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

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

Which Body of Law Governs?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

The post Just Security’s Russia–Ukraine War Archive appeared first on Just Security.

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

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

A Warning About Shadow Wars

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

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

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

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

Intelligence in the Lead

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

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

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

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

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

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

From Covert Action to Public Accountability

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

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

The post U.S. Intelligence in a Post-Maduro Venezuela appeared first on Just Security.

The collection now also includes analysis of more recent boarding and seizure of vessels, including U.S. sanctioned oil tankers, and the U.S. military operation in Venezuela that removed President Maduro from power.

Informational Resources

• Jeremy Chin, Margaret Lin, and Aidan Arasasingham, Timeline of Boat Strikes and Related Actions (continually updated)

Operation Absolute Resolve and Threats of Force against Venezuela

• Jeffrey Rogg, U.S. Intelligence in a Post-Maduro Venezuela (Jan. 9, 2026)
• Brian Egan, Tess Bridgeman, and Ryan Goodman, Congress, the President, and the Use of Military Force in Venezuela (Jan. 7, 2026)
• Chimène Keitner, Head of State Immunity and Maduro on Trial (Jan. 6, 2026)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, International Law and the U.S. Military and Law Enforcement Operations in Venezuela (Jan. 4, 2026)
• Ryan Goodman, Maduro Capture Operation and the President’s Duty to Faithfully Execute U.N. Charter Assessment of 1989 OLC Opinion (Jan. 3, 2026)
• Michael Schmitt, U.S. Saber Rattling and Venezuela: Lawful Show of Force or Unlawful Threat of Force? (Nov. 4, 2025)

Seizure and Blockade of Vessels (Domestic and International Law)

• Rob McLaughlin and Connor McLaughlin, A Law of the Sea Assessment of the U.S. boarding of the Bella 1 / Marinera (Jan. 14, 2026)
• Rob McLaughlin and Tess Bridgeman, The Just Security Podcast: Can the U.S. Seize Russian Flagged Oil Tankers? (Jan. 8, 2026)
• Elizabeth Hutton, Maritime Law Enforcement on the High Seas: Authority, Jurisdiction, and the Seizure of The Skipper An Expert Backgrounder (Dec. 22, 2025)
• Michael Schmitt and Rob McLaughlin, Blockading Venezuela: The International Law Consequences (Dec. 18, 2025)
• Rob McLaughlin and Connor McLaughlin, Was the Visit and Seizure of the Skipper off the Coast of Venezuela Lawful? (Dec. 17, 2025)
• See also Question 31 in Tess Bridgeman, Michael Schmitt, and Ryan Goodman, Expert Q&A on the U.S. Boat Strikes (Dec. 13, 2025)

Operation Southern Spear and Related Operations Legal Analysis (Domestic and International Law)

• Michael Schmitt, Using an Unmarked Aircraft to Attack an Alleged Drug Boat: Is it Perfidy? (Jan. 20, 2026)
• Michael Schmitt, Marko Milanovic, The International Law Obligation to Investigate the Boat Strikes (Dec. 15, 2025)
• Tess Bridgeman, Michael Schmitt, and Ryan Goodman, Expert Q&A on the U.S. Boat Strikes (Dec. 13, 2025)
• Mark Nevitt, The Law on Targeting Shipwrecked Drug Traffickers: Expert Backgrounder (Dec. 11, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Operation Southern Spear: Why the Crews, Drugs, and Boats are Not Targetable (Dec. 7, 2025)
• Michael Schmitt, Ryan Goodman and Tess Bridgeman, Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder (Dec. 1, 2025)
• Daniel Maurer, Hypothetical Legal Review of Narcotrafficking Strikes (Nov. 18, 2025)
• Michael Schmitt, Marko Milanovic, and Ryan Goodman, The International Law Obligation of States to Stop Intelligence Support for U.S. Boat Strikes (Nov. 17, 2025)
• Brian Finucane, Dissecting the Trump Administration’s Effort to Circumvent the War Powers Resolution for Boat Strikes (Nov. 3, 2025)
• Rebecca Ingber and Jessica Thibodeau, Expert Backgrounder on War Powers Resolution 60-Day Clock for Boat Strikes Expiring Monday (October 31, 2025)
• Ryan Goodman, Michael Schmitt and Anna Jimenez, Irreconcilable Presidential Determinations: On Tren de Aragua and the Venezuelan Government (October 29, 2025)
• Michael Schmitt, Attacking Drug Cartels in the Territory of Another State (Oct. 17, 2025)
• Marty Lederman, Legal Flaws in the Trump Administration’s Notice to Congress on “Armed Conflict” with Drug Cartels (Oct. 3, 2025)
• Daniel Maurer, US Servicemembers’ Exposure to Criminal Liability for Lethal Strikes on Narcoterrorists (Sept. 24, 2025)
• Marty Lederman, The Many Ways in Which the September 2 Caribbean Strike was Unlawful … and the Grave Line the Military Has Crossed (Sept. 10, 2025)
• Michael Schmitt, Striking Drug Cartels Under the Jus ad Bellum and Law of Armed Conflict (Sept. 10, 2025)
• Mark Nevitt, Using Labels, Not Law, to Justify Lethal Force: Inside the Venezuelan Boat Strike (Sept. 5, 2025)
• Brian Finucane, Legal Issues Raised by a Lethal U.S. Military Attack in the Caribbean (Sept. 3, 2025)

Congressional Actions and Oversight

• Tess Bridgeman, Margaret Donovan and Ryan Goodman, U.S. Boat Strike Campaign: Questions Congress Should Ask Executive Branch Officials (Dec. 4, 2025)
• Stephen R. Weissman, Will the Intelligence Committees Meet the Challenge of CIA Covert Action in Venezuela? (Oct. 31, 2025)
• Mary B. McCord and Tess Bridgeman, What the Senate Judiciary Committee Should Ask A.G. Bondi on Drug Cartel Strikes (Oct. 3, 2025)

Policy Analysis and Opinion

• Mark Nevitt, Killing Shipwrecked Survivors is Not Just Illegal—It Endangers U.S. Servicemembers (Dec. 1, 2025)
• Eugene R. Fidell, Daniel Maurer and Steven J. Lepper, Professional Responsibility and the Boat Strikes (Dec. 1, 2025)
• Brett Max Kaufman, From Secret Law (2001-2024) to None at All (2025-present) (Nov. 21, 2025)
• Sarah Harrison and Mark Nevitt, The Caribbean Strikes and the Collapse of Legal Oversight in U.S. Military Operations (Oct. 23, 2025)
• Ben Saul, The United States’ Dirty War on “Narco Terrorism” (Sept. 22, 2025)
• Annie Shiel, John Ramming Chappell, Priyanka Motaparthy, Wells Dixon and Daphne Eviatar, Murder by Drone: The Legal and Moral Stakes of the Caribbean Strikes (Sept. 17, 2025)
• Brian Finucane, Asserting a License to Kill: Why the Caribbean Strike is a Dangerous Departure from the “War on Terror (Sept. 15, 2025)

Podcast Episodes

• Tess Bridgeman, Rob Mclaughlin, The Just Security Podcast: Can the U.S. Seize Russian Flagged Oil Tankers? (Jan. 8, 2026, also available on YouTube)
• Tess Bridgeman, Rachel Goldbrenner, Rebecca Ingber and Brian Finucane, The Just Security Podcast: Murder on the High Seas Part IV (Dec. 2, 2025)
• Tess Bridgeman, Brian Finucane, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part III  (Oct. 21, 2025, also available on YouTube)
• Tess Bridgeman, Brian Finucane, Rachel Goldbrenner, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas Part II — What We Know about U.S. Vessel Strikes One Month In (Oct. 7, 2025)
• Tess Bridgeman, Brian Finucane, Rebecca Ingber, The Just Security Podcast: Murder on the High Seas? What You Need to Know about the U.S. Strike on the Caribbean Vessel (Sept. 9, 2025, also available on YouTube)

The post Collection: U.S. Lethal Strikes on Suspected Drug Traffickers, Operation Southern Spear, Operation Absolute Resolve 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.

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Overview as of January 2, 2026: 35 strikes; 115 reported killed; 2 known survivors; 8 missing

INTERNATIONAL REACTION (Russia): On or before December 31 – Russia lists Bella 1 in official database of flagged vessels

• On or before December 31, Russia states that the Bella 1 is now registered as the Marinera, flying the Russian flag and with a home port of Sochi
• Note: See December 20 entry for U.S. Coast Guard pursuit of Bella 1.

THIRTY-FOURTH AND THIRTY-FIFTH STRIKE December 31 – 34th and 35th strikes on two vessels, killing five

On December 31, at the direction of Secretary of Defense Hegseth, Joint Task Force Southern Spear conducted successive strikes on two vessels “operated by Designated Terrorist Organizations” and “transiting along known narco-trafficking routes” in an unnamed body of water. According to a post on X by U.S. Southern Command, the strikes killed three people aboard the first vessel and two people aboard the second vessel, totaling five killed.

THIRTY-FIRST, THIRTY-SECOND, AND THIRTY-THIRD STRIKE December 30 – The 31st, 32nd and 33rd strikes on three vessels, killing at least three

• On December 30, at the direction of Secretary of Defense Hegseth, Joint Task Force Southern Spear conducted successive strikes on three vessels “traveling as a convoy” and operated by “Designated Terrorist Organizations.” Unlike prior strike announcements, the announcement of the strikes noted that the vessels were in “international waters” and “transiting along known narco-trafficking routes” but did not specify the body of water in which the attacks occurred. The announcement also stated that the three vessels had “transferred narcotics between [themselves] prior to the strikes.”

According to a post on X by U.S. Southern Command, the first strike killed three people aboard one vessel, while the occupants of the other vessels jumped overboard before strikes sunk the remaining two vessels. SOUTHCOM thereafter notified the U.S. Coast Guard to activate the Search and Rescue System for the reported eight potential survivors. The U.S. Coast Guard issued a statement that it “is coordinating search and rescue operations with vessels in the area” and that “a Coast Guard C-130 aircraft is en route to provide further search coverage with the ability to drop a survival raft and supplies.”

THIRTIETH STRIKE December 29 – 30th strike on one vessel in the eastern Pacific, killing two

• On December 29, at the direction of Secretary of Defense Hegseth, Joint Task Force Southern Spear conducted a strike on a vessel “operated by Designated Terrorist Organizations” in the eastern Pacific Ocean, killing two people aboard, according to a post on X by U.S. Southern Command. 

INTERNATIONAL REACTION (Russia): December 25 – Russia criticizes U.S. actions to blockade Venezuela

• At a December 25 press conference, in response to a question about U.S. action to blockade Venezuela, Russian Foreign Ministry spokeswoman Maria Zakharova stated, “Today we are witnessing complete lawlessness in the Caribbean Sea, where long-forgotten theft of other people’s property, namely piracy, and banditry, are being revived.” She stated that Russia would “consistently advocate for a de-escalation.”
• The Foreign Ministry spokesperson further stated, “We confirm our support for the efforts of the government of Nicolas Maduro aimed at protecting sovereignty and national interests, and maintaining the stable and secure development of his country.”

On or about December 24 – CIA conducts drone strikes on port facility in Venezuela

• According to sources within the U.S. government, the CIA conducted a drone strike on a port facility within Venezuela likely on December 24, the first known American operation inside Venezuelan territory. The strike reportedly occurred on a dock where U.S. officials believed Tren de Aragua, a designated cartel, was storing narcotics, and did not cause any fatalities.

• Note: In a phone interview on December 26, President Trump first revealed the strikes, stating, “We just knocked out — I don’t know if you read or you saw — they have a big plant or big facility where they send the, you know, where the ships come from … Two nights ago we knocked that out. So we hit them very hard.” He further stated in an interview on December 29 that “there was a major explosion in the dock area, where they load the boats up with drugs.”

INTERNATIONAL REACTION (United Nations): December 24 – UN experts issue statement condemning US naval blockade of Venezuela

• On December 24, four UN experts – Ben Saul, UN special rapporteur on counter-terrorism and human rights; George Katrougalos, independent expert on international order; Surya Deva, UN special rapporteur on right to development; and Gina Romero, special rapporteur on the right to peaceful assembly and association – issued a joint statement condemning the US naval blockade of Venezuela.
• The statement contended that the use of military force to blockade another country is prohibited by the UN Charter. The experts further stated that the blockade constituted an armed attack – which would provide Venezuela a right of self-defense – and “such a serious use of force that it is also expressly recognised as illegal armed aggression.” They called on States to engage in “collective action” to uphold international law.

