Several States have curtailed intelligence-sharing with the United States due to the continuing drug boat strikes in the Caribbean and Pacific that have killed 83 people to date. Notably, the United Kingdom, which maintains a significant presence in the Caribbean, has for years provided intelligence to support U.S. Coast Guard drug interdiction, in addition to conducting its own counter-narcotics operations. Concerned that the United States might use that support to unlawfully target drug boats, over a month ago, the UK suspended sharing intelligence. Asked about the CNN report that broke the story, Secretary of State Rubio labeled it “false,” without stating why.
Reports have also emerged that the Netherlands has curtailed intelligence cooperation due to fear that the United States might use it to support human rights violations or, a rather shocking concern, assist Russia.
Canada, which is conducting Operation Caribbe in coordination with the Coast Guard and 13 other nations, has likewise informed the United States that the information it provides is not to be used to facilitate the boat strikes. As a spokesperson for the Department of National Defence emphasized, “Canadian Armed Forces activities under Operation Caribbe, conducted in coordination with the United States Coast Guard, are separate and distinct from the activities you describe involving other branches of the United States military.”
And Colombia, which has long collaborated hand-in-glove with the United States on counter-drug operations, has similarly suspended intelligence sharing with U.S. intelligence agencies until the strikes end. Colombian President Gustavo Petro justified the decision by noting, “The fight against drugs must be subordinated to the human rights of the Caribbean people.” Mexico has also opposed the boat strikes, called on the United States to respect international treaties, and most recently announced an arrangement with the United States whereby the Mexican Navy will intercept boats near the countries’ coasts in order to prevent further lethal attacks in that area.
In recent days, E.U. leaders and member States, such as France, have told journalists that they consider the boat strikes flatly illegal. (France too has a significant presence in the region, including past work with U.S. counter-narcotics operations.) In response to such European legal concerns, Rubio quipped, because many of the shipments are bound for Europe, “Maybe they should be thanking us.”
Suspension of intelligence sharing is not new. For example, Germany and other European States froze intelligence following revelations of torture and rendition in the aftermath of the 9/11 attacks. And the 2003 invasion of Iraq by U.S. forces motivated France to curtail intelligence cooperation on the basis that the invasion was unlawful.
The U.S. attacks on suspected drug traffickers are both short-sighted from a strategic policy perspective and morally questionable. Such concerns may have motivated the intelligence sharing restrictions that U.S. allies and partners have imposed. However, as we will explain in this essay, even setting aside those concerns, the decision to withhold intelligence and other cooperation that might contribute to the U.S. operations was a sensible decision from the perspective of international legal risk.
To understand why, it is necessary to assess both the legality of the strikes under international law and the relationship between them and the cooperation being withheld. If the operations are lawful (they are not), other States may lawfully contribute to them, barring any other applicable rule specifically prohibiting such contributions. However, if the U.S. operations are unlawful, this raises the urgent question whether support for them would itself violate international law. In other words, would a State sharing intelligence with the United States be complicit in the “internationally wrongful acts” of the United States? Accordingly, we first conduct a brief survey of the legality of U.S. strikes and then proceed to examine the possible complicity of third States.
The Legality of the Operations
Despite protestations from the Trump administration, and the very suspect claims by a Pentagon spokesperson that “lawyers up and down the chain of command have been thoroughly involved in reviewing these operations prior to execution” and “no lawyer involved has questioned the legality” of them, international law experts who have opined on the matter are nearly unanimous in their conclusions that the strikes clearly violate international law (see, inter alia, Just Security’s collection of commentary and this episode of EJIL: The Podcast!). However, there is some confusion among the broader public regarding why this is the case.
Inapplicable Law: UN Charter, Non-Intervention, and Laws of War
The U.S. operations do not violate the prohibition on the use of force found in Article 2(4) of the UN Charter and customary international law, for that rule only bars the use of force directed at other States. Thus, attacking a flagless (Stateless) ship on the high seas does not amount to a wrongful use of force under international law’s jus ad bellum. For the same reason, the strikes do not constitute unlawful intervention into the internal affairs of other States.
Nor do the operations violate the law of armed conflict (LOAC), as that law is inapplicable in this situation for reasons explained below. Nevertheless, the administration, in a notification to Congress and a statement to the United Nations Security Council, contends that the attacks are lawful on the basis that the United States is involved in a non-international armed conflict (NIAC) with drug cartels and that those killed were “unlawful combatants.” It is correct that civilians who directly participate in hostilities (so-called unlawful combatants) may be attacked for such time as they so participate. Moreover, in our view, members of the armed wing of an “organized armed group” (OAG) may be attacked at any time during a NIAC, so long as other targeting rules, such as the rule of proportionality and the requirement to take precautions to protect civilians in attack, are satisfied.
However, whether those aboard the boats fall into either of the targetable categories need not detain us here; LOAC rules are simply not relevant in this situation, since it does not qualify as a NIAC. A NIAC, as distinct from an armed conflict between States, requires protracted and intense armed violence between a State and non-State organized armed group, an explanation derived from the judgements of international tribunals and long-accepted by the United States (Tadić, para. 70; ICTR, Akayesu, para. 619; ICC, Bemba, para. 229; DoD Law of War Manual, § 17.1.1).
