What international law says about U.S. strikes on alleged drug boats

Key Concepts

• State of Armed Conflict: A legal concept requiring specific criteria, including an armed attack launched by an organized armed group against a state, to justify military action and the killing of enemy combatants.
• International Law of War: A body of law that governs the conduct of armed hostilities, including rules on the treatment of persons in conflict situations and prohibitions against certain actions.
• Non-State Armed Groups: Entities that are not states but engage in armed conflict, requiring a certain level of organization to be recognized as such under international law.
• Persons Out of Combat: Individuals who are no longer able to fight or defend themselves and are therefore entitled to protection under the laws of war.
• No Quarter: A declaration forbidding the taking of prisoners, which is explicitly forbidden by certain international treaties.

Legal Authority and Justification for Targeting Drug Boats

The Trump administration asserts legal authority to target alleged drug boats in the Caribbean and Eastern Pacific. However, this claim is being met with significant opposition from lawmakers across the political spectrum following a newly revealed second strike.

Second Strike and Allegations of Illegal Orders

The White House press secretary confirmed a follow-up military strike on a vessel in September. This acknowledgment came after reports from The Washington Post alleging that Defense Secretary Pete Hegsath issued an order to "leave no survivors."

Congressional Concerns and Legal Perspectives

• Republican Congressman Mike Turner and Democratic Senator Tim Kaine, speaking on CBS's "Face the Nation," expressed serious concerns.
• Senator Kaine stated, "Obviously, if that occurred, that would be very serious. And I agree that that would be an illegal act." He further elaborated that if the reporting is true, it constitutes "a clear violation of the DoD's own laws of war, as well as international laws about the way you treat people who are in that circumstance." He concluded that "this rises to the level of a war crime."

Analysis by Alan Winer, Senior Lecturer at Stanford Law School

Alan Winer, a senior lecturer at Stanford Law School and director of the Stanford program in international and comparative law, provided an analysis of the legal justifications for these attacks.

• International Law Standpoint: Winer believes the answer is "pretty clearly no" regarding the justification of these attacks under international law.
• Criteria for Armed Conflict: He explained that armed conflicts, as recognized by international law, typically occur between states or between a state and a non-state armed group. Crucially, an armed attack must have launched the war.
• Drug Smuggling vs. Armed Attack: Winer argued that "merely the smuggling of drugs... is not like what we experienced say on 9/11 when al-Qaeda carried out an attack against the Twin Towers and the Pentagon."
• Organized Armed Groups: He expressed doubt that drug smuggling gangs qualify as "organized armed groups" under the legal definition.
• Declaration of Conflict: Winer emphasized that a "state of armed conflict" is a "real legal concept with real legal criteria" and cannot simply be declared to justify killing people.

The Second Strike and Crossing the Line

• Permitted Killing in Conflict: Winer acknowledged that if one accepts the Trump administration's position of a state of armed conflict, then killing enemy fighters is permitted.
• Individuals Out of Combat: However, he highlighted that the second strike is particularly concerning because, according to press reports, the individuals were "clinging to the edge of the boat and they were no longer able to defend themselves. They were no longer able to fight."
• Obligation to Protect: Winer stated that "even if you are in a state of armed conflict, there's an obligation to basically protect to take care of persons who are out of combat, who are no longer able to fight."
• Violation of Laws of War: Therefore, even if the administration's premise of a legitimate state of armed conflict were accepted, "it's not permitted to kill participants who are no longer able to defend themselves, who are no longer engaged in combat."

"Kill Everyone" Order and "No Quarter" Prohibition

• Secretary Hegsath's Alleged Statement: Winer found it "striking" that the press is reporting that Secretary Hegsath said, "we should kill everyone."
• Treaty Violation: He pointed out that the United States is a party to an "old law of war treaty that says specifically that it's forbidden to declare that no quarter shall be given," which is precisely what "kill everyone" signifies.

Conclusion

The legal justification for the Trump administration's targeting of alleged drug boats is highly questionable under international law. The reported order to leave no survivors and the alleged actions during the second strike, where individuals were out of combat, appear to violate established laws of war and international legal principles. The concept of a "state of armed conflict" requires specific criteria that may not be met by drug smuggling operations, and even within such a conflict, the protection of those no longer able to fight is a fundamental obligation. The alleged directive to "kill everyone" directly contravenes the prohibition against declaring "no quarter."