INTERNATIONAL REACTION (United Nations and Member States): December 23 – UN Security Council holds emergency meeting over U.S. seizure of Venezuelan oil tankers (UN video)

• In an introduction, UN Assistant Secretary General Khaled Khiari reiterated an October 31 statement made by UN High Commissioner for Human Rights Volker Turk that ​​“the airstrikes by the [United States] on boats in the Caribbean and the Pacific — allegedly linked to drug-trafficking — violate international human-rights law.” He called for “prompt, independent and transparent investigations” (full statement).
• Venezuelan ambassador Samuel Moncada stated, “The world knows that, if the scale of armed attacks continues, we will exercise, with all determination, our inalienable right to self-defence.”
• In response, U.S. ambassador to the UN Mike Waltz opened his statement saying, “the United States does not recognize Nicolas Maduro or his cronies as the legitimate government of Venezuela.” He stated that “sanctioned oil tankers operate as the primary economic lifeline for Maduro and his illegitimate regime.” He added, “One has to ask: why have sanctions either bilaterally, unilaterally, or backed by the international community – if they are not enforced? Well, the United States, under President Trump is enforcing them in international waters” (full statement).
• Brazil stated, “The aforementioned military force maintained by the United States off the coast of Venezuela and the recently declared naval blockade are violations of the UN Charter. Therefore, it should cease immediately and unconditionally in favor of the use of political and legal instruments that are broadly available.” 
• Denmark stated that it “underscores the importance of preserving the Caribbean as a ‘Zone of Peace,’” and “strongly urges all parties to strictly adhere to international law” and that “differences must be resolved through peaceful means, diplomacy, and political solutions.” South Korea, Chile, Colombia, Mexico, Sierra Leone, and Algeria also emphasized the region’s status of Zone of Peace.
• South Korea also stated, “The need to address transnational organized crime, including drug trafficking, is an issue the international community cannot ignore. At the same time, respect for sovereignty, territorial integrity, as well as protection of civilians remain core values that the United Nations Charter seeks to uphold.” The South Korean representative also emphasized the need for non-military means to address the issue.
• Russia’s representative stated, “The acts by the US side run counter to all key norms of international law including the UN Convention on Law of the Sea, [previous] Security Council resolutions and the [UN] Charter.”
• China’s representative similarly stated, “We stand against any move that violates the purposes and principles of the UN charter and infringes upon other countries’ sovereignty and security; against the threat or use of force in international relations; against external interference in Venezuela’s internal affairs under any pretext, and against illicit unilateral sanctions and long armed jurisdiction that have no basis in international law or authorization by the Security Council.”
• France stated, “France has been closely monitoring the developments transpiring in the region specifically in the wake of President Donald Trump’s announcements related to Venezuelan airspace and the naval blockade against oil tankers under sanction, which are entering and exiting Venezuela. We call for avoidance of all escalation that may threaten peace and security in the region and beyond. As always, we recall our commitment to respect for international law and in particular the Charter of the United Nations. The principles of sovereignty and territorial integrity of States must be upheld. International disputes must always be resolved peacefully in accordance with Article 2, paragraph 3 of the charter. We support the Secretary General’s call for restraint and immediate deescalation as well as his offer of good offices. We extend our support as well for the mediation proposals emanating from States in the region who may contribute. President, combating narcotics trafficking needs to be done in accordance with international law, in particular the Charter of the United Nations, the United Nations Convention on the Law of the Sea and various international conventions on drug control, specifically the United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances dating 1988, which sets out the relevant framework of action against illicit trafficking at sea.”
• Mexico stated: “The recent escalation of tensions and the deployment of military forces in the south of the Caribbean sea represent actions that put at risk regional stability.” He also spoke against the threat or use of force.
• Chile stated that although her government “does not recognize the legitimacy of the current regime led by Mr. Nicolás Maduro,” Chile rejects any armed activity that could put at risk regional peace and stability. The representative stated, “Chile would like to express its profound concern regarding the deployment of military action in the Caribbean,” referencing the need to comply with international law.
• Sierra Leone stated, “Without prejudging the facts, we emphasize a general point of law. When States respond to transnational challenges, whether illicit trafficking, organized crime or terrorism, those responses must remain consistent with the Charter and other applicable rules of international law, including relevant maritime rules and international human rights law. In that regard, Sierra Leone also recalls that outside a situation of armed conflict, the use of lethal force is subject to strict constraint under international human rights law, including the protection of the right to life. As a general principle, operations of a  law enforcement character should seek wherever feasible to intercept and bring suspects to justice through due process. Reports that suggest loss of life in circumstances that may not meet the strict requirement of necessity and proportionality understandably raises serious legal questions.”
• Greece, Pakistan, and Somalia cautioned against escalation that could spread instability across the region, and called for the peaceful resolution of disputes.
• See also the full statement by the United Kingdom.
• Note: Venezuela requested a meeting of the Security Council on December 17, the day following President Trump’s order of a “blockade” of all sanctioned oil tankers entering and leaving Venezuela.

INTERNATIONAL REACTION (Russia, China): December 22 – Russia and China express concern over U.S. interception of oil tanker off Venezuelan coast

• Following the United States’ interception of the Centuries, a China-bound oil tanker off the coast of Venezuela on December 20, on December 22, Chinese Foreign Ministry spokesperson Lin Jian stated that the interception as well as “unilateral and illegal” sanctions violated international law and asserted that Venezuela had the right to develop relations with other countries.
• On the same day, Russia’s foreign minister issued a joint statement with Venezuela’s foreign minister expressing “deep concern over the escalation of Washington’s actions in the Caribbean Sea, which could have serious consequences for the region and threaten international shipping.” 

December 22 – U.S. deploys aircraft designed to transport special-operations forces, troops and equipment in Caribbean

• On December 22, Osprey tilt-rotor aircraft used to transport special forces and cargo planes arrived in Puerto Rico, within SOUTHCOM’s area of responsibility. 
• On the same day, in an interview with reporters, President Trump stated, “We have a massive armada for him [Venezuelan President Maduro]. The biggest we’ve ever had and by the far the biggest we’ve ever had in South America.”

TWENTY-NINTH STRIKE December 22 – 29th strike on a vessel in the eastern Pacific, killing one total

• On December 22, Joint Task Force Southern Spear conducted a strike on “a low-profile vessel operated by Designated Terrorist Organizations” in international waters, killing one person aboard, according to a statement by U.S. Southern Command. 

December 20 – U.S. Coast Guard pursues Venezuela-linked oil tanker in international waters 

• As of December 20, the U.S. Coast Guard was actively pursuing in the Caribbean Sea the Bella 1, an oil tanker en route to pick up oil from Venezuela. U.S. officials said the vessel was not flying a valid flag when the Coast Guard approached it late on Dec. 20. U.S. officials told press the Coast Guard had obtained a judicial seizure warrant and pursued the tanker after it did not submit to being boarded. The tanker reportedly was under U.S. sanctions since last year for transporting Iranian oil. 
• Note-1: This would be the third oil tanker linked to Venezuela intercepted since the start of December, following U.S. operations on Dec. 10 and 20.
• Note-2: See December 31 entry for Russian flagging this vessel.

December 20 – U.S. Coast Guard boards tanker carrying Venezuelan oil in Caribbean Sea

• • On December 20, the U.S. Coast Guard, with support from DOD, stopped and boarded the Centuries, a Panamanian-flagged oil tanker carrying Venezuelan oil in the Caribbean Sea. Secretary of Homeland Security Kristi Noem posted a video of the operation on X, saying the tanker was last docked in Venezuela. The tanker’s cargo reportedly belongs to a China-based oil trader with a history of taking Venezuelan oil to refineries in China.

• Note: A U.S. official told the New York Times that U.S. authorities did not have a seizure warrant to take possession of the vessel, and said that the Coast Guard was trying to ascertain if the tanker’s Panama registration was valid. The tanker was not at the time on the Treasury Department’s sanctions list.

December 19 – Trump nominates new head of SOUTHCOM

• On December 19, the Department of Defense announced that President Trump had nominated Marine Corps Lt. Gen. Francis L. Donovan to head U.S. SOUTHCOM after the previous commander, Adm. Alvin Holsey retired on December 12.

Note: The New York Times reported that, according to current and former U.S. officials, previous commander Adm. Holsey had voiced concerns over boat strikes in past months. However, there was no official reason given for Adm. Holsey’s retirement.

TWENTY-SEVENTH AND TWENTY-EIGHTH STRIKES December 18 – 27th and 28th strikes on two boats in the eastern Pacific, killing five total

• On December 18, Joint Task Force “Southern Spear” conducted two strikes on vessels that it stated were “operated by Designated Terrorist Organizations” in international waters, according to a statement by U.S. Southern Command. The first strike killed three in the first vessel, and the second killed two in the second vessel, totaling five killed. 

TWENTY-SIXTH STRIKE December 17 – 26th strike on one vessel in the eastern Pacific, killing four

• On December 17, Joint Task Force “Southern Spear” conducted a strike on a vessel that it stated was “operated by Designated Terrorist Organizations” in international waters, killing four people aboard, according to a statement by U.S. Southern Command.

December 17 – Proposed war powers resolutions fail to reach the Senate floor

• The first measure (H.Con.Res.61), introduced on Nov. 17 by lead sponsor House Foreign Affairs Committee Ranking Member Gregory Meeks (D-NY), failed in a vote of 210-216. The mostly party-lines vote had the support of Reps. Thomas Massie (R-KY) and Don Bacon (R-NE). Pursuant to the War Powers Resolution section 5(c), the legislation would have directed the President to “remove United States Armed Forces from hostilities with any presidentially designated terrorist organization in the Western Hemisphere, unless authorized by a declaration of war or a specific congressional authorization for use of military force against such presidentially designated terrorist organization.” 
• The second measure (H.Con.Res.64), introduced on Dec. 1 by lead sponsor Jim McGovern (D-MA), failed in a vote of 211-213. It  had the support of Reps. Thomas Massie (R-KY), Don Bacon (R-NE), and Marjorie Taylor Greene (R-GA). The legislation would have directed the “removal of United States Armed Forces from hostilities within or against Venezuela” in the absence of congressional authorization. 

December 16 – Trump announced a “complete blockade” of U.S. sanctioned oil tankers going to and from Venezuela

• On Dec. 16, Trump said in a post on social media that he ordered a “complete blockade” on all sanctioned oil tankers going to and from Venezuela. He wrote, “Venezuela is completely surrounded by the largest Armada ever assembled in the History of South America. It will only get bigger, and the shock to them will be like nothing they have ever seen before — Until such time as they return to the United States of America all of the Oil, Land, and other Assets that they previously stole from us.”
• Note: On Dec. 10, U.S. forces seized an oil tanker, the Skipper, off the coast of Venezuela, in a law enforcement action aimed at enforcing existing U.S. sanctions on the tanker. (See entry for Dec. 10)

December 16 – Secretaries Rubio and Hegseth give classified bipartisan briefings to House and Senate

On Dec. 16, Secretary of State Rubio and Secretary of Defense Hegseth provided classified briefings to the full House and Senate on the strikes. Hegseth reportedly declined to show members the video of the Sep. 2 operation that included a second strike, killing survivors of the initial strike on the boat, calling it “top-secret,” but planned to show the video to members of House and Senate national security focused committees, given its level of classification. Members of the House and Senate Armed Services Committee were shown the full video on Dec. 17.

TWENTY-THIRD, TWENTY-FOURTH, AND TWENTY-FIFTH STRIKES: December 15 – 23rd, 24th, and 25th strikes on three vessels in the eastern Pacific, killing eight total 

• On December 15, Joint Task Force “Southern Spear” conducted three strikes on vessels “operated by Designated Terrorist Organizations” in international waters, according to a statement by U.S. Southern Command. The first strike killed three in the first vessel, the second killed two in the second vessel, and the third killed three in the third vessel, totaling eight killed. In a social media post accompanying a video, U.S. Southern Command stated, “Intelligence confirmed that the vessels were transiting along known narco-trafficking routes in the Eastern Pacific and were engaged in narco-trafficking.”

December 11 – U.S. announces sanctions on Venezuelan oil industry and members of Maduro’s family

• On Dec. 11, the U.S. Department of the Treasury announced new sanctions on “three nephews of Maduro’s wife; a Maduro-affiliated businessman; and six shipping companies operating in Venezuela’s oil sector.” The Treasury statement also identified six already-sanctioned vessels that continue to provide shipping and financial resources to Maduro’s regime and announced stricter sanctions enforcement measures on those vessels.

December 10 – U.S. forces seize oil tanker off the coast of Venezuela

• On Dec. 10, U.S. forces seized an oil tanker off the coast of Venezuela, reportedly following its transfer of about 50,000 barrels of oil to Cuba. Attorney General Pam Bondi posted a video of the operation on social media and stated, “For multiple years, the oil tanker has been sanctioned by the United States due to its involvement in an illicit oil shipping network supporting foreign terrorist organizations.” The Coast Guard seized the vessel pursuant to a warrant issued by a U.S. court on Nov. 26.
• Venezuela’s Communications Minister called the seizure an example of the United States’ “piracy, kidnapping, theft of private property, [and] extrajudicial executions in international waters.”

