The Trump administration’s murderous campaign against alleged drug traffickers in the Caribbean and Pacific raises important questions about accountability for the U.S. government officials and military commanders involved in these unlawful killings.
The core legal issues implicated by the strikes are not up for debate. Contrary to the administration’s claims, the United States is not engaged in an armed conflict with a secret list of cartels and transnational criminal organizations (see here, here, and here as well). That means international humanitarian law (the law governing armed conflict) does not apply, and the use of lethal force as a first resort is not lawful. Plainly speaking, the killings are unjustified summary executions—murder. This systematic killing of individuals (at least 193 people across 57 incidents, to date) may even constitute crimes against humanity.
Less certain is whether anyone will ever be held accountable for these crimes. As a general matter, States are first and foremost responsible for holding individuals and institutions acting on the State’s behalf and within its jurisdiction to account for their actions, including for conduct that violates their own domestic laws or international criminal law. While States are expected to police actions within their borders and by their personnel, if they fail, foreign or international courts may sometimes step in.
For the U.S. boat strikes, there are at least two paths for domestic accountability. As previously discussed, servicemembers who participate in the boat strikes may be exposed to domestic criminal liability under Title 18 of the U.S. Code and the Uniform Code of Military Justice. And, on Jan. 27, the families of two victims filed a lawsuit in federal court in Massachusetts under the Death on the High Seas Act and the Alien Torts Claims Act. We believe the United States can and should hold its own personnel accountable, and that failing to do so further entrenches a damaging precedent for the rule of law – that the most powerful can commit grave crimes with impunity.
That said, the prospect of near-term justice and accountability in the U.S. federal or military judicial systems is extremely remote during the more than two-and-a-half years remaining in President Donald Trump’s second term. And the general, long-standing culture of impunity in Washington, even for the commission of grave violations of international law, would need to change to improve the prospects of justice even after he leaves office. But the United States is not the only actor in the international system capable of investigating and prosecuting these acts.
In this post, we survey possible foreign domestic and international venues for accountability for the United States or its responsible personnel; we do not, however, address immunity ratione personae because the set of alleged perpetrators extends beyond the U.S. president. Ultimately, we believe that foreign domestic courts have the most potential for the families of victims to receive justice outside of the United States. But justice can proceed in surprising ways, especially as political winds change—as former Chilean General Augusto Pinochet learned almost 30 years ago, and as former Philippine President Rodriguo Duterte is learning today.
Foreign Domestic Courts
Criminal Law and Murder Statutes
The nationality of the victims of the boat strikes suggests a natural starting point for accountability—their home States’ domestic courts. Although the United States has not released the names or nationalities of the victims, it appears that at least some of the victims have been Venezuelan, Trinidadian, Saint Lucian, Colombian, or Ecuadoran nationals. These States already have laws that would allow for prosecution of crimes like murder or attempted murder. And, if they have embraced passive personality jurisdiction, they would be able to prosecute crimes committed against their citizens abroad. But, even if one of these States is able to establish jurisdiction, it must still muster the political will to pursue a prosecution.
There are obvious geopolitical downsides for Colombia, Ecuador, or other affected States to pursue criminal accountability. Colombia, for example, was at one point in Trump’s crosshairs. But these States do not have to act immediately. The crimes of murder and attempted murder typically carry no or very lengthy statutes of limitation, such as 20 or 30 years (for example, see here and here). Officials in Colombia, Ecuador, or other affected States could quietly gather evidence of the crimes and wait to issue indictments until Trump is out of office, and the White House is not occupied by the president who ordered the killings.
Even then, these States would need to identify perpetrators and acquire sufficient evidence admissible in their courts to satisfy relevant domestic legal standards of criminal guilt. Somewhat ironically, the United States may have helped these States’ potential pursuit of accountability through the Trump administration’s public identification of at least three high-level potential perpetrators responsible for directing these crimes: Secretary of Defense Pete Hegseth, who frequently posts on social media about the killings; Admiral Frank Bradley, U.S. Special Operations Commander; and Gen. Francis Donovan, Commander of U.S. Southern Command. And, by repatriating survivors, the United States has furnished potential victim-witnesses who may be able to provide critical testimony in support of any prosecution. But whether this constellation of information is sufficient for a successful prosecution before foreign domestic courts is a question for the relevant prosecutors.
