Is it legal to use lethal force to target suspected drug trafficking boats on the high seas or kill those on board?
No. The United States is not in an armed conflict with any cartel or criminal gang. That means the law of armed conflict (LOAC), also known as international humanitarian law (IHL), does not apply to the military operations that began on Sept. 2. Domestic criminal law and international human rights law both prohibit these kinds of lethal strikes outside of armed conflict (such killings are known as extrajudicial killings and murder, respectively). All 21 strikes against suspected drug trafficking boats, killing 83 people to date, have been unlawful.
What U.S. law applies to the lethal strikes against these boats and the people on board?
Normal peacetime laws apply, including federal laws prohibiting murder and conspiracy to commit murder. Under U.S. domestic criminal law, “the unlawful killing of a human being with malice aforethought” is murder, including when committed on the high seas (note: that law also applies during armed conflict). Article 118 of the Uniform Code of Military Justice also criminalizes murder, both when military personnel intend to kill and when they engage in an “act which is inherently dangerous to another and evinces a wanton disregard of human life.” The provision applies overseas, as well as during armed conflict when the death is not lawful under the law of armed conflict. These laws apply, depending on their role, to the individuals involved in ordering and carrying out the strikes.
What international law applies to the lethal strikes against these boats and the people on board?
International human rights law applies. U.S. strikes on suspected drug traffickers at sea are extrajudicial killings – that is, arbitrary deprivations of the right to life under international human rights law (IHRL), an obligation that the United States acknowledges applies extraterritorially. A killing is arbitrary when it is not conducted “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.” None of these circumstances were present in the boat strikes, in particular because those killed posed no imminent threat and other means of stopping the boats that are commonly used may have been feasible (i.e., interdiction). Note that States violate IHRL, not individuals. Individuals involved in these IHRL violations can be punished for murder or conspiracy to commit murder (see above).
Is the situation a non-international armed conflict (NIAC) as claimed by the administration?
No. NIACs are armed conflicts between a State and an organized armed group. There are two requirements for the existence of a NIAC. First, the non-state group must be both armed and organized. While cartels are typically well-organized, they are not per se “armed” in the sense of the law of armed conflict. “Armed” denotes engaging in violence against the State in an organized fashion; that the group may possess weapons used for other criminal activity does not suffice. A second requirement is that the armed violence between the State and the group must be protracted and intense; sporadic violence, including death, is not intense enough. Even if the intensity criterion could be satisfied at some point by virtue of the U.S. strikes continuing (this remains a contested area of law), the fact that the U.S. strikes are not directed at an organized armed group precludes characterization as a NIAC.
If there were an armed conflict with these groups (there is not), would killing people on the boats be lawful?
It depends, but merely transporting drugs would not make a civilian targetable. If there was an armed conflict (there is not), an armed (fighting) wing of the cartel, should the cartel have one, could potentially meet the criteria for being considered an organized armed group. Members of it aboard the boats could be killed based on that status, although only so long as LOAC rules such as proportionality and precautions in attack are observed. The others who are merely operating the boats would have to qualify as civilians who may be targeted because they are “directly participating in hostilities” to be subject to attack. Although the threshold at which the conduct of a civilian amounts to “direct participation in hostilities” can be unclear in specific situations, merely transporting drugs would not qualify.
What about killing shipwrecked survivors of strikes at sea?
Killing shipwrecked survivors is clearly illegal and as unlawful as targeting those individuals with lethal force in the first place. If the United States were in an armed conflict (it is not), it would be illegal to target shipwrecked survivors at sea. The Department of Defense’s Law of War Manual (2023) uses exactly this rule as a paradigmatic example of a clearly illegal order:
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal. (emphasis added)
If an order was given to leave no survivors – known as “denial of quarter” – that would also have been a clearly unlawful order, and anyone receiving that order had a duty not to follow it.
Was killing the shipwrecked survivors of the Sept. 2 strike a war crime?
No, but that’s because war crimes are committed only during an armed conflict, and the United States was not (and is not today) in an armed conflict with the reportedly targeted group (Tren de Aragua). Killing the two shipwrecked survivors should be considered an extrajudicial killing under international human rights law, or murder under U.S. domestic law. An order to kill them would be unlawful whether in armed conflict or not.
Do military personnel have an obligation to refuse to obey clearly illegal orders or orders the personnel know are illegal?
Yes. The DoD Law of War Manual explains, “The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal” (§ 18.3.2.1). The Manual for Courts-Martial, which applies to all orders, points out that although superior orders are presumed lawful, this presumption “does not apply to a patently illegal order, such as one that directs the commission of a crime.” Importantly, the duty to refuse an unlawful order is triggered only when the order is manifestly unlawful; if military personnel refuse to obey an order they believe to be unlawful, and the order is not, they may be punished for failing to follow it under the Uniform Code of Military Justice.
Is the fact that a member of the military was obeying an order from a superior a defense in a criminal case against them?
In some cases, no. Under both long-standing international and U.S. military law, the fact that the accused engaged in criminal conduct pursuant to a superior’s order is not a defense if the accused “knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (Manual for Courts-Martial, rule 916(d)). In other words, the question is whether the order was clearly unlawful or the accused knew it to be so. If not, they may defend themselves against the charges by arguing that orders are presumed lawful and that they had no reason to know the order was unlawful.
Would it have been lawful to target the boat in the follow-on strikes to destroy any remaining drugs, even if the survivors would be killed?
