Party Presentation

At the ICJ, contentious cases are brought by one State (the applicant) against another (the respondent). The parties present evidence and offer competing explanations of the evidence presented. The Court evaluates the evidence presented to it and considers the explanations offered to it, applying the relevant standard of proof. Each party is master of its own case. Each party is responsible for presenting the evidence and arguments that it wishes the Court to consider. And each party responds to the evidence and arguments presented by the opposing party. The parties present, and the Court decides. This is the principle of party presentation.

Party presentation respects the autonomy of each State to speak in its own voice, whether to allege a violation of its rights or to offer its own account of its conduct, in its own words. Party presentation also facilitates reliable truth-seeking, by clearly defining the issues in dispute so they may be tested through an adversarial process, with each party afforded an opportunity to challenge the evidence or arguments presented by the other. Consider the alternative. Imagine the Court issues a judgment in which it gives decisive weight to evidence not presented by either party, or to an explanation of the evidence not offered by either party. The losing party would be denied the opportunity to contest the reliability of the evidence or the plausibility of the explanation, including the opportunity to gather and present further evidence that might have persuaded the Court. Even the prevailing party may consider their victory a partial defeat, as it may be based on an account of its actions that it rejects. Wisely, the Court typically adheres to the principle of party presentation. (For an arguable exception involving Court-appointed experts, see here.)

In a genocide case, the applicant presents evidence and offers one explanation of the evidence: that the respondent’s officials (or other individuals under the respondent’s effective control) committed genocidal acts with genocidal intent. The respondent may or may not present evidence but, in any case, will offer a competing explanation of the evidence before the Court: that the acts were not committed by its officials (or others it effectively controlled), that the acts were not committed at all, or that the acts were committed with a different intent. The Court evaluates the competing explanations under its established standard of proof. If the Court is fully convinced by the applicant’s explanation of the evidence, then the Court should find that the respondent committed genocide. In contrast, if the Court finds that the respondent’s explanation of the evidence is reasonable, then the Court will not find the applicant’s explanation fully convincing.

Put another way, the Court will not find that a State acted with genocidal intent if another reasonable inference may be drawn from all the evidence before it. But that State must present an alternative inference to the Court and explain why it is reasonable in light of all the evidence. If the State fails to present the Court with a reasonable alternative inference, then it should not expect the Court to find one on its own.

In Bosnia v. Serbia, the Court noted that Serbia’s position “changed in a major way” during the oral proceedings, and “based itself” on the trial and appellate judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY). These ICTY judgments found that the relevant acts of violence were committed with genocidal intent in Srebrenica, but were committed with the intent to displace rather than destroy the Bosnian Muslim group in other regions. The Court agreed. The Court was fully convinced that the Srebrenica massacre was committed with genocidal intent, but found that in other regions “an essential motive of much of the Bosnian Serb leadership—to create a larger Serb State, by a war of conquest if necessary—did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion.” These objectives “were capable of being achieved by the displacement of the population and by territory being acquired, actions which the Respondent accepted (in the latter case at least) as being unlawful.” The Court appeared to accept Serbia’s explanation of the evidence, and found that Serbia had not committed genocide or failed to prevent genocide except in Srebrenica.

In Croatia v. Serbia, the Court emphasized that “Serbia does not contest the systematic and widespread nature of certain attacks. However, it claims that these were intended to force the Croats to leave the regions concerned. In this regard, it cites [cases] in which the ICTY found that the purpose of the attacks on the Croat population was to force it to leave.” In other words, Serbia’s explanation of the evidence was that the attacks were intended to displace the Croat group but not to destroy it. More broadly, Serbia maintained that the evidence “shows a multitude of patterns giving rise to inferences of combat and/or forcible transfer and/or punishment” rather than genocide. The Court found Serbia’s explanation reasonable, drawing heavily on several judgments of the ICTY, and accordingly found that “Croatia has not established that the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group.”

With respect to Serbia’s counter-claims against Croatia, the Court observed that Croatia “maintains that the purpose of all the acts and statements of the Croatian authorities cited by Serbia was strictly confined to regaining possession of areas under Serb control.” The Court found that it “cannot see in the pattern of conduct on the part of the Croatian authorities … a series of acts which could only reasonably be understood as reflecting the intention, on the part of those authorities, physically to destroy, in whole or in part, the group of Serbs living in Croatia.” The Court could be understood as finding that Serbia failed to show that Croatia’s explanation of the evidence was unreasonable, or simply that Serbia’s own explanation of the evidence was unreasonable or unconvincing on its own terms.

The basic point is that, in each case and context, the Court considered whether the applicant’s explanation of the evidence was fully convincing, or whether the respondent’s explanation of the evidence was reasonable. The Court did not develop its own explanations of the evidence, untested by a rigorous adversarial process.

Myanmar’s Changing Position

Returning to the current proceedings, it appears that Myanmar’s legal strategy has fundamentally changed. In 2019, in response to the Gambia’s request for provisional measures, Myanmar’s counsel argued that there was “a reasonable alternative explanation for the intent behind the alleged acts,” namely the intent to deport the Rohingya group from Myanmar. Myanmar relied extensively on proceedings at the International Criminal Court (ICC), where the Prosecutor sought to open an investigation into whether Myanmar’s officials were individually responsible for the crime against humanity of deportation. According to Myanmar, the ICC proceedings showed that genocidal intent was not the only reasonable inference that may be drawn from the acts alleged. While counsel for Myanmar noted for the record that they “intend no admission or acknowledgment,” their legal strategy was to establish that it was reasonable to infer from the acts alleged an intent to deport rather than destroy the Rohingya. Notably, in 2024, the ICC Prosecutor applied for an arrest warrant for Senior General and acting President Min Aung Hlaing for the crimes against humanity of deportation and persecution of the Rohingya. Although ordinary people may find “crimes against humanity, not genocide” a damning admission rather than a clever defense, it largely worked for Serbia and might have worked for Myanmar as well.

But Myanmar’s legal strategy appears to have changed. It seems that Myanmar no longer plans to argue that its intent was to deport rather than destroy (or that it is reasonable to infer as much). Instead, it seems that Myanmar plans to argue that its armed forces were engaged in counterterrorism operations and their acts were intended to suppress or defeat the Arakan Rohingya Salvation Army (ARSA), an armed Rohingya group operating in northern Myanmar. As the Gambia’s counsel, citing Myanmar’s written submissions, told the Court:

Myanmar’s pattern of conduct, in contrast to that of Serbia, does not permit the Court to reasonably infer that its intent was to forcibly displace, or ethnically cleanse, the Rohingya Muslim group. Myanmar itself does not claim that this was its intent, or that such an intent can be reasonably inferred from its conduct. In fact, Myanmar has consistently denied this. …

Myanmar argues that the “clearance operations” were intended neither to forcibly displace, ethnically cleanse or destroy the Rohingyas as a group. Its only defence of this conduct is to claim that its actions were intended to combat terrorism, specifically to counter the activities of the Arakan Rohingya Salvation Army, referred to by the acronym ARSA throughout the pleadings. The “clearance operations” were exercises in counter-terrorism against ARSA, says Myanmar, not efforts to destroy the Rohingya as a group.

Myanmar’s written submissions are not yet publicly available, but it is unlikely that the Gambia is mischaracterizing them. It seems that the Gambia has relied on Myanmar’s representations and now plans to call its sole expert witness to testify that Myanmar’s acts cannot be reasonably explained as a form of counterterrorism. The Gambia has also focused its oral arguments on refuting Myanmar’s “counter-terrorism narrative” (see here, here, and here). The parties will join issue, and the Court will decide whether the Gambia’s explanation of the evidence (genocide) is fully convincing, or whether Myanmar’s explanation of the evidence (counterterrorism) is reasonable.