Perhaps the biggest hurdle would be for States with jurisdiction to acquire custody of alleged perpetrators unless their courts allow prosecutions in absentia. Nevertheless, that challenge should not deter nations from trying. The prosecuting State could convert a national warrant to an international warrant or initiate procedures under its relevant extradition treaties. Doing this increases the potential for criminal liability, which is critical to imposing some kind of consequence–even if the consequences are merely the perpetrators’ self-imposed travel restrictions to avoid arrest, along with public condemnation.
Universal Jurisdiction
Another option is for a third State to use a universal jurisdiction statute to prosecute the U.S. officials who perpetrated these crimes in its domestic courts. For example, if experts such as Luis Moreno Ocampo, the former Chief Prosecutor of the International Criminal Court (ICC), and Professor Charlie Trumbull, former State Department lawyer, are correct in characterizing the killings as crimes against humanity, those responsible may be vulnerable to universal jurisdiction statutes that reach crimes against humanity. Ninety-nine United Nations member States have universal jurisdiction statutes that cover crimes against humanity, including the majority of NATO countries.
Significantly, such crimes are not subject to a statute of limitations. And in issuing an arrest warrant for Duterte, the ICC determined that drug traffickers are civilians for crimes against humanity purposes. Worryingly for Trump, Duterte also embraced an explicit, public policy of killing drug traffickers—likely a key fact in establishing culpability.
Nevertheless, prosecuting the perpetrators under a universal jurisdiction statute would take concerted efforts from multiple States. Prosecutors acting under universal jurisdiction statutes would face the same hurdles as foreign domestic prosecutors: mustering requisite political will, collecting evidence, securing witnesses, and meeting the legal standards of admissibility and proof necessary to secure conviction. Theoretically, at least the three U.S. officials already identified could be held accountable for crimes against humanity in a State with universal jurisdiction. As above, the obvious and most consequential hurdle would be the ability to arrest these or other perpetrators.
But if States have the legal acumen and political will to do so, universal jurisdiction statutes could offer an avenue for accountability and at the very least put pressure on the officials who directed these crimes.
International Courts
There are three international systems that could provide different types of accountability for the U.S. boat strikes: the Inter-American system, the International Court of Justice (ICJ), and the ICC. The Inter-American system and the ICJ address actions committed by States, not by individuals. The ICC seeks individual criminal responsibility for violations of the Rome Statute (the treaty that established the ICC), which include crimes against humanity, though the prospects of an ICC case proceeding against the United States in the near term are slim.
The Inter-American System
The Inter-American system aims to protect the human rights of the populations of member States of the Organization of American States (OAS) and consists of both a court and a commission. The Commission may hear complaints about violations of the American Declaration of Rights and Duties of Man, which the United States is party to, and serves typically as a precursor to the Court. The Inter-American Court of Human Rights hears complaints about violations of the American Convention on Human Rights by a State that is party to that treaty (i.e., no individual accountability). The United States is not a party to the Convention so is not subject to the jurisdiction of the Court. Nevertheless, the Inter-American Commission on Human Rights might still be an option for redress.
The Commission can review, investigate and analyze allegations against all OAS member States for violations of human rights as recognized in applicable human rights instruments. In the past, the United States has ignored Commission decisions, such as those relating to violations against people detained at Guantanamo Bay. While there is little that the Commission can do to enforce compliance with its decisions, a public report could provide some political pressure.
Before an individual can petition the Inter-American Commission, they must first exhaust all domestic remedies (though there are a few exceptions to that requirement). After receiving a complaint, the Commission determines if it is admissible and whether it has jurisdiction regarding the alleged violation. If the Commission determines there has been a violation, it will issue a preliminary report to the responsible State recommending remedial measures after which the State has a certain amount of time to respond regarding the implementation of those measures. In some circumstances, the Commission may publish the report of the violation publicly, increasing pressure on the State.
The family of a Colombian man killed in a U.S. airstrike filed such a complaint in December. The complaint, which is not public, reportedly alleged that he was subjected to an extrajudicial killing in connection with the United States’ strikes in the Caribbean. The family’s lawyer has said that they are seeking compensation for the killing and are asking for the attacks to stop. According to reports, the complaint specifically names Defense Secretary Pete Hegseth as a perpetrator and alleges that the victim was denied due process due to his extrajudicial killing.
If the Commission deems the complaint filed by family members of attack victims admissible and asserts jurisdiction, the United States could choose not to engage, forcing the Commission to make its determination based solely on the information provided by the petitioner. If the Commission eventually makes its report public in the face of U.S. obstinance, the United States could very well ignore the findings, retaliate by cutting contributions to the OAS, or impeach the legitimacy and competency of the Commission. Nevertheless, an adverse, even if unenforceable, decision by the Commission would be a meaningful public and juridical acknowledgement of U.S. lawbreaking—and a measure of accountability.
