Most discussion of disguising the aircraft’s military character has focused on whether doing so violates the law of armed conflict (LOAC) prohibition on perfidious attack, which involves feigning protected status under LOAC to kill the enemy. This article explains that using an aircraft not marked as military in character is lawful during peacetime and that, had there been an ongoing armed conflict (there was not), the attack would not have been perfidious under LOAC. However, if conducted as reported and if an armed conflict had been underway, the operation might have violated a separate LOAC obligation requiring that only military aircraft exercise belligerent rights, such as conducting attacks.

It is important to clarify at the outset that both the first and second strikes on the boat were clearly unlawful on other grounds (see here, here, and here). Moreover, it is difficult to see any operational merit in using an aircraft that appeared to be civilian to conduct the attack, although in the face of the administration’s lack of transparency, the wisdom of doing so is difficult to assess. That said, it is telling that subsequent attacks, which were likewise unlawful, appear to have been carried out by appropriately marked military platforms.

Which Body of Law Governs?

The administration claims that the drug boat strikes took place in the context of a non-international armed conflict to which LOAC rules apply. That claim is simply wrong (see the Just Security collection of articles on the attacks). The U.S. sinkings of alleged drug boats, at least until the U.S. attack on Venezuela (and still in cases lacking a sufficient nexus to that conflict), were governed instead by international law rules applicable in peacetime. This is because neither of the two requirements for the existence of a non-international armed conflict, an armed conflict between a State and an “organized armed group,” was satisfied at the time of the attack (or any time since). As explained previously in greater depth, 1) the drug cartels and gangs concerned do not qualify as “organized armed groups under LOAC, and 2) the violence between the United States and the drug cartels and gangs had not reached the requisite degree of intensity on Sept. 2 (DoD Law of War Manual, § 17.1.1; Tadić, para. 70). 

As a consequence, LOAC rules such as the prohibitions on attacking civilians and civilian objects, the qualification of shipwrecked individuals as protected persons who are hors de combat, and the prohibition on perfidy do not apply. Instead, the strike was an “internationally wrongful act” by the United States in violation of the right to life of those aboard the boat and an act of murder by some of those involved under the domestic criminal law of States that enjoy prescriptive (lawmaking) jurisdiction over the incident, such as the State of nationality of the participants in the strike and of those who were killed (see our discussion here).

As to the aircraft that conducted the Sept. 2 strike appearing to be of civilian character, the Chicago Convention on International Civil Aviation provides that “Every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks” (art. 20). However, the Convention explicitly excludes “State aircraft,” a category that includes “[a]ircraft used in military… services” from its reach (art. 3; with limited exceptions that are not relevant here). While there is a strong peacetime practice among States of identifying military aircraft using national rondels or insignia, tail markings, serial numbers, and unit or service identifiers, there is no international law obligation dictating how State aircraft must be marked. The use of an aircraft that appeared to have civilian (civil) status to mount the attack made it no more unlawful than it already was.

Did the Attack Violate the Perfidious Attack Rule? (had there been an armed conflict)

As noted, there was no armed conflict, and therefore, no violation of the prohibition on perfidious attack. However, even if an armed conflict had been underway, the use of an aircraft that appeared to be civilian would not, in the attendant circumstances, have qualified as a perfidious attack. 

There is universal agreement that under customary law, it is prohibited to kill or wound the enemy by resorting to perfidy (§ 5.22.2; see also ICRC Customary IHL study, rule 65). The DoD Law of War Manual defines perfidy as “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence” (§ 5.22.1). A long-standing prohibition (see, e.g., 1863 Lieber Code, art. 16; 1899 Hague II and 1907 Hague IV Regulations, art. 23(b)), in treaty law, it is found in Article 37(1) of the 1977 Additional Protocol I for Parties to the instrument (the United States is not a Party). That provision extends the prohibition to perfidious capture. 

The applicability of the rule in non-international armed conflict is not entirely settled, an important point in light of the (flawed) U.S. claim that the attack occurred in that context. The DoD Law of War Manual discusses perfidious attack only in the context of an international armed conflict (conflict between States), although it does not expressly exclude application in a non-international armed conflict. However, the prevailing, and better, view is that it is likewise barred in such conflicts, with the ICRC setting out strong support for that position in its Customary International Humanitarian Law study’s catalogue of practice. This is also the conclusion of a study by the International Institute of Humanitarian Law (NIAC Manual, § 2.3.6). And the Rome Statute of the International Criminal Court includes perfidy as a war crime in both international and non-international armed conflict (arts. 8(2)(b)(xi) and 8(2)(e)(ix), respectively).

There is no question that civilian status is among the protected statuses that may not be feigned to attack the enemy. Indeed, “feigning civilian status and then attacking” is one of the five examples of perfidious attack in the DoD Law of War Manual (§ 5.22.3). And there is equally no question that the rule extends to aircraft. The international group of experts who prepared the HPCR Manual on the International Law Applicable to Air and Missile Warfare (Harvard AMW Manual) concluded that “[i]t is perfidious for a military aircraft to feign the status of a civilian aircraft,” giving as examples “painting civilian markings on a military aircraft” (commentary to rule 114(b); The Harvard AMW Manual confirmed that leveraging perfidy to “kill or injure an adversary” is unlawful in the aerial environment (rule 111). The Canadian Law of Armed Conflict at the Operational and Tactical Levels manual likewise provides that “using false markings on military aircraft such as the markings of civil aircraft” is among the “examples of perfidy in air warfare if a hostile act is committed” (§ 706(3)(a)). 

The aircraft at issue in the Sept. 2 U.S. strike did appear to be a civilian aircraft. And, while it was apparently squawking its military status, those aboard the boat that it was engaging would have been unable to acquire that signal. However, that does not end the analysis. There are two reasons the Sept. 2 attack would not constitute perfidy had it occurred during an armed conflict (as a reminder, it did not). 

First, a perfidious attack requires a specific intent. As noted in the DoD Law of War Manual, “The key element in perfidy is the false claim to protections under the law of war in order to secure a military advantage over the opponent” (§ 5.22.1, emphasis added). That military advantage can, for instance, be catching the enemy unaware or preventing the enemy from realizing the need to flee. 

Operationally, it is difficult to imagine how such military advantages could have played a role in the U.S. decision to use the aircraft. As has been demonstrated in the 35 drug boat strikes to date (and surely would have been apparent at the time of the first strike at issue here), U.S. forces can attack them with impunity, without risk, and with great tactical success. While it is true that the Sept. 2 strike was the earliest, it is hard to imagine why a very robust force would be concerned that a boat in transit that already had been located by U.S. forces might be able to get away if it spotted a military aircraft in the area, and that therefore they had to employ one appearing to be civilian to lull the crew into complacency. And in terms of vulnerability to attack from those aboard the boat lest they be alerted, it is unlikely that the boats posed much of a threat to intercepting aircraft or vessels had they been identifiable as military platforms – that is, reporting to date has not indicated the boats were armed with weapons that could have posed such a threat. Therefore, it is highly unlikely that the U.S. armed forces conceived a plan to sneak up on the drug boats to execute the strike successfully. This being so, the operation would not amount to perfidy had there been an armed conflict.

A second possible reason is that perfidious attack is limited to circumstances in which the specific intent is to feign protected status in order to kill or wound persons. The prohibition arguably does not extend to actions targeting objects; in other words, killing or wounding must be the intention, not the consequence. As noted in Bothe et al.’s New Rules for Victims of Armed Conflict commentary on Article 37, “sabotage or the destruction of property as such through the use of perfidious deception is not prohibited (page 234; see also Dinstein, page 305).

By this interpretation, even if the U.S. forces intended to feign civilian status to trick the boat crew, if the boat allegedly laden with drugs was the target, not the crew, the requisite intent may not have been present. True, those aboard the boats were almost certainly going to be incidentally killed or wounded. However, if the mission was solely to stop the shipment of drugs, not to deprive the cartels or gangs of those who transport them, that would be relevant to application of the perfidy rule. 

Despite the lack of access to all the facts, the intent requirements described above would seem to preclude characterization of the use of the seemingly civilian aircraft to mount the Sept. 2 attack as perfidy (again, assuming the prohibition on perfidy applies during non-international armed conflict and according to the erroneous U.S. view that such a NIAC was ongoing).

Was the Use of the Aircraft to Conduct the Attack Lawful?

It is well-settled in international law that “only military aircraft are entitled to engage in attacks in armed conflict” (DoD Law of War Manual, § 14.3.3.1; see also UK LOAC Manual, ¶ 12.34). This long-standing rule is based on the authoritative, albeit non-binding, 1923 Hague Rules of Air Warfare (art. 13). 

The Harvard AMW Manual experts agreed with the rule in principle, but concluded that it did not bar the use of civilian aircraft during non-international armed conflict, which the administration (wrongly) claims to have been engaged in on Sept. 2 (Harvard AMW Manual, rule 17(a) commentary). To support its position, it pointed to the use of law-enforcement aircraft during such conflicts. 

No such caveat appears in the DoD Manual, even though it post-dated the AMW project. Similarly, the UK Law of Armed Conflict Manual fails to distinguish the application of the rule in international and non-international armed conflict. And the German Law of Armed Conflict Manual appears to accept the rule in all armed conflict, noting, “Only military aircraft are entitled to conduct air operations. This also applies to all enforcement actions that do not in themselves entail the use of weapons such as intercepting, diverting or forcing to land other aircraft for the purpose of inspection” (¶ 1115).

If the Harvard AMW experts are right, there would be no violation of the limitation. But if the rule applies to all armed conflicts, the question becomes whether the aircraft is of military character. 

The Harvard AMW Manual experts defined a military aircraft as “any aircraft (i) operated by the armed forces of a State; (ii) bearing the military markings of that State; (iii) commanded by a member of the armed forces; and (iv) controlled, manned or preprogrammed by a crew subject to regular armed forces discipline” (rule 1(x), rule 13(j)). The requirement of being marked is based on the Hague Rules of Air Warfare (art. 3). 

The UK’s LOAC manual is in agreement with the marking requirement (¶ 12.10), as is the Canadian Law of Armed Conflict Manual (§ 704) and the German manual(¶¶  349, 1103). By these standards, the aircraft’s failure to be marked as military precludes its qualification as a military aircraft, and therefore it was unlawful for it to exercise the belligerent right of conducting attacks (again, assuming the limitation applies in a non-international armed conflict, and that such a conflict was in fact occurring, which it was not).

Interestingly, the DoD Law of War Manual takes a broader approach: “Military aircraft may be understood as aircraft that are designated as such by a State that operates them. The United States has not ratified a treaty that requires certain qualifications before an aircraft may be designated as military aircraft.” It cautions that while “[m]ilitary aircraft are customarily marked to signify both their nationality and military character … circumstances may exist where such markings are superfluous” (§ 14.3.3). In explanation of when such marking may be superfluous, a footnote cites as an example situations in which “no other aircraft except those belonging to a single state are flown” (citing the 1976 Air Force Pamphlet 110-31). 

