International law, explained.
Nicolas Maduro and his wife, Cilia Flores after landing at a Manhattan helipad, escorted by Federal agents as they make their way to a Federal courthouse in Manhattan on 5 January 2026. (Getty)
Does bringing a defendant before a court by irregular means bar prosecution?
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Maduro and murky legality of "irregular" extraditionMaduro and murky legality of "irregular" extradition
On 3 January 2026 the US carried out what it called a “large-scale strike" against Venezuela, and President Nicolas Maduro and his wife were captured and flown to New York, where they appeared before a court charged with drug trafficking and other offences.
The removal of Maduro was a unilateral decision to assert enforcement jurisdiction in the sovereign territory of another state.
Setting aside the legal issues raised by an operation that likely constitutes a use of force, and what this all means for the Venezuelan people and the international system generally, this unfolding drama raises questions around the extraterritorial reach of domestic criminal law.
While jurisdiction over crime is primarily territorial, international law does recognise the right of a nation to assert legal authority over conduct outside its borders on the bases of “nationality” (where either perpetrators or victims are nationals of the asserting state), “universality” (over specific international crimes such as genocide or piracy but not over “ordinary” domestic crimes), a “protective principle” (for example, passport fraud or espionage offences), and, more controversially, an “effects doctrine”.
A number of the offences with which Maduro has been charged have extraterritorial reach, including Title 21 , United States Code, Section 960a, which grants extraterritorial jurisdiction over individuals for providing material support for drug trafficking that aids a terrorist organisation. Some of the alleged offences also relate to conduct impacting US territory, which may also lend the charges a territorial nexus. But in any event, the US Supreme Court confirmed years ago that, as a matter of US law, Congress has the authority to enforce its laws beyond US territorial boundaries. This is not unusual. Many international treaties on transnational crimes either permit or oblige states to ensure domestic criminal laws have extraterritorial reach.
What is unusual is the means used to bring Maduro into US territory for prosecution. In Australia, the use of unlawful means to bring someone within the nation’s physical jurisdiction would likely render a prosecution untenable. For example, in Moti v The Queen, the Australian High Court affirmed the “basic proposition that the end of criminal prosecution does not justify the adoption of any and every means for securing the presence of the accused”. In that case, the prosecution was not tenable because the accused was found to have been brought to Australia in a manner not compliant with law.
However, in the US, the Ker–Frisbie doctrine provides that illegalities in the extradition process will not bar prosecution in US courts. In Ker v. Illinois, the Supreme Court held that such forcible abduction is not a sufficient reason to resist the jurisdiction of a court which otherwise has the right to try a person for the offence. This was upheld in Frisbie v Collins. Later, in United States v Alvarez-Machain, the Supreme Court found that the kidnapping of Dr Humberto Álvarez Machaín from Mexico by bounty hunters hired by a US government agency did not preclude his prosecution in the United States. This has attracted criticism. One expert wrote:
The Supreme Court's decision suggests jurisdictional nihilism. If used by other nation-States to legitimize engagement in overseas abductions and then applied by other judiciaries to permit jurisdiction over abductees, the decision can only lead to global regulatory confusion.
Further, there are different types of jurisdiction, and the rules change for each. For example, prescriptive jurisdiction is the authority a nation has to pass laws making conduct illegal, including where that conduct occurs overseas. Enforcement jurisdiction is the capacity of that state to enforce those laws, including through police making an arrest. For example, Australia has the authority to criminalise child sex tourism overseas but not for the Australian Federal Police to make arrests in other countries. Instead, they must rely on international cooperation frameworks and work with local law enforcement.
Many international treaties on transnational crimes either permit or oblige states to ensure domestic criminal laws have extraterritorial reach.
Adjudicative jurisdiction is when a nation’s courts hold trials and other legal proceedings. In one famous case, senior Nazi official Adolf Eichmann, accused of crimes against the Jewish people, war crimes, crimes against humanity, and membership in a hostile organisation, was kidnapped by Israel in 1960 in Argentina and taken to Israel for trial. It was not the “prescription” of the war crimes as unlawful by the Israeli parliament or the adjudication of the offences by Israeli courts that troubled the international community. Instead, it was the method of enforcement (kidnapping) that caused the UN Security Council to declare that Israel had violated Argentinean sovereignty.
However, the UN Security Council is limited structurally in its ability to oppose the kidnapping of Maduro because the US, as a permanent member, has a veto power over all resolutions.
This is also a different scenario from crimes over which the International Criminal Court has jurisdiction (such as crimes against humanity and genocide), and where it has issued warrants. In such cases, state parties have legal obligations to extradite or prosecute. Instead, the removal of Maduro was a unilateral decision to assert enforcement jurisdiction in the sovereign territory of another state, and may constitute an abuse of jurisdictional rights.
It remains to be seen how US courts will approach the law in this case and whether there are constitutional arguments to be made, but previous US decisions suggest the irregular means of bringing Maduro to the US is unlikely to make the prosecution unlawful in itself. The incident nonetheless undermines the efficacy of international crime cooperation frameworks, and it remains incumbent on other states to continue to uphold important legal principles.
About the author
Danielle Ireland-Piper
Dr. Danielle Ireland-Piper is Associate Professor at the National Security College, Australian National University and Honorary Adjunct Associate Professor at the Faculty of Law, Bond University.
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