Since August, the United States has been building up its military presence in the southern Caribbean, adjacent to Venezuela. Forces on-station presently include an amphibious assault ship with Marines embarked, two guided-missile cruisers, three guided-missile destroyers, a littoral combat ship, an attack submarine, and a floating special operations base. They will be joined imminently by the Gerald R. Ford carrier strike group, which includes the Ford and six guided missile destroyers. Available aircraft range from B-52 strategic bombers and F-35 fighter-bombers to AC-130 gunships and attack helicopters. Moreover, a joint exercise with Trinidad and Tobago, which lies approximately seven miles from the northeastern coast of Venezuela, has just concluded. Throughout this period, the United States has been conducting airstrikes on maritime vessels allegedly trafficking narcotics from Venezuela and Colombia, in most cases killing all aboard, actions that have been covered in depth by Just Security.
As these drug strikes intensify, speculation has mounted that Washington may expand operations into Venezuelan territory. The administration’s saber-rattling has contributed measurably to this perception. On 60 Minutes this past Sunday, when asked, “Are [Venezuelan President] Maduro’s days as president numbered?,” Trump responded, “I would say yeah. I think so, yeah.” Similarly, in late September, when asked that same question, the White House Press Secretary replied, “I think President Trump believes that Nicolás Maduro is an illegitimate president leading an illegitimate regime that has been trafficking drugs to the United States of America for far too long and we’re not going to tolerate it.” In October, the New York Times reported that the administration had authorized covert CIA actions in Venezuela. Soon thereafter, Trump warned, “We are certainly looking at the land now, because we’ve got the sea very well under control,” and when questioned about whether the CIA could execute Maduro, he responded, “I think Venezuela is feeling heat.”
The possibility of military operations against Venezuela has now become a contentious issue on Capitol Hill. For instance, Senator Adam Schiff (D-California) warned in an Oct.17 statement,
The Trump administration has made it clear they may launch military action inside Venezuela’s borders and won’t stop at boat strikes in the Caribbean…. In recent weeks, we have seen increasingly concerning movements and reporting that undermine claims that this is merely about stopping drug smugglers. Congress has not authorized military force against Venezuela. And we must assert our authority to stop the United States from being dragged — intentionally or accidentally — into full-fledged war in South America.
From the other side of the aisle, Senator Lindsey Graham (R-South Carolina) stated on Oct. 26 that “President Trump told me yesterday that he plans to brief members of Congress when he gets back from Asia about future potential military operations against Venezuela and Colombia…. So, there will be a congressional briefing about a potential expanding from the sea to the land. I support that idea. But I think he has all the authority he needs.”
In an earlier Just Security essay, I addressed the question whether the counter-drug strikes on the alleged drug-smuggling boats violated international law. I concluded that they clearly do. A second essay explored whether counter-drug operations conducted on another State’s territory can comply with international law. Absent the consent of the State into which they are mounted, such operations would be unlawful.
Here, I examine whether the administration’s saber-rattling and accompanying military deployments already qualify as a threat of the use of force in violation of Article 2(4) of the UN Charter and customary international law. In identical letters to the UN Secretary-General and the Security Council on Oct. 16, Venezuela’s Ambassador alleged that they do, citing President Trump’s statements regarding “ground” operations. Five days later, a UN Independent Expert and two Special Rapporteurs echoed this position. Referring to the U.S. military buildup and lethal maritime strikes, which they label “extrajudicial executions,” the three concluded that the U.S. actions “violate the fundamental international obligation[ ] not to threaten to use armed force against another country.”
Clearly, the U.S. actions are threatening to Venezuela. The legal question, however, is whether they amount to an unlawful threat under international law or are merely a lawful “show of force.” To answer that question, I begin with a brief explanation of shows of force. My discussion then turns to the criteria according to which threatening action is rendered unlawful. I apply each to the Venezuela case, concluding that the deployments, accompanied by the administration’s statements, constitute a violation of international law.