Yet, it merits note that the Air Force Pamphlet cited by the DoD’s Law of War Manual also states that “while engaging in combat operations, military aircraft, as entities of combat in aerial warfare, are also required to be marked with appropriate signs of their nationality and military character” (§ 7.4, emphasis added). In other words, it appears that despite the mention of situations in which marking is superfluous in the DoD Law of War Manual, the U.S. position tracks those of other States vis-à-vis the circumstances at hand. At least with respect to belligerent rights, such as the right of attack, the aircraft concerned must be appropriately marked as military.

Conclusions

From the analysis above, a number of conclusions can be drawn about the Sept. 2 use of an aircraft to conduct the attack on the alleged drug boat.

1. As there was no armed conflict, the law of armed conflict, including the prohibition of perfidious attack, was inapplicable. Instead, the U.S. attack violated the right to life of those aboard the boat and may have constituted murder by some of those involved.
2. As the incident did not occur during an armed conflict, there was no requirement to mark the aircraft as a military aircraft.
3. Had the law of armed conflict applied because the situation qualified as an armed conflict (it did not), the rule prohibiting perfidious attack would not have applied since U.S. forces likely did not intend to deceive the adversary to secure a military advantage.
4. Even if U.S. forces did want to deceive those aboard the boat to achieve a military advantage, the prohibition on perfidious attack arguably only applies to situations in which the goal is to kill or wound, not to damage or destroy objects like drugs and boats transporting them (which may have been the case in this strike).
5. Only military aircraft may conduct attacks during an international armed conflict. Whether this rule applies to non-international armed conflict is less settled.
6. To qualify as a military aircraft during an armed conflict, the prevailing view is that aircraft must be marked as such, at least while engaged in combat operations. 
7. If the limitation of attacks to military aircraft applies during a non-international armed conflict, and such a conflict had been underway (it was not), the use of an unmarked aircraft to conduct the Sept. 2 attack would have been a LOAC violation.

The confused and confusing discussion that resulted when the use of a military aircraft to conduct the Sept. 2 attack came to light underscores the importance of first identifying the applicable body of law before rendering legal analysis. It also drives home the unintended knock-on consequences of asserting unsupportable legal claims, as this administration has repeatedly done. Indeed, but for its legally incorrect claim that a non-international armed conflict was underway at the time, the use of an aircraft that was not marked as military would have raised no additional legal issues at all beyond the unlawfulness of the strike itself. 

The post Using an Unmarked Aircraft to Attack an Alleged Drug Boat: Is it Perfidy? appeared first on Just Security.

It was only a few months ago in September that Maduro bragged that China had given him a phone that “the Americans can’t hack…neither their spy planes, nor their satellites.” In the end, it may not have mattered because apparently the CIA already had a spy in Maduro’s inner circle and a team on the ground that had been tracking his every move since August. But the sophisticated operation to capture Maduro revealed an even broader U.S. intelligence effort. Based on the statements of American officials and summary of events by General Dan Caine, the Chairman of the Joint Chiefs of Staff, the operation required the full panoply of U.S. intelligence capabilities, including human intelligence, geospatial intelligence, signals intelligence, and even potentially cyberattacks. 

Going forward, intelligence has a central role to play in capitalizing on the successful capture of Maduro and stabilizing post-Maduro Venezuela. It can demonstrate U.S. capabilities and resolve against several of America’s foremost state adversaries, and it can deal a serious blow to the illicit drug trade and finances of non-state actors like Hezbollah and cartels. A U.S.-aligned Venezuela would be an enormous asset and ally in the contemporary era of geopolitical conflict and competition. But this will not be easy. The great test for American intelligence in Venezuela will be if it escapes the historical cycle that so many are predicting will follow.

A Warning About Shadow Wars

American intelligence success underscored more than just Venezuelan intelligence failure because Maduro received intelligence, military, and technological support from China, Russia, Iran, and Cuba. Cuba even acknowledged that thirty-two members of its armed forces and intelligence services were killed in the raid, possibly protecting Maduro himself, in what is undoubtedly an embarrassing debacle for Cuban counterintelligence. In a rare admission, two Chinese military affairs experts highlighted several competencies and advantages the United States demonstrated in executing the mission, including evading the Russian-provided Venezuelan air defense system and recruiting Venezuelan officials as intelligence assets. Surely, Operation Absolute Resolve should go down in the history books as a stunning victory for American intelligence.

Not so fast. Intelligence, regime change, and Latin America? Venezuela has all the makings of another intelligence-spearheaded scandal, echoing several that happened in the twentieth century—from Guatemala to Cuba to Chile to Nicaragua. For a country haunted by the recent ghosts of Afghanistan and Iraq, and the more distant ghosts of the Cold War in Latin America, Maduro’s capture now has Americans wondering, what happens next? If the United States cannot help stabilize Venezuela, then Maduro’s capture will enter the annals of history as another example of a failed U.S. intelligence coup in Latin America.

In a press conference on the operation, President Donald Trump announced that the United States would “run” Venezuela, adding that he was not afraid to put “boots on the ground.” But recent polling revealed little public support for an American invasion of Venezuela and the administration’s new National Security Strategy specifically eschews “imposing…democratic or social change,” suggesting just as little presidential appetite for a military occupation or nation-building effort in Venezuela. Intelligence could offer a lower risk way to advance U.S. interests. But one of the warnings of history is that intelligence and covert action have led to deeper U.S. entanglement and prolonged shadow wars for the United States in countries where other states are determined to protect their clients or are contesting American efforts to install a friendly government. The key will be for the Trump administration to use intelligence to control mission creep in Venezuela and for the U.S. Intelligence Community (IC) to support the administration with analysis and operations that keep U.S. foreign policy goals in Venezuela measured, attainable, and credible. 

The Trump administration will need to leverage the intelligence advantages revealed by Operation Absolute Resolve because it is doubtful Russia, China, Iran, Cuba, or non-state actors like Hezbollah or drug cartels will allow the United States to displace them in Venezuela without a fight. Everyone involved will be looking to exploit the power vacuum created by Maduro’s removal. The question will be whether the United States can successfully keep this struggle contained to the shadows without having to call in the military as an occupying force. Perhaps the most common perception of an intelligence-led shadow war involves paramilitary operations, which, historically speaking, can get ugly. Some observers are already predicting chaos in Venezuela. Street and jungle firefights between U.S. and foreign-supported proxies, political assassinations, and human rights abuses are all possibilities that the United States must avoid at all costs. This might not be easy with so many actors ready to be spoilers in any American plans for a post-Maduro Venezuela. 

Intelligence in the Lead

Succession is the big question facing both Venezuela and the Trump administration right now. A classified CIA report concluded that Maduro holdovers would be best positioned to head the new Venezuelan government. Nonetheless, the United States could lend intelligence support and protection for Venezuelan opposition figures, for example, María Corina Machado, who might be targeted based on the danger they pose to entrenched interests, like U.S. intelligence helped foil Russian attempts to assassinate Ukrainian President Volodymyr Zelenskyy. Aside from possibly turning members of Maduro’s inner circle into assets, the IC will have to continue analyzing both Maduro heirs apparent and opposition figures to prepare the Trump administration for future negotiations and possible changes in the government. Leadership analysis could shape other covert efforts, for instance, information campaigns to influence public opinion or elections to replace the government with one more amenable to working closely with the United States. The IC will also have to fend off competing efforts by adversaries to extend their influence over Venezuela’s new government. Furthermore, Maduro’s capture could expose internal rifts within Venezuela’s military and intelligence services that the IC could exploit to develop new assets and liaison partners. 

Regardless of who is in charge, the United States faces a Venezuelan state thoroughly compromised by both state and non-state counterintelligence challenges. As a preliminary measure, the Trump administration is already pressuring Venezuela’s interim government to expel all suspected intelligence officers from China, Russia, Cuba, and Iran. The IC will also have to identify spies for these states in the Venezuelan government and corrupt officials who have been co-opted by groups like Hezbollah and cartels. Acting President Decly Rodríguez has apparently ordered the arrest of U.S.-sanctioned Major General Javier Marcano Tábata, the director of military counterintelligence and head of presidential security, but his replacement by another U.S.-sanctioned general who was responsible for brutal crackdowns on protestors in 2014, will alarm human rights advocates. Venezuela could already be headed toward the Cold War-era model where the United States supported abusive, reactionary governments as long as they advanced American interests.

The problem is not only the people, but also the military and intelligence infrastructure positioned by foreign states in Venezuela. The Chinese telecom giant, ZTE, constructed a database for Venezuela modeled on elements of China’s social credit system to help extend government control over the population. China has supported Venezuela with radar and satellite technology as part of its growing space and surveillance foothold in the Western Hemisphere and Russia supplied Venezuela with its aerial defense system, even though both proved vulnerable to the U.S. military in Operation Absolute Resolve. Nonetheless, they are an area of access and influence for those states. Additionally, helping the new Venezuelan government roll back its dependence on Chinese and Russian technology is as much a U.S. national security imperative as a Venezuelan one because they are likely compromised and can provide information to foreign governments about U.S. intelligence operations in Venezuela. American intelligence officers therefore not only have to worry about the people they are working with, but also the systems in place. So, even a friendlier Venezuelan government does not mean it will be a friendlier operating environment for American intelligence.

The IC will also need to play a role in securing Venezuelan economic infrastructure. In the press conference following the operation, President Trump suggested U.S. oil companies would invest in and rebuild Venezuela’s oil infrastructure, which would be a pillar of any new Venezuelan government’s efforts to restore its economy and establish its legitimacy with the Venezuelan people. More recently, the Trump administration is insisting Venezuela sever economic ties with Russia, China, and Iran. These states undoubtedly do not want to see Venezuela’s considerable oil, mineral, and precious metal wealth come under American control. The IC would have to work with private sector U.S. companies on physical and cyber security to protect oil, mineral, and precious metal infrastructure from state-sponsored sabotage. Foreign investment to rebuild Venezuela’s crumbling energy and mining sectors will be critical to the country’s future, but companies will only want to invest if they consider it safe to do so. 

Violent non-state actors including Hezbollah and drug cartels have used Venezuela as a safe haven and base of operations. Russia, China, and Iran may exploit these non-state actors, and their willingness to use violence, to destabilize Venezuela. Moreover, these groups have their own economic interests in Venezuela, and it will be difficult to avoid bloodshed if the Venezuelan government attempts to root them out. The United States may revive elements of the Plan Colombia playbook, which was an agreement reached between the U.S. and Colombian governments to help the latter restore order after decades of instability created by non-state actors like drug cartels and the FARC. Economic development and intelligence support were central to the plan. In this respect, the Treasury Department’s Office of Intelligence and Analysis will play as big a role as any in the IC to identify, target, sanction, and disrupt foreign state and non-state actors engaging in criminal enterprises in Venezuela. Although political and military covert action always command more of the public’s attention, economic covert action could actually eclipse them in the shadow war over Venezuela’s future. 

Stabilizing Venezuela and securing American interests there will require tackling not only the state and non-state actors that can threaten reconstruction but also lingering corruption in the post-Maduro Venezuelan government. The IC can aid the U.S. government’s effort to transparently and successfully prosecute Maduro for his crimes. The prosecution will need access to intelligence collected on Maduro’s connection to drug cartels and narcoterrorist groups. This case could also present a foundation for anti-corruption investigations and trials in Venezuela that could restore public trust in the government.

