Murder on the High Seas by the Trump Regime

Since early September, the United States (US) military has attacked boats on the high seas off South America, particularly boats from Venezuela, with missiles. Almost all on board the targeted boats have been killed. Or rather, they have been murdered. This post argues that there is no international legal basis for these attacks. Rather, they are a brazen and gross breach of international law.

Trump’s Attacks on Boats

On 2 September, the Trump administration released footage of a US strike blowing up a boat on the high seas which had left from Venezuela. The administration asserted that the deceased were members of drug cartels, and that the vessels had been on their way to the US to deliver illicit drugs. As of 24 November, 83 people had been killed in 21 strikes. The administration claims each strike saves 25,000 American lives from overdoses. It has provided no evidence for any of these claims.

Indeed, two survivors of one strike were returned to their countries of origin rather than brought to the US for criminal trial, indicating a lack of evidence of criminal activity. There have been claims that some of the dead are simple fishermen. The family of one such person has vowed to sue the US for wrongful death.

International Law and Armed Conflict

The Trump administration claimed in a note to Congress that it is engaged in a ‘non-international armed conflict’ (NIAC) with drug cartels in South America, principally Venezuela. NIACs arise between States and non-State actors, whether the conflict arises inside or outside the relevant State’s borders. According to the International Criminal Tribunal for the former Yugoslavia in the famous Tadić case at [70], a NIAC exists ‘whenever there is […] protracted armed conflict between governmental authorities and organized armed groups, or between such groups within a State.

If so, it may not be the first NIAC between drug traffickers and a State. Arguably, the Mexican ‘War on Drugs’, especially under the leadership of President Felipe Calderón (2006-2012), constituted such a conflict (though Mexico never explicitly classified it as such). The threshold of intensity was reached, with tens of thousands killed, while the relevant cartels arguably satisfied the ‘organisation’ test in the sense of having some sort of command structure.

In contrast, armed violence between Venezuelan cartels and the US does not reach the relevant threshold. Indeed, there is no armed violence against the US on the part of the cartels on the high seas.

However, Professor Raul Pedrozo (US Naval War College) argues that the tens of thousands of deaths caused by drugs trafficked into the US by Mexican drug cartels are analogous to an armed attack. After noting that 250,000 fentanyl deaths from 2018 to 2021 dwarf the US deaths in combat in the Vietnam War, numbering just over 58,000 people, Pedrozo argues ‘the extent of injury and death to US persons is clearly grave enough to characterize trafficking by the cartels as an armed attack against the United States’.

Nevertheless, there are flaws in applying Pedrozo’s argument to the present situation. First, Pedrozo’s arguments were actually made in relation to Mexican cartels, which are responsible for the majority of illicit drug imports into the US, rather than the cartels apparently being blown up in international waters. Second, there are specialised regimes in international law for dealing with international drug trafficking which treat it as a transnational crime necessitating a law enforcement response rather than a military one. That regime indicates drug trafficking is not viewed as an armed attack; it is also arguable that those regimes constitute lex specialis in this instance. Thirdly, it is the slipperiest of slopes to proclaim that injury and death per se equate with armed attack: Pedrozo stretches the notion of an ‘armed attack’ and ignores the requirement that it reach a requisite level of intensity.

Even if there was such a NIAC, and even if the US has correctly identified each targeted boat as one that was transporting illicit drugs to the US (of which there is no evidence), the US cannot simply target those boats. According to widely accepted guidance from the International Committee of the Red Cross, members of a non-state actor group in a NIAC may only be targeted if they have a ‘continuous combat function’ or are, at the time of their targeting, ‘taking direct part’ in relevant combat operations. These tests have no obvious application in the context of drug trafficking, unless such cartels have something akin to a military wing. Does the Trump administration believe that any person involved in the transport of drugs from the source country to the border is ‘taking direct part’ in the conflict no matter how low on the ladder of, or transient in their dealings with, the cartel? If so, why would ‘taking direct part’ stop at the border so as to exclude distributors in the US who are associated with the same cartels, and who probably engage in the most actual armed violence against US authorities. Yet all US states treat drug trafficking as a crime for which people are afforded due process, rather than an ‘attack’ which per se renders a perpetrator susceptible to lethal attack.

