The most recent DHS policy is #2. The most recent DOJ policies are #3-4, and the most recent CBP policy is #5.

1. General Accountability Office (GAO), Law Enforcement: DHS Should Strengthen Use of Force Data Collection and Analysis (Jul 24, 2023) [GAO-23-105927]

2. Department of Homeland Security, Secretary Alejandro N. Mayorkas, Update to the Department Policy of the Use of Force (Feb. 6, 2023) [Policy Statement 044-05 (Revision 1)]

III. General Principles
…
C. Use of Safe Tactics

1. DHS LEOs should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of LEOs and the public,and that minimize the risk of unintended injury or serious property damage. DHS LEOs should also avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.
…

VI. Deadly Force
A. General Guidelines

1. …

a. DHS LEOs may use deadly force only when necessary, that is when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person.
b. Fleeing Subjects: Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape.

…

B. Discharge of Firearms
…
2. Moving Vehicles, Vessels, Aircraft, or other Conveyances

a. DHS LEOs are prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy. Before using deadly force under these circumstances, the LEO must take into consideration the hazards that may be posed to law enforcement and innocent bystanders by an out-of-control conveyance.

3. Department of Justice Manual, Policy On Use Of Force, 1-16.00 – 1-17.000 (updated July 2022)

4. Department of Justice, Attorney General Merrick Garland, Department’s Updated Use-of-Force Policy (May 20, 2022)

DEADLY FORCE

I. Law enforcement officers and correctional officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.

A. Deadly force may not be used solely to prevent the escape of a fleeing suspect.
B. Firearms may not be discharged solely to disable moving vehicles. Specifically, firearms may not be discharged at a moving vehicle unless: (1) a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or (2) the vehicle is operated in a manner that threatens to cause death or serious physical injury to the officer or others, and no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle. Firearms may not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force.

5. Customs and Border Patrol, Use of Force Policy (January 2021) [4500-002A]

Chapter 1: General Guidelines
…
C. Use of Safe Tactics
…
2. Except where otherwise required by inspections or other operations, Authorized Officers/Agents should avoid standing directly in front of or behind a subject vehicle. Officers/agents should not place themselves in the path of a moving vehicle or use their body to block a vehicle’s path.
3. Authorized Officers/Agents should avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.

6. Customs and Border Patrol, Use of Force – Administrative Guidelines and Procedures Handbook Law Enforcement Safety and Compliance Directorate Operations Support (January 2021) [4500-002B]

7. Department of Homeland Security Acting Deputy Secretary Claire M. Grady, Department Policy on the Use of Force (Sept, 7, 2018) [Policy Statement 044-05]

III. General Principles
…
C. Use of Safe Tactics

DHS LEOs should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of LEOs and the public, and that minimize the risk of unintended injury or serious property damage. DHS LEOs should also avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force.
…

VI. Deadly Force

A. General Guidelines
…

2. A DHS LEO may use deadly force only when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person.

a. Fleeing Subjects: Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape.

B. Discharge of Firearms
…
2. Moving Vehicles, Vessels, Aircraft, or other Conveyances

a. DHS LEOs are prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy. Before using deadly force under these circumstances, the LEO must take into consideration the hazards that may be posed to law enforcement and innocent bystanders by an out-of-control conveyance.

8. Customs and Border Patrol Chief Michael J. Fisher, Use of Safe Tactics and Techniques (Mar. 7, 2014)

Directive

In order to lessen the likelihood of deadly force situations and reduce the risk of injury or death to agents and others, I am implementing the following directive effective immediately, which clarifies existing guidelines contained in the CBP Use of Force Policy:

(1) In accordance with CBP’s current Use of Force policy, agents shall not discharge their firearms at a moving vehicle unless the agent has a reasonable belief, based on the totality of the circumstances that deadly force is being used against an agent or another person present; such deadly force may include a moving vehicle aimed at agents or others present, but would not include a moving vehicle merely fleeing from agents. Further, agents should not place themselves in the path of a moving vehicle or use their body to block a vehicle’s path.

9. Department of Homeland Security, Office of Inspector General Charles K. Edwards, CBP Use of Force Training and Actions To Address Use of Force Incidents (September 2013) (Redacted) [OIG-13-114 Revised]

10. Police Executive Research Forum, U.S. Customs and Border Protection Use of Force Review (February 2013) [PERFReport] (Release May 30, 2014)

Note-1: Not publicly available is the CBP’s 23-page internal response, which the LA Times obtained.
Note-2: See ACLU’s Freedom of Information Act Complaint (May 22, 2014)
Note-3: For the importance of this report, see my analysis on Substack and YouTube.

11. Customs and Border Patrol, Use of Force Policy Handbook (October 2010) (first version) [HB 4500-01B]

Note: The Handbook states that “This Policy supersedes the U.S. Customs Firearms and Use of Force Handbook (CIS HB 4500-01A) dated March 2003; the U.S. Customs and Border Protection Interim Use of Force and Firearms Guidelines dated October 11, 2004; the INS Firearms Policy dated 19 February 2003; the U.S. Customs Firearms and Use of Force Training Policy (CD 4510-017A ) dated December 17, 2001; the 24 Hour Carry of Firearms by Office of Field Operations Personnel (ENF-3-FO RDJ) dated March 3, 2000; and the U.S. Immigration and Customs Enforcement Interim Firearms and Use of Force Policies dated July 7, 2004 (as they applied to CBP components transferred from U.S. Immigration and Customs Enforcement).”

The post DHS, DOJ and Customs & Border Patrol Policies: Use of Deadly Force and Moving Vehicles appeared first on Just Security.

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Chairman of the Joint Chiefs of Staff stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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.

The post Expert Q&A on U.S. Military Actions on Venezuela and Boat Strikes appeared first on Just Security.

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.

The post International Law and the U.S. Military and Law Enforcement Operations in Venezuela appeared first on Just Security.

The Department of Justice’s Office of Legal Counsel opinion, Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, was signed by then-Assistant Attorney General Bill Barr.

Among other things, the Barr memo concluded that the President could, as a domestic law matter, order actions in contravention of the UN Charter’s prohibition on the use of force, such as a forcible abduction of a foreign national in another country. The memorandum ran 22-pages long concerning, most of which entailed statutory interpretation of FBI authorities and the domestic status of customary international law. The explanation for its claim about the UN Charter and treaty law covered only four brief paragraphs. The analysis boiled down to a (flawed) assertion that Article 2(4) of the UN Charter is “non-self-executing” for courts to enforce and thus not domestic law binding on the Executive.

