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.

Just last week, Deputy Chief of Staff Stephen Miller warned, “Nobody’s going to fight the United States militarily over the future of Greenland.” In justification, he claimed, “For the United States to secure the Arctic region, to protect and defend NATO and NATO interests, obviously, Greenland should be part of the United States.” Less bombastically, Secretary of State Marco Rubio told members of Congress that the United States is attempting to purchase Greenland. Yet he caveated that desire by noting to reporters, “If the president identifies a threat to national security of the United States, every president retains the option to use military force.” 

And on Wednesday, President Trump told the New York Times the only limit to his international actions was “My own morality. My own mind. It’s the only thing that can stop me…. I don’t need international law.” Two days later, Trump appeared to apply that approach to Denmark, warning he was “going to do something on Greenland, whether they like it or not,” and that while he “would like to make a deal the easy way, but if we don’t do it the easy way we’re going to do it the hard way.” As to justification, Trump warned, “If we don’t do it, Russia or China will take over Greenland.” However, it was unclear why current or expanded agreements with NATO Ally Denmark, such as the Defence Cooperation Agreement finalized last June, and the renewed commitment by other States to enhancing Arctic security (e.g., here and here), would not suffice to secure the strategically important territory.  

These threats have led some to wonder whether NATO would have to defend Denmark if the United States attempted to seize Greenland forcibly (see, e.g., Washington Week). This article explores that issue.

Article 5 of the North Atlantic Treaty

The 1949 North Atlantic Treaty (also called the Washington Treaty) established the NATO Alliance and set the terms according to which the Parties to the instrument (the “Allies” in NATO parlance) would respond to an “armed attack” on an Ally in collective defense. The key provision is Article 5:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

As expressly confirmed in Article 5, the authority to act collectively derives from Article 51 of the UN Charter, which had been adopted four years earlier. In relevant part, Article 51 provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Since Article 5 is grounded in the Charter’s Article 51, action taken based on the former is subject to, at least, the same conditions and limitations as self or collective defense under the latter.

The Article 5 Geographic Limitation

The Article 5 commitment is limited to action taken against allies in “Europe or North America.” Article 6 clarifies that this includes “an armed attack on the territory of any of the Parties in Europe or North America.” As Greenland is part of North America, the sole question vis-à-vis the geographical limitation is whether military operations into Greenland would be an armed attack on Denmark.

Much has been made of Greenland’s unique status. The territory enjoys broad autonomy under Denmark’s 2009 Self-Governing Act, especially in internal affairs. However, that autonomy is an issue of domestic law. Under international law, Denmark undeniably enjoys sovereignty over Greenland. In 1933, the Permanent Court of Justice, in a dispute between Norway and Denmark, found that Greenland was a Danish possession (Legal Status of Eastern Greenland). Subsequently, Denmark listed Greenland as a non-self-governing territory under Chapter XI of the UN Charter. In 1953, Greenland was incorporated into Denmark through domestic legislation, a status recognized by the General Assembly the following year (GA Res. 849). The United States has long acknowledged Danish sovereignty over Greenland (see, e.g., the 1916 Secretary of State declaration, the 1951 Defense of Greenland Agreement, and the 2004 Amendment to the Defense of Greenland Agreement). It is clear that Greenland falls within the geographical coverage of Article 5.

The Article 5 Trigger

Only an “armed attack” triggers the Article 5 obligation. Lesser unlawful actions do not suffice. For instance, the U.S. actions are already in violation of the prohibition on “intervention” into the internal or external affairs of another State. As noted by the International Court of Justice in its Paramilitary Activities judgment, intervention occurs when a State coerces another with respect to its “domaine réservé,” that is, matters left by international law to States (¶ 202). Trump’s “easy way or hard way” threat is paradigmatically coercive, for, as the Court noted, the use of force is a “particularly obvious” form of coercion (¶ 205). Moreover, the Court singled out “choice of a political … system” as a paradigmatic example of a matter falling within a State’s domaine réservé; whether a State retains sovereignty over territory is perhaps the most extreme manifestation of political choice. Despite this clear violation of international law, the U.S. intervention does not trigger Article 5.

Nor does the U.S. violation of the prohibition on the threat of the use of force set forth in Article 2(4) of the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (emphasis added). To violate the prohibition, the threat must be to engage in force that violates international law (Nuclear Weapons, ¶ 47). Such a threat must also be coercive, communicated, and credible to be unlawful (see my discussion of intervention here).

It is manifest that the U.S. threat to use force to seize Greenland is unlawful. After all, Article 2(4) specifically cites a use of force against “territorial integrity” as a basis for qualifying as a prohibited action (see also Friendly Relations Declaration). There are two bases for the lawful use of force against another State: UN Security Council authorization, which has not been granted, and self-defense under Article 51. Although the administration has claimed to need Greenland for defensive purposes, forcible defensive actions under Article 51 must respond to an imminent or ongoing armed attack. In this case, Denmark (and no other third State) has engaged in no hostile action against the United States. The threatened use of force by the United States is, as explained, coercive; multiple senior officials have communicated it; and in light of recent U.S. operations against Venezuela, the credibility of such threats cannot be dismissed as purely rhetorical. 

But again, this U.S. violation of international law against Denmark is completely insufficient to activate Article 5. Nevertheless, Denmark could communicate a request for assistance from other Allies below the level of a use of force pursuant to Article 4 of the North Atlantic Treaty, which provides for consultations among the Allies whenever, in the opinion of any of them, an Ally’s territorial integrity, political independence, or security is threatened. Doing so is not a precondition for action taken pursuant to Article 5.

The condition precedent to taking measures under Article 5 is strictly limited to situations in which there has been an “armed attack.”  The United States has traditionally adopted an expansive interpretation of “armed attack,” taking the position that any unlawful use of force qualifies as such (DoD Law of War Manual, §1.11.5.2; Taft, p. 300). This position diverges from that of most States in the world, including NATO members, and from the jurisprudence of the International Court of Justice, which limits armed attacks to the “most grave” forms of the use of force (Paramilitary Activities, ¶ 191).

That difference in approach is immaterial in this case. Any military operation sufficient to seize Greenland would unquestionably meet even the higher “most grave” threshold, thereby qualifying as an armed attack for Article 5 purposes. Indeed, the UN General Assembly’s Definition of Aggression Resolution, which was adopted by consensus, labels the “invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,” as “aggression” (Res. 3314, art. 3(a)). Moreover, NATO’s own explanation of collective self-defense observes, “[a]n obvious example [of an armed attack] would involve an invasion by one state of the territory of another.”

A Legal Obligation to Assist?

According to Article 5, Parties to the North Atlantic Treaty “agree” to assist States that are the victims of an armed attack. This is a legal obligation, not a merely hortatory one. As a legal obligation, it must be fulfilled in good faith and in a manner consistent with the object and purpose of the North Atlantic Treaty (Vienna Convention, arts. 26 and 31(1); Gabčíkovo–Nagymaros, art. 142). Accordingly, a refusal to assist Denmark in the face of a U.S. attack would amount to an “internationally wrongful act” (Articles on State Responsibility, art. 2). In this sense, Article 5 differs from Article 51. Whereas the latter is permissive, the former is obligatory. In other words, while States could individually voluntarily agree to assist Denmark on an ad hoc basis, including by the use of force, under Article 51 of the UN Charter, they shoulder the obligation to “assist” under the North Atlantic Treaty. A key question, then, is whether the obligation to assist includes the use of force. As explained below, it does not.

Significantly, Article 5 imposes no limitations on whom collective defense may be directed against. In fact, in the aftermath of the 9/11 attacks on the United States, NATO invoked Article 5 for the only time in response to an attack by a non-State actor, al-Qaeda. There is no basis for concluding that the obligation would not extend to a U.S. attack on Denmark in the form of operations to seize control of Greenland.

As with any action in collective defense under the Charter, the State facing the armed attack, in this case, Denmark, has to request assistance (Paramilitary Activities, ¶¶ 196 and 199; Oil Platforms, ¶ 51) before other States may act in collective self-defense. For the Alliance, that request typically would be made to the North Atlantic Council (NAC). The Allies, in their role as members of the NAC, would be obligated by the principle of good faith to act on the request in a manner consistent with the treaty’s object and purpose–to lend assistance that renders the defense of an Ally against an armed attack effective. The nature and degree of assistance afforded by the other States would be limited to that requested by Denmark. 

Who Authorizes Action under Article 5?

The NAC is the body that would authorize a response executed under NATO command and control. It should be noted in this regard that the North Atlantic Treaty neither expressly designates the NAC as the entity authorizing collective action nor requires decisions to be taken by consensus. It merely establishes “a Council, on which each of [the Allies] shall be represented, to consider matters concerning the implementation of this Treaty” (art.  9). 

However, NATO practice has consistently treated the NAC as its core decision-making body. Moreover, the NAC has always operated on a consensus basis (see NATO’s description here and here). Importantly, because no procedural requirement of consensus appears in the treaty, a colorable argument might be fashioned that the NAC could act over U.S. objection, if only because it conducted the armed attack. That said, doing so would be institutionally unprecedented (as would an attack by one Ally against another). 

It is essential to emphasize that the absence of NAC authorization would not extinguish the Article 5 obligation to provide assistance in collective defense. That obligation could be satisfied through coordinated or unilateral action outside NATO command structures. If the assistance involved the use of force, it would be subject to the self-defense requirements of necessity and proportionality (Paramilitary Activities, ¶¶ 194, 237; Nuclear Weapons, ¶ 41; Oil Platforms, ¶¶ 43, 73-74, 76). 

What Assistance is Required?

While assistance is a binding obligation (subject to the request of the victim State) in the event of an armed attack, Article 5 does not require any particular form or level of assistance. This is clear from the “such action as [the assisting State] deems necessary” text in the article. In particular, it need not involve support at the level of a use of force or otherwise involve participation in the hostilities. The practice of individual Allies in the aftermath of the NAC’s determination that Article 5 applied to the 9/11 attacks is illustrative, as support ranged from overflight, intelligence sharing, and airspace surveillance to robust military action.

As I have noted elsewhere, such flexibility is not a defect in the treaty but instead a structural feature that allows the Alliance to function despite differing national threat perceptions and domestic legal and political processes for providing assistance. Thus, while a failure to provide any assistance to the victim State upon request could not be reconciled with Article 5 as a matter of treaty law, there is no quantitative or qualitative threshold of assistance beyond the requirement that the Allies act, as described above, in good faith in an effort to restore and maintain the security of the designated region.

Could the United States be Expelled from NATO?

Unlike the UN Charter, which provides for the expulsion of a member that has “persistently violated the Principles” of the UN Charter (art. 6), the North Atlantic Treaty, while allowing States to withdraw (art. 60), contains no comparable provision (on the issue of NATO expulsion (see Aurel Sari‘s excellent analysis). Therefore, the sole course of action other Allies could take in the face of the U.S. threats or subsequent military operations against Denmark would be to suspend or terminate the operation of the treaty on the basis that the United States is in “material breach.” The relevant law appears in Article 60 of the Vienna Convention on the Law of Treaties, which reflects customary international law (Gabčíkovo–Nagymaros, ¶ 46), an important point given that the United States is not a Party to the instrument.

A material breach involves “the violation of a provision essential to the accomplishment of the object or purpose of the treaty” (art. 60(3)). To the extent that the object and purpose of the treaty is the maintenance of “stability and well-being in the North Atlantic area” (preamble), and States have committed to assist each other to defend against armed attack, threatening an armed attack, let alone engaging in one, self-evidently amounts to a material breach. The decision to suspend or terminate would have to be unanimous (art. 60(2)(a)), although Denmark, as a “party specially affected,” could invoke the breach as a ground for suspension of the operation of the treaty as between itself and the United States (art. 60(2)(b). Suspension would entail the termination, in whole or in part, of rights and obligations under the treaty as between the United States and all other Allies; termination would permanently extinguish those rights and obligations. In such a case, North Atlantic Treaty obligations would continue in force for all other Allies.

Of course, suspending or terminating the obligation to assist the United States pursuant to Article 5 would be meaningless in the face of a U.S. armed attack on Denmark. However, it would probably sound the political death knell for U.S. participation in the Alliance. More immediately, it could help counter any argument that a U.S. objection in the NAC could bar NATO action. 

Concluding Thoughts

That this essay addresses whether other Allies would be obligated to assist in the collective defense of Denmark should the United States launch an armed attack against Greenland is astonishing. But it is no less remarkable that the United States would even threaten to use force against a NATO Ally that has fought at its side in recent conflicts in Afghanistan, Iraq, Syria, and elsewhere. Indeed, it is worth remembering that the per capita death rate of Danish troops in Afghanistan was on par with that of the United States, and those troops were there in the collective defense of the United States.

But considering recent events, it sadly makes sense to understand what Article 5 requires of Alliance members, and what it does not. Whether the Allies would come to Denmark’s defense if the United States attacked Greenland is uncertain, as is the manner in which they might do so. Nevertheless, it is clear that, in the event of a (hopefully unlikely) U.S. armed attack, the North Atlantic Treaty obligates other Allies to assist Denmark in collective defense should Denmark so request. That obligation would have to be performed in good faith and in light of the treaty’s object and purpose, although it leaves States discretion as to the form that assistance takes. Neither the identity of the attacker nor NATO’s internal decision-making practices negate that obligation.

The post The North Atlantic Treaty and a U.S. Attack on Denmark appeared first on Just Security.

January 6, 2026 Update: Q&As on U.S. Military Operation and Seizure of Nicolás Maduro (Questions 1-6)

1. Was the U.S. military operation and seizure of Nicolás Maduro a “use of force” under international law or a law enforcement operation?

It was both, and they are not mutually exclusive. While the Trump administration has leaned heavily into the law enforcement purpose of the raid (Maduro now faces charges in federal court in New York City), it was a military operation that involved U.S. armed forces conducting kinetic strikes against military (and potentially civilian) facilities within Venezuela before forcibly capturing the sitting head of state and his wife, and forcibly removing them from the country. The operation reportedly killed approximately 80 people. The operation was a use of force by one State against another under international law by any accepted definition of the term. 

Because there was no self-defense justification for the use of force (and of course, no U.N. Security Council authorization), it was an unlawful use of force. Specifically, it was a violation of Article 2(4) of the U.N. Charter and customary international law.

2. If the operation was a use of force against Venezuela, are the United States and Venezuela now in an “armed conflict”? And can they be in an armed conflict if the United States says they aren’t?

Yes and yes. As we have previously explained, the U.S. use of military force against Venezuela initiated an international armed conflict between the two countries. The Trump administration’s frequent characterization of the operation as having a law enforcement purpose does not change this. As we explained:

Under Common Article 2 of the 1949 Geneva Conventions, the existence of an international armed conflict is a question of fact. In other words, if there are hostilities between the States, there is an international armed conflict even if one of them does not formally recognize its existence. Common Article 2 is universally accepted as reflective of customary international law.

There are numerous challenging issues regarding the classification of conflicts, such as the precise threshold at which they are triggered and whether another State’s support of a non-State organized armed group that is engaged in hostilities with a State suffices to initiate an armed conflict between the two States. Those thornier issues are not relevant to these strikes and the Maduro capture operation. The intensity of the U.S. operations directed at Venezuela clearly crossed any conceivable threshold necessary to trigger an international armed conflict. To be clear, the operations put the United States and Venezuela in armed conflict as a matter of fact and of law. 

3. Does anything change as a result of the United States and Venezuela being in an international armed conflict?

Yes, there are meaningful consequences “ranging from the protections now owed to Venezuelan nationals in the United States, to the application of rules governing treatment of Maduro and his wife while in U.S. custody, to accountability for any war crimes committed in the course of the conflict,” as we previously explained. 

Most fundamentally, the law of armed conflict, including all four of the Geneva Conventions and other binding rules applicable in international armed conflicts, now governs operations and activities related to the conflict, including targeting and detention. Among other rules, the Fourth Geneva Convention’s protections for civilians who fall into the hands of the adversary apply. As defined in art. 4(1) of that treaty: 

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

As we have explained, Maduro’s wife Cilia Flores, and Venezuelan nationals in the United States, should be entitled to the protections afforded by the Fourth Geneva Convention:

As a civilian captured by attacking forces in an international armed conflict, Maduro’s wife is entitled to a robust set of protections afforded to captured civilians in GCIV.  Indeed, Flores qualifies as a “protected person”…  

A suite of protections also kicks in for other civilians who are nationals of one party to the conflict and find themselves in the hands of the adverse State. Accordingly, Venezuelans in the United States are now “protected persons” under the Fourth Geneva Convention, as are Americans inside Venezuela. This has far-ranging implications for U.S. immigration and related policies. For example, Venezuelans who are protected persons have rights including protection against “brutality” (GC IV art. 32), against collective punishment and reprisals (GC IV art. 33); parity of employment opportunities (GC IV art. 39), rules for return of detainees transferred to a third State as in CECOT/El Salvador (GC IV art. 45), and family unity in detention (GC IV art. 82).

4. Is Maduro also a “protected person” under the Fourth Geneva Convention?

Possibly, though he might be considered a prisoner of war given his status as commander-in-chief of Venezuela’s armed forces. In that case, he would be entitled to the extensive protections of the Third Geneva Convention on the Protection of Prisoners of War (GCIII). As we have previously explained, 

In the 1992 case of U.S. v. Noriega, a federal district court found that General Noriega was “entitled to the full range of rights under the [POW] treaty, which has been incorporated into U.S. law.” However, in that case, which involved Noriega’s seizure by U.S. forces during the 1989 invasion of Panama, the general was the military dictator of Panama and also commanded the Panama Defense Forces.

5. May the United States attack drug traffickers and drug-related assets and facilities now that there is an armed conflict with Venezuela?

No, drug traffickers may not be targeted, unless they are additionally participating in the military hostilities. As we have previously explained (see our fuller explanation here), drug trafficking activities do not constitute hostilities, combat, or an “attack” in the legal sense of those terms. That means:

attacking those involved in such activities in the context of this armed conflict would violate the law of armed conflict prohibition and constitute a war crime, so long as those civilians do not separately participate in the armed hostilities (in the absence of an armed conflict between the United States and Venezuela, those killings constituted murder, and extrajudicial killings under international human rights law, but were not war crimes because that body of law clearly did not apply). More difficult questions arise as to whether an attack on non-state actors ferrying drugs on the high seas would be related enough to the war between the United States and Venezuela (an armed conflict “nexus” requirement) to be governed by the law of armed conflict, and thus constitute a war crime. 

With respect to drug-related assets and facilities:

Whether drug-related assets and facilities may be attacked depends on whether the U.S. position on so-called war-sustaining (or revenue-generating) targets is correct and the factual extent to which Venezuela relies on drug proceeds to fund its war effort. The same is true of its oil production and exports. 

A war-sustaining entity “indirectly, but effectively supports and sustains the belligerents’ warfighting capability,” such as “exports of products the proceeds of which are used by the belligerent to purchase arms and armaments” (Commander’s Handbook, § 7.4). The prevailing view in international law is that war-sustaining objects do not qualify as targetable military objectives. However, the United States has, for decades, claimed that war-sustaining objects are legitimate military objectives. It is a position with which one of us agrees, but the others do not (DoD Law of War Manual, § 5.6.8). 