It is not hard to see why Myanmar might change its line of defense. Any evidence it might present or argument it might offer at the ICJ to avoid a finding of genocide could be used against its leaders at the ICC on charges of crimes against humanity. Indeed, any evidence or admission of an intent to deport would carry weight at the ICJ precisely because it would be a statement against interest (or at least the interest of its leaders). At the same time, Myanmar’s new line of defense seems less likely to succeed. On its face, the idea that Myanmar’s acts with respect to the Rohingya were exclusively intended to suppress the ARSA appears not only unreasonable but preposterous. While there is no point prejudging Myanmar’s presentation a few days before it will be made, the scale and brutality of the violence directed at civilian members of the Rohingya group, including women and children, makes it difficult to see how the Court could possibly find it reasonable to infer from all the evidence taken together that Myanmar’s acts were exclusively intended to suppress an armed group.

Myanmar may try to revive its original strategy by arguing that the Gambia’s explanation of the evidence is less than fully convincing even if Myanmar’s alternative counterterrorism explanation is unreasonable. The idea here would be that an applicant must persuade the Court both that the respondent’s explanation of the evidence is unreasonable, and also that the evidence strongly supports each element of its claims. An applicant should not automatically win, by default, simply because the respondent’s defense is implausible. Whatever the merits of this idea, based on the first days of the proceedings, it seems unlikely that the Gambia’s case contains some fatal flaw, gap, or oversight that would lead the Court to reject its claims in the absence of a reasonable alternative explanation of the evidence put forward by Myanmar.

Whether a State committed genocide against a particular group is an objective matter of fact and law. But proving genocide at the ICJ is largely a matter of the evidence and arguments presented by the parties. Although the Court interprets the law for itself, it necessarily relies on the parties to bring forward evidence and contest its significance. The ultimate question for the Court is whether the Gambia’s explanation of all the evidence is fully convincing, or whether Myanmar’s explanation of all the evidence is reasonable. If Myanmar does not explain, in detail, how an intent to deport rather than destroy the Rohingya can be reasonably inferred from all the evidence before the Court, then the Court is highly unlikely to do Myanmar’s work for it. Nor should it. It is not the Court’s job to develop possible explanations of the evidence put forward by neither party, then evaluate their reasonableness in light of all the evidence before it without the benefit of adversarial testing. The parties present. The Court decides.

The post Proving Genocide: Party Presentation appeared first on Just Security.

Under the Genocide Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The intent to destroy, in whole or in part, a protected group is typically referred to as the “specific intent” or dolus specialis, which distinguishes genocide from other international crimes. Specific intent is a mental state which extends beyond the acts committed (here, killing individual group members), often contemplating a further result which the perpetrator aims to bring about but which may or may not occur (here, total or partial group destruction). This article concerns the perpetrator’s mental state toward the acts themselves, specifically with respect to killing individual group members.

“Intent” to Kill

In Bosnia v. Serbia, the ICJ recognized that the acts enumerated in the Genocide Convention “themselves include mental elements.” In particular, “’[k]illing’ must be intentional, as must ‘causing serious bodily or mental harm’… The acts… are by their very nature conscious, intentional or volitional acts.” In Croatia v. Serbia, the ICJ observed that “the words ‘killing’ and ‘meurtre’ appear in the English and French versions respectively of [the Genocide] Convention. For the Court, these words have the same meaning, and refer to the act of intentionally killing members of the group.” To support its point that “killing” and “meurtre” (murder) refer to “intentionally killing,” the ICJ cited a passage of the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber’s judgment in Prosecutor v. Blagojević and Jokić, which found that “killing” within the definition of genocide has the same meaning as “murder” within the definition of crimes against humanity (para. 642). The same ICTY judgment also observed that “the mens rea of murder as a crime against humanity” involves “dolus directus or dolus eventualis” (fn. 1912, citing Prosecutor v. Stakić). It follows that “intentionally” killing group members within the definition of genocide means killing group members with either dolus directus or dolus eventualis.

For lawyers trained in the common law tradition, the concepts of dolus directus and dolus eventualis require some explanation. Dolus directus includes both the aim or conscious object to cause a result (dolus directus in the first degree) as well as awareness that an action is virtually certain to cause a result (dolus directus in the second degree). These mental states correspond to the common law concepts of direct intent and oblique intent. The precise content of dolus eventualis is somewhat elusive, but the ICTY’s explanation in Stakić is as good as any:

The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he “reconciles himself” or “makes peace” with the likelihood of death. Thus, if the killing is committed with “manifest indifference to the value of human life”, even conduct of minimal risk can qualify as intentional homicide. Large scale killings that would be classified as reckless murder in the United States would meet the continental criteria of dolus eventualis.

While lawyers trained in the common law may resist classifying manifest indifference to human life as a form of “intent,” they should recognize this mental state as similar to the “implied malice” sufficient for murder. To complete the picture, the ICTY also found that murder as a crime against humanity may be committed with “the intent either to kill or to cause serious bodily harm with the reasonable knowledge that it would likely lead to death” (Blagojević and Jokić, para. 556). This includes acts aimed to injure an individual but likely to kill them (similar to one form of “express malice” in some common law jurisdictions) and acts not aimed at any individual but likely to kill someone (including the “[l]arge scale killings” referred to in Stakic).

The ICTY returned to the same point in Prosecutor v. Karadzic: killing group members as an element of genocide involves the same mental element as the war crime of murder and the crime against humanity of murder (para. 542), namely dolus directus or dolus eventualis (see, e.g., para. 448). More recently, the Extraordinary Chambers in the Courts of Cambodia (ECCC) concluded that the elements of killing as an act of genocide are equivalent to the elements of murder as a crime against humanity, which include killing with dolus directus or dolus eventualis (Case 002/02 Judgment, paras. 635-651, 796). This approach both reflects the generally recognized principle that “when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations,” and preserves the defining feature of genocide under international law. Genocide, war crimes, and crimes against humanity involve similar constituent acts, most notably killing vulnerable individuals. The distinctive element of genocide is found elsewhere, in the specific intent to destroy a group, in whole or in part.

Beyond its citation to the ICTY, the ICJ has said little about the exact nature of the intent to kill. In Bosnia v. Serbia and Croatia v. Serbia the ICJ reviewed a range of alleged killings, including by shelling, sniper fire, and mass executions. The ICJ found that killings of group members were committed but did not detail the specific, individual killings it found or identify the exact mental states with which they were committed. It made only one express finding regarding intent to kill. In its counter-claim, Serbia initially alleged that Croatian armed forces “indiscriminately shelled several towns and villages” in an area with a majority Serb population, aimed both at military targets and the civilian population. The ICJ rejected the allegation, based on its reading of the ICTY Appeals Chamber’s judgment in the Gotovina case. The ICJ concluded that “it is unable to find that there was any indiscriminate shelling of the [] towns deliberately intended to cause civilian casualties.” In the alternative, Serbia argued that, even if the artillery attacks on the Krajina towns “were not indiscriminate, and thus lawful under international humanitarian law,” the attacks could still violate the Genocide Convention if committed with the specific intent to destroy a group, in whole or in part. The ICJ rejected this argument as well, stating that

if one takes the view that the attacks were exclusively directed at military targets, and that the civilian casualties were not caused deliberately, one cannot consider those attacks, inasmuch as they caused civilian deaths, as falling within the scope of Article II (a) of the Genocide Convention.

