The Trump administration has taken two irreconcilable positions on the status of the drug cartel Tren de Aragua (TdA). One maintains that the group is acting as “a de facto arm of” and “at the direction of” Nicolás Maduro’s regime by engaging in irregular warfare against the United States. The other characterizes the situation as a non-international armed conflict (NIAC) between TdA and the United States.
As will be explained, the two characterizations are mutually exclusive; it is legally impossible to maintain both simultaneously. The United States’ asserted relationship of the Venezuelan regime to TdA’s conduct would preclude qualification as a NIAC, while a NIAC between the United States and TdA can exist only in the absence of such a relationship. In this essay, we examine how the administration’s approach along these two lines is highly contradictory.
Two notes before we delve into that analysis.
First, it must be emphasized that our focus is solely on the Venezuelan government’s responsibility for the alleged conduct of TdA under applicable law. There are numerous other reasons the administration’s legal assertions to date do not hold water, many of which contributions to Just Security’s “U.S. Lethal Strikes on Suspected Drug Traffickers” collection have insightfully unpacked. Our discussion is without prejudice to them.
Second, our analysis has potential implications for the role of domestic courts in reviewing presidential determinations. In litigation, the Department of Justice argues that the judiciary owes “extreme deference” to the President’s determinations about TdA and the Maduro regime. Yet, even if courts were open to such extreme deference, affording deference is an impossible task when the presidential determinations themselves are internally inconsistent and irreconcilable with one another.
The Administration’s Assertions
Presidential Determination 1: TdA conduct at the direction of the Maduro regime
The Trump administration has repeatedly argued that TdA operates under the direction of the Venezuelan government, if not as a de facto State actor. For instance, it has done so in U.S. domestic litigation concerning the Alien Enemies Act [AEA], which essentially requires an invasion or predatory incursion into the United States be carried out “by any foreign nation or government.”
Several presidential findings and Justice Department statements in federal court assert this relationship between TdA’s conduct and the Maduro regime. They include:
“TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States … at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” (AEA Presidential Proclamation) (emphasis added)
“Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.” (AEA Presidential Proclamation) (emphasis added)
“The resulting hybrid state, the President determined, “is perpetrating an invasion of and predatory incursion into the United States” (U.S. Solicitor General brief to U.S. Supreme Court in A.A.R.P. [W.M.M.]. v. Trump)
“Acting at the behest of Venezuela’s Maduro regime, TdA has infiltrated the United States and wielded violence to sow chaos.” (DOJ en banc petition to Fifth Circuit)
“[T]he Proclamation reflects the President’s finding that TdA is operating at the direction of Venezuela’s Maduro regime. … [T]he President found … TdA entwined with the Maduro regime.” (DOJ brief to Fifth Circuit) (emphasis added)
“President Trump invoked the AEA against members of TdA, a transnational criminal organization supported and directed by members of the Maduro regime.” (DOJ en banc petition to Fifth Circuit)
“Given how significantly TdA has become intertwined in the fabric of Venezuela’s state structures, it is a de facto arm of the Maduro regime. In such a case, TdA becomes indistinguishable from Venezuela.” (DOJ brief in J.G.G. v. Trump) (emphasis added)
Presidential Determination 2: The United States is engaged in a non-international armed conflict with TdA, a non-state group
Yet, in the week of Sept. 29, the administration submitted a notification to Congress stating,
“[T]he President determined these cartels are non-state armed groups …. [B]ased upon the cumulative effects of these hostile acts against the citizens and interests of the United States and friendly foreign nations, the President determined that the United States is in a non-international armed conflict with these designated terrorist organizations.” (emphasis added)
Similarly, on Oct. 10, the United States informed the United Nations Security Council:
“President Trump determined these cartels are non-state armed groups, designated them as terrorist organizations, and determined that their actions constitute an armed attack against the United States. …
Based on the cumulative effect of these hostile acts against the citizens and interests of the United States and friendly foreign nations, President Trump has determined the United States is in a non-international armed conflict.” (emphasis added)
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In sum, there are two parallel depictions of the situation. By the first, the United States is the victim of an ongoing armed attack by a non-State armed group whose actions are attributable to a foreign government. And according to the second, the United States is the victim of a non-State organized armed group’s (OAG) armed attack in a situation amounting to a NIAC with that group. As will be explained, they cannot both be right, but they can both be wrong.