6. When does an international armed conflict end? 

Like the initiation of an international armed conflict, determining when an IAC ends is a question of fact unique to every case. A touchstone for such determinations is that the conflict terminates upon the “general close of military operations.” As the DoD Law of War Manual explains, “Hostilities end when opposing parties decide to end hostilities and actually do so” (§ 3.8.1). There must be stability, and the end of hostilities must display a high degree of permanence. Importantly, the ICRC correctly points out that not only must active hostilities have concluded, but there can be no “military movements of a bellicose nature, including those that reform, reorganize or reconstitute, so that the likelihood of the resumption of hostilities can reasonably be discarded.” Note that international armed conflict continues during ceasefires, which are temporary cessations in the hostilities, and continues during military occupation of the adversary’s territory, even in the absence of any fighting.

With massive U.S. forces in the area, the Trump administration’s expressed willingness to use further force as it deems necessary (including repeated threats of doing so if Venezuelan authorities do not “cooperate” with U.S. demands), and its continuing “military ‘quarantine’” of Venezuelan oil tankers, it is uncontestable that the international armed conflict between the United States and Venezuela continues as a matter of law as of writing [Jan. 6]. 

Pre-January 6, 2026 Q&A

7. Is it legal to use lethal force to target suspected drug trafficking boats on the high seas or kill those on board?

No. The United States is not in an armed conflict with any cartel or criminal gang. That means the law of armed conflict (LOAC), also known as international humanitarian law (IHL), does not apply to the military operations that began on Sept. 2. Domestic criminal law and international human rights law both prohibit these kinds of lethal strikes outside of armed conflict (such killings are known as murder and extrajudicial killings, respectively). All 21 strikes against suspected drug trafficking boats, killing 83 people to date, have been unlawful. 

8. What U.S. law applies to the lethal strikes against these boats and the people on board?

Normal peacetime laws apply, including federal laws prohibiting murder and conspiracy to commit murder. Under U.S. domestic criminal law, “the unlawful killing of a human being with malice aforethought” is murder, including when committed on the high seas (note: that law also applies during armed conflict). Article 118 of the Uniform Code of Military Justice also criminalizes murder, both when military personnel intend to kill and when they engage in an “act which is inherently dangerous to another and evinces a wanton disregard of human life.” The provision applies overseas, as well as during armed conflict when the death is not lawful under the law of armed conflict. These laws apply, depending on their role, to the individuals involved in ordering and carrying out the strikes. 

9. What international law applies to the lethal strikes against these boats and the people on board?

International human rights law applies. U.S. strikes on suspected drug traffickers at sea are extrajudicial killings – that is, arbitrary deprivations of the right to life under international human rights law (IHRL), an obligation that the United States acknowledges applies extraterritorially. A killing is arbitrary when it is not conducted “in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.” None of these circumstances were present in the boat strikes, in particular because those killed posed no imminent threat and other means of stopping the boats that are commonly used may have been feasible (i.e., interdiction). Note that States violate IHRL, not individuals. Individuals involved in these IHRL violations can be punished for murder or conspiracy to commit murder (see above).

10. Is the situation a non-international armed conflict (NIAC) as claimed by the administration?

No. NIACs are armed conflicts between a State and an organized armed group. There are two requirements for the existence of a NIAC. First, the non-state group must be both armed and organized. While cartels are typically well-organized, they are not per se “armed” in the sense of the law of armed conflict. “Armed” denotes engaging in violence against the State in an organized fashion; that the group may possess weapons used for other criminal activity does not suffice. A second requirement is that the armed violence between the State and the group must be protracted and intense; sporadic violence, including death, is not intense enough. Even if the intensity criterion could be satisfied at some point by virtue of the U.S. strikes continuing (this remains a contested area of law), the fact that the U.S. strikes are not directed at an organized armed group precludes characterization as a NIAC.

11. If there were an armed conflict with these groups (there is not), would killing people on the boats be lawful? 

It depends, but merely transporting drugs would not make a civilian targetable. If there was an armed conflict (there is not), an armed (fighting) wing of the cartel, should the cartel have one, could potentially meet the criteria for being considered an organized armed group. Members of it aboard the boats could be killed based on that status, although only so long as LOAC rules such as proportionality and precautions in attack are observed. The others who are merely operating the boats would have to qualify as civilians who may be targeted because they are “directly participating in hostilities” to be subject to attack. Although the threshold at which the conduct of a civilian amounts to “direct participation in hostilities” can be unclear in specific situations, merely transporting drugs would not qualify.

12. What about killing shipwrecked survivors of strikes at sea?

Killing shipwrecked survivors is clearly illegal and as unlawful as targeting those individuals with lethal force in the first place. If the United States were in an armed conflict (it is not), it would be illegal to target shipwrecked survivors at sea. The Department of Defense’s Law of War Manual (2023) uses exactly this rule as a paradigmatic example of a clearly illegal order:

18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal. (emphasis added)

If an order was given to leave no survivors – known as “denial of quarter” – that would also have been a clearly unlawful order, and anyone receiving that order had a duty not to follow it. 

13. Was killing the shipwrecked survivors of the Sept. 2 strike a war crime?

No, but that’s because war crimes are committed only during an armed conflict, and the United States was not (and is not today) in an armed conflict with the reportedly targeted group (Tren de Aragua). Killing the two shipwrecked survivors should be considered an extrajudicial killing under international human rights law, or murder under U.S. domestic law. An order to kill them would be unlawful whether in armed conflict or not. 

14. Do military personnel have an obligation to refuse to obey clearly illegal orders or orders the personnel know are illegal?

Yes. The DoD Law of War Manual explains, “The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal” (§ 18.3.2.1). The Manual for Courts-Martial, which applies to all orders, points out that although superior orders are presumed lawful, this presumption “does not apply to a patently illegal order, such as one that directs the commission of a crime.” Importantly, the duty to refuse an unlawful order is triggered only when the order is manifestly unlawful; if military personnel refuse to obey an order they believe to be unlawful, and the order is not, they may be punished for failing to follow it under the Uniform Code of Military Justice.

15. Is the fact that a member of the military was obeying an order from a superior a defense in a criminal case against them?

In some cases, no. Under both long-standing international and U.S. military law, the fact that the accused engaged in criminal conduct pursuant to a superior’s order is not a defense if the accused “knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (Manual for Courts-Martial, rule 916(d)). In other words, the question is whether the order was clearly unlawful or the accused knew it to be so. If not, they may defend themselves against the charges by arguing that orders are presumed lawful and that they had no reason to know the order was unlawful.

16.Would it have been lawful to target the boat in the follow-on strikes to destroy any remaining drugs, even if the survivors would be killed? [Q&A #10 was updated on Dec. 13, 2025]

No. Under international human rights law, which governed the strikes, it is unlawful to knowingly cause the death of individuals, even criminals, in order to destroy criminal assets, like drugs. And, as noted, the law of armed conflict does not apply (see above).

But even if the law of armed conflict did, it would appear impossible on the facts as reported to find the second strike lawful. The deaths of the two individuals, as either civilians or shipwrecked fighters (see above), would have to be factored into a proportionality analysis to assess whether the deaths were “excessive” relative to the anticipated military advantage of destroying the drugs. In other words, enough of the remaining drugs would likely have to be recoverable by other cartel members to justify killing the two survivors – a proposition that on its face is indefensible. And this is assuming that the recovery of the drugs would qualify as “military advantage” in the first place, a highly questionable proposition (one with which we disagree on the facts and the law). 

The U.S. Department of Defense seems to have taken the position that shipwrecked military personnel “generally” do not need to be considered in a proportionality assessment (DoD Law of War Manual, § 5.10.1.2). That is an interpretation with which we, and many others, including the ICRC, disagree. In their view and ours, such individuals need to be considered as part of the proportionality analysis. (See, e.g., GC II Commentary, ¶ 1403: “[I]f civilians are to be included in the proportionality assessment all the more so should the wounded, sick and shipwrecked.”)

Regardless, the DoD Law of War Manual (§ 5.10.1) emphasizes that “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.”  Thus, even by the express DoD view, if there were another feasible means of destroying or seizing the drugs without killing the survivors, the law of armed conflict rule on precautions in attack would prohibit an attack likely to kill them. (And again, all of this assumes the law of armed conflict applied, which it did not.)

Notably, the declassified 2012 Joint Chiefs of Staff’s No-Strike and the Collateral Damage Estimation Methodology states that the rule of proportionality applies not only to civilians but also to noncombatants, which includes, as a definitional matter, “the wounded, sick, and shipwrecked” (Enclosures D-1 & GL-5) (emphasis added). The 2021 Joint Staff Methodology for Combat Assessment also provides that “persons or objects that would not be lawful military targets in the circumstances ruling at the time” must be considered in a collateral damage assessment. (Enclosure GL-5; see also Enclosure D-1 referring to them as “noncombatants”) (emphasis added).

17. Was there a duty to try to rescue the survivors of the Sept. 2 attack?

Yes, if feasible. Under longstanding international law during both peacetime and armed conflict, there is an obligation to take practicable measures to rescue individuals who have been shipwrecked. It is one reflected in both the law of the sea and the law of armed conflict. During peacetime, the duty is to proceed at all possible speed to rescue persons in distress so long as doing so does not seriously endanger the ship or crew (Law of the Sea Convention, art. 98). This was the applicable obligation because the United States was not in an armed conflict. Nevertheless, even during armed conflict, according to the Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations, “following each naval engagement at sea, the belligerents are obligated to take all possible measures, consistent with the security of their forces, to search for and rescue the shipwrecked” (emphasis added). We note that the Department of Defense’s Law of War Manual states, “The obligations to search for, collect, and take affirmative steps to protect the wounded, sick, and shipwrecked are subject to practical limitations” (7.4.4).

18. Has the United States violated the prohibition on the use of force found in Article 2(4) of the UN Charter by striking the boats?

No. The prohibition applies only to using force against other States. The strikes are unlawful, but not as a violation of this UN Charter (and customary law) prohibition. A use of force against Venezuela (or within its territory but without its consent), absent an armed attack or imminent threat of one against the United States, would, however, implicate this prohibition (see below). 

19. Has there been an “armed attack” against the United States that would justify U.S. military force in self-defense?

No. States may only use force in self-defense in response to an imminent or ongoing “armed attack”  (UN Charter, art. 51). Despite the Trump administration’s claims, and even if all of the claimed facts were true, there has been no “armed attack” (or imminent threat of armed attack) by any drug cartel or criminal gang against the United States. Trafficking drugs into a country cannot alone constitute an armed attack that would trigger the right of self-defense in response. Therefore, the United States has no claim to use force in self-defense against any of these groups. 

20. Is the buildup of U.S. forces off the coast of Venezuela and  threats to employ them against Venezuela lawful?

No. Shows of force, such as exercises, are legal if designed to show resolve, as in the case of demonstrating a willingness to defend against an unlawful armed attack. But Article 2(4) of the UN Charter and customary law prohibit States from even threatening to use force unlawfully if the threats are communicated to the threatened State, coercive, and capable of being carried out. Senior U.S. officials, including the President, have openly and coercively suggested the forces could be used against Venezuela, and the U.S. military is obviously capable of mounting a large-scale attack against that State. Since the United States has no legal basis for using force against Venezuela or any drug cartels operating there (see above), the build-up with the accompanying threats is unlawful.

21. Would U.S. strikes on alleged cartel boats in Venezuelan waters or cartel facilities and personnel in Venezuela be lawful?

No. Military operations in Venezuelan territory would be unlawful as a use of force against Venezuela in clear violation of the UN Charter (art. 2(4)) and customary international law. Venezuela has not engaged in any activities that would qualify as an “armed attack” against the United States, the trigger for the right to use force against another State in self-defense. Nor have any of the cartels engaged in an armed attack against the United States, which, according to some States and experts, might open the door to operations against them on the basis that Venezuela is unwilling or unable to put an end to their hostile activities emanating from its territory.

22. May groups designated as Foreign Terrorist Organizations (FTOs) be targeted?

No, not on that basis alone. An FTO designation does not authorize the use of force against the designated organization or its members. It carries non-lethal penalties, such as making members of the FTO inadmissible to enter the United States and allowing for its assets to be blocked. An FTO designation “does not require or create a ‘war’ or ‘armed conflict’ between the designee and the United States (or any state).” Nor does it trigger any wartime authorities. In short, the administration’s designation of certain cartels and criminal gangs as FTOs (or otherwise describing them as “narcoterrorists”) does not provide a legal basis for using force against them. 

23. Should the President ask for authorization from Congress to take these strikes?

No, this is not a domestic law, war powers issue, because the United States is not at war. While it is true that the President is acting on claimed unilateral constitutional authority alone, no declaration of war or authorization to use military force by Congress could make these strikes lawful. That’s because, as described above, there has been no armed attack against the United States that could justify the resort to force in self-defense, and there is no armed conflict between the United States and any cartel or criminal gang. So while it is alarming that the executive branch is claiming authority to engage in a campaign of extrajudicial killings outside of armed conflict, there is no congressional action that could make those killings lawful.

24. May other States assist the U.S. military operations targeting suspected drug trafficking?

No. A State may not assist another State in violating international law. If it does, it will itself have violated international law to the extent of its assistance, so long as the conduct of the assisted State would also violate international law if carried out by the assisting State and the assisting State is aware of the circumstances in which its assistance will be used. Since the well-publicized U.S. operations violate international human rights law binding on all States, assistance, such as providing intelligence facilitating the strikes, would be unlawful. This explains why some States have shut off intelligence sharing that the United States could leverage to conduct these lethal operations.

Addendum I
Q&A Round 2 (published on Dec. 13)

25. Does the fact that the U.S. strikes occurred in international waters impact whether the situation qualifies as a non-international armed conflict?

No. As explained above, the gangs and cartels involved do not qualify as organized armed groups, so where the strikes occur is irrelevant to whether the situation qualifies as a non-international armed conflict (NIAC). 

But, solely for the sake of discussion, note that there are two views on the effect of geography on classification of a situation as a NIAC. One view, a possibility raised by the ICRC (here, para. 548), is that the law of armed conflict governing NIACs applies when hostilities that have already begun “spill over” into an adjacent State’s territory that is not involved in the NIAC (e.g., also fighting the group). Beyond that spill-over area, the situation does not qualify as a NIAC, and accordingly, the law of armed conflict does not apply. On this view, a NIAC also arguably cannot be initiated based on hostilities occurring only outside the territory of any State (an idea grounded in the specific wording of Common Article 3 of the Geneva Conventions). Applied to these strikes, their location far from the United States would be a further reason that the situation is not a NIAC to which the law of armed conflict applies.

The second view, with which we agree, is that there is no geographic limitation that applies to the initiation of a NIAC, and, therefore, the LOAC governing it (see, e.g., Tallinn Manual 2.0, pages 386-87). The sole criteria are the “organization” and “intensity” requirements (Tadić, ¶ 70), which we explained above. Thus, if the gangs or cartels were organized in a manner to conduct military-like operations (they are not), and hostile exchanges between the U.S. forces and those groups were of sufficient intensity (they are not), the fact that they are taking place far from U.S. shores would not bar qualification as a NIAC.

26. Would U.S. military operations into another State trigger an international armed conflict between the United States and that State?

In most cases, yes. An international armed conflict (IAC) exists whenever there are armed hostilities between States. Unlike non-international armed conflict, there is no intensity requirement – the requirement is only that there be “hostilities” (or unopposed occupation). If the United States conducts operations targeting the armed forces of another State or its State institutions, wherever they may be, those operations would initiate an IAC between the United States and that State. Moreover, if the United States attacks other property or people on a State’s territory, the situation also would qualify as an IAC. Once an IAC is triggered, all four of the 1949 Geneva Conventions, other treaty obligations governing IACs, and the customary law of armed conflict apply.

Whether non-forcible but non-consensual military operations into another State’s territory, such as overflight by military aircraft or the entry of warships into the territorial sea (other than innocent passage), would qualify as an IAC is unsettled. By the prevailing view, it would even if it meets no armed resistance. The operations would be treated as a hostile action against the territorial State, essentially an unopposed invasion. The opposing view is that mere intrusion into the territory of another State would not amount to an IAC until there was an exchange of fire or other hostilities (such as capture of property, territory, or people). 

The one possible exception involves operations targeting organized armed groups in another State’s territory that are not operating under the control of the territorial State, a topic addressed in the next question. 

Our answers to this and the next question only concern the qualification of a situation as an armed conflict for the purposes of determining whether LOAC applies. Such operations would separately raise issues regarding sovereignty, intervention into the internal affairs of other States, and the prohibition on the use of force under the UN Charter and customary law (explained above). 

27. Would U.S. strikes against a gang or drug cartel that took place inside another State’s territory, without its consent, trigger an international armed conflict between that State and the United States?

Unsettled. One State’s (e.g., the United States’) hostilities against a non-state actor (e.g., TdA) in another State’s territory (e.g., Venezuela) could, on one view, qualify as an international armed conflict between the two States. On this view, even if there was a NIAC between the State and a non-state actor, there would still be a separate international armed conflict triggered by military operations into the territorial State without its consent. This is the ICRC’s view and is the prevailing one. 

An alternative view, held by one of us (Schmitt), is that operations into another State’s territory might not constitute hostilities against it, thereby triggering an armed conflict between the two States. The latter view has been expressed in the context of a State exercising its right of self-defense against an organized armed group responsible for an armed attack against that State when the hostilities between them qualify as a NIAC. This is the U.S. position. But, it’s not clear that the view’s proponents would extend it to a scenario such as the present one, that does not involve an organized armed group or the right of self-defense, but instead just killing citizens and residents of the territorial State who are involved in transnational crime. (Schmitt would not endorse that view.)

28. May the requirement of protracted violence at a high level for qualification as a non-international armed conflict be satisfied if the group’s operations do not rise to that level, but when U.S. operations are considered, they do?

Yes. The groups against which the United States is acting do not qualify as organized armed groups in the first place (see above), so the level of violence is irrelevant, because both the organization and the intensity criteria must be met independently. But in theory, if a gang or cartel qualified as an OAG because it was organized to direct military-like operations against the United States, the intensity of the U.S. strikes could be considered to assess whether the requisite intensity threshold had been reached, even if the hostilities against the United States alone did not, although some scholars believe there needs to be exchanges of fire from both sides. (Note that this raises a separate question of how to characterize the current situation, in which multiple groups allegedly transporting drugs are being attacked by the United States. On this issue, see below.)

It must be emphasized that the only basis for determining whether the NIAC intensity criterion has been reached in this case is the U.S. strikes. This is because the actions by the gangs or cartels  to date (alleged drug trafficking) cannot be described as “combat,” “hostile action,” or “attacks.” Trafficking drugs is none of these. 

29. Can the requirement for the existence of a non-international armed conflict that hostilities reach the necessary level of “intensity” be satisfied by aggregating the hostilities multiple groups are conducting?

