The Sept. 2 attack on a boat allegedly carrying drugs has sparked widespread discussion regarding the targetability of the 11 people aboard, including two who survived the first strike, and of the drugs themselves. Given the administration’s lack of transparency, especially from the Department of Defense, there is widespread speculation about what really happened in this first, highly controversial Operation Southern Spear attack.
Initially, reports were that the two survivors were merely clinging to the wreckage of the boat when they were killed in a follow-on strike. This led to widespread accusations of war crimes on the basis that those individuals were hors de combat. Next, a narrative emerged that the survivors were on board the boat and communicating with other cartel boats in the vicinity. This led the Washington Post to suggest that, “[t]he version of events [Admiral] Bradley is expected to deliver would rebut claims by legal experts that the killing of the two survivors could have constituted a war crime.” In yet another turn, some members of Congress who viewed the video of the strikes have suggested the two survivors were in fact perched, shirtless, on capsized wreckage of a portion of the boat (the rest having burned or separated), unarmed, and with no radio or other communication equipment available, and having waved their arms before they were killed – in other words, utterly defenseless and posing no threat.
Flawed legal analysis has plagued discussions of the operations. In fact, there have been no war crimes because there is no “war.” And even if the United States were engaged in an armed conflict with Tren de Aragua or drug cartels, much of the discussion about the operations generally, and the Sept. 2 strike in particular, misses or misconstrues fundamental points of law that should be driving scrutiny of the campaign broadly and of individual attacks.
In this article, we attempt to clear some of the fog of law by zeroing in on whether individuals aboard the boats or the drugs they were transporting were legally targetable in the first place. We start with the law that actually applies to the strikes. Our analysis then turns to the law of armed conflict (LOAC). That law does not apply, but because it is nevertheless occupying (inappropriately) so much of the discussion, we will delve into those aspects of it that deal with targeting.
The bottom line: there is no legal basis for targeting the drugs, the boats carrying them, or the people on board. That is true under the law that applies (international human rights law) and under the law that does not apply (the law of armed conflict).
The Applicable Law: What Makes a “Non-International Armed Conflict”?
The administration has claimed that the operations against the drug cartels are occurring in the context of a non-international armed conflict (NIAC) that triggers the applicability of LOAC. This assertion is unambiguously incorrect as a matter of law, a point illustrated by the near universal rejection of it among LOAC experts.
Non-international armed conflict must be distinguished from international armed conflict (IAC), which is a conflict between States. In a NIAC, armed hostilities exist between a State and a non-State entity that qualifies under LOAC as an “organized armed group” (OAG).
The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first body to address the nature of non-international armed conflict in any depth. In its first case, Tadić, the ICTY explained that a NIAC is characterized by “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Jurisdiction, ¶ 70).
Many subsequent decisions of international courts have unpacked this characterization. For instance, in Limaj, the ICTY, citing Tadić, observed, “The two determinative elements of an armed conflict, intensity of the conflict and level of organisation of the parties, are used ‘solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’” (Judgment, ¶ 89). In other words, pure criminality, even if violent, does not qualify. The DoD Law of War has embraced such organization and intensity criteria for NIAC (§ 17.1.1).
Importantly, to reach the threshold for a NIAC, the conflict situation in question must be military in character. As noted by the ICTY in Haradinaj, “an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means” (Judgement, ¶ 60). It explained that the indicia of qualification as an OAG include
the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords (¶ 60; see also DoD Law of War Manual, p. 85).
And that tribunal addressed the requisite intensity for a NIAC in its Boskoski Trial Chamber judgment (¶ 177).
Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.
It is clear that the hostilities between the United States and Tren de Aragua, or any other cartel, did not on Sept. 2, and almost certainly do not now, comprise a NIAC. Indeed, hostile action using military means has been engaged in only by the United States, not by any cartel or criminal gang against us. The gangs and cartels are involved in criminality when they are trafficking drugs, to be sure, but they are not organized militarily to engage in military operations.