From Covert Action to Public Accountability

The operation to capture Maduro was all the more remarkable as an intelligence success because it remained secret until its execution. This was quite an achievement for the second Trump administration, which suffered from pervasive leaking in its first administration. However, the Trump administration only informed the “Gang of Eight” after the operation was underway, and Democratic lawmakers are already claiming they were misled about the administration’s plans in Venezuela. The IC will be called upon to account for its activities at congressional hearings on the Maduro operation and the Trump administration’s policy for a post-Maduro Venezuela. The IC will have to resist pressure to politicize intelligence to suit either the Trump administration or opposing lawmakers. Resisting politicization also includes avoiding leaks from classified hearings or materials given to members of Congress, which could directly affect ongoing intelligence operations in Venezuela, like those that plagued previous American covert action operations in Latin America during the Cold War. 

That said, the IC should be as transparent as security permits precisely because secret intelligence operations in Latin America were the source of so much scandal and public outcry in other periods of American history. Immediately after Maduro’s capture, disinformation began to flood social media. The IC, which already struggles with countering disinformation and advancing its own narrative, will face disinformation operations designed to undermine global and domestic public trust in the U.S. government’s activities in Venezuela. Undoubtedly, foreign intelligence services will commit many of the same sins or worse that they will accuse the United States of in Venezuela, just as they did in the Cold War. The IC will have to work with both the Venezuelan and American governments to manage the information environment. Ultimately, the only thing worse than disinformation is information based on real abuses, so the IC must avoid repeating the mistakes it has made in other Latin American countries. The United States and its intelligence community have succumbed to these mistakes in the past, so the real test of resolve is yet to come. 

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Numerous officials in the Trump administration have publicly acknowledged that this named military operation was inherently risky (calling it “very dangerous” and “audacious”). It involved approximately 200 U.S. personnel on the ground in Caracas. There were, as would be expected in an operation of this nature, fire fights between U.S. forces and opposing forces, involving both Venezuelan and Cuban military forces. What’s more, the operation took place in the context of an extensive military build-up in the region, coupled with threats against Maduro to cede power, as well as an ongoing U.S. naval blockade of Venezuelan oil tankers. (The threats and blockade continue today.)

Among the many questions immediately raised by the named Operation Absolute Resolve is: did the president have the authority under U.S. law to undertake this dramatic, forcible military operation without congressional authorization? In the Q&A below, we explain why he did not. The analysis is similar to one that two of us published in 2019, and updated in 2025, regarding the unilateral use of military force against Iran.   

As we explained then, “there are only two sources of authority for the use of force abroad – the Constitution and congressional authorizations for the use of military force (or AUMFs).” There is clearly no statute passed by Congress that could authorize the use of military force against Venezuela, nor is anyone claiming such authorization exists. 

The question, then, is whether the President had authority under Article II of the Constitution to order this operation without Congress’ authorization. We believe the answer is no, based on the nature and location of the operations, the expected (and realized) risk of U.S. casualties, the known risks of escalation, the operation’s purpose of removal of a sitting head of State, the use of lethal force against two States’ security forces, and the context of other military actions (threats of force, naval blockade) before, during, and after the operation took place.

Alongside the lack of congressional authorization, we also note the President’s constitutional obligation to “take Care that the Laws be faithfully executed,” was also breached because the operation violated the prohibition on the use of force in the U.N. Charter. (See Goodman’s analysis including Congress’ long expressed interest in the President’s complying with such treaties).

1. Did the president need authorization from Congress to use U.S. military force against Venezuela?

Debate on the scope of the president’s authority to use military force without congressional authorization is not new, and interbranch disputes on this question have persisted under recent administrations of both political parties (from Obama to Trump, this includes uses of force or deployments in Libya, Yemen, Syria, and Iran). Congress has typically taken a more limited view of the President’s unilateral authority to use military force and has pushed back on presidential claims in many cases (often in bipartisan resolutions, none of which were enacted due to presidential vetoes or failure to garner sufficient votes). Meanwhile, the executive branch’s much broader approach has continued to expand the purported zone of unilateral authority in recent years. As we previously explained:

The executive branch, through consistent historical practice in Republican and Democratic administrations, and as reflected in a series of opinions by the Justice Department’s Office of Legal Counsel (OLC), has taken a relatively expansive view of the president’s Article II authority to initiate the use of force, arguing that it has the ability to do so when: (1) there is an important “national interest” in doing so (Curtis Bradley and Jack Goldsmith have explained that this has become a very expansive concept in modern practice; Marty Lederman has suggested the concept should be understood as limited to significant national interests that have historically supported such unilateral actions in the past); and (2) the use of force does not constitute “war” in the constitutional sense.

The latter limitation is because Article I of the Constitution delegates the power to “declare war” to Congress. The executive branch has argued, in essence, that if the expected “nature, scope, and duration” of the military engagement falls below the threshold of “war,” the president may use force without congressional authorization. In the OLC’s view, “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” The OLC opined most recently that the limited strikes against Syria by the United States in response to Syrian President Bashar al-Assad’s use of chemical weapons did not cross this threshold. Prior OLC opinions reached a similar conclusion with respect to U.S. military strikes in Libya in 2011, and U.S. military activities in Haiti in the 1990s, among others.

[…]

The framers of the Constitution gave the authority to declare war to Congress, as well as the authority to raise and support armies, provide and maintain a Navy, provide for the common defense, regulate detention and seizure of vessels in war, and a host of other powers related to war and foreign affairs, in part to prevent the United States from being drawn into conflict for unpopular purposes or without debate and consideration by the representatives of the people. The Constitution’s design anticipates that Congress would be less inclined to go to war than the executive branch — this is a feature, not a bug. (Of note, it has long been understood that even though Congress has the lion’s share of authority in war-making, the president does have at least some concurrent if not exclusive authority in regard to the conduct of hostilities and to use force to repel a sudden attack on the United States.)

What’s more, even in the OLC’s view, the threshold for “war” in the constitutional sense is more easily met when the use of force at issue is against another nation state (rather than in its territory but with its consent) where there is a high likelihood of escalation.

Applying even the OLC’s expansive view from its recent opinions to Operation Absolute Resolve, the Executive action clearly crosses the threshold for requiring congressional authorization.

Extensive U.S. objectives: As we mentioned in the Iran context, the U.S. objectives for the use of force factor into the analysis. In the Venezuela case, there was a clear objective of removing the sitting head of State from his own territory. This distinguishes the operation from the strikes in Syria or Iran, which did not have regime change objectives (despite, of course, open U.S. hostility toward those regimes). Based on statements made by the President and his cabinet, the Venezuela operations’ objectives appear relatively open-ended, with Congressional leaders expressing concerns about the lack of a defined scope. The President has continued to threaten senior Venezuelan government officials with the use of additional military force if they do not meet U.S. demands.

Risk of escalation: With respect to the risk of escalation, Operation Absolute Resolve involved the use of force against the security forces of two States – Venezuela and Cuba. Both of those states are our geographic neighbors (unlike Libya, Syria, or Iran).   A factor in the OLC’s analysis is whether a military operation would “inflict substantial casualties as a result of the deployment,” and the January 3 operation reportedly resulted in 80 killed in action.

The operation reportedly killed 32 members of Cuban security forces deployed in Venezuela on a military mission. Dozens more Cuban service members are thought to have been injured or suffered severe burns during the U.S. operation, according to the Wall Street Journal reporting. 

The administration was presumably aware Cuba’s security forces would get caught up in the fight. Two Delta Forces had reportedly established “a ‘pattern of life’ on Maduro in advance of the operation, mapping out his location and daily movement.” A CIA team located in Caracas for months was reportedly able “to map out minute details about his routines.” On Jan. 4, Sec. Rubio stated, Maduro’s “entire, like, internal security force, his internal security apparatus is entirely controlled by Cubans. … It was Cubans that guarded Maduro.  He was not guarded by Venezuelan bodyguards. He had Cuban bodyguards.”

In addition, the operation anticipated a second wave of attacks, according to the President. And he has explicitly stated that the second wave could still occur. The President said on Jan. 3, “We’re prepared, we were prepared to do a second wave. … We were out there with an armada like nobody has ever seen before. And we’re prepared, and we were prepared. Frankly, probably thought we were going to have to do it, but we were prepared for a second wave going in.”

As a matter of international law, the “international armed conflict” initiated by Operation Inherent Resolve persists (see #6 in this Expert Q&A). That’s in part because the United States maintains a massive force in the area (“one of the largest naval deployments in modern history,” Sec. Rubio recently stated), and the President continues to threaten to use further military force if Venezuelan authorities do not “cooperate” with U.S. demands. Additionally, the United States maintains enforcement of a military quarantine of sanctioned Venezuelan oil tankers.

[For the law on when a blockade involves an act of war and “aggression” under international law, see Michael Schmitt and Rob McLaughlin, Blockading Venezuela: The International Law Consequences.]

These are all factors that would weigh in the OLC assessment of whether the military action involves “‘prolonged and substantial military engagement”of U.S. forces. It clearly does.

Risks to U.S. personnel: Two of the most expansive executive branch opinions in recent years (Libya and Syria) have justified the President’s ability to engage in military operations without congressional authorization on the basis that the operations involved no U.S. troops on the ground and thus placed no American service members’ lives at risk. 

Operation Absolute Resolve placed a significant number of U.S. forces in harm’s way. According to the President, two service members were wounded and one helicopter was struck. U.S. officials have since acknowledged about half a dozen soldiers were injured in the overall operation (other reports put it at seven). “Even though Venezuelan air defenses were suppressed, the U.S. helicopters came under fire,” the New York Times reported.

Given the nature and scope of the operation, there was of course a risk that casualties could have been more extensive. As President Trump stated in remarks on Jan. 3, “It was an operation against a heavily fortified military fortress in the heart of Caracas.” He later added, “This is a very dangerous attack. This is an attack that could have gone very, very badly.”

Aboard Air Force One, the President also acknowledged his awareness of the “great danger” in advance:

“I knew the possible danger. It was a very dangerous operation. It was amazing that we had a few injured, but all are in good shape right now. But I knew there was great danger. They got off the helicopters, and the helicopters were being shot at. They got on the ground. Amazing, amazing talent and tremendous patriotism, bravery. The bravery was incredible. They got off the helicopter, and the bullets were flying all over the place.”

The Chairman of the Joint Chiefs of Staff stated:

“This was an audacious operation. … Failure of one component of this well-oiled machine would have endangered the entire mission and failure is never an option for America’s joint force. Those in the air over Caracas last night were willing to give their lives for those on the ground and in the helicopters.”

“There were multiple self defense engagements as the force began to withdraw out of Venezuela,” the Chairman added.

Paradoxically, Secretary Rubio stated that the “number one reason” for  failure to notify Congress was “operational security.” It “would have put the people who carried this on …  in harm’s way,” the secretary said. He then thanked the press for not reporting about the operation in advance, because “lives could have been lost. American lives.”

2. But wasn’t this a law enforcement action, not a use of military force? Can’t the president order the military to assist with law enforcement operations without congressional approval?

This was a named military operation (“Operation Absolute Resolve”) that also had a law enforcement function. The two are not mutually exclusive. (Secretary of Defense Hegseth described it as a “joint military and law enforcement raid.”)  The President does have some unilateral constitutional authority to defend U.S. nationals in peril, including U.S. law enforcement personnel. 