As explained at length below, the four-paragraph analysis reached a radical conclusion that cannot withstand serious scrutiny. 

[Two notes before proceeding: (1) A violation of the Charter would still be unlawful as an international law matter, and no one contends otherwise. (2) I am not aware of any instance in which the Barr memo has been implemented by an administration to excuse a violation of the UN Charter; instead the four paragraphs have remained around like a loaded gun.]

I. The fallacy of equating treaty provisions that are “non-self executing” (in the sense of being enforceable in court) with treaty provisions that are not legally binding on the Executive

The most basic flaw in the Barr memo is its conflation of two types of treaty provisions:

Category A: A treaty provision that is “non-self-executing” in the sense that it has not “become a rule for the Court” to enforce in the absence of implementing legislation (Barr Memo quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.); and

Category B: A treaty provision that is “not legally binding on the political branches.” 

The two categories are analytically and practically distinct. There are many federal laws that do not provide for any private cause of action and cannot be enforced in court, but are nevertheless legally binding on the Executive. See The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (2018) (“A treaty’s lack of judicial enforceability is not inconsistent with a status of ‘Law of the Land’ under the Supremacy Clause. Constitutional and statutory provisions—also ‘supreme Law of the Land’—can also be non-self-executing in this sense.”).

Without any explanation, the Barr memo contends that Category A is the same as, or leads to, Category B (“A, therefore, B”). That is a fundamental error. The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (“[T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law.”) Consider the basic distinction described by a range of experts:

Whether a treaty is self-executing or not, it is legally binding on the United States. Whether it is self-executing or not, it is supreme law of the land. If it is not self-executing, Marshall said, it is not ‘a rule for the Court’; he did not suggest that it is not law for the President or for Congress.

– Louis Henkin, Foreign Affairs and the United States Constitution 203 (2d ed. 1996)

My approach, by contrast, would distinguish between judicially enforceable treaty commitments and those that are not, while treating all of them as the supreme law of the land. Among other things, I believe my approach is easier to reconcile with the text of the Supremacy Clause, which states that “all” treaties ratified by the United States shall be the supreme law of the land (and here Professor Vásquez and I are in agreement).

– Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 Supreme Court Review 131-182 (2008)

Of course, all three treaties at issue (including Article 94 of the UN Charter) are “federal law,” because all treaties are “federal law.”  That wasn’t the question before the [Medellin] Court.  The question was whether the treaties were “self-executing,” by which the Court meant judicially enforceable in U.S. courts.  …

Just like statutes can constitute “federal law” and, by their terms, not be judicially enforceable, so too can treaties. 

– Then-Solicitor General for the State of Texas Ted Cruz (who argued Medellin v. Texas), in Federalist Society Online Debate, Medellin v. Texas, Part I: Self-Execution, 2008.

To say that a treaty is not yet ripe for an individual to enforce in court does not necessarily mean that it requires legislation before the President must heed it. Treating the two as coterminous has its appeal, but it is inconsistent with the view of many in the Founding Era that treaties were binding under the U.S. Constitution, including (seemingly) for the President, irrespective of whether those treaties might be enforced by individuals in court. Moreover, the oft-repeated rationalization for non-self-executing treaties – that they are not cognizable in the courts because they are first addressed to the political branches – may be perfectly consistent with vesting authority for their enforcement in the President. 

– Edward Swaine, Taking Care of Treaties, 108 Columbia Law Review 331, 355 (2008) (emphasis in original)

A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.

– Deborah Pearlstein, Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land, Opinio Juris (2015)

With this well-settled understanding, Marty Lederman wrote about the Barr memo in 2015:

Quite frankly, this was a non-sequitur in 1989, and it remains so.  The fact that a court cannot enforce a treaty provision without further legislative action — because the President and the Senate (arguably) determined that it would be “non-self-executing” in that sense — does not say anything about whether the provision imposes a binding norm under domestic law for executive conduct.  That is to say (and to invoke the seminal Court case on this subject), the fact that Congress “must execute the [treaty provision] before it can become a rule for the Court,” Foster v. Neilson (Marshall, C.J.), does not mean that Congress must pass a law to implement the treaty provision before it can become a rule for the Executive.  The two are distinct questions, and they don’t necessarily share the same answers.
…
Article 2(4) of the U.N. Charter plainly does impose a prohibition that was designed, and expected, to be binding on the Executive even if not judicially enforceable.  Indeed, it’s a fairly preposterous notion, I think, to suggest that when the U.S. ratified the Charter, President Truman and the 1949 Senate would have seriously entertained the notion — let alone intended — that Article 2(4) would not be binding on the President as a matter of U.S. law.

[Aside: The Barr memo also claims that the President “has the authority to order such actions in contravention of the Charter,” but it is unclear why this would be restricted to the President if the treaty provision is, as a result of being “unexecuted” in domestic legislation, not binding on the political branches at all. The claim is equally erroneous as to other Executive branch officials.]

II. The domestic legal status of Article 2(4) of the U.N. Charter

The Barr memo properly accepts that the question is not whether a treaty as a whole is self-executing, and instead “the question should be whether individual provisions of the treaty are self-executing” (fn. 28). 

However, the memo overlooks the strongest arguments for Article 2(4) of the U.N. Charter satisfying the test of self-executing in the sense of binding domestic law. There is no reason to think the U.S. treatymakers (the Senate and President) or the framers of the U.N. Charter thought this provision would provide a private cause of action. But there is every reason to believe they considered the provision automatically binding on the United States and on the political branches. (And they understood other provisions of the Charter would not be self-executing or binding domestic law in any sense of the word.) 

A) Applying the Barr Memo’s own sources of authority

For the proposition that Article 2(4) is not self-executing the memo cites just two court cases. Neither case directly supports the memo’s assessment of Article 2(4), and one of the cases strongly undercuts it.

The first case simply noted that the provisions of the Charter involving the Trusteeship Agreement for the Trust Territory of the Pacific Islands is “not self-executing and do not vest any of the plaintiffs with individual legal rights which they may assert in this Court.” That is unremarkable.

The second case – Sei Fujii v. State of California – is an influential judgment in which the court correctly held that human rights provisions of the Charter are not-self executing. That’s because the member States only “obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights [and] it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives.” In other words, the provisions are “framed as a promise of future action” and “lack the mandatory quality and definiteness,” explained the well-reasoned court opinion. (More on such provisions when I discuss Medellin v. Texas below.)