This passage is not especially helpful. The ICJ’s use of terms like “deliberately intended” simply raises the question at issue, namely what kind of “intent” brings killing group members under the Genocide Convention. Substantively, if an attack is “not indiscriminate” and, more broadly, lawful under international humanitarian law, then it will not kill civilians with either dolus directus or dolus eventualis. International humanitarian law prohibits attacks directed against civilians. It also requires taking all feasible precautions to avoid or at least to minimize harm to civilians, and prohibits attacks which may be expected to cause disproportionate harm to civilians. It is hard to imagine an attack that complies with these rules yet either aims to kill civilians or reflects manifest indifference to the value of civilian life. This passage is consistent with the position that “intentionally” killing members of a group includes killing with either dolus directus or dolus eventualis.

The ICTY sought to interpret its Statute to align with the Genocide Convention and with customary international law. In contrast, the International Criminal Court (ICC) is constrained by article 30 of its Statute, which provides that “a person has intent where… [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” This provision includes dolus directus, in the first and second degree, but excludes dolus eventualis. The ICC Pre-Trial Chamber has found that, under the ICC Statute, killing group members involves “a general subjective element that must cover any genocidal act … which consists of article 30[‘s] intent and knowledge requirement.” Accordingly, at the ICC, only a defendant who “means” to cause the death of group members or is aware that their action will cause the death of group members in the ordinary course of events may be prosecuted for committing genocide by killing group members.

Fortunately, the ICJ is not bound by the ICC Statute, and may interpret the Genocide Convention on its own terms, taking into account other relevant rules of international law including the customary international law of crimes against humanity and war crimes. The ICJ has generally aligned its interpretation of genocide with the ICTY’s caselaw, attaching “the utmost importance” to the ICTY’s legal findings, and there is no reason for it to depart from its past practice here. The ICJ should affirm that killing group members with either dolus directus or dolus eventualis falls within the scope of the Genocide Convention.

From Intent to Kill to Intent to Destroy

Some readers may wonder whether the nature of intent to kill really matters. In practice, the same evidence that would support an inference of dolus eventualis will often support an inference of dolus directus as well. For example, indiscriminate shelling of a town obviously demonstrates manifest indifference to civilian life, but may also indicate an aim to kill both civilians and fighters alike. The ICC has held that the war crime of attacking civilians “may encompass attacks that are carried out in an indiscriminate manner” as well as “attacks that are launched without taking necessary precautions to spare the civilian population or individual civilians.” The aim to kill civilians often can be inferred in the same way.

More fundamentally, one might think that only killings of group members committed with dolus directus in the first degree (direct intent) can be committed with the specific intent to thereby contribute to the total or partial destruction of a group. Indeed, if one imagines a single individual with both the intent and the capability to destroy a substantial part of a group, that individual would aim to kill group members as a means of destroying the group. Put the other way around, if an individual aims to destroy a group by killing its members, then surely that individual must aim to kill its members.

But that is not how the world works. In the real world, genocide is not committed by a single individual who aims to kill with the further aim to destroy. Genocide is committed by large numbers of people, often organized into military hierarchies, bureaucratic structures, or social networks. Some individuals aim to kill specific, individual group members. Others do what they are told without caring whom they kill. They are told to shell a town, so they shell a town. Their aim in shelling the town may be to kill civilians, to terrorize civilians, or simply to follow orders. The intent and capacity to destroy a group converge at a higher level of authority. It is these higher authorities who intend for the shelling of towns to kill members of a group and contribute to the group’s destruction. At the same time, these higher authorities typically do not intend to kill specific people on an individual basis, or order the killing of specific people. These higher authorities develop or approve general plans, policies, and procedures aimed at the destruction of a group, in whole or in part, including by leading their subordinates to kill categories of people (members of a group) rather than specific, targeted individuals.

International criminal tribunals have deployed different legal categories to capture the complex dynamics of mass atrocities. The ad hoc tribunals developed a form of joint criminal enterprise liability (“JCE I”) according to which physical perpetrators need not possess specific intent where they are used by members of a joint criminal enterprise to commit genocide. As the ECCC explained, following the ICTY,

It is not determinative whether the direct perpetrator shared the mens rea of the JCE member or knew of the existence of the JCE; what matters under JCE I is whether the JCE member used the direct perpetrator to commit the actus reus of the crime forming part of the common purpose.

In contrast, the ICC has developed a form of indirect co-perpetration according to which “the mental state of mid level superiors and low level physical perpetrators is irrelevant.” As the ICC Trial Chamber has explained,

Indirect co-perpetration requires the following objective elements: (i) the existence of an agreement or common plan, between the accused and one of more other persons, to commit the crimes or to engage in conduct which, in the ordinary course of events, would result in the commission of the crimes; and (ii) the control of the members of the common plan over a person or persons who execute the material elements of the crimes by subjugating the will of the direct perpetrators.

On the ICC’s approach, indirect perpetrators individually or jointly use “at least part of the apparatus of power subordinate to him or her [or them], so as to steer it intentionally towards the commission of the crime.”

In its prior cases, the ICJ has not felt the need to adopt a specific legal test linking the intent of higher authorities with the intent (or lack thereof) of direct perpetrators. Perhaps it will feel no need to do so in Gambia v. Myanmar either. The important point here is that the ICJ should not interpret intent to kill in a way that precludes a finding of genocide when (i) higher authorities steer their subordinates toward carrying out attacks that are indiscriminate or otherwise violate international humanitarian law, (ii) the higher authorities aim for such attacks to kill unidentified members of a group and contribute to the group’s total or partial destruction, and (iii) the subordinates kill with manifest indifference to human life.

Conclusion

The ICJ should explicitly interpret “intentionally” killing members of a group to include both dolus directus and dolus eventualis. Direct perpetrators may kill group members with the aim to kill them, with the virtual certainty of killing them, or with manifest indifference to their lives, and may not share the intent to destroy their group. Higher authorities may steer their subordinates toward such killings, with the intent to thereby contribute to the total or partial destruction of their group, without ordering specific attacks or aiming to kill specific group members. These rather technical issues may not prove decisive in Gambia v. Myanmar. But a sound interpretation of the law can only assist the ICJ in reaching a sound judgment based on the evidence before it.

The post Elements of Genocide: Intent to Kill appeared first on Just Security.

The Court applies a high standard of proof in genocide cases. As first explained in Bosnia v. Serbia, “[t]he Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in [the Genocide Convention] have been committed, have been clearly established.” Allegations of genocide must be proven by evidence that is “fully conclusive.”

Genocidal intent may be proven by direct evidence of a genocidal plan or by evidence of a pattern of conduct from which the only reasonable inference is that the conduct was committed with genocidal intent. As the Court later explained in Croatia v. Serbia, its “only reasonable inference” test is “in substance identical” with the standard applied by international criminal tribunals, namely that:

it is permissible to infer the existence of genocidal intent based on ‘all of the evidence taken together’, as long as this inference is ‘the only reasonable [inference] available on the evidence’. (Prosecutor v. Tolimir, para. 745)

So understood, the Court’s standards of proof and inference fit together. Evidence of genocidal intent is fully convincing if, and only if, genocidal intent is the only reasonable inference based on “all of the evidence taken together.”

Unfortunately, some States appear uncertain and apprehensive of the Court’s approach to pattern-of-conduct evidence. Some worry that only the similarity of acts will be considered while their scope and severity will be ignored, or that dissimilar acts such as killing and sexual violence will be considered separately, compartmentalizing evidence that should be viewed together. Others fear that pattern-of-conduct evidence excludes other relevant, probative evidence of genocidal intent, such as statements other than official plans. This was never the Court’s intent, and it has not been the Court’s practice. Gambia v. Myanmar presents an opportunity to dispel any lingering misunderstandings.

