On May 3rd, a group of 60 Venezuelan expatriates and two American former Green Berets launched an operation to topple the dictatorship of Nicolás Maduro, in Venezuela. The operation looked more like something out of a bad streaming series than an actual military mission. Their plan was to arrive by boat at a fishing town north of the Capital, Caracas, somehow storm the heavily fortified Miraflores Presidential Palace, then take over an airport and fly Maduro out of the country in order to collect a 15 million dollar reward from US authorities. The raid was quickly intervened by regime forces. Eight people died and the two Americans detained before they could even set foot in Venezuelan lands. Soon after, and from an undisclosed location, another former Green Beret, a veteran of the Afghanistan and Iraq wars, Jordan Goudreau, claimed to be the leader of the failed operation, which he labelled “Operation Gideon”.
The plan seemed to be the aftermath of a fallout between Goudreau and US-recognized interim President Juan Guaidó. His team actually met with Goudreau and his Miami-based security company, Silvercorp, allegedly signing an exploratory contract agreeing to finance the operation – Guaidó’s team however, denies actually signing it, even if it admits paying Goudreau an advance sum of 50 thousand dollars. According to one of Guaidó’s political advisors, it soon became evident that Goudreau could not deliver on his promise to stage an amphibious take-over of Caracas with a company that amounted to little more than a private security contractor for Republican campaign rallies. Both Goudreau and the opposition claim all communications between them were severed after that. Goudreau, however, decided to go on with the operation independently, because, he says, he always thought of himself as a “freedom fighter”.
Things were so chaotic that two whole days before the raid even began, the Associated Press broke the story in full detail. Despite this, Goudreau inexplicably decided not to call off the mission. According to Guaidó, Maduro forces infiltrated the operation from the beginning and forced the team to start the attack in order to fabricate a “false positive” that could be used for political gain – to date, an unsubstantiated accusation. Venezuela, for its part, is treating the raid as a terrorist attack organized by the United States and Colombia, also an unsubstantiated accusation.
While this operation marks a new development in the current Venezuelan crisis, the practice of American private armies seeking to invade Latin American states for political reasons and personal gain is not actually novel at all. In the mid-19th century, so-called filibusters – Southerner freebooters or, in Spanish, filibusteros – sought to carry out the US’s “manifest destiny” by expanding slave-owning land throughout the Western Hemisphere. The most famous of these, a Tennessean by the name of William Walker, managed to take control of Nicaragua in 1855 and reinstate slavery for a brief period, before being expelled by a Central American military alliance.
It is perhaps because of the parallels to Walker and the US filibuster movement that most references to the raid have actually been analyzed from the framework of mercenary armies and the privatization of war. In modern parlance, however, Operation Gideon rather constitutes an attempted attack by a rogue US-based non-state group (Silvercorp), operating across borders, from Colombia and the United States, against Venezuela.
Now, as readers of my previous posts might remember, Latin America is a region with a long and painful history with imperialism and interventionism – particularly from the US. One of the main legal battles throughout our shared history has been against the US position that the inability or unwillingness to control instability, civil war, and/or the presence of hostile non-state armed groups is sufficient justification for the United States to launch an attack in the territory of a Latin American state in alleged self-defense. This happened, in one way or another, during the Texan Rebellion of 1836; the Blockade of Venezuela of 1901; the Punitive Expedition of 1916; and the Rio Treaty negotiations of 1947, just to name a few examples.
This debate has recently exploded into the world stage under the banner of the US’s War on Terror, particularly in the Middle East. This so-called “unwilling or unable” test has featured prominently in academic discussions, but frequently detached from the Latin American history it was born into. Other more Western-centric events, such as the Caroline Affair, take a dominant role in its historical contextualization. Instead of a longstanding legal and political battle, where Latin American states have arduously kept interventionist approaches to international law at bay, the test is now perceived as a reaction to the 9/11 attacks, and a recent development.
It should not really be surprising, therefore, that it has been Mexico and Brazil – two Latin American states – leading the charge against the test within the UN itself. In Mexico’s words, “article 51 of the Charter cannot be invoked to justify a response to an armed attack perpetrated by a non-state actor that has no relation with the State, nor does it allow the undermining of another State’s territorial integrity when it shows lack of will or capacity to act against such private entities” (my translation). For Brazil, “[t]here is no implicit recognition of the possibility of invoking self-defense as a response to acts by non-State actors in the absence of the reference to a ‘State’ as the origin of the ‘armed attack’ in the wording of Article 51”.