Importantly, the Sei Fujii court also explained that other provisions of the Charter do meet the criteria for self-execution as binding domestic law. At the outset, the court noted, “It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby.” The court then turned to the relevant criteria for self-executing and automatically binding provisions and identified examples of Charter provisions that satisfied the test. 

“When the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention,” the court wrote. The court cited, as examples, provisions with mandatory language and specific obligations (e.g., “Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization”). 

Importantly, those provisions are similar in structure to Article 2(4): “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 ….” Indeed, Article 2(4) is even clearer in its mandatory and prohibitory language.

What’s more, the sources of authority relied on by Sei Fujii also support the conclusion that Article 2(4) is domestic law binding on the Executive. As evidence that a provision of the Charter is not self-executing, Sei Fujii relied on the description given in Secretary of State Edward R. Stettinius, Chairman of the United States Delegation at the San Francisco Conference, Letter to President Truman (June 26, 1945). The Stettinius Letter, which also featured prominently in the Senate hearings on ratification of the Charter, informed President Truman that article 54 of the Charter “pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes.” The Sei Fujii court well understood that description of a loose commitment to mean the provision was not-self-executing.  In sharp contrast, the Stettinius Letter informed Truman that Article 2(4) is part of the Charter provisions that “are binding on the Members” (p. 55) and that “Members accept as binding” (p. 37)  “The standards of conduct of this country permit us to assume this obligation with no hesitation,” the Stettinius Letter stated (p. 56).

Sei Fujii also relied on Hans Kelsen, The Law of the United Nations (1950) to assess whether a provision was automatically binding. Accordingly, it is notable that Kelsen identified Article 2(4) as one of the two provisions that “constitute the main obligations of the Members” (p. 90).

The Sei Fujii court was clear that other provisions of the Charter could be self-executing. The court cited other cases which issued such holdings: Curran v. City of New York, 77 N.Y.S.2d 206, 212 (N.Y. Sup. Ct. 1947) (“That these provisions [Articles 104 and 105], in a Treaty made under the Authority of the United States, are the law of the land, needs no argument.”) and Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831 (N.D. Cal. 1950) (in discussing Article 104 of the Charter, stating, “As a treaty ratified by the United States, the Charter is part of the supreme law of the land. No implemental[sic] legislation would appear to be necessary to endow the United Nations with legal capacity in the United States.”). (See also Office of the US Attorney for the Southern District of New York letter to Judge Shlomo S. Hagler in All Craft Fabricators, Inc. v. ATC Associates Inc. (2015), relying on Curran v. City of New York and subsequent case law for the claim that courts should respect and enforce some UN treaty obligations.) 

In short, the Barr memo cited no real authority for its determination of the status of Article 2(4); and the authority it did cite strongly helps prove the opposite. That case law invoked by the memo relied on criteria and sources of authority that would clearly support the understanding that Article 2(4) of the UN Charter is domestic law binding on the Executive.

B) Other sources of authority

On the core question – whether Article 2(4) of the U.N. Charter is binding domestic law and thus triggers the President’s duty to “take Care that the Laws be faithfully executed” – the Barr memo overlooked obvious and important sources of authority.

The most sustained and authoritative assessment of the “Take Care” Clause as it relates to Article 2(4) of the U.N. Charter is Brian Finucane, Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter, 105 Cornell Law Review 1809 (2020). I commend especially Finucane’s examination of the drafting history of the Charter and the Senate’s advice and consent to the treaty at pp. 1840-45. As Finucane explains, “Those involved in the drafting and ratification of the U.N. Charter who considered the matter took the position that the Charter would be a ‘Law’ within the meaning of the Take Care Clause.” 

I also commend Finucane’s account of the Truman administration’s invocation of the Charter and the Take Care Clause in justifying the U.S. approach to the Korean conflict, pp. 1845-47 (discussing administration’s 1951 memorandum, Powers of the President to Send the Amred Forces Outside of the United States, submitted to the Senate Foreign Relations Committee and Authority of the President to Repel the Attack in Korea, 23 Department of State Bulletin 173 (1950).

Needless to say, a credible OLC opinion on a legal question of such import would have, at a minimum, grappled with these same sources and past presidential actions.

III. Contrary subsequent DOJ practice

The Justice Department has not taken the position of the Barr memo in court. Instead, the DOJ has supported the standard distinction we describe – that a treaty provision (a) may not be self-executing in the sense that individuals have a right to enforce it in court, but (b) may nevertheless be the “law of the land” under the Supremacy Clause and the Take Care Clause. 

Indeed, the DOJ under President George H.W. Bush adopted the standard view soon after the Barr memo in an indirectly related matter. Barr produced his memo in advance of the U.S. extraterritorial apprehension of Panama’s leader, Gen. Manuel Noriega. Following his imprisonment in the Southern District of Florida, Noriega asserted in federal court that he was entitled to POW protections while in detention. The court noted: ”The government acknowledges that Geneva III is ‘the law of the land,’ but questions whether that law is binding and enforceable in U.S. courts” (emphasis added).

(Aside: the court held that Noriega was a POW under Geneva Convention III and “entitled to the full range of rights under the treaty, which has been incorporated into U.S. law.”)

The DOJ adopted a similar stance in a case involving a crossborder abduction that occurred several months after the Barr memo. When the case, United States v. Alvarez-Machain, reached the Supreme Court, the DOJ stated in its brief:

“It is well established that the international charters that deal with the use of force within the borders of other nations do not create rights enforceable by private individuals in court.”

“[T]he Constitution provides that ‘[t]his Constitution, and the Laws of the United States … and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.’ Art. VI, Cl. 2. As a matter of domestic enforceability, however, it has long been recognized that treaties may be ‘executory’ in the sense that they do not give rise to legal rights without implementing legislation.”

Notably, when asked by Justice David Souter about these passages in the brief during oral argument, Solicitor General Kenneth Starr explained: “In terms of whether there was a violation or not of the U.N. charter and the like, I think the law is clear, Justice Souter, that that does not give rise to privately enforceable rights. … We are held to account to the Congress of the United States, which knows how to legislate.”

The DOJ under George W. Bush took a similar approach before the Supreme Court in Medellin v. Texas. The Department recognized that a treaty may not provide a private right of action, but could still operate as law of the land for the purposes of presidential enforcement (see #6 pp. 40-42 of Sept 2005 Brief discussing the Vienna Convention on Consular Relations). The DOJ also argued that the ratification of the U.N. Charter, in conjunction with the President’s Article II powers, made the presidential enforcement of an ICJ decision “the supreme Law of the Land” (pp. 23-24; see also p. 6 of June 2007 Brief  (“The Supremacy Clause makes the national government’s action binding on the States when it acts under a valid treaty.”)).