Briefly, a pattern of similar conduct by different individuals, at different times, in different locations, may provide important evidence that the conduct was directed by higher authorities, or was otherwise coordinated, and reflects a common intention. Pattern-of-conduct evidence is unnecessary when a single incident raises an inference of genocidal intent on its own, or when other evidence exists that multiple incidents were directed or coordinated. Once a common intent is established, other evidence may be introduced to prove genocidal intent, including the scope and severity of the conduct, overlapping patterns of conduct, and statements other than official plans. So long as genocidal intent is the only reasonable inference from all the evidence taken together, the Court should be fully convinced.

The Caselaw

In Bosnia v. Serbia, the Court found that the Army of the Republika Srpska (the VRS) committed genocide in Srebrenica, specifically intending to destroy a substantial part of the Bosnian Muslim group through a combination of killing the military-aged men and expelling the women, the children, and the elderly. The Court did not find an official statement of genocidal intent, nor did it infer genocidal intent from a pattern of conduct. The Court simply evaluated the evidence placed before it and was fully convinced that the acts were committed with genocidal intent.

With respect to atrocities committed outside of Srebrenica, the Court found that genocidal intent had not been “conclusively shown in relation to each specific incident.” Anticipating this finding, Bosnia attempted to link these specific incidents with each other and with Serb leaders. Bosnia proposed that the Court should infer genocidal intent from “the pattern of [potential] acts of genocide committed throughout the territory, against persons identified everywhere and in each case on the basis of their belonging to a specified group.” Bosnia alleged that the genocidal intent of the higher authorities “directing the course of events is clear from the consistency of practices, particularly in the camps, showing that the pattern was of acts committed ‘within an organized institutional framework.’” According to Bosnia, the consistent pattern established that higher authorities must have directed the conduct. Given the nature and scale of the conduct, these Serb leaders must have intended to destroy the group in whole or in part.

The Court noted that Bosnia’s argument “moves from the intent of the individual perpetrators of the alleged acts of genocide complained of to the intent of higher authority.” The Court examined whether genocidal intent could be deduced “from the pattern of actions against the Bosnian Muslims taken as a whole.” It was in this context that the Court famously said that:

The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.

As the Court says, genocidal intent may be convincingly shown by reference to “particular circumstances,” a broad notion that covers any circumstantial evidence of genocidal intent (as opposed to direct evidence of a genocidal plan). A pattern of conduct is one particular circumstance, among others, that may arise in a specific case and point to genocidal intent. In the case at hand, the particular circumstance invoked by Bosnia was a pattern of similar conduct, and the Court was not fully convinced. But the Court never suggested that a pattern of similar conduct is the only “particular circumstance” that can ever convincingly show genocidal intent across multiple incidents.

In Croatia v. Serbia, the Court “examined and assessed the totality of the evidence advanced by Croatia.” For its part, Croatia “advanced a single claim alleging a pattern of conduct increasing in intensity” over time, involving acts of violence in towns and villages across multiple regions, from which “the only reasonable conclusion to be drawn is an intent on the part of the Serbian authorities to destroy in part the Croat group.” As before, a pattern of conduct was invoked to link together specific incidents and establish that “Serbian authorities” or “Serb leaders” must have directed the conduct which, given its large scale and targeted nature, must have been intended to destroy a substantial part of the group.

The Court loosely defined a pattern of conduct as “a consistent series of acts carried out over a specific period of time.” It found “a pattern of conduct that consisted … in widespread attacks by the JNA [Yugoslav People’s Army] and Serb forces on localities with Croat populations in various regions of Croatia, according to a generally similar modus operandi.” Turning to whether this pattern of conduct revealed genocidal intent, the Court recognized the importance of:

the scale and allegedly systematic nature of the attacks, the fact that those attacks are said to have caused casualties and damage far in excess of what was justified by military necessity, the specific targeting of Croats and the nature, extent and degree of the injuries caused to the Croat population.

The Court focused on “the context in which those acts were committed and the opportunity which the JNA and Serb forces had of destroying the Croat population.” Ultimately, the Court found that all the evidence taken together was consistent with an intent to displace or collectively punish the group without destroying it.

In its counter-claim, Serbia alleged that “the acts and statements of the Croatian authorities taken as a whole, before, during and immediately after Operation Storm manifest a consistent pattern of conduct which can only show that those authorities were animated by a desire to destroy, in whole or in part, the group of Serbs living in Croatia.” Here, too, a consistent pattern of conduct was alleged to show that different incidents were motivated by a common intention of higher authorities. Ultimately, the Court found that the alleged acts which were proven “were not committed on a scale such that they could only point to the existence of a genocidal intent.”

Both cases reflect the same core idea: patterns of similar conduct may indicate that the conduct was directed by higher authorities or otherwise coordinated, and therefore reflects a common intention. Once a common intention is found, an evaluation of genocidal intent may consider other evidence, including the scope and severity of the conduct as well as statements other than official plans. The ultimate question remains whether genocidal intent has been convincingly shown by reference to the “particular circumstances” of the case.

The Court never suggested that direction, coordination, or common intention must be established by a pattern of similar conduct, rather than by witness testimony, authenticated records, or public statements other than official plans. Such evidence may be sufficient with respect to specific incidents, like the Srebrenica massacre, and they may be sufficient with respect to multiple incidents as well. In the case of an advanced military, with hierarchical command and control, direction or coordination reflecting a common intention may be more readily inferred (if not presumed). If the conduct involves large-scale atrocities systematically targeting members of a group, then a strong inference of genocidal intent will naturally arise, and the space for other reasonable inferences will naturally diminish.

Recall the Court’s statement that its standard of inference is “in substance identical” to the standard applied by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tolimir case. As the ICTY explained in the very next sentence, genocidal intent may be inferred from a number of factors, including

the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts. The existence of a plan or policy, a perpetrator’s display of his intent through public speeches or meetings with others may also support an inference that the perpetrator had formed the requisite specific intent.

Only one of these illustrative factors involves a pattern of similar conduct, namely “the repetition of destructive and discriminatory acts.” Pattern-of-conduct evidence is an important factor, but it is one factor among others, with a specific but limited function.

As an aside, the Court’s treatment of pattern-of-conduct evidence should not be confused with the substantive requirements of the International Criminal Court (ICC)’s Elements of Crimes. The Elements provide that an individual commits genocide only if they commit a predicate act (such as killing a group member) “in the context of a manifest pattern of similar conduct directed against [a] group” or their conduct “could itself effect” the total or partial destruction of a group. The ICJ did not refer to the Elements in Bosnia v. Serbia. In Croatia v. Serbia, the ICJ mentioned in passing that the Elements are concerned with a related but distinct problem, namely when genocide can be committed by “a single individual or a small number of individuals.” In contrast, the ICJ looks to pattern-of-conduct evidence as one way (though not the only way) to infer that conduct was directed by higher authorities, or otherwise coordinated. Once direction or coordination is proven (and however it is proven), the ICJ looks to the scale of the conduct, potentially including whether it could itself effect the total or partial destruction of a group, as one way (though, again, not the only way) to infer genocidal intent.

The Confusion

In their joint declaration of intervention, Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom observed that

the Court stated that the “only reasonable inference” test should be used with respect to drawing an inference of specific intent from a “pattern” of conduct only. This cannot be the threshold of the test when other methods of inference are also present, such as when examining the scope and severity of a perpetrator’s conduct to evidence specific intent.