Rarely, and certainly not here. Before turning to the question, we remind readers that none of the actions of the gangs or cartels targeted for killing by the United States are of the kind that factor into the intensity requirement. Intensity is about organized armed groups (which these are not) conducting hostilities against a State, not engaging in suspected criminal acts. 

However, assuming that multiple gangs or cartels were directing violence against a State (they are not), and they qualified as OAGs (the vast majority do not), the intensity criterion would be applied group-by-group. Only those groups that were individually engaged in hostilities with the United States at the requisite level of intensity would be involved in a non-international armed conflict with it. 

The sole exception could be if organized armed groups were engaging in operations against the United States together – that is, collaboratively in time, purpose, and operational context, as in the case of military wings of such groups coordinating and deconflicting their operations against the United States. That is not happening here.

30. Have the U.S. operations, including the boat strikes and deployment of forces into the region, amounted to an unlawful intervention into the internal affairs of Venezuela?

Yes. Under customary international law, one State may not employ coercive means against another State with respect to the other State’s domaine réservé, that is, matters over which the latter is, in principle, free to decide without being bound by international legal obligations. Here, the United States is (at least) attempting to compel Venezuela’s President to step down. In other words, it seeks “regime change.” The choice of a State’s political leaders clearly falls within its domaine réservé; indeed, it is the paradigmatic example. This is so even if Maduro’s presidency is highly contested or “illegitimate,” and rightfully so. Moreover, the show of force and threats of military action by senior administration officials self-evidently qualify as coercive. The demand for regime change has been at least implicitly communicated to Venezuela, the United States has the means to carry it out, and it has expressed a willingness to do so. (See this analysis by one of us, Schmitt, on why those actions have already amounted to an unlawful threat of force.)

31. Under international law, was the boarding and seizure of the Skipper, an oil tanker reportedly part of the “shadow fleet” transporting crude oil from Venezuela to Iran, lawful?

Maybe. Boarding was likely lawful, but seizing the vessel is more unsettled. Boarding and seizing a vessel on the high seas is an exercise of “enforcement jurisdiction.” Article 92 of the UN Convention on the Law of the Sea, which reflects a customary law rule binding on States like the United States that are not party to the treaty, limits enforcement jurisdiction to flag States. Ships flying another State’s flag can still be boarded under certain conditions – with the permission of the Master (Captain) or the flag State (either ad hoc or by treaty), or with UN Security Council authorization – none of which apply in this case.

A Coast Guard Maritime Special Response Team reportedly boarded the Skipper following coordination within the U.S. government through the longstanding Maritime Operational Threat Response process. At the time, the Skipper was flying the Guyanese flag, although Guyana’s maritime authority stated it was not authorized to do so, suggesting the tanker may have been effectively Stateless. The ship was also reportedly broadcasting false location data, apparently to avoid interception. The United States placed sanctions on the vessel in 2022 based on claimed involvement in generating revenue for Hezbollah and the Islamic Revolutionary Guard Corps. More such boardings and seizures are anticipated.

The fact that the Skipper is under unilateral U.S. sanctions provides no international-law basis for boarding it.  However, if it reasonably appears a ship is flying a false flag or is otherwise “without nationality,” it is considered Stateless, which allows a warship of any country to board it to verify its status (UNCLOS, art. 110). That appears to be the situation here. But it does not answer the question of whether the ship could lawfully be seized. 

Under international law, the seizure of the Skipper is less well-settled. Many States, including the United States, contend that they may enforce their domestic law on or against a stateless ship, in this case by seizing a U.S.-sanctioned vessel. As noted in the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations, “Ships that are without nationality—stateless—may be boarded on the high seas and are subject to the jurisdiction of any State.” (§ 3.11.2). Here, a U.S. Magistrate had issued, on Nov. 26, a warrant to seize the Skipper “in international waters” based on a probable cause finding that the vessel and its cargo were subject to forfeiture under U.S. law. The Coast Guard executed the warrant on Dec. 10. The assertion that States may enforce domestic law aboard Stateless vessels in international waters is not universally accepted, with some States rejecting it altogether and others restricting what actions may be taken (e.g., limiting to situations in which there is a treaty basis for seizure, or for universal jurisdiction offenses, like war crimes). Note, in the context of counternarcotics operations, the United States has for decades seized Stateless vessels on the high seas, both unilaterally and in cooperation with other States. 

We thank Rear Admiral, United States Coast Guard (retired) William D. Baumgartner, former Judge Advocate General (TJAG) and former Commander, Seventh (now Southeast) District, for contributing significantly to the following Q & A.

32. How does the United States normally handle drug smugglers?

As a Coast Guard-led law enforcement operation. The United States has a special statute explicitly designed to address international drug smuggling by water, the Maritime Drug Law Enforcement Act (MDLEA). It is carefully tailored and has been adapted over four decades to provide for U.S. jurisdiction over a wide range of non-U.S. vessels found outside U.S. waters. Special provisions allow for U.S. prosecution for certain drug-related crimes with the cooperation of other nations or when no nation claims the smuggling vessel. Under the MDLEA, the U.S. Coast Guard works closely with other agencies, using forces from the U.S. Navy and other nations in a support capacity, to seize smugglers in the Caribbean and Pacific (down to South America). The Coast Guard also has special helicopters (HITRON) with gunners specially trained to shoot out the engines of drug smuggling boats and stop high-speed vessels. HITRON has stopped over 1,000 smuggling vessels in the last 25 years. During fiscal year 2025, ending on September 30, the Coast Guard intercepted over 500,000 pounds of cocaine – a record amount – with no deaths.

33. What happens to the boat crews?

Since the 1980s, crews seized by the Coast Guard have been prosecuted under the MDLEA and leveraged for intelligence on future smuggling operations. However, on Feb. 5, 2025, the Department of Justice announced that they would no longer prosecute boat crews seized under the MDLEA. Instead, those crews were to be returned to their home countries without being prosecuted or interrogated for intelligence purposes.

34. What international law applies to drug smuggling?

Drug smuggling is regarded as a law enforcement problem. The 1982 United Nations Law of the Sea Convention (UNCLOS), 1958 Convention on the High Seas, and Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the United States is a party to the latter two) apply and require cooperation from all States. In addition, the United States has over 30 bilateral agreements with other nations to make most drug smuggling interdictions seamless, regardless of the State or the location of the suspect boat.

35. How does drug smuggling compare to piracy?

Piracy and drug smuggling are distinct crimes, but international law treats both as law enforcement problems. Under UNCLOS and other treaties, piracy is a universal crime, and any State can stop, board, and seize pirates and their vessels. Under UNCLOS Art. 101, piracy is defined as acts of violence, detention, or depredation by the crew of one vessel directed against the passengers or crew of another ship. That definition clearly does not apply to the drug smuggling vessels currently being targeted. Even if it did, UNCLOS Art. 105 specifically calls for the “courts of the State” seizing and arresting pirates to determine the penalties for the offense. In 2011, a Somali pirate arrested for the attack on the M/V MAERSK ALABAMA was tried in U.S. courts and remains in a U.S. prison today.

36. Can force be used during law enforcement operations?

Yes, subject to a strict requirement of necessity when no alternatives are available. Force can be, and is, used in law enforcement operations against both drug smugglers and pirates. For non-lethal force, only the force necessary to compel compliance is authorized. This routinely includes warning shots across the bow of the suspect vessel and may include disabling fire intended to shoot out engines, steering gear, or control mechanisms as necessary to stop a fleeing vessel. Of course, deadly force aimed at individuals can be used if they open fire or otherwise present an imminent threat of death or serious bodily injury. 

What did we miss? Please send any additional questions to info@justsecurity.org.

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President Donald Trump quickly took to Truth Social to announce, “The United States of America has successfully carried out a large scale strike against Venezuela and its leader, President Nicolas Maduro, who has been, along with his wife, captured and flown out of the country. This operation was done in conjunction with U.S. Law Enforcement.” For his part, Secretary of State Marco Rubio explained that Maduro “has been arrested by U.S. personnel to stand trial on criminal charges in the United States, and that the kinetic action we saw tonight was deployed to protect and defend those executing the arrest warrant.” Attorney General Pam Bondi characterized the operations as law enforcement conducted by the armed forces.

Nicolas Maduro and his wife, Cilia Flores, have been indicted in the Southern District of New York.  Nicolas Maduro has been charged with Narco-Terrorism Conspiracy, Cocaine Importation Conspiracy, Possession of Machineguns and Destructive Devices, and Conspiracy to Possess Machineguns and Destructive Devices against the United States.  They will soon face the full wrath of American justice on American soil in American courts. 

She went on to thank “our brave military who conducted the incredible and highly successful mission to capture these two alleged international narco traffickers.” President Trump has since said the United States is going to “run” Venezuela “until such time as we can do a safe, proper and judicious transition.” 

The operation follows on the heels of 35 boat strikes that have killed at least 115, which the United States has justified based on self-defense, and a CIA drone strike in late December on a docking facility in Venezuela alleged to have been used by drug cartels. Presumably, the United States likewise justifies, in part, Saturday’s operation on the same basis, self-defense against drug trafficking into the United States.

In this article, we explain several international law issues raised by the operation, some of which have been addressed in greater depth in the Just Security collection of articles on the drug boat strikes and other operations dealing with Venezuela. In particular, Operation Absolute Resolve implicates the prohibition on the use of force against other States (e.g., under the UN Charter), extraterritorial law enforcement, and initiation of an international armed conflict (e.g., under the Geneva Conventions).

The bottom line is, unlike the boat strikes the U.S. military has carried out to date that have occurred in international waters against stateless vessels, this operation, striking Venezuela and abducting its president, is clearly a violation of the prohibition on the use of force in Article 2(4) of the UN Charter. That prohibition is the bedrock rule of the international system that separates the rule of law from anarchy, safeguards small States from their more powerful neighbors, and protects civilians from the devastation of war. The consequences of flouting this rule so brazenly are likely to extend well beyond the case of Maduro’s forcible ouster. Likewise, the initiation of an armed conflict – triggering the application of the law of armed conflict, including all four Geneva Conventions – has meaningful consequences, ranging from the protections now owed to Venezuelan nationals in the United States, to the application of rules governing treatment of Maduro and his wife while in U.S. custody, to accountability for any war crimes committed in the course of the conflict. 

An Unlawful Use of Force

The prohibition on the use of force: First and foremost, the U.S. operation striking Venezuela and abducting its president is a clear violation of the prohibition on the use of force except in self-defense against armed attack or with U.N. Security Council authorization, both of which are explained further below. The prohibition is set forth in Article 2(4) of the U.N. Charter, which provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Both the United States and Venezuela are Parties to the Charter, so the prohibition is undoubtedly binding under treaty law. Moreover, as the United States has long held and the International Court of Justice has noted, the prohibition reflects customary international law, which likewise binds the United States (Paramilitary Activities, ¶ 190). 

Any forcible action by one State against another triggers the prohibition. Accordingly, the U.S. operations constituted a prima facie breach unless justified by one of two narrow exceptions: 1) authorization by the U.N. Security Council under Chapter VII of the U.N. Charter; or 2) the inherent right of self-defense provided for in Article 51 of the Charter and customary international law. There being no Security Council authorization, the sole possible legal basis for the operation would be self-defense. 

In relevant part, Article 51 provides, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Thus, the legality of the U.S. operation turns on whether Venezuela has engaged in an “armed attack” against the United States (or an armed attack is imminent), triggering the right of self-defense, and, if so, whether the U.S. response was both “necessary and proportionate,” the two conditions for the use of force in self-defense (Paramilitary Activities, paras. 194, 237; Nuclear Weapons, para. 41; Oil Platforms, paras. 43, 73-74, 76). The conditions are relevant only if the first hurdle is crossed. As will be explained, it is clearly not.

No self-defense justification: The Trump administration has repeatedly justified its strikes on boats allegedly carrying drugs (largely involving cocaine, much of which is likely bound for Europe) on the basis of self-defense. For instance, early on, a White House spokesperson claimed they were “conducted against the operations of a designated terrorist organization and was taken in defense of vital U.S. national interests and in the collective self-defense of other nations.” Along these lines, a classified Justice Department memo apparently argues that force may be used against cartels because they pose an “imminent threat to Americans.” For these assertions to make any sense, the drug activity must be characterized as an “armed attack” against the United States. Indeed, in a statement to the UN Security Council in October, the U.S. representative said, “President Trump determined these cartels are non-state armed groups, designated them as terrorist organizations, and determined that their actions constitute an armed attack against the United States.”

It is on this basis that the United States may attempt to assert self-defense against Venezuela. As evidenced by the charges against Maduro both in 2020 and in the new superseding indictment, the administration links him and other government officials to the activities of drug cartels. For instance, in August, the State Department alleged,

Maduro helped manage and ultimately lead the Cartel of the Suns, a Venezuelan drug-trafficking organization comprised of high-ranking Venezuelan officials. As he gained power in Venezuela, Maduro participated in a corrupt and violent narco-terrorism conspiracy with the Revolutionary Armed Forces of Colombia (FARC), a designated Foreign Terrorist Organization. Maduro negotiated multi-ton shipments of FARC-produced cocaine; directed the Cartel of the Suns to provide military-grade weapons to the FARC; coordinated with narcotics traffickers in Honduras and other countries to facilitate large-scale drug trafficking; and solicited assistance from FARC leadership in training an unsanctioned militia group that functioned, in essence, as an armed forces unit for the Cartel of the Suns.

We have refuted the self-defense argument vis-à-vis the cartels in earlier articles (see, e.g., here and here). Drug trafficking simply does not qualify as, and has never been considered, an “armed attack.” In brief, the relationship between drug trafficking and the deaths that eventually result from drugs being purchased and used in the United States is far too attenuated to qualify as an armed attack. The drugs must be successfully transported into the country, where they are distributed to various drug organizations, and subsequently sold on the streets, in most cases by individuals who are unrelated to the original drug cartels. Willing buyers then purchase them; almost all survive. In fact, those deaths that occur run contrary to the interests of the cartels because they deprive the drug market of customers and risk deterring others from buying the drugs. 

It is indisputable that drug trafficking is condemnable criminal activity, but it is not the type of activity that triggers the right of self-defense in international law. It is not a use of force, it is not “hostilities,” and it is not “combat,” despite Trump administration officials using these labels when describing drug trafficking activity. 

The connection is even more attenuated in the case of Maduro and other members of the Venezuelan government who may be involved in drug activity. After all, the sole purpose of the cartels is to traffic drugs, whereas, if the allegations are true, the Venezuelan government’s involvement, albeit also condemnable, is less direct. Accordingly, if the self-defense argument does not work for drug cartels, asserting that it applies to Maduro and the Venezuelan government is even less plausible. Simply put, there is no basis for suggesting that any Venezuelan government involvement in drug activity rises to the level of an armed attack against the United States, giving it the right to resort to force against Venezuela to defend itself. This being so, the Operation Absolute Resolve was a clear violation of the international law prohibition on the use of force.

Distinguishing past practice – the Noriega case: Three points should be made about the closest historical example in U.S. practice: the 1989 U.S. operation to capture General Manuel Noriega in Panama and bring him to the United States to face drug smuggling and other charges. First, reaffirming the prohibition against the use of force, the U.N. General Assembly condemned the U.S. operation. The General Assembly stated that it “strongly deplores the intervention in Panama by the armed forces of the United States of America, which con­stitutes a flagrant violation of international law.” 

Second, the U.S. justifications for the Noriega-Panama operation distinguish it from the Maduro-Venezuela case. Most importantly, in the former case, the United States claimed to be acting by invitation of the rightful Head of State. “It was welcomed by the democratically elected government of Panama,” President George H.W. Bush informed the U.S. Congress in a War Powers Resolution report. Likewise, U.S. Ambassador Thomas Pickering told the U.N. Security Council, “United States action in Panama has been approved, applauded and welcomed by the democratically elected Government of Panama.” 

Third, as noted by President George H.W. Bush, the United States acted after the Panamanian National Assembly declared a state of war against the United States, and after forces under Noriega’s command “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.” Bush added that “General Noriega’s reckless threats and attacks upon Americans in Panama created an imminent danger to the 35,000 American citizens in Panama.” 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.” None of those factors is present here.

Venezuela may use necessary and proportionate force in self-defense: Based on the U.S. position that all wrongful uses of force are armed attacks, Venezuela has the right to use necessary and proportionate force against the United States’ armed attack to defend itself (DoD, Law of War Manual, §1.11.5.2; but see Paramilitary Activities, ¶ 191). Additionally, as provided for in Article 51 of the Charter, Venezuela may seek the assistance of other States acting in collective self-defense. 

Intervention into Venezuela’s Internal Affairs: Finally, we note that in addition to a violation of the use of force prohibition, the U.S. action to remove Maduro as Head of State amounts to an unlawful intervention into Venezuela’s internal affairs (“choice of political system,” Paramilitary Activities, ¶ 205). Regime change by one State in another amounts to intervention when it is “coercive” (¶ 206), which Saturday’s operation obviously was. 

[Update on Jan. 5: On Sunday, President Trump and Secretary Rubio made a series of statements that would violate the prohibition of intervention in the internal affairs of another country (as well as an unlawful threat to use force). Trump and Rubio stated that the current government must bow to their desires of how to run the country or else face U.S. military force and a personal fate like Maduro’s. The only legal difficulty here is whether a subset of those demands do not concern the Venezuelan State’s domaine réservé, that is, domestic matters over which a sovereign is, in principle, free to decide without being bound by international legal obligations. Control over the domestic natural resources is a paradigmatic case of a State’s domaine réservé (Paramilitary Activities, ¶ 205 (referencing “the choice of a political, economic, social and cultural system, and the formulation of foreign policy”). For more on these two topics – prohibition on intervention and the threat to use force, see #14 and #24 of our prior Expert Q&A, and Mike’s analysis of the prohibition on the threat to use force.] 

Extraterritorial Law Enforcement

The administration has framed the operation on Saturday and the seizure of Maduro and his wife in the context of law enforcement. The key international law issue in the case is the extraterritorial exercise of “enforcement jurisdiction,” specifically, the power to arrest. (One of us, Ryan, has explained why the administration’s reliance on a 1989 DOJ Office of Legal Counsel memo erroneously concluding that the president may, as a domestic law matter, “override” art. 2(4) of the UN Charter is flawed.). 

No enforcement jurisdiction in the territory of other States without their consent: There are three types of jurisdiction under international law: prescriptive (legislative), adjudicative (judicial), and enforcement (executive). International law allows a degree of prescriptive jurisdiction (the power to pass laws) over offences committed abroad, as perhaps alleged here. However, the exercise of enforcement jurisdiction is strictly limited to a State’s own territory (or in limited cases, in the commons, as in the case of jurisdiction aboard a flag state vessel). But on another State’s territory, the consent of that State is required (S.S. Lotus, PCIJ, page 18; Restatement Third of Foreign Relations, § 432). Without it, the action violates the territorial State’s sovereignty on two grounds. First, it is a violation of that State’s territorial sovereignty; this has clearly occurred. Second, it is an “usurpation” of an “inherently governmental function” by another State. In other words, the United States has engaged in governmental activity in Venezuela – law enforcement – that is exclusively the domain of the Venezuelan government.

