the law of State responsibility, specifically Articles 40 and 41 of the International Law Commission’s Draft Articles on State Responsibility, which establish that all states have obligations when a serious breach of jus cogens or compelling legal norms occurs. The Fact-Finding—UNITED NATIONS Mission’s finding that such crimes have been committed in Venezuela appears to meet the threshold for a grave breach of jus cogens² —thereby challenging purely formal or procedural conceptions of sovereignty within the international community. 

When a country’s fundamental rights cease to be effective, and when the compelling norms of international law and the constitutional structures for controlling power, along with their organic and functional separation, have been completely captured by an alliance of transnational and domestic criminal organizations, statehood disappears. As Katharina Hofmann observes: “[N]ew forms of violence, such as internal conflicts and organized crime, are undermining the capacity of states in LAC (Latin American Countries) to govern and to fulfill the basic principles of modern statehood: control over territory, the security of their citizens, a well-functioning judicial system, and the monopoly on the legitimate use of force.” 

Venezuela continues to exist as a State in the formal sense. Yet, functionally, it has lost the institutional characteristics that give constitutional government real meaning. 

The judiciary, the electoral authority, the armed forces, the prosecution system, and other institutions meant to limit and control public power have been systematically captured. Territory remains; population remains; some formal international recognition remains as a shield of legitimacy. But constitutional institutions have ceased to perform their constitutional functions, including the checks-and-balances system. Statehood survives primarily as a legal form rather than an institutional reality. 

Considering some traditional categories of international law, including colonialism, occupation, protectorate, trusteeship, and the Responsibility to Protect, I find that, on close examination, none of them adequately characterizes or justifies the arrest and removal in Caracas of the usurper of Venezuela’s presidency, an operation carried out by the United States government, which claims to retain significant influence over what it has designated an interim government. It is a central part of free government to hold that liberal rights are not optional additions to democracy but preconditions of it. Then, I propose a sequence of steps to restore statehood; I believe that a sustainable democratic transition requires, as a precondition, the reestablishment of liberal institutions.  

The existing doctrinal categories in international law may not appear sufficient to assess and explain, in legal terms, the total capture of a State and its consequences at the hands of international criminal alliances. But we must draw appropriate limits on the notion of sovereignty as a shield protecting such criminal alliances.  

Now, restoring statehood requires, as a first indispensable precondition, that certain tasks be undertaken immediately, in the order set out here: the dismantling of the paramilitary groups, the so-called “colectivos”; the rigorous establishment of the substantive notion of the rule of law; a military force subject to law and subordinate to civilian power; the restoration of a capable, honorable, strong, and independent judiciary; and, subsequently, fair, transparent, and trustworthy elections, so that democracy can be restored. In our view, these elements are structural preconditions for both economic recovery and democratic consolidation. 

As events progress in Venezuela today, one truth is impossible to ignore: removing a single man does not restore statehood; rebuilding institutions does. 

The hardest work is only beginning: rebuilding the institutions that will transform a false State into a real one. I do not claim to know all the right answers. My hope is more modest: that it helps start a necessary conversation about legal concepts that may no longer be sufficient to the realities we face today. 

Humerto Briceno Leon has extensive and recognized academic experience as a visiting professor, researcher, and lecturer at prestigious law schools in Venezuela, Europe, and the United States.