Of course, any peril U.S. law enforcement officials or U.S. forces may have faced was a direct result of the U.S. operation itself – there was no attack by Venezuelan forces, actual or imminent, on U.S. nationals, armed forces, or other personnel (as opposed to other U.S. operations conducted without congressional authorization that had the goal of protecting U.S. persons or property, rescuing nationals in peril, evacuating U.S. embassies, and the like).   

Moreover, the use of military force here was undeniable and extensive, and is arguably ongoing given the U.S. naval blockade still in effect against Venezuelan oil tankers and continuing threats of further military force against Venezuela’s government. These latter actions are not related to any law enforcement purpose.

3. Does the use of military force need to be consistent with U.S. international legal obligations? 

Yes. This is an important limitation on the use of military force, whether authorized by Congress or not. The United States has ratified the UN Charter (which it also helped to draft and negotiate), making it the “supreme Law of the Land” under the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution. Thus, whether acting under Article I or Article II authority, the United States must comply with the UN Charter as a domestic law matter (in addition to the importance of meeting its obligations as an international law matter, which is discussed by two of us along with Mike Schmitt here). 

Article 2(4) of the UN Charter prohibits the use of force “against the territorial integrity or political independence of any state,” except if authorized by the UN Security Council (clearly not applicable here) or in self-defense as enshrined in Art. 51 of the UN Charter and customary international law. There is no plausible self-defense rationale for Operation Absolute Resolve, and to our knowledge none has been given by the Administration. (It is also important that under international law, even if the United States acts in self-defense, the U.S. response must be necessary and proportionate, though analysis of those requirements is not pertinent where there is no viable underlying self-defense claim).

Finally, as we have previously explained, “the president is charged in Article II of the Constitution to “take care” that the laws are faithfully executed.” This includes the  U.N. Charter obligations described above. 

As supreme Law of the Land, it would require an act of Congress to supersede the UN Charter (the so-called “last in time rule”). In other words, it is Congress’ prerogative. The President  cannot do so alone.

[For more on this issue, see Ryan Goodman, Maduro Capture Operation and the President’s Duty to Faithfully Execute U.N. Charter.]

4. Hasn’t the President used force to seize a foreign president before without congressional authorization?

Yes, but that does not make it lawful, and there are also meaningful differences here. In 1989, President H.W. Bush ordered a military operation to capture General Manual Noriega, then the military dictator of Panama. Among other stated rationales, President George HW Bush emphasized that a primary purpose of the operation was protection of U.S. nationals following forces under Noriega’s command having “killed an unarmed American serviceman; wounded another; arrested and brutally beat a third American serviceman; and then brutally interrogated his wife, threatening her with sexual abuse.” Secretary of State James A. Baker also stated, “We received an intelligence report that General Noriega was considering launching an urban commando attack on American citizens in a residential neighborhood.” As the War Powers Resolution report to Congress said at the time: “The deployment of U.S. Forces… was necessary to protect American lives in imminent danger…”. While some have criticized these rationales as a pretext for action in Panama, they did not exist at all in Venezuela.  

Operation Absolute Resolve was not intended to rescue or protect U.S. nationals in imminent peril, which was one of the primary stated goals of the Panama operation that removed Noriega from power. It was aimed at removing the Head of State (even if doing so also had a law enforcement purpose of bringing Maduro and his wife to the United States to stand trial on federal drug trafficking and weapons possession charges).  

Panama, on the other hand, was understood by the Executive Branch as “responding in self-defense to an imminent threat to U.S. lives when it took military action in Panama,” according to the Office of Legal Counsel. (The OLC has also emphasized that the action was justified by the United States as a necessary and proportional action in self-defense under the U.N. Charter.)

5. What can Congress do if it disagrees with the president’s decision to use military force unilaterally? 

We described a range of measures Congress can take in our earlier Q&A:

Congress has a number of tools at its disposal to constrain the president’s ability to use force unilaterally. Even in the OLC’s view, the president’s ability to use force without congressional authority can be checked if Congress decides to impose restrictions. While past attorneys general and the OLC have determined the president has the power to use military force abroad to protect important national interests and below the threshold of “war” in the constitutional sense, as discussed above, “[t]his independent authority of the President … exists at least insofar as Congress has not specifically restricted it,” the OLC wrote in 2011.

Among the options available, use of Congress’ “power of the purse” is the most potent and likely the clearest mechanism:

Congress’ appropriations power is one of the most potent tools to restrict presidential action. In 2018, the OLC opined that the significant powers vested in Congress by the Constitution “ensure that the use of force ‘cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action.’ … These powers further oblige the President to seek congressional approval prior to contemplating military action that would bring the Nation into a war.”

[…]

It is precisely this type of action — the cutting off of funds for specific uses of force, which relies on Congress’ constitutional appropriations power — that would put Congress on its strongest footing to assert authority over the use of force abroad, and would put the president’s authority at what the Supreme Court has described as its “lowest ebb.” The clear intent of this proposed amendment is to prevent the executive branch from drawing the United States into a war without a congressional vote to specifically authorize it, which is particularly important given that senior Trump administration officials are considering justifying a use of force against Iran on purported congressional authorization in the 2001 AUMF.

Finally, an amendment like this could be passed even after an initial use of force, making clear the president does not have authority to continue using force absent congressional authorization.

Congress has all of these options at its disposal today. A bipartisan, privileged measure pursuant to the War Powers Resolution will likely come for a vote as soon as this week.

The post Congress, the President, and the Use of Military Force in Venezuela appeared first on Just Security.

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.

The post The International Law Obligation to Investigate the Boat Strikes appeared first on Just Security.

The problem is that the accord already has been in deep trouble. The Washington Peace Agreement Trump showcased is not new; it ratifies the same deal that has technically been in force since June 27. At the most generous, the new signing perhaps elevates the agreement, this time with a ceremony at the newly renamed Donald J. Trump U.S. Institute of Peace. The June Rwanda-DRC accord, signed at the time at the State Department and celebrated in a meeting afterwards with Trump at the White House, sketched a pathway to de-escalation, regional cooperation, and relief for millions of Congolese civilians. In practice, however, it has done little to change the trajectory of the war.

The main pillars of the deal are: ending hostilities, withdrawing foreign forces, enabling the safe return of displaced people, restoring humanitarian access, reinforcing multilateral peacekeeping, advancing accountability, and demobilizing armed groups. But implementation has faltered or stalled across all those objectives. The situation in eastern DRC is deteriorating, not stabilizing. That reality is the context in which Trump’s involvement must be assessed.

A Peace Deal Already on Life Support

The June agreement followed an earlier declaration of principles that pledged respect for sovereignty and territorial integrity, addressed security concerns, and envisioned regional economic integration and the return of refugees and internally displaced people. It was meant to reset relations between Rwandan leaders in their capital, Kigali, and Congolese leaders in Kinshasa, as well as requiring them to curb support to armed groups, and creating a framework for a broader settlement.

Formally, that framework has been binding since the June 27 signing. Yet core commitments — most importantly the cessation of hostilities and an end to support for non-state armed groups — remain unfulfilled. Within days of the June signing, heavy fighting resumed across North Kivu, South Kivu, and Ituri provinces, which have been at the heart of United Nations peacekeeping mandates for close to two decades and where more than 5 million of the country’s 6.9 million internally displaced people are sheltering. In July alone, violence left well over a hundred civilians dead in areas under the control of M23, the Rwanda-backed rebel force that is in the process of signing a parallel deal with the DRC, mediated by Qatar.

Diplomacy has not arrested the slide. In July, under the Qatari mediation, leaders of the DRC and M23 signed a Doha declaration with an “immediate” ceasefire due to go into effect no later than July 29 and a commitment to reach a comprehensive agreement by mid-August. The ceasefire collapsed within days; the deadline came and went without a durable deal. On Nov. 15, the DRC and M23 signed yet another framework for peace in Qatar. The next day, M23 seized additional territory in South Kivu.

Meanwhile, the joint security coordination mechanism envisioned in the Washington agreement has met but has been unable thus far to transform the realities on the ground. M23 continues to expand, reportedly mobilizing more than 7,000 new recruits and entrenching its de facto rule in major urban centers, including Goma and Bukavu, key economic hubs situated in the mineral-rich eastern DRC where the rebel group is appointing local leaders and building parallel administrative structures. A pillar of the broader peace arrangements meant to halt the war has instead coincided with the deepening of the conflict and its attending divisions.

A Humanitarian Crisis in Free Fall

The human cost of this failure is staggering. Displacement remains extreme. In some areas, families have been uprooted multiple times as front lines shift. Internal displacement continues to rise sharply. Since Dec. 2, more than 200,000 people have been displaced across South Kivu province alone, according to the U.N.

The United Nations’ World Food Programme projects that roughly 26.6 million people across the DRC will face crisis-level food insecurity by early 2026, with the worst conditions in the east. Recent assessments show that 3.2 million people are facing emergency levels of food insecurity — IPC Phase 4,  one level above famine. Yet aid operations are being strangled. In July, Wazalendo, a coalition of Congolese-backed forces, blocked a 55-truck humanitarian convoy; days later, South Kivu authorities suspended aid deliveries to the key eastern port city Uvira, which sits on Lake Tanganyika and is a base for the DRC military. And now, days after the Dec. 4 peace signing ceremony in Washington, M23 rebels captured Uvira, a strategic victory that ensures they now control both North and South Kivu provinces. Meanwhile, Goma’s airport, a central hub for humanitarian operations, has been closed since January 2025, choking the movement of staff and supplies.

Just as needs spike, financing is collapsing. The $2.5 billion U.N. Humanitarian Response Plan for the DRC is only 22.1 percent funded. The World Food Programme has been forced to slash its caseload for lack of funding. Worse, the United States and major donor nations have cut contributions, forcing the U.N. to narrow its funding request to serve only the most needy. This will have real life consequences for people who will no longer be assisted. Deep cuts in global health resources, including from the United States, are further weakening the response. Health and protection systems are buckling under the strain: mpox, cholera, malaria, and TB are surging and vaccination campaigns face continued challenges due to misinformation, and infrastructure barriers. Survivors of sexual violence are losing access to post-rape care, protection, and psychosocial support.

Put simply, Trump has presided over a peace ceremony at a moment when humanitarian agencies are being forced to decide which communities to abandon. These are not the kinds of conditions that would support a sustainable peace, even if the deal itself were viable, which appears not to be the case.

Security Commitments Still on the Shelf

The security architecture of the deal is faring no better. The Washington Peace Agreement contains ambiguous language on the withdrawal of Rwandan Defense Force units, with no clear timelines, nor credible verification mechanism. Persistent reports of Rwandan elements supporting M23 remain unaddressed. Provisions for disarmament, demobilization, and reintegration are also stalled. It is unlikely that M23 will relinquish the territory it holds, as evidenced by the fact that it continues to build parallel administrations and consolidate revenue streams. Entrenchment appears to be the order of the day.

On the multilateral side, rhetoric and resourcing are moving in opposite directions. During a June 27 U.N. Security Council debate, the United States strongly backed the central role of MONUSCO (the U.N. Peacekeeping Mission in DRC since 2010) in implementing the peace agreement. Yet subsequent U.S. budget cuts to peacekeeping will significantly weaken the mission’s ability to protect civilians, just as the need for protection is surging in the face of fighting and sexual violence.