In March, the Trump administration previewed how it will likely respond to any action by the Commission that appears to favor the family’s request (e.g., finding that the Commission has jurisdiction over the complaint). The Commission held a thematic hearing in Guatemala on the U.S. strikes in the Caribbean and Pacific)–an action unrelated to the family’s petition–during which legal experts described the strikes as extrajudicial killings. In response, the State Department admonished the Commission for “acting outside its competence” and accused it of being a “pawn in a domestic litigation strategy,” referring to two pending cases in U.S. federal court. Compared to past U.S. practice, this statement was an unusually aggressive response to a thematic hearing, signalling a likely hostile reaction from the Trump administration to any future steps taken by the Commission related to this topic.
The International Court of Justice
The ICJ was established to resolve disputes between U.N. member States. The Court issues opinions in two types of cases: (1) contentious cases and (2) advisory opinions. Rulings by the Court do not result in individual accountability for State officials but serve as an important mechanism to adjudicate States’ violations of international law and curb those violations, or to authoritatively pronounce on the meaning of international law.
Contentious Cases
When bringing a contentious case to the ICJ, all States involved must in some way accept the jurisdiction of the Court. One way is through a special agreement between the States involved in a dispute to submit to the court’s jurisdiction for purposes of resolving that dispute. States may also submit to the Court’s jurisdiction over disputes arising under a particular treaty or convention (e.g., the Optional Protocol on Compulsory Jurisdiction to the Vienna Convention on Diplomatic Relations). A third option is for States to accept compulsory jurisdiction, which gives the State the right to bring any other State that has accepted the same obligation before the Court.
The United States is highly unlikely to accept the Court’s jurisdiction over any contentious case, let alone one involving the boat strikes. The United States withdrew from the Court’s compulsory jurisdiction in 1985 before the Court ruled the United States broke international law and violated Nicaraguan sovereignty when it armed and trained anti-government rebels. And in 2005 and 2018, under Presidents George W. Bush and Trump, the United States withdrew from two treaties in order to circumvent the Court’s jurisdiction. However, it is possible that a pre-existing treaty between the United States and one of the affected States may furnish jurisdiction, as was the case in the Oil Platforms Case, when Iran challenged the U.S. Navy’s destruction of three oil platforms in the Persian Gulf in the 1980s.
Advisory Opinions
Separately, the ICJ could pronounce on U.S. compliance with international law through an advisory opinion. Advisory opinions issued by the ICJ are non-binding, but still carry significant weight in informing State practice and the interpretation of international law. The U.N. Security Council or General Assembly can request advisory opinions from the ICJ on any legal question (e.g., on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in relation to the Occupied Palestinian Territory). Other organs of the U.N. may also request advisory opinions on legal questions, as long as those questions arise within the scope of their activities (e.g., on a judgment from the Administrative Tribunal of the International Labour Organization).
Given the United States’ ability to veto any measure in the Security Council, the General Assembly is the more likely of the two primary U.N. bodies to request an advisory opinion related to the United States’ extrajudicial killings in the Caribbean and Pacific. Referring the relevant questions of international law for the Court’s consideration (i.e., whether the U.S. strikes against alleged drug traffickers in the Caribbean and Pacific amount to extrajudicial killings or crimes against humanity) would require a member State or a coalition of States to propose a resolution, build momentum within the General Assembly, and lobby for its adoption by majority vote of the body. Because there is no formal procedural requirement for drafting resolutions, and advisory opinion requests can be adopted in a plenary meeting of the General Assembly (i.e., without going to a committee), the process could in theory happen very quickly with the right political support.
Recent history demonstrates that it is possible for the General Assembly to pursue advisory opinions in politically charged situations. During the last two years, the General Assembly has successfully requested two ICJ advisory opinions that the United States strongly opposed (both involving questions related to Israel’s obligations under international law).
Still, a vote to refer this situation to the ICJ would likely be more difficult given the political calculations concerning Trump’s response to such a measure. Odds are that he and his administration—already antagonistic to the U.N.—would act aggressively toward any State that might lead a referral effort. Even if that State persevered, States that voted for the resolution could be met with drastic retaliation from the Trump administration, ranging from the imposition of tariffs, to sanctions or visa restrictions.
