Operation Southern Spear, the U.S. campaign involving attacks on boats allegedly trafficking drugs from Venezuela, has so far killed 87 individuals. International law experts who have opined on the strikes overwhelmingly condemn them, on the basis that they either constitute violations of international human rights law (IHRL) or of the law of armed conflict (LOAC).
As we have previously explained, the strikes clearly violate the right to life under IHRL, which the United States is required to respect, including extraterritorially. The strikes are arbitrary deprivations of life – extrajudicial killings – because lethal force is deliberately being used against people who, in that moment, pose no immediate threat to the lives of others and who could be apprehended by non-lethal means. Even on the assumption that those killed were drug smugglers, killing them on the high seas is as unlawful as if the police started killing those suspected of dealing drugs on the streets of a U.S. city.
Because U.S. military units are organs of the State under the law of State responsibility (Articles of State Responsibility, art. 4), and because each of the strikes breaches the IHRL obligation to respect life, they constitute “internationally wrongful acts” for which the United States bears responsibility. Moreover, those involved may have committed murder in violation of the domestic criminal law of States that can exercise jurisdiction. (Murder under international criminal law is a different matter.) This includes the domestic law of the United States, as the State of nationality of the perpetrators, and potentially any States whose nationals were among the victims of the strikes.
Although this is the prevailing view among experts, widespread discussion persists over whether the strikes violate the law of armed conflict. Such discussions are counter-normative because that law applies only to actions during armed conflicts. The administration has erroneously asserted that it is involved in a non-international armed conflict with the cartels. That assertion is legally flawed (see, e.g., here, here, and here). To be clear, there is no armed conflict, and LOAC simply doesn’t apply.
Nevertheless, in light of the administration’s mistaken claims that an armed conflict is underway, international law experts have pointed out that the strikes would be unlawful even under LOAC because the individuals aboard the boats are not targetable under that law and the drugs are not military objectives. And in any event, the infamous Sept. 2 strike on the shipwrecked survivors would have been a clear violation of the LOAC prohibition on attacking those who are hors de combat, if LOAC applied (see, e.g., here and here).
Congress has begun demanding answers regarding the legality of the strikes generally, and the Sept. 2 attack specifically. We strongly support this exercise of legislative branch oversight. However, international law imposes its own obligations to investigate potential violations of both IHRL and LOAC. In this article, we explain those binding obligations. Our examination includes the source of the obligations, when they are required, and the criteria according to which they are conducted. In our view, the IHRL obligation to investigate has been triggered and, by the administration’s mischaracterization of the situation, so too would its LOAC counterpart. We close by noting that the Department of Defense’s own policies require an investigation into the operations, irrespective of whether the proper legal regime governing the strikes is IHRL or LOAC.
International Human Rights Law Investigations
State procedural duties to investigate potentially unlawful killings have long been recognized under IHRL as part of the State’s overarching positive obligation to protect the right to life. All human rights bodies take essentially the same approach to the parameters of this obligation. A useful summary can be found in the UN Human Rights Committee’s General Comment No. 36 (¶¶ 27-8 & 64), which sets out the Committee’s approach to interpreting Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the instrument’s provision on the right to life.
Similarly, an instructive summary of the European Court of Human Rights’ jurisprudence on the procedural duty to investigate can be found in its case law guide (pages 35-51) for Article 2 of the European Convention on Human Rights (ECHR) on the right to life.
The law of human rights bodies on the procedural duty to investigate unlawful killings is rich and varied, dealing with many different types of situations, including armed conflict. More importantly, that law is clear and unambiguous, and its overall correctness is not open to doubt.
The following principles can be distilled from this body of law.
First, the duty to investigate arises when State authorities “know or should have known of potentially unlawful deprivations of life” (General Comment 36, ¶ 27) (emphasis added). That requirement is clearly met regarding the boat strikes – the State itself is doing them. The fact that the President and the Department of Justice’s Office of the Legal Counsel (OLC) by fiat declared them to be lawful does not make them any less unlawful, let alone potentially so. That’s even more the case if the OLC relied on presidential determinations of a NIAC and other matters (as indicated by reporting), rather than engaging in independent legal assessment of those issues.