Voices Left Out, Grievances Left Untouched

Accountability and inclusion, two core ingredients of any durable peace, are the weakest pillars of all. The agreement lacks meaningful enforcement mechanisms, including clear consequences for violations or for alleged external support to M23. Mass killings by armed groups, including M23 and the Allied Democratic Forces (ADF), which operates in the DRC-Uganda border area, continue with little prospect of justice.

Impunity for gender-based violence remains entrenched. Estimates suggest that dozens of women and girls are raped every day in eastern DRC. Justice mechanisms are largely non-functional, and many survivors are now losing access to basic medical and psychosocial services as funding dries up.

At the same time, civil society representatives — especially women’s organizations, survivor networks, and displaced communities – have had little meaningful voice in shaping the agreements or overseeing their implementation. Women were effectively excluded from the peace process. Without transparency, local ownership, and clear avenues for accountability, this accord risks becoming yet another elite bargain negotiated over the heads of those who bear the brunt of the war.

Trump’s Test: From Ceremony to Consequences

Seen against this backdrop, this month’s signing in Washington D.C. is best understood as the beginning of the test of Trump’s endeavor, not its conclusion. By presiding over the ceremony and claiming the win, Trump has made this struggling agreement his own.

That choice can be an asset or a liability. If the Washington event is treated as a one-day image to be replayed on cable news and then forgotten, the June accord will remain aspirational and U.S. diplomacy will look performative at best. If, however, the administration is prepared to invest real political capital and diplomatic bandwidth in turning a failing implementation record around, U.S. ownership could matter.

That would require sustained engagement from the Oval Office pushing all parties to do what they have already promised to do. It would mean aligning U.S. leverage — aid, sanctions, security cooperation, diplomatic recognition — with a clear set of benchmarks tied to civilian protection and humanitarian access. And it would mean being prepared to impose costs on spoilers, even when they are longstanding security partners.

The Real Metric: Whether Civilian Lives Improve

The real test of Trump’s peace deal is straightforward and measurable: do the lives of civilians in eastern Congo improve? Pledges and communiqués matter only insofar as they move those indicators in the right direction. A peace accord that leaves civilians hungrier, more exposed, and more displaced than before is not a peace accord, it is a headline.

For this accord to become more than words on paper, Washington and its partners will have to move on several fronts at once. They must secure genuine, unimpeded humanitarian access and restore funding for food, health, and protection programs. They should reinforce — rather than quietly strip — MONUSCO’s capacity to protect civilians. And they need to put accountability for atrocities at the core of the peace process, not treat it as an afterthought.

None of this will be easy. But Trump has chosen to put his name on this deal. Unless the political will is found to turn today’s grim trajectory around, the signing will be remembered for what it risks being now: a compelling photo op for a “peace” that exists mainly on paper.

The post Rwanda–DRC Peace Deal: Trump Owns It. Now What? appeared first on Just Security.

This rationale fails on every level. Drug interdiction has been a law enforcement mission since the Reagan administration, not warfare—despite this administration’s attempt to relabel criminal organizations as military enemies. Leading legal experts, including Mike Schmitt, Geoff Corn, Ryan Goodman, and Tess Bridgman, have forcefully argued that we are not in armed conflict with drug traffickers, and the threat they pose must lawfully be addressed through law enforcement, not lethal military operations.

I agree. But even if we accepted the administration’s deeply flawed premise that we are at war, the second strike—targeting defenseless survivors floating in the water—violated fundamental laws of war. These survivors were shipwrecked persons, hors de combat, entitled to protection and rescue, not attack.

Whatever may have been the legal advice in the moment of the strike, it should be clear to those doing any after-action analysis that it was clearly illegal and not close to what Secretary of Defense Pete Hegseth has repeatedly called the “correct decision.”

Why This is Peacetime Law Enforcement, Not War

Simply put, despite labeling these groups “narco-terrorists,” maritime drug interdiction remains a peacetime law enforcement mission, squarely within the longstanding responsibilities of the U.S. Coast Guard. International law, including the law of the sea and international human rights law, govern these operations, not the law of armed conflict, which might allow for lethal operations.  

As a policy matter, there is good reason the use of non-lethal force works well in this context: even the U.S. military, which possesses the best intelligence capabilities in the world, can make mistakes and target the wrong people. The U.S. Coast Guard’s own statistics on its boarding operations support the need to take a more measured, law enforcement approach—21% of all vessels stopped by the Coast Guard off the coast of Venezuela between Sept. 1, 2024 and Oct. 7, 2025 possessed no drugs. Sometimes these vessels are piloted by drug traffickers, and sometimes they are just fishermen. We never know until the vessels are boarded and searched. When we strike first and ask questions later, the evidence and actionable intelligence that we could learn are lost forever.

The Duty to Rescue Under Peacetime Law

Customary international law has long recognized the affirmative obligation to render assistance to persons in distress at sea. This obligation is so powerful and so fundamental to the law of the sea that the right to render assistance allows a foreign vessel to enter another nation’s territorial sea to render emergency assistance to those in danger or distress. In fact, the rescuing vessel does not even need the express permission of the coastal state if it is rendering assistance to a vessel in distress. 

This duty to render assistance is further memorialized in the 1958 Geneva Convention on the High Seas, the 1974 International Convention for the Safety of Life at Sea, and Article 98 of the 1982 UN Convention on the Law of the Sea. U.S. Navy Regulations, Coast Guard Regulations, and the U.S. Navy Commander’s Handbook on the Law of Naval Operations reinforce this duty to render assistance, requiring commanding officers to proceed with all possible speed to render assistance to any person found at sea in danger of being lost. 

What if a commanding officer fails to comply with Navy or Coast Guard Regulations? Both are lawful general orders under Article 92 of the Uniform Code of Military Justice, and failure to comply and render aid opens the door to potential prosecution at court-martial. There is precedent for holding commanding officers accountable for failure to render assistance. In 1988, the commanding officer of the USS Dubuque was court-martialed for failing to give adequate assistance to 80 Vietnamese refugees adrift in a dilapidated junk in the South China Sea.

Even Under the Laws of War, This Strike Was Unlawful

But the administration is putting forth a different rationale, invoking a separate legal paradigm—the law of armed conflict (LOAC). Even under this (deeply mistaken) invocation of LOAC, the justification to strike the shipwrecked survivors fails. As my colleague Geoff Corn has noted, this is an attempt to push a square legal peg into an operational and factual round hole.

For the sake of argument, let’s assume—purely hypothetically and against all evidence and legal justification—that the United States is in a non-international armed conflict with so-called “narco terrorist” groups. If true, the LOAC would apply. Applying LOAC to the facts in the Caribbean is inherently strained. Nothing about this situation resembles the circumstances LOAC was designed to govern. The law of naval warfare contemplates engagements between warships in armed conflict—not missile strikes against small civilian drug vessels operated by traffickers. Nevertheless, I will proceed with a LOAC analysis of the situation below, beginning with the meaning of “shipwrecked” under that body of law (which, again, clearly does not apply despite the administration’s claims to the contrary).

The Sept. 2 Strike Survivors Were “Shipwrecked” Under International Law 

“Shipwrecked” is quite a broad term under both international law and U.S. military doctrine. It encompasses both civilian and military personnel who are in peril and clearly applies to the two survivors of the Sept. 2 strike. 

The 1949 Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces applies in armed conflict. The United States is a party, and Article 12 of the Convention defines “shipwrecked” to encompass those imperiled by shipwrecks “from any cause,” including forced aircraft landings at sea. The 1977 Additional Protocol I to the Geneva Convention expands the definition of those who are “shipwrecked” to encompass “persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune.” 

The U.S. Navy’s Commander’s Handbook on the Law of Naval Operations reinforces this broad definition of shipwrecked persons, to include “those in peril at sea or in other waters as a result of the sinking, grounding, or other damage to a vessel in which they are embarked.” 

Bottom line and as a baseline of applying the law to the facts: the two survivors of the first boat strike on Sept. 2 meet the definition of “shipwrecked” personnel under the laws of war.

Shipwrecked Persons Are Protected as Hors de Combat

Shipwrecked persons are generally considered hors de combat (French for “out of combat”) and protected from attack. The obligation to protect shipwrecked persons out of combat is included in Common Article 3 of the Geneva Conventions, fundamental rules that apply in non-international armed conflicts (NIACs), which the administration claims the United States is presently engaged in. The U.S. Supreme Court has already opined that Common Article 3 protections broadly apply to U.S. military operations that qualify as such.

Furthermore, the Geneva Conventions, Additional Protocol I, and the DoD Law of War Manual all state that people incapacitated by wounds, sickness, or shipwreck have protected status. The Manual explains: “Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.” Shipwrecked personnel may be detained, but they may not be intentionally attacked.  

Indeed, reports indicate the survivors had no weapons or communication devices at the time of the second strike, were clinging to debris, and were in danger of drowning—classic indicators of hors de combat status. And the principle of humanity—central to the law of armed conflict and reinforced in the DoD Law of War Manual—requires protecting enemy wounded, sick, and shipwrecked personnel. Indeed, it is the very origin story of the modern laws of war and the International Committee of the Red Cross starting from the battle of Solferino in 1859.

The Military Had a Duty to Render Assistance

The U.S. Navy/Marines/Coast Guard Commander’s Handbook on the Law of Naval Operations requires forces to take all possible measures, consistent with their own security, to search for and rescue shipwrecked personnel. It states: “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.” The DoD Law of War Manual reaffirms that in all circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.

Nothing currently indicates that rescuing these two individuals posed any concrete risk to U.S. forces, which are heavily deployed across the region. 

Does the customary and treaty-based duty to render assistance in UNCLOS, SOLAS, and customary international law evaporate? Not necessarily. The outbreak of hostilities does not necessarily suspend UNCLOS and other established protections. Article 17 of Additional Protocol I to the Geneva Conventions specifically authorizes the “civilian population and aid societies” to collect and care for shipwrecked personnel, suggesting that the duty to render assistance is not automatically suspended in wartime. The United States takes the position that treaties like the Geneva Conventions are “lex specialis in relation to treaties providing peacetime norms concerning the same subjects.” However, that is usually on a rule-by-rule basis, and the lex specialis (or more specific rule) displaces the more general but still applicable law only where the two conflict. Here again, the relationship between the drug traffickers and the United States is not a traditional armed conflict between two belligerent powers that would obviate preexisting legal requirements, including applicable U.S. treaty obligations. 

Alongside the duty to rescue, the DoD Law of War Manual recognizes “feasible precautions must be taken to reduce the risk of harm to military personnel and objects that are protected from being made the object of attack, such as military personnel placed hors de combat.” Feasible precautions, another obligation of LOAC, could take many forms in this context. It might include Coast Guard or Navy personnel employing non-lethal options to sink the vessel, destroy the drugs without killing the survivors or, simply put, trying to rescue the survivors. 

When Shipwrecked Survivors Lose Protected Status

The law of armed conflict for naval warfare is largely focused on two belligerent states using warships to engage in combat, not one military force targeting a civilian drug vessel piloted by drug traffickers. Nevertheless, here are the clear legal standards to help guide the analysis.  