Shows of Force
The deliberate use of military presence as a tool of political influence in peacetime is a long-standing practice known as a “show of force.” As the U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations explains (§ 4.4.2), shows of force can be calibrated “to exert the precise influence best suited to U.S. interests.”
Perhaps the most well-established example of the United States using military presence to assert rights under international law is the Department of Defense’s Freedom of Navigation Program, which involves challenges to excessive maritime claims. Another common example is conducting exercises like NATO’s annual BALTOPS (Baltic Operations), which is designed, in part, to demonstrate NATO’s resolve and capability vis-à-vis potential Russian aggression. Shows of force can also be conducted to deter imminent adversary actions or to show support for allies and partners, as when the US Navy deploys carrier strike groups off Taiwan without official announcement.
But shows of force can also have malevolent purposes, a paradigmatic example being Russia’s massive military buildup along its border with Ukraine in 2021-early 2022, during which Russia deployed over 100,000 troops, missile systems, and aircraft to the borders of western Ukraine, Crimea, and Belarus. Large-scale exercises, including amphibious activities in the Black Sea and the Sea of Azov, accompanied the deployments. At the same time, Russia made sweeping demands on Ukraine and NATO. The threat materialized in February 2022 when Russia launched its so-called “special military operation,” the large-scale attack on Ukraine.
So, under what circumstances does a show of force rise to the level of an unlawful threat of the use of force, an “internationally wrongful act” under the jus ad bellum (law governing the resort to force by States)?
An Unlawful Threat of the Use of Force?
Article 2(4) of the UN Charter requires: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” This prohibition on both threats and uses of force irrefutably reflects customary international law (Paramilitary Activities, ¶¶ 188-190; Friendly Relations Declaration, prin. 1).
Not every show of force that another State perceives as threatening violates the prohibition. For example, in its 1986 Paramilitary Activities, the International Court of Justice (ICJ) rejected Nicaragua’s suggestion that joint U.S.-Honduran exercises near its border were a threat of the use of force in the attendant circumstances (¶ 227). Complicating matters, the precise threshold at which a show of force crosses the line into an unlawful threat remains somewhat ambiguous. Nevertheless, there is relative agreement that the action in question must involve a threat of an unlawful use of force, and that the threat has to be coercive, communicated to the target State, and credible. Satisfaction of these criteria will often be highly contextual, especially in the absence of an explicit threat.
Threat of Unlawful Force: Most importantly, there must be a threat, and the action threatened must be of an unlawful use of force against the target State. As noted by the ICJ in its 1986 Nuclear Weapons advisory opinion (¶ 47).
The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter.
Accordingly, if the threat is to use force in order to defend against an “armed attack” in individual or collective self-defense under Article 51 of the UN Charter and customary law, or to act pursuant to a Security Council authorization to employ force in accordance with Chapter VII of the Charter, the threat is lawful.
Turning to the case at hand, it is self-evident that the prospective U.S. military operations qualify as a “use of force.” Therefore, the first question is whether the U.S. statements and actions amount to a threat against another State.
It is difficult to interpret the public statements regarding “ground operations,” Maduro’s days being numbered, or his illegitimacy as anything other than a threat. Additionally, the U.S. assets that have been assembled in the Caribbean far exceed those necessary to conduct (unlawful) maritime counter-drug operations. Indeed, a carrier strike group is an ill-fitted tool to employ against small drug trafficking boats, and B-52s and submarines are nearly useless against them. But they are all uniquely suited, together with amphibious capability, to mounting offensive operations against a coastal nation. Their presence can only be rationally explained as a threat against Venezuela. Both sides of the aisle in Congress are certainly interpreting them as such, with some members doing so with trepidation and others with enthusiasm.
It is likewise clear as a matter of international law that the United States is directing the threats at another State (Venezuela), a condition precedent to the unlawful use of force. This is so despite U.S. assertions, with which I agree, that the Maduro government, having lost the July 2024 election, is illegitimate. Under international law, an authority that exercises effective control over the territory and population of a State (a de facto government) enjoys international legal protection requiring respect for the State’s sovereignty, proscribing intervention in its internal affairs, and, as here, prohibiting the threat of the use of force against it (Tinoco Arbitration, pages 381-82).