No. Under international human rights law, which governed the strikes, it is unlawful to knowingly cause the death of individuals, even criminals, in order to destroy criminal assets, like drugs. As noted, the law of armed conflict does not apply (see above). But even if it did, it would appear impossible on the facts as reported to find the second strike lawful. The deaths of the two individuals, either as shipwrecked fighters or as civilians (see above), would have to be factored into a proportionality analysis to assess whether the deaths were “excessive” relative to the anticipated military advantage of destroying the drugs. In other words, enough of the remaining drugs would likely have to be recoverable by other cartel members to justify killing the two survivors. And this is assuming that the recovery of the drugs would qualify as “military advantage” in the first place, a highly questionable proposition (one with which we disagree on the facts and the law). Moreover, if there were another feasible means of destroying or seizing the drugs without killing the survivors, the law of armed conflict precautions in attack rule would prohibit an attack likely to kill them. (And again, all of this assumes the law of armed conflict applied, which it did not.)
Was there a duty to try to rescue the survivors of the Sept. 2 attack?
Yes, if feasible. Under longstanding international law during both peacetime and armed conflict, there is an obligation to take practicable measures to rescue individuals who have been shipwrecked. It is one reflected in both the law of the sea and the law of armed conflict. During peacetime, the duty is to proceed at all possible speed to rescue persons in distress so long as doing so does not seriously endanger the ship or crew (Law of the Sea Convention, art. 98). This was the applicable obligation because the United States was not in an armed conflict. Nevertheless, even during armed conflict, according to the Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations, “following each naval engagement at sea, the belligerents are obligated to take all possible measures, consistent with the security of their forces, to search for and rescue the shipwrecked” (emphasis added). We note that the Department of Defense’s Law of War Manual states, “The obligations to search for, collect, and take affirmative steps to protect the wounded, sick, and shipwrecked are subject to practical limitations” (7.4.4).
Has the United States violated the prohibition on the use of force found in Article 2(4) of the UN Charter by striking the boats?
No. The prohibition applies only to using force against other States. The strikes are unlawful, but not as a violation of this UN Charter (and customary law) prohibition. A use of force against Venezuela (or within its territory but without its consent), absent an armed attack or imminent threat of one against the United States, would, however, implicate this prohibition (see below).
Has there been an “armed attack” against the United States that would justify U.S. military force in self-defense?
No. States may only use force in self-defense in response to an imminent or ongoing “armed attack” (UN Charter, art. 51). Despite the Trump administration’s claims, and even if all of the claimed facts were true, there has been no “armed attack” (or imminent threat of armed attack) by any drug cartel or criminal gang against the United States. Trafficking drugs into a country cannot alone constitute an armed attack that would trigger the right of self-defense in response. Therefore, the United States has no claim to use force in self-defense against any of these groups.
Is the buildup of U.S. forces off the coast of Venezuela and threats to employ them against Venezuela lawful?
No. Shows of force, such as exercises, are legal if designed to show resolve, as in the case of demonstrating a willingness to defend against an unlawful armed attack. But Article 2(4) of the UN Charter and customary law prohibit States from even threatening to use force unlawfully if the threats are communicated to the threatened State, coercive, and capable of being carried out. Senior U.S. officials, including the President, have openly and coercively suggested the forces could be used against Venezuela, and the U.S. military is obviously capable of mounting a large-scale attack against that State. Since the United States has no legal basis for using force against Venezuela or any drug cartels operating there (see above), the build-up with the accompanying threats is unlawful.
Would U.S. strikes on alleged cartel boats in Venezuelan waters or cartel facilities and personnel in Venezuela be lawful?
No. Military operations in Venezuelan territory would be unlawful as a use of force against Venezuela in clear violation of the UN Charter (art. 2(4)) and customary international law. Venezuela has not engaged in any activities that would qualify as an “armed attack” against the United States, the trigger for the right to use force against another State in self-defense. Nor have any of the cartels engaged in an armed attack against the United States, which, according to some States and experts, might open the door to operations against them on the basis that Venezuela is unwilling or unable to put an end to their hostile activities emanating from its territory.
May groups designated as Foreign Terrorist Organizations (FTOs) be targeted?
No, not on that basis alone. An FTO designation does not authorize the use of force against the designated organization or its members. It carries non-lethal penalties, such as making members of the FTO inadmissible to enter the United States and allowing for its assets to be blocked. An FTO designation “does not require or create a ‘war’ or ‘armed conflict’ between the designee and the United States (or any state).” Nor does it trigger any wartime authorities. In short, the administration’s designation of certain cartels and criminal gangs as FTOs (or otherwise describing them as “narcoterrorists”) does not provide a legal basis for using force against them.
Should the President ask for authorization from Congress to take these strikes?
No, this is not a domestic law, war powers issue, because the United States is not at war. While it is true that the President is acting on claimed unilateral constitutional authority alone, no declaration of war or authorization to use military force by Congress could make these strikes lawful. That’s because, as described above, there has been no armed attack against the United States that could justify the resort to force in self-defense, and there is no armed conflict between the United States and any cartel or criminal gang. So while it is alarming that the executive branch is claiming authority to engage in a campaign of extrajudicial killings outside of armed conflict, there is no congressional action that could make those killings lawful.
May other States assist the U.S. military operations targeting suspected drug trafficking?
No. A State may not assist another State in violating international law. If it does, it will itself have violated international law to the extent of its assistance, so long as the conduct of the assisted State would also violate international law if carried out by the assisting State and the assisting State is aware of the circumstances in which its assistance will be used. Since the well-publicized U.S. operations violate international human rights law binding on all States, assistance, such as providing intelligence facilitating the strikes, would be unlawful. This explains why some States have shut off intelligence sharing that the United States could leverage to conduct these lethal operations.
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