Second, investigations “must be aimed at ensuring that those responsible are brought to justice, at promoting accountability and preventing impunity, at avoiding denial of justice and at drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations. Investigations should explore, inter alia, the legal responsibility of superior officials with regard to violations of the right to life committed by their subordinates.” (id.) The issue of superior responsibility, discussed below, looms especially large in these strikes in light of the Secretary of Defense’s personal involvement in them. So does the need to revise practices and policies, which Hegseth suggested never occurred after the shipwreck strike.
Third, it is not sufficient for States to investigate unlawful deprivations of life “merely through administrative or disciplinary measures, and a criminal investigation is normally required, which should lead, if enough incriminating evidence is gathered, to a criminal prosecution.” (id.) Measures short of a criminal investigation might be appropriate for personnel on the operational periphery of the strikes, but certainly not for those who played a direct role in planning, approving, or executing them.
Fourth, “[i]mmunities and amnesties provided to perpetrators of intentional killings and to their superiors, and comparable measures leading to de facto or de jure impunity, are, as a rule, incompatible with the duty to respect and ensure the right to life, and to provide victims with an effective remedy.” (id.) The presumption against immunity and amnesties is especially significant in light of President Trump’s excessive pardon practices.
Fifth, investigations “must always be independent, impartial, prompt, thorough, effective, credible and transparent .… States parties need to take, among other things, appropriate measures to establish the truth relating to the events leading to the deprivation of life, including the reasons and legal basis for targeting certain individuals and the procedures employed by State forces before, during and after the time at which the deprivation occurred.” (General Comment 36, ¶ 28).
Sixth, these duties apply even extraterritorially and in situations of armed conflict, in parallel with similar duties under LOAC, which are discussed below. For instance, this year the European Court of Human Rights found Russia responsible for failing to effectively investigate the role of its authorities in the downing of the MH17 airliner over Ukraine in 2014 (see more here). Of course, the context of an armed conflict may require some flexibility in applying criteria, such as thoroughness and effectiveness, to account for what is realistically feasible under the circumstances (General Comment 36, ¶ 64, and ECHR cases such as Al-Skeini v. UK, Jaloud v. Netherlands, Hanan v. Germany, and Georgia v. Russia No. 2, all discussed in the case law guide, page 47).
It is important to note that no extenuating circumstances would apply to an investigation into the boat strikes. Not only were those strikes not conducted in the course of an armed conflict, as we have explained, but all relevant information and evidence regarding them is in the possession of U.S. authorities. What is crucial at the moment is securing such evidence.
Taken together, these points lead to an inexorable conclusion: the United States has a positive duty under IHRL to investigate the lethal strikes against alleged drug trafficking boats in the Caribbean. That duty can be discharged only if the investigation is independent, meaning that the State organs conducting the investigation must be free from undue influence from those they are investigating. Moreover, while Congressional oversight is welcome, the positive duty can only be discharged through a criminal investigation by the armed forces or the Department of Justice, as appropriate. A perfunctory administrative investigation within the Pentagon would clearly not suffice, and any interference in the investigations would be unlawful under IHRL.
Law of Armed Conflict Investigations
As noted, it is clear that the U.S. strikes against the alleged drug traffickers are not occurring in the context of a non-international armed conflict. However, as the administration claims they are, by its logic, the United States would be bound by any obligation to conduct investigations into LOAC violations amounting to war crimes during such conflicts. Moreover, with the administration threatening to conduct operations directly against Venezuela, the obligation to investigate LOAC violations during an international armed conflict, which those operations would trigger, merits attention.