But this kind of behavior from the United States is exactly why States should work collectively to address its violations of international law. Lawlessness under Trump will continue unabated if not responded to by a majority of U.N. member States. And his powers are not unlimited—his ability to impose tariffs was at least somewhat curbed in a February decision by the U.S. Supreme Court.
Moreover, Trump will not remain in power forever, and allowing the global rule of law to be eviscerated in the short term will have long-term repercussions for all States, most notably the middle powers and smaller States most impacted by current U.S. lawlessness. The medium- to long-term consequences should encourage States to at least consider a vote like this to push back.
The International Criminal Court (ICC)
The ICC can prosecute individuals for war crimes, crimes against humanity, genocide and, for States that have ratified the relevant amendment, the crime of aggression. The Court only has jurisdiction if the accused is a national of a State party to the Rome Statute, the alleged crime took place on the territory of a State party, or the situation is referred to the Court by the U.N. Security Council.
The perpetrators of the U.S. boat strikes are presumably all U.S. citizens and the United States is not a party to the Rome Statute, which would deprive the Court of those bases of jurisdiction. The U.S. veto makes UN Security Council referral impossible and precludes jurisdiction on that basis. That leaves the possibility of ICC jurisdiction on the basis of the targeted vessels’ States of registration. Under Article 12 Section 2(a) of the Rome Statute, properly registered vessels constitute the territory of their State of registration. The States known to have nationals who were victims of the strikes—Venezuela, Colombia, Ecuador, Trinidad and Tobago, and Saint Lucia—are all parties to the Rome Statute and their nationals are arguably victims of crimes against humanity. Assuming that the boats targeted by the United States are registered in the States whose nationals have been killed, the ICC may have jurisdiction over these crimes despite the United States’ non-party status. We cannot, however, confirm the country of registration of the boats, and this may pose a challenge for the prosecutor as well.
But the Court is likely to pay a political cost if it approves a request from the Office of the Chief Prosecutor to begin a formal investigation into the boat strikes. American animosity toward the ICC has ebbed and flowed, but dates back to the George W. Bush administration’s infamous “unsigning” of the Rome Statute in 2002. Congress subsequently passed the American Servicemembers’ Protection Act, a law that prohibits certain kinds of U.S. support to the ICC and authorizes the president to free U.S. nationals or allied personnel from the Court via “all necessary means” (hence the law’s nickname, the “Hague Invasion Act”). Bush also went so far as to require U.S. partner States to sign agreements, referred to as “Article 98 agreements,” by which they commit to never extradite U.S. nationals to the ICC.
Despite some examples of U.S.-ICC cooperation in intervening years, U.S. resistance to the ICC’s investigation into alleged crimes committed by U.S. forces in Afghanistan and crimes committed by Israel led Trump to sanction the ICC during his first term. He has been even more aggressive in his second term, sanctioning individual prosecutors and judges. All of this suggests the ICC will act cautiously—at least in the near term—with respect to any investigations involving U.S. nationals (especially while the Office of the Prosecutor is facing its own internal turmoil).
As Professor Trumbull pointed out, there is at least one relevant example of a head of State that the Court has investigated, arrested, and charged after they oversaw the systematic execution of criminal suspects: the Philippines’ Duterte. He currently sits in the Hague awaiting trial for the crimes against humanity of murder, torture, and rape committed during his “war on drugs.”
Trump’s substantially similar conduct toward alleged drug traffickers means he or other U.S. officials involved could eventually face similar treatment by the Court.
Time Favors Justice
That still leaves unanswered a question we posed above: Will anyone be held responsible?
The answer largely depends on the courts and commission we described. We think foreign domestic courts are the most likely to successfully impose some accountability. They likely have the clearest grounds for jurisdiction, are the best situated to collect evidence and secure witnesses, seem to have greater potential to develop the political will to take action, and have the benefit of time. Although the current political climate might be too challenging for many of them to proceed publicly now, they can still begin collecting evidence and pursue charges later.
Although a much more remote possibility, there is always the potential for political leadership in the United States and its orientation towards accountability to drastically change. If that happens, a future administration could of course pursue prosecutions in U.S. courts for federal crimes—the federal murder statute does not have a statute of limitations and applies on the high seas. However unlikely, it could also cooperate with a later ICC investigation.
If no one acts, the United States’ murder spree will surely embolden other bad actors and encourage more violations of international law, if it has not done so already. That is a key consequence of entrenched impunity. To deter these crimes—and ensure justice for victims—the people who commit them need to be held accountable. We hope those with the power to do so eventually muster the will.