To be unlawful, the threatened action against the other State must be unlawful. In a U.S. Mission to the UN statement, the United States asserted that it “has reached a critical point where we must use force in self-defense and defense of others” in the face of drug trafficking into the United States. Accordingly, the question is whether operations into Venezuela against drug cartels or Venezuelan government assets to impede trafficking into the United States (or to topple Maduro, thereby stemming that flow) would be a lawful act of self-defense. If so, the United States is not unlawfully threatening the use of force.
To make the claim, the Trump administration has characterized drug-trafficking having lethal consequences in the United States as an “armed attack,” the condition precedent to using force in self-defense pursuant to Article 51 and customary international law. Yet, as I have previously explained,
the causal chain between drug production/shipment/sale and those consequences is attenuated enough to preclude qualification of drug trafficking as a use of force, especially one at the armed attack threshold. After all, the drugs must be distributed and sold, often by individuals or groups that are not members of the drug cartel, and users acting unlawfully have to purchase them. And in most cases, their use does not result in death or serious injury.
This is the case whether drug cartels are bringing the drugs into the United States on their own, which seems to be what the United States claims when it characterizes the situation as a “non-international armed conflict” (NIAC) with drug cartels like Tren de Aragua, or whether the cartels are acting “on behalf” or “with the substantial involvement of” Venezuela (Paramilitary Activities, para. 195), which the administration seems also to be asserting. In a previous essay, Ryan Goodman and I examined the legally contradictory nature of the assertions; however, for the purposes of this analysis, claims of a right to act in self-defense are simply baseless.
It is also noteworthy that the U.S. statement to the UN mentioned the defense of others, presumably a reference to the right of “collective defense,” which is permissible under Article 51 and customary international law. The problem is that it is universally accepted that “there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack” (Paramilitary Activities, ¶ 199). And even when such a request is made, operations in collective self-defense may only be conducted within the parameters of that request. For the reasons set forth above, no State is facing an armed attack from Venezuela based on drug-trafficking. Nor am I aware of any State requesting forcible support in collective self-defense from the United States, and certainly not at a level that the United States seems ready to deliver.
But could the U.S. operations and official statements be characterized as a warning that the United States is going to engage in forcible law enforcement? After all, the U.S. statement claimed “Nicolas Maduro is a fugitive from American justice and the head of the vicious narco-terrorist Cartel de Los Soles.”
Putting aside the contradictory fact that the United States is already justifying its actions as self-defense during a NIAC, law enforcement on the territory of another State requires that State’s consent. And in any event, given the scale of the force assembled, it is difficult to imagine that the contemplated operations could comply with the international human rights law conditions for using lethal force in other than an armed conflict (see my explanation here).
A useful precedent in this regard is the 2007 Guyana-Suriname Arbitral Award. There, the tribunal acknowledged that while international law permits the use of force for law enforcement if it is “unavoidable, reasonable and necessary,” Suriname’s conduct “seemed more akin to a threat of military action rather than mere law enforcement” (¶ 445). The action involved an officer warning a Guyanese oil rig and drill ship to leave Suriname’s waters, stating that if it did not, “the consequences will be yours.” In other words, if an act(s) looks enough like a threat to use force, it is hard to make a law enforcement claim. To suggest that the U.S. force assembled in the Caribbean is there in a law enforcement mode would simply not pass the straight-face test.
As an aside, the U.S. statement to the UN noted that “President Trump has determined the United States is in a non-international armed conflict” with drug cartels, presumably to justify “status-based targeting” of the drug-traffickers (attacking them based on their membership in an organized armed group). This characterization is flawed on multiple levels. But even if it were not, NIAC status (or even “international armed conflict” status) has nothing to do with the lawfulness of the threatened military operations as such. It governs how hostilities are to be conducted, not whether force may be resorted to by a State.