Additional Protocol I

First, Article 41 of Additional Protocol I states that a shipwrecked person shall not be made the object of attack “provided that … he abstains from any hostile act and does not attempt to escape.” Merely possessing a weapon or a communication device does not automatically transform a shipwreck member’s status (all pilots, for example, fly with both during combat operations). 

Members of Congress who viewed the video of the second strike on Sept. 2 indicate that they saw two shirtless, unarmed survivors without means of communication waving their arms before they were killed, assessments that were reportedly supported by Admiral Frank Bradley and Joint Chiefs Chairman General Dan Caine. These facts do not rise to the level of a hostile act, nor is there evidence that the survivors had any means to escape. The vessel lacked “any means of locomotion,” and there is no evidence that the survivors could communicate, making exigent escape practically impossible. (As noted above, it’s important to reiterate here that the men were not fighters in the first instance, and had no means of fighting to begin with, but this section is assuming for the sake of analysis that LOAC applied and that the men could have been considered hostile at the outset – which is factually unsupported.) 

The Geneva Convention Commentary on Small Vessel Operations

The commentary to the Second Geneva Convention is especially stringent for small-vessel naval operations, placing even higher protections for patrol craft and other small craft. The commentary stresses that attackers must be alert to the moment when a small vessel ceases all hostile acts. At that point, all attacks must stop. It states, in full:  

In the case of naval operations involving small vessels and few people, attacking forces are able – and are therefore obliged – to be attentive to the moment when a wounded, sick, or shipwrecked person ceases all acts of hostility. In the midst of hostilities, a combatant’s status may change within seconds from being a lawful target to being a protected person by reason of wounds or distress at sea. Therefore, the attacking force must be alert to the possibility that an injured or shipwrecked combatant will cease hostile acts and, accordingly, suspend or cease an attack at any moment. The visible abandonment of all hostile acts by a wounded or shipwrecked combatant must put an end to all hostile acts against that person.

So the commentary places a duty on the “attacking force” to immediately stop attacking shipwrecked or wounded people if there is visible abandonment of all hostile acts. 

This is yet another reason why the American public needs to see the second video—we have 41 minutes of video evidence (the time between the first and second strike). Two lawmakers stated that the survivors waved to a U.S. aircraft in an apparent plea for help—a visible abandonment of all hostile acts (recall, on the actual facts and law underlying this strike, the men were engaged in no hostile acts to begin with). You do not need to be a lawyer to conclude that waving or attempting to right-size a destroyed boat without propulsion does not constitute a “hostile act” against the United States within any sense of the words. 

The U.S. Navy Handbook on the Law of Naval Operations

Second, the U.S. Navy Handbook on the Law of Naval Operations reiterates the AP I guidance and goes further:

Shipwrecked persons do not include combatant personnel engaged in seaborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance. They qualify as shipwrecked persons only if they have ceased all active combat activity. 

Again, we run into applying a legal square peg into an operational round hole. It is unclear how, exactly, a drug trafficker can engage in a combat activity, and in turn, provide evidence of cessation of that activity. Even in the imaginary world in which this was an armed conflict and taking drugs to market in Europe or Africa were war-sustaining operations, even getting back on a fully operational drug boat would not be combat activity, and the people transporting the drugs would qualify as civilians who were not taking part in hostilities.

The DoD Law of War Manual

Third, the DoD Law of War Manual sets forth a slightly different test to explain when shipwrecked personnel lose their protected status and may be lawfully targeted. It states that “shipwrecked persons must need assistance and care, and they must refrain from any hostile act.” “Hostile act” is not clearly defined in the Geneva Conventions. Yoram Dinstein, a widely respected international scholar, notes that persons hors de combat commit a hostile act when they are “still participating in the battle action.” But drug traffickers do not engage in battle, and the analysis above applies.

Historical precedent is also unfavorable to the administration. The WWII Peleus case flatly rejected a German U-Boat commander’s claim that shipwrecked survivors could be targeted due to possible signaling capability.

The San Remo Manual

The influential San Remo Manual on International Law Applicable to Armed Conflicts at Sea discusses shipwrecked persons in life rafts and lifeboats. While there is no evidence that the small drug vessel had any life raft, the commentary helps provide context to shipwrecked survivors. It states:

It is irrelevant that the persons concerned may be fit and therefore possibly in a position to participate in hostilities again, for attacking them would be a war crime. On the other hand, this protection ceases if they actually start committing hostile acts again.  

The Administration’s Arguments Fall Short

The Department of Defense seems to be making four arguments justifying the second strike. Each falls short. 

Argument One: The Drug Boats Are Lawful Military Objectives

First, the Department appears to be arguing that the drug boats are lawful military objectives. But the DoD Law of War Manual states that 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 … offers a definite military advantage.” The United States gains no articulable military advantage from targeting these drug boats that are led by gangs or cartels and that are not involved in military action against the United States. (See Schmitt, Bridgeman, and Goodman for further analysis.) 

Argument Two: The Strike Targeted the Drugs, Not the Survivors

Second, the military is arguing that the second strike was not an attack on the survivors per se, but an attack on the drugs themselves. Admiral Bradley reportedly explained that he ordered the second strike “to destroy the remains of the vessel … on the grounds that it remained afloat and still held cocaine.” The survivors were collateral damage, the reasoning goes, to the otherwise lawful attack on the drugs. But to qualify as a lawful target, the drugs must be a “war-sustaining object” and “support and sustain the belligerents’ warfighting capability.” This tenuous argument appears to be based on the still-unreleased OLC opinion justifying the action.  

But as Mike Schmitt, Tess Bridgeman, and Ryan Goodman astutely noted earlier this week, the boats and drugs are not war-sustaining objects because there is no war to sustain. Drug sales flow back to enrich criminal enterprises, not fund arms to be used against U.S. military forces in the region or to conduct military hostilities in or against the United States.

Argument Three: The Administration was Unable to Take Feasible Precautions to Reduce the Risk of the Attack on the Shipwrecked Survivors

Alongside the duty to rescue, the DoD Law of War Manual recognizes “feasible precautions must be taken to reduce the risk of harm to military personnel and objects that are protected from being made the object of attack, such as military personnel placed hors de combat.” Feasible precautions, another obligation of LOAC, could take many forms in this context. It might include Coast Guard or Navy personnel employing non-lethal options to sink the vessel, destroy the drugs without killing the survivors, or, simply put, trying to rescue the survivors by dropping a raft in the water to let those men get away before the second strike. None of these measures would have compromised the underlying military advantage. And all seem feasible based upon what we know.  But even if there were such an incremental military advantage in destroying possibly remaining cocaine bound for Europe and sinking the already inoperable vessel, it surely would have been outweighed by the deaths of two shipwrecked survivors.

Argument Four: The Survivors Could Have “Returned to the Fight”

Fourth, Admiral Bradley noted that the “survivors could hypothetically have floated to safety, been rescued, and carried on with trafficking the drugs.” But this justification to attack the shipwrecked survivors could be used against any shipwrecked survivors (to include American servicemembers) now and in the future to eviscerate hors de combat protections. 

Hypothetically, the ocean currents could float any shipwrecked survivor back to safety, where they could hypothetically take up arms again sometime in the future. This is a textbook example of reverse engineering the legal justification in such a manner that expands the exception beyond all recognition, swallowing the stated rule. The fact that the admiral would state such a justification is a worrisome sign of how weak the legal reasoning has been.

The Context Matters

Finally, the Sept. 2 strike was the first kinetic strike against drug traffickers in the Caribbean. This strike marked a significant departure from over 40 years of maritime law enforcement operations against drug traffickers. We don’t know if the shipwrecked survivors even saw the missiles before they impacted the boat and killed the other alleged traffickers. They might have thought they had a catastrophic engine failure or accidentally hit a floating munition.

The two survivors were likely in a state of extreme shock and were likely suffering from injuries after their boat was blown apart in international waters (including from the soundwave blast). What were they thinking following the strike? We will never know for sure. It has been reported that the survivors were waving, in a possible sign of seeking help. There is no reason to believe that the two remaining survivors were even aware that they were struck by a military drone—why would they believe that a U.S. military force would preemptively attack them? How would they even know that trying to rightsize the remaining wreckage to survive might mark them as a target?  

Conclusion 

The Sept. 2 strike against shipwrecked survivors marks a dangerous departure from established international law and decades of U.S. maritime practice. The legality of this action does not actually depend on the administration’s claim that the United States is in armed conflict with drug traffickers—a position that finds no support in international law, state practice, or the factual circumstances in the Caribbean. It would be clearly illegal either way. Yet here we are. As my colleague Geoff Corn noted, “The real problem here is the dubious and legally overbroad assertion that the United States is justified in using wartime authority against a criminal problem.”

Even accepting this flawed premise for the sake of argument, the strike fails under the laws of armed conflict. The two survivors were shipwrecked persons, hors de combat, clinging to debris without weapons or means of escape. They were entitled to protection and rescue, not attack. The administration’s arguments require stacking legally unsupported inferences—that transporting drugs constitutes armed conflict, that traffickers are combatants, that helpless and unarmed survivors posed an imminent threat—to justify an action that would have been unthinkable under four decades of Coast Guard operations.

The broader implications are deeply troubling. If the administration’s legal theory prevails, it transforms routine law enforcement operations into armed conflict, strips away protections for vulnerable persons at sea, and abandons the duty to rescue that has anchored maritime law for centuries. It also endangers U.S. servicemembers and mariners who rely upon these legal protections. This precedent, if left unchallenged, threatens to erode fundamental humanitarian protections in contexts far beyond drug interdiction.

Yet, the Secretary of Defense has said in retrospect the strike was the “correct decision,” and that the military made no changes to its procedures or protocols since.

The American people and their representatives in Congress deserve answers. The administration must release the full Office of Legal Counsel opinion(s) underlying Operation Southern Spear, the intelligence underlying the strike, the Strike Bridge message communications and chat, all relevant videos, and initiate a bipartisan, congressional investigation. Until then, this action stands as what it appears to be: a manifestly unlawful attack on defenseless persons that violates both the letter and spirit of the laws of war and the laws of peacetime law enforcement.

The post The Law on Targeting Shipwrecked Drug Traffickers: Expert Backgrounder appeared first on Just Security.

The Security Council’s authorization of the ISF creates what seems to be a militarized force with an aggressive counterterrorism role that will involve close cooperation with Israel. The mandate of the ISF not only raises some doubt as to the resolution’s legal basis, but also poses a serious risk to the prospects of the peaceful transition to Palestinian self-governance and Statehood that is envisaged by the resolution. It also risks backfiring in unintended ways, potentially inadvertently increasing violent extremism rather than defusing it. In this way, it seems to effectively advance neither Palestinian self-determination nor Israeli security concerns.

The ISF as a Militarized Counterterrorism Force in the Form of a Support Mission

Resolution 2803 authorizes the creation of the ISF “in close consultation and cooperation with the Arab Republic of Egypt and the State of Israel.” It is empowered to use “all necessary measures to carry out its mandate,” which includes such tasks as to “secure border areas, stabilize the security environment in Gaza by ensuring the process of demilitarizing the Gaza Strip, including the destruction and prevention of rebuilding of military, terror, and offensive infrastructure, as well as the permanent decommissioning of weapons from non-state armed groups.”