These States appear concerned that the Court will ignore the scope and severity of a perpetrator’s conduct when inferring their intent. This concern is misplaced. In its prior cases, the Court identified a pattern of conduct only to infer direction by higher authorities reflecting a common intent. To infer genocidal intent, the Court also examined the scope and severity of the conduct.

Alternatively, these States may be concerned that the Court will treat a pattern of similar conduct as a necessary prerequisite for a finding of genocidal intent, when the scope and severity of the conduct may suffice in a given case. For example, if an advanced military engages in large-scale, systematic violence targeting an ethnic group, then the scope and severity of the conduct alone may raise a strong inference that the violence must have been directed by higher authorities, or otherwise coordinated, and must reflect a common intent to destroy a substantial part of the group. While such large-scale violence may include patterns of similar conduct, it is the scope and severity of the conduct, rather than its similarity as such, that may raise a strong inference of common and genocidal intent. All of this is consistent with the Court’s basic point that genocidal intent must be “convincingly shown by reference to particular circumstances,” of which a pattern of similar conduct is only one.

In its declaration of intervention, the Democratic Republic of Congo (DRC) writes that the Court’s “only reasonable inference” test “applies when the intent is inferred from particular circumstances or a pattern of conduct and does not concern cases where express statements provide evidence of genocidal intent.” In fact, the Court has examined express statements alongside patterns of conduct when applying the “only reasonable inference” test (Croatia v. Serbia, paras. 422, 438). While a pattern of similar conduct may establish the existence of a common intent behind multiple incidents, express statements may establish the (genocidal or non-genocidal) content of that common intent. In principle, express statements could establish genocidal intent when viewed alongside the scope and severity of conduct, whether or not the conduct falls into patterns of similar acts.

Finally, in its declaration of intervention, Ireland interprets patterns of conduct very broadly, to include “a pattern of widespread and systematic violence against the protected group” as well as inciting statements and discriminatory practices. According to Ireland:

Instances of the acts enumerated in Article II (a)-(e) [of the Genocide Convention], together with circumstantial evidence such as statements or incitement by State organs, or persons or entities empowered to exercise governmental authority, may form a pattern of conduct from which the existence of a general policy, plan or campaign may reasonably be inferred.

Regular public statements made on behalf of State organs, or by persons or entities empowered to exercise governmental authority, that denigrate the protected group, as such, or that incite hatred or fear of it should, in Ireland’s view, be considered as forming a pattern of conduct from which reasonable inferences can be drawn for the purposes of the Convention.

Likewise, measures that systematically discriminate against or persecute the group should also form part of a pattern of conduct to be assessed.

As a practical matter, Ireland’s position gets to the right results by the shortest route. The ultimate question before the Court is whether it is fully convinced by all the evidence taken together or, in other words, whether genocidal intent has been convincingly shown by reference to the particular circumstances of the case. By treating actions, statements, and context as part and parcel of a “pattern of conduct,” Ireland’s position arguably just cuts to the chase and minimizes the risk that the Court will be distracted from a full consideration of the evidence. At the same time, Ireland’s position risks losing sight of the original point that a pattern of similar conduct committed across multiple incidents is one basis, though not the only basis, from which to infer direction or coordination reflecting a common intent. The better approach remains to give pattern-of-conduct evidence a specific, significant, but limited role in the evaluation of all the evidence before the Court.

Conclusion

Genocidal intent may be inferred from a pattern of similar conduct, or from other evidence of direction or coordination reflecting a common intent, whose genocidal character may be inferred from the scope and severity of conduct, from statements other than official plans, or from overlapping patterns of conduct (such as killing and sexual violence). The Court’s standard of proof is high but it can be met in a variety of ways. Whatever the Court decides in Gambia v. Myanmar, it should decide based on all the evidence taken together and the particular circumstances of the case before it.

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

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

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

Why This is Peacetime Law Enforcement, Not War

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

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

The Duty to Rescue Under Peacetime Law

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

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

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

Even Under the Laws of War, This Strike Was Unlawful

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

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

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

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

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

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

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

Shipwrecked Persons Are Protected as Hors de Combat

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

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

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

The Military Had a Duty to Render Assistance

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

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

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

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

When Shipwrecked Survivors Lose Protected Status

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

Additional Protocol I

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

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

The Geneva Convention Commentary on Small Vessel Operations

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

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

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

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

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

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

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

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

The DoD Law of War Manual

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

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

The San Remo Manual

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

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

The Administration’s Arguments Fall Short

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

Argument One: The Drug Boats Are Lawful Military Objectives

First, the Department appears to be arguing that the drug boats are lawful military objectives. But the DoD Law of War Manual states that military objectives “include any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture, or neutralization … offers a definite military advantage.” The United States gains no articulable military advantage from targeting these drug boats that are led by gangs or cartels and that are not involved in military action against the United States. (See Schmitt, Bridgeman, and Goodman for further analysis.) 

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

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

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

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

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

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

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

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

The Context Matters

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

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

Conclusion 

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

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

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

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

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

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

As those legal risks were being debated, new reporting described European leaders giving fresh political backing to a different kind of intelligence adjustment: the European Commission’s effort to strengthen its internal fusion capacity, building on years of work to make better use of information already held by member states and EU institutions. The Venezuela-related carve-outs did not create that initiative, and the Commission’s plans long predate the U.S. boat strikes. But both raise a larger question: are European partners just managing discrete problems, or are they beginning to hedge more systematically against U.S. volatility in the intelligence domain?

Isolated decisions to limit intelligence sharing would matter under any administration. They may carry a greater weight, however, in the current U.S. political context. A second Trump term introduced a variable absent under previous presidents: a U.S. leader more inclined to view  alliances as short-term transactions and who openly uses intelligence support as leverage over other countries. Against that backdrop, adjustments to intelligence sharing that might once have passed for routine housekeeping now take on sharper significance and risk hardening into more conditional, guarded cooperation.

This is not to suggest the transatlantic intelligence relationship is collapsing. No intelligence organization—on either side of the Atlantic—is likely to make a clean break with its closest partners. That would be operationally catastrophic and strategically pointless. The Five Eyes alliance—the intelligence-sharing arrangement between the United States, the United Kingdom, Canada, Australia, and New Zealand—remains the most deeply institutionalized part of the Western alliance system. Meanwhile, European intelligence services still depend heavily on U.S. technical and collection capacity. But actions across both Trump administrations have left partners wary enough to start treating U.S. reliability as something to be managed, not assumed.

In March, I argued that the clearest indicator of any U.S. strategic realignment toward Russia would show up in Washington’s adjustments to intelligence flows rather than threats to Article 5 or summit theatrics: who is written into “REL TO” dissemination markings—the list of foreign partners allowed to see a given product—and whose access is quietly thinned, and whether ad hoc contacts with Moscow become routine exchanges. That remains a “canary in the coal mine” for a deliberate tilt toward Moscow, and there is still no evidence of that threshold being crossed.

What has changed since the spring is not a single decisive move, but the accumulation of background noise. The mix of signals that worried European officials then—CIA Director John Ratcliffe’s outreach to Moscow, pauses and threats in support to Kyiv, public disparagement of NATO allies—has been joined by fresh episodes: a White House “peace plan” for Ukraine drafted largely over European heads; an ever-shifting “war on narco-terrorists” that casts Venezuela’s President Nicolás Maduro as a drug kingpin even as Trump pardons former Honduran President Juan Orlando Hernández, a convicted cocaine trafficker serving a 45-year sentence; and a Pentagon inspector general report on “Signalgate” detailing Defense Secretary Pete Hegseth’s use of a personal Signal chat to share Yemen strike plans in violation of Pentagon policy and with acknowledged risk to troops. The administration’s newly released National Security Strategy, which elevates the Western Hemisphere and treats Europe more as a secondary theater expected to shoulder more of its own risk, points in the same direction.