There is the possible exception of a few groups that have been in conflicts within the States in which they are based, but not with the United States, such as the ELN in Colombia (this surely does not extend to the vast majority of the reportedly 24 groups the president has directed the U.S. military to target with lethal force, and the administration has not disclosed which groups are the 24 listed). Yet, even groups like the ELN that might be organized militarily or have a military wing are not and have not in the past been directing hostilities at the United States, and certainly not by virtue of smuggling drugs, which is not a hostile act or an attack.
In short, this is not, even by the most liberal interpretation of the term, a non-international armed conflict. We find it difficult to imagine how any executive branch lawyer could have reached a different conclusion.
The Applicable Law on Targeting in These Operations
As we and others have repeatedly noted (see e.g., here, here, here), in the absence of an armed conflict, whether international or non-international, the applicable international law governing the targeting of boats with people aboard is international human rights law (IHRL). Under IHRL, life may not be taken by a State “arbitrarily,” a right recognized by the United States to apply extraterritorially (U.S. Army’s Operational Law Handbook, pages 98-99; see also Ryan’s explanation). As noted by the UN Human Rights Committee in General Comment 36, the right to life 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” (¶ 63).
There are clear IHRL standards for determining when lethal actions are arbitrary. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, for example, explains that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life,” and only in the case of an “imminent threat of death or serious injury.” And even in such cases, lethal force is arbitrary if “less extreme means are insufficient to achieve these objectives” (¶ 9; see also Code of Conduct for Law Enforcement Officials, art. 3, commentary). Although framed in the context of law enforcement, the principles reflect the IHRL standard of arbitrariness binding on State organs that use lethal force, including the armed forces (which are sometimes used to support law enforcement activity, such as in maritime drug interdiction operations). Case law applies these principles of customary international law (i.e., that no more force “than is absolutely necessary in defence of persons from unlawful violence”) even to situations in which people killed by the State were in fact terrorists (e.g., McCann), which is not the case with the boat strikes in Operation Southern Spear.
It is noteworthy that there is both international law and extensive State practice regarding the interdiction of drug trafficking at sea. For instance, Article 108 of the Convention on the Law of the Sea obligates States to cooperate in the suppression of illicit drug trafficking at sea, whereas Article 110 allows for the boarding of ships that are “without nationality,” as is likely to have been the case in these operations. Although the United States is not a Party to the Convention, it has often cooperated with other States in maritime drug interdiction and recognizes Article 110 as reflecting customary law. Moreover, Article 17 of the Narcotics Suppression Convention, to which the United States is Party, provides well-established procedures for the interdiction of suspected drug smuggling. Nevertheless, it cautions that “the Parties concerned shall take due account of the need not to endanger the safety of life at sea.” The point is that there is a robust international law framework for interdicting drugs at sea in place, and it does not include the use of lethal force. The United States has long been a key player in conducting these operations, often in cooperation with partners.
The U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations provides detailed guidance on how force may be used when conducting maritime counterdrug operations. For example, it sets out when the use of warning shots and disabling fire is appropriate. However, the guidance is clear that the sole basis for employing force against individuals or vessels at the lethal level is the “commander’s inherent authority and obligation to use all necessary means available and take all appropriate action in self-defense of the commander’s unit and other U.S. forces in the vicinity” (ch. 3).
In this regard, the Commander’s Handbook emphasizes(§ 4.4.1.2) that in maritime law enforcement (MLE) operations, which exclude operations during armed conflict, the Standing Rules on the Use of Force (SRUF) apply. According to the SRUF,
Normally, force is to be used only as a last resort, and the force used should be the minimum necessary. The use of force must be reasonable in intensity, duration and magnitude based on the totality of circumstances to counter the threat. If force is required, non-deadly force is authorized and may be used to control a situation and accomplish the mission, or to provide self-defense of DOD forces, defense of non-DoD persons in the vicinity if directly related to the assigned mission, or in defense of the protected property, when doing so is reasonable under the circumstances.