December 7 – Provision that would restrict Secretary Hegseth’s travel budget unless boat strike evidence is disclosed included in amendments to the annual defense authorization bill 

• A provision was included in the National Defense Authorization Act (NDAA) for Fiscal Year 2026 (House Amendment to S.1071), released December 7, to limit Secretary of Defense Pete Hegseth’s travel budget for fiscal year 2026. The funds would be cut to “not more than” 75% until Hegseth releases specified orders behind the strikes and “provides to the Committees on Armed Services of the House of Representatives and the Senate unedited video of strikes conducted against designated terrorist organizations in the area of responsibility of the United States Southern Command.”
• Note: The legislation was signed into law on Dec. 18.

TWENTY-SECOND STRIKE: December 4 – 22nd strike on a vessel in the eastern Pacific, killing four

• On December 4, Joint Task Force “Southern Spear” conducted a strike on a vessel “operated by a Designated Terrorist Organization” in the eastern Pacific Ocean at the direction of Secretary of Defense Pete Hegseth. In a social media post, the Southern Command stated that “the vessel was carrying illicit narcotics and transiting along a known narco-trafficking route in the Eastern Pacific.”

December 3 – Family of Colombian fisherman killed in September 15 strike file complaint with Inter-American Commission on Human Rights

• The family of Colombian fisherman Alejandro Carranza, who was allegedly killed in the Trump administration’s second strike on a vessel on September 15, filed a formal complaint with the Inter-American Commission, requesting the body to investigate and issue a finding that the order from Secretary of Defense Pete Hegseth to bomb the vessel was an extrajudicial killing in violation of Carranza’s human rights.

November 29 – Trump declares Venezuelan airspace closed

• In a social media post, Trump declared the airspace above and surrounding Venezuela “closed in its entirety,” escalating tensions between the U.S. and Venezuela. Caracas responded in an official statement, calling Trump’s comments a “colonialist threat that seeks to undermine the sovereignty of [Venezuela’s] airspace, constituting a new extravagant, illegal, and unjustified aggression against the people of Venezuela.”
• Note: See November 22 entry on three international airlines having cancelled flights to and from Venezuela upon reports of “new phase” of operations.

November 28 – House and Senate begin inquiries into alleged September 2 double-tap strike

• The House and the Senate have reportedly begun separate investigations into the Sept. 2 incident.
• Note: See Just Security’s Unlawful Orders and Killing Shipwrecked Boat Strike Survivors: An Expert Backgrounder for more information and analysis.

November 27 – Trump suggests land strikes in Venezuelan territory would start “soon”

• On a Thanksgiving call to service members, Trump noted that “You probably noticed that people aren’t wanting to be delivering by sea, and we’ll be starting to stop them by land also. The land is easier, but that’s going to start very soon.”

November 24 – 13 Democratic Senators write letter to AG Bondi and Secretary Hegseth requesting the declassification and public release of the DOJ OLC written opinion on the strikes

• The letter was signed by Senators Richard Blumenthal (D-CT), Jack Reed (D-RI), Tim Kaine (D-VA), Jeanne Shaheen (D-NH), Kirsten Gillibrand (D-NY), Mazie K. Hirono (D-HI), Angus King (I-ME), Elizabeth Warren (D-MA), Gary Peters (D-MI), Tammy Duckworth (D-IL), Jacky Rosen (D-NV), Mark Kelly (D-AZ), and Elissa Slotkin (D-MI).
• The letter requested the text of the reported September 5 OLC opinion “concerning the domestic and international legal basis for recent military strikes of certain vessels near South America and the Caribbean, with appropriate redactions necessary to protect military personnel and sensitive intelligence matters.” It further noted: “Few decisions are more consequential for a democracy than the use of lethal force. We therefore believe that the declassification and public release of this important document would enhance transparency in the use of deadly force by our Nation’s military and is necessary to ensure Congress and the American people are fully informed of the legal justification supporting these strikes.”

November 24 – U.S. Chairman of the Joint Chiefs of Staff, General Dan Caine, reportedly visits Puerto Rico and a Navy warship deployed in the Caribbean 

• The stated reason for the trip by General Caine is to thank troops ahead of Thanksgiving, but military officials reported that the general was expected to consult with commanders on preparations related to Operation Southern Spear.

November 22 – U.S. reportedly to launch “new phase” of Venezuelan operations

• According to sources from within the U.S. government speaking on the condition of anonymity, the Trump administration plans on commencing a new phase of Venezuelan operations, involving additional covert operations and a potential plan to overthrow Venezuelan President Maduro.
• Note: On November 21, the U.S. Federal Aviation Administration (FAA) warned major airlines of a “potentially hazardous situation” when flying over Venezuela. Three international airlines have since cancelled flights to and from Venezuela.
• Note: During the previous week, Trump and Maduro reportedly spoke over the phone to discuss a potential face-to-face meeting in the United States, although no meeting was scheduled.

November 20 – U.S. Air Force conducts “bomber attack demo” near Venezuela in “support” of Operation Southern Spear

• In a November 21 post on X, the Southern Command (SOUTHCOM) Air Forces announced that on November 20, they conducted a military demonstration, involving an overflight of a supersonic F/A-18E fighter jet, B-52 strategic bombers and KC-135 support aircraft, in support of Operation Southern Spear. According to media reviews of open-source flight data, the F/A-18E flew from the USS Gerald Ford, which arrived in the Caribbean earlier this week, and RC-185 reconnaissance aircraft additionally joined the overflight.
• An Air Force social media post claimed the military demonstration “showcase[d] our vow to deter illicit drug networks & defend the homeland.”
• Note: The U.S. military had been conducting training missions near Venezuela in the air and at sea over the prior few weeks. The missions began in mid-October and have involved activity from both B-52s and supersonic B-1 heavy bombers.

INTERNATIONAL REACTION (China): November 19 – China condemns U.S. action to “interfere” in Venezuelan “internal affairs”

• At a press briefing in Beijing on November 19, Chinese Foreign Ministry spokesperson Mao Ning stated that “China opposes any moves that violate the premises and principles of the U.N. Charter and other countries’ sovereignty and security.” Mao further criticized what she described as the U.S.’s outside involvement in Venezuela’s domestic politics, stating that China opposed “the interference of external forces in Venezuela’s internal affairs and any pretext.”

November 18 – Trump authorizes additional CIA covert action in Venezuela while reopening backchannel negotiations with Caracas

• As of November 18, Trump had reportedly authorized additional CIA covert action in Venezuela. As the administration’s pressure campaign on the Maduro government intensifies, Trump also reportedly reopened backchannel negotiations with President Maduro that he had cut off in October.
• Note: Trump publicly confirmed an initial presidential finding authorizing CIA covert action against Venezuela on October 15. He has reportedly still not ruled out ground forces entering Venezuelan territory and has not publicly commented on his preferred course of action.

November 18 – Members of the House of Representatives introduce resolution under the War Powers Resolution to remove U.S. Armed Forces from hostilities with DTOs in the Western Hemisphere

• On November 18, House Foreign Affairs Committee Ranking Member Gergory Meeks (D-NY) and five other House Democrats introduced a resolution (H.Con.Res.61), pursuant to the War Powers Resolution, directing the President to “remove United States Armed Forces from hostilities with any presidentially designated terrorist organization in the Western Hemisphere, unless authorized by a declaration of war or a specific congressional authorization for use of military force against such presidentially designated terrorist organization.” 
• Ranking Member Meeks described the strike campaign as the “worst excesses of the war of drugs and the war on terror.”
• Note: The House resolution comes after two failed similar Senate resolutions. The sponsors are likely to attempt to force a vote on the House Floor in the coming weeks.

November 17 – Trump states that he would be open to strikes in Mexico to “stop drugs”

• On November 17, in an interview in the Oval Office, Trump, when asked if he would launch strikes in Mexico or deploy American troops to the country, stated: “It’s okay with me, whatever we have to do to stop drugs.”
• Trump said he would “probably” go to Congress for approval of military strikes in Mexico, though he did not do so before ordering strikes off the coast of Venezuela.

November 16 – Trump states in interview that the U.S. may enter into discussions with Venezuela

• On November 16, in response to questions by reporters, Trump stated that he would consider entering into discussions with Venezuelan President Maduro, claiming that Venezuela “would like to talk.” Trump stated: “We may be having some discussions with Maduro, and we’ll see how that turns out.”
• Note: On the same day, Secretary of State Rubio said the Department of State would designate the Venezuelan group it has termed “Cartel de los Soles” as a “foreign terrorist organization.” Previously, the White House, in a proclamation on May 15, stated “Maduro leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA… to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States”; the group was also sanctioned by OFAC in July.
• Note: When asked if the Department of State announcement means the U.S. could strike Maduro’s assets in Venezuela, Trump stated: “It allows us to do that, but we haven’t said we’re going to do that.”

TWENTY-FIRST STRIKE: November 15 – 21st strike on a vessel in the eastern Pacific, killing three

• On November 15, Joint Task Force “Southern Spear” conducted a strike on a vessel “operated by a Designated Terrorist Organization” in the eastern Pacific Ocean at the direction of Secretary of Defense Pete Hegseth.
• U.S. Southern Command stated that “[i]ntelligence confirmed that the vessel was involved in illicit narcotics smuggling, transiting along a known narco-trafficking route, and carrying narcotics.” U.S. Southern Command further stated that “3 male narco-terrorists aboard the vessel were killed.”

INTERNATIONAL REACTION (Mexico): November 13 – Mexican President Claudia Sheinbaum announced a U.S.-Mexico agreement for Mexico to interdict alleged drug-running boats

• President Sheinbaum said “There are joint protocols for operations in international waters to prevent the use of bombings against vessels and to ensure compliance with all international treaties. What the [Mexican] Secretary of the Navy proposed was simply that those treaties be respected, and in principle, they agreed. . . . If information comes from U.S. agencies or from Southern Command itself, it will be the Mexican Navy that intercepts those vessels allegedly carrying drugs.”
• Reportedly under the new agreement, Mexico’s Navy will be responsible for intercepting vessels in international waters near the Mexican coastline to prevent further bombings.

November 13 – U.S. Secretary of Defense Pete Hegseth announces Operation Southern Spear

• Secretary of Defense Hegseth specified the operation would be “[l]ed by Joint Task Force Southern Spear and @SOUTHCOM [U.S. Southern Command]” for the purpose of “defend[ing] our Homeland, remov[ing] narco-terrorists from our Hemisphere, and secur[ing] our Homeland from the drugs that are killing our people.”
• The announcement builds on a January 2025 mission under the same name. In that January 28 announcement, U.S. Navy Commander Foster Edwards stated “Southern Spear will operationalize a heterogeneous mix of Robotic and Autonomous Systems (RAS) to support the detection and monitoring of illicit trafficking while learning lessons for other theaters[.]”

November 12 – Trump reportedly receives briefing on potential military operations in Venezuela

• According to CBS, on November 12, Secretary of Defense Hegseth, Chairman of the Joint Chiefs of Staff Dan Caine, and other senior military officials conducted a briefing in the White House informing Trump of potential military operations in relation to Venezuela, including the possibility of land strikes.

November 11 –  As U.S. carrier arrives in Latin America, Venezuela mobilizes military

• According to a U.S. Navy press statement, on November 11, the USS Gerald R. Ford Carrier Strike Group entered the SOUTHCOM area of responsibility, introducing more than 4,000 U.S. troops and dozens of tactical aircraft into the region. The carrier group’s shift from its prior position in the Mediterranean sea to the Caribbean follows an order from Secretary of Defense Hegseth on October 24 stating the need to “augment existing capabilities to disrupt narcotics trafficking and degrade and dismantle TCOs.” (See October 24 entry.)
• Chief Pentagon Spokesperson Sean Parnell stated in a press statement about the carrier group’s arrival: “These forces will enhance and augment existing capabilities to disrupt narcotics trafficking and degrade and dismantle Transnational Criminal Organizations.”
• Note: On the same day, Venezuela’s Defense Minister Vladimir Padrino López reportedly announced a militarization of “ground, aerial, naval, riverine, and missile forces,” putting the “entire country’s military arsenal on full operational readiness.” Padrino López framed the mobilization as a response to the “imperialist threat” posed by U.S. strikes. Venezuela’s military conducted large-scale command, control, and communications exercises between November 11-12, reportedly involving around 200,000 forces.

INTERNATIONAL REACTION (France, European Union): November 11 – French Foreign Minister and EU foreign policy chief question the legality of U.S. strikes in the Caribbean and eastern Pacific under international law 

• On the sidelines of the G7 Foreign Ministers’ meeting in Ontario, Canada, French Foreign Minister Jean-Noel Barrot said “We have observed with concern the military operations in the Caribbean region, because they violate international law and because France has a presence in this region through its overseas territories, where more than a million of our compatriots reside[.]” 
• EU foreign policy chief Kaja Kallas reportedly said on the sidelines of the same meeting that the strikes could only be justified as self-defense or by a UN Security Council resolution. Kallas noted in an NBC interview on November 12 that the G7 ministers were discussing changing international law because “the countries are all struggling” with drug gangs in the region.