To begin with, drug trafficking as such has never been treated as “armed violence,” nor could it. Drug cartels sometimes use violence against a government, but it is that violence that can qualify the situation as a NIAC, not their drug activities. Moreover, the violence must be at a high level to distinguish a NIAC from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature” (DoD Law of War Manual, § 17.1.1). Examples include various situations in Mexico and Colombia, where cartels or armed groups such as Sinaloa and the FARC directed intense violence against the government in addition to producing and trafficking drugs.
Although there was no qualifying violence until the first strike, the more attacks the United States conducts, the more likely it is that this threshold will arguably be reached – despite the fact that the violence is one-sided (although some scholars believe there needs to be exchanges of fire from both sides). But even if the threshold is reached, the violence must be directed at an organized armed group. This requirement is not met simply because a group possesses weapons or sometimes uses violence to further its criminal ends, as many cartels do. To qualify, the group “must possess organized armed forces” (2016 Commentary to GC I, art. 3), which the targeted groups such as Tren de Aragua do not appear to field.
In short, neither the intensity nor the organization requirement for a NIAC has been satisfied in this situation. Thus, there is no armed conflict and, derivatively, no applicable LOAC rule to violate. It is essential to note that this is an objective assessment of the facts. These facts cannot be ignored simply because the U.S. President proclaims otherwise – which, from the recent reporting on Department of Justice memoranda justifying these operations, appears to be the sole basis on which the otherwise inexplicable U.S. legal claims are based.
Applicable Law: International human rights law (extrajudicial killings)
This being the case, the applicable body of law directly governing these uses of lethal force is international human rights law (IHRL). It is here that the international law violation is found. Importantly, even if, contrary to our view, the jus ad bellum prohibition on the use of force in Article 2(4) of the Charter did apply, but the United States was exercising the right to self-defense, U.S. defensive actions would still need to comply with IHRL since, as explained, the situation does not amount to an armed conflict triggering LOAC.
It has long been recognized that the arbitrary deprivation of life violates a State’s international human rights obligations (see, e.g., UDHR, art. 3). The right is found in the International Covenant on Civil and Political Rights, Article 6(1), an instrument to which the United States is a party. There has long been a debate over whether the ICCPR generally, or Article 6(1) specifically, applies extraterritorially, an issue present in the boat strikes. The United States claims that it does not, although the prevailing view, illustrated by the UN Human Rights Committee’s General Comment 36, is that it does (¶ 63). As noted in that Comment, the right extends to persons “located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.”
But in any event, the right to life is a customary right that applies extraterritorially, regardless of the U.S. interpretation of the ICCPR – a point that the United States has previously accepted, as explained by Ryan. This is also acknowledged in the 2024 U.S. Army’s Operational Law Handbook, which characterizes the prohibition of murder as a fundamental right, and explains that “[i]n contrast to fundamental human rights, […] non-fundamental human rights do not necessarily bind States during all operations inside and outside a State’s territory.” The implication is that a fundamental right, such as the prohibition on the arbitrary deprivation of life, does apply during all operations and extraterritorially (pages 98-99).
Moreover, there is extensive State verbal practice and opinio juris characterizing extrajudicial killings, including those committed abroad, as violations of the right. And in its recent UNRWA advisory opinion, the International Court of Justice (ICJ) ruled that State obligations under IHRL (including customary IHRL, which the Court discusses twice in the opinion) apply when a State exercises jurisdiction extraterritorially, particularly in, but not limited to, situations of occupation (¶ 151; see more here). To put this simply, there is no doubt in our mind that, were the ICJ to be confronted with a situation similar to the U.S. strikes against suspected drug boats, the Court would rule that the right to life, i.e., the prohibition on the arbitrary taking of life, applies even if the State concerned kills people outside its own territory.
Therefore, the question is whether these killings were “arbitrary.” The widely-accepted standard for arbitrariness prohibits the use of force likely to cause death or grievous bodily injury “except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives” (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also U.N. Human Rights Committee, General Comment 36, para 12).
As reflected in the standard, a deprivation of life must be strictly necessary to be justified, as a measure of last resort – if a State can mitigate the imminent threat that an individual poses to others by non-lethal means, then those means must be exhausted first. It is manifest that the U.S. strikes do not satisfy this requirement. While countering drugs is a legitimate aim for State action, the fact that there are numerous operational means that the United States regularly uses to stop maritime drug-trafficking renders simply blowing the boats up unnecessary as a matter of law.
In short, there is absolutely no question that the U.S. lethal strikes on the boats are a violation of international human rights law. The violation of the right to life is as equally manifest as it would be if the United States started using drone strikes against suspected drug traffickers on its own territory. Such individuals, serious criminals though they may be, need to be arrested and put on trial, not summarily killed. We thus agree with the U.N. High Commissioner on Human Rights, who labelled the strikes as “extrajudicial killings” – this is precisely what they are.