The Relevance of Attribution
Whether factually accurate or not, the United States is alleging that TdA’s bringing drugs into the United States is conduct attributable to the Maduro regime. This has a number of legal implications, both domestic and international. Reference has already been made to the AEA under U.S. law, which is triggered only when a foreign government has responsibility over those involved in an invasion or predatory incursion in the United States. Putting aside the separate issue of whether TdA has invaded or engaged in a predatory invasion (it has not), that attribution to Venezuela is a condition precedent to the statute’s application. Absent such a relationship, the AEA is not in play.
In international law, the prohibition on the use of force by one State against another found in Article 2(4) of the UN Charter and customary international law would be implicated if TdA is operating “on the instructions of, or under the direction or control of” Venezuela (Articles on State Responsibility, Art. 8). This is the most relevant basis, under the law of State responsibility, for attributing the conduct of a non-State actor to a State, such that Venezuela would be responsible for TdA actions qualifying as a use of force. We note that despite the administration’s assertions suggesting the possibility of treating TdA as a “de facto” State organ, arguing for attribution on that basis would be legally and factually highly problematic (Articles on State Responsibility, Art. 4, commentary).
If the administration’s cursory assertion regarding TdA’s acting under the direction or control of Venezuela were accompanied by specific, accurate factual allegations in the Proclamation, the State attribution condition would be satisfied. If the administration’s assertions were not factually sound, attribution would fail, and Venezuela would, on that basis alone, not be responsible for engaging in a prohibited use of force based on TdA’s actions. (TdA’s actions would also not themselves qualify as an unlawful use of force, for only States can violate the prohibition.)
In this regard, we hasten to add that an internationally wrongful act requires both attribution to a State and breach of an obligation owed to another State, here refraining from the use of force (ASR, art. 2). In our view, drug trafficking does not amount to a use of force as understood in the applicable body of law, the jus ad bellum. In other words, there is no “internationally wrongful” use of force to attribute to Venezuela in the first place. But if there were, TdA’s action would have had to have been conducted under Venezuelan instruction, direction, or control before Venezuela violated the prohibition.
The administration has also claimed that TdA is conducting an “armed attack” on the United States, thereby triggering the right of self-defense under Article 51 of the UN Charter and customary international law. There is disagreement about whether the right of self-defense applies to the actions of a non-State actor (we believe it does). Still, there is consensus that if a non-State actor’s actions are at the level of an “armed attack,” and are conducted “on behalf of” or with the “substantial involvement” of a State, the State can be treated as having itself engaged in an armed attack (ICJ, Paramilitary Activities, ¶ 195). This would trigger an international armed conflict (IAC). In such circumstances, the victim State may respond with necessary and proportionate forcible measures without violating the prohibition on the use of force.
Again, putting aside the issue of whether TdA’s actions amount to an armed attack (they most certainly do not), the substantial involvement threshold would appear to be satisfied if the administration’s claims of Venezuelan relationship to TdA had an accurate factual basis. But if not, there would be no right to take forcible action against Venezuela based on TdA’s actions.
So, the administration’s claimed relationship between Venezuela and TdA is essential in each of these cases. But, as noted, the administration has repeatedly asserted that the United States and TdA are involved in a NIAC under the law of armed conflict. The question is whether the two assertions – attribution of TdA’s conduct to a State and the existence of a NIAC – can coexist.
It is universally accepted and well-settled that a NIAC exists when there are hostilities (1) between an organized armed group (OAG) and a State (2) at a relatively high degree of intensity (see e.g., DoD Law of War Manual, § 3.4.2.2; ICTY, Tadić, Decision on Defense Motion for Interlocutory Appeal, ¶ 70; International Committee of the Red Cross, Commentaries to Geneva Convention relative to Civilians, art. 3). In our view, neither condition is satisfied, but let us assume they are, as the administration contends.
