Kidnapping Dictators
International law should reward justice
The long-term implications of Maduro’s kidnapping aren’t yet clear, and will depend on whether a Venezuelan sideshow distracts the United States from real problems like Russia and China. One common objection to the attack, though, is ill-founded. Some people worry that kidnapping a head of state amounts to some dangerous breach of norms. What’s to stop Putin from doing the same? But there is no norm against such attacks in practice—and dictators should enjoy no normative immunity from targeting or capture.
There is no formal rule against targeting heads of state. Under international law, they have no special status in time of war. They are classified as either civilian or military depending on their relationship to national armed forces. Thus King Charles, as commander-in-chief of Britain’s military, would be a legitimate military target, while Keir Starmer might not be. But political prominence plays no part in that calculation.
There is no strong custom against it, either. The United States kidnapped Manuel Noriega in 1989. It tried to kill Saddam Hussein before eventually capturing him. More recently, the Russians tried to capture or kill Volodymyr Zelensky in their initial advance on Kyiv. Israel targeted all Hezbollah’s leadership (in practice a state-like organization), and would certainly consider killing Ali Khamenei. Trump assassinated Qasem Soleimani in his first term, not far removed from an attack on a head of state. There might be a kind of weak customary norm against it, a sort of gentleman’s agreement among leaders that restraint makes everyone better off. But this isn’t entirely normative; it’s partly practical, because it is very difficult to target enemy leaders successfully, as the Kyiv debacle showed. (Note that customary international law probably does protect leaders during state visits.)
But suppose such a norm exists: it is not beneficial or desirable. Consider two alternative international rules. First, imagine a blanket prohibition against kidnapping or assassinating heads of state. Second, imagine that it is lawful to attack tyrants or dictators, assuming all the just war criteria, including a proportionality calculation, have been satisfied.
The second rule creates an immediate objection: doesn’t it offer dictators and tyrants their own permission slips to target the just? Doesn’t it allow Putin to justify his attacks on Zelensky? Well—not really. Putin could label Zelensky a dictator and attack him. But he’d be wrong. He’d be claiming to follow the rule while actually breaking it. This apparent “weakness” is really just a feature of every rule: it is always possible to argue about either (a) the rule’s legal content or (b) whether a particular factual scenario falls within its bounds. If we adopt the first rule, Putin could argue that Zelensky is not actually a legitimate head of state and therefore unprotected, an argument he is basically already making and the same argument Trump used in Venezuela. We’d then need to make a judgement about Zelensky’s status—is he really the head of state?—and the contours of the rule—does it cover de facto though not de jure heads of state?
The second rule is only startling because it contains a moral standard of “goodness” or “badness;” the rule’s interpretation and application demands a moral judgment. Most legal rules avoid explicit moral standards for fear of subjectivity or imprecision. Here, though, a moral standard is less troubling for several reasons. First, the whole question of attack or caution is one closely related to the law of war—a framework that traditionally required explicit moral judgements when it began as Just War Theory, and still embeds such judgements in numerous places.
Second, most other prohibitory rules do include moral judgements—they just encode them into the specific prohibition in question. So, for example, a rule against theft rests on the view that theft is morally wrong. A rule against murder or jaywalking or speeding also encodes a moral judgement (of course we can quibble about whether that judgement is right or wrong in the case of speeding or jaywalking, but it’s still present).
In international law, though, it is much harder to encode moral judgements in this way because every rule is necessarily phrased at a far higher level of generality, and every rule is applied through political action, not courts of law. An ideal rule would contain specific factual standards explaining what makes somebody a tyrant and what makes removal lawful, standards so precise as to eliminate moral discretion. But such a law could not be created. It could not be created as treaty law because nations would never agree. And it could not arise as customary law because customary law flows from practice and therefore can’t be very specific when a particular practice happens only rarely. Nor could it be enforced, because no legal system performs the relevant factual and legal judgements. Instead, political actors make those judgements, and a complex, specific rule tends to create more space for obfuscation instead of introducing additional constraints.
Third, in this international context, a moral standard actually strengthens a rule’s normative force. As explained, any rule against kidnapping heads of state is already very weak anyway, and the laws of war have not prevented any number of heinous invasions. So it won’t take much to do better. And a rule’s normative force—any rule’s normative force—depends on how closely it tracks commonsense moral intuitions. Laws against speeding and jaywalking are frequently neglected because most people do not think it is immoral to jaywalk or to speed (at least a little bit). But everyone agrees that theft and murder are wrong, so laws about those things come with strong, extralegal normative pressures. Our original Rule A—don’t target any heads of state—protects lots of nasty, evil villains. Our Rule B punishes dictators and tyrants while protecting the just. So it tracks our moral intuitions about the purpose of laws much better. Even if it’s sometimes a little harder to apply, it does at least fulfill the basic point of a law, namely, promoting good behavior and punishing bad behavior.
Again, to be clear, this analysis is not meant to defend Maduro’s kidnapping specifically. But international relations are not morally neutral, and international law—where possible—should systematically favor justice and freedom over tyranny and repression.