A leading precedent involves the U.N. response to an extraterritorial law enforcement operation: the forcible apprehension of Nazi fugitive Adolph Eichmann in Argentina by Israeli agents in May 1960, and bringing him to trial in Israel for war crimes. With support from the United States, the U.N. Security Council passed a resolution stating:

Considering that the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations …
Noting that the repetition of acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded, creating an atmosphere of insecurity and distrust incompatible with the preservation of peace …
Requests the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law.

In 1989, the State Department’s legal adviser, Abe Sofaer, stated in written congressional testimony, “The United States has repeatedly associated itself with the view that unconsented arrests violate the principle of territorial integrity.” He added, “Arrests in foreign States without their consent have no legal justification under international law aside from self-defense.”

The United States claims, rightfully so, that Maduro’s presidency is not “legitimate.” However, that has no bearing on this situation. Even though the United States does not recognize the Maduro government as legitimate, international law provides that the relevant officials to grant consent are those of the government that exercises “effective control” over the territory, in this case, officials in the Maduro administration (Tinoco Arbitration, pages 381-82). Obviously, no such consent has been granted.

Head of state immunity and inviolability: Moreover, Maduro enjoyed immunity (known as “immunity ratione personae”) from foreign enforcement jurisdiction under customary international law. As noted by the International Court of Justice in its Arrest Warrant judgement, “it is firmly established that … certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal” (¶ 51; see also Certain Questions of Mutual Assistance, ¶¶ 170-174). 

Relatedly, the United States has observed that “in addition to immunity from criminal jurisdiction, heads of state, heads of government, and foreign ministers who enjoy personal immunity also benefit from personal inviolability, a protection that informs their treatment in the criminal context.” Such inviolability includes protection from arrest by other States while in office. (Comments from the United States on the International Law Commission’s Draft Articles on Criminal Immunity).

While in office, this immunity and inviolability is absolute and bars any form of enforcement jurisdiction by another State. The purpose of the immunity, as noted by the Court, is to “ensure the effective performance of their functions on behalf of their respective States” (¶ 53). It is a manifestation of the Principle of “sovereign equality” in international law (UN Charter, art. 2(1)). Where some might argue that an exception exists for Heads of State who commit serious war crimes and other atrocities, that is not relevant to the U.S. case against Maduro.

The Trump administration may argue that Maduro was not, in fact, the Head of State, given that his most recent re-election was neither free nor fair (we agree with that as a factual matter), and that the United States does not recognize his government. Similarly, following the Saturday swearing-in as interim President of Delcy Rodriguez, the United States may argue that he is no longer Head of State, even if he was previously so. Both arguments fail. First, withdrawing recognition of a government does not remove the personal immunity that the incumbent head of state enjoys under customary international law. Second, Rodriguez has said (post swearing in) that Maduro is “the only President of Venezuela,” and is calling for the release of Maduro and his wife.   

Unlawful use of lethal force: Even if international law permitted the United States to exercise enforcement jurisdiction in Venezuela, which it does not, the use of lethal force to do so was self-evidently unlawful. During law enforcement operations, resort to deadly force is lawful only when necessary in the face of an immediate threat of death or grievous bodily injury to the law enforcement officials or others (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also UN Human Rights Committee, General Comment 36, para 12). 

Secretary Rubio claims that the kinetic operations mounted by the U.S. armed forces were necessary to protect those taking custody of Maduro, presumably by preventing the Venezuelan armed forces from responding. However, the threat must be immediate and strictly necessary. The strikes were, instead, primarily preventive and anticipatory in character; they fall far outside the scope of permissible lethal measures during a law enforcement operation. If at least 80 people were killed, including civilians, that would be strong evidence that Rubio’s asserted justification is without legal merit. 

Moreover, it should be self-evident that “unit self-defense” (i.e., defense of a contingent of armed forces in a foreign country, as opposed to self-defense of the United States as a nation) cannot be the lawful basis for the use of force when any potential need for unit self-defense is only itself created in the first instance by the unlawful insertion of the U.S. forces.  

Recovery of Unlawfully Expropriated Oil Assets: We also note that Trump has claimed that Venezuela has “stolen” U.S. oil and assets and demanded their return. In 2007, Venezuela, under President Hugo Chavez, converted existing oil extraction contracts into State-controlled joint ventures. When some major foreign oil companies rejected these terms, their assets were expropriated without the required prompt, adequate, and effective compensation. Although Venezuela had previously nationalized the oil industry in 1976, these 2007 actions targeted foreign investors specifically and amounted to unlawful expropriations under international law. Trump is now offering to help American oil companies recover their wrongfully seized assets, reportedly contingent on compliance with U.S. policy priorities, although the nature and legality of these conditions remain unclear. 

However, one thing is clear from the outset: using force to acquire those assets is unlawful, as the action does not qualify as self-defense, no matter how unlawful the expropriation may have been. And even if it did, the forcible U.S. action does not comport with the necessity condition for self-defense because there are non-forcible avenues that could be pursued. Examples include retorsion, arbitration, and countermeasures under the law of State responsibility (Articles on State Responsibility, art. 22). Simply put, the United States may not simply seize back the assets by force.

We do not address here the potential violation, if not war crime, of the law of armed conflict for pillaging another State’s natural resources. Readers may wish to consult James Stewart’s prior analysis in a 2016 essay at Just Security.

Armed Conflict

Putting aside the issue of whether the U.S. operation violated international law, which it undoubtedly did, it also initiated an “international armed conflict” between the United States and Venezuela. This is so regardless of how the United States might characterize the operations. Under Common Article 2 of the 1949 Geneva Conventions, the existence of an international armed conflict is a question of fact. In other words, if there are hostilities between the States, there is an international armed conflict even if one of them does not formally recognize its existence. Common Article 2 is universally accepted as reflective of customary international law.

There are numerous challenging issues regarding the classification of conflicts, such as the precise threshold at which they are triggered and whether another State’s support of a non-State organized armed group that is engaged in hostilities with a State suffices to initiate an armed conflict between the two States. Those thornier issues are not relevant to these strikes and the Maduro capture operation. The intensity of the U.S. operations directed at Venezuela clearly crossed any conceivable threshold necessary to trigger an international armed conflict. To be clear, the operations put the United States and Venezuela in armed conflict as a matter of fact and of law. 

(Note: If the United States began “running the country,” as President Trump suggested, an enduring international armed conflict may exist. That’s because a military occupation of another country, even if it meets with no armed resistance, is classified as an “international armed conflict.” More on the law of occupation is below.)

The consequences are profound. To begin with, the law of armed conflict, including all four of the Geneva Conventions, now applies. Of particular note, the rules for targeting permit Venezuelan forces to attack U.S. forces anywhere in Venezuelan or U.S. territory, and on the high seas, in international airspace, or in outer space (so-called “status-based targeting”). The law of armed conflict also prohibits targeting civilians and civilian objects (DoD Law of War Manual (§ 5.5). This is especially relevant to the issue of whether operations may now be directed at drug-related targets in Venezuela. 

Targeting individuals involved in drug trafficking: Individuals involved in drug activities do not qualify as lawful targets unless they are members of the armed forces or “directly participating in the hostilities.” As explained in the DoD Law of War Manual (§ 5.8.3): “At a minimum, taking a direct part in hostilities includes actions that are, by their nature and purpose, intended to cause actual harm to the enemy.”

As is apparent, drug-related activities do not satisfy this standard (see our fuller explanation here). Accordingly, attacking those involved in such activities in the context of this armed conflict would violate the law of armed conflict prohibition and constitute a war crime, so long as those civilians do not separately participate in the armed hostilities (in the absence of an armed conflict between the United States and Venezuela, those killings constituted murder, and extrajudicial killings under international human rights law, but were not war crimes because that body of law clearly did not apply). More difficult questions arise as to whether an attack on non-state actors ferrying drugs on the high seas would be related enough to the war between the United States and Venezuela (an armed conflict “nexus” requirement) to be governed by the law of armed conflict, and thus constitute a war crime. 

Targeting drug-related assets and facilities: Whether drug-related assets and facilities may be attacked depends on whether the U.S. position on so-called war-sustaining (or revenue-generating) targets is correct and the factual extent to which Venezuela relies on drug proceeds to fund its war effort. The same is true of its oil production and exports. 

A war-sustaining entity “indirectly, but effectively supports and sustains the belligerents’ warfighting capability,” such as “exports of products the proceeds of which are used by the belligerent to purchase arms and armaments” (Commander’s Handbook, § 7.4). The prevailing view in international law is that war-sustaining objects do not qualify as targetable military objectives. However, the United States has, for decades, claimed that war-sustaining objects are legitimate military objectives. It is a position with which one of us agrees, but the others do not (DoD Law of War Manual, § 5.6.8). 

To the extent neutrality law survives the U.N. Charter era (a much-debated question), it also now applies. Since the United States is the aggressor in this situation, under the “qualified neutrality” interpretation of neutrality law asserted by the United States, all States would be prohibited from providing it any assistance. Yet, they could come to Venezuela’s assistance without violating their neutrality law obligations. 

The law of occupation would apply if the United States exercises “effective control”: In light of President Trump’s claim that “we are going to run the country now,” the law of occupation outlined in the Fourth Geneva Convention (GCIV) will apply if the United States exerts “effective control” of Venezuela. For now, it seems unlikely, based on the current facts (no U.S. troops on the ground, the swearing in of Vice President Rodriguez as interim President), that this situation will develop. Thus, while Trump has essentially used the rhetoric of occupation through coercion of proxy officials, the United States has not attempted to control territory itself, nor is it at all clear that officials who do exercise governmental authority will act as directed by the United States.

Prisoner of war and “protected person” status under the Geneva Conventions: As a civilian captured by attacking forces in an international armed conflict, Maduro’s wife is entitled to a robust set of protections afforded to captured civilians in GCIV.  Indeed, Flores qualifies as a “protected person,” as defined in art. 4(1) of that treaty:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Arguably, Maduro also qualifies as a protected person. Given his status as commander-in-chief of Venezuela’s armed forces, he might also be considered a prisoner of war entitled to the extensive protections of the Third Geneva Convention on the Protection of Prisoners of War (GCIII). In the 1992 case of U.S. v. Noriega, a federal district court found that General Noriega was “entitled to the full range of rights under the [POW] treaty, which has been incorporated into U.S. law.” However, in that case, which involved Noriega’s seizure by U.S. forces during the 1989 invasion of Panama, the general was the military dictator of Panama and also commanded the Panama Defense Forces.

A suite of protections also kicks in for other civilians who are nationals of one party to the conflict and find themselves in the hands of the adverse State. Accordingly, Venezuelans in the United States are now “protected persons” under the Fourth Geneva Convention, as are Americans inside Venezuela. This has far-ranging implications for U.S. immigration and related policies. For example, Venezuelans who are protected persons have rights including protection against “brutality” (GC IV art. 32), against collective punishment and reprisals (GC IV art. 33); parity of employment opportunities (GC IV art. 39), rules for return of detainees transferred to a third State as in CECOT/El Salvador (GC IV art. 45), and family unity in detention (GC IV art. 82).

Concluding Thoughts

The operation against Venezuela, which culminated in the capture of President Maduro and his wife, amounts to a severe breach of foundational principles of international law. It constitutes a clear violation of the prohibition on the use of force enshrined in Article 2(4) of the UN Charter. The claim that drug trafficking, or State involvement in such trafficking, constitutes an “armed attack” sufficient to justify a forcible response in self-defense has no support in customary international law or State practice.

Nor can the exercise of extraterritorial enforcement of domestic criminal law, even against narco- traffickers or indicted heads of State, be justified in the absence of Venezuela’s consent. By exercising enforcement jurisdiction there, the United States has violated Venezuelan sovereignty both because the operation occurred on its territory and because it has usurped an inherently governmental function (law enforcement) exclusively enjoyed by Venezuela. Moreover, despite any crimes he may have committed, Maduro’s seizure violates the long-standing rule of immunity ratione personae for heads of State.

In addition to violating bedrock jus ad bellum rules governing the resort to force and the sovereignty of Venezuela, the operation has triggered an international armed conflict between the United States and Venezuela. The legal consequences are immediate and sweeping – the whole body of the law of armed conflict now applies, including the law governing detention, the conduct of hostilities, protected persons, and war crimes.

The U.S. operation has long-term implications for the integrity of the international legal order, including the systems put in place to prevent war and protect States from using their criminal enforcement powers to intrude on other countries’ sovereign prerogatives.

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According to the CENTCOM Commander, Admiral Brad Cooper, Operation Hawkeye Strike was “critical to preventing ISIS from inspiring terrorist plots and attacks against the U.S. homeland … We will continue to relentlessly pursue terrorists who seek to harm Americans and our partners across the region.” CENTCOM pointed out that this is a continuation of a campaign in which “U.S. and partner forces in Syria have conducted more than 80 operations over the last six months to eliminate terrorists posing a direct threat to the United States and regional security.”

Following the operation, both President Donald Trump and Secretary Pete Hegseth took to social media. On Truth Social, Trump announced that “the United States is inflicting very serious retaliation, just as I promised, on the murderous terrorists responsible.” He continued, “All terrorists who are evil enough to attack Americans are hereby warned — YOU WILL BE HIT HARDER THAN YOU HAVE EVER BEEN HIT BEFORE IF YOU, IN ANY WAY, ATTACK OR THREATEN THE U.S.A.” For his part, Hegseth used X to warn, “This is not the beginning of a war — it is a declaration of vengeance. The United States of America, under President Trump’s leadership, will never hesitate and never relent to defend our people.” 

Syria appears supportive of Operation Hawkeye Strike. In his Truth Social post, for example, Trump stated that “the Government of Syria … is fully in support.” Following the attacks, Syria’s Ministry of Foreign Affairs appeared to confirm the President’s claim. After offering condolences to victims’ families, it stated on X that “this tragic loss underscores the urgent necessity of strengthening international cooperation to combat terrorism in all its forms.” The post continued,

The Syrian Arab Republic reiterates its steadfast commitment to fighting ISIS and ensuring that it has no safe havens on Syrian territory, and will continue to intensify military operations against it wherever it poses a threat.

The Syrian Arab Republic invites the United States and member states of the international coalition to support these efforts in a manner that contributes to the protection of civilians and the restoration of security and stability in the region.

Syria remains an active battlefield, with ISIS fielding, by some estimates (others are lower), as many as 5,000 to 7,000 fighters in Iraq and Syria. Fighting between ISIS and the new Syrian regime has been intense since the latter gained power in March. Also engaging ISIS is the U.S.-led Combined Joint Task Force Inherent Resolve, which acts as the military component of the broader Global Coalition to Defeat ISIS.  

On Nov. 11, the day after Syrian President Ahmed al-Sharaa traveled to the United States to meet with President Trump, Syria joined the Global Coalition, bringing the membership to 90. Military cooperation in the fight against ISIS began even earlier, for instance, with the United States sharing intelligence on ISIS with Hayʼat Tahrir al-Sham, which overthrew former President Bashar al-Assad’s regime. Since then, there have been regular joint operations between Coalition forces and Syrian security forces against ISIS.

The statements by Trump and Hegseth, as well as earlier ones, have sparked a behind-the-curtain discussion among international law experts over whether Operation Hawkeye Strike complied with the international law restrictions on the use of force set forth in the jus ad bellum. These are found principally in the UN Charter’s Article 2(4) prohibition on the use of force against other States and Article 51’s right of self-defense in the face of an “armed attack.” In this article, we explain why the operation was lawful, as would be future such operations by U.S. and Coalition forces against ISIS. In our estimation, there are two independently viable justifications for these and any such follow-on strikes.

Retaliation, Vengeance, and Deterrence

Before turning to the grounds on which Operation Hawkeye Strike can be legally justified, it is first necessary to address the Trump and Hegseth posts, because they raise the issue of the motivation for using force under international law. States and their citizenry often harbor a desire for retaliation, reprisal, vengeance, punishment, and the like. Indeed, their leaders typically vow to act, or claim to have acted, as Trump and Hegseth have, on those bases. It would be naive to deny that many, if not most, forcible responses to attacks are in fact motivated by just such emotions. But to be clear, there is no basis in international law for acting on them as such. In other words, a response may be based on a desire to strike back for these reasons, but there must be a separate basis in international law for conducting the operation.

Deterrence is slightly more nuanced. Although States will often rhetorically claim to be using force to deter an attack, there is no right in international law to do so. In other words, a mere threat of an attack does not trigger a legal right to act forcibly to prevent it. For instance, a potential adversary’s acquisition of the capability to mount an armed attack does not open the door to taking forcible action against that capability. Nor does a desire to use force to affect the will of an adversary that might be considering an attack.

Of course, deterrence often motivates actions that are otherwise lawful. In the law of self-defense, States facing an “imminent armed attack” may use force to prevent that attack by striking first, including by mounting forcible actions that deter the attacker from deciding to execute it. We hasten to add that disagreement exists over when the right to anticipatory self-defense is triggered (one view involves a “last window of opportunity” approach, while other views focus more on temporal proximity). Whatever the correct interpretation, forcibly deterring an attacker from carrying out the attack is clearly lawful once an attack is imminent (some might call it “repelling” rather than “deterring” an imminent attack).

Force motivated by deterrence can also be lawful following an action qualifying as an armed attack. If the attack was a one-off and unlikely to be repeated, any forcible action against the attacker would be mere retaliation or punishment. However, as we have argued, if the victim state reasonably concludes that the attack is but the first in a “campaign” against it, it may employ force to persuade its attacker to desist (see Schmitt,  Goodman, and Ruys) . Although there is a risk that the victim State will mistakenly conclude that further strikes by its attacker will occur, it is reasonable for the attacker to bear the risk of miscalculation, so long as the victim State’s conclusion that it has suffered only the first (or the next) in a series of attacks is reasonable in the circumstances. 

The point is that, like retaliation and vengeance, deterrence, as such, provides no independent basis for using force during Operation Hawkeye Strike or any other resort to force. 

Assistance to Syria 

In international law, one State may come to the assistance of another to engage in law enforcement activities or to conduct hostilities during an international or non-international armed conflict (Paramilitary Activities, ¶ 246). Such assistance may only be afforded based on the consent of the State receiving it, a point reflected in the International Law Commission’s recognition of consent as a customary law “circumstance precluding wrongfulness” in its Articles on State Responsibility (art. 21). The same is true when the assisting State is acting in collective defense of the other State (Paramilitary Activities, ¶ 199) under Article 51 of the UN Charter, because collective self-defense is always conditioned on a request from the State facing an armed attack. And with respect to consent, the al-Sharaa government is the proper source of authority for Syria, even though it took power by force; that’s due to the effective control doctrine under international law.