This mandate raises several questions. Most fundamentally, it raises the question of what kind of force the ISF is meant to be: a peacekeeping operation, or something else? When questioned on this, U.S. Secretary of State Marco Rubio responded that the ISF “shouldn’t be a fighting force.” His comments seem to indicate that, politically, the ISF is being framed as a peacekeeping force to support an eventual transition of governing authority over Gaza to the Palestinian Authority.

If the mandate is to be taken seriously and considered realistically, however, the ISF seems to lack the hallmarks of a traditional peacekeeping force. Broadly, peacekeeping forces must be based on three principles: consent, impartiality, and limited defensive use of force. It is important to note that these principles apply to peacekeeping generally and are not limited only to U.N. peacekeeping forces. The Leuven Manual states that these three principles are part of the framework applicable to peacekeeping universally. Although it is still early in the process, the basic building blocks of the ISF set forth in resolution 2803 do not seem likely to meet all three principles, particularly those of impartiality and limited, defensive use of force.

The Consent Prong May Have Been Met

Although not wholly clear-cut, there is at least an argument that the consent prong has been met. Though, Israel has indicated its consent (not without domestic controversy), Palestine’s case is more complicated. Although the Palestinian Ministry of Foreign Affairs issued a statement welcoming the adoption of the resolution likely constitutes Palestinian consent to the ISF, there isn’t clear consensus both as to whether the PA has the authority to consent, nor whether the PA’s statement was in fact intended to communicate formal consent. In situations of consent-based interventions, effective control, accepting sovereign responsibility, and multilateral recognition are generally key elements in determining who has the authority to grant consent (see Hathaway et. al., p. 542). Palestinian consent is not clear-cut for a variety of reasons, including because effective control and recognition might be divided in relation to Gaza; although the PA enjoys far greater recognition, it may be argued that Hamas has a greater degree of effective control in Gaza compared to the PA (here a consideration of effective control would need to assume such control after Israeli forces have relinquished theirs).

Nonetheless, since the capacity to consent stems from State sovereignty, in situations “where there are competing claims of governance and where effective control is disputed, consideration should be given to whether those claiming to represent the state accept the international law responsibilities that such recognition carries.” (Hathaway et. al., p. 542). On this principle, it is likely that the PA – and not Hamas – would be sufficiently authorised to consent on behalf of Palestine.

Structural and Operational Partiality to Israel

However, the text of the resolution indicates that the structure of the ISF likely does not sufficiently safeguard the principle of impartiality. This principle requires operational impartiality, impartiality in the mode of decision-making (i.e. procedural impartiality in the manner in which decisions are made), and impartiality in the basis for decision-making (i.e. substantive impartiality in which interests and facts guide decision-making) (see here and here). The ISF’s operational mandate and decision-making practices likely fall short. For instance, the resolution provides that the ISF is to operate in “close consultation and cooperation with” Israel and Egypt and that it “shall work with Israel and Egypt” in carrying out its mandate (para. 7). Although the oversight body established by the resolution called the “Board of Peace” (“BoP”) is mandated to create an apolitical, technocratic Palestinian committee (see paragraph 4(B)(1)), the resolution does not establish any direct relationship between the ISF and that committee that would, at least on its face, facilitate direct cooperation with the ISF; rather, the ISF and the committee both, separately, fall under the supervision of the BoP. Additionally, paragraph 7 of the resolution indicates that the ISF will “work with” not only Israel and Egypt but also a new Palestinian police force of some kind to implement the ISF mandate – but this police force is not included in the higher-level and likely more comprehensive “consultation and cooperation” role that is given to Egypt and Israel. Egypt’s ostensible role, then, is to be a counterbalance to Israeli involvement, perhaps with the intent of protecting against partiality to Israel. It does not, however, eliminate this risk entirely.

While Egypt may be able to take a leading role to represent and protect Palestinian interests in the ISF, and its involvement may limit wholly unbridled Israeli influence over the ISF’s activities by imposing a political checks-and-balances system, this is unlikely to fully balance out Israeli influence. This is not only because, as a matter of political reality, Israel’s interests are highly likely to come with the powerful backing of the U.S. (and thus the BoP that will be chaired by the United States). It is also because the resolution seems, at least facially, to grant a more expansive set of authorities to Israel than it does to Egypt. It stipulates, for example, that the “standards, milestones, and timeframes linked to demilitarization” will be agreed between the “IDF [Israel Defence Forces], ISF, the guarantors, and the United States.” Egypt is not clearly accounted for in any of those categories. The implication of this is that the IDF will be empowered to (potentially significantly) influence not only the process for its own withdrawal but also the standards for the ISF’s “control and stability” in Gaza that the resolution sets as a prerequisite to IDF withdrawal, without a clear structural guarantee of  Egyptian (or Palestinian) involvement. This seems to open the door to an unbalanced level of Israeli influence on the ISF’s implementation of its mandate.

This, of course, is not to suggest that the ISF ought not to cooperate with Israel at all. Indeed, such an approach would be unrealistic. To guard against impartiality, however, Israeli involvement should be limited to only a logistical support role such that it enables the ISF to effectively carry out its mandate, without allowing it to substantively influence the ISF’s actual operational decision-making or other activities.

A (Non)Limited Use of Force Mandate

It is not unprecedented for peacekeeping forces to be issued robust mandates with an authorization to use armed force. For instance, the Security Council authorized peacekeeping operations to undertake targeted offensive operations in Somalia and the Democratic Republic of Congo (although these missions have had mixed levels of success).

However, the U.N. Department of Peacekeeping Operations has indicated that there is a difference between “robust peacekeeping,” which involves the use of force specifically for the purpose of preventing specific threats to civilians or the peacekeeping mission itself, and “peace enforcement,” which involves the use of force against specific groups regardless of any particular threat to civilians or the mission. But even peace enforcement can differ from an enforcement operation under the Security Council’s Chapter VII authorities, which may more clearly involve a military effort to defeat an adversary (although the lines are somewhat blurred between these various distinctions). Furthermore, the Leuven Manual suggests that peacekeeping forces deployed to provide security support “differ from enforcement operations in which armed force is applied” and from forces tasked with “the imposition of a political solution upon warring parties by force of arms in situations where governmental authority has broken down” (Leuven Manual, p. 4).

The ISF’s mandate seems to indicate that it will serve exactly the twin purposes identified by the Leuven Manual: use of armed force, and the imposition of a political solution. Its primary responsibility is, in fact, imposing a political solution for Gaza where governmental authority has broken down on both sides. Years-long contestation for both military control and political legitimacy amongst the warring parties has also left the area of concern with heavily fragmented and ineffective governmental authority, deeply affected by Israeli occupation and with split claims to legitimate governance between the PA and Hamas.

The fact that the ISF’s mandate involves the “destruction” and “prevention of rebuilding” of “military, terror and offensive infrastructure” also indicates that its duties may include using armed force proactively to carry out enforcement operations. Executing a proactive mandate to “destroy” military, terror, and offensive infrastructure would necessarily require military operations well beyond the limited use of defensive force contemplated by traditional peacekeeping operations.

With all of the above taken together, the ISF thus appears to constitute something more akin to an ad hoc counterterrorism operation exercising military force, rather than a peacekeeping operation. This is particularly noteworthy given that the U.N. High-Level Panel on Peace Operations  concluded in 2015 that U.N. peacekeeping missions “are not suited to engage in military counter-terrorism operations,” but rather that such activity ought to be undertaken by other entities such as “an ad hoc coalition authorized by the Security Council” (see para. 119). It appears that Gaza will have the latter, rather than the former.

A Precarious Legal Basis for the Authorization of a Militarized Force

If the ISF is indeed a militarized counterterrorism operation rather than a true peacekeeping operation, this raises an important question: what is the legal basis for authorizing a mandate involving the use of force, for a purpose other than self-defence?

Though the Security Council is empowered to authorize the use of force under Chapter VII of the U.N. Charter, the resolution conspicuously omits reference to Chapter VII as per usual practice (although an explicit reference is not required). In any case, the Security Council’s power to authorize force under Chapter VII is not unlimited, as confirmed in Tadic  where it was held that the Security Council cannot go beyond its jurisdiction and that the Charter did not conceive of it as being unbound by law (para. 28).

At the very least, the procedural conditions within Chapter VII must be met. For instance, under Article 39, the Security Council must first determine that there exists a threat to international peace and security before it is able to authorize the use of force under Article 42 of the Charter. Notably, resolution 2803 does not explicitly make such a determination, nor does it reference any prior such determination by the Council. Instead, it determines that the situation in Gaza constitutes a threat to “the regional peace and security of neighboring states.” This may not satisfactorily constitute the requisite determination under Article 39, which uses the specific language of “international” peace and security. As Lieblich notes, however, the combination of the word “regional” with reference to “neighboring states” could also be taken to mean “international.” Accordingly, there is some legal ambiguity; it is possible that the ISF’s authorization is based on an implicit invocation of Chapter VII authorities after having made the requisite finding under Article 39, but it is not entirely clear.

Even if so, however, the Security Council’s power to authorise force under Chapter VII is limited by Article 24(2), which provides that the Security Council shall act in accordance with the “Purposes and Principles” of the U.N. in discharging its duties under Chapter VII. An authorization to use force cannot be contrary to the principles enshrined under Articles 1 and 2 of the Charter. These include, inter alia, the right to self-determination, political independence of States, and the peaceful settlement of disputes by member States. The ISF’s partiality and expansive use of force mandate would appear to risk undermining some among these principles.

In particular, the ISF’s mandate to militarily impose, under what may end up being a certain level of Israeli direction, a political solution where the priorities and legitimate political actors are determined by foreign entities potentially runs the Security Council into the risky territory of authorizing force to stifle Palestinian’s rights to self-determination.  For instance, paragraph 9 of the U.S. Plan establishes that Gaza will be governed by a temporary Palestinian committee made up of “qualified” Palestinians and international experts, under the “oversight and supervision” of the Board of Peace. Paragraph 4 of the resolution references participation by “competent” Palestinians that are “championed” by the Arab League; it does not reference international experts at all, leaving ambiguity as to whether the committee will be wholly Palestinian, or not. Neither text indicates the mechanism or metrics or by which Palestinians will be determined to be sufficiently “competent” or “qualified,” nor how international experts will be chosen (if they are to be included). The resolution also leaves the time horizon for the committee’s governance under the Board of Peace open-ended, indicating that once the Palestinian Authority reform program has been “faithfully” completed and Gaza redevelopment has moved forward, a pathway “may” be in place for Palestinian self-determination – without indicating how such progress will be determined, nor by whom. Paragraph 8 authorizes the BoP through December 2027, allowing for additional reauthorization without any clear time limit. No consultation with Palestinian authorities for such reauthorization is indicated in the text. This open-ended framework could theoretically leave the Board of Peace – and the ISF – in place for the interminable future, with limited and unclear Palestinian decision-making. At the least, these arrangements leave open the question of how well the resolution comports with the Charter’s principle of self-determination.

This leaves the resolution on ambiguous legal ground: although one might fairly point to the PA’s expression of support (even if after the passing of the resolution), the lack of a clear triggering of Chapter VII authority leaves some room for doubt, and there is at least an argument to be made that the transitional frameworks imposed by the resolution do not entirely comport with Article 24(2)’s constraints on the use of Chapter VII authority.