Each can be debated on its own terms. Taken together, they deepen an existing unease about Washington’s steadiness as a security partner without yet amounting to a clear break.

How Intelligence Officers Think About Limits on Sharing

Public debate tends to treat “intelligence sharing” as an on/off switch. For practitioners inside CIA and NSA, and their counterparts across Europe, it looks more like overlapping networks of pipes and valves. Some of those networks are formal: Five Eyes, NATO structures, and liaison officers embedded in U.S. combatant commands and European headquarters. Other networks are quieter bilateral or trilateral channels that have matured over decades: analyst to analyst on secure systems, Station chiefs to counterparts, desk officer to long-standing liaison contact. Unless a sharing arrangement is revoked, information keeps moving through these less formal conduits.

From the intelligence officer’s perspective, limits inside this architecture are routine, not alarming. Intelligence is born with markings that specify who may see it and under which national “flags.” Those caveats are meant to protect sensitive sources and methods. The Five Eyes partnership enjoys the broadest and most automatic access. But the same mechanisms used to manage that cooperation—originator control rules, “no foreign” restrictions, topic-specific exclusions—are applied every day in U.S.–European and intra-European exchanges.

The historical logic of this system remains straightforward. No single service can collect everything. The United States relies on partners with better access in particular regions, communities, and problem sets. Those partners rely on U.S. reach, technical mass, and global analytic capacity. Foreign intelligence liaison, as Jennifer Sims has put it, is a form of subcontracted collection based on barter: States enter these arrangements to expand access, lower costs and risks, and speed information to decisionmakers. When partners worry intelligence will be misused, they don’t dismantle entire frameworks. Instead, they rely on the familiar tools—tighter caveats, narrowed subject-matter, additional conditions—to make some flows slower and more contingent.

Seen through that lens, the United Kingdom’s reported decision to narrow what it shares on suspected drug-trafficking vessels is not a sign that British and U.S. intelligence agencies have stopped talking to one another, nor that Five Eyes is coming apart. It is a partner fencing-off a specific operational line within a larger relationship. London has not publicly implied that it has stopped intelligence sharing on maritime issues in general with Washington.

The transatlantic intelligence-sharing system rests on three assumptions. First, that partners broadly agree on who the main adversaries and problems are, and what kinds of attacks or crises matter most, even if they rank those threats differently. Second, that their legal frameworks and targeting practices are close enough that shared intelligence will not routinely drag one service into another’s gray zones. Third, that all sides can trust each other’s internal controls: vetting, auditing, and resistance to politicization. When any one of those assumptions is strained—because definitions of terrorism expand, because the boundary between law enforcement and military action blurs, or because domestic politics call institutional neutrality into question—intelligence and policy senior officials on one end of the network start reaching for those “valves.”

All three assumptions face periodic tension, but the Trump administration has put unusual and sustained stress on the third. For European services, the concern is not one scandal in isolation but the pattern developed over two Trump terms. They have not forgotten the first term’s controversies over handling classified information, including the 2017 Oval Office meeting in which highly sensitive counterterrorism intelligence was disclosed to Russian officials, alarming the Middle Eastern partner that had provided it, or the subsequent criminal case over classified documents stored at Mar-a-Lago, with photographs in the 2023 indictment showing boxes of national defense information stacked in a ballroom and even a bathroom. Allies know those episodes do not reflect everyday tradecraft, but they still raise doubts about discipline at the top.

In European capitals these episodes are part of the story services must tell their own oversight bodies when they are asked whether U.S. national security agencies still merit the deference they have long received—especially in a climate where recent polling shows most Europeans now see the United States less as a trusted ally than as a “necessary partner.”

Such Caution Has a History

Friction in intelligence relations is common. In the post-9/11 period, European services repeatedly tightened or recalibrated cooperation with Washington over Iraq, renditions, drone strikes, surveillance programs, and privacy law. Each time adjustments were made cooperation continued.

Under Presidents George W. Bush and Barack Obama, European courts and parliaments pushed back against CIA rendition and secret detention programs, and later against lethal drone strikes in places such as Pakistan and Yemen. Council of Europe inquiries, national investigations, and litigation in the United Kingdom, Italy, and elsewhere forced governments to account for their role in U.S.-led operations. The result was familiar: liaison relationships survived, but partners added caveats and narrowed categories of cooperation that made some forms of sharing slower and more conditional.

After the disclosures of Edward Snowden revealed that Germany’s Federal Intelligence Service (BND) had assisted the NSA in monitoring European officials, including German Chancellor Angela Merkel, Berlin temporarily halted certain NSA-tasked internet surveillance while parliamentary and legal reviews ran their course. Cooperation resumed, but not on the old terms. German oversight bodies demanded clearer limits and more formal tasking. Both sides accepted tighter auditing and documentation of what could be collected, on whom, and under which authorities.

In parallel, the Court of Justice of the European Union (CJEU) has repeatedly narrowed the legal space for bulk data retention and for transatlantic transfers exposed to expansive U.S. surveillance powers. Judgments striking down indiscriminate metadata regimes, together with rulings that forced the EU to adopt more stringent conditions and safeguards for data transfers to the United States, did not target intelligence liaison directly. But their message was unambiguous: legal exposure does not disappear because information comes from a trusted ally. Governments are expected to interrogate how foreign-sourced data is obtained and used, and to ensure that cooperation with U.S. agencies does not sidestep domestic and EU-level protections.

These episodes reflect a caution among European partners that predates Trump. Services and courts have learned to live with friction by using the same instruments now visible in the Caribbean case. What is different now is that familiar friction is operating against unusually visible doubts about the steadiness of U.S. leadership. Unlike in the past, that unease is showing up not only in case-by-case caveats, but also in quiet efforts to give Europe more internal resilience within an alliance system it still relies on.

A Slow-Building European Baseline

That search for a more autonomous baseline is now taking institutional form in Brussels. The Commission is moving ahead with plans to build an intelligence “cell” in the Commission’s Secretariat-General. The initiative is designed to fuse information already held by member-state services, EU institutions, and open sources, and to improve how Brussels uses information it already receives. The timing invites an easy narrative of cause and effect that the facts do not support. Whereas the carve-outs over maritime strikes are a narrow legal hedge, the push for a more integrated intelligence network has grown in the face of sustained Russian aggression and spreading instability in the Middle East and Africa. These developments intersect in their logic, not their origin: both reflect a quiet effort to make sure Europe is less exposed when U.S. choices become harder to predict.

Calls among EU nations for a more integrated intelligence network have been ongoing but have intensified over the last year. In November 2024, Sauli Niinistö, the former Finnish president and now a special adviser to the European Commission, delivered a mandated report that recommended strengthening the EU’s Single Intelligence Analysis Capacity—the combined civilian Intelligence Analysis and Situation Centre (INTCEN) and the EU Military Staff’s intelligence directorate that serves as the EU’s main hub for strategic warning and situational awareness—and, over time, developing it into a “fully fledged intelligence cooperation service” for EU institutions and member states. The aim, Niinistö stressed, was not to create a European CIA, but to give EU leaders a clearer, timelier understanding of threats based on intelligence that capitals already hold.