INTERNATIONAL REACTION (Colombia): November 11 – Colombia suspends intelligence sharing with United States

• In a post on X, Colombian President Gustavo Petro said: “All levels of law enforcement intelligence are ordered to suspend all communications and other dealings with U.S. security agencies. This measure will remain in effect as long as missile attacks on boats in the Caribbean continue. The fight against drugs must be subordinated to the human rights of the Caribbean people.”
• Colombian Interior Minister Armando Benedetti stated in a post on X on November 13 that Colombia would “continue working as this Government has done against drug trafficking and crime with the United States,” seemingly contradicting President Petro’s earlier statements. The Colombian Defense Minister also clarified on X that Petro gave clear instructions to continue sharing information with “international agencies” to combat drug trafficking.

INTERNATIONAL REACTION (United Kingdom): November 11 – United Kingdom suspends  intelligence sharing with United States on suspected drug trafficking vessels in the Caribbean

• While the United Kingdom has not officially acknowledged this suspension, sources report that it began over a month prior to it being publicly reported. 
• Note: The U.K. has for years provided intelligence to support U.S. Coast Guard drug interdiction efforts, in addition to conducting its own counter-narcotics operations.

TWENTIETH STRIKE: November 10 – Twentieth strike, on a vessel in the Caribbean sea, killing four

• On November 10, Joint Task Force “Southern Spear” conducted a strike on a vessel “operated by a Designated Terrorist Organization” in the Caribbean Sea.
• U.S. Southern Command stated that “[i]ntelligence confirmed that the vessel was involved in illicit narcotics smuggling, transiting along a known narco-trafficking route, and carrying narcotics.” U.S. Southern Command further stated that “4 male narco-terrorists aboard the vessel were killed.”

EIGHTEENTH AND NINETEENTH STRIKES: November 9 – Eighteenth and nineteenth strikes on vessels in the eastern Pacific, killing six

• On November 9, the U.S. military conducted two strikes on vessels “suspected of smuggling drugs” in the eastern Pacific Ocean.
• Secretary of Defense Hegseth announced the strikes in a social media post the following day, stating: “These vessels were known by our intelligence to be associated with illicit narcotics smuggling, were carrying narcotics, and were transiting along a known narco-trafficking transit route in the Eastern Pacific.” He stated: “3 male narco-terrorists were aboard each vessel. All 6 were killed. No U.S. forces were harmed.”

SEVENTEENTH STRIKE: November 6 – Seventeenth strike on a vessel in the Caribbean, killing three

• On November 6, Secretary of Defense Hegseth announced a seventeenth strike on a vessel “operated by a Designated Terrorist Organization[,]” in this instance in the Caribbean. He stated, “The vessel was trafficking narcotics in the Caribbean and was struck in international waters.”
• Hegseth claimed that three “male narco-terrorists” aboard the boat died in the strike. 
• He further warned: “To all narco-terrorists who threaten our homeland: if you want to stay alive, stop trafficking drugs. If you keep trafficking deadly drugs—we will kill you.”

November 5 – Legislation proposed under War Powers Resolution to prohibit war against Venezuela fails 

• A motion to discharge the legislation (S.J. Res. 90) from the Senate Committee on Foreign Relations, brought by lead sponsor Senator Tim Kaine (D-VA) with the support of 17 co-sponsors, failed 49-51. All Democratic senators voted to discharge the legislation, joined by Senator Lisa Murkowski (R-AK) and bill co-sponsor Senator Rand Paul (R-KY).
• If passed, the legislation would have directed “the President to terminate the use of United States Armed Forces for hostilities within or against Venezuela, unless explicitly authorized by a declaration of war or specific authorization for use of military force.” Co-sponsoring Senator Adam Schiff (D-CA) differentiated the resolution from the prior resolution brought on October 8 to end authorization for sea-based strikes, stating during the Senate floor hearing: “[W]hile we remain concerned about those ongoing strikes… [t]his resolution is tailor-written to stop one thing: a war with the nation of Venezuela.”

November 5 – Secretaries of State and Defense conduct a classified briefing with Senate and House lawmakers on legal justification for strikes

• The Trump administration invited around a dozen lawmakers, including the chairs of the intelligence and armed services committees in both chambers, to the briefing discussing orders and legal justifications behind prior strikes.
• Administration officials reportedly acknowledged that they do not know the individual identities of each person on board a vessel before a strike but claimed that they target vessels based on intelligence that the vessel is linked to a specific cartel or criminal organization.
• Attending Senators and Representatives were reportedly told during the classified session that the “execute order” issued by the President and the OLC opinion justifying strikes on vessels did not extend to strikes within the land territory of Venezuela. However, the OLC opinion reportedly includes a list of 24 different cartels and criminal organizations based around Latin America it claims the administration is authorized to target. Furthermore, an unnamed U.S. official stated that the Trump administration is seeking a separate legal opinion from the Justice Department that would justify launching strikes against land targets without Congress authorizing the use of military force.

SIXTEENTH STRIKE: November 4 – Sixteenth strike on a vessel in the eastern Pacific, killing two

• On November 4, Secretary of Defense Hegseth announced a sixteenth strike on a vessel “operated by a Designated Terrorist Organization (DTO),” in this instance in the eastern Pacific. He stated, “Intelligence confirmed that the vessel was involved in illicit narcotics smuggling, transiting along a known narco-trafficking route, and carrying narcotics.”
• Hegseth claimed that two “male narco-terrorists” aboard the boat died in the strike.

November 2 – Trump states he doubts the United States will go to war with Venezuela

• In a televised interview with 60 Minutes, Trump responded to a question regarding whether the United States was going to war with Venezuela saying “I doubt it. I don’t think so.” He later declined to discuss whether he would consider potential land strikes in Venezuela.
• When asked whether the attacks were about “stopping narcotics” or “getting rid of President Maduro,” Trump responded: “This is about many things. This is a country that allowed their prisons to be emptied into our country.”

November 1 – Trump administration reportedly claims the War Powers Resolution’s 60 day termination clock does not apply

• In a briefing held between October 27-31, the official heading DOJ OLC, T. Elliot Gaiser, reportedly stated that the strikes do not rise to the level of “hostilities” that would trigger the War Powers Resolution’s (WPR) 60-day termination clock (which was set to expire on Nov. 3). An unnamed senior administration official reportedly stated that the strikes did not fall within the scope of the term “hostilities” as they were largely conducted by unmanned aerial vehicles (UAVs) and thus did not “endanger American personnel.”
• Note: This interpretation of “hostilities” is similar to that relied on in some past executive branch practice under the WPR, though neither Congress nor the courts have accepted such a narrow interpretation of the term, which is not defined in the WPR itself.

FIFTEENTH STRIKE: November 1 – Fifteenth strike on a vessel in the Caribbean, killing at least three

• Secretary of Defense Hegseth announced in a post on X a strike on a “narco-trafficking vessel operated by a Designated Terrorist Organization (DTO) in the Caribbean,” accompanied by a 17-second video of the strike. He wrote: “This vessel—like EVERY OTHER—was known by our intelligence to be involved in illicit narcotics smuggling, was transiting along a known narco-trafficking route, and carrying narcotics.” The strike killed at least three on board the vessel.

INTERNATIONAL REACTION (United Nations): October 31 – UN High Commissioner for Human Rights says the United States “must halt” strikes on alleged drug boats to prevent “extrajudicial killing”

• The UN High Commissioner for Human Rights, Volker Türk, called for an investigation into the strikes through a spokesperson’s statement in a regular briefing. He stated: “[C]ountering the serious issue of illicit trafficking of drugs across international borders is – as has long been agreed among States – a law-enforcement matter, governed by the careful limits on lethal force set out in international human rights law.”

October 31 – Senate Armed Services Committee leadership states that the DOD has refused to share information about and legal justification for strikes with Congress upon request

• Chairman Roger Wicker (R-MS) and Ranking Member Jack Reed (D-RI) publicly shared two letters that they sent to Secretary of Defense Hegseth in prior weeks requesting, on September 23, a copy of the president’s orders to carry out the military strikes, and on October 6, the Department of Justice’s legal justification for the attacks and a “complete list” of designated terrorist organizations and drug trafficking organizations “with whom the president has determined the United States is in a noninternational armed conflict and against whom lethal military force may be used.” In a public statement, they claimed that the “documents had not been submitted” to this date.
• Note: On the same day, when asked by reporters on Air Force One if reports that he was considering strikes within Venezuela were true, Trump said: “No.”

October 30 – Classified House briefing on the U.S. military’s strikes against alleged drug-trafficking boats in the Caribbean and in the East Pacific

• Representatives Jason Crow (D-CO) and Mike Turner (R-OH) both expressed frustration at the lack of information provided at a bipartisan House classified briefing on the U.S. military’s strikes against alleged drug-trafficking boats in the Caribbean and in the East Pacific. Reportedly, the Department of Defense lawyers who were set to explain the legal rationale the administration is using to strike the vessels were not present. Turner, who chairs the committee, told press: “Yesterday, there were not very good answers as to what is the standard, what is occurring with the designation of cartels as terrorist organizations…”
• Note: Reportedly, a classified briefing was held the prior day that excluded Democratic members of the committee. Senator Mark Warner (D-VA), the senior Democrat on the Senate Intelligence Committee, reportedly said the administration “ignores checks and balances” by picking and choosing which elected officials have access to legal justifications.
• Note: White House spokesperson Anna Kelly said the Department of Defense has held nine “bipartisan” briefings on the boat strikes. She claimed DOD “individually works through requests” from lawmakers.

October 29 – Senate Democrats send a letter to AG Bondi requesting legal justifications for strikes

• Ten Democratic senators on the Senate Judiciary Committee signed a letter to Attorney General Pam Bondi asking for “any and all legal opinions assessing the legality of military actions ordered by the President” that have resulted in a current total of 61 deaths in the Caribbean Sea and Pacific Ocean.
• In the letter, the senators state “it appears the strikes may violate”:
  1. 18 U.S.C. § 1111, which makes it a felony to commit murder within special maritime and territorial jurisdiction of the US (including the high seas)
  2. EO 12333 § 2.11 (US Intelligence Activities), which prohibits persons employed by or acting on behalf of the USG from engaging in assassination
  3. 10 U.S. Code § 918 – Art. 118 (UCMJ). Murder, which prohibits premeditated and unlawful killing of a human being
  4. Binding peremptory norms of customary international law and treaties to which the United States is a party, including the International Covenant on Civil and Political Rights, Art. 6 and UNHRC General comment No. 36 on article 6.
  5. The Geneva Conventions
• The letter requests that Attorney General Bondi schedule a briefing, classified or unclassified, for the Committee by November 3, 2025 on the legal analysis of these strikes. It also requests the AG answer a set of six listed questions by November 7, 2025.

FOURTEENTH STRIKE: October 29 – Fourteenth strike in the Eastern Pacific, killing four

• Secretary of Defense Hegseth announced on X that DOD carried out a strike on a vessel operated by “Designated Terrorist Organizations (DTO) trafficking narcotics in the Eastern Pacific.”
• The strike killed four people, bringing the publicly reported death toll to 61 since the strikes began in September.

ELEVENTH, TWELFTH, AND THIRTEENTH STRIKES: October 27 – Eleventh, twelfth, and thirteenth strikes in the Eastern Pacific, killing fourteen and initially leaving one survivor

• Secretary of Defense Hegseth announced on X that DOD carried out three separate strikes on four vessels “operated by Designated Terrorist Organizations (DTO) trafficking narcotics in the Eastern Pacific.” Reportedly, eight were killed in the first strike, four in the second strike, and three in the third strike, totaling fourteen killed in the three strikes, with one reported survivor.
• Note: SOUTHCOM reportedly initiated Search and Rescue (SAR) standard protocols for the lone survivor. Mexico SAR authorities accepted the case and assumed responsibility for coordinating the rescue. On Oct. 31, the Mexican Navy reportedly planned to call off search efforts for the individual, who is now presumed dead.

October 26 – Senator Lindsay Graham states that Trump may intend to conduct land strikes in Venezuela  

• Senator Graham stated in an interview with CBS’s Margaret Brennan on “Face the Nation”: “President Trump told me yesterday that he plans to brief members of Congress when he gets back from Asia about future potential military operations against Venezuela and Colombia… So there will be a congressional briefing about a potential expanding from the sea to the land.”
• Note: Senators Rand Paul and James Lankford (R-OK) have both argued against the (thus far, sea-based) strikes. Lankford said that he would be “apoplectic” if former President Joe Biden had done the same thing. Senator Paul said on “Fox News Sunday,” “So far, they have alleged that these people are drug dealers. No one’s said their name, no one’s said what evidence, no one’s said whether they’re armed, and we’ve had no evidence presented … So at this point, I would call them extrajudicial killings.”