The law of armed conflict does not apply, unless it is distorted beyond recognition. Therefore, the US is not engaged in a “non-international armed conflict” with drug cartels. It is engaged in unilateral strikes on civilians who have never waged any relevant attack on the US, either before or after the commencement of the boat strikes.

Use of Force

The attacks have taken place on the high seas, so they are not an illegal use of force against a State’s territory. However, it is possible the US has engaged in illegal use of force against the flag State/s of the boats. In Oil Platforms, the International Court of Justice suggested that an attack on a single merchant vessel might constitute an attack on that vessel’s flag state. Having said that, it is not clear that these boats were flagged. Furthermore, they cannot be equated with merchant vessels. Having said that, a series of attacks on small boats with a particular State’s flag might, at some stage, be interpreted as an attack on that State.

States are permitted to use force in self-defence. Indeed, the US has claimed that it is engaged in acts of self-defence against ruthless drug dealers who cause suffering in the US. A narrow view of the right of self-defence under international law confines it to self-defence against other States. A broader but contentious view of self-defence permits States to respond outside their borders to attacks by non-state actors, particularly terrorist groups such as Al Qaeda on 9/11 in certain circumstances. The Trump administration labels members of the cartel as ‘narco-terrorists’. However, the moniker conferred on Venezuelan drug traffickers (or rather, alleged traffickers) is irrelevant. A State cannot respond in armed ‘self-defence’ against people that have not attacked it and show no signs of attacking it.

International Human Rights Law

The strikes breach US obligations under international human rights law. The US is a party to the International Covenant on Civil and Political Rights (ICCPR), Article 6(1) of which reads: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.

The US’s human rights obligations extend outside its borders. Indeed, the extraterritorial application of human rights is now well-established, despite US objections to the contrary. In its General Comment 36, the Human Rights Committee, the body which monitors and supervises implementation of the ICCPR, stated at [63]:

‘… a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner (emphasis added)’.

There is no doubt that the right to life of the people killed on the boats is ‘affected by [US] military or other activities in a direct and reasonably foreseeable manner’. Indeed, the whole point of the strikes is to kill the occupants of the vessels.

The strikes do not come within any of the permissible limitations to the right to life. First, human rights law is not here qualified by the law of armed conflict, which permits killing in broader circumstances, because the latter law does not apply. Second, the killings do not constitute acts of self-defence or defence of the life of another, which are only permissible as a last resort to guard against threats of ‘imminent death or serious injury’ (General Comment 36, [12]). Any threat posed by people on a boat a long way from the US which may or may not be carrying drugs to the US is far from imminent.

Instead, these are extrajudicial killings of people on boats deliberately targeted without any due process. They are arbitrary killings in violation of Article 6 of the ICCPR.

Crimes against Humanity

A finding of a violation of the right to life is non-controversial. A more interesting question is whether the strikes constitute international crimes. The former chief prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo has described the strikes as ‘crimes against humanity’. The Rome Statute of the International Criminal Court describes such crimes in Article 7 as certain acts, including murder, ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.

The civilian population in this instance are members of drug cartels as well as local fishermen, and their families. However, the number of deaths may not (yet) reach the level of being a ‘widespread or systematic attack’.

Former Philippine President Rodrigo Duterte is currently imprisoned in The Hague awaiting trial at the ICC for crimes against humanity entailed in his administration’s extrajudicial killings of alleged drug dealers. Many more were killed under Duterte’s regime, with deaths numbering in the thousands, than in Trump’s current campaign against ‘drug boats’, so Duterte’s acts seem distinguishable. Nevertheless, Duterte is currently charged only with involvement in 76 deaths, which is less than the number killed under Trump’s policy.

Conclusion

The US administration is committing extrajudicial murders on the high seas in breach of international human rights law, and possibly international criminal law. These actions should be condemned by all nations, including Australia and New Zealand; I can find no evidence of such.  Canada’s Foreign Minister wrongly claimed that it was not for Canada to pass judgment on a foreign State’s compliance with international law. At least France has correctly stated that the strikes breach international law. And a number of States including Canada have stopped sharing intelligence with the US that could be used to lethally target “drug boats”, perhaps because they fear complicity in international crimes.