The law of armed conflict imposes a two-tiered obligation to investigate possible war crimes. The obligation derives primarily from the four 1949 Geneva Conventions. Note that since they are considered to reflect customary international law (Nuclear Weapons, para. 79), Geneva Convention obligations are binding on all States. That States shoulder a customary law obligation to investigate possible war crimes is simply beyond dispute (ICRC, Customary IHL study, rule 158 and accompanying practice; UNGA Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, prin. I). Indeed, as noted in the DoD Law of War Manual (§ 18.13)
The duties to implement and enforce the law of war also imply duties to investigate reports of alleged violations of the law of war. In addition to taking measures to meet the requirements of DoD policy, commanders may also take other measures they deem appropriate to ensure appropriate investigation and reporting of alleged violations of the law of war within their command. (see also U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations, § 6.2.6).
The first tier involves the duty to investigate potential “grave breaches,” which are set forth in the Geneva Conventions (GC I, arts. 49 & 50; GC II, art. 50 & 51; GC III, arts. 129 & 130; GC IV, arts. 146 & 147; see also AP I, arts. 11 & 85). Willful killing of protected persons, which includes civilians and those who are hors de combat (like shipwrecked persons), is one of the enumerated grave breaches.
These provisions require States to pursue prosecution of those suspected of committing grave breaches by: 1) enacting domestic legislation enabling prosecution of offenders; 2) searching for those accused of violating the Conventions; and 3) either prosecuting them or turning them over to another State that is willing to do so (aut dedere aut punire). The requirement to “search” for the accused has long been interpreted as mandating an investigation into a possible grave breach to determine whether to prosecute or to turn the accused over to another State.
Importantly, the grave breaches provisions apply only during an international armed conflict, which the current situation is not, even according to the administration’s mischaracterization of the situation. However, should the United States attack Venezuela, thereby initiating an international armed conflict, these obligations would be triggered. A failure by the United States to satisfy them would constitute an internationally wrongful act.
The second tier of the investigations requirement, and of immediate relevance to the boat strikes on the administration’s own theory that a non-international armed conflict exists, is based on the obligation to “take measures necessary for the suppression of all acts contrary to the provisions of the present convention other than the grave breaches.” It appears in the same provisions that set out the requirement for investigating grave breaches. The duty to suppress does not encompass a duty to prosecute or send an offender to another State for prosecution, but necessarily implies a duty to investigate in order to determine whether a violation has occurred, take appropriate disciplinary measures against any offender, and assess whether action can be taken to prevent further violations by others.
What is different is that the suppression obligation applies to violations of all of the Conventions’ rules, including Common Article 3. That article, which appears verbatim in all four Conventions, prohibits “violence to life and person” directed at “persons taking no active part in the hostilities, including those placed ‘hors de combat.’” And unlike most other Geneva Convention articles, Common Article 3 sets forth fundamental rules for non-international armed conflict, violations of which have been criminalized in U.S. law (18 USC 2441(c)(3)). The resulting treaty-based duty to investigate and prosecute potential war crimes, even with respect to non-international armed conflicts, undeniably reflects customary international law (ICRC, Customary IHL study, rule 158, and accompanying practice). Therefore, the consequence of the administration’s assertion that it is involved in such a conflict is, by its own flawed analysis, that the “suppression” obligation attaches not only to any violations that might occur during operations in Venezuela that trigger an international armed conflict, but also to the strikes on the boats against the cartels.
There are several non-exhaustive principles regarding such investigations that can be identified by examining these and related rules, such as Article 87 of Additional Protocol I (which does not bind the United States), and the practice of States in applying them (see Investigations Study).
First, the legal obligation under LOAC to report possible violations applies to all individuals who exercise command authority over military forces, although “[e]ffective compliance with the requirement necessitates policies extending it to any member of the armed forces with knowledge of a possible … violation” (Study, page 79).
Second, every credible allegation of a war crime must be investigated promptly. In the absence of an allegation, an investigation is required whenever there is a credible reason to suspect a violation has occurred (id.).
Third, the duty to investigate can be “satisfied by investigations at any level of command, but only so long as the investigation in question is effective in terms of uncovering relevant facts and circumstances that will permit appropriate disciplinary or punitive action to be taken” (id.).
