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U.S. attacks on alleged narcotics trafficking boats continue unabated with little apparent concern for near-unanimous legal condemnation. The Trump administration justifies these attacks as an exercise of national self-defense against a non-state group engaged in armed conflict against the United States — two inherently defective legal assertions. The result is the targeting of drug cartels like Tren de Aragua with missile strikes. This is not bending the law, it is breaking it.
And now we know addressing what is inherently a law enforcement threat with wartime authority has led to an emerging scandal over a reported “double tap” strike that killed survivors of an initial attack, allegedly responsive to Secretary of Defense Pete Hegseth’s directive to “kill them all.” Further investigation is necessary to establish the ground-truth of what may have been an illegal attack — even in the context of an armed conflict. But it is the invalid assertion of wartime attack authority that set the conditions for this latest scandal. Had this boat been dealt with through the law enforcement framework, there would not have been a first strike, much less the reported double tap.
Nonetheless, at least two international law commentators have endorsed this theory of legality, specifically the legitimacy of treating the activities of narco-trafficking groups as an “armed attack” triggering the inherent right of self-defense. Another editorial asserted invocation of “wartime” legal authority represents an arguably logical evolution of international law. This argument is premised on the theory that the administration’s interpretations of international law merely build upon previous invocations of analogous authority by the United States to engage in hostilities against non-state groups like al-Qaeda and the Islamic State.
Like the administration’s legal invocation of the right of self-defense and that this situation constitutes an armed conflict, these opinions seek to push a legal square peg into an operational round hole. It is, of course, accurate to focus on an actual or imminent armed attack to justify military action in self-defense. This right is enshrined in Article 51 of the United Nations Charter and is an important aspect of customary international law. And while the meaning of armed attack — the trigger for self-defense — must be pragmatically responsive to emerging threats, its malleability is not unlimited. Indeed, by invoking the international legal language of self-defense, it is clear the United States has not abandoned the view that its use of military force must “fit” within an international legal framework. It is, however, the Trump administration’s effort to advance its policy agenda by continuing to distort what constitutes an armed attack that lies at the heart of the legal invalidity of this campaign.
A Flawed Interpretation of International Law
The fundamental flaw of both these assertions of international legal authority is that they seek to transform what is into what isn’t: what is fundamentally a law enforcement challenge into what isn’t a war by any objective measure. This conclusion is not based on a “restrictive” or overly formalistic view of international law. Indeed, we have both been strong advocates for acknowledging the right of self-defense and the existence of armed conflicts in the post-9/11 period. It is undeniable that interpretations of the law to deal with the threat posed by al-Qaeda and similar groups expanded beyond a traditionally more restrictive approach, which only accepted that self-defense could be exercised against attacks by states. The very term “transnational” armed conflict — an armed conflict against a non-state organized armed group operating beyond national borders — was first suggested by one of us in a 2005 Army Law article.
But acknowledging such an evolution is not an invitation to transform every national security threat into an armed conflict. Unless such a threat manifests in a manner that effectively overwhelms normal law enforcement response capabilities, it is legally and functionally overbroad to treat it as an armed conflict. When dealing with a non-state group, that line is crossed only when the group has military-type organization, engages (or is about to engage) in armed attacks against the United States or its personnel or interests abroad, and brings to bear a military-type capability that cannot be effectively addressed within the normal law enforcement legal framework. In short, only when common-sense dictates a genuine threat-based necessity to resort to combat power is it legitimate to assert the existence of an armed conflict.
This is almost certainly why the Trump administration frames the current situation as war, asserting that members of Tren de Aragua “have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States,” and drawing an analogy between the deadly impact of illegal narcotics and a chemical weapons attack.
