US Marines' Lockheed Martin F35-B jets arrive in formation to José Aponte de la Torre Airport

Murder by Drone: The Legal and Moral Stakes of the Caribbean Strikes

On Sept. 2, the Trump administration announced a lethal strike against what it said was a drug smuggling vessel in the Caribbean, killing eleven people in what amounted to a summary execution of civilians. A second strike followed on Sept. 15, reportedly killing three people. The administration has said more such strikes will occur, marking what may be the start of a new program of extrajudicial killing. The strikes raise many serious legal issues, both domestic and international, which have been well covered in recent Just Security publications. This article will not seek to duplicate those, but rather to further explore one of the central legal and moral implications of the strike: the violation of the rights to life and due process.

A State intentionally killing a person outside of armed conflict and without due process is an extrajudicial killing under international law. Extrajudicial killing is a form of murder. At stake in the president’s decision to summarily execute alleged cartel members is whether he can murder people he labels criminals or “terrorists” with impunity. Under the administration’s apparent reasoning, there seems to be nothing preventing murders of other alleged criminals – drug traffickers or otherwise – in the United States. If allowed to go unchecked, the incident sets an extraordinary and dangerous precedent, encouraging additional unlawful executions by the United States and other leaders in the region and globally.

International Human Rights Law: The Right to Life and Fair Trial Rights

Under international human rights law, all people – no matter where they live, or what crime they have been suspected of – have fundamental human rights, including the rights to life and fair trial. When States use force outside of an armed conflict to which they are a party, they are bound by strict rules to protect human life.

Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR) recognize the inherent right of every person to life. Under international human rights law, no derogation from this right is permitted, even in times of “public emergency which threatens the life of the nation” (Article 4 of the ICCPR). As such, the use of lethal force is prohibited unless in self–defense when the loss of human life is imminent and less extreme means, such as capture, are insufficient. Regarding the use of lethal strikes outside of war, then-UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, reported to the Human Rights Council in 2010, “outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”

Article 10 of the UDHR and Article 14 of the ICCPR also establish universal rights to due process, or the right to a fair trial for those accused of a crime.

The rights to life and a fair trial are also well-established as a matter of customary international international law. The prohibition on extrajudicial killings is a non-derogable, or jus cogens, norm that binds all States.

U.S. Congress and the U.S. executive branch, on a bipartisan basis, have long championed the importance of the prohibition on extrajudicial killings. Much of human rights law as incorporated in statutes involving U.S. foreign policy centers on “gross violations of human rights,” a category of abuses defined in Section 502B of the Foreign Assistance Act in 1974. The State Department has long interpreted GVHRs to include extrajudicial killings.

Section 502B prohibits arms sales and security assistance to countries where the government engages in a consistent pattern of gross human rights violations. The same section mandates the State Department to produce its annual human rights reports, including “for each country with respect to which the report indicates that extrajudicial killings… have occurred in the country, the extent to which the United States has taken or will take action to encourage an end to such practices in the country.” These reports have also routinely included due process violations, including denial of fair public trial. The Leahy law, borrowing from Section 502B, bans security assistance to any unit of foreign military forces when there is credible information that they have committed a gross violation of human rights.

Other U.S. laws upholding the prohibition on extrajudicial killings include the Global Magnitsky Act, which authorizes sanctions on individuals who have committed a gross violation of human rights or engaged in corruption; U.S. visa sanctions authorized in Section 7031(c) of annual appropriations acts, which invoke the GVHR definition and, by extension, extrajudicial killings; the Torture Victim Protection Act (TVPA), which allows for the filing of civil lawsuits in the United States against individuals who committed extrajudicial killing; and the Immigration and Nationality Act, which classifies non-citizens who have committed or been otherwise involved in extrajudicial killing as ineligible for admission to the United States.

Caribbean Strikes: Murder Without Trial 

The U.S. strikes in the Caribbean sea appear to violate both of these unalienable rights to life and fair trial. The United States is not party to any recognizable armed conflict in Latin America and the Caribbean. As such, international humanitarian law (IHL) does not apply. (And even if the United States was in an armed conflict in the Caribbean, the United States would be bound under IHL to distinguish between civilians and combatants, and the vessel’s occupants would be protected from attack unless and for such time as they take a direct part in hostilities, which all information indicates was not the case.).