Fourth, the investigations must be impartial and independent. This does not necessarily mean that investigators must be outside the chain of command, unlike investigative duties under IHRL, so long as their work is effective in ascertaining the facts. However, any attempt to interfere with the investigation is strictly prohibited. Moreover, commanders and other responsible officers may not order and oversee investigations into incidents involving themselves; instead, they must refer them to a higher command or a law enforcement organization. (Study, page 80, para. 10).
Fifth, in the event “clear and reliable evidence of a war crime” surfaces, States are required to prosecute those who have committed war crimes and take appropriate disciplinary or remedial measures for violations that do not amount to war crimes. (Study, page 81).
And sixth, investigations need not be conducted, as a matter of law, publicly or their findings released. That said, in many situations in which the possibility of a war crime has become public, as in this case, doing so is generally sound policy. (id.)
Given the widespread publicity over the boat attacks, especially the Sept. 2 strike on the shipwrecked survivors, as well as the extensive analysis by international law experts, there are obviously credible allegations of war crimes, assuming the administration’s framing of the situation as a non-international armed conflict is correct. Of course, it is not, as we have explained – war crimes cannot be committed in the absence of an armed conflict. But, given its position on the existence of such a conflict, the administration has no alternative but to launch a prompt, impartial, and independent investigation to comply with the LOAC requirement that applies in such conflicts.
It is crucial to bear in mind that in both international and non-international armed conflict, commanders and other superiors can be held criminally responsible for the war crimes of their subordinates if they knew, or had reason to know, that war crimes were being committed, or about to be committed, by them and failed to take all necessary and reasonable measures to prevent the war crimes or to punish those responsible for crimes that had already been committed (ICRC, Customary IHL study, rule 153 and accompanying practice). Ordering investigations is an effective step in prosecuting offenders and in identifying measures that need to be taken to prevent future war crimes. Based on publicly available information, the Defense Secretary’s apparent failure to change policies following the Sept. 2 double-tap strike is highly relevant in any assessment of compliance with these obligations.
Should a commander or other superior fail to order an investigation when doing so is called for in the circumstances, that individual might be subject to prosecution for the underlying war crime on the basis of command (superior) responsibility. This is true both with regard to military personnel throughout the chain of command and civilian superiors such as the Secretary of Defense (DoD Law of War Manual, § 18.23.3.2). In this regard, it merits emphasis that war crimes are subject to universal jurisdiction, that is, offenders may be prosecuted by any State, even when there is no relationship between the war crime and the State engaging in the prosecution. Additionally, commanders who fail to comply with the obligation to investigate and take other measures to suppress LOAC violations may be punished under the Uniform Code of Military Justice for dereliction of duty or violation of orders (§ 18.23.3.1).
Finally, we remind readers that IHRL continues to apply during armed conflict, albeit with due regard for military realities. There are none in this case that would meaningfully impede an investigation in full compliance with the aforementioned IHRL criteria. Indeed, as a matter of law, IHRL is the only appropriate framework for the investigations, unless the United States carries out the administration’s threats to take military action against Venezuela itself.
DoD Implementation of the Investigation Requirements under IHRL and LOAC
The United States has implemented the obligation to investigate in DoD Directive 2311.01E, DoD Law of War Program (see also, DoD Law of War Manual, § 18.13). It provides that “[a]ll military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DoD Component must report through their chain of command all reportable incidents” (¶ 4.1). A reportable incident is (page GL-15):
An incident that a unit commander or other responsible official determines, based on credible information, potentially involves: a war crime; other violations of the law of war; or conduct during military operations that would be a war crime if the military operations occurred in the context of an armed conflict. The unit commander or responsible official need not determine that a potential violation occurred; they need only find that credible information warrants further review of the incident. (emphasis added)
Importantly, even if an incident occurs outside armed conflict, as in these strikes, the reporting requirement still applies.