Syria and ISIS are undeniably involved in a non-international armed conflict. As accurately noted by the Geneva Academy’s War Watch project, “the frequency, organization, and sophistication of the attacks involving Islamic State and the Syrian government remain sufficient to satisfy the intensity threshold under IHL.” This being so, the Syrian government may request assistance in that fight from other States, which it has done by joining the Global Coalition. 

The nature and scope of any assistance provided is strictly limited to that consented to by Syria. Thus, even though Syria has consented to the presence of Coalition forces and their counter-ISIS operations in general, it could impose limits on those operations, including requiring pre-approval for missions. Open-source material does not provide sufficient detail to definitively determine that Operation Hawkeye Strike fell within the parameters of Syrian consent. However, given the apparent lack of Syrian objection to any of them and Syria’s supportive statements, it would appear that they do. In this regard, it must be cautioned that while consent may be explicit or implied, mere acquiescence in the face of a Hobson’s choice is not consent. Yet the Ministry of Foreign Affairs’ post, appearing on the same day as the U.S. strikes, clearly signals implied (almost explicit) consent, even if after the fact. 

Finally, not only are the operations such as Hawkeye Strike conditioned on the consent of Syria as the assisted State, but international law also constrains them. To begin with, only operations that Syria would be entitled to engage in may be conducted by its Coalition partners, since the latter’s authority to act derives from the former’s. It is indisputable that Syria may use force against ISIS or any other armed group to maintain domestic order. And since the level of violence between Syria and ISIS has reached the level of a NIAC, the law of armed conflict applicable to such situations governs the operations of both sides. Thus, Coalition forces would be entitled to engage in operations permitted by the body of law, such as status-based targeting, but would also be subject to restrictive rules, such as proportionality and the prohibition of indiscriminate attacks. The Operation Hawkeye Strike targets appear to have been classic military objectives under the law of armed conflict, and there is no indication that U.S. or Jordanian forces violated any of its prohibitions or restrictions.

U.S. Unilateral Self-Defense 

The origins of hostilities between U.S. forces and ISIS are twofold. First, ISIS’s predecessor, Al Qaeda of Iraq, arose in armed response to the 2003 U.S. intervention in that country. Hostilities later occurred in the context of ISIS operations against Iraq in 2014, with the United States assisting Iraq in collective self-defense by conducting operations against the group, including, at Iraq’s request, ISIS targets in Syria. That effort led to the establishment of Operation Inherent Resolve. 

Soon after the United States began assisting Iraq against ISIS, the group started targeting U.S. forces and U.S. citizens, including journalist James Foley, in a manner unrelated to the Iraq-ISIS conflict. Those attacks continued unabated even after ISIS lost control, in 2019, of the territory it had conquered. The Dec. 13, 2025 attack that killed the three Americans is only the most recent. (see Tom Joscelyn’s assessment, in Just Security, of the continuing ISIS threat in 2024 and 2025.)

The United States is of the view that States enjoy a right of self-defense against non-State actors, and rightfully so (DoD Law of War Manual, § 1.11.5.4). It is on this basis that it has long justified actions against non-State groups in Syria as an exercise of self-defense under Article 51 of the UN Charter (e.g., see Ambassador Samantha Power’s letter to the UN in 2014; and see here). It must be acknowledged, however, that the extension of self-defense to attacks by non-State actors is not a universally held position (see Haque; Hakimi; Armed Activities, para. 146; and Wall, para. 139). 

An exercise of the right of self-defense must comply with the universally accepted criteria of necessity and proportionality (Paramilitary Activities, paras. 194, 237; Nuclear Weapons, para. 41; Oil Platforms, paras. 43, 73-74, 76). The criterion of necessity provides that force may be used only when there are no viable non-forcible means to address an imminent or ongoing armed attack, including a campaign consisting of multiple related operations. That criterion is clearly met with regard to Operation Hawkeye Strike, as there is no plausible suggestion that negotiations or other non-forcible actions can convince ISIS to end its attacks on U.S. assets. Moreover, necessity has a temporal element as well in the sense that the need to use force must be present at the time of the strike. That requirement is met because, as explained above, the right to self-defense exists throughout a campaign of related attacks, which is the case in the repeated ISIS attacks on U.S. forces and assets. The necessity criterion is plainly satisfied. 

Whereas necessity is about whether force may be resorted to, the criterion of proportionality limits the degree of force used in self-defense to that which is required in the circumstances to put an end to the armed attack. In this case, Operation Hawkeye Strike dealt a powerful blow against ISIS capabilities that the group could use to continue attacking U.S. forces and other American assets and individuals. However, the attacks did not exceed the proportionality threshold, for it is implausible that the 70 strikes destroyed ISIS’s capability to mount further attacks. 

Even though, in our view, the United States has a clear right to use force against ISIS in self-defense, it still needs an international law basis for conducting operations in Syria, lest it violate that State’s sovereignty or, perhaps, also violate the UN Charter’s Article 2(4) prohibition on the use of force against other States. In this regard, the DoD Law of War Manual states, “Military action in the territory of another State is not a violation of Article 2(4)’s prohibition against the use of force against that State where it consents to such military action” (§ 1.11.4.3). The fact that the new Syrian government has allowed U.S. forces to remain in the country and continue to mount operations on that basis is strong evidence of Syrian consent to the U.S. exercise of self-defense against ISIS on Syrian territory. Moreover, the earlier discussion of consent in the context of assistance to Syria would apply equally here.

Because of this consent, Operation Hawkeye Strike and other related operations do not raise the specter of the so-called “unwilling or unable” approach to self-defense, according to which a State may engage in self-defense on the territory of another State that will not or cannot put an end to a non-State actor’s armed attack from its territory. Although the United States has long accepted the doctrine (see also Schmitt) and has previously proffered it to justify operations in Syria, it remains controversial (DoD Law of War Manual, §17.18.2). But unless Syria decides to begin limiting U.S. operations against ISIS in a way that leads the United States to conclude it may not effectively defend itself, that doctrine will remain dormant vis-à-vis operations in Syria.

Finally, although it does not bear on the right to resort to force in the first place under the jus ad bellum, the United States is presently engaged in a non-international armed conflict with ISIS, a characterization supported, for instance, by the Geneva Academy’s War Watch project. Applying the well-accepted Tadic criteria of organization and intensity for the existence of such conflicts (¶ 562), ISIS remains well-organized militarily; the conflict, which has raged for a period measured in years, is protracted; and the recent round of hostilities is just another reminder that the requisite level of intensity has been reached. This being so, the law of armed conflict is the applicable legal regime for U.S. and ISIS operations. As noted, the Operation Hawkeye Strike attacks appear to have been executed in compliance with that body of law.

Concluding Thoughts

In sum, Operation Hawkeye Strike fits neatly into the normative architecture of the law governing the use of force, the jus ad bellum. First, it may be treated as a form of military assistance to Syria in support of its non-international armed conflict with ISIS. Second, the operation can be characterized as an appropriate exercise of unilateral national self-defense under Article 51 mounted on Syrian territory with the consent of that State.

This case demonstrates that where a territorial State affirmatively consents and cooperates, the legal analysis with respect to other States operating there is relatively straightforward, even in the face of a complex situation on the ground. It also underscores the importance of distinguishing the formal legal basis for a use of force from the motivations that often accompany it in public discourse. Despite the rhetorical framing of Operation Hawkeye Strike in terms of retaliation and vengeance by President Trump and Secretary Hegseth, and the more generalized appeals to deterrence, the episode demonstrates that international law provides a satisfactory legal foundation for future U.S. and Global Coalition military activity in Syria.

The post Operation Hawkeye Strike: Attacking ISIS in Syria and International Law appeared first on Just Security.

While Trump accurately characterizes the Maduro regime as illegitimate, having failed to turn over power after losing the July 2024 elections, the claims about Venezuela being a major source of drugs coming into the United States fall apart upon examination. But one can even assume for the sake of analysis that the claims are correct, because they would not change the international law analysis.

In this article, we examine the Trump administration’s announced blockade from an international law perspective. There are basically two questions. First, would mounting such a blockade violate the prohibition on the threat or use of force under Article 2(4) of the UN Charter and customary international law? And second, would doing so initiate an international armed conflict between the United States and Venezuela, triggering the applicable law of armed conflict? 

Before turning to these issues, it is first necessary to distinguish the operation Trump is threatening from blockades during armed conflict governed by the law of naval warfare, for which there is well-developed law containing granular requirements. Under the law of naval warfare, “[a] blockade is an operation by a belligerent State to prevent vessels and/or aircraft of all States, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy belligerent State” (DoD Law of War Manual, § 13.10; see also Newport Manual on the Law of Naval Warfare, Drew, Heintschel von Heinegg). 

We are not there yet because, so far, there is no international armed conflict with Venezuela. And the nature of the proposed interference with shipping would not qualify as a naval warfare blockade. Therefore, in the first part of this article, the term “blockade” is used to denote the threat or use of armed force to prevent specified vessels from entering or leaving the territorial waters of Venezuela. But as will become clear, status as a blockade meeting the requirements for such under the law of naval warfare does bear on whether the situation qualifies as an armed conflict. It is this form of blockade that we examine in the second part of the article.

Finally, we do not deal with the international criminal law implications of the action. However,  it merits mention that the International Criminal Court Statute includes blockade (art. 8 bis (2)(c)) as a form of the crime of aggression. In our view, the offense is also of a customary character, and some States take the position that the crime of aggression is subject to universal jurisdiction. Of course, any attempt to prosecute U.S. officials who decided to implement the operations would face significant legal, practical, and political hurdles. The particularities of the ICC Statute on the crime of aggression preclude application to the United States.

Blockade as a Threat or Use of Force?

Article 2(4) of the UN Charter, which reflects customary international law, provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

Before turning to the question of whether a blockade qualifies as a use of force, readers are reminded that U.S. operations already violate the prohibition on threatening force, a topic examined in detail in a previous Just Security article. As explained there, the threat must be communicated, coercive, credible, and threaten unlawful force, criteria that have already been satisfied by the administration’s statements and the nature of the U.S. military deployment into the area. The Truth Social post threat to use force against Venezuela if Maduro does not capitulate further strengthens characterization of the U.S. operations in the region as a threat in violation of Article 2(4) and customary law.

Whether the threat of a blockade, as distinct from threatened operations into Venezuela, violates the prohibition on threats depends on the lawfulness of the threatened blockade. And, once the United States implements the blockade, which it presumably will do imminently, the question becomes whether it amounts to an unlawful use of force. 

As a matter of law, peacetime “blockades” qualify as a use of force even before force is used against ships attempting to breach them. This characterization is relatively well-settled in international law.  For instance, Article 42 of the UN Charter allows the UN Security Council to authorize “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” It may do so after determining that “measures not involving the use of armed force” under Article 41 “would be inadequate or have proved to be inadequate.” Article 42 cites “blockade” as an example of an operation the Security Council can authorize when non-forceful measures have failed or are likely to prove ineffective. Although not every measure authorized under Article 42 need qualify as a use of force, the fact that the article cites blockade in contrast to non-forceful measures referenced in Article 41 supports such a characterization.

Even more telling is the U.N. General Assembly’s Definition of Aggression Resolution (UNGA 3314), adopted by consensus in 1974 without objection from the United States. The resolution was adopted in part to clarify Article 39 of the UN Charter, which is the trigger for action under Chapter VII, in particular Articles 41 and 42. Aggression is one of the situations cited in Article 39 as activating those articles; the others are a “threat to the peace” and a “breach of the peace.”

Article 1 of the resolution provides, “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The article’s verbatim inclusion of the language from the UN Charter’s prohibition on the use of force confirms that all acts of aggression constitute uses of force. Indeed, the preamble to the resolution states that “aggression is the most serious and dangerous form of the illegal use of force.” 

So, it is clear that if an act constitutes aggression, it necessarily involves the use of force. Usefully, Article 3 of the Resolution provides a list of non-exhaustive acts that “qualify as an act of aggression. Among them is “[t]he blockade of the ports or coasts of a State by the armed forces of another State” (art. 3(c)). Thus, not only is a blockade a use of force, but it is also a specifically particularized — indeed, “most serious and dangerous” – form of it.

Eminent scholars are in accord. Ian Brownlie, in his classic 1963 work, International Law and the Use of Force by States, observed that “a naval blockade involves an unlawful use of force, although the tactical posture is passive, since its actual enforcement includes the use of force against vessels of the coastal state”(pages 365-66). The same year, in a famous American Journal of International Law article, Quincy Wright dismissed the argument that the so-called maritime “quarantine” of Cuba the United States established in response to the installation of Soviet nuclear missiles on the island could qualify as a “pacific blockade,” a term referring to the 19th century practice of a blockade imposed outside a state of war and directed solely at the target State’s vessels. As Wright noted, the U.N. Charter had extinguished any right under international law to impose such a blockade. He concluded, “It cannot be easily argued … that the United States has lived up to its legal obligations to respect the freedom of the seas, to submit threats to the peace to the United Nations before taking unilateral action, and to refrain from use or threat of force in international relations.” And in his masterwork, War, Aggression and Self-Defence, Yoram Dinstein rejected the premise that the quarantine was a lawful exercise of self-defense. This is significant because the U.S. partial blockade of Cuba would need to qualify as an act of self-defense only if it first amounted to a use of force. In other words, and simply put, the so-called Cuban missile crisis quarantine was an unlawful use of force.

The question, therefore, is whether a demand for the return of unspecified land, oil, and assets, combined with a vast military operation designed to control access to and from Venezuela’s territorial waters by force, if necessary, qualifies as aggression. In our opinion, it clearly does, particularly in light of Article 5(1) of the Definition of Aggression, which emphasizes that “[n]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”

We do note that the Truth Social post seems to hint at self-defense as the basis for the action, although not explicitly. The applicability of UN Charter Article 51 to national self-defense has been very ably addressed elsewhere (see, esp., articles in the Just Security collection). The near-unanimous view is that the United States does not enjoy the right of self-defense in the face of the drug threat on either the facts or the law (but see Kraska and Pedrozo). Now, President Trump has gone even further, leveling impossibly vague claims about oil, land, and “other assets.” In our view, those claims only serve to further weaken the administration’s case by detracting from the seriousness of the original assertions.

Importantly, if a blockade is a use of force, it is also an “armed attack” triggering the right of self-defense on the part of the blockaded State by the United States’ own interpretation of the right of self-defense (DoD, Law of War Manual, §1.11.5.2). Most States, however, are of the view that an armed attack is the “most grave” form of the use of force (Paramilitary Activities, ¶ 191). Yet, recall that the Definition of Aggression resolution characterizes aggression as the “most serious and dangerous form” of the use of force. What’s more, the operation described by President Trump involves a scale and gravity that meets the threshold for an “armed attack” articulated by the International Court of Justice. Thus, even under the more restrictive view adopted by these States and international bodies, the U.S. action, if implemented, would be clearly illegal and trigger Venezuela’s right to use force in self-defense.

Blockade Triggering International Armed Conflict?

The second issue is whether the imposition of a blockade by the United States would trigger an armed conflict between the United States and Venezuela (Geneva Conventions, Common art. 2) . It would in two circumstances. The first would be if United States forces board and take control (or otherwise forcibly interfere with the transit) of a Venezuelan-flagged tanker, or indeed any other Venezuelan vessel. 

The International Criminal Tribunal for the former Yugoslavia articulated the well-accepted standard for the existence of an international armed conflict in its Tadić decision (Jurisdiction, ¶ 70). There, the Tribunal observed that an international armed conflict exists “whenever there is a resort to armed force between States.” This is a position accepted by the United States. As the DoD Law of War Manual explains, “The United States has interpreted ‘armed conflict’ in Common Article 2 of the 1949 Geneva Conventions to include ‘any situation in which there is hostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting.’” Non-consensually taking control by military means of a Venezuelan-flagged vessel, given the threats made by administration officials against Venezuela, would clearly satisfy this standard, as it would involve the use of military force by one State against another.

As a side note, we caution that a seized vessel’s status under U.S. sanctions is of no significance under international law, unless it is Stateless and on the high seas or those sanctions are the domestic implementation of Chapter VII sanctions authorized by the UN Security Council (see our analysis here and here). In other words, any claim to be enforcing U.S. law would not affect classification as an international armed conflict.

The second possibility is that the very establishment of the blockade, standing alone, would trigger an international armed conflict. This, in our view, depends on whether the operation described by President Trump qualifies as a “blockade” under the law of naval warfare, the applicable legal regime for maritime operations during an armed conflict. In other words, since the premise that a blockade triggers an armed conflict is found in the law of armed conflict, we must look to its definition as a legal term of art in that body of law.

Under the law of naval warfare, the declaration of such a blockade has traditionally been a threshold that, when crossed, brings into being an armed conflict between the States concerned. Famously, although in the context of the American Civil War, the U.S. Supreme Court, in its 1862 Prize Cases opinion, held that “[t]he Proclamation of blockade by the President is, of itself, conclusive evidence that a state of war existed.”

Some members of Congress have already concluded that the action is “unquestionably an act of war.” However, to be so for the purposes of triggering the law of armed conflict (the law that applies during armed hostilities, such as the Geneva Conventions), the criteria for a blockade set forth in the law of naval warfare would have to be satisfied. Those criteria are evident in both customary law and in certain instruments central to that body of law, such as the 1909 London Declaration. There are four.

The first requirement is notification, such as through Notices to Mariners (NTM) and Notices to Airmen (NOTAM). That notification must include details as to geographic extent, date of commencement, and general scope of measures employed (see, e.g., London Declaration, arts. 8-11). Post-WWII examples of blockade declarations are rare, but a few are publicly available and give some sense of the details required. These include the Iranian proclamation in Notice to Mariners No. 17/59 (Sept. 22, 1980) during the Iran-Iraq conflict (for text, see Guttry and Ronzitti), as amplified in several subsequent NTMs, and the contentious 2009 maritime blockade declaration issued by Israel in relation to Gaza.

In the current case, however, we are aware of no notification of sufficient detail to meet this fundamental requirement. In particular, as of the time of writing, there does not appear to have been a NAVAREA IV warning or special announcement regarding this blockade declaration, nor a Notice to Mariners. This could change in short order if and when the relevant warning or Notice to Mariners is promulgated, or some other notification pathway (e.g., to the UN Secretary-General) is employed.

The second requirement is that the blockade must be effective, meaning that sufficient military assets must be deployed to implement it. The 1856 Paris Declaration requires that “Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.” Article 3 of the London Declaration adds that this is “a question of fact.” 

There are questions surrounding the scope of this requirement, such as the validity of the concept of “distant blockade,” the paradigmatic example being the British blockade of German ports in WW I, when the main Battlefleet was located in Scapa Flow rather than on continuous station off the German coast. In the current case, however, the concentration of forces off the coast of Venezuela would clearly meet the “force capable of enforcing the blockade” requirement. 

However, here the blockade apparently involves only sanctioned vessels carrying oil. Blockade is traditionally required to cover all imports and exports, so long as it does not prevent certain cargoes from passing through – chiefly humanitarian items (see below). So, even though a force readily able to effectively enforce the blockade is on-station, the effectiveness requirement has not been met. 