This diplomatic fight for the heart of the UN Charter regime is worth fighting. Little by little, creeping interventionism has begun to encroach on the cornerstone rule of post-UN-Charter international law, even beyond the already troublesome unwilling or unable test. Take, for instance, the recent drone strike against Qassem Soleimani. According to high ranking US government sources, “[u]nder international law an imminent attack is not a necessary condition for resort to force in self-defense (…) because armed attacks by Iran already had occurred and were expected to occur again.” President Trump himself has argued that he “must be able to anticipate our adversaries’ next moves and take swift and decisive action in response”, without the need for imminence. These ideas paint the contours of a vastly different world than the one promised in 1945. In fact, the resulting image is a rather absurd one.
Take the case of Operation Gideon itself. What would the American vision for 21st century international law make of the would-be filibuster’s raid, through Venezuelan eyes? First, that there is a hostile non-state group operating in the United States and Colombia that threatens Venezuela. Second, and assuming that FBI and CIA agents are better equipped than Associated Press reporters to detect these kinds of threats, that the United States probably knew that the raid would take place but was simply unwilling or unable to stop it. Third, that Venezuela fully expects attacks like this one to happen again. It blames the United States and Colombia for what it sees as a “wave of provocations and mercenary aggressions”. Moreover, the reward in place for the capture of Maduro and the refusal by the US to disavow the use of force as a means to secure his ouster, are themselves a potential incentive for other would-be filibusters to attempt such incursions into Venezuela. Would this not mean, therefore, that Venezuela could fabricate a legal rationale to justify the use of force in so-called self-defense against Silvercorp and Goudreau using the same kind of arguments that the United States uses to justify its use of force in the Middle East? I am sure many would counter argue that one cannot really say that the United States is unwilling or unable, that Venezuela cannot really expect further attacks, that Silvercorp itself is not really a threat. This is all likely true, but shouldn’t the US also follow these guidelines in its Middle East policy?
All of this reveals the fatal flaw in the United States’ international legal vision for the 21st century: it only makes sense when understood from the arbitrary fact that the United States is a military super-power that does not expect to be the object of the same legal rules it is envisioning for the rest of the world. As shown by the Indian attack against terrorist forces in Pakistan, in early 2019, the unwilling or unable test just isn’t a convenient tool when the other side can shoot back. As Professor Srinivas Burra, pointed out in this very blog, “India was well aware of this arguably emerging legal position on the right of self-defence, but refused to subscribe to it”. There is, in my view, a good reason for that.
With this background, therefore, it is unfortunate that the current recognition dispute between Guaidó and Maduro is forcing most Latin American diplomatic services to refrain from addressing the underlying issues of non-state actors and use of force brought about by the raid. Venezuela, as I mentioned above, is focusing in calling this a US-Colombia-led terrorist plot, which itself conditions the kind of statement its allies can produce. Both Cuba and the ALBA TCP organization (conformed by Cuba, Nicaragua, Venezuela, Antigua & Barbuda, Dominica, Granada, St. Kitts & Nevis, and St. Vincent & the Grenadines) have followed a similar line of argument, calling it a mercenary and terrorist action, but strategically omitting any mention to Colombia or the US. Colombia, for its part, has called the operation a violation of international law, but has focused its efforts in denying any links to Silvercorp and Goudreau, rather than explaining the raid’s legal implications. There has been no word from otherwise more active diplomatic services, like Argentina, Brazil and Chile, or from the Lima Group as a whole, probably because of the irresponsible and incompetent involvement that Juan Guaidó – whom many recognize as President of Venezuela – had in the matter. Other states, like Mexico and Uruguay, that still recognize Maduro, probably feel silence offers them a better chance of being a productive element in the regional effort to solve the Venezuelan crisis. Absent these limitations, however, this failed filibuster operation would have been an interesting opportunity for Latin America to present its legal vision for international law today.
In regions like Latin America, international law is a means of protection from war, not a way to enable it. Here, war is not only rebuked due to moral and legal rigor, but because it is a logistic, strategic and financial absurdity as well. In Brazil, for instance, the military concluded any war with Venezuela would be almost impossible, as the entire Brazilian state of Roraima, inhabited by over half a million people, got its electricity exclusively from Venezuela and was not even connected to the national grid. In other words, war-enabling interpretations of law often make little sense in a region at peace.
In the Latin American vision, therefore, states are encouraged to act multilaterally to address the international threat posed by non-state actors – whether it be drug cartels, terrorist organizations, or filibuster-like groups. In other words, that attacks by non-state armed groups do not trigger a unilateral right to self-defense. Expansive interpretations of the UN Charter, like the unwilling or unable test or the flouting of the imminence requirement, are a danger to Hemispheric peace and have no place in a region like Latin America. Eventually, the path set out by Brazil and Mexico will need to leave the corridors and committee halls of the United Nations, and enter the world of diplomacy and politics, where it will be more visible. Latin American states should accept that defending the UN Charter’s use of force regime openly and frequently has to be an essential cornerstone of their multilateral diplomacy, even if this means falling into political hot-button issues more often than their diplomats would like.