Simply put, the accused drug traffickers are civilians, not lawful military objectives, and international human rights law, not the law of armed conflict, governs the administration’s use of force. The victims’ participation in drug smuggling and affiliation with any drug cartel remain disputed, but the facts of their activities or membership is immaterial to their rights to life and due process – under any of the plausible reported facts, there is no basis for concluding they could be deemed combatants or participants in hostilities. That means their alleged violations of law may only be handled through criminal proceedings, with protections of due process, fair trial, and right to counsel – not summary executions. These procedures are what separate our legal system from one that permits wanton killing. While the administration alleges it knows the identities of those killed in the strikes, it has not disclosed them, and members of Congress report that the administration has provided “no positive identification that the boat was Venezuelan, nor that its crew were members of Tren de Aragua or any other cartel.” The Venezuelan government claims that “none were from Tren de Aragua, none were drug traffickers.” Journalists should press further on this point.

By its own admission, the U.S. government did not attempt to interdict the first vessel before destroying it and killing its occupants. “Instead of interdicting it, on the president’s orders, we blew it up. And it’ll happen again. Maybe it’s happening right now,” Secretary of State Rubio told CNN. That means that the U.S. government had the opportunity to use measures short of lethal force to address any threat that the vessel posed to the United States, if any. The standard procedures employed by the U.S. Coast Guard, sometimes with U.S. Navy support, of interdiction and arrest were available options. Indeed, such interdictions are routine in the Caribbean.The Trump administration could have brought the accused to justice in a U.S. court.  In choosing to conduct an airstrike, the president rejected that opportunity, denying the deceased of their rights to life and due process.

War is the Wrong Paradigm

The designation of Tren de Aragua and other drug trafficking organizations as Foreign Terrorist Organizations does not convey authority to use military force against those organizations.

Nevertheless, the administration appears to be invoking self-defense as a justification for its use of military force. Under international law that is binding on the United States, including the Senate-ratified UN Charter, the use of force in self-defense is only justified insofar as it is necessary to respond to an armed attack or an imminent threat of armed attack. The eventual arrival of drugs for sale in the United States is neither an attack nor an imminent threat of attack, and the availability of interdiction means that the use of force was not necessary.

In fact, the New York Times later reported that the vessel targeted on Sept. 2 had altered its course and turned around before the attack started, further rebutting officials’ claims of any imminent threat. Rear Adm. James E. McPherson, former top judge advocate general for the Navy and former general counsel of the Army, told the New York Times:

“I would be interested if they could come up for any legal basis for what they did. If, in fact, you can fashion a legal argument that says these people were getting ready to attack the U.S. through the introduction of cocaine or whatever, if they turned back, then that threat has gone away.”

On Sept. 3, Anna Kelly, White House spokesperson, also justified that strike in part as directed “in the collective self-defense of other nations.” But any lawful invocation of collective self-defense requires that another nation itself be in an armed conflict, or facing an armed attack or imminent threat thereof, and have requested the assistance of the United States in addressing that threat. No such basis is presented here – the defense of unnamed other nations, without even the attempt to establish whether they requested or needed support, is no  justification for the strike. Such reasoning, if accepted, would allow the administration to carry out military strikes wherever they wished, with no basis in international law, approval by Congress, or proper scrutiny. (For a detailed analysis of why the strikes lack any justification under the jus ad bellum and the law of armed conflict, see here).

Foundations in the U.S. Lethal Strikes Program 

The Trump administration’s airstrikes in the Caribbean sea expand on decades of power abuses from the so-called “war on terror.” Since 2002, the United States has conducted lethal strikes to kill alleged terrorists outside of conflicts to which the United States is a party and in gross abuse of congressional authorizations, undermining both domestic and international law. Over 110 organizations, including ours, have demanded an end to this program.