As the discussion illustrates, the applicable law is simple. Because there is no armed conflict, international human rights law governs the U.S. operations. The law does not allow for the use of deadly force except in situations where it is employed to safeguard life. Moreover, as counterdrug operations, there is no legal basis for using deadly force during them except in situations of defense of self or others. On the contrary, there are international agreements governing how such operations must be conducted, as well as clear guidance to U.S. forces on the use of force during them. These strikes conducted to date are clear violations of U.S. obligations under international human rights law (and may also amount to crimes, including murder, by some of those involved under the domestic law of States having jurisdiction over the offenses).
The Inapplicable Law on Targeting in These Operations: the Law of Armed Conflict
As explained above, the United States is not mounting these operations during an armed conflict, yet the administration continues to claim involvement in a NIAC. It would be difficult to accept that the government lawyers providing advice on these operations simply do not understand the law that applies, since the legal criteria for triggering a NIAC are uncontroversial, relatively straightforward, long settled in the executive branch (including DoD), and clearly not satisfied in these circumstances.
It is more likely that the United States is seeking to take advantage of the fact that targeting during an armed conflict is more permissive, and have for that reason attempted to create a legal theory that would purport to justify the targeting program that began on Sept. 2. Notably, targeting based solely on an individual’s status is sometimes permissible in a NIAC, whereas outside armed conflict, lethal force may be employed, as explained above, only against an individual based on that person’s conduct, specifically conduct posing a threat to life. Since it is self-evident that no one aboard any of the boats being struck presents an imminent threat to anyone, the administration is likely trying to get around that fact by asserting a right to engage in NIAC status-based targeting. But that attempt does not work: neither the people aboard the boats nor the boats themselves would be lawful targets even if there were an armed conflict, which we emphasize, there is not.
During a NIAC, there are three categories of people that a State’s armed forces may attack, including by lethal means. Not only may these individuals be killed, but harm to them does not factor into the LOAC proportionality analysis or the requirement to take precautions in attack to minimize any harm to civilians. The sole exception is when they are hors de combat due to capture, wounds, or being shipwrecked. The last category may seem relevant based on accounts of the Sept. 2 re-attack that killed two survivors, but that issue would only come into play if they were targetable in the first place. They were not.
Members of dissident armed forces: The first category of targetable persons during a NIAC consists of “dissident armed forces,” that is, units of the armed forces that have turned their guns on the government. This category is obviously irrelevant in the current circumstances.
Members of an organized armed group: The second category consists of members of an organized armed group. As noted in the DoD Law of War Manual, “members of hostile, non-State armed groups may be made the object of attack unless they are placed hors de combat” (§ 5.8.2.1). Yet, as explained in detail above, almost none of the cartels against which the United States is using force qualify as an OAG in the LOAC sense. They are not organized to engage in military-like operations, are not armed to do so, and have conducted no armed operations against U.S. forces. On the contrary, their organization and activities are those of a purely criminal organization, which at times engages in violence, but not to fight against the United States in any systemic way. This being so, its members are not subject to status-based targeting based on OAG membership. The few cartels or criminal groups that do arguably qualify as OAGs based on the intensity and nature of the hostilities they engage in against the State concerned, such as ELN in Colombia or Cartel Jalisco Nueva Generación and the Sinaloa Cartel in Mexico. But they are not mounting armed operations against the United States.
We note that at times there are groups that have sub-components that are organized to engage in systemic violence against a State. The paradigmatic example is Hamas, which performed governmental functions in Gaza, but also has an armed wing, the al-Qassam Brigades, dedicated to conducting military operations against Israel. In that case, Hamas did not qualify as an OAG, but the al-Qassam Brigades did, and its members were subject to being targeted by Israel. However, none of the groups targeted by the United States has an armed wing, the mission of which is to conduct hostilities against the United States, whatever the reason for doing so.
Accordingly, no one aboard the boats is targetable as an OAG member.
Directly participating in hostilities: This leaves the final category, individuals who are directly participating in the hostilities. Under treaty law applicable in both international and non-international armed conflict, such individuals may be attacked in certain circumstances (AP I, art. 51(3); AP II, art. 13(3)). Although the United States is not a Party to the relevant treaties, it recognizes that their provisions on direct participation generally reflect customary law. Extracts from the DoD Law of War Manual are instructive in understanding the U.S. view of direct participation.