October 26 – U.S. warship docks in Trinidad and Tobago

• The USS Gravely, a guided missile destroyer, docked in Port-of-Spain, the capital of Trinidad and Tobago, for joint exercises with the island nation’s military forces.
• Protestors gathered outside the US Embassy after the warship docked in the island country, which borders Venezuela’s coast.

October 24 – DOD moves carrier strike group into the Caribbean Sea

• Secretary of Defense Hegseth ordered the USS Gerald R. Ford carrier strike group to move from the Mediterranean Sea to the Caribbean to “augment existing capabilities to disrupt narcotics trafficking and degrade and dismantle TCOs.”
• Note: Maduro accused the United States of “fabricating a new external war” following the announcement.

TENTH STRIKE: October 24 – Tenth strike on a vessel in the Caribbean Sea, killing six

• Secretary of Defense Hegseth announced on X that the United States carried out another strike on a vessel allegedly “operated by Tren de Aragua (TdA), a Designated Terrorist Organization (DTO), trafficking narcotics in the Caribbean Sea,” killing six people. Hegseth claimed it was the first attack to occur at night.

October 23 – Trump says he will not seek Congressional approval to carry out strikes

• Trump told the press at the White House, “I don’t think we’re going to necessarily ask for a declaration of war. I think we are going to kill people that are bringing drugs into our country, OK? We are going to kill them, you know? They are going to be, like, dead.” He suggested that he may inform Congress about future strikes, including on land, but without seeking congressional approval.
• Note: US officials told the press that two Air Force B-1 bombers from Texas flew near Venezuela in international airspace in an attempt to pressure Maduro to step down. When asked about the flights, Trump said, “No, it’s not accurate,” he said. “No, it’s false.”

NINTH STRIKE: October 22 – Ninth strike on a vessel, killing three; second strike in the eastern Pacific Ocean

• Hours after Secretary of Defense Hegseth announced the first strike, U.S. Special Operations forces carried out a second strike on a vessel in the eastern Pacific Ocean, killing three people aboard and bringing the total death toll from strikes since early September to 37. Hegseth said in a post on X that the vessel was “operated by a Designated Terrorist Organization (DTO)” and was “known by our intelligence to be involved in illicit narcotics smuggling, was transiting along a known narco-trafficking transit route, and carrying narcotics.”
• Note: While speaking to press reporters at the White House ahead of a meeting with NATO Secretary Mark Rutte, Trump suggested that he would soon order strikes against land targets, saying, “We will hit them very hard when they come in by land […] They haven’t experienced that yet, but now we are totally prepared to do that.” He added that his administration would “probably go back to Congress and explain exactly what we are doing” before launching those strikes, but insisted that he did not need their permission to act. “Something very serious is going to happen, the equivalent of what’s happening by sea,” Trump said.

EIGHTH  STRIKE: October 21 – Eighth strike on a vessel, killing two; for the first time, in the eastern Pacific Ocean

• U.S. Special Operations Forces carried out a strike on a vessel for the first time in the eastern Pacific Ocean in international waters, killing two on the boat.
• Secretary of Defense Hegseth posted the video of the strike on X, saying that intelligence indicated the vessel was involved in drug smuggling and had narcotics onboard. (“Yesterday, at the direction of President Trump, the Department of War conducted a lethal kinetic strike on a vessel being operated by a Designated Terrorist Organization and conducting narco-trafficking in the Eastern Pacific”). Hegseth likened cartels to Al Qaeda, saying, “Just as Al Qaeda waged war on our homeland, these cartels are waging war on our border and our people.”

INTERNATIONAL REACTION (United Nations): October 21 – Three United Nations experts issue a joint letter denouncing U.S. targeting of vessels off the coast of Venezuela, describing it as a breach of the UN Charter

• The experts included George Katrougalos, independent expert on the promotion of a democratic and equitable international order; Ben Saul, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions.
• The experts claimed the strikes, if made in order to impose regime change, are in violation of Article 2(4) of the UN Charter, which prohibits the threat or use of force against the territorial integrity or political independence of any State. They additionally stated: “The long history of external interventions in Latin America must not be repeated.”

INTERNATIONAL REACTION (Colombia): October 19 – Colombian President Petro accuses the United States of murdering a Colombian fisherman in one of its strikes, Trump cuts off aid payments

• In a post on X, Colombian President Gustavo Petro accused the United States of killing a Colombian fisherman in a mid-September strike on a vessel in the Caribbean Sea. Petro said the US had “committed murder” and “violated [Colombia’s] sovereignty in territorial waters.”
• Trump responded by saying he would halt aid payments to Colombia and impose new tariffs on the country’s goods. He called Petro an “illegal drug dealer” and accused him of failing to curb the production of illegal drugs in Colombia.
• Petro’s statement followed remarks by him earlier in the month accusing the United States of striking a boat and killing Colombian citizens aboard.

October 18 – Administration repatriates two survivors of the October 16 strike to their respective countries of nationality, Colombia and Ecuador

• The Department of Defense reportedly transferred legal custody of the detainees to the State Department for repatriation.
• On October 20, two prosecutors in Ecuador decided against charging one of two survivors of an October 16 vessel strike, saying there was no evidence the man had committed a crime in Venezuelan territory.

SEVENTH STRIKE: October 17 – Seventh strike on boat “linked to Ejercito de Liberacion Nacional,” a Colombian guerrilla group, killing three

• Secretary of Defense Hegseth stated that the U.S. military “struck another alleged drug-carrying vessel on Friday, killing three people.” In a post on X, he stated that Friday’s strike targeted a boat linked to Ejército de Liberación Nacional, a Colombian guerrilla group that has been designated as a Foreign Terrorist Organization by the Trump administration, and alleged the boat “was traveling along a known narco-trafficking route, and was transporting substantial amounts of narcotics.”

October 16 – Senators Kaine, Paul, and Schiff introduce new resolution to prevent strikes on suspected drug trafficking vessels without Congressional approval

• Senators Tim Kaine, Rand Paul, and Adam Schiff introduced a new resolution to require a full briefing to Congress and a congressional vote prior to engaging in “hostilities within or against Venezuela.”
• Note: A previous resolution failed to reach a Senate Floor vote on Oct. 8.

SIXTH STRIKE: October 16 – Sixth strike on boat near Venezuela, killing two and leaving two survivors

• The U.S. Navy carried out a strike against a semi-submersible vessel suspected of smuggling drugs in the Caribbean Sea. Two men aboard were killed, and two survivors were found in the water following the strike.
• The U.S. Navy held the two survivors on a warship in international waters until transferring them (see further developments on Oct. 18).

October 15 – Venezuela sends letter to UN Security Council requesting an “investigation” of US strikes

• On October 16, Venezuela’s U.N. Ambassador Samuel Moncada sent a letter to the 15-person UN Security Council accusing the U.S. of striking “civilian vessels transiting international waters” and asking the Council to “investigate” the strikes to “determine their illegal nature.” The letter further requested that the Council issue a statement “reaffirming the principle of unrestricted respect for the sovereignty, political independence, and territorial integrity of states.”

October 15 – Trump confirms he authorized CIA covert action against Venezuela

• In an Oval Office press conference, Trump confirmed earlier news reports citing unnamed U.S. officials that he had authorized CIA covert action against Venezuela, stating that he had made the authorization because Venezuela had “emptied their prisons into the United States of America.” The CIA declined to comment.
• In the same press conference, Trump claimed that the administration is “looking at land now, because we’ve got the sea very well under control,” hinting at potential land operations in Venezuelan territory.

FIFTH STRIKE: October 14 – Fifth strike on boat near Venezuela, killing six

• Trump, in a post on Truth Social, said intelligence confirmed the vessel was “trafficking narcotics” and was “associated with illicit narcoterrorist networks.” He posted a 30-second video of the strike. The video was reposted by the Instagram account of the Department of Defense, and by Secretary of Defense Hegseth on X.

INTERNATIONAL REACTION (Canada): October 10 – Canada clarifies its ongoing participation in Operation Caribbe is “separate and distinct” from U.S. boat strikes in the Caribbean

• A Canadian Department of National Defence spokesperson stated “It is important to note that Canadian Armed Forces activities under Operation Caribbe, conducted in co-ordination with the United States Coast Guard, are separate and distinct from the activities you describe involving other branches of the United States military[.]”
• Operation Caribbe is Canada’s contribution to the multinational anti-drug trafficking effort, Campaign Martillo.

October 10 – US Mission to UN representative states that strikes are part of a “non-international armed conflict” at a UN Security Council briefing

• A representative of the United States Mission to the United Nations, John Kelley, stated at the UN Security Council briefing on the strikes on Venezuela: “President Trump has determined the United States is in a non-international armed conflict and has directed the Department of War to conduct operations against them pursuant to the law of armed conflict and consistent with Article 51 of the UN Charter.”
• Mr. Kelley also stated, “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.” He stated that the Trump administration “does not recognize Nicolás Maduro or his cronies as the government of Venezuela.

October 8 – Proposed legislation to prevent strikes against suspected drug traffickers without congressional authorization fails vote to be brought to Senate floor

• The vote to bring the legislation proposed by Senators Schiff and Kaine, joined by co-sponsor Senator Rand Paul (R-KY), to the floor for a full vote failed 48-51, “largely along party lines.” Republican Senators Paul and Lisa Murkowski (R-AK) voted in favor of the resolution, while Democratic Senator John Fetterman (D-PA) voted against it.
• The measure, brought under the War Powers Resolution, would have barred Trump from using military force against designated terrorist organizations, “states in which those entities operate,” or non-state organizations “engaged in the promotion, trafficking, and distribution of illegal drugs” without authorization from Congress.

October 6 – Commander in charge of SOUTHCOM Admiral Alvin Holsey offers his resignation

• Secretary of Defense Hegseth had reportedly criticized Adm. Holsey for not moving “quickly or aggressively enough to combat drug trafficking in the Caribbean.” According to CNN, “SOUTHCOM was concerned about the operations not being lawful.”
• According to CNN, “[t]he tensions came to a head during a meeting between Hegseth, Holsey and Chairman of the Joint Chiefs of Staff Dan Caine on October 6 at the Pentagon” and “Holsey offered to resign during the meeting … but the idea was tabled and his departure was not announced until over a week later.”
• Note: On October 16, Adm. Holsey announced on X his retirement from the Navy, effective December 12, 2025, just one year into his tenure.

October 6 – Senate Armed Services Committee Chair and Ranking Member send a letter to Secretary of Defense requesting a copy of DOJ opinions on legality of strikes

• Chairman Roger Wicker (R-MS) and Ranking Member Jack Reed (D-RI) sent a letter to Secretary of Defense Hegseth, following the October 1 classified Armed Services Committee meeting, requesting (1) any written opinion issued by the DOJ OLC “opining on the domestic or international legal basis for these operations and strikes;” (2) a list of designated terrorist organizations and drug trafficking organizations with whom the President has determined the U.S. is in a non-international armed conflict; and (3) orders by Trump to conduct previous strikes.
• Their letter followed a previous letter from the Senators to Secretary of Defense Hegseth on September 23 that requested a copy of orders by Trump or Hegseth to conduct strikes, citing their legislative authority under Section 1067 of the 2025 NDAA.
• Note: The letter was privately sent but revealed publicly by the senators on October 23, following additional strikes. (See October 31 entry for more details.)

UNCONFIRMED ADDITIONAL STRIKE: October 4 – Trump statement on unconfirmed additional strike

• On October 5, Trump spoke at a celebration of the 250th anniversary of the U.S. Navy aboard the aircraft carrier USS George H.W. Bush. He implied there was an additional strike the prior evening, October 4, stating: “Every one of those boats is responsible for the death of 25,000 American people and the destruction of families. So when you think of it that way, what we’re doing is actually an act of kindness. But we did another one last night. Now we just can’t find any.” Such a strike is otherwise unconfirmed, and it is possible that this statement was in error or intended to reference the Oct. 3 strike.

FOURTH STRIKE: October 3 – Fourth strike on boat near Venezuela, killing four

• In a social media post, Secretary of Defense Pete Hegseth accused the four men killed in the strike of smuggling narcotics, without offering evidence. He asserted that the men were “affiliated with a Designated Terrorist Organization” – likely referring to one of the cartels or gangs that have been designated as foreign terrorist organizations by the Department of State during this administration, but without specifying which organization.
• Hegseth said the attack took place “just off the coast of Venezuela” but in international waters and did not identify the nationalities of the dead.