(Aside: The Supreme Court rejected the latter view with respect to enforcement of ICJ decisions in U.S. domestic courts. More on the Medellin opinion below.)

In sum, the DOJ before federal courts has accepted that an “unexecuted treaty” (or more specifically, a non-self-executing treaty provision) can still be binding as a matter of domestic law, in contradiction of the Barr memo.

IV. Contrary congressional intent (especially including Senate Foreign Relations Committee)

The Barr memo’s assessment of Article 2(4) was so deeply counterintuitive and indefensible that it might explain why he and the DOJ tried to keep it from Congress. When news of the existence of the memo first leaked, Congress asked Barr to provide the opinion (DOJ refused, even after a subpoena) and for Barr to testify (he did so in November 1989). As I wrote at length about the episode in an essay several years ago, Barr agreed to provide Congress a public account that “summarizes the principal conclusions” of the opinion. His 13-page summary, however, omitted reference to the section involving the UN Charter and non-self-executing treaties. 

In the course of trying to pry loose the OLC opinion, the House Judiciary Committee subcommittee on civil and constitutional rights held three hearings. Not knowing the opinion’s analysis of the UN Charter, Chairman of the committee Don Edwards remarked in his opening comments at a hearing on July 22, 1992:

Well, this story of a legal opinion was very upsetting to the sub- committee. The Constitution is very clear that laws passed by the Congress and signed by the President and treaties properly executed are the supreme law of the land, and so naturally we wanted to take a look at the legal opinion.

In more recent years, the conclusions in the Barr memo have been squarely rejected by the Senate Foreign Relations Committee. In 2008, the committee wrote:

The committee believes it is of great importance that the United States complies with the treaty obligations it undertakes. In accordance with the Constitution, all treaties — whether self-executing or not —are the supreme law of the land, and the President shall take care that they be faithfully executed.

The statement by the Senate Foreign Relations Committee deserves special emphasis. As Marty Lederman wrote in 2015: “If you are someone who–in contrast to the Senate Foreign Relations Committee–insists upon using the term ‘non-self-executing’ to refer to a treaty provision that is not domestic law unless Congress has enacted implementing legislation, well, in that case . . . Article 2(4) is not non-self-executing (that is to say, it is self-executing), given your use of those terms.”

On Jan. 7, 2025, the Senate Foreign Relations Committee Chairman Sen. Richard Durbin (D-IL) wrote a letter to the Attorney General calling for withdrawal of the Barr opinion. Durbin wrote:

The opinion concluded, inter alia, that the President could unilaterally “override” the U.N. Charter’s prohibition on the use of force. … This legal conclusion is inconsistent with the President’s obligation “to take Care that the Law be faithfully executed” as treaties such as the U.N. Charter are “laws” for the purposes of the Take Care Clause. The Senate has repeatedly reaffirmed its view on this point, including with respect to non-self-executing treaties.

V. A Note about Medellin v. Texas

Regrettably, dicta in the Supreme Court’s decision in Medellín v. Texas appeared to suggest that non-self-executing treaties, “are not domestic law unless Congress has …  enacted implementing statutes” (emphasis added). Many pages have been spent trying to discern what that dicta meant. 

First, I agree with the eminent experts involved in the Restatement of Foreign Relations Law. Medellin was focused on domestic law in terms of enforceability in court, and there is no reason to conclude it unsettled the standard view that lack of judicial enforcement has no bearing on status of a treaty provision under the Supremacy Clause. The Restatement explains:

“The failure of  Medellín to speak clearly and comprehensively to the domestic legal status of non-self-executing treaty provisions was understandable, insofar as the Court was focused in that case only on whether the relevant treaty provisions were judicially enforceable. Likewise, other courts have focused on the issue of judicial enforceability rather than supremacy. … . [T]here is no clear reason at present to conclude that non-self-executing provisions are, as a general matter, less than supreme law.”

– The Restatement (Fourth) of Foreign Relations Law § 310 Reporter’s note 12 (2018)

As indicated above, Ted Cruz who argued the Medellin case as Texas’s Solicitor General took the same view as the Restatement on the Court’s opinion. He explained:

Of course, all three treaties at issue (including Article 94 of the UN Charter) are “federal law,” because all treaties are “federal law.”  That wasn’t the question before the [Medellin] Court. The question was whether the treaties were “self-executing,” by which the Court meant judicially enforceable in U.S. courts.  …

Just like statutes can constitute “federal law” and, by their terms, not be judicially enforceable, so too can treaties. 

– Federalist Society Online Debate, Medellin v. Texas, Part I: Self-Execution, 2008.

See also Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 American Journal of International Law 540, 550 (2008) (“The Court makes clear there that the president is not precluded from taking actions to enforce a non-self-executing treaty, and that its decision only disallows the president from ‘unilaterally making the treaty binding on domestic courts.’ This statement is consistent with the approach to non-self-execution taken in Foster, where the Court stated that a non-self-executing treaty must be implemented by legislation ‘before it can become a rule for the Court.’ Under this approach, a non-self-executing treaty is supreme law of the land but does not create a rule of decision for U.S. court.”); Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harvard Law Review 599, 650 (2009) (agreeing essentially with Bradley’s description).

Second, the framework used by Medellin to assess whether U.N. Charter Article 94(1) is “non-self-executing” aligns with the framework articulated in Sei Fujii, discussed above. Accordingly, there’s every reason to think a faithful application of that framework would deem Article 2(4) of the U.N. Charter self-executing in the sense of domestic law binding on the Executive. 

The Medellin Court emphasized that Article 94(1) “does not provide that the United States ‘’shall’’ or ‘must’’ comply with an ICJ decision.” In sharp contrast, those are the kinds of terms that Article 2(4) does provide.

Article 94(1): ‘‘Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”

Article 2(4): “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.”

Indeed, Article 2 of the U.N. Charter uses a double “shall.” The heading provides that Member states “shall act in accordance with” Article 2(4). 