At a minimum, taking a direct part in hostilities includes actions that are, by their nature and purpose, intended to cause actual harm to the enemy. Taking a direct part in hostilities extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations § 5.8.3).
The emphasis is on a direct nexus to “combat” operations. This is clear from the examples the Manual provides of acts qualifying as direct participation. Of direct relevance in this case is the example the Manual provides on “delivering ammunition to the front lines” (5.8.3.1). This example served as the basis for extensive discussion during an ICRC expert project that led to the publication of its Interpretive Guidance on the Notion of Direct Participation in Hostilities (prior to issuance of the Law of War Manual). One of us was a member of the international group and can attest that the following analysis was unanimously acceptable to the members.
The delivery by a civilian truck driver of ammunition to an active firing position at the front line would almost certainly have to be regarded as an integral part of ongoing combat operations and, therefore, as direct participation in hostilities. Transporting ammunition from a factory to a port for further shipping to a storehouse in a conflict zone, on the other hand, is too remote from the use of that ammunition in specific military operations to cause the ensuing harm directly. Although the ammunition truck remains a legitimate military objective, the driving of the truck would not amount to direct participation in hostilities and would not deprive a civilian driver of protection against direct attack. Therefore, any direct attack against the truck would have to take the probable death of the civilian driver into account in the proportionality assessment.
The basis for the conclusion was that the causal connection between the act (transporting ammunition) and the harm caused (use of the ammunition against the enemy) was too attenuated to amount to direct participation, except in cases of delivery to the front. The experts agreed that transportation other than to those who would use the ammunition was “indirect” rather than “direct,” pointing in particular to the lack of temporal or geographic proximity. It was this analysis that led to the “to the front lines” caveat in the Manual.
Putting aside the self-evident fact that delivering drugs to be sold cannot be characterized as “hostilities,” the transportation of drugs to be distributed to unknown buyers at some point in the future is even more attenuated than the transportation of the ammunition to ports to be carried to known units near the front.
Applying the DoD standard (which, we emphasize, does not apply outside of armed conflict), individuals transporting drugs aboard a boat to be sold at an onward destination are not “directly participating in hostilities.” That means they are not targetable on that basis either.
Finally, we discuss below the insurmountable problems in any attempt to consider the drugs or boats targetable as “war-sustaining” objects. But assuming, even in the best case scenario for the administration, that they are targetable war-sustaining objects (again a truly insurmountable “if”), that would mean there is even greater reason civilians involved in transporting such objects can never be considered direct participants in hostilities. If a civilian driving an ammunition truck away from the frontlines of a real war cannot be considered a direct participant in hostilities (consensus view discussed above), a civilian operating a vehicle (here a boat) involved in war-sustaining (revenue generating) activities surely cannot be. Indeed, the Department of Defense, despite external political pressure, concluded that the truck drivers bringing the Islamic State’s oil to market were civilians (see Department of Defense General Counsel Remarks 2016).
Drug boats as military objectives? This leaves open only the possibility that the people on the boats may lawfully be harmed in an attack if the drug boats constitute military objectives subject to attack under the law of armed conflict (which we remind readers does not apply in any event). As accurately explained in the DoD Law of War Manual, reciting well-accepted treaty and customary law, military objectives “include any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (§ 5.6.3). Whether the boats qualify as military objectives depends, therefore, on whether their use at the time of the strike contributed to the gang or cartel’s “military action” and whether destroying the boats would result in a “definite military advantage” for the United States.
By the prevailing view, drug-related facilities, equipment, and assets do not qualify as military objectives. Indeed, precisely this issue became contentious among NATO forces during International Security Assistance Force (ISAF) operations in Afghanistan. The American NATO Supreme Allied Commander and Secretary of Defense argued that drug producers/traffickers and narcotics-related assets generating funds for the insurgency could be attacked. The German Commander of Allied Joint Force Command Brunssum and the ISAF Commander, an American, countered that this position violated international law. The latter position prevailed within NATO, and an accommodation was reached in 2008 whereby the drug assets related to the insurgency could be destroyed in support of Afghanistan’s counter-drug law enforcement effort.