The inconsistency between the two aforementioned presidential determinations arises with respect to the allegations of Venezuelan government’s relationship to the group. Assuming for the sake of analysis that TdA’s actions count as an “armed attack” or the like, the government’s assertions – that TdA is acting at the direction of the Maduro regime, or as a hybrid state, or de facto arm of the Venezuelan government – would “internationalize” the conflict such that it is now an international armed conflict between the State so involved with the OAG (Venezuela) and the State with which the OAG is engaged in hostilities (the United States). A preexisting NIAC (if hostilities had reached that level) between the OAG and the State would necessarily be transformed into an IAC. This does not mean that a separate IAC and NIAC can never exist in parallel, where two different conflicts are taking place, but only that an OAG whose hostilities are attributable to another State is solely engaged in an IAC (Tadić, Decision on Defense Motion for Interlocutory Appeal, ¶ 72-77; see also Dinstein, pages 40-42 on vertical and horizontal conflicts).
The problem for the US government is that the conduct that is at issue in the so-called NIAC – smuggling drugs en masse into the United States – is the same conduct for which the Venezuela government is purportedly responsible. It is legally impossible for that underlying conduct by TdA to amount to a NIAC if the same conduct is attributable to the Venezuelan government. That’s why the two sets of presidential determinations cannot both be true.
We reserve for a deeper discussion the international law of State responsibility. As an aside, it is notable that the language of the Presidential AEA Proclamation, as well as the DOJ statements to courts, look like an attempt to track the international law rules for attributing the conduct of a group to a State. In particular, Article 8 of the Articles on State Responsibility provides, “The conduct of a … group of persons shall be considered an act of a State under international law if the … group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” (see also the rules for de facto State organs, Articles on State Responsibility, Art. 4). Regardless, it is sufficient for our purposes to note that if the determinations set forth in the Proclamation were true, the United States would not be in a NIAC with TdA acting as a non-state group. Instead, TdA’s conduct would “be considered an act of a State,” if the statements in the Presidential Proclamation were true (which, as aside, they are not).
The Legal Contradiction
Bringing the strands together, if Venezuela’s relationship to TdA’s conduct is what the administration claims, there can be no NIAC. There could only be an IAC. However, the most accurate characterization of the situation is that there is no armed conflict at all (NIAC or IAC) for myriad reasons, including the absence of military operations by TdA and that drug smuggling simply does not qualify as armed hostilities.
But if the conflict were a NIAC, as the administration alleges, it would mean Venezuela necessarily lacked the relationship to the group’s conduct that the administration asserts in AEA litigation; otherwise, the situation would be an IAC, not a NIAC. And if the stated relationship to the Maduro regime does not exist, it would appear impossible for the administration to claim Venezuela is in violation of international law rules, such as the prohibition on the use of force.
Moreover, there would be no ground for asserting self-defense against Venezuela based on TdA’s drug activity because the condition for treating it as an armed attack by Venezuela would be missing. It could only be an armed attack by a non-State group, TdA, a characterization that international law experts have almost universally rejected.
One final note should be added. Even the DOJ appears to have once understood that the two propositions are contradictory. In June, the DOJ told the Fifth Circuit that the plaintiffs’ claim that TdA was a “non-state actor” was incorrect, as shown by the President’s determination “finding otherwise” that TdA was acting at the direction of and entwined with the Maduro regime. That’s a fairly clear admission that the two propositions cannot both be true.
The problem for the DOJ is that by October, the administration was telling the U.S. Congress and the U.N. Security Council that TdA is a “non-state armed group” with which the United States is engaged in a NIAC, an armed conflict between a State and a non-State actor, not another State. The administration took that position in an attempt to justify lethal military strikes in the middle of September. Yet, on Sept. 22, the DOJ was back in court telling the Fifth Circuit that “President Trump found that … Tren de Aragua (TdA) is conducting such irregular warfare against the United States at the behest of Venezuela’s Maduro regime” (emphasis added).
Concluding Thoughts
If you are confused, join the legal community. To date, the administration’s claimed legal bases for conducting the lethal operations, as well as its legal characterization of them, are counterfactual, counter-normative, and, as this essay has illustrated, contradictory. They smack of a desperate attempt to justify action that is clearly unlawful. One can only hope that government attorneys, in and out of uniform, are speaking truth to their policy clients and to the military leaders tasked with executing these operations.