If an armed conflict was already underway, the appropriate method for addressing individual items would be to declare them “contraband,” that is, “goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict” (San Remo Manual, rule 148). But even that would not work here because a visit and search regime to enforce a contraband list concerns items being transported into the adversary’s ports, not leaving them. And, in any event, seizures of Venezuelan oil exports from “neutral” tankers during an armed conflict would still involve Prize Law jurisdiction (see below).

The third requirement is impartiality (London Declaration, art. 5), which requires that the “blockade … be enforced against all vessels (and/or aircraft), regardless of flag or status as a State or private vessel or aircraft” (Newport Manual, ¶ 7.4.4). In this case, however, the blockade specifically targets “all sanctioned oil tankers going into, and out of, Venezuela.” Thus, it is not impartial because it is focused only on one type of vessel – oil tankers – and only on those that have been sanctioned. Indeed, Reuters has reported that as of last week, “30 of the 80 ships in Venezuelan waters or approaching the country were under U.S. sanctions.” Since fewer than half are subject to the blockade, the impartiality requirement is not satisfied. 

The final requirement is that the blockade must comply with certain humanitarian concerns. In particular, the operation is “prohibited if it is solely intended to starve the civilian population, or solely intended to deprive the civilian population of objects essential to its survival” (Newport Manual, ¶ 7.4.5). Given the narrow focus of the blockade – oil – this is the only blockade requirement satisfied.

Consequently, based on the information currently at hand, there is no valid law of naval warfare blockade in place. This leaves the first ground, using armed force to take control or otherwise impede transit of Venezuelan vessels, as the sole basis to link the blockade to initiation of an international armed conflict. That said, if the United States tightens the blockade to comply with the remaining three criteria, it will have initiated an international armed conflict even before any vessels had been boarded. 

If that were to happen, the United States would need to ensure its courts are ready to apply prize law, given that capture of a vessel for breach of a (valid) law of naval warfare blockade is not the same as condemnation into the ownership of the capturing State without compensation. Prize Law generally requires that in the case of a captured blockade runner, final condemnation – i.e., ownership of the vessel and the cargo passing to the capturing State – requires an independent Prize Court decision (Newport Manual, ¶¶  9.1 and 9. 14).

Finally, the United States is taking the blockade action against Venezuela. But if there were an ongoing non-international armed conflict with one or more of the cartels, which there is not (despite the administration’s claims, see the multiple pieces explaining why in the Just Security collection), and the blockade was directed at them and satisfied the four criteria, this would constitute tacit recognition of that non-State actor’s belligerency. The consequence of that recognition would be that operations against the cartels would have to be conducted in accordance with the law applicable in international armed conflict, including its rules on detention and the conduct of hostilities. 

Concluding Thoughts

President Trump’s threat to impose a maritime blockade on specified vessels entering or leaving the Venezuelan territorial sea is a clear violation of the prohibition on the threat of the use of force under Article 2(4) of the UN Charter and customary international law. If the announced blockade is implemented, it will qualify as an unlawful use of force, not merely a threatened one. Execution of the blockade would constitute an act of aggression, which by definition is an unlawful use of force. It would also qualify as an armed attack by the United States on Venezuela, thereby triggering Venezuela’s right to forcibly defend itself under Article 51 of the UN Charter and customary international law.

Only if the United States expands its blockade in a manner that satisfies the law of naval warfare blockade criteria will the declaration of the blockade, standing alone, initiate an armed conflict. That said, if U.S. forces engage with or seize control of Venezuelan-flagged vessels, the United States will have initiated an international armed conflict, triggering applicability of the law of armed conflict in any hostilities between the United States and Venezuela.  And we hasten to add that, as explained in numerous Just Security posts, even if an international armed conflict did commence, U.S. operations against the boats alleged to be transporting drugs would continue to be governed by international human rights law, not the law of armed conflict. 

The post Blockading Venezuela: The International Law Consequences 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.

Initially, reports were that the two survivors were merely clinging to the wreckage of the boat when they were killed in a follow-on strike. This led to widespread accusations of war crimes on the basis that those individuals were hors de combat. Next, a narrative emerged that the survivors were on board the boat and communicating with other cartel boats in the vicinity. This led the Washington Post to suggest that, “[t]he version of events [Admiral] Bradley is expected to deliver would rebut claims by legal experts that the killing of the two survivors could have constituted a war crime.” In yet another turn, some members of Congress who viewed the video of the strikes have suggested the two survivors were in fact perched, shirtless, on capsized wreckage of a portion of the boat (the rest having burned or separated), unarmed, and with no radio or other communication equipment available, and having waved their arms before they were killed – in other words, utterly defenseless and posing no threat. 

Flawed legal analysis has plagued discussions of the operations. In fact, there have been no war crimes because there is no “war.” And even if the United States were engaged in an armed conflict with Tren de Aragua or drug cartels, much of the discussion about the operations generally, and the Sept. 2 strike in particular, misses or misconstrues fundamental points of law that should be driving scrutiny of the campaign broadly and of individual attacks.

In this article, we attempt to clear some of the fog of law by zeroing in on whether individuals aboard the boats or the drugs they were transporting were legally targetable in the first place. We start with the law that actually applies to the strikes. Our analysis then turns to the law of armed conflict (LOAC). That law does not apply, but because it is nevertheless occupying (inappropriately) so much of the discussion, we will delve into those aspects of it that deal with targeting.

The bottom line: there is no legal basis for targeting the drugs, the boats carrying them, or the people on board. That is true under the law that applies (international human rights law) and under the law that does not apply (the law of armed conflict). 

The Applicable Law: What Makes a “Non-International Armed Conflict”?

The administration has claimed that the operations against the drug cartels are occurring in the context of a non-international armed conflict (NIAC) that triggers the applicability of LOAC. This assertion is unambiguously incorrect as a matter of law, a point illustrated by the near universal rejection of it among LOAC experts.

Non-international armed conflict must be distinguished from international armed conflict (IAC), which is a conflict between States. In a NIAC, armed hostilities exist between a State and a non-State entity that qualifies under LOAC as an “organized armed group” (OAG). 

The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first body to address the nature of non-international armed conflict in any depth. In its first case, Tadić, the ICTY explained that a NIAC is characterized by “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Jurisdiction, ¶ 70). 

Many subsequent decisions of international courts have unpacked this characterization. For instance, in Limaj, the ICTY, citing Tadić, observed, “The two determinative elements of an armed conflict, intensity of the conflict and level of organisation of the parties, are used ‘solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’” (Judgment, ¶ 89). In other words, pure criminality, even if violent, does not qualify. The DoD Law of War has embraced such organization and intensity criteria for NIAC (§ 17.1.1).

Importantly, to reach the threshold for a NIAC, the conflict situation in question must be military in character. As noted by the ICTY in Haradinaj, “an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means” (Judgement, ¶ 60). It explained that the indicia of qualification as an OAG include 

the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords (¶ 60; see also DoD Law of War Manual, p. 85).

And that tribunal addressed the requisite intensity for a NIAC in its Boskoski Trial Chamber judgment (¶ 177). 

Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.

It is clear that the hostilities between the United States and Tren de Aragua, or any other cartel, did not on Sept. 2, and almost certainly do not now, comprise a NIAC. Indeed, hostile action using military means has been engaged in only by the United States, not by any cartel or criminal gang against us. The gangs and cartels are involved in criminality when they are trafficking drugs, to be sure, but they are not organized militarily to engage in military operations. 

There is the possible exception of a few groups that have been in conflicts within the States in which they are based, but not with the United States, such as the ELN in Colombia (this surely does not extend to the vast majority of the reportedly 24 groups the president has directed the U.S. military to target with lethal force, and the administration has not disclosed which groups are the 24 listed). Yet, even groups like the ELN that might be organized militarily or have a military wing are not and have not in the past been directing hostilities at the United States, and certainly not by virtue of smuggling drugs, which is not a hostile act or an attack. 

In short, this is not, even by the most liberal interpretation of the term, a non-international armed conflict. We find it difficult to imagine how any executive branch lawyer could have reached a different conclusion.

The Applicable Law on Targeting in These Operations

As we and others have repeatedly noted (see e.g., here, here, here), in the absence of an armed conflict, whether international or non-international, the applicable international law governing the targeting of boats with people aboard is international human rights law (IHRL). Under IHRL, life may not be taken by a State “arbitrarily,” a right recognized by the United States to apply extraterritorially (U.S. Army’s Operational Law Handbook, pages 98-99; see also Ryan’s explanation). As noted by the UN Human Rights Committee in General Comment 36, the right to life extends to persons “located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner” (¶ 63).

There are clear IHRL standards for determining when lethal actions are arbitrary. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, for example, explains that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life,” and only in the case of an “imminent threat of death or serious injury.” And even in such cases, lethal force is arbitrary if “less extreme means are insufficient to achieve these objectives” (¶ 9; see also Code of Conduct for Law Enforcement Officials, art. 3, commentary). Although framed in the context of law enforcement, the principles reflect the IHRL standard of arbitrariness binding on State organs that use lethal force, including the armed forces (which are sometimes used to support law enforcement activity, such as in maritime drug interdiction operations). Case law applies these principles of customary international law (i.e., that no more force “than is absolutely necessary in defence of persons from unlawful violence”) even to situations in which people killed by the State were in fact terrorists (e.g., McCann), which is not the case with the boat strikes in Operation Southern Spear. 

It is noteworthy that there is both international law and extensive State practice regarding the interdiction of drug trafficking at sea. For instance, Article 108 of the Convention on the Law of the Sea obligates States to cooperate in the suppression of illicit drug trafficking at sea, whereas Article 110 allows for the boarding of ships that are “without nationality,” as is likely to have been the case in these operations. Although the United States is not a Party to the Convention, it has often cooperated with other States in maritime drug interdiction and recognizes Article 110 as reflecting customary law. Moreover, Article 17 of the Narcotics Suppression Convention, to which the United States is Party, provides well-established procedures for the interdiction of suspected drug smuggling. Nevertheless, it cautions that “the Parties concerned shall take due account of the need not to endanger the safety of life at sea.” The point is that there is a robust international law framework for interdicting drugs at sea in place, and it does not include the use of lethal force. The United States has long been a key player in conducting these operations, often in cooperation with partners.

The U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations provides detailed guidance on how force may be used when conducting maritime counterdrug operations. For example, it sets out when the use of warning shots and disabling fire is appropriate. However, the guidance is clear that the sole basis for employing force against individuals or vessels at the lethal level is the “commander’s inherent authority and obligation to use all necessary means available and take all appropriate action in self-defense of the commander’s unit and other U.S. forces in the vicinity” (ch. 3). 

In this regard, the Commander’s Handbook emphasizes(§ 4.4.1.2) that in maritime law enforcement (MLE) operations, which exclude operations during armed conflict, the Standing Rules on the Use of Force (SRUF) apply. According to the SRUF, 

Normally, force is to be used only as a last resort, and the force used should be the minimum necessary. The use of force must be reasonable in intensity, duration and magnitude based on the totality of circumstances to counter the threat. If force is required, non-deadly force is authorized and may be used to control a situation and accomplish the mission, or to provide self-defense of DOD forces, defense of non-DoD persons in the vicinity if directly related to the assigned mission, or in defense of the protected property, when doing so is reasonable under the circumstances.

As the discussion illustrates, the applicable law is simple. Because there is no armed conflict, international human rights law governs the U.S. operations. The law does not allow for the use of deadly force except in situations where it is employed to safeguard life. Moreover, as counterdrug operations, there is no legal basis for using deadly force during them except in situations of defense of self or others. On the contrary, there are international agreements governing how such operations must be conducted, as well as clear guidance to U.S. forces on the use of force during them. These strikes conducted to date are clear violations of U.S. obligations under international human rights law (and may also amount to crimes, including murder, by some of those involved under the domestic law of States having jurisdiction over the offenses).

The Inapplicable Law on Targeting in These Operations: the Law of Armed Conflict

As explained above, the United States is not mounting these operations during an armed conflict, yet the administration continues to claim involvement in a NIAC. It would be difficult to accept that the government lawyers providing advice on these operations simply do not understand the law that applies, since the legal criteria for triggering a NIAC are uncontroversial, relatively straightforward, long settled in the executive branch (including DoD), and clearly not satisfied in these circumstances. 

It is more likely that the United States is seeking to take advantage of the fact that targeting during an armed conflict is more permissive, and have for that reason attempted to create a legal theory that would purport to justify the targeting program that began on Sept. 2. Notably, targeting based solely on an individual’s status is sometimes permissible in a NIAC, whereas outside armed conflict, lethal force may be employed, as explained above, only against an individual based on that person’s conduct, specifically conduct posing a threat to life. Since it is self-evident that no one aboard any of the boats being struck presents an imminent threat to anyone, the administration is likely trying to get around that fact by asserting a right to engage in NIAC status-based targeting. But that attempt does not work: neither the people aboard the boats nor the boats themselves would be lawful targets even if there were an armed conflict, which we emphasize, there is not.

During a NIAC, there are three categories of people that a State’s armed forces may attack, including by lethal means. Not only may these individuals be killed, but harm to them does not factor into the LOAC proportionality analysis or the requirement to take precautions in attack to minimize any harm to civilians. The sole exception is when they are hors de combat due to capture, wounds, or being shipwrecked. The last category may seem relevant based on accounts of the Sept. 2 re-attack that killed two survivors, but that issue would only come into play if they were targetable in the first place. They were not.

Members of dissident armed forces: The first category of targetable persons during a NIAC consists of “dissident armed forces,” that is, units of the armed forces that have turned their guns on the government. This category is obviously irrelevant in the current circumstances.

Members of an organized armed group: The second category consists of members of an organized armed group. As noted in the DoD Law of War Manual, “members of hostile, non-State armed groups may be made the object of attack unless they are placed hors de combat” (§ 5.8.2.1). Yet, as explained in detail above, almost none of the cartels against which the United States is using force qualify as an OAG in the LOAC sense. They are not organized to engage in military-like operations, are not armed to do so, and have conducted no armed operations against U.S. forces. On the contrary, their organization and activities are those of a purely criminal organization, which at times engages in violence, but not to fight against the United States in any systemic way. This being so, its members are not subject to status-based targeting based on OAG membership. The few cartels or criminal groups that do arguably qualify as OAGs based on the intensity and nature of the hostilities they engage in against the State concerned, such as ELN in Colombia or Cartel Jalisco Nueva Generación and the Sinaloa Cartel in Mexico. But they are not mounting armed operations against the United States.

We note that at times there are groups that have sub-components that are organized to engage in systemic violence against a State. The paradigmatic example is Hamas, which performed governmental functions in Gaza, but also has an armed wing, the al-Qassam Brigades, dedicated to conducting military operations against Israel. In that case, Hamas did not qualify as an OAG, but the al-Qassam Brigades did, and its members were subject to being targeted by Israel. However, none of the groups targeted by the United States has an armed wing, the mission of which is to conduct hostilities against the United States, whatever the reason for doing so. 

Accordingly, no one aboard the boats is targetable as an OAG member. 

Directly participating in hostilities: This leaves the final category, individuals who are directly participating in the hostilities. Under treaty law applicable in both international and non-international armed conflict, such individuals may be attacked in certain circumstances (AP I, art. 51(3); AP II, art. 13(3)). Although the United States is not a Party to the relevant treaties, it recognizes that their provisions on direct participation generally reflect customary law. Extracts from the DoD Law of War Manual are instructive in understanding the U.S. view of direct participation.

At a minimum, taking a direct part in hostilities includes actions that are, by their nature and purpose, intended to cause actual harm to the enemy. Taking a direct part in hostilities extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations § 5.8.3).

The emphasis is on a direct nexus to “combat” operations. This is clear from the examples the Manual provides of acts qualifying as direct participation. Of direct relevance in this case is the example the Manual provides on “delivering ammunition to the front lines” (5.8.3.1). This example served as the basis for extensive discussion during an ICRC expert project that led to the publication of its Interpretive Guidance on the Notion of Direct Participation in Hostilities (prior to issuance of the Law of War Manual). One of us was a member of the international group and can attest that the following analysis was unanimously acceptable to the members.

The delivery by a civilian truck driver of ammunition to an active firing position at the front line would almost certainly have to be regarded as an integral part of ongoing combat operations and, therefore, as direct participation in hostilities. Transporting ammunition from a factory to a port for further shipping to a storehouse in a conflict zone, on the other hand, is too remote from the use of that ammunition in specific military operations to cause the ensuing harm directly. Although the ammunition truck remains a legitimate military objective, the driving of the truck would not amount to direct participation in hostilities and would not deprive a civilian driver of protection against direct attack. Therefore, any direct attack against the truck would have to take the probable death of the civilian driver into account in the proportionality assessment.

The basis for the conclusion was that the causal connection between the act (transporting ammunition) and the harm caused (use of the ammunition against the enemy) was too attenuated to amount to direct participation, except in cases of delivery to the front. The experts agreed that transportation other than to those who would use the ammunition was “indirect” rather than “direct,” pointing in particular to the lack of temporal or geographic proximity. It was this analysis that led to the “to the front lines” caveat in the Manual. 

Putting aside the self-evident fact that delivering drugs to be sold cannot be characterized as “hostilities,” the transportation of drugs to be distributed to unknown buyers at some point in the future is even more attenuated than the transportation of the ammunition to ports to be carried to known units near the front. 

Applying the DoD standard (which, we emphasize, does not apply outside of armed conflict), individuals transporting drugs aboard a boat to be sold at an onward destination are not “directly participating in hostilities.” That means they are not targetable on that basis either. 

Finally, we discuss below the insurmountable problems in any attempt to consider the drugs or boats targetable as “war-sustaining” objects. But assuming, even in the best case scenario for the administration, that they are targetable war-sustaining objects (again a truly insurmountable “if”), that would mean there is even greater reason civilians involved in transporting such objects can never be considered direct participants in hostilities. If a civilian driving an ammunition truck away from the frontlines of a real war cannot be considered a direct participant in hostilities (consensus view discussed above), a civilian operating a vehicle (here a boat) involved in war-sustaining (revenue generating) activities surely cannot be. Indeed, the Department of Defense, despite external political pressure, concluded that the truck drivers bringing the Islamic State’s oil to market were civilians (see Department of Defense General Counsel Remarks 2016).   

Drug boats as military objectives? This leaves open only the possibility that the people on the boats may lawfully be harmed in an attack if the drug boats constitute military objectives subject to attack under the law of armed conflict (which we remind readers does not apply in any event). As accurately explained in the DoD Law of War Manual, reciting well-accepted treaty and customary law, military objectives “include any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (§ 5.6.3). Whether the boats qualify as military objectives depends, therefore, on whether their use at the time of the strike contributed to the gang or cartel’s “military action” and whether destroying the boats would result in a “definite military advantage” for the United States. 