None of these analogies, or the legal theories built upon them, are plausible. Comparing the drug cartel threat to the conflict with al-Qaeda and subsequently with the Islamic State is like comparing a rifle with a cruise missile. Those earlier campaigns responded to organized armed threats to governance in the states where they operated, and internationally in their desire to create a broader caliphate or force — through armed violence — the United States to abandon engagement in certain Middle Eastern countries. This is entirely consistent with the concept of armed conflict, whether against threats posed by states or non-state organized armed groups: Violence is used to achieve some political purpose whether it be gaining control of territory or challenging lawful state authority. Even when two non-state armed groups engage in hostilities — for example the hostilities in and around Mogadishu in 1993 between the organized armed groups that fought for control of the city — the goal is to gain control over the areas where they operate.
This doesn’t mean it is legally impossible for the United States — or any country — to be engaged in an armed conflict against a drug cartel. Such a situation would be plausible if Tren de Aragua was engaged in armed operations seeking to challenge U.S. governing authority. But there is no objective basis for such a conclusion. Instead, like most criminal syndicates, this is an organization that operates as a commercial enterprise, using sporadic violence to advance its commercial agenda. Nothing indicates use of force on the scale of al-Qaeda or the Islamic State to gain control of U.S. territory or challenge its ability to govern by conducting organized armed hostilities against it.
This is the same reason the invocation of self-defense is invalid. While not discounting the harmful or deadly effect of illegal narcotics, chemical substances, even when illegally introduced into the United States, do not amount to an armed attack the way flying commercial airliners into skyscrapers packed with civilians did. It is its use as a weapon to conduct an attack — meaning an intentional act of violence — that matters. And that intent and corresponding attack is absent in this situation.
Were a non-state armed group attempting to attack the U.S. homeland with a chemical or biological weapon the invocation of self-defense would be both essential and justified. However, asserting drug smuggling poses an identical threat as chemical warfare is a gross distortion that fundamentally misrepresents the threat posed by such weapons used during World War I, by Iraq in the 1980s against Iran and its own Kurdish population, and most recently by the Syrian government against its own people. This is why the American, British, and French rationales for their 2018 strikes against Syrian chemical weapons facilities focused on the deliberate use of chemicals as a weapon with the accordant intent to inflict mass casualties. Those strikes were made to stop the horror of chemical warfare, an intentional use of chemical weapons not remotely close to the collateral risk posed by Venezuelan drug cartels feeding a demand for narcotics originating from within the United States.
Why It Matters
This all leads to an important question: Why does determining the existence of “armed conflict” even matter? At the core of the answer lies a more fundamental question: What justifies the state to use lethal force? The answer turns on the existence or absence of legal justification: When life is taken deliberately without such justification, it amounts to an arbitrary killing under either domestic or international law. Outside the context of armed conflict, legal justification is based on — and of equal importance limited by — principles of individual self-defense associated with law enforcement, most notably the requirement that only the minimum necessary and proportionate force be used as a measure of last resort in response to an actual or imminent threat. This is the “ordinary” framework for use of force. It is why police officers are armed with less than lethal weapons like Tasers. This is the basis for the condemnation of excessive uses of police force.
During an armed conflict, however, this “ordinary” use of force framework is altered. Pursuant to the law of armed conflict’s principle of military necessity, military forces may employ deadly force as a first resort based not on an assessment of imminent threat, but on the “enemy belligerent” status of the target. Thus, a reasonable assessment of enemy belligerent status justifies the use of deadly force, providing the requisite legal justification. However, even in this context arbitrary or unlawful killing can occur, such as when deadly force is used against an individual who is not assessed to be an enemy belligerent or a civilian taking a direct part in hostilities, and does not pose an actual or imminent deadly threat.
Understanding this equation reveals why the prohibition against arbitrary killing would become hollow if a state could simply characterize every security threat as an armed conflict. International law has not evolved in such a direction. To the contrary, the law has consistently reinforced that armed conflict — even against emerging or unconventional security threats — requires those threats to have some characteristic of military organization (e.g. a command-and-control structure) and present a threat to government authority of protracted and intense combat that is beyond the normal law enforcement response. Arguing that the evolution of international law creates an armed conflict and justifies the attendant use of deadly force against a criminal gang — whose objective is not challenging government authority but rather trafficking in an illicit commodity — misinterprets the way law has evolved.