Officials in the European External Action Service—the diplomatic service in charge of executing the EU’s international relations—worry about duplication with INTCEN, and several capitals remain wary of giving Brussels a larger formal role in handling their reporting. But the political intent is clear enough: the Commission wants a more direct hand in how information already inside the EU system is fused and fed into decision-making, so that leaders in Brussels are not reliant on occasional national briefings or U.S. readouts to understand their own security environment.

The instinct behind this effort—to have a European baseline that does not rise or fall with U.S. domestic politics—did not begin with Trump. His presidency has, however, turned a long-standing worry into a present problem. In Trump’s first term, European governments watched a U.S. president cast aside his own intelligence services when their findings were personally or politically inconvenient. He publicly discounted U.S. assessments of Russian election interference while standing beside Vladimir Putin in Helsinki. And he brushed past the CIA’s judgment on Washington Post reporter Jamal Khashoggi’s murder while deepening security and investment ties with Riyadh. In his second term, his administration paused battlefield intelligence support to Ukraine and delayed in arms transfers at politically sensitive moments to try to shape Kyiv’s negotiating posture.

European concerns are intensifying. Diplomats have reacted with open frustration to a Trump-backed “peace plan” for Ukraine negotiated largely over their heads. The plan would ask Kyiv to accept territorial losses and it contains clauses about “profit-sharing” from frozen Russian assets that many in Brussels regard as nakedly self-interested. The White House is once again pressuring Ukrainian President Volodymyr Zelenskyy to express public gratitude while hinting that future U.S. support will depend on Kyiv’s willingness to accept such unfair terms. For Europe, the message is not subtle: intelligence and military backing are bargaining chips, not joint commitments. For many European officials, the practical response is not to walk away from U.S. intelligence, but to make sure that when Washington swings, Europe has enough internal capacity to ride out the turbulence and repair the relationship later.

U.S. intelligence services are not blind to Europe’s anxieties. CIA Director Ratcliffe reportedly made a deliberately low-key stop in Brussels at the end of October, officially to brief the North Atlantic Council, but with a parallel set of meetings with EU High Representative Kaja Kallas and senior officials from INTCEN and the EU Military Staff. The subtext, as several European officials described it, was that European partners should distinguish between the volatility of the Trump White House and the steadier posture of U.S. intelligence agencies. That kind of reassurance mission would have been unnecessary a decade ago. It now takes place alongside accelerated intra-European cooperation, talk of “coalitions of the willing” to sustain support to Ukraine, and selective carve-outs such as the Venezuela issue.

Taken together, these steps are best understood as a layered insurance policy: modest institutional reforms in Brussels, pragmatic efforts to keep cooperation intact through a turbulent American presidency, and a recognition that Europe cannot afford to be wholly dependent on the reliability of any one administration in Washington. The open question is whether this remains a bounded adjustment—an extra set of valves around a still-shared system—or is it the first stage of a more lasting shift in how defaults on both sides of the Atlantic are set? That uncertainty is the backdrop for asking, in concrete terms, what a more serious hardening of European caution would look like in practice.

What Deeper Hedging Would Look Like

A deeper European hedge against dependence on U.S. intelligence would show up less as a formal rupture than as a reset in default settings—from “share unless there is a clear reason not to” to “hold back unless we are sure this will not create legal or political exposure.” That kind of reset would show up in the structure of cooperation itself: how categories of activity are defined, which channels remain open by default, and which are treated as exceptional.

One visible sign that caution has crossed into something more serious would be the spread from a handful of tightly defined exclusions to a walling off of broader categories of cooperation. Each carve-out could still be justified on its own terms—domestic legal constraints, parliamentary pressure, proportionality concerns—but the accumulation would matter. It would mark a move away from treating differences between U.S. and European targeting practices as manageable friction and toward assuming that those gaps are large enough to warrant narrower, more qualified sharing as the default.

The clearest signal of a shift—and the most consequential—would occur below the surface: administrative rather than declaratory. Services can tighten their control over who else gets to see and reuse the material they collect, adjust dissemination markings, and require additional legal sign-off before certain products are shared or used operationally. Analysts can be told, formally or informally, to privilege national or commercial collection when building key assessments and to treat U.S. reporting more to fill gaps than as the backbone of their picture—a significant change for services that still depend on U.S. reach and persistence they cannot easily replicate. Liaison embeds can be reduced by a few billets at a time, or their access to particular databases and working groups trimmed back. Over time, those choices add up to a different pattern of who sees which products, on what issues, and with how much delay.

Those disruptions would be asymmetrical. European States would gain resilience and political room to maneuver, but they would also assume more of the burden of fusing and defending their own intelligence in contentious cases. The United States would retain unmatched technical capacity, yet find that some of the most valuable “crown jewel” access held by European partners is only available later, on narrower terms, or not at all. The alliance would still function, but with less of the easy presumption that information will move quickly and fully across the Atlantic just because it always has.

A System Under Strain, Not in Free Fall

However the Venezuela episode is resolved, the more important shift is in the default settings of the U.S.-Europe security relationship, not in any single carve-out. European services are not weighing whether to walk away from U.S. intelligence; they are working out how much exposure to U.S. swings their own law, politics, and publics will tolerate, and building a little more slack in the system. The risk for Washington is the opposite: that these adjustments are treated as background noise rather than as feedback about how allies now think about American reliability.

As of today, liaison channels remain open, Five Eyes still sits at the core of Western cooperation, and European governments continue to rely on U.S. reach in ways they cannot quickly replace. The risk at this stage is not collapse; it is normalization of a more conditional, more guarded partnership.

That is one reason the day-to-day relationships between analysts and operators are likely to endure even through a turbulent presidency. Joint targeting cells, embedded liaison officers, and long-standing case-specific channels are built on habits of cooperation and professional trust that do not vanish with an election. The strain shows up first at the upper tiers: general counsel offices, directorates that set foreign-disclosure policy, and political appointees who decide how tightly to keep sensitive reporting inside national systems. That is where allied services are now recalibrating.

The United States’ intelligence advantage has never been only about its own collection; it has rested on partners’ willingness to route their best reporting through American systems and to take U.S. assessments as a starting point for discussion. If those habits weaken—even without a single embassy protest or formal suspension—the United States will feel it at the margins: fewer early warnings from European coverage, more delays, more caveats at exactly the moments when speed and confidence matter most.

The system can absorb strain. Five Eyes and related networks were built to survive political swings and policy disputes, and they have done so before. What would be harder to manage is a gradual thickening of legal and political hedges that makes “hold back unless we are sure” feel like the safer default. That tendency did not begin with Trump, but his second term is giving it new tests and, at times, sharper visibility.

For Europe, the path forward involves building more tools to compare notes internally and more confidence in its own legal and analytic judgments, while keeping U.S. access where it remains clearly in their interest. For the United States, the choice is more practical than dramatic. It can treat episodes like the Venezuela carve-out as irritants to be pushed past, assuming that allies will always come back because they need American power. Or it can read them as reminders that even close partners will fence off parts of cooperation when domestic law, politics, or public opinion demand it.

If that pattern widens, the consequences are likely to be incremental rather than spectacular: more issues where European services decide to keep certain streams narrower, more moments when Washington learns that some of what it once saw automatically now arrives later, with more conditions attached, or not at all. That is still a system under strain, not in free fall—but it is one in which the United States should no longer assume that what reaches its inbox is the whole of what its allies know.

The post The Quiet Rebalance in Transatlantic Intelligence appeared first on Just Security.

I agree with Professor Jack Goldsmith that if the media reporting is accurate, this military operation is a “dishonorable strike” that is illegal under international law and the laws of war.  This sentiment and logic was echoed by former U.S. military lawyers. The illegal order also runs contrary to longstanding U.S. military doctrine and U.S. Navy Regulations governing the treatment of survivors at sea. (See, also, this analysis by Michael Schmitt, Ryan Goodman and Tess Bridgeman.)