This legal point is very straightforward. Indeed, as a Senator, Marco Rubio sponsored legislation calling out the Philippines’ then-President, Rodrigo Duterte, for summarily killing people involved in the drug trade. The legislation stated: “Extrajudicial killings perpetrated by the Government of the Philippines as part of a government-directed antidrug campaign present the foremost human rights challenge.” Notably, the International Criminal Court approved an arrest warrant for Duterte for the crime against humanity, because a policy of such killings can eventually amount to a widespread or systematic attack on a civilian population.
Support to the Unlawful Strikes by Other Countries
This then brings us to the question of the possible complicity of third States in facilitating the U.S. strikes in the Caribbean. As with complicity doctrines in domestic law, there are various ways in which States accrue legal responsibility by contributing to the “internationally wrongful acts” of other States (for a primer, see this Chatham House paper by Harriet Moynihan). Two are relevant here.
First, a State may be complicit on the basis of the general rule set out by the International Law Commission in Article 16 of its Articles on State Responsibility, which provides that a State that assists another in the commission of an internationally wrongful act will be responsible for its contribution if it is bound by the same legal obligation as the assisted State, and if it provides the assistance knowing of the attendant circumstances. The ICJ has held that this rule reflects customary international law. Second, a State may be complicit based on rules that are specific to the various sub-branches of international law, like IHRL, which may set somewhat different standards than the general secondary rule.
There is no doubt that intelligence sharing can constitute such a form of wrongful facilitation, for it can causally contribute to a sufficient degree to the commission of the wrongful act (for an extended discussion, see this paper and this blog post series by Marko). Consider, for instance, the sharing of geolocational data about a boat in the Caribbean with the United States, or other information about the people on board and their activities. It is self-evident that the United States could use this information to conduct a lethal strike against the boat in question. Accordingly, the criterion of a causal contribution, which is essential to all complicity rules, could be met in such a scenario, depending on the nature and content of the intelligence shared.
The requirement that the same legal obligation bind the assisting State as the assisted State is likewise satisfied. All States partnering with the United States in intelligence sharing are bound by customary IHRL prohibiting arbitrary deprivations of life. Most are also parties to treaties that prohibit arbitrary deprivation of life. For instance, France, the United Kingdom and the Netherlands are party to the European Convention on Human Rights, and Colombia and Mexico are bound by the American Convention on Human Rights (arts. 2 and 4, respectively). The five, as well as Canada, are parties to the ICCPR. They are all bound by the customary international law prohibition on arbitrary deprivation of life.
But whether States sharing intelligence would be complicit in the unlawful U.S. attacks depends primarily on the fault (subjective, mental, culpability) element of the given complicity rule. There has been much discussion of this issue in the literature, which we will not examine here (see Marko’s article). We would only make two points.
To begin with, under Article 16, the fault element would be met if the assisting State shared intelligence with the United States, knowing that the latter intended to conduct unlawful strikes and that the intelligence would facilitate them, and nonetheless decided to proceed (a form of oblique or indirect intent). After the United States has conducted 20 such strikes and has openly announced it would conduct more, no State sharing intelligence with the United States could plausibly argue that it lacked the requisite degree of knowledge. This is especially the case for intelligence that directly relates to the activities of boats or drug cartels in the Caribbean.
Under complicity rules specific to IHRL, the requisite fault standard might be lower still – mere appreciations of a level of risk (rather than certainty) that the United States would engage in arbitrary killings using the intelligence provided. This would be a fault standard akin to recklessness, that is, one of conscious risk-taking. As explained in Marko’s piece, and although this possibility is unsettled in IHRL, a lower standard would arguably be justified by the importance of the interest being protected – the right to life.
In short, in our view, any State sharing intelligence with the United States about boats or drug trafficking in the Caribbean exposes itself to a high degree of legal risk. If the United States kills someone, and if the intelligence provided facilitates that killing, the State sharing the intelligence is itself violating international law. This is true even if the relatively high fault standard in Article 16 ASR is applied, let alone under IHRL. After 20 such strikes, no State could plead ignorance here.
As an aside, for present purposes, we do not assess whether the U.S. boat strikes could constitute international crimes, nor do we examine the potential liability of other State officials under a theory of aiding and abetting.
Conclusion
Obviously, we have no way of knowing whether the decisions to suspend intelligence sharing were made after government ministers sought and obtained formal legal advice to that effect. The step could also have been taken prudentially, as a matter of policy. And, of course, it is politically problematic for partners and allies to publicly castigate the United States for engaging in unlawful attacks.
However, whatever the motivation for maintaining or suspending intelligence sharing, the law is clear. The only way in which States can avoid their own responsibility for facilitating attacks that qualify as “arbitrary killings” under international human rights law is to refrain from sharing intelligence that, in part, enables them. Even mitigation measures, such as diplomatic assurances, are unlikely to adequately lower the legal risk, for the nature of the information shared is such that States sharing it cannot plausibly claim ignorance or clean hands. Simply put, any provision of intelligence known to support such attacks is unlawful. Needless to say, this is a point that States should also bear in mind with respect to any prospective U.S .operations directly against Venezuela or other States in the region.