By the prevailing view, drug-related facilities, equipment, and assets do not qualify as military objectives. Indeed, precisely this issue became contentious among NATO forces during International Security Assistance Force (ISAF) operations in Afghanistan. The American NATO Supreme Allied Commander and Secretary of Defense argued that drug producers/traffickers and narcotics-related assets generating funds for the insurgency could be attacked. The German Commander of Allied Joint Force Command Brunssum and the ISAF Commander, an American, countered that this position violated international law. The latter position prevailed within NATO, and an accommodation was reached in 2008 whereby the drug assets related to the insurgency could be destroyed in support of Afghanistan’s counter-drug law enforcement effort.

Since no gangs or cartels are involved in military action against the United States, and the United States gets no military advantage from destroying them, boats used to transport drugs, by the plain text of the rule, cannot qualify as military objectives subject to attack. This leaves only the possibility of the drugs themselves. In other words, if the law of armed conflict applied, which it does not, could the boats be lawfully attacked, subject to other targeting rules like proportionality and precautions in attack, because there were targetable drugs on board? 

Drugs as “war-sustaining” objects? The only conceivable basis for the argument that the drugs were targetable was that they were so-called “war-sustaining” objects. Although it is not the prevailing view among States, the United States has long asserted that war-sustaining entities are legitimate military objectives, a position with which one of us agrees (DoD Law of War Manual, § 5.6.8). A war-sustaining entity “indirectly, but effectively supports and sustains the belligerents’ warfighting capability,” such as “imports of raw materials used for the production of armaments and exports of products the proceeds of which are used by the belligerent to purchase arms and armaments” (Commander’s Handbook, § 7.4). 

This position is reported to be relied on in the OLC memo purporting to justify the boat strikes, so we will unpack why the “war-sustaining” objects theory fails in this context. 

Even accepting the U.S. position that war-sustaining objects are targetable, the boats and their drugs would not qualify, because there is no war to sustain. Unlike the drugs in the Afghanistan case, or the export products in the Commander’s Handbook example, the proceeds of the sale of cartel or criminal gang-supplied drugs are not being used to sustain hostilities against the United States (or anyone else, with the limited exception explained below). They are not being used, for instance, to purchase arms that will be used against U.S. forces or pay the salaries of an armed wing that is conducting hostilities against them. 

Assuming war-sustaining objects can be lawfully targeted, the argument that drugs are such objects might work in the case of cartels that qualify as OAGs engaged in hostilities against the State in which they operate, if drug sales do in fact fund their military operations. But taking the Sept. 2 strike against Tren de Aragua, for example, there is no gang or cartel “war effort” to sustain in the first place. This would be the case for nearly all of the cartels and criminal groups reportedly being targeted in the U.S. campaign. (We should note that even for those few cartels that do qualify as OAGs, and that are involved in conflict against a State in which they operate, the United States would not have a legal basis to enter that conflict absent a request from that State to do so. This is plainly not the case here – the relevant States in the region have strenuously objected to the U.S. campaign, several publicly calling for it to be stopped, or calling the killings “murder.”)

Simply put, absent actual military operations against the United States on the part of the group concerned, the “war-sustaining” justification for striking boats transporting drugs falls apart, even under the inapplicable law of armed conflict that the administration purports to operate under. 

Concluding Thoughts

Despite the fervent debates about whether the operations as a whole, or individual strikes, violated the law of armed conflict, and may even have been war crimes by those involved, the correct legal regime governing them is international human rights law. That law imposes a stringent necessity standard according to which lethal force is lawful only in the face of an imminent threat to life, and then only in the absence of other means of responding to that threat in the circumstances. None of those aboard the boats that have been struck posed an imminent deadly threat to anyone.

But even if the law of armed conflict applied, and it decidedly does not, neither those on the boats nor the drugs and the boats in which they were transported qualified as lawful military objectives under that body of law. The gangs or cartels do not qualify as organized armed groups; thus, their members are not subject to status-based targeting. Those aboard the boats are not targetable as direct participants in the hostilities, because they are merely transporting the drugs, and not in temporal or geographical proximity to any location where they might somehow contribute to the cartel’s or gang’s purported “combat.” And finally, the drugs do not qualify as military objectives by even the controversial war-sustaining approach because there are no hostilities against the United States by the gangs or cartels involved to sustain.

Taken together, there is no justification under either international human rights law, the correct legal framework, or the law of armed conflict, the wrong one, to target the boats or the people on board. The administration’s justification for conducting the strikes is a house of cards, unable to withstand scrutiny.

The post Operation Southern Spear: Why the Crews, Drugs, and Boats are Not Targetable appeared first on Just Security.

In this article, we do not engage with the political discussion, but rather examine the law that applies to the alleged facts of the operation and Hegseth’s reported order. And with respect to the legal assessment of that operation, we will not be dealing with the broader question of whether the attack on the boat was unlawful as such, which it was (see articles published at Just Security by Marty Lederman, Michael Schmitt, and a podcast discussion with Tess Bridgeman, Brian Finucane, and Rebecca Ingber). Instead, we focus on a narrower aspect of the strike, the purported order to kill all aboard the vessel and the resulting second strike on the boat that killed the survivors. 

As a matter of law, there are two central issues to address. The first concerns the circumstances in which military personnel have a duty to refuse to obey an order and, relatedly, whether a superior order can relieve them of criminal responsibility. The second is whether the orders in this case triggered that duty or provided those involved a defense. As both issues are context-dependent, we begin with the facts.

The Reported Order(s) and Military Operation

Without rehashing the well-known and fairly straightforward reported chain of events on Sept. 2, it is essential to understand that there were apparently two different orders in the military chain of command.

Secretary of Defense Pete Hegseth’s verbal order

The Washington Post reported:

“The longer the U.S. surveillance aircraft followed the boat, the more confident intelligence analysts watching from command centers became that the 11 people on board were ferrying drugs.

Defense Secretary Pete Hegseth gave a verbal directive, according to two people with direct knowledge of the operation. ‘The order was to kill everybody,’ one of them said.”

Note that “Secretary of Defense Pete Hegseth had ordered the military prior to the operation to ensure the strike killed everyone on board, but it’s not clear if he knew there were survivors prior to the second strike, one of the sources said,” CNN reported.

Presumably, this order was issued to the U.S. Special Operations Command’s Commander, Admiral Frank M. “Mitch” Bradley, raising the question of whether he had a duty to refuse it.

Adm. Bradley’s order to conduct the second strike

The Washington Post reported:

“Two survivors were clinging to the smoldering wreck.

The Special Operations commander overseeing the Sept. 2 attack … ordered a second strike to comply with Hegseth’s instructions, two people familiar with the matter said. The two men were blown apart in the water.”

“Adm. Frank M. ‘Mitch’ Bradley, told people on the secure conference call that the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo, according to two people. He ordered the second strike to fulfill Hegseth’s directive that everyone must be killed.”

This order implicates the duty of subordinate commanders and those executing the strike to refuse to comply with unlawful orders.

Following the strike, Hegseth told reporters, “We smoked a drug boat, and there’s 11 narco terrorists at the bottom of the ocean, and when other people try to do that, they’re going to meet the same fate.” Note that according to an earlier report by the New York Times, the targeted boat had “altered its course and appeared to have turned around before the attack started.” 

The Duty to Refuse Unlawful Orders

From the perspective of those receiving them, unlawful orders raise two issues. The first is whether there is a duty to refuse them. The United States clearly imposes such a duty. In particular, the Department of Defense’s Law of War Manual (2023) emphasizes the obligation, giving, as a paradigmatic example, an order to kill shipwrecked persons. 

18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.

The Manual cautions, however, that “[s]ubordinates are not required to screen the orders of superiors for questionable points of legality, and may, absent specific knowledge to the contrary, presume that orders have been lawfully issued.” But in clear cases, the duty attaches. As the Manual for Courts-Martial explains, the general presumption that an order can be inferred to be lawful “does not apply to a patently illegal order, such as one that directs the commission of a crime.”

An even more granular explanation of the duty to refuse unlawful orders is provided in the U.S. Navy/Marine Corps/Coast Guard Commanders Handbook on the Law of Naval Operations (§ 6.1.3.2):

All naval personnel have a duty to comply with the law of armed conflict in good faith; prevent violations by others to the utmost of their ability; and refuse to comply with clearly illegal orders to commit violations of the law of armed conflict. Naval personnel have an affirmative obligation to promptly report violations which they become aware. When appropriate, naval personnel should ask questions through appropriate channels and consult with the command legal advisor on issues relating to the law of armed conflict. Naval personnel should adhere to regulations, procedures, and training, as these policies and doctrinal materials have been reviewed for consistency with the law of armed conflict. Commands and orders should not be understood as implicitly authorizing violations of the law of armed conflict where other interpretations are reasonably available.

These U.S. duties track international law, for, as the International Committee of the Red Cross (ICRC) has asserted, under the law of armed conflict (LOAC), “[e]very combatant has a duty to disobey a manifestly unlawful order” (ICRC, Customary IHL study, Rule 154). 

And refusal to obey an unlawful order is not an offense in the U.S. armed forces. Under the Uniform Code of Military Justice, an offense occurs if the accused 

(1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties (art. 92). 

It is also an offense if a member of the armed forces “willfully disobeys a lawful command of his superior commissioned officer” (art. 90). Thus, the fact that an order is unlawful precludes conviction for its violation. So, although orders may generally be presumed lawful, if they are clearly unlawful, U.S. military personnel have an affirmative duty to refuse them and may not be prosecuted for doing so.

No Defense of Superior Orders

The second issue raised by orders is whether they constitute a defense available to those acting unlawfully, but pursuant to them. It has long been the case under customary international law that “superior orders” is no defense for war crimes. The Charter of the International Military Tribunals at Nuremberg and Tokyo excluded the defense (arts. 8 and 6, respectively), as did the 1950 Nuremberg Principles (prin. IV). The absence of a superior orders defense has also been confirmed in the statutes of modern war crimes tribunals, including those of the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda (arts. 33, 7, and 6, respectively). Indeed, the defense is unavailable to international law violations generally. For instance, the U.N. Convention Against Torture and the Inter-American Convention on the Forced Disappearance of Persons prohibit superior orders as a defense in national legislation implementing their prohibitions (arts. 2 and VIII, respectively). 

As with the affirmative duty to disobey an unlawful order, the ICRC has accurately stated that under customary international law, “[o]beying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.” (ICRC Customary International Humanitarian Law study, Rule 155). 

U.S. military law likewise rejects the defense of superior order in the Manual for Courts-Martial. Rule 916(d) provides, “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” The touchstone case reflecting the principle is U.S. v. Calley, which dealt with the murder of 22 children, women, and old men in the South Vietnamese village of My Lai. Lt. Calley claimed he was obeying an order because “he had been taught the doctrine of obedience throughout his military career” and that he “was acting in ignorance of the laws of war.” The U.S. Court of Military Appeals held that, 

the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.

The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.

Thus, it is unlawful to obey an unlawful order, and merely following clearly illegal orders provides no defense. This being so, the questions in the Sept. 2 strikes are whether Secretary Hegseth’s reported order to Adm. Bradley was clearly unlawful and whether Bradley’s apparent follow-on order to conduct the second strike was likewise manifestly unlawful.

What Law Applied to the Reported Orders?

Much attention has been focused on the laws of war as they may relate to the Hegseth order and resulting operation. In that regard, we must emphasize that LOAC did not apply to the Sept. 2 strikes, because, as has been explained in multiple Just Security articles referenced above,  the United States is not in an armed conflict with any drug trafficking cartel or criminal gang anywhere in the Western Hemisphere. There is no international armed conflict because, inter alia, there are neither hostilities between States nor the requisite degree of State control over alleged drug cartels operating the boats. And there is no non-international armed conflict, both because the cartels concerned do not qualify as organized armed groups in the LOAC sense, and because there were no hostilities between the United States and the cartels on Sept. 2, let alone hostilities that would reach the requisite level of intensity to cross the armed conflict threshold. For the same reason, the individuals involved have not committed war crimes.

However, the duty to refuse clearly unlawful orders – such as an order to commit a crime – is not limited to armed conflict situations to which LOAC applies. Nor is rejection of a defense of superior orders restricted to war crimes. In fact, the more restrictive rules of international human rights law applied instead. As will be explained, the alleged Hegseth order and special forces’ lethal operation amounted to unlawful “extrajudicial killing” under human rights law (see also here). The federal murder statute would also apply, whether or not there is an armed conflict. (See, e.g., Marty Lederman’s analysis).

That said, the administration has reported to Congress, stated publicly, and recorded in legal and operational memoranda that it believes one or multiple “non-international armed conflicts” exist between the United States and 24 organizations in Latin America (whether it views the situation as one armed conflict, 24 separate ones, or some other combination is unclear). This being so, before turning to the law that was actually violated through the Sept. 2 and subsequent operations, allow us to counterfactually consider the law that would apply had the administration been correct in characterizing the operation as occurring during an armed conflict. 

The Prohibition of Ordering Denial of Quarter or Denying Quarter

Assuming solely for the sake of discussion that there was a non-international armed conflict at the time of the Sept. 2 strikes, the most relevant LOAC rule applicable to the Hegseth and Bradley orders is the “denial of quarter,” i.e., an instruction not to allow any survivors (see, e.g., Working Group of Former Judge Advocates Generals’ statement on the Hegseth order). 

The status of the prohibition on the denial of quarter (and on ordering or threatening its denial) was settled well over a century ago. It is applicable in both international and non-international armed conflicts as a matter of customary international law (ICRC, Customary International Humanitarian Law study, Rule 46). This is so with respect to its status as a violation of LOAC entailing the responsibility of the State concerned and as a war crime by the individuals issuing orders to deny quarter or carrying them out. We need not repeat here the major international texts and tribunal decisions that support that conclusion. One of us (Schmitt) walked through all of the relevant texts, from the U.S. Civil War’s Lieber Code to the present, in a 2023 essay concerning a “kill everyone” order by the head of Russia’s Wagner Group (co-authored with LtCol John Tramazzo). 

Here, suffice it to note that the DoD Law of War Manual is categorical: “It is … prohibited to conduct hostilities on the basis that there shall be no survivors, or to threaten the adversary with the denial of quarter. This rule is based on both humanitarian and military considerations.” The Manual further emphasizes that the rule “also applies during non-international armed conflict” (§ 5.4.7).

A closely related prohibition implicated in the Sept. 2 strikes, which also applies in both international and non-international armed conflict, is on attacking those who are hors de combat, a condition that includes those who are “defenseless” because they are shipwrecked (see ICRC Customary International Humanitarian Law study, rule 47 and related practice). As the DoD Law of War Manual explains (§ 5.9.4), 

Shipwrecked combatants include those who have been shipwrecked from any cause…. Persons who have been incapacitated by … shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack. In order to receive protection as hors de combat, the person must be wholly disabled from fighting.

The Commander’s Handbook on the Law of Naval Operations similarly provides, “Intentional attack on a combatant who is known to be hors de combat constitutes a grave breach of the law of armed conflict” (§ 8.2.3). Indeed, as noted in the Newport Manual on the Law of Naval Warfare published by the U.S. Naval War College’s Stockton Center, Geneva Convention II

sets forth a legal framework for the humane treatment and protection of victims of armed conflict at sea. The Convention requires parties to the conflict to, inter alia, respect and protect individuals falling within the scope of the Convention “who are at sea and who are wounded, sick or shipwrecked.” Parties to a conflict are thus required, after each engagement and without delay, to “take all possible measures to search for and collect the shipwrecked, wounded and sick,” without discriminating between their own and enemy personnel.

To be clear, there is no exception to the prohibition on attacking those who are hors de combat due to being shipwrecked because they might escape or otherwise receive rescue assistance from their forces. The only basis for treating them as subject to continued attack is if they are, in fact, not hors de combat because they continue to fight. 

Doctrine and Prosecutions on Denial of Quarter

This analysis of the LOAC rules merits being supplemented with three additional points. First, each U.S. servicemember has an obligation to report evidence that any U.S. operation potentially involved killing shipwrecked survivors or a denial of quarter. According to the Commander’s Handbook on the Law of Naval Operations (§ 6.3; see also DoD Directive 2311.01):

All 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, including those involving allegations of non-DOD personnel having violated the law of war. 

Examples of incidents that “must be reported” include: (1) “Offenses against the Wounded, the Sick, [and] Survivors of Sunken Ships,” such as “willfully killing”; (2) “Other Offenses against Survivors of Sunken Ships,” including, “when military interests permit, failure to search out, collect, make provision for the safety of, or to care for survivors;” and (3) “Denial of quarter, unless bad faith is reasonably suspected” (§ 6.3).

Second, a landmark 1921 case emerging out of World War I clearly set forth the rule that killing shipwrecked survivors of a boat strike is a war crime and that superior orders offer no defense to such conduct, because such orders must be disobeyed. In the Llandovery Castle case, the Imperial Court of Justice considered a June 1918 incident after a German U-boat sank the Llandovery Castle, a Canadian hospital ship. The U-boat Commander claimed he thought the ship was carrying American airmen. In convicting the defendants for firing on the survivors who were in lifeboats, the court noted that by that point, the international legal prohibition on killing survivors of a maritime attack was manifest.

The firing on the boats was an offence against the law of nations. In war on land the killing of unarmed enemies is not allowed (compare the Hague regulations as to war on land, para. 23(c)), similarly in war at sea, the killing of shipwrecked people, who have taken refuge in life-boats, is forbidden.
…

The fact that his deed is a violation of international law must be well-known to the doer, apart from acts of carelessness, in which careless ignorance is a sufficient excuse. In examining the question of the existence of this knowledge, the ambiguity of many of the rules of international law, as well as the actual circumstances of the case, must be borne in mind, because in war time decisions of great importance have frequently to be made on very insufficient material. This consideration, however, cannot be applied to the case at present before the court. The rule of international law, which is here involved, is simple and is universally known. No possible doubt can exist with regard to the question of its applicability. (emphasis added) 

Accordingly, the court held that the German crew could not claim to be following orders as a defense because such an order would be clearly unlawful:

It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. … They should, therefore, have refused to obey. As they did not do so, they must be punished.”  (emphasis added)

The DoD Law of War Manual cites and quotes the Llandovery Castle case to illustrate the point that clearly illegal orders must be refused (see DoD Law of War Manual, § 18.3.2.1).

Notably, in its sentencing assessment, the court stated that “the principal guilt rests with” the U-boat Commander who issued the order, while his subordinates could obtain some mitigation of sentence given the pressure entailed in refusing a military order. 