October 2 – Trump declares existence of armed conflict in confidential notice to Congress

• A notice provided under Section 1230 of the Fiscal Year 2024 NDAA (50 U.S.C. § 1543a) states that Trump has decided that the United States is engaged in a “non-international armed conflict” (NIAC) with drug cartels he has labeled terrorist organizations and that suspected smugglers for such groups are “unlawful combatants.” The notice was sent to several congressional committees and obtained by The New York Times.
• The notice specifically referenced the Sept. 15 strike, stating that the targeted “vessel was assessed by the U.S. intelligence community to be affiliated with a designated terrorist organization.”
• Note: The notice to Congress, which was labeled as controlled but unclassified information, for the first time portrays the U.S. military’s attacks on boats to be part of a NIAC (an international law term that refers to an armed conflict with one or more non-state actors). Specifically, it says that Trump has “determined” that cartels engaged in smuggling drugs are “nonstate armed groups” whose actions “constitute an armed attack against the United States.”

October 1 – Closed Senate Armed Services Committee meeting

• In a closed-door Senate Armed Services Committee meeting, senators from both sides of the aisle questioned the Department of Defense’s legal justification for striking alleged drug smuggling boats in the Caribbean and, according to anonymous sources, “urged officials to devise a stronger legal case.”
• During the meeting, Department of Defense general counsel Earl Matthews repeatedly argued that Trump’s designation of some Latin American drug cartels as foreign terrorist organizations “granted the Department of Defense unilateral authority to use military force.” Matthews reportedly also declined to provide a written justification for the strikes.

September 23 – Senate Armed Services Committee Chair and Ranking Member send a letter to Secretary of Defense requesting a copy of President or Secretary of Defense’s order to carry out prior strikes

• Chairman Roger Wicker (R-MS) and Ranking Member Jack Reed (D-RI) sent a letter to Secretary of Defense Hegseth requesting a copy of orders by Trump or Hegseth to conduct strikes, citing their legislative authority under Section 1067 of the 2025 NDAA.
• Note: The letter was privately sent but revealed publicly by the senators on October 23, following additional strikes. (See October 31 entry for more details.)

September 23 – House Democrats introduce a resolution under the War Powers Resolution to prevent strikes against suspected drug traffickers or against Venezuela without congressional approval

• Representatives Ilhan Omar (D-MN), Greg Casar (D-TX), and Jesús Garcia (D-IL) sponsored the resolution (H. Con. Res. 51). The resolution was referred shortly thereafter to the House Foreign Affairs Committee.

THIRD STRIKE: September 19 – Third strike against a vessel claimed to be “smuggling drugs,” killing three

• Trump in a social media post said the strike killed three and was carried out against a vessel “affiliated with a Designated Terrorist Organization conducting narcotrafficking in the USSOUTHCOM area of responsibility.” He did not provide further information about the location of the strike, the identity of the organization, or the individuals “affiliated” with it.

September 18 – Senators introduce a resolution under the War Powers Resolution to prevent strikes on suspected drug trafficking vessels without Congressional approval

• Senators Adam Schiff (D-CA) and Tim Kaine (D-VA) introduced the resolution (S.J. Res. 83), which was initially referred to the Senate Foreign Relations Committee. The resolution claimed Congress had “received insufficient information about the vessels, their threat level or the legal basis for using force against them.”
• In a statement on the same day, Senator Kaine claimed, “President Trump has no legal authority to launch strikes or use military force in the Caribbean or elsewhere in the Western Hemisphere. The administration has refused to provide Congress with basic information about the multiple strike[sic] it has carried out, including who was killed, why it was necessary to put servicemembers’ lives at risk, and why a standard interdiction operation wasn’t conducted.”
• At the same time, it was reported that draft legislation to provide the Trump administration with “sweeping power to wage war against drug cartels [Trump] deems to be ‘terrorists’” was circulating within Congress.
• See Oct. 8 entry for vote count

SECOND STRIKE: September 15 – Second strike against a vessel, killing three

• Trump said in a Truth Social post announcing the strike that it “occurred while these confirmed narcoterrorists from Venezuela were in International Waters transporting illegal narcotics (A DEADLY WEAPON POISONING AMERICANS!) headed to the U.S.” He added, “These extremely violent drug trafficking cartels POSE A THREAT to U.S. National Security, Foreign Policy, and vital U.S. Interests.”

September 4 – First strike 48-hour report under the War Powers Resolution

• Trump provided Congress with a report describing the Sept. 2 strike on “a vessel… that was assessed to be affiliated with a designated terrorist organization and to be engaged in illicit drug trafficking activities,” but without identifying the organization or the specific activities.
• The report stated: “It is not possible at this time to know the full scope and duration of military operations that will be necessary. United States forces remain postured to carry out further military operations.”
• The report states, “I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93-148).”
• Note: As discussed on the Just Security podcast, the report likely triggered the War Powers Resolution’s termination provision, which requires U.S. forces to be removed from hostilities or imminent hostilities within 60 days unless Congress authorizes the activity.

FIRST STRIKE: September 2 – First strike against a vessel off the coast of Venezuela, killing 11, including an alleged double-tap killing of two survivors

• Trump said the United States had carried out a strike in the southern Caribbean against a vessel containing “positively identified Tren de Aragua Narcoterrorists in the U.S. Southern Command (SOUTHCOM) area of responsibility.”
• The president said in a social media post that 11 people were killed and posted a short video clip of a small vessel appearing to explode in flames. “The strike occurred while the terrorists were at sea in International waters transporting illegal narcotics, heading to the United States,” Trump said on Truth Social. “No U.S. Forces were harmed in this strike. Please let this serve as notice to anybody even thinking about bringing drugs into the United States of America.”

August – U.S. Southern Command senior military lawyer reportedly raised legal concerns before the strikes commenced 

• According to an NBC report published November 19, a senior Judge Advocate General (JAG) at U.S. Southern Command expressed concern in August – prior to the first strike – that strikes against people on boats in the Caribbean Sea and the eastern Pacific Ocean, whom administration officials call “narco-terrorists,” could amount to extrajudicial killings and expose service members involved in the operations to legal liability. However, his opinion was overruled, reportedly by lawyers within the Department of Justice’s Office of Legal Counsel (OLC).
• In response to news reports in November, Chief Pentagon spokesman Sean Parnell issued a statement saying: “The War Department categorically denies that any Pentagon lawyers, including SOUTHCOM lawyers, with knowledge of these operations have raised concerns to any attorneys in the chain of command regarding the legality of the strikes conducted thus far because they are aware we are on firm legal ground. Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in complete compliance with the law of armed conflict.”

July – President Donald Trump reportedly directs DOD to use military force against Latin American “terrorists”

• In late July, Trump reportedly signed a still-secret order directing the Department of Defense (DOD) to start using military force against Latin American criminal groups that his administration has labeled terrorists.
• Note: Subsequent reporting has indicated that official DOJ Office of Legal Counsel (OLC) guidance to DOD, at least initially drafted and rendered in July, purported to provide legal justification for the strikes. OLC’s legal advice was reportedly finalized on September 5, 2025 in a classified memorandum. It includes a “list of [24] cartels [that] goes beyond those the administration has publicly designated as terrorist organizations.”

February 2025 – Deputy Attorney General tells DOJ officials the administration is “just going to sink the boats”

• In February 2025, then-acting Deputy Attorney General Emil Bove reportedly said during a speech at a Department of Justice (DOJ) conference for the Organized Crime Drug Enforcement Task Forces that the administration was “not going to worry so much about interdictions, we’re just going to sink the boats,” to the shock of several DOJ officials in attendance.

Early 2025 – Top intelligence and national security lawyers express concern about legality of strikes on vessels in the Caribbean 

• According to several former government officials and other anonymous sources, then-acting CIA General Counsel, then-NSC legal advisor Paul Ney, and a then-CIA Americas and Counternarcotics Mission Center lawyer had all reportedly expressed concerns about the legality of lethal strikes on drug trafficking vessels in the early months of 2025. All three were subsequently replaced or reassigned. 

The post Timeline of Boat Strikes and Related Actions appeared first on Just Security.

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

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

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

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

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

Blockade as a Threat or Use of Force?

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

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

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

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

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

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

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

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

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

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

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

Blockade Triggering International Armed Conflict?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Concluding Thoughts

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

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

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What is known is that a U.S. Coast Guard specialist law enforcement detachment, reportedly in conjunction with FBI and Homeland Security Investigations (HSI) agents, conducted a fast rope boarding from a U.S. Navy Seahawk helicopter of the Skipper, a very large crude carrier. The vessel was carrying 1.6 million barrels of Venezuelan crude when the U.S. seized it. The vessel is now in U.S. custody, and forfeiture processes are apparently underway with respect to the cargo, as the warrant indicates. The Skipper is said to be part of the “ghost armada,” or the “shadow” or “dark fleet,” a group of ships engaged in illegal operations, oftentimes in an attempt to circumvent sanctions. 

The Trump administration has put forward different justifications for the Dec. 10 seizure.  First, it increased U.S. pressure on the regime of Nicolás Maduro in Venezuela (noting the Trump administration’s highly questionable views about the existence of an armed conflict with some Venezuelan non-state actors and its ongoing pressure campaign). U.S. Attorney General Pam Bondi said the operation was based on the enforcement of a warrant related to U.S. sanctions in respect of Venezuelan and Iranian oil exports for which the vessel (then registered as “Adisa”) was specifically sanctioned in November 2022. Homeland Security Secretary Kristi Noem linked the seizure to the U.S. “war on drugs,” saying, it was “directed by the president to ensure that we’re pushing back on a regime that is systematically covering and flooding our country with deadly drugs and killing our next generation of Americans.” All of these justifications relate to domestic law authorizations and enforcement powers, or to political considerations. 

By contrast, the international law basis of the boarding and seizure has not, it seems, been directly and clearly addressed by U.S. authorities to date. That said, the Guyana Chronicle, a newspaper owned by the Guyanese government, reports that “the Government of the United States recently informed [the Guyana Maritime Administration] that the Motor Tanker SKIPPER … IMO Number 9304667, was spotted in international waters falsely flying the Guyana flag.” That is, it is possible that U.S. authorities did present an international law basis for boarding the tanker to the Guyana authorities at the time of the seizure because it was effectively stateless.

For now, we can surmise that the international law authority that has probably been employed to carry out the boarding is the UN Convention on the Law of the Sea (UNCLOS) Article 110(1)(d) right of visit in respect of a ship “without nationality.” Here, we will outline the preconditions for the boarding, and then assess the more contentious issue of the options for continued exercise of jurisdiction if this is indeed the international law basis for the boarding. We will not deal with the validity of the U.S. autonomous sanctions as a justification apart from noting – as have several other scholars – that the absence of a U.N. Security Council Chapter VII “all necessary means” sanctions resolution does call this legal basis into question as a matter of international law (but probably not U.S. domestic law). We will also not examine why the boarding and seizure is not, as the Venezuelan government and others have claimed, an incident of piracy, except to say that piracy is not– by definition and by operation of UNCLOS Articles 101-107– applicable in this case.

The Preconditions for a “Right of Visit” Boarding

Essentially, the proper and legitimate exercise of the right of visit, which is where a warship or other appropriately authorised government vessel can stop and board a foreign merchant vessel without flag State consent, requires the following: the right enforcing unit; the right place; the right trigger.

The right enforcing unit

The unit and personnel exercising the right of visit must deploy from a warship or naval aircraft, or from “other duly authorised ships or aircraft marked and identifiable as being on government service” (UNCLOS Article 110(5)). In this case, the helicopter was a U.S. Navy Seahawk, deployed from the USS Gerald R Ford aircraft carrier, and the law enforcement agents were Coast Guard, FBI, and HSI. Therefore, the precondition for a valid exercise of the right of visit was clearly met in the Skipper boarding.

The right place

This requirement concerns where the boarding took place. On the information available, the boarding happened outside the territorial sea of any State, in the Caribbean Sea area. The Guyana Chronicle reported that the United States informed the Guyana Maritime Administration Department that the vessel was in “international waters.”. The Guardian placed the location of the boarding roughly south-southeast of St. Vincent and The Grenadines and east of Grenada (perhaps around, using the scale on The Guardian chart, 50-ish nautical miles). If this is broadly accurate, then the boarding probably took place somewhere in the northeast part of the Grenada Exclusive Economic Zone, or perhaps in the south-southeast part of the St. Vincent and The Grenadines EEZ.

If this is correct, then the boarding happened outside the territorial sea of any State, and this is the key issue. The fact that it may have taken place in a third State’s EEZ is of no consequence. This is because the Article 110 right of visit applies in the high seas, but also – by virtue of UNCLOS Article 58(2) – in EEZs (beyond the territorial sea). There is no merit to any argument that the right of visit is in some way limited by any EEZ due regard obligation because this right has nothing to do with the coastal state’s EEZ rights and therefore its exercise is “not incompatible with” the EEZ regime.