The Medellin Court also stated that Article 94(1) does not “indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, the words of Article 94 call upon governments to take certain action.” In contrast, all the evidence demonstrates that the Senate that ratified the U.N. Charter intended for Article 2(4) to have immediate legal effect and that it categorically mandated governments to refrain from certain actions (rather than the loose diplomatic language of calling on governments to do so). As discussed above, the Secretary of State Stettinius’s Letter to President Truman, which featured prominently in the Senate Foreign Relations Committee ratification discussions, stated: Article 2(4) is part of the Charter provisions that “are binding on the Members” (p. 55); it is a class of Charter provisions that “Members accept as binding” (p. 37); and  “[t]he standards of conduct of this country permit us to assume this obligation with no hesitation” (p. 56). As Hans Kelsen explained, in 1950, Article 2(4) was one of the two provisions that “constitute the main obligations of the Members” (p. 90). See also the discussion above of Finucane’s historical work showing the treatymakers considered the Charter provisions on the use of force would be “Law” of the United States and binding on the Executive under the Supremacy Clause and Take Care Clause. 

* * *

The 1989 OLC Memo was fundamentally flawed from the start, but its weaknesses have only been better understood over time. Former government attorneys have expressed the “preposterous” nature of the OLC analysis during Democratic and Republican administrations. This is no partisan issue, but one of concern to the separation-of-powers and the rule of law on matters of war and peace. 

The post Maduro Capture Operation and the President’s Duty to Faithfully Execute U.N. Charter appeared first on Just Security.

Her stated reasons for spiking the segment exhibit a fundamental misunderstanding of the government’s legal case against the alleged Tren de Aragua (TdA) gang members. Indeed, as fairly recent guests on the show, we would be shocked if the multiple layers of 60 Minutes fact checkers and legal reviewers would get anything wrong. But Weiss did.

We now know the opening lines of the 60 Minutes segment. “The White House claimed the men were terrorists, part of a violent gang, and invoked a centuries-old wartime power saying it allowed them to deport some men immediately, without due process.” That’s correct.

 In an email to staff on Sunday explaining her rationale, Weiss claimed that they “need to do a better job of explaining the legal rationale by which the administration detained and deported these 252 Venezuelans to CECOT.”

Weiss continued:

 It’s not as simple as Trump invoking the Alien Enemies Act and being able to deport them immediately. And that isn’t the administration’s argument. The admin has argued that in court that detainees are due “judicial review” – and we should explain this, with a voice arguing that Trump is exceeding his authority under the relevant statute, and another arguing that he’s operating within the bounds of his authority. There’s a genuine dispute here.…

 There are several problems with Weiss’s take. Putting our point more strongly, if 60 Minutes had “explained this” as Weiss described they should, the segment would have included false or highly misleading information.

(1) “The admin has argued that in court that detainees are due ‘judicial review’ – and we should explain this”

Contrary to Weiss’s stated understanding, the administration has argued that the men detained and sent to CECOT under the Alien Enemies Act (AEA) are not due “judicial review.” And indeed they were not provided with judicial review.

On Mar. 14, Attorney General Pam Bondi issued “Guidance for Implementing the Alien Enemies Act.” A subsection is captioned: “No entitlement to hearings, appeals, or judicial review of removal order.” It states unequivocally that “[a]n alien determined to be an Alien Enemy and ordered removed under the Proclamation and 50 U.S.C. § 21 is not entitled to … judicial review of the removal order in any court of the United States” (emphasis added) 

That is, Bondi stated that those detained and removed from the United States under the AEA are “not entitled” to judicial review – the opposite of what Weiss claimed in her email. Notably, Bondi’s memorandum coincided with President Donald Trump’s invocation of the AEA; her interpretation was the administration’s first attempt to explain its position regarding “judicial review.” 

What’s more, the DOJ directly told at least some of the men that they were not entitled to judicial review. The written notice that they were being summarily removed under the AEA stated: “You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal” (emphasis added).

Indeed, the men sent to the CECOT torture prison clearly were not provided with judicial review, so it does not matter what the administration argued in a court of law. Nor were the men provided any form of due process, even though they had the right to seek habeas relief. That is the true crux of the matter.

The administration took even more extreme positions before the courts. In April, a unanimous Supreme Court held that individuals removed under the AEA are constitutionally entitled to seek habeas (more on the decision below). The Justice Department later conceded that the administration “is” required (note the present tense) to provide detainees with notice and opportunity to seek habeas relief (p. 34). However, the DOJ also took the audacious view in court that the Supreme Court’s ruling applied only prospectively – not to the men who had been removed to CECOT, the same people at the center of the 60 Minutes segment. Judge Boasberg described that DOJ argument as “roundly rejected.” He wrote: “If the Due Process Clause now entitles a party to certain procedures, it always has” (emphasis in original). 

It should be clear to any close observer of the facts and the litigation that Weiss’s depiction of the Government’s position was deeply flawed. 

(2) “we should explain this, with a voice arguing that Trump is exceeding his authority under the relevant statute, and another arguing that he’s operating within the bounds of his authority”

Whether Trump exceeded his authority under the relevant statute is largely, if not completely, irrelevant. A version of the canceled segment has been posted online. And the point Weiss raises is a second-order question not at issue in the 60 Minutes segment (e.g., whether there is an “invasion” or “war” for purposes of the AEA, and whether the president has therefore exceeded his authority under the statute). The first-order question – whether the men were summarily deported in violation of their due process rights under the U.S. Constitution – is stated at the outset of the segment.

(3) “There’s a genuine debate here.”

No, there’s not. 

On Monday, Chief Judge Boasberg ruled that the “purpose” of the Trump administration’s “hasty removal” of the men deported to El Salvador was “evident” – that is, it “was certainly intended to deprive them of an opportunity to secure prior judicial review.” Boasberg’s finding contradicts Weiss’s blanket statement that the administration has argued in court that the detainees were due judicial review. Even if the administration had made that argument, the administration did not provide the detainees with such an opportunity – and that is what matters.

But Weiss is wrong about the government position in litigation as well. As Boasberg notes, the administration “conceded [that] Plaintiffs had no opportunity to contest their designation as TdA members prior to removal” (emphasis added). 

Almost as if he were in conversation with Weiss’s misstatements the day before, Boasberg added:

At various points in this litigation, the Government itself has not even contested that the detainees who now make up the CECOT class received inadequate process prior to their removal. See generally July 24 Hr’g Tr. (Government not contesting Court’s finding on merits of due-process violation); Gov. Opp. PI (same); May 7 Hr’g Tr. at 29:24–31:21. There can be no genuine dispute about this question now. (emphasis added)

Indeed, Boasberg wrote on the foundation of the U.S. Supreme Court ruling in April that “‘[i]t is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.” The Justices added that “AEA detainees must receive notice … that they are subject to removal under the Act” and “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” The following month, the Supreme Court ruled again that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”  The men removed to CECOT did not receive even that amount of process. 