Reports that National Security Council lawyers, CIA lawyers, civilian Department of Defense legal counsel, and military lawyers in the chain of command have all questioned the legality of this military campaign is therefore unsurprising. Equally unsurprising, albeit unprecedented, has been the reaction of various partner nations limiting intelligence sharing with the United States due to concerns about becoming complicit in internationally invalid military operations. The Trump administration is apparently unconcerned about these decisions or, arguably, the broader perception of disregard (or invalid interpretations) of international law. We believe this campaign is undermining U.S. credibility across the globe. We also believe it will set a precedent that the United States may come to regret when invoked by other governments, including U.S. adversaries, seeking to transform what are fundamentally law enforcement challenges into matters to be dealt with by using deadly force.
This campaign ignores a foundational pillar of international law: that invocation by a state of the inherent right to act in self-defense enshrined in the United Nations Charter represents an exceptional authority to use force, and in particular military force. It has always been understood as exceptional, requiring genuine security necessity, because it was adopted during the postwar period when the international community under U.S. leadership sought to avoid the scourge of future war. The right to act in self-defense is not a blank check to use force. This is why invocation of self-defense — individual or collective — must be limited to situations that genuinely indicate imminent threat, a necessity to act, and a response that is proportionate to the threat. Since the legal criteria for the United States acting as it is not met, the United States is — as it was for decades preceding this campaign — obligated to use the minimum force required to achieve the goal of interdicting and preventing the flow of illegal narcotics into the country.
There Is a Better (and Legal) Way
No one has suggested that existing legal frameworks short of armed conflict provide insufficient authority to board and challenge stateless vessels such as cartel boats. If during such operations the crew demonstrates deadly hostile intent, the use of deadly force in response would be completely justified. Such operations are legal and have been conducted by the U.S. Navy and the U.S. Coast Guard for years. They have been carried out with support from other countries, including Canada. U.S. counter-drug operations should remain within this maritime law enforcement legal framework. They do not qualify as armed conflicts even pursuant to the most generous interpretation of that concept. Some may see convenience in abandoning the crucial law enforcement role at sea long performed by naval forces in favor of claiming that an armed conflict exists. But convenience does not equal legal justification, and in doing so the United States is significantly destabilizing regional security and undermining norms of acceptable state behavior.
The way to address the drug trafficking problem is not to define cartels as a proverbial nail in order to justify wielding the military hammer in response. Such an approach ignores the legal, moral, and human consequences of security overzealousness, and violates the most fundamental principle of international human rights law: the protection of human life (even the lives of suspected criminals). Instead, these interests can all be advanced by continuing to apply the widely accepted legal authority and operational means to address criminal activity at sea. This may necessitate expanding the role of U.S. naval forces in direct law enforcement operations. But the need to enhance the resources involved in such operations does not justify the leap from law enforcement to armed conflict.
Geoffrey S. Corn is the George R. Killam Jr. Chair of Criminal Law and director of the Center for Military Law and Policy at Texas Tech University School of Law. Prior to joining academia, he served as an Army officer for 21 years, retiring as a lieutenant colonel. He served one additional year as the civilian senior Army law of war advisor.
Ken Watkin served for 33 years in the Canadian Armed Forces, including four years (2006-2010) as the judge advocate general, retiring as a brigadier general. He also served as the Charles H. Stockton Professor of International Law at the U.S. Navy War College (2011-2012). Ken has written extensively on state self-defense, international humanitarian law, and human rights law issues related to armed conflict. He is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict (Oxford, 2016), which was awarded the 2017 Francis Lieber Prize by the American Society of International Law as “an exceptional published work in the field of armed conflict,” and with Geoffrey Corn and Jamie Williamson is co-author of The Law in War: A Concise Overview (Routledge, 2nd ed., 2023).
**Please note, as a matter of house style War on the Rocks will not use a different name for the U.S. Department of Defense until and unless the name is changed by statute by the U.S. Congress.
Image: Petty Officer 2nd Class Tajh Payne via DVIDS