Since no gangs or cartels are involved in military action against the United States, and the United States gets no military advantage from destroying them, boats used to transport drugs, by the plain text of the rule, cannot qualify as military objectives subject to attack. This leaves only the possibility of the drugs themselves. In other words, if the law of armed conflict applied, which it does not, could the boats be lawfully attacked, subject to other targeting rules like proportionality and precautions in attack, because there were targetable drugs on board?
Drugs as “war-sustaining” objects? The only conceivable basis for the argument that the drugs were targetable was that they were so-called “war-sustaining” objects. Although it is not the prevailing view among States, the United States has long asserted that war-sustaining entities are legitimate military objectives, a position with which one of us agrees (DoD Law of War Manual, § 5.6.8). A war-sustaining entity “indirectly, but effectively supports and sustains the belligerents’ warfighting capability,” such as “imports of raw materials used for the production of armaments and exports of products the proceeds of which are used by the belligerent to purchase arms and armaments” (Commander’s Handbook, § 7.4).
This position is reported to be relied on in the OLC memo purporting to justify the boat strikes, so we will unpack why the “war-sustaining” objects theory fails in this context.
Even accepting the U.S. position that war-sustaining objects are targetable, the boats and their drugs would not qualify, because there is no war to sustain. Unlike the drugs in the Afghanistan case, or the export products in the Commander’s Handbook example, the proceeds of the sale of cartel or criminal gang-supplied drugs are not being used to sustain hostilities against the United States (or anyone else, with the limited exception explained below). They are not being used, for instance, to purchase arms that will be used against U.S. forces or pay the salaries of an armed wing that is conducting hostilities against them.
Assuming war-sustaining objects can be lawfully targeted, the argument that drugs are such objects might work in the case of cartels that qualify as OAGs engaged in hostilities against the State in which they operate, if drug sales do in fact fund their military operations. But taking the Sept. 2 strike against Tren de Aragua, for example, there is no gang or cartel “war effort” to sustain in the first place. This would be the case for nearly all of the cartels and criminal groups reportedly being targeted in the U.S. campaign. (We should note that even for those few cartels that do qualify as OAGs, and that are involved in conflict against a State in which they operate, the United States would not have a legal basis to enter that conflict absent a request from that State to do so. This is plainly not the case here – the relevant States in the region have strenuously objected to the U.S. campaign, several publicly calling for it to be stopped, or calling the killings “murder.”)
Simply put, absent actual military operations against the United States on the part of the group concerned, the “war-sustaining” justification for striking boats transporting drugs falls apart, even under the inapplicable law of armed conflict that the administration purports to operate under.
Concluding Thoughts
Despite the fervent debates about whether the operations as a whole, or individual strikes, violated the law of armed conflict, and may even have been war crimes by those involved, the correct legal regime governing them is international human rights law. That law imposes a stringent necessity standard according to which lethal force is lawful only in the face of an imminent threat to life, and then only in the absence of other means of responding to that threat in the circumstances. None of those aboard the boats that have been struck posed an imminent deadly threat to anyone.
But even if the law of armed conflict applied, and it decidedly does not, neither those on the boats nor the drugs and the boats in which they were transported qualified as lawful military objectives under that body of law. The gangs or cartels do not qualify as organized armed groups; thus, their members are not subject to status-based targeting. Those aboard the boats are not targetable as direct participants in the hostilities, because they are merely transporting the drugs, and not in temporal or geographical proximity to any location where they might somehow contribute to the cartel’s or gang’s purported “combat.” And finally, the drugs do not qualify as military objectives by even the controversial war-sustaining approach because there are no hostilities against the United States by the gangs or cartels involved to sustain.
Taken together, there is no justification under either international human rights law, the correct legal framework, or the law of armed conflict, the wrong one, to target the boats or the people on board. The administration’s justification for conducting the strikes is a house of cards, unable to withstand scrutiny.
