When the US captured Nicolás Maduro and put him before its own courts, two old questions resurfaced with new urgency, first, does the manner of his capture matter, and second, can a sitting Head of State’s immunity ever yield to the gravity of his alleged crimes? This piece traces the doctrinal tension between immunity ratione personae and jus cogens, asking whether an emerging jus cogens exception holds up against immunity ratione personae and concludes that, applied to Maduro, the argument quietly unravels.
Introduction
Earlier this year, US President Donald Trump announced a large-scale US strike on Venezuela and stated that the US had also captured Venezuelan President Nicolás Maduro. The White House asserts that it is defending the American people from the devastating consequences of the illegal importation of drugs by ‘narco-terrorists’.
Irregular renditions from another state for prosecution often lead to concerns limited not only to state sovereignty but also the human rights of the abducted person. Historically, states have protested these abductions as breaches of international law, and abducted individuals have argued that their unlawful capture should bar the court from exercising jurisdiction over them. Courts, however, have responded in markedly different ways. In some jurisdictions, an illegal rendition is viewed as an abuse of process so grave that the trial cannot proceed; however, in others and most notably the United States, courts adhere to the doctrine of mala captus, bene detentus (bad capture, good detention), asserting that how a defendant was brought before the court does not affect the court’s power to try them.
Thereby, this leads to the second issue the prosecution of Maduro raises, i.e. whether such capture violates the established norm of immunity ratione personae. Immunity ratione personae is provided, namely, to the Head of State, the Head of Government and the Minister for Foreign Affairs and is grounded in the concept of state sovereignty. Thereby, it is understood to be absolute to ensure that state officials can act in the best interests of the State without fear of prosecution when representing the State outside its own territory. However, owing to recent developments, such as in Russia with President Vladimir Putin and in Israel with President Benjamin Netanyahu, the argument that there is a crime-based or a jus cogens exception to the immunity ratione personae is becoming more prominent.
Jus Cogens refers to peremptory norms from which no derogation is permitted; thereby, immunity ratione personae prevailing as a defence even for actions that violate the jus cogens norms seems fallible to many. This viewpoint has been strengthened by the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa in the Al-Bashir case, where the judges agree that there exists a jus cogens exception to immunity ratione personae.
Thereby, in this context, I will attempt to scruitinise the potential existence of a jus cogens exception to immunity ratione personae and thereafter, undertake to apply such an exception to the case of Maduro.
Existence of a jus cogens exception to Head of State Immunity
The International Law Commission (ILC), in its discussion regarding Immunity of State officials from foreign criminal jurisdiction, found that a jus cogens exception to immunity ratione materia (functional immunity) exists, given the gravity of the crime and since these crimes arise, directly or indirectly, in the judicial practice of States in relation to cases in which the issue of immunity ratione materiae has been raised. However, the ILC refused to acknowledge that such a comparable exception exists in the context of immunity ratione personae. This is owing primarily to the role that they play as representatives of the State in international affairs (para 241). Furthermore, unlike immunity ratione materia, which survives the end of office, immunity ratione personae only extends to the duration of the office, post which the courts can adjudge that official.
However, contrastingly, if immunity ratione personae is considered absolute in this regard, it delays and ultimately curtails courts from applying their jurisdiction and trying individuals who have been accused of violations of jus cogens norms. Thus, immunity, which is generally understood to be ‘procedural’ as inferred from the Arrest Warrant case (Para 60), would compromise substantial justice.
This argument is further propelled by the Joint Concurring Opinion, which suggests that immunity not only exempts one from the legal process but also shields them from legal liability, as the presumption of innocence prevents a finding of culpability before trial, and legal liability cannot exist without legal process. Thereby, essentially giving them impunity. However, this Opinion is given by the judges of the International Criminal Court, and resultantly, cannot be equated to domestic courts, due to the inherent difference between an International Criminal Tribunal (ICT) which derives their authority from international community at large. Resultantly, immunity ratione personae, which is derived from State sovereignty to ensure that States are being represented by their official on international forums without fear of persecution, is not being compromised if the question of jurisdiction is before an ICT rather than a domestic court.
Application of a jus cogens exception to the Maduro prosecution
Maduro has been charged with four offences, namely, narco-terrorism conspiracy, cocaine importation conspiracy, firearms offences involving machine guns and destructive devices in relation to drug trafficking and conspiracy to commit those firearms offences, alongside forfeiture allegations. All four of these offences do not qualify as a violation of jus cogens norms. Therefore, the argument that a crime-based exception for personal immunity can be made in this case becomes implausible in this case. Moreover, the U.S. itself has maintained that no such exception exists even for ratione materia, which is functional immunity; therefore, arguing that such an exception exists for ratione personae seems improbable (pp. 19-20, 98-100).
Moreover, the ICJ in the Arrest Warrant case, while affirming immunity ratione personae, held that the grant of such immunity would not equate to impunity, as four avenues remain available to ensure accountability, namely, prosecution before the official’s own national courts, following a waiver of immunity by the State, upon completion of the official’s term of office, or before competent ICTs. Thus, with regard to the prosecution of the Head of State of Venezuela, the concern that there are no available routes to prosecute Maduro and would lead to impunity before bringing him up before the US domestic courts would fall short of a valid justification as well.
Thereby, while an argument can be made that there exists a crime-based exception to immunity ratione personae, it would seem that it would have to be heavily restricted to cases before international courts at most, rather than domestic jurisdiction.
Ultimately, even this argument that such an exception exists before international courts remains tenuous. This is due to the lack of consistent reiteration and application by ICTs, as even the Al-Bashir case, with its arguments that such an exception exists before the ICC, is a case where the United Nations Security Council waived off Al-Bashir’s immunity and cannot be considered a case where immunity ratione personae was waived off due to a jus cogens exception. Therefore, while an argument that a crime-based exception seems conducive to mitigating impunity, it has yet to be seen as applicable before even an ICT. Therefore, the scope of such an exception being applicable before a domestic court where the very basis of immunity, i.e., equality of sovereign States would be at a threat of being violated would be unfavourable.
Conclusion
The prosecution of Maduro illustrates the doctrinal tension between the procedural character of immunity ratione personae and the substantive demands of accountability for grave international crimes. While the Joint Concurring Opinion in Al-Bashir lends weight to the proposition that a jus cogens exception to personal immunity is emerging, that position remains unsupported by consistent State practice and was, in any event, articulated in the context of an international tribunal where the sovereignty rationale underpinning the immunity is at its weakest. Before domestic courts, that rationale retains its full force, and the concern that absolute immunity collapses into impunity is answered by the four avenues identified in Arrest Warrants.
Applied to Maduro, the argument unravels on its own terms. The charges, narco-terrorism, cocaine importation, and related firearms offences, do not engage peremptory norms, and the United States has itself disavowed a crime-based exception even at the level of ratione materiae. Coupled with the manner of capture, which the mala captus, bene detentus rule cannot legitimise as a matter of international law merely because U.S. courts treat it as jurisdictionally innocuous, the prosecution rests on foundations that are, at best, doctrinally precarious.
Zitiervorschlag: Jagnania Anushree, U.S. Jurisdiction and Immunity Ratione Personae: No Potential for a Jus Cogens Exception, JuWissBlog Nr. 59/2026 v. 02.07.2026, https://www.juwiss.de/59-2026/
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