Third, a famous World War II case involved a similar set of facts. In the 1945 Peleus Trial, a British Military Court sitting in Hamburg considered a March 1944 incident in which a German submarine sank a Greek ship chartered by the British Ministry of War Transport. Upon the orders of the German commander Heinz Eck, the U-boat members fired a machine gun and threw grenades at Peleus’ crew members who had survived the first attack but were shipwrecked in the water. The Prosecutor and the Judge Advocate (who at that time served as the Court’s legal adviser) both relied on the Llandovery Castle case. In response to the defendants’ plea of superior orders, the Judge Advocate stated:

The duty to obey is limited to the observance of orders which are lawful. There can be no duty to obey that which is not a lawful order. …

It is quite obvious that no sailor and no soldier can carry with him a library of international law, or have immediate access to a professor in that subject who can tell him whether or not a particular command is a lawful one. If this were a case which involved the careful consideration of questions of international law as to whether or not the command to fire at helpless survivors struggling in the water was lawful, you might well think it would not be fair to hold any of the subordinate accused in this case responsible for what they are alleged to have done; but is it not fairly obvious to you that if in fact the carrying out of Eck’s command involved the killing of these helpless survivors, it was not a lawful command, and that it must have been obvious to the most rudimentary intelligence that it was not a lawful command, and that those who did that shooting are not to be excused for doing it upon the ground of superior orders? (emphasis added)

The court sentenced Eck and two other defendants to death, another to life imprisonment, and the fifth defendant to 15 years imprisonment. 

Assuming the facts as reported about the Sept. 2 strike, and if LOAC and war crimes law had applied (they do not), Secretary Hegseth and Admiral Bradley’s orders were self-evidently unlawful because they ordered no quarter. Moreover, the second strike on the boat would qualify as an attack on those shipwrecked persons who are hors de combat. Whether Secretary Hegseth knew there were shipwrecked survivors is unclear, but Admiral Bradley reportedly did and ordered their attack anyway. 

If those involved believed they were engaged in an armed conflict, we find it difficult to imagine they could not have known that the orders were unlawful. The more military training and experience they have, the more implausible such a claim is.

Applying International Human Rights Law to the Alleged Facts

The law of armed conflict is generally a more permissive legal regime for the use of military force than international human rights law (IHRL). In particular, the LOAC permits targeting members of the armed forces, including members of organized armed groups, based on their status, and others if and for such time as they “directly participate in hostilities,” which encompasses more than conducting attacks. By contrast, targeting based on status outside an armed conflict is prohibited. Acts opening the door to the use of force against an individual are generally limited to situations in which they pose an imminent threat of death or grievous bodily harm. If the Hegseth and Bradley orders and the ensuing second strike had been violations of LOAC in a non-international armed conflict, they would, a fortiori, have violated human rights law as a matter of peacetime law enforcement.

With respect to the U.S. lethal strikes on suspected drug trafficking vessels at issue here, two of us (Schmitt and Goodman, along with co-author Marko Milanovic) have explained why “there is absolutely no question that the U.S. lethal strikes on the boats are a violation of international human rights law.” Without rehashing that analysis here, the bottom line is that the U.S. strikes on suspected drug traffickers at sea are clearly arbitrary deprivations of the right to life under IHRL, an obligation that the United States acknowledges applies extraterritorially. As they wrote:

The widely-accepted standard for arbitrariness prohibits the use of force likely to cause death or grievous bodily injury “except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives” (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also U.N. Human Rights Committee, General Comment 36, para 12).

If the lack of an imminent threat of death or serious injury on the part of individuals suspected of trafficking drugs at sea (quite plausibly here, ferrying cocaine from Venezuela to a transhipment point for onward distribution in Europe) is obvious with respect to the campaign as a whole, it is doubly so with respect to a vessel that, as has been reported, had turned around prior to the U.S. strike. It is even more patently obvious that it is an arbitrary deprivation of the right to life – i.e., murder – to fire on the shipwrecked survivors of that strike, as has now been reported.

In sum, there is simply no plausible argument that the reported killing of two survivors clinging to the burning wreckage of their stricken vessel could be anything other than an extrajudicial killing. It is equally clear that, according to long-standing law (including prevailing U.S. legal interpretations), the reported Hegseth and Bradley orders to fire on them were manifestly unlawful, and that those carrying out that order cannot rely on a superior orders defense if prosecuted for those actions due to the egregious illegality of the order. 

Concluding Thoughts

The Sept. 2 strikes on the purported drug boat neither violated the law of armed conflict nor amounted to war crimes, because they did not occur during an armed conflict. However, if the facts are as reported, there is little question that the order by Secretary Hegseth and the ensuing order by Admiral Bradley to conduct the second strike were unlawful, because the killing of the two survivors was a serious violation of international human rights law.

Moreover, both orders were clearly unlawful. Under well-established law, those who complied with the orders cannot escape individual criminal responsibility for the killing of the two survivors in the event they are brought to trial in a U.S. military court-martial, a federal trial, or a domestic criminal proceeding in another State that has jurisdiction, for instance, based on the nationality of the victims. If actually issued, these orders irresponsibly and unlawfully placed all those involved in the attack in serious legal jeopardy. If the reporting is accurate, those orders should, as a matter of law, have been refused.

Editor’s note: Readers may also be interested in Jeremy Chin, Margaret Lin and Aidan Arasasingham, Timeline of Vessel Strikes and Related Actions

The post Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder appeared first on Just Security.

Reports have also emerged that the Netherlands has curtailed intelligence cooperation due to fear that the United States might use it to support human rights violations or, a rather shocking concern, assist Russia. 

Canada, which is conducting Operation Caribbe in coordination with the Coast Guard and 13 other nations, has likewise informed the United States that the information it provides is not to be used to facilitate the boat strikes. As a spokesperson for the Department of National Defence emphasized, “Canadian Armed Forces activities under Operation Caribbe, conducted in coordination with the United States Coast Guard, are separate and distinct from the activities you describe involving other branches of the United States military.” 

And Colombia, which has long collaborated hand-in-glove with the United States on counter-drug operations, has similarly suspended intelligence sharing with U.S. intelligence agencies until the strikes end. Colombian President Gustavo Petro justified the decision by noting,  “The fight against drugs must be subordinated to the human rights of the Caribbean people.” Mexico has also opposed the boat strikes, called on the United States to respect international treaties, and most recently announced an arrangement with the United States whereby the Mexican Navy will intercept boats near the countries’ coasts in order to prevent further lethal attacks in that area.

In recent days, E.U. leaders and member States, such as France, have told journalists that they consider the boat strikes flatly illegal. (France too has a significant presence in the region, including past work with U.S. counter-narcotics operations.) In response to such European legal concerns, Rubio quipped, because many of the shipments are bound for Europe, “Maybe they should be thanking us.”

Suspension of intelligence sharing is not new. For example, Germany and other European States froze intelligence following revelations of torture and rendition in the aftermath of the 9/11 attacks. And the 2003 invasion of Iraq by U.S. forces motivated France to curtail intelligence cooperation on the basis that the invasion was unlawful. 

The U.S. attacks on suspected drug traffickers are both short-sighted from a strategic policy perspective and morally questionable. Such concerns may have motivated the intelligence sharing restrictions that U.S. allies and partners have imposed. However, as we will explain in this essay, even setting aside those concerns, the decision to withhold intelligence and other cooperation that might contribute to the U.S. operations was a sensible decision from the perspective of international legal risk. 

To understand why, it is necessary to assess both the legality of the strikes under international law and the relationship between them and the cooperation being withheld. If the operations are lawful (they are not), other States may lawfully contribute to them, barring any other applicable rule specifically prohibiting such contributions. However, if the U.S. operations are unlawful, this raises the urgent question whether support for them would itself violate international law. In other words, would a State sharing intelligence with the United States be complicit in the “internationally wrongful acts” of the United States? Accordingly, we first conduct a brief survey of the legality of U.S. strikes and then proceed to examine the possible complicity of third States.

The Legality of the Operations

Despite protestations from the Trump administration, and the very suspect claims by a Pentagon spokesperson that “lawyers up and down the chain of command have been thoroughly involved in reviewing these operations prior to execution” and “no lawyer involved has questioned the legality” of them, international law experts who have opined on the matter are nearly unanimous in their conclusions that the strikes clearly violate international law (see, inter alia, Just Security’s collection of commentary and this episode of EJIL: The Podcast!). However, there is some confusion among the broader public regarding why this is the case.

Inapplicable Law: UN Charter, Non-Intervention, and Laws of War

The U.S. operations do not violate the prohibition on the use of force found in Article 2(4) of the UN Charter and customary international law, for that rule only bars the use of force directed at other States. Thus, attacking a flagless (Stateless) ship on the high seas does not amount to a wrongful use of force under international law’s jus ad bellum. For the same reason, the strikes do not constitute unlawful intervention into the internal affairs of other States. 

Nor do the operations violate the law of armed conflict (LOAC), as that law is inapplicable in this situation for reasons explained below. Nevertheless, the administration, in a notification to Congress and a statement to the United Nations Security Council, contends that the attacks are lawful on the basis that the United States is involved in a non-international armed conflict (NIAC) with drug cartels and that those killed were “unlawful combatants.” It is correct that civilians who directly participate in hostilities (so-called unlawful combatants) may be attacked for such time as they so participate. Moreover, in our view, members of the armed wing of an “organized armed group” (OAG) may be attacked at any time during a NIAC, so long as other targeting rules, such as the rule of proportionality and the requirement to take precautions to protect civilians in attack, are satisfied. 

However, whether those aboard the boats fall into either of the targetable categories need not detain us here; LOAC rules are simply not relevant in this situation, since it does not qualify as a NIAC. A NIAC, as distinct from an armed conflict between States, requires protracted and intense armed violence between a State and non-State organized armed group, an explanation derived from the judgements of international tribunals and long-accepted by the United States (Tadić, para. 70; ICTR, Akayesu, para. 619; ICC, Bemba, para. 229; DoD Law of War Manual, § 17.1.1). 

To begin with, drug trafficking as such has never been treated as “armed violence,” nor could it. Drug cartels sometimes use violence against a government, but it is that violence that can qualify the situation as a NIAC, not their drug activities. Moreover, the violence must be at a high level to distinguish a NIAC from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature” (DoD Law of War Manual, § 17.1.1). Examples include various situations in Mexico and Colombia, where cartels or armed groups such as Sinaloa and the FARC directed intense violence against the government in addition to producing and trafficking drugs. 

Although there was no qualifying violence until the first strike, the more attacks the United States conducts, the more likely it is that this threshold will arguably be reached – despite the fact that the violence is one-sided (although some scholars believe there needs to be exchanges of fire from both sides). But even if the threshold is reached, the violence must be directed at an organized armed group. This requirement is not met simply because a group possesses weapons or sometimes uses violence to further its criminal ends, as many cartels do. To qualify, the group “must possess organized armed forces” (2016 Commentary to GC I, art. 3), which the targeted groups such as Tren de Aragua do not appear to field. 

In short, neither the intensity nor the organization requirement for a NIAC has been satisfied in this situation. Thus, there is no armed conflict and, derivatively, no applicable LOAC rule to violate. It is essential to note that this is an objective assessment of the facts. These facts cannot be ignored simply because the U.S. President proclaims otherwise – which, from the recent reporting on Department of Justice memoranda justifying these operations, appears to be the sole basis on which the otherwise inexplicable U.S. legal claims are based. 

Applicable Law: International human rights law (extrajudicial killings)

This being the case, the applicable body of law directly governing these uses of lethal force is international human rights law (IHRL). It is here that the international law violation is found. Importantly, even if, contrary to our view, the jus ad bellum prohibition on the use of force in Article 2(4) of the Charter did apply, but the United States was exercising the right to self-defense, U.S. defensive actions would still need to comply with IHRL since, as explained, the situation does not amount to an armed conflict triggering LOAC.

It has long been recognized that the arbitrary deprivation of life violates a State’s international human rights obligations (see, e.g., UDHR, art. 3). The right is found in the International Covenant on Civil and Political Rights, Article 6(1), an instrument to which the United States is a party. There has long been a debate over whether the ICCPR generally, or Article 6(1) specifically, applies extraterritorially, an issue present in the boat strikes. The United States claims that it does not, although the prevailing view, illustrated by the UN Human Rights Committee’s General Comment 36, is that it does (¶ 63). As noted in that Comment, the right extends to persons “located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.” 

But in any event, the right to life is a customary right that applies extraterritorially, regardless of the U.S. interpretation of the ICCPR – a point that the United States has previously accepted, as explained by Ryan. This is also acknowledged in the 2024 U.S. Army’s Operational Law Handbook, which characterizes the prohibition of murder as a fundamental right, and explains that “[i]n contrast to fundamental human rights, […] non-fundamental human rights do not necessarily bind States during all operations inside and outside a State’s territory.” The implication is that a fundamental right, such as the prohibition on the arbitrary deprivation of life, does apply during all operations and extraterritorially (pages 98-99). 

Moreover, there is extensive State verbal practice and opinio juris characterizing extrajudicial killings, including those committed abroad, as violations of the right. And in its recent UNRWA advisory opinion, the International Court of Justice (ICJ) ruled that State obligations under IHRL (including customary IHRL, which the Court discusses twice in the opinion) apply when a State exercises jurisdiction extraterritorially, particularly in, but not limited to, situations of occupation (¶ 151; see more here). To put this simply, there is no doubt in our mind that, were the ICJ to be confronted with a situation similar to the U.S. strikes against suspected drug boats, the Court would rule that the right to life, i.e., the prohibition on the arbitrary taking of life, applies even if the State concerned kills people outside its own territory. 

Therefore, the question is whether these killings were “arbitrary.” The widely-accepted standard for arbitrariness prohibits the use of force likely to cause death or grievous bodily injury “except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives” (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; see also U.N. Human Rights Committee, General Comment 36, para 12).

As reflected in the standard, a deprivation of life must be strictly necessary to be justified, as a measure of last resort – if a State can mitigate the imminent threat that an individual poses to others by non-lethal means, then those means must be exhausted first. It is manifest that the U.S. strikes do not satisfy this requirement. While countering drugs is a legitimate aim for State action, the fact that there are numerous operational means that the United States regularly uses to stop maritime drug-trafficking renders simply blowing the boats up unnecessary as a matter of law.

In short, there is absolutely no question that the U.S. lethal strikes on the boats are a violation of international human rights law. The violation of the right to life is as equally manifest as it would be if the United States started using drone strikes against suspected drug traffickers on its own territory. Such individuals, serious criminals though they may be, need to be arrested and put on trial, not summarily killed. We thus agree with the U.N. High Commissioner on Human Rights, who labelled the strikes as “extrajudicial killings” – this is precisely what they are. 

This legal point is very straightforward. Indeed, as a Senator, Marco Rubio sponsored legislation calling out the Philippines’ then-President, Rodrigo Duterte, for summarily killing people involved in the drug trade. The legislation stated: “Extrajudicial killings perpetrated by the Government of the Philippines as part of a government-directed antidrug campaign present the foremost human rights challenge.” Notably, the International Criminal Court approved an arrest warrant for Duterte for the crime against humanity, because a policy of such killings can eventually amount to a widespread or systematic attack on a civilian population. 

Support to the Unlawful Strikes by Other Countries

This then brings us to the question of the possible complicity of third States in facilitating the U.S. strikes in the Caribbean. As with complicity doctrines in domestic law, there are various ways in which States accrue legal responsibility by contributing to the “internationally wrongful acts” of other States (for a primer, see this Chatham House paper by Harriet Moynihan). Two are relevant here. 

First, a State may be complicit on the basis of the general rule set out by the International Law Commission in Article 16 of its Articles on State Responsibility, which provides that a State that assists another in the commission of an internationally wrongful act will be responsible for its contribution if it is bound by the same legal obligation as the assisted State, and if it provides the assistance knowing of the attendant circumstances. The ICJ has held that this rule reflects customary international law. Second, a State may be complicit based on rules that are specific to the various sub-branches of international law, like IHRL, which may set somewhat different standards than the general secondary rule.

There is no doubt that intelligence sharing can constitute such a form of wrongful facilitation, for it can causally contribute to a sufficient degree to the commission of the wrongful act (for an extended discussion, see this paper and this blog post series by Marko). Consider, for instance, the sharing of geolocational data about a boat in the Caribbean with the United States, or other information about the people on board and their activities. It is self-evident that the United States could use this information to conduct a lethal strike against the boat in question. Accordingly,  the criterion of a causal contribution, which is essential to all complicity rules, could be met in such a scenario, depending on the nature and content of the intelligence shared. 

The requirement that the same legal obligation bind the assisting State as the assisted State is likewise satisfied. All States partnering with the United States in intelligence sharing are bound by customary IHRL prohibiting arbitrary deprivations of life. Most are also parties to treaties that prohibit arbitrary deprivation of life. For instance, France, the United Kingdom and the Netherlands are party to the European Convention on Human Rights, and Colombia and Mexico are bound by the American Convention on Human Rights (arts. 2 and 4, respectively). The five, as well as Canada, are parties to the ICCPR. They are all bound by the customary international law prohibition on arbitrary deprivation of life.

But whether States sharing intelligence would be complicit in the unlawful U.S. attacks depends primarily on the fault (subjective, mental, culpability) element of the given complicity rule. There has been much discussion of this issue in the literature, which we will not examine here (see Marko’s article). We would only make two points. 

To begin with, under Article 16, the fault element would be met if the assisting State shared intelligence with the United States, knowing that the latter intended to conduct unlawful strikes and that the intelligence would facilitate them, and nonetheless decided to proceed (a form of oblique or indirect intent). After the United States has conducted 20 such strikes and has openly announced it would conduct more, no State sharing intelligence with the United States could plausibly argue that it lacked the requisite degree of knowledge. This is especially the case for intelligence that directly relates to the activities of boats or drug cartels in the Caribbean. 

Under complicity rules specific to IHRL, the requisite fault standard might be lower still – mere appreciations of a level of risk (rather than certainty) that the United States would engage in arbitrary killings using the intelligence provided. This would be a fault standard akin to recklessness, that is, one of conscious risk-taking. As explained in Marko’s piece, and although this possibility is unsettled in IHRL, a lower standard would arguably be justified by the importance of the interest being protected – the right to life.

In short, in our view, any State sharing intelligence with the United States about boats or drug trafficking in the Caribbean exposes itself to a high degree of legal risk. If the United States kills someone, and if the intelligence provided facilitates that killing, the State sharing the intelligence is itself violating international law. This is true even if the relatively high fault standard in Article 16 ASR is applied, let alone under IHRL. After 20 such strikes, no State could plead ignorance here.

As an aside, for present purposes, we do not assess whether the U.S. boat strikes could constitute international crimes, nor do we examine the potential liability of other State officials under a theory of aiding and abetting.

Conclusion 

Obviously, we have no way of knowing whether the decisions to suspend intelligence sharing were made after government ministers sought and obtained formal legal advice to that effect. The step could also have been taken prudentially, as a matter of policy. And, of course, it is politically problematic for partners and allies to publicly castigate the United States for engaging in unlawful attacks. 

However, whatever the motivation for maintaining or suspending intelligence sharing, the law is clear. The only way in which States can avoid their own responsibility for facilitating attacks that qualify as “arbitrary killings” under international human rights law is to refrain from sharing intelligence that, in part, enables them. Even mitigation measures, such as diplomatic assurances, are unlikely to adequately lower the legal risk, for the nature of the information shared is such that States sharing it cannot plausibly claim ignorance or clean hands. Simply put, any provision of intelligence known to support such attacks is unlawful. Needless to say, this is a point that States should also bear in mind with respect to any prospective U.S .operations directly against Venezuela or other States in the region.

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