As immigration law expert Aaron Reichlin-Melnick wrote on social media, “Weiss is making up a ‘debate’ that has already been settled.”

We return to the opening lines of the canceled 60 Minutes segment, in which the narrator states a simple truth – namely, that the administration sent more than 200 men to CECOT “without due process.” There is no material dispute over this fact. Indeed, Weiss does not even dispute that. What she does affirmatively claim, however, is not grounded in the realities of the Government’s actual legal arguments or the facts of the cases.

The post Fact Checking Bari Weiss: The Stated Reasons for Spiking 60 Minutes “Inside CECOT” appeared first on Just Security.

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.

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.

Note: Some of the questions below assume the U.S. official responding will take the view that the United States is in one or more armed conflicts with cartels or criminal gangs. As a matter of law, the United States is not in an armed conflict with any such groups, and the law of armed conflict (otherwise called international humanitarian law, IHL) does not apply to these operations.

A. Campaign as a Whole

Which drugs and what quantity: The Trump administration has sought to justify the strikes as necessary to counter the illicit sale of drugs in the United States, particularly fentanyl, given some such drugs end up harming or killing Americans. It is not known which drugs, and in what quantities, are being targeted. 

1. Is there a type of drug that has to be known to be on board for a vessel to be targeted? 

2. A quantity?

3. How do you know the type of drugs on board?

4. The quantity?

5. What level of confidence is required in intelligence assessments on these questions?

6. Do you believe that any level of drug trafficking, from any place and to any location, constitutes taking up arms against the United States? If not, what is the level, what is the place, and location?

Destination of vessels and drug sales: 

7. Do you have to know the destination of the vessel for it to be targeted? Or the onward location for sale of the drugs?

8. Secretary Rubio has said much of the cocaine being targeted is headed for sale in Europe. Is it your assessment that go-fast boats ferrying drugs for sale in Europe are engaged in hostilities against the United States? 

9. What percentage of fentanyl coming into the United States is from Venezuela?

10. What percentage of fentanyl coming into the United States is due to Tren de Aragua (TdA)?

11. What percentage of cocaine coming into the United States is from Venezuela?

12.What percentage of cocaine coming into the United States is due to Tren de Aragua?

13. Do these groups present a threat of armed attack against the United States? 

14. Is there any evidence or surveillance footage of weapons on any of these boats? If so, how often?

15. Are any of these boats capable of reaching the United States without refueling?

16. What level of confidence is required in intelligence assessments on these questions? 

17. Is the intelligence community uniform in these assessments?

What groups may be targeted and why: 

18. Which specific groups is the military authorized to target under the Execute Order (EXORD) for this operation? How many of those groups have been targeted to date?

19. Do the EXORD or any other operational documents specify which groups or persons can be targeted? Which groups? Which persons?

20. Do the EXORD or any other operational documents make any distinction for U.S. citizens or U.S. persons who can be deliberately targeted in an attack? Who can be killed incidentally in an attack?

21. Is there a “Declared Hostile Force” (DHF) identified in the Rules of Engagement (ROE) (or more than one)?  What is it/are they?

22. Have any of these groups aimed lethal force at the U.S. military or civilians? If so, can you specify what occurred? 

23. Have any of these groups sought to militarily control territory within the United States?

24. To your knowledge, have any of these groups stated an intention to engage in armed conflict with the United States?

25. What is the definition of an “affiliate” or “associate” of TdA who is not a member of the group?

26. What level of confidence is required in intelligence assessments on these questions? 

27. Is the intelligence community uniform in this assessment?

28. On Sept. 3, Secretary Rubio stated, “These drug cartels, what they do is they know they’re going to lose 2% of their cargo;” “They bake it into their economics. What will stop them is when you blow them up.” Is that a fairly accurate description of the reason the administration turned to the use of lethal operations? Is the idea that interdictions do not deter the cartels but killing people they pay to carry their drugs does?

Who qualifies as an “unlawful combatant”? The administration has claimed it is striking “unlawful combatants” involved in a non-international armed conflict (NIAC) with the United States. 

29. Does an individual need to be a “member” of one of the 24 newly listed DTOs/FTOs to qualify as an “unlawful combatant”?

30. What criteria suffice for someone to be considered a “member”?

31. Can a person be targeted for running drugs for profit if they are not themselves a “member” of the cartel/gang but the drugs belong to the cartel/gang?

32. Would communication with members of one of the 24 groups regarding selling drugs they control be sufficient to determine that a person is targetable?

33. Have any government lawyers raised concerns about whether any of the individuals on the boats should be considered civilians pre-strike?

34. Have any government lawyers raised concerns about whether any of the individuals on the boats should be considered civilians post-strike?

35. What is the Area of Operations (AO) under the EXORD?  Is it limited to the Caribbean and the Pacific? 

36. Are traffickers crossing the southern border on land targetable with lethal force?

37. What constitutes “directly participating in hostilities” (DPH)?  Low level drug dealers?  Users?  Unwitting or unwilling “mules”? 

What are the strike criteria? Are there limits on who may be targeted?

38. How many forms of positive identification of the combatant/DHF are required before the military may engage with lethal force? 

39. What level of certainty is required before an individual is targeted?

40. Are there age requirements?  Gender requirements?

41. Are “affiliates” of “members” of a cartel targetable? What about “affiliates” of “affiliates”?

42. What does the ROE say about the non-combatant casualty cut-off value (NCV)?

43. Who is the Target Engagement Authority (TEA) for the campaign?  Is this delegable?  Has it been delegated? 

44. If so, were any of such delegations rescinded or other authorities changed following the Oct. 16 attack in which two survivors were rescued? 

45. SOUTHCOM’s social media feed has stated that certain strikes were executed on the orders of Secretary Hegseth (e.g., Nov. 10 and Nov. 15).  Secretary Hegseth has stated on his social media feed that certain strikes were executed on the orders of the President (e.g., Oct. 3, 19, 21, 22, 24, 28, 29 and Nov. 1, 4, 6, 10). Who makes the determination for who is responsible for each strike? 

How do you assess whether a strike was successful? 

46. Do interdictions succeed at seizing drugs being unlawfully trafficked into the United States?

47. If your goal is to stop the drugs from entering the United States, would Coast Guard-led, Navy-supported interdictions do so?  Hasn’t that been happening successfully for years, and as recently as August 2025?