As some of us noted in an earlier Just Security piece, “[u]nder the U.S. lethal strikes program, the process of target selection occurs mostly in secret and typically results in death, with no opportunity for the individual to be informed of charges against them, prepare a defense, and be tried before a competent, independent and impartial court.” These strikes, when outside of armed conflicts to which the United States is a party, are accordingly extrajudicial killings.

However, President Trump’s airstrikes in the Caribbean also break dangerous new ground. Never before has a president claimed the authority to use military force on the basis of self-defense against drug trafficking. Counterterrorism airstrikes typically invoke the 2001 Authorization for Use of Military Force (AUMF), which is limited to the Taliban, Al Qaeda, and, in the executive branch’s view, certain associated forces, and does not apply to designated terrorist groups, cartels, or drug traffickers. While Democratic and Republican administrations have twisted the 2001 AUMF far beyond Congress’s intent in a series of legal leaps, they have at least purported to rely on an authorizing statute, which in turn was enacted based on an actual attack on the United States by an organized armed group.

Congress Must Act 

The Trump administration has demonstrated a disturbing lack of regard for the law, including the  principles described here. The day after the first attack, Pentagon officials were reportedly still searching for a legal rationale to justify the strike. Vice President JD Vance also signalled a lack of concern with legal justifications, responding to legal criticisms on Twitter/X with, “I don’t give a sh*t what you call it.” Not only does this grossly undermine the rule of law and violate the rights of those targeted, but this seemingly careless deployment of U.S. military forces puts service members at legal risk. Congress must step in to defend the rule of law and the foundational principles underpinning these legal constraints, including the universal rights to life and due process. That includes calling these strikes what they are: extrajudicial executions and murders.

Some members of Congress have rightly expressed alarm about the president’s Sept. 2 airstrike on human rights grounds. In a Sept. 9 statement, Rep. Gregory Meeks (D-NY), ranking member of the House Foreign Affairs Committee, demanded, “The administration must… provide Congress the intelligence, including what immediate threat to the United States justified the extrajudicial killing of 11 individuals.” Senator Rand Paul (R-KY) similarly decried the dearth of due process in the killing, stating, “It isn’t our policy just to blow people up […] We arrest people. […] even the worst people in our country, if we accuse somebody of a terrible crime, they still get a trial.”

More members of Congress need to vocally oppose the president’s dangerous claimed authority to murder anyone he labels a threat. Congress should also demand more information about the strike, including:

  • The identity and alleged crimes of those killed;
  • How the strikes were authorized and by whom, including who signed off on the strikes, and who may have voiced objections;
  • The purported legal justification for the strikes under both domestic and international law;
  • Whether the strikes are part of a broader program of pre-authorized extrajudicial killing, and if so, what the parameters of that program are.

Congress should also demand – or conduct itself – a thorough and transparent investigation into the strikes and their compliance with U.S. and international law, including what happened in the White House, the Pentagon, The Department of Justice, and down the chain of command that led to the strike. Decision-makers found responsible for extrajudicial executions should be held accountable, including under the Uniform Code of Military Justice and other applicable U.S. law.

Appropriations bills provide a potential avenue for congressional action. Legislators have long used must-pass appropriations bills as vehicles for restrictions on the use of funds for particular purposes. Using its power of the purse, Congress could refuse to fund airstrikes like the ones carried out in the Caribbean.

Congresswoman Ilhan Omar (D-MN) has introduced a War Powers Resolution in the House, and Senators Schiff (D-CA) and Kaine (D-VA) are reportedly preparing one in the Senate. Through a privileged bill under the War Powers Resolution, Congress can make clear that the Trump administration has no domestic authority to use military force against drug cartels.

These efforts are welcome, and they should incorporate not only Trump’s total absence of authority under U.S. law but also his brazen deprivation of the right to life of a reported fourteen unidentified individuals. Lawmakers should emphasize that Congress’s ability to use a War Powers Resolution to prohibit airstrikes like the one in the Caribbean does not mean that any armed conflict exists, that there has been an armed attack or imminent attack on the United States by purported drug traffickers, or that IHL applies to this situation. It does not. Such measures are privileged in both the Senate and the House of Representatives, under the current House rules, providing a fast-track to a floor vote that can ensure the president is not able to order this kind of egregiously unlawful attack again.

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