U.S. President Donald Trump has justified the strikes by saying the U.S. is in ‘armed conflict’ with drug cartels.Alex Brandon/The Associated Press
Washington is alive with important – possibly embarrassing, surely legal, in any case seriously consequential – charges that the Trump administration is courting charges of war crimes with its lethal anti-drug offensive in the Caribbean Sea and the Eastern Pacific Ocean.
At the heart of this issue are two vital questions. The first is the legality of the Trump administration orders, which may include whether – this is a matter of controversy, still unresolved – Secretary of Defence Pete Hegseth ordered the killing of survivors of the initial attack against a Venezuelan vessel.
Already Democrats and some influential Republicans on key Capitol Hill committees are arguing that President Donald Trump has trampled on the law and, more broadly, has exceeded his constitutional powers in ordering sea strikes against watercraft he believes are carrying drug traffickers.
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The second is a matter of logic and also of law: whether there can be a war crime if technically there is no war under way. This riddle is stirring beneath the surface in the capital but surely will surface in coming days.
Either way on either topic, the Trump administration is facing serious questions – some political, some legal, some constitutional – about its offensive in the Caribbean and the Eastern Pacific.
Such questions have surfaced before in Washington, most recently under President George W. Bush, who ordered what he called the war on terror in the wake of the Sept. 11, 2001, terrorism attacks.
Central to the current controversy is language in Article 51 of the United Nations Charter, which explicitly states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” The Trump administration maintains drug traffic originating in Venezuela constitutes an attack on the United States. Critics argue drug trafficking isn’t an “armed attack.”
Conflating drug trafficking with an armed attack also is at odds with decades-long American policy, which generally has regarded the battle against drugs a matter of criminal law rather than a provocation for military response, though the Coast Guard, which has a quasi-military role, has been employed in drug interventions before, and the United States in 2017 conducted precision-bomb strikes against heroin factories in Afghanistan.
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The administration is mounting a strong defence of its position. “These highly effective strikes are specifically intended to be ‘lethal, kinetic strikes,’” Mr. Hegseth wrote Friday on X, adding: “Our current operations in the Caribbean are lawful under both U.S. and international law, with all actions in compliance with the law of armed conflict.”
Many Democrats and a growing number of Republicans have qualms if not serious questions about that position. They include GOP representatives Don Bacon of Nebraska, a member of the House Armed Services Committee, and Mike Turner of Ohio, a former chair of the House Intelligence Committee. Congressional inquiries about the strikes are being planned.
“The United States isn’t at war against drug traffickers in any morally significant way, despite the legal contortions of the Trump administration,” said Democratic Representative Seth Moulton of Massachusetts, a Marine Corps combat veteran of four tours in Iraq. “So this is not a war crime. It is murder.”
Mr. Trump has offered backing to Mr. Hegseth, who argues the victims of the attack were members of designated terrorist organizations. There are, however, indications that the President would not have approved a second lethal strike against survivors who may have been clinging to the wreckage of their doomed vessel.
Secretary of Defence Pete Hegseth said in a Friday post on X that the U.S.’s operations in the Caribbean are ‘lawful under both U.S. and international law.’Evelyn Hockstein/Reuters
The legal danger for the United States rests in conducting military strikes when an armed conflict doesn’t exist. Mr. Trump acknowledged on Oct. 23 that there had been no declaration of war, adding, “I think we’re just gonna kill people that are bringing drugs into our country, okay? We’re gonna kill them. They’re gonna be, like, dead.”
The United States hasn’t declared war since 1941, but has undertaken military action in several instances since then, sometimes (in Vietnam and Iraq) with congressional approval and sometimes (in the 1989 invasion of Panama) without it.
The conflict with vessels believed to be carrying drugs raises different issues.
“Only under conditions when an armed conflict exists can the President target ships at sea and regard those people as combatants,” said Robert Goldman, director of the War Crimes Research Office at American University’s Washington College of Law. “This is infinitely worse than anything in the war on terror. It’s flawed from beginning to end. There’s no justification under international law to support this. You can’t conflate drug trafficking with an armed attack.”
Mr. Goldman, the former UN Human Rights Commission’s Independent Expert on the protection of human rights while countering terrorism, said “targeted killing outside of a recognized situation of armed conflict is murder.” But it’s not a war crime, he argued, because “a war crime assumes there’s a war. There isn’t one.”
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Mr. Trump is facing blowback even from conservative corners.
“I don’t think we can wage war against drug traffickers but we can wage war against Venezuela,” John Yoo, a University of California, Berkeley, law professor who was the theorist behind the justification of “enhanced interrogation methods” following the 2001 terrorist attacks, said in an interview. “And it’s a problem if you’re shooting wounded survivors of an attack.”
There is a legal tool the Trump administration could employ to provide a legal basis for the killing of about 80 in its strikes, but it has not requested from Congress what is known as an Authorization for Use of Military Force, sometimes shortened to AUMF, which Mr. Bush used for the response to the 2001 terrorist attacks. Such a legislative resolution requires approval of both houses of Congress.
“They could, but haven’t used this,” said Paul Collins, a University of Massachusetts legal scholar and political scientist. “If they wanted to work clearly within the confines of the law, they would seek this and provide Congress with the information customarily given to justify this sort of thing so they would not be accused of conducting extra-judicial killings.”