48. What is the most accurate assessment of how many American lives, if any, are saved by each boat destroyed?  How are you determining that?

49. If your goal is to kill low-level drug runners, would you also support using lethal force to target low-level drug runners selling drugs obtained through the same cartels/gangs within the United States? If not, why not?

50. For DOJ officials: Why is the Department of Justice deporting “drug mules” instead of prosecuting them?  Will low-level drug smugglers be charged with “terrorism” offenses? 

51. How much fentanyl coming into the United States has been reduced by the U.S. military strikes on Tren de Aragua affiliated boats? How much fentanyl coming into the United States has been reduced by all U.S. military strikes on suspected drug boats since Sept. 2?

52. How much cocaine coming into the United States has been reduced by the U.S. military strikes on Tren de Aragua affiliated boats? How much cocaine coming into the United States has been reduced by  all U.S. military strikes on suspected drug boats since Sept. 2?

53. Why weren’t the survivors of the Oct. 16 attack detained, for intelligence purposes or otherwise? Does intelligence gathering play any role in these missions?

Armed attack and self-defense: The United States has claimed in communications to Congress and at the UN Security Council that it has suffered an armed attack giving rise to the right of self-defense under Art. 51 of the UN Charter. It has not explained the specifics of any “armed attack” or how necessity and proportionality are considered. 

54. Is it your assessment that the United States has suffered an armed attack that gives rise to a right to target these boats or people in self-defense? 

55. If so, what was the armed attack, specifically? 

56. By whom was it perpetrated, specifically? 

57. What were the goals of the group(s) and the attack as you understand them? 

58. In your view, how is targeting the individuals and boats “necessary” in self-defense if interdiction in order to stop the drugs and the people is an available (and ongoing) option?

59. How are you applying the principles of the Law of Armed Conflict (proportionality, distinction, military necessity, and the prevention of unnecessary suffering)?

Partners, allies and others:

60. Has any other State requested the United States to engage in these lethal operations?

61. Which foreign governments have expressed concerns about the legality of these U.S. military operations?

62. Which foreign governments have made clear that their intelligence partnerships with the United States are not to include use of their collection or analysis in these strikes?

63. Which foreign governments have changed their counter-narcotics intelligence sharing with the United States since Sept. 2? How so?

64. Which foreign governments have changed their support for or participation with U.S. counternarcotics operations since Sept. 2? How so?

65. Are other countries justified in using lethal force within the United States against gun and drug traffickers? 

Drugs as related to hostile acts or armed attacks:

66. Is it your understanding that those who sell drugs in the United States are motivated by profit?

67. Is it your belief that selling drugs for profit, knowing some of them will harm or kill Americans, constitutes an armed attack? A hostile act? If so, on what basis specifically?

68. To your knowledge, are there any past examples of the United States – or any other State – considering such actions constitute hostile actions or an armed attack?

69. Could selling other substances that knowingly end up causing the deaths of tens of thousands of Americans each year qualify as hostile acts? As armed attacks?

• What about selling illegal guns knowing some will kill Americans (causing more than 45,000 deaths per year)?  
• What about tobacco (causing approximately 480,000 deaths per year)? 
• What about motor vehicles (more than 40,000 deaths per year)?

Other questions about legal advice:

70. Have any government lawyers raised concerns about the legality of the operations?

71. Have any government lawyers raised concerns about whether it is accurate to claim the United States is in a “non-international armed conflict” with any of the groups?

72. Have any government lawyers raised concerns about whether it is accurate to claim TdA has engaged in “armed attacks” against the United States?

73. Have any government lawyers been told to address only some legal issues and not to address other legal issues (such as jus ad bellum, or the law governing the resort to armed force) but instead, in effect, to treat the latter as resolved?

74. Were any government lawyers not included in the legal assessment who would ordinarily be included in past administrations?

75. A senior administration official reportedly told the Washington Post that “[t]he [OLC] opinion ‘memorialized a decision taken by a restricted interagency lawyers group’ made up of four career lawyers, including two uniformed military attorneys, and four political appointees… The group unanimously concluded that ongoing actions are a legally available option for the president.’” 

• Is that accurate? If not, how not?
• When did the meeting take place? 
• Which agencies and departments were represented?
• Who personally participated? Who else had direct knowledge of the meeting? 
• How were the participants chosen?
• Who selected them?
• What is meant by a “restricted” interagency lawyers group?
• Were there any differences in the decision taken at that meeting and the written OLC opinion in September?
• Is Tim Parlatore considered one of those uniformed attorneys?
• Were those at the meeting told to assume certain facts as true? Which facts?
• What is meant by “ongoing actions”? Targeting the drugs, the people, the vessels, or some combination of those? Does that include targeting only groups recognized as “organized armed groups” such as ELN in Colombia, or all 24 groups named in the OLC opinion?

B. The September 2 Strikes

Your assessment of TdA’s actions: The September 2nd strike was stated to have targeted and killed 11 TdA members. 

76. On what basis do you believe that TdA is in hostilities with the United States? (Note: I am not interested in what label has been applied to the group, but their actual conduct as you understand it.)

77. Was your pre-strike assessment that all 11 people on the boat were “members” of TdA? 

1. • If yes, how was that confirmed prior to the strike? How is membership in TdA determined?
   • Based on what you know about TdA, is it customary for TdA to pay 11 separate people to act as “drug mules” on a single transport?
   • Was any of your intelligence source from “rival” or other groups or criminal organizations?
   • If not, on what basis were they targeted?

78. Based on yourpost-strike assessment, how many of the 11 people on the boat were “members” of TdA? How many were “affiliates” of TdA? 

79. What is the definition of affiliation or association used for this strike?

80. Do you believe members of TdA are trained to conduct armed violence against the United States? 

81. Do you think the administration has a responsibility to inform Americans if U.S. intelligence agencies determine some of the 11 people may not have been members of or affiliated with TdA? Is there a responsibility to correct the record ifU.S. officials have publicly stated facts that turn out not to be true?

82. Where were the “members” of TdA going on Sept. 2?

83. TdA has only been publicly referenced in the first strike on Sept. 2.  Which groups were involved in each subsequent strike?

Operational guidance regarding survivors: 

84. Do the EXORD or any other operational documents specify what should be done if there are shipwrecked survivors? 

• • Have there been changes made during this campaign to operational documents to specify what should be done if there are shipwrecked survivors? 
  • If so, when were those changes made and on what basis?