The right trigger

In this case, the most robust available authorization for an Article 110 right of visit to board the Skipper is that there were “reasonable grounds for suspecting” that it was a vessel without nationality. There are three broad types of vessels without nationality implicated in UNCLOS. The first is where a vessel has no nationality because it has no registration, or because its claimed registration has been rejected by the relevant State. This is most likely the situation with the Skipper when she was seized, noting the statement of Guyana’s Maritime Administration Department that the vessel was “falsely flying the Guyana Flag as it is not registered in Guyana.” Indeed, it is reported that Guyana had “de-listed” the vessel (that is, removed it from the registry of ships entitled to claim Guyanese nationality) and reported this to the International Maritime Organization soon after it was sanctioned by the U.S. Treasury in 2022. That is, the vessel claimed a nationality it was not entitled to and so it was in fact a vessel without nationality and thus liable to the right of visit by the United States (or any other country, for that matter).

The second possible catalyst for “statelessness” is where the vessel claims the nationality of a State that is not recognized. The classic example is the 1948 Aysa case, intercepted in the high seas off of the Mandate Territory of Palestine in 1946 by a British warship. The Aysa initially flew no flag, then subsequently displayed a Turkish flag and later a “Zionist” flag (which is the Israeli flag today). The United Kingdom’s Privy Council ultimately determined that by flying a Zionist flag, the Aysa was flying an illegitimate flag that was not within the comity of nations (noting that the State of Israel was not declared until two years later) and that it was therefore stateless. This situation does not apply to the Skipper.

The third most common possibility for characterization as a vessel without nationality is by way of UNCLOS Article 92(2). This rule states (as is most likely relevant in this case) that where a ship “sails under the flag of two or more nationalities, claiming them according to convenience, the ship can be assimilated to a ship without nationality.”  This could have potentially applied in the Skipper case, noting the varying reports about flag changes, although it is difficult to ascertain on the currently available information.

Although these are the legal typologies that underpin the right of visit for statelessness, the practical, real-world signs that trigger the right are by contrast not as strictly defined. There are many such operational indicators, including flying no flag or flying a suspected false flag, as well as intelligence such as contrary registry information. This is likely why the U.S. authorities communicated with Guyana – to check the Skipper’s registration. So in this case, the immediate indicia (as noted above) was likely that the vessel was flying a false flag: the flag of Guyana, which it was not entitled to fly given that the Guyanese authorities confirmed that it was not registered by them. 

One interesting issue that is presented by this case, however, is the implication of spoofing a different identification on the maritime automatic identification system (AIS). Transmitting on AIS discloses, amongst other things, a vessel’s identity, and so the question is whether this electronic equivalent of a false flag (e.g., transmitting an identification which claims a flag different from the one it is physically flying) meets the Article 92(2) threshold of sailing “under the flag of two or more nationalities.” It is our view that it does, but that is an essay for another time. Still, on the basis of having the right enforcing unit, the right place, and the right trigger, it would seem pretty uncontroversial that the U.S. boarding of the Skipper was a legitimate exercise of the Article 110 right of visit.

The Scope of “Follow On”Jurisdiction

The more difficult and contentious issue is what happens after boarding and the scope of jurisdiction that can be enforced by the United States subsequent to an Article 110 boarding. This question of authority is not as clear for the vessel without nationality trigger as it is for the other Article 110(1) triggers for the right of visit. Nor is it simply a case of applying the same rule to a vessel without nationality visit as for the other triggers, because Article 110, along with some other UNCLOS provisions, discloses different specific jurisdictional grants depending on the specific trigger. That is, four of the five right of visit triggers are accompanied by relatively clear and concise grants or limitations as to follow-on jurisdiction, and it is worth noting these so that the contrast with the vessel without nationality trigger is made clear.

If the right of visit is triggered by a reasonable suspicion of piracy (Article 110(1)(a)), then the follow-on jurisdiction explicit in the law of the sea is extensive: seize and punish the vessel and the pirates (Article 105) by exercising universal jurisdiction. By contrast, if the trigger for the right of visit was suspicion that the vessel was engaged in the slave trade (Article 110(1)(b)), then the scope of jurisdiction includes making all the slaves on board free (Article 99), but the task of prosecuting the vessel and the slave traders falls primarily to the slave trading vessel’s flag State and the States of nationality of the individual slave traders. Similarly, if the trigger for the right of visit is unauthorized broadcasting (Article 110(10(c)), then follow-on jurisdiction – especially in relation to any prosecution – is specifically circumscribed via Article 109(3). Finally, if the suspicion is that the vessel is actually of the same nationality as the warship intending to conduct the visit (Article 110(1)(e) – sometimes called a “flag visit”), then the general international law of jurisdiction applies if the vessel is indeed of the same nationality as the visiting warship. If the suspicion is not borne out, however, then the visiting warship must leave as it has no jurisdiction, and compensation may be owed by that warship’s flag State (Article 110(3)).

With the Article 110(1)(d) “vessel without nationality” trigger, however, the grant of follow-on or substitute jurisdiction is not clear. The key question is, of course, how wide can this follow-on jurisdiction be, and can it include enforcement of boarding/ seizing state jurisdiction warrants and laws (see UNODC Ch15), as is the situation (in a right of visit sense) in relation to the Skipper. Salvador Santino Regilme, a political scientist, told Al Jazeera that the “step from ‘right of visit’ to full seizure of ship and cargo sits in a grey zone that recent scholarship explicitly describes as a ‘jurisdictional lacuna’” rather than “a settled rule.” This would mean that even if the  vessel does not have a nationality, the assertion of the boarding state’s own subsequent jurisdiction over the vessel, people, and cargo is unsettled and likely quite limited.

The broader view (which is the view of one of the authors – here, and here at pp 485-487) is that the absence of a flag State jurisdiction enlivens the right of the boarding State to assert either at selection of, or the full suite of, its own jurisdiction as applicable to ships flying that boarding State’s flag. This is necessary so that a jurisdiction is available to be exercised over the vessel, its cargo, and the people in it (noting that these people will also be subject to varying scopes of extra-territorial jurisdiction depending upon their States of nationality). For some States (see, for example, Indian Ocean Tuna Commission Resolution 16/05), this may be limited to ship-focused matters only, such as crew health and safety, seaworthiness, or fisheries jurisdiction. For other States, the grant of follow-on jurisdiction is more comprehensive, including for “all appropriate law enforcement actions” (NWP 1-14M (2022) para 3.11.2.3). On this approach, the application of follow-on jurisdiction in the form of execution of domestic law based sanction warrants, and seizure of cargo, is likely permissible as a matter of U.S. domestic law, but (noting the non-UNSC Chapter VII basis of the sanctions) equally likely to remain contentious as a matter of international law. 

To conclude, based on the available information, it does seem that the boarding and initial seizure of the Skipper was, in international law terms at least, uncontroversially lawful as an exercise of the right of visit based on the vessel being without nationality. The degree to which that international law authority then permits the further exercise of expansive follow-on jurisdiction, however, is a more contentious question upon which States certainly differ.

The post Was the Visit and Seizure of the Skipper off the Coast of Venezuela Lawful? appeared first on Just Security.

As we have previously explained, the strikes clearly violate the right to life under IHRL, which the United States is required to respect, including extraterritorially. The strikes are arbitrary deprivations of life – extrajudicial killings – because lethal force is deliberately being used against people who, in that moment, pose no immediate threat to the lives of others and who could be apprehended by non-lethal means. Even on the assumption that those killed were drug smugglers, killing them on the high seas is as unlawful as if the police started killing those suspected of dealing drugs on the streets of a U.S. city.

Because U.S. military units are organs of the State under the law of State responsibility (Articles of State Responsibility, art. 4), and because each of the strikes breaches the IHRL obligation to respect life, they constitute “internationally wrongful acts” for which the United States bears responsibility. Moreover, those involved may have committed murder in violation of the domestic criminal law of States that can exercise jurisdiction. (Murder under international criminal law is a different matter.) This includes the domestic law of the United States, as the State of nationality of the perpetrators, and potentially any States whose nationals were among the victims of the strikes.

Although this is the prevailing view among experts, widespread discussion persists over whether the strikes violate the law of armed conflict. Such discussions are counter-normative because that law applies only to actions during armed conflicts. The administration has erroneously asserted that it is involved in a non-international armed conflict with the cartels. That assertion is legally flawed (see, e.g., here, here, and here). To be clear, there is no armed conflict, and LOAC simply doesn’t apply. 

Nevertheless, in light of the administration’s mistaken claims that an armed conflict is underway, international law experts have pointed out that the strikes would be unlawful even under LOAC because the individuals aboard the boats are not targetable under that law and the drugs are not military objectives. And in any event, the infamous Sept. 2 strike on the shipwrecked survivors would have been a clear violation of the LOAC prohibition on attacking those who are hors de combat, if LOAC applied (see, e.g., here and here).

Congress has begun demanding answers regarding the legality of the strikes generally, and the Sept. 2 attack specifically. We strongly support this exercise of legislative branch oversight. However, international law imposes its own obligations to investigate potential violations of both IHRL and LOAC. In this article, we explain those binding obligations. Our examination includes the source of the obligations, when they are required, and the criteria according to which they are conducted. In our view, the IHRL obligation to investigate has been triggered and, by the administration’s mischaracterization of the situation, so too would its LOAC counterpart. We close by noting that the Department of Defense’s own policies require an investigation into the operations, irrespective of whether the proper legal regime governing the strikes is IHRL or LOAC. 

International Human Rights Law Investigations

State procedural duties to investigate potentially unlawful killings have long been recognized under IHRL as part of the State’s overarching positive obligation to protect the right to life. All human rights bodies take essentially the same approach to the parameters of this obligation. A useful summary can be found in the UN Human Rights Committee’s General Comment No. 36 (¶¶ 27-8 & 64), which sets out the Committee’s approach to interpreting Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the instrument’s provision on the right to life. 

Similarly, an instructive summary of the European Court of Human Rights’ jurisprudence on the procedural duty to investigate can be found in its case law guide (pages 35-51) for Article 2 of the European Convention on Human Rights (ECHR) on the right to life. 

The law of human rights bodies on the procedural duty to investigate unlawful killings is rich and varied, dealing with many different types of situations, including armed conflict. More importantly, that law is clear and unambiguous, and its overall correctness is not open to doubt.

The following principles can be distilled from this body of law.

First, the duty to investigate arises when State authorities “know or should have known of potentially unlawful deprivations of life” (General Comment 36, ¶ 27) (emphasis added). That requirement is clearly met regarding the boat strikes – the State itself is doing them. The fact that the President and the Department of Justice’s Office of the Legal Counsel (OLC) by fiat declared them to be lawful does not make them any less unlawful, let alone potentially so. That’s even more the case if the OLC relied on presidential determinations of a NIAC and other matters (as indicated by reporting), rather than engaging in independent legal assessment of those issues.

Second, investigations “must be aimed at ensuring that those responsible are brought to justice, at promoting accountability and preventing impunity, at avoiding denial of justice and at drawing necessary lessons for revising practices and policies with a view to avoiding repeated violations. Investigations should explore, inter alia, the legal responsibility of superior officials with regard to violations of the right to life committed by their subordinates.” (id.) The issue of superior responsibility, discussed below, looms especially large in these strikes in light of the Secretary of Defense’s personal involvement in them. So does the need to revise practices and policies, which Hegseth suggested never occurred after the shipwreck strike.

Third, it is not sufficient for States to investigate unlawful deprivations of life “merely through administrative or disciplinary measures, and a criminal investigation is normally required, which should lead, if enough incriminating evidence is gathered, to a criminal prosecution.” (id.) Measures short of a criminal investigation might be appropriate for personnel on the operational periphery of the strikes, but certainly not for those who played a direct role in planning, approving, or executing them.

Fourth, “[i]mmunities and amnesties provided to perpetrators of intentional killings and to their superiors, and comparable measures leading to de facto or de jure impunity, are, as a rule, incompatible with the duty to respect and ensure the right to life, and to provide victims with an effective remedy.” (id.) The presumption against immunity and amnesties is especially significant in light of President Trump’s excessive pardon practices.  

Fifth, investigations “must always be independent, impartial, prompt, thorough, effective, credible and transparent .… States parties need to take, among other things, appropriate measures to establish the truth relating to the events leading to the deprivation of life, including the reasons and legal basis for targeting certain individuals and the procedures employed by State forces before, during and after the time at which the deprivation occurred.” (General Comment 36, ¶ 28).

Sixth, these duties apply even extraterritorially and in situations of armed conflict, in parallel with similar duties under LOAC, which are discussed below. For instance, this year the European Court of Human Rights found Russia responsible for failing to effectively investigate the role of its authorities in the downing of the MH17 airliner over Ukraine in 2014 (see more here). Of course, the context of an armed conflict may require some flexibility in applying criteria, such as thoroughness and effectiveness, to account for what is realistically feasible under the circumstances (General Comment 36, ¶ 64, and ECHR cases such as Al-Skeini v. UK, Jaloud v. Netherlands, Hanan v. Germany, and Georgia v. Russia No. 2, all discussed in the case law guide, page 47). 

It is important to note that no extenuating circumstances would apply to an investigation into the boat strikes. Not only were those strikes not conducted in the course of an armed conflict, as we have explained, but all relevant information and evidence regarding them is in the possession of U.S. authorities. What is crucial at the moment is securing such evidence.

