To date, the U.S. has conducted airstrikes against 14 boats in the Caribbean Sea and Pacific Ocean, killing at least 57 alleged drug smugglers. “We going to kill, you know,” President Trump declared. “They’re going to be like, dead.” The attacks, he added, are intended “to serve notice to anybody even thinking about bringing drugs into the United States. BEWARE!”
A land attack, the president indicated, presumably on Venezuela, home to Tren de Aragua (which the U.S. has labelled a “narco-terrorist” organization) “is going to be next.”
Trump maintains he doesn’t need to ask Congress for a declaration of war to conduct “a non-international armed conflict” with drug cartels; his administration cites legal authority George W. Bush claimed to justify the global war on terrorism he launched following the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Many legal experts, however, believe the U.S. strikes violate United Nations charter rules governing the use of force and constitute extrajudicial killings, in violation of both international and U.S. law. The attacks, we believe, are also unethical and ineffective.
Under the U.N. charter, states may not use force against other states absent a Security Council authorization or an armed attack triggering the right of self-defense. The Trump administration claims the U.S. is at war with Latin American drug cartels because they “illegally and directly cause the deaths of tens of thousands of American citizens each year.” But smuggling drugs is criminal activity that calls for a law enforcement response, not an armed attack justifying military strikes in self-defense. And transnational criminal activity has historically been handled much differently than war-related violence by virtually all countries, including the U.S.
The administration calls drug traffickers “enemy combatants,” a law of war label intended to justify killing them. Under international humanitarian law, a state’s military forces have the “combatant’s privilege” to attack and kill enemy forces. This “privilege,” however, applies only in the context of an ongoing armed conflict.
The Trump administration insists that the U.S. is in a “non-international armed conflict” with drug cartels. That assumes the U.S. is engaged in hostilities with an organized, armed group possessing a command structure sufficient to enable it to comply with the laws of war. Few if any independent experts believe drug cartels meet that criterion, or that the violence they generate is sufficiently intense or protracted to constitute an armed conflict.
Since the law of war does not apply, human rights norms govern. Human rights treaties, which the U.S. has ratified, mandate that no one shall be arbitrarily deprived of life. Nations cannot make exceptions to this, even in times of public emergencies. The International Criminal Court, it is worth mentioning, has issued an arrest warrant for former Philippines President Rodrigo Duterte for extrajudicial killings of drug suspects.
Human rights norms also require officials engaged in law enforcement, including military personnel, to minimize physical injury and use force only against imminent threats to life.
U.S. law prohibits the “targeted killing of individuals” outside of an armed conflict. But “the idea of indiscriminately killing people without knowing their names, without seeing any evidence, without making a formal accusation,” as Sen. Rand Paul (R-Ky.) has implied, sets a new precedent of shoot first and ask questions later — or not at all.
Individuals accused of maritime drug trafficking are entitled to due process under the U.S. Constitution, and many bilateral agreements require the U.S. to provide suspects with trials in federal courts and the possibility of extradition. After all, many boats boarded on suspicion of drug trafficking turn out not to contain any drugs. And the vast majority of fentanyl and cocaine that enters the U.S. is brought in from Mexico by U.S. citizens.
The U.S. Coast Guard, which Congress has empowered as the lead agency for interdicting drugs at sea, has strict guidelines for dealing with suspicious vessels. These involve warning shots, disabling fire, boarding ships, seizing evidence, and arresting crew members. In contrast to, at best, taking out low-level operatives, this approach helps build cases against drug-smuggling enterprises and their leaders.
The airstrikes on alleged drug dealers in international waters set a dangerous precedent. They risk war with Venezuela, even though in a memo declassified in May, U.S. intelligence agencies concluded that President Maduro’s government does not control Tren de Aragua. The strikes might also, for example, encourage China to use drug smuggling as a pretext to bomb Taiwanese fishing vessels or lead other countries to execute foreigners without trial for drug dealing or other crimes. And they send a clear message that the United States flouts international law because it can.
Meanwhile, in October, only Paul and Sen. Lisa Murkowski (R-Alaska) joined Senate Democrats to vote for a resolution to stop attacks in the Caribbean. As one critic put it, “the path of least resistance” for Republicans who once insisted on Congress’s constitutional role in approving military interventions abroad “is a shrug.”
Glenn C. Altschuler is The Thomas and Dorothy Litwin Professor of American Studies at Cornell University. David Wippman is an emeritus president of Hamilton College.