The Strategic Failures of the ISF and of Militarizing Transitions

Beyond the legal murkiness of the ISF’s mandate, it sets itself up for potential strategic failure. Militarized transitions frequently collapse the distinction between supporting self-determined political processes and imposed political outcomes. An emphasis on disarmament through force and stabilization through enforcement risks reproducing or exacerbating the underlying root causes of the conflict itself, including any applicable cycles of power or inequality. This could cost the mission crucial public support on the ground and potentially backfire including by inciting further extremism that undermines Israeli security.

The ISF in essence continues Israel’s attempts of eradicating Hamas, not through political negotiation or processes with meaningful Palestinian participation, but through what are essentially foreign-led counterterrorism operations. In so doing, it continues similar conditions to the active armed conflict that the resolution purports to put an end to – simply now, instead of the IDF fighting Hamas, it will be the ISF. Following the passage of the resolution, Hamas has indicated that it will not voluntarily disarm, increasing the likelihood that to carry out this aspect of its mandate the ISF may indeed resort to use of force. In the end, Palestinian civilians will be left to continue to suffer the perils of what may amount to the same violent war, but with the ISF as another belligerent.

To this point, a stabilization force that is in effect undertaking counterterror operations with the use of armed force in dense urban settings will inevitably cause collateral civilian casualties. This has the strong likelihood of creating enmity and animosity amongst civilians towards a force that they already do not identify with, potentially radicalizing them against that force. As a consequence of both these factors, there is a serious risk that the ISF may push civilians closer to Hamas and extremist violence against an international force they perceive to be the enemy.

Additionally, it is a complicated reality that Hamas – not the PA – has governed Gaza since 2007. Paragraphs 2 and 9 of the resolution, in combination with the broader mandate of the ISF, enshrine what is in essence a change in governing authority in Gaza to the PA. Externally, and potentially forcefully, changing the seat of political power via a process that largely excludes meaningful domestic political participation or consultation may push some civilians to the fringes of the political arena where extremism thrives.

Although rife with its own challenges, one approach that might be preferrable would be the establishment of free and fair domestic political processes. Limiting Hamas’ involvement in governance this way would reflect and empower Palestinian self-determination and may mitigate some of the risks identified above. Of course, there are no guarantees that this would be successful (Hamas has won elections before, for instance), and such a process comes with its own obvious risks and problems. But it is not entirely implausible; polling shows that support for Hamas amongst Palestinians has sharply declined.

These issues expose a larger strategic fallacy inherent in militarized transitional frameworks: the assumption that political and public legitimacy can be engineered through armed enforcement. On the contrary, such an approach risks not only widespread public opposition and disapproval, but also can actively cause increased radicalization and extremism.

These risks are compounded especially when the force is perceived as being partial to and serving the interests of an occupying power. Because of the ISF’s intended close cooperation with Israel, it inherits the psychological baggage of occupation. For many Palestinians, an ISF whose mandate is effectively co-produced with the occupying power will be viewed not as a transitional support mechanism but as an extension of Israeli coercive capacity under international cover. Such perceptions are not merely symbolic; they decisively determine the force’s ability to operate, secure cooperation, and create conditions conducive to peaceful and stable political processes.

Ultimately, a militarized transition structured this way and predicated on shaky legal grounds can take on the appearance of merely rebranding externally imposed control as transitional governance. In doing so, it risks perpetuating insecurity, undermining trust, and creating new hostile non-State actors in the process.

The post An Analysis of Resolution 2803 and the International Stabilization Force: A Militarized Enforcement Mission with Precarious Legal and Strategic Implications appeared first on Just Security.

The catalog below organizes our collection of articles primarily about the war into general categories to facilitate access to relevant topics for policymakers, researchers, journalists, scholars, and the public at large. The archive will be updated as new pieces are published.

We welcome readers to use the archive to follow the unfolding situation and generate new lines of analysis. To search headlines and authors, expand one or all of the topics, as needed, and use CTRL-F on your keyboard to open the search tool. The archive also is available in reverse chronological order at the Israel-Hamas War articles page.

The post Just Security’s Israel-Hamas War Archive appeared first on Just Security.

But a confluence of factors threatens to reignite the conflict and potentially destabilize the wider region: the Ethiopian government’s failure to fully implement the agreement, a lack of justice and accountability, and a split within Tigray’s leadership, one faction backing the government in Addis Ababa and the other siding with leaders in neighboring Eritrea who had supported Addis during the war. To prevent further deterioration, regional and international actors, including the United States, which played a significant diplomatic role in the deal’s signing, must spotlight the risks in the region, re-engage, impose sanctions on spoilers, and support political dialogue and reconciliation efforts across Ethiopia. Furthermore, to reduce human suffering among the hundreds of thousands of people still displaced in the region, aid providers and donors must scale up humanitarian assistance immediately.

In addition to the death toll over just two years, the 2020-2022 Tigray War also led to the collapse of the region’s healthcare system and the destruction of healthcare facilities. Agriculture and other food-related infrastructure indispensable to the population’s survival were destroyed, inducing acute food shortages and nutritional crises. In some regions, including Tigray, 62 percent of children under 5 are experiencing acute malnutrition, according to a study led by the United Nations, the European Union, and local authorities. An assessment by Tigrayan health researchers found already in the year after the war that “Starvation was the leading cause of death across all ages in the study group.” Local aid workers on the ground have indicated in interviews with our team that deaths due to starvation have increased, as have deaths due to untreated illness and preventable conditions like hypertension and diabetes.

The Pretoria Agreement, signed in November 2022, called for the cessation of hostilities, full humanitarian access, the withdrawal from western Tigray of Eritrean troops and other forces from other regions, and transitional justice. But while active fighting stopped, many of the agreement’s terms remain aspirational. Despite the call for withdrawal of foreign and non-federal forces, large parts of Western, Southern, and Northern Tigray remain under the control of Amhara regional forces and Eritrean troops. These forces continue to perpetrate grave abuses with impunity – sexual violence, arbitrary arrests, abductions, torture, and widespread land seizures.

The Pain of Aid Cuts

Furthermore, Tigray, like other regions in Ethiopia, has felt the pain of aid cuts by major donors, including the United States. Ethiopia had been one of the top recipients of foreign aid from the United States, receiving $1.8 billion in assistance for food, healthcare, education, job assistance, and more in 2023. Most of those programs were halted after the U.S. freeze on foreign aid. Local groups have decried the impact on children with HIV/AIDS who could no longer access their medications.

More than 760,000 people are still internally displaced, unable to return home, rebuild their lives, or even reclaim their lands, in part because one-third of the region is occupied by Eritrean or Amhara forces and the previous residents don’t feel safe returning. A recent study of internally displaced people (IDPs) in Tigray conducted by the Commission of Inquiry on Tigray Genocide, an investigative body established by Tigrayan regional authorities, indicates that some have not received any aid since they were displaced years ago. Others have experienced a suspension of food distribution for months at a time. Those who do receive aid report that the quality is poor, including spoiled maize grain (kernels) or sorghum unfit for consumption.

Children have been out of school for years, with only 40 percent of school-aged children having enrolled in school as of about a year ago. About 2.4 million school-aged children were not attending schools, partly because 88 percent of school infrastructure was damaged. Many displaced families seek shelter in crowded schools that are unsafe and unsanitary, or they sleep in the open air.

Tigray’s women and girls have borne some of the worst scars of the conflict: sexual violence was pervasive, and some have still not received treatment for physical injuries and the psychological toll or have been shunned by their communities. Health groups in Tigray emphasize that many of the survivors continue to need support to cope with the trauma of sexual slavery, gang rape, and other horrifying attacks.

It is not surprising, then, that many IDPs feel abandoned and hopeless. The world rallied behind the Pretoria Agreement as a path to peace and recovery, but failed to sustain pressure on Ethiopia and other actors to uphold it. Donor fatigue and geopolitical distractions have left aid and development in Tigray and Ethiopia’s other regions dangerously underfunded. Without sustained pressure, the Pretoria Agreement risks joining a long list of African peace deals that looked good on paper but collapsed in practice, leaving the most vulnerable to pay the price.

Tigray is not the only Ethiopian region affected by the cuts in humanitarian aid. The Gambella region in western Ethiopia near the South Sudanese border hosts around 40 percent of the country’s refugee population of more than 1 million. Most of those refugees are from South Sudan. Since last year, refugees in some of Gambella’s camps have been surviving on just a fraction of the recommended daily food ration, and now there is a risk that the ration will be reduced further.

Honoring Commitments and Re-Engaging for Peace

A genuine peace in Tigray requires more than declarations; it demands enforcement, justice, and political courage. The Ethiopian government must honor its commitments by ensuring the withdrawal of all non-federal forces, facilitating the safe return of displaced people, and holding perpetrators of abuses accountable. Other actors within Ethiopia, including the Tigrayan leadership and other groups, must avoid escalation and tensions that risk reigniting the tinderbox in the north. Renewed conflict in Tigray, which would likely involve Eritrea, would be catastrophic: long, drawn out, and deadly.

Likewise, international actors like the United States must re-engage – through verification that the parties to the agreement are meeting its terms, by imposing sanctions on spoilers, and by supporting local reconciliation efforts. The United States can press for political dialogue and link its engagement to security and commercial interests. It also should work with partners who were involved in the diplomatic coalition that was instrumental in mediating the Pretoria Agreement, including the African Union, Kenya, and others. Above all, humanitarian assistance must be scaled up immediately to prevent further human suffering. Donor states must increase funding to the United Nations and other relief agencies and organizations, recognizing that lives are being lost every day that funding is not provided.

The people of Tigray have endured enough. The Pretoria Agreement, while imperfect, is the only path to peace at this moment. A return to war is indeed possible, and would be catastrophic for Tigray and neighboring regions in Ethiopia as well as for the wider Horn of Africa. Without decisive action, Ethiopia risks allowing its most important opportunity for peace to slip away.

The post In Ethiopia, an Unfinished Peace Risks Betraying the People of Tigray and the Broader Region appeared first on Just Security.

On the fourth installment of the Murder on the High Seas series, cross-posted with NYU Law School’s Reiss Center on Law and Security, co-hosts Tess Bridgeman and Rachel Goldbrenner are joined by Rebecca Ingber and Brian Finucane to discuss the latest developments.

Show Note: 

• Murder on the High Seas Part III  (Oct. 21, 2025, also available on YouTube) 
• Murder on the High Seas Part II — What We Know about U.S. Vessel Strikes One Month In (Oct. 7, 2025, also available on YouTube)
• Murder on the High Seas? What You Need to Know about the U.S. Strike on the Caribbean Vessel (Sep. 9, 2025, also available on YouTube)
• Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder by Michael Schmitt, Ryan Goodman, and Tess Bridgeman (Dec. 1, 2025) 
• Timeline of Vessel Strikes and Related Actions by Jeremy Chin, Margaret Lin, and Aidan Arasasingham (Nov. 21, 2025, updated regularly)  
• Just Security’s Collection: U.S. Lethal Strikes on Suspected Drug Traffickers  
• The NYU Law Reiss Center on Law and Security’s War Powers Resolution Reporting Project 

The post The Just Security Podcast: Murder on the High Seas Part IV appeared first on Just Security.