But beyond the troubling legal issues associated with the strike, killing unarmed and vulnerable survivors is stunningly shortsighted. Killing survivors of a military strike is not just patently illegal and morally reprehensible; it is strategically reckless.

The United States, which has military forces deployed around the globe, cannot build a safer world for its own servicemembers by discarding basic laws of war. History shows that when America blatantly abandons humane norms and the law of war, it ultimately endangers its own people.

Compliance with international law—including the laws of war—is built, in many respects, on reciprocity. If the United States abandons these rules, it cannot expect its adversaries to follow them when Americans are the ones captured, isolated, shipwrecked, or shot down. And it’s not just reciprocity. Weakening the legitimacy of such fundamental rules also corrodes the underlying foundation of a system that serves U.S. servicemembers time and again. As the world’s most widely deployed maritime power, the United States relies on these protections more than any other nation. And what’s more, illegal orders create moral, reputational, and strategic harm long after the violations of law have ceased.

Here’s how.

International law, including the laws of war, exists to protect our people—not just “theirs” 

The duty to rescue or protect shipwrecked or wounded survivors at sea is among the oldest and most widely respected requirements in international law. Nearly every maritime nation abides by it, and not just because abiding by the rule of law is the honorable path. There’s also a strong incentive to ensure this particular rule is respected because anyone can become a shipwreck survivor—including U.S. Sailors, Marines, special operators, and Coast Guard crews.

This duty is reflected in both the laws of war, which apply during armed conflict, and in international human rights law and law of the sea requirements (it remains a highly contestable proposition that the United States is at war with narco-terrorists). Regardless of whether or not this is an armed conflict, killing survivors violates longstanding requirements that protect U.S. servicemembers.

The United States helped enshrine this principle during WWII.

In the Pacific theater in World War II, certain Japanese naval units adopted “no survivors” policies, killing Allied sailors adrift at sea. The U.S. Navy explicitly rejected this approach. The U.S. State Department protested “this inhuman form of warfare practiced by Japanese forces in brutally attacking helpless survivors of a torpedoed vessel … which are contrary to all standards of civilized conduct.” In contrast, American rescuing practices not only upheld the rule of law but also strengthened U.S. claims to humane treatment for American POWs. Leading by example, American practices became part of the foundation of the postwar law of the sea.

In the Atlantic theater, the actions of German U-boat 852 provides an even clearer example. After sinking the SS Peleus, a Greek vessel under charter for the British military, the U-boat crew fired on shipwrecked survivors. Five German sailors were prosecuted for war crimes by the United Kingdom in a military court in Hamburg. The German commander claimed “operational necessity,” while others argued they were following orders. The court quickly rejected both defenses, after deliberating for just 40 minutes. Three were sentenced to death; two received lengthy prison terms. The message was unmistakable: killing survivors is a war crime, and “following orders” is no excuse.

Violating this longstanding principle is not a one-off tactical decision; it fundamentally reshapes global expectations of U.S. conduct. If America signals that it may kill survivors, adversaries will feel free to do the same when the situation is reversed. That puts a wide range of U.S. personnel at risk, and not just those who may be shipwrecked—it threatens pilots who eject over hostile territory, soldiers separated from their units, and special operators isolated behind enemy lines.

It also erodes the related requirement to provide assistance to vessels or people in distress—a requirement the United States relies on in the Pacific, in the Middle East, in the Arctic, and elsewhere when operating outside of armed conflict. Humane treatment of shipwrecked survivors is not charity; it is a shield protecting American servicemembers and American mariners in need.

That’s why, when Iranian forces detained American Sailors aboard two Navy vessels in January 2016, the United States could credibly and immediately demand humane treatment. During this incident, one of the Navy vessels suffered a mechanical issue while in Iranian waters. The Sailors were released unharmed within hours—an outcome far less likely if the United States then had a practice of killing survivors at sea.

I was serving as a Navy JAG at the time of this incident, and helped lead the investigation of Iran’s detention of the American sailors. A declassified version of the lengthy report on their detention is now publicly available. Our report noted that Iran had a duty to assist and aid the American sailors conducting innocent passage, consistent with Article 98 of the UN Convention on the Law of the Sea.

Violating the law undermines the United States’s moral legitimacy and carries real strategic costs

Violating international law also undermines the moral legitimacy underpinning current and future U.S. military operations. Moral legitimacy is a strategic asset, not a “nice extra.”

When the United States abides by the laws of war, it strengthens its ability to shape global expectations, sustain coalitions, and demand humane treatment for its own forces.

But if the United States authorizes the killing of defenseless survivors, it sends a clear message to the world: the United States does not take maritime law, fundamental human rights, or the law of armed conflict seriously. Why then should adversaries—or even partners—respect these rules?

Forfeiting the moral high ground also makes it harder to maintain cohesion with allies. The U.S. experience with torture after 9/11 offers a stark warning: America’s willingness to violate humanitarian norms still haunts its global reputation and weakens its ability to demand humane treatment for its own servicemembers.

Violating the law corrodes internal discipline and harms U.S. servicemembers from within

For many American servicemembers, the military’s honor code and commitment to the rule of law are central to why they serve. We are supposed to be the “good guys.” Indeed, the U.S. Navy’s core values are honor, courage, and commitment. When the state abandons those values, it can demoralize troops, create long-lasting moral injury, and fuel distrust within the ranks.

The continual psychological and institutional damage of post-9/11 abuses is well documented. Illegal orders create moral injury, erode discipline, and breed cynicism. They degrade the professional code, weaken force discipline, and make future misconduct more likely. A military that is asked to carry out illegal or dishonorable actions suffers long after the moment has passed.

History shows the corrosive consequences of illegal actions

The United States has already experienced the consequences of abandoning the laws of war. After 9/11, the Justice Department’s Office of Legal Counsel purported to authorize torture. Putting the well-known human and moral toll aside, the strategic results were also catastrophic: unreliable intelligence, diminished global credibility, damaged alliances, rallying of extremists, and the erosion of America’s ability to demand humane treatment for its own captured personnel. In an investigation into the CIA’s Detention and Interrogation Program, the Senate Select Committee on Intelligence found that the CIA program “caused immeasurable damage to the United States’ public standing” and to the “United States’ longstanding global leadership on human rights in general.”

The Abu Ghraib torture and prison scandal in Iraq led to broad strategic consequences with people around the world questioning the legitimacy of the U.S. mission there. During the floor debate on the Detainee Treatment Act, Senator John McCain—who experienced torture while detained at the Hanoi Hilton in Vietnam—stated, “[M]istreatment of our prisoners endangers U.S. troops who might be captured by the enemy—if not in this war, then in the next.”

The Path Forward

Both the House and Senate Armed Services Committees have promised rigorous oversight of Pentagon operations in the Caribbean. At minimum, this must include full release of any relevant videotapes, especially of the Sept. 2 incident, and the accompanying Office of Legal Counsel opinion(s) purporting to justify the overall operations. And central to this investigation must include an examination of the consequences of this action, to include the increased risk that this incident has on American servicemembers who are operating around the globe.

The stakes are clear. If America chooses a path where killing defenseless survivors becomes acceptable, American servicemembers will pay the price for that choice. The United States as a whole will see a loss to our reputation, alliances, and our ability to appeal to the rule of law in the myriad ways that support vital U.S. interests.

The laws of war and fundamental human rights aren’t a restraint—they’re a shield.

They protect American lives today and preserve America’s honor tomorrow.

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