Coercive Threat: In addition to the threatened action being unlawful, the threat must be “coercive” in the sense of compelling the target State to do something it would not otherwise do, or refrain from conduct in which it wishes to engage. It is conditional – do, or not do, something, or force will be used against you. Threats of forcible action are “usually viewed as a form of coercion” (Dinstein, page 92).
As it involves the use of force, the threatened U.S. action is unequivocally coercive. Its coercive nature is further highlighted by the fact that the threat is conditional. The United States has repeatedly articulated its two demands, both of which, by the way, have merit. First, it is seeking regime change by compelling Maduro to step down, a worthy objective, for it is undeniable that he is illegitimately holding power. The second is to stem the flow of drugs from Venezuela into the United States. I hasten to caution that while I find both goals laudable, they serve here only to satisfy the requirement of coerciveness in a threatened use of force; they do not make the U.S. threat lawful.
Communicated Threat: For coercion to be effective, the threat must be communicated to the State being coerced. This can be done implicitly or explicitly. Such threats may be conveyed in writing, expressed in verbal statements by leaders or State officials, transmitted by intermediaries, evidenced by a failure to deny persistent allegations of threatening conduct, reflected in actions that can reasonably be considered to threaten force, or communicated through any other means.
In this case, the statements of the United States were well-publicized, as have been the deployments of the military forces to within striking distance of Venezuela. The President’s public acknowledgment of his authorization for covert action was particularly compelling in demonstrating satisfaction of the communication criterion. That the threat of the use of force has been effectively communicated to Venezuela is undeniable, given its request for an emergency meeting of the Security Council, which was held on Oct. 10. Similarly, in a televised speech on Oct. 31, Maduro declared, “Everything being done against Venezuela is designed to justify war, overthrow the government, and seize our oil resources.” Venezuela has now readied its military in preparation for U.S. strikes and has reached out to Russia and China for assistance. It is self-evident that Venezuela has received the message and understands it.
Credible Threat: Finally, to be unlawful, the threat must be credible. In other words, “the State making it is capable of carrying it out and the threat appears objectively to be serious and not simply rhetorical” (Gill/Tibori-Szabo, page 60). Imminency of a threatened action further enhances credibility.
This criterion is obviously satisfied in light of the U.S. deployment of a powerful military force capable of conducting sustained offensive operations against Venezuela with impunity. Moreover, the willingness of the United States to use force has been aptly illustrated by its 15 strikes on alleged drug trafficking boats (as of Nov. 2), which apparently killed 65 individuals in what the UN Office of the High Commissioner for Human Rights has accurately labeled “extrajudicial killings.” The confluence of firepower and a demonstrated willingness to use it unlawfully makes the threat highly credible.
Concluding Thoughts
To date, most scholarly and policy attention has focused on the lethal maritime strikes and the possibility of U.S. armed operations against Venezuela. There is widespread consensus in the international legal community that the lethal maritime attacks have no basis in international law and that offensive action into Venezuela by U.S. forces would be unlawful on multiple grounds.
The international law community has paid less attention to the possibility that the United States is presently unlawfully threatening Venezuela. Yet, it seems clear that the United States’ current posture toward that nation–consisting of lethal maritime strikes, high-profile deployments, public statements suggestive of regime change, and a demonstrable readiness to escalate–goes far beyond the bounds of a lawful show of force. Having satisfied the core requirement of the threatened action being unlawful, as well as those of conditionality, coerciveness, communication, and credibility, the actions of the United States combined amount to an unlawful threat of force in violation of Article 2(4) of the UN Charter and customary law.
I share the administration’s disdain for Maduro and its alarm about the trafficking of drugs into the United States. But engaging in patently unlawful actions to address those concerns is a short-sighted strategic blunder with long-term negative international security consequences. Put bluntly, the United States is in a deep hole of illegality; it needs to stop digging.