The commander of any unit who receives a report “about an alleged violation of the law of war must assess whether the allegation is based on credible information and thus constitutes a reportable incident.” (¶ 4.2). Information is credible when “a reasonable military commander would believe [it] to be sufficiently accurate to warrant further review of an alleged violation.” Note that “[t]he unit commander or responsible official need not determine a potential violation occurred, only that credible information merits further review of the incident.” Among the examples of “incidents that must be reported,” the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations includes the following: “Offenses against … Survivors of Sunken Ships;” “When military interests permit, failure to search out, collect, make provision for the safety of, or to care for survivors of sunken ships;” “Attacks on individual civilians;” and proportionality violations (§ 6.3).
If a report is credible, the commander concerned has to direct a “properly scoped” assessment, investigation, inquiry, or other review that is deconflicted with any ongoing criminal investigation. Even if there is a criminal investigation, the commander would still want to determine the facts, as they may require measures to avoid repetition, such as changing the Rules of Engagement. Should no such investigation be underway, the commander is obligated to “refer information about alleged war crimes to, or request an investigation by, a responsible Defense Criminal Investigative Organization” (DoD Law of War Program, ¶ 4.2).
Even if the unit commander concludes that there is no credible information to support an allegation, that commander is nevertheless obligated to forward this determination through the chain of command to the appropriate Combatant Commander. In the case of the boat strikes and any attack on Venezuela, it would likely be the Commander of U.S. Southern Command, although the involvement of Special Operations Command complicates matters. In any event, the responsible Combatant Commander must then assess the decision and forward all reportable incidents to the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, and applicable Service Secretaries (¶ 4.3).
There is no question that boat strikes are reportable incidents that, based on credible information, should lead a reasonable commander to conclude there may have been a war crime, especially in light of the Navy’s own guidance on the type of incidents that qualify. If an armed conflict were underway, as the administration claims, it would raise serious questions about targeting individuals who are neither members of an organized armed group nor directly participating in the hostilities. Even if those killed in the attack were reasonably believed to be targetable in the circumstances, the prohibition on attacking those who are shipwrecked, one of the most fundamental rules in the law of naval warfare, was undeniably implicated. There are also problematic proportionality and precautions in attack issues. The intense controversy that the reports of the strike have sparked is a testament to the extent to which the entire campaign raises questions of both State responsibility for LOAC violations on the part of the United States and possible war crimes by some of those involved (see, esp. here).
Importantly, even though the strikes are not occurring during armed conflict (contrary to the administration’s claims), they still have to be reported and investigated. Recall that reportable incidents include incidents outside of armed conflict if the conduct would be a war crime during armed conflict. That is very clearly the case here. Simply put, it would be unsupportable to argue that the incident did not fall within the four corners of the “reportable incident” standard.
Concluding Thoughts
All of this leads to a relatively straightforward conclusion. Whether the boat strikes conducted thus far are assessed under international human rights law, the law of armed conflict, or the Department of Defense’s own policies, they have triggered an obligation on the United States to investigate them. That obligation is obligatory, not discretionary, and it is not satisfied by the administration’s claims to be acting lawfully or by congressional hearings. International law is clear. The boat strikes, and any questionable operations that may occur in the future, necessitate prompt, impartial, and effective investigations capable of gathering the facts and identifying those responsible. The fact that the United States controls the factual record of the incidents heightens the imperative to act promptly.
We are, however, not naïve. In the current political context, it is doubtful that across-the-board investigations into the boat strikes will occur. If any investigation is ordered, we anticipate it will be limited to the Sept. 2 second strike incident that has drawn so much attention. But this does not mean that the United States is not under a legal obligation to conduct one or more broader investigations into all of the strikes in accordance with its international obligations. The impunity resulting from a failure to do so is one we have seen at least once before – when the use of torture by U.S. officials in the “war on terror” went largely unpunished. A clear line connects that episode of impunity with the ongoing situation, in which uniformed and civilian government lawyers have no real choice but to carry out their legal and ethical duties.