Target of Sept. 2 strike: 

85. What was the target? Were the people on board the boat the target or the boat itself or the drugs on board or some combination of those? 

86. Was the boat carrying drugs? What type and how much?

87. Do you have any reason to believe the boat may have also been trafficking people?At what time did you first positively identify (PID) the target?

88. How did you establish PID?

89. Was Secretary Hegseth present when you first established PID?

90. Where was the target geographically when you first established PID?  Where was it geographically when you executed the strike?  What was its destination?

Hegseth orders: 

91. Did Secretary of Defense Hegseth give the order to “kill them all” or “kill everyone” or anything similar? 

92. When?

93. To whom? 

94. Who else heard or knew of this order?

95. Who is the Declared Hostile Force, if any, under the ROE?

96. Did Hegseth author any portion of the ROE?  Who did?

Target engagement authority: 

97. Who was the target engagement authority (TEA)? 

98. What role did that person play in the operation?

99. Did they approve the first strike? The second? The third? The fourth?

100. Was TEA delegated at any time during this strike, or any others?

101. Where was the TEA at the time of the strike?

102. Where was Admiral Bradley at the time of the strike?

103. Where was General Caine at the time of the strike?

104. Did the TEA have a legal advisor?  Who was it?

105. Did Admiral Bradley have a legal advisor?  Who was it?

106. Did General Caine have a legal advisor?  Who is it?

107. Where were the relevant legal advisors located at the time of the strike?  Did they approve of the strike?

Aircraft and weaponry:

108. What aircraft prosecuted the strike?  

109. From where did it depart before beginning the mission? From what unit?

110. What was its payload on the day of the Sept. 2 strike?  

111. How long could the aircraft stay on mission (before needing to refuel, be reassigned, etc.)? 

112. What munition was used for the first, second, third, and fourth strike?  (Or any others.)

113. Was there a second form of surveillance, beyond the firing aircraft’s own camera, covering the target at the time of the strike?  What was it? 

Identification of survivors: 

114. What was the battle damage assessment (BDA) from the first strike?  Where was that information logged?

115. When was it determined there were survivors? 

116. What were they doing?

117. Were they injured? In or out of the water?

118. Was the boat navigable?  How do you define that?

119. Was Secretary of Defense Hegseth watching the strike live? For how long? Who else was in the room with him? Who else was directly in communication with him at the time?

120. What, if anything, did your legal advisor(s) tell you about the survivors?

121. What constitutes “shipwrecked,” in your opinion?

Calling for help as “hostile action” and retrieving cocaine as “active combat activity”:

122. What would a survivor of a strike who is shipwrecked at sea have to do in your view to show they are not “in the fight”? There is no flag to raise and there are no weapons to drop. Are they supposed to not call anyone to rescue them?

123. Is it your belief that a shipwrecked survivor of a strike communicating with a cartel member that they need to be rescued to avoid drowning at sea is a “hostile act” or demonstrates “hostile intent”? Why? 

124. If it is your view that the United States is in an armed conflict against TdA and other groups, and if such groups are declared hostile forces (DHF) in the relevant ROE: Are declared hostile forces protected by the Geneva Conventions?  Can declared hostile forces be considered shipwrecked?

125. Do you view retrieving cocaine as “active combat activity”? If so, on what basis could it qualify as such?

126. Do submersibles and other watercraft come equipped with radios meant to survive a shipwreck?  Are U.S. servicemembers targetable if they survive a shipwreck and call for help?

Concerns raised: 

127. Did anyone involved in the Sept. 2 attack raise concerns about striking survivors before the follow-on strikes were ordered? Before they were launched? 

128. How were those concerns communicated?  (Verbal, digital, etc.)

129. Did anyone involved in the Sept. 2 attack raise concerns about striking survivors after the strike?  If so, who, when, and how?

130. The New York Times reported that “military officials had used a written texting system … to communicate … during planning scenarios ahead of the attack.” In the planning sessions, what were the different scenarios for killing survivors? 

131. Did the military draw any lessons learned from the Sept. 2 strike that were considered by some to be mistakes made? What were those?

132. How did subsequent planning scenarios for handling survivors change, if at all, after the Sept. 2 strike?

Timeline between strikes and who was present: 

133. How much time passed between strikes?

134. Did the same aircraft stay on target to conduct BDA?  

135. How soon after these kinds of strikes does the smoke generally clear so one can see, for example, survivors? 

136. Was the boat on fire after the first strike?  The second?  The third?  The fourth? 

137. What was on Secretary of Defense Hegseth’s schedule that he turned to after the first strike?

138. Who watched any of the Sept. 2 strikes live? 

Briefing:

139. When was President Donald Trump briefed on the strike and what happened?  Who briefed him?  Was he briefed on the survivors after the initial strike?

140. When were members of Congress first briefed? Who was given what information ?  Were they briefed about the survivors of the Sept. 2 strike?

C. The Targeting Process and Whether and How It Has Changed

141. What was every target locked on before the launch of each strike on Sept 2?

142. Does DOD/JSOC/SOUTHCOM have all the normal data documenting every launch and video showing every target locked on before each launch?

143. After the September 2 strike, did the U.S. military adopt a different policy/posture toward survivors of these strikes? 

• Background: The Oct. 16 strike included two survivors (held on a U.S. Navy warship until transferred to Colombia and Ecuador on October 18). An Oct. 27 strike left one survivor (SOUTHCOM reportedly initiated standard Search and Rescue protocols for the lone survivor before transferring the mission to the Mexican Navy, which eventually called off search efforts for the individual, who is now presumed dead.) It has been reported that the United States is using -AGM-114 Hellfire missiles to attack these vessels. What mode are the missiles deployed in? Have they been placed in a “blast fragment” or “airburst” mode? What model of AGM-114 has been used?

144. Did the U.S. military use anti-personnel or anti-material munitions in each of the strikes/attacks on vessels? 

145. What munitions were used in the other strikes?  How much do they cost per unit?

146. How many strikes have been taken in total?

147. After Sept. 2, has the U.S. military ever engaged in a follow-on strike with survivors present at the target site?

D. Additional Questions (post initial publication):

148. Once survivors of the first Sept. 2 strike were observed, did anyone try to contact the Secretary of Defense?

149. Were there any communications with the Secretary following the observation of the survivors and before ordering or launching the second strike?

150. What medium did the Secretary use for those communications?

The post U.S. Boat Strike Campaign: Questions Congress Should Ask Executive Branch Officials 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.