Taken together, these points lead to an inexorable conclusion: the United States has a positive duty under IHRL to investigate the lethal strikes against alleged drug trafficking boats in the Caribbean. That duty can be discharged only if the investigation is independent, meaning that the State organs conducting the investigation must be free from undue influence from those they are investigating. Moreover, while Congressional oversight is welcome, the positive duty can only be discharged through a criminal investigation by the armed forces or the Department of Justice, as appropriate. A perfunctory administrative investigation within the Pentagon would clearly not suffice, and any interference in the investigations would be unlawful under IHRL. 

Law of Armed Conflict Investigations

As noted, it is clear that the U.S. strikes against the alleged drug traffickers are not occurring in the context of a non-international armed conflict. However, as the administration claims they are, by its logic, the United States would be bound by any obligation to conduct investigations into LOAC violations amounting to war crimes during such conflicts. Moreover, with the administration threatening to conduct operations directly against Venezuela, the obligation to investigate LOAC violations during an international armed conflict, which those operations would trigger, merits attention.

The law of armed conflict imposes a two-tiered obligation to investigate possible war crimes. The obligation derives primarily from the four 1949 Geneva Conventions. Note that since they are considered to reflect customary international law (Nuclear Weapons, para. 79), Geneva Convention obligations are binding on all States. That States shoulder a customary law obligation to investigate possible war crimes is simply beyond dispute (ICRC, Customary IHL study, rule 158 and accompanying practice; UNGA Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, prin. I). Indeed, as noted in the DoD Law of War Manual (§ 18.13)

The duties to implement and enforce the law of war also imply duties to investigate reports of alleged violations of the law of war. In addition to taking measures to meet the requirements of DoD policy, commanders may also take other measures they deem appropriate to ensure appropriate investigation and reporting of alleged violations of the law of war within their command. (see also U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations, § 6.2.6).

The first tier involves the duty to investigate potential “grave breaches,” which are set forth in the Geneva Conventions (GC I, arts. 49 & 50; GC II, art. 50 & 51; GC III, arts. 129 & 130; GC IV, arts. 146 & 147; see also AP I, arts. 11 & 85). Willful killing of protected persons, which includes civilians and those who are hors de combat (like shipwrecked persons), is one of the enumerated grave breaches. 

These provisions require States to pursue prosecution of those suspected of committing grave breaches by: 1) enacting domestic legislation enabling prosecution of offenders; 2) searching for those accused of violating the Conventions; and 3) either prosecuting them or turning them over to another State that is willing to do so (aut dedere aut punire). The requirement to “search” for the accused has long been interpreted as mandating an investigation into a possible grave breach to determine whether to prosecute or to turn the accused over to another State. 

Importantly, the grave breaches provisions apply only during an international armed conflict, which the current situation is not, even according to the administration’s mischaracterization of the situation. However, should the United States attack Venezuela, thereby initiating an international armed conflict, these obligations would be triggered. A failure by the United States to satisfy them would constitute an internationally wrongful act. 

The second tier of the investigations requirement, and of immediate relevance to the boat strikes on the administration’s own theory that a non-international armed conflict exists, is based on the obligation to “take measures necessary for the suppression of all acts contrary to the provisions of the present convention other than the grave breaches.” It appears in the same provisions that set out the requirement for investigating grave breaches. The duty to suppress does not encompass a duty to prosecute or send an offender to another State for prosecution, but necessarily implies a duty to investigate in order to determine whether a violation has occurred, take appropriate disciplinary measures against any offender, and assess whether action can be taken to prevent further violations by others. 

What is different is that the suppression obligation applies to violations of all of the Conventions’ rules, including Common Article 3. That article, which appears verbatim in all four Conventions, prohibits “violence to life and person” directed at “persons taking no active part in the hostilities, including those placed ‘hors de combat.’” And unlike most other Geneva Convention articles, Common Article 3 sets forth fundamental rules for non-international armed conflict, violations of which have been criminalized in U.S. law (18 USC 2441(c)(3)). The resulting treaty-based duty to investigate and prosecute potential war crimes, even with respect to non-international armed conflicts, undeniably reflects customary international law (ICRC, Customary IHL study, rule 158, and accompanying practice). Therefore, the consequence of the administration’s assertion that it is involved in such a conflict is, by its own flawed analysis, that the “suppression” obligation attaches not only to any violations that might occur during operations in Venezuela that trigger an international armed conflict, but also to the strikes on the boats against the cartels. 

There are several non-exhaustive principles regarding such investigations that can be identified by examining these and related rules, such as Article 87 of Additional Protocol I (which does not bind the United States), and the practice of States in applying them (see Investigations Study).

First, the legal obligation under LOAC to report possible violations applies to all individuals who exercise command authority over military forces, although “[e]ffective compliance with the requirement necessitates policies extending it to any member of the armed forces with knowledge of a possible … violation” (Study, page 79). 

Second, every credible allegation of a war crime must be investigated promptly. In the absence of an allegation, an investigation is required whenever there is a credible reason to suspect a violation has occurred (id.).

Third, the duty to investigate can be “satisfied by investigations at any level of command, but only so long as the investigation in question is effective in terms of uncovering relevant facts and circumstances that will permit appropriate disciplinary or punitive action to be taken” (id.).

Fourth, the investigations must be impartial and independent. This does not necessarily mean that investigators must be outside the chain of command, unlike investigative duties under IHRL, so long as their work is effective in ascertaining the facts. However, any attempt to interfere with the investigation is strictly prohibited. Moreover, commanders and other responsible officers may not order and oversee investigations into incidents involving themselves; instead, they must refer them to a higher command or a law enforcement organization. (Study, page 80, para. 10).

Fifth, in the event “clear and reliable evidence of a war crime” surfaces, States are required to prosecute those who have committed war crimes and take appropriate disciplinary or remedial measures for violations that do not amount to war crimes. (Study, page 81).

And sixth, investigations need not be conducted, as a matter of law, publicly or their findings released. That said, in many situations in which the possibility of a war crime has become public, as in this case, doing so is generally sound policy. (id.)

Given the widespread publicity over the boat attacks, especially the Sept. 2 strike on the shipwrecked survivors, as well as the extensive analysis by international law experts, there are obviously credible allegations of war crimes, assuming the administration’s framing of the situation as a non-international armed conflict is correct. Of course, it is not, as we have explained – war crimes cannot be committed in the absence of an armed conflict. But, given its position on the existence of such a conflict, the administration has no alternative but to launch a prompt, impartial, and independent investigation to comply with the LOAC requirement that applies in such conflicts. 

It is crucial to bear in mind that in both international and non-international armed conflict, commanders and other superiors can be held criminally responsible for the war crimes of their subordinates if they knew, or had reason to know, that war crimes were being committed, or about to be committed, by them and failed to take all necessary and reasonable measures to prevent the war crimes or to punish those responsible for crimes that had already been committed (ICRC, Customary IHL study, rule 153 and accompanying practice). Ordering investigations is an effective step in prosecuting offenders and in identifying measures that need to be taken to prevent future war crimes. Based on publicly available information, the Defense Secretary’s apparent failure to change policies following the Sept. 2 double-tap strike is highly relevant in any assessment of compliance with these obligations.  

Should a commander or other superior fail to order an investigation when doing so is called for in the circumstances, that individual might be subject to prosecution for the underlying war crime on the basis of command (superior) responsibility. This is true both with regard to military personnel throughout the chain of command and civilian superiors such as the Secretary of Defense  (DoD Law of War Manual, § 18.23.3.2). In this regard, it merits emphasis that war crimes are subject to universal jurisdiction, that is, offenders may be prosecuted by any State, even when there is no relationship between the war crime and the State engaging in the prosecution. Additionally, commanders who fail to comply with the obligation to investigate and take other measures to suppress LOAC violations may be punished under the Uniform Code of Military Justice for dereliction of duty or violation of orders (§ 18.23.3.1).

Finally, we remind readers that IHRL continues to apply during armed conflict, albeit with due regard for military realities. There are none in this case that would meaningfully impede an investigation in full compliance with the aforementioned IHRL criteria. Indeed, as a matter of law, IHRL is the only appropriate framework for the investigations, unless the United States carries out the administration’s threats to take military action against Venezuela itself. 

DoD Implementation of the Investigation Requirements under IHRL and LOAC

The United States has implemented the obligation to investigate in DoD Directive 2311.01E, DoD Law of War Program (see also, DoD Law of War Manual, § 18.13). It provides that “[a]ll military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DoD Component must report through their chain of command all reportable incidents” (¶ 4.1). A reportable incident is (page GL-15): 

An incident that a unit commander or other responsible official determines, based on credible information, potentially involves: a war crime; other violations of the law of war; or conduct during military operations that would be a war crime if the military operations occurred in the context of an armed conflict. The unit commander or responsible official need not determine that a potential violation occurred; they need only find that credible information warrants further review of the incident. (emphasis added)

Importantly, even if an incident occurs outside armed conflict, as in these strikes, the reporting requirement still applies.

The commander of any unit who receives a report “about an alleged violation of the law of war must assess whether the allegation is based on credible information and thus constitutes a reportable incident.” (¶ 4.2). Information is credible when “a reasonable military commander would believe [it] to be sufficiently accurate to warrant further review of an alleged violation.” Note that “[t]he unit commander or responsible official need not determine a potential violation occurred, only that credible information merits further review of the incident.” Among the examples of “incidents that must be reported,” the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations includes the following: “Offenses against … Survivors of Sunken Ships;” “When military interests permit, failure to search out, collect, make provision for the safety of, or to care for survivors of sunken ships;” “Attacks on individual civilians;” and proportionality violations (§ 6.3).

If a report is credible, the commander concerned has to direct a “properly scoped” assessment, investigation, inquiry, or other review that is deconflicted with any ongoing criminal investigation. Even if there is a criminal investigation, the commander would still want to determine the facts, as they may require measures to avoid repetition, such as changing the Rules of Engagement. Should no such investigation be underway, the commander is obligated to “refer information about alleged war crimes to, or request an investigation by, a responsible Defense Criminal Investigative Organization” (DoD Law of War Program, ¶ 4.2).

Even if the unit commander concludes that there is no credible information to support an allegation, that commander is nevertheless obligated to forward this determination through the chain of command to the appropriate Combatant Commander. In the case of the boat strikes and any attack on Venezuela,  it would likely be the Commander of U.S. Southern Command, although the involvement of Special Operations Command complicates matters. In any event, the responsible Combatant Commander must then assess the decision and forward all reportable incidents to the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, and applicable Service Secretaries (¶ 4.3).

There is no question that boat strikes are reportable incidents that, based on credible information, should lead a reasonable commander to conclude there may have been a war crime, especially in light of the Navy’s own guidance on the type of incidents that qualify. If an armed conflict were underway, as the administration claims, it would raise serious questions about targeting individuals who are neither members of an organized armed group nor directly participating in the hostilities. Even if those killed in the attack were reasonably believed to be targetable in the circumstances, the prohibition on attacking those who are shipwrecked, one of the most fundamental rules in the law of naval warfare, was undeniably implicated. There are also problematic proportionality and precautions in attack issues. The intense controversy that the reports of the strike have sparked is a testament to the extent to which the entire campaign raises questions of both State responsibility for LOAC violations on the part of the United States and possible war crimes by some of those involved (see, esp. here).  

Importantly, even though the strikes are not occurring during armed conflict (contrary to the administration’s claims), they still have to be reported and investigated. Recall that reportable incidents include incidents outside of armed conflict if the conduct would be a war crime during armed conflict. That is very clearly the case here. Simply put, it would be unsupportable to argue that the incident did not fall within the four corners of the “reportable incident” standard. 

Concluding Thoughts

All of this leads to a relatively straightforward conclusion. Whether the boat strikes conducted thus far are assessed under international human rights law, the law of armed conflict, or the Department of Defense’s own policies, they have triggered an obligation on the United States to investigate them. That obligation is obligatory, not discretionary, and it is not satisfied by the administration’s claims to be acting lawfully or by congressional hearings. International law is clear. The boat strikes, and any questionable operations that may occur in the future, necessitate prompt, impartial, and effective investigations capable of gathering the facts and identifying those responsible. The fact that the United States controls the factual record of the incidents heightens the imperative to act promptly.

We are, however, not naïve. In the current political context, it is doubtful that across-the-board investigations into the boat strikes will occur. If any investigation is ordered, we anticipate it will be limited to the Sept. 2 second strike incident that has drawn so much attention. But this does not mean that the United States is not under a legal obligation to conduct one or more broader investigations into all of the strikes in accordance with its international obligations. The impunity resulting from a failure to do so is one we have seen at least once before – when the use of torture by U.S. officials in the “war on terror” went largely unpunished. A clear line connects that episode of impunity with the ongoing situation, in which uniformed and civilian government lawyers have no real choice but to carry out their legal and ethical duties.

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