Why the U.S.’s boat strikes are illegal and should concern us all

Wilder’s wife insists that he stay away from Lake Maracaibo. That he should look for another job. That fishing is too dangerous. Wilder, who has been fishing for 13 years, disagrees. Of course, if this is his job, why should he look for another one? Nevertheless, his wife suffers thinking about how the Caribbean Sea experiences rough waters, and not because of the tide. The U.S. government has deployed military forces in the area, even though there is no serious military threat. On the contrary, small boats like Wilder’s are now afraid to go out fishing for fear that one of the U.S. military’s strikes will take their lives. 

According to the U.S. government, these actions are intended to combat “narco-terrorism.” Tensions are rising between Venezuela and the U.S., causing alarm: Provea in Caracas and WOLA in Washington have written in more detail about these dynamics. The strikes have also generated tensions with Colombia, as they spread to the Pacific, further shaking relations between Bogotá and Washington. 

In this blog, we provide a legal analysis of these attacks at both the constitutional and international levels and outline the possible consequences of this approach for the region. These extrajudicial executions are unilateral actions that threaten the sovereignty of Latin American and Caribbean countries, but even more seriously, they violate the right to life of people like Wilder. 

Trump is overstepping constitutional limits 

The Trump administration maintains that its attacks on ships in the Caribbean and the Pacific are legal. Without providing evidence, it claims that the ships were operated by Venezuelan cartels, such as the Tren de Aragua, which it designated as a foreign terrorist organization (FTO) by executive order, and that they were transporting drugs. President Trump allegedly notified Congress that the United States is in armed conflict with drug cartels and that these ships were carrying “unlawful combatants.” 

He argues that he is taking action under his powers as commander-in-chief, under Article II of the Constitution, and as a defensive measure. But the scope of the president’s constitutional power to use force is the subject of intense controversy. In Article I, Section 8, the Constitution explicitly grants Congress the power to “declare war” and “make rules concerning captures on land and water.” But even so, in practice, the executive branch has also ordered military operations on several occasions over the years. So it’s legally confusing, as what’s written and what’s done in practice tell different stories. In this particular case, legal experts argue that the president “lacks authority without congressional approval, as the Constitution grants Congress the power to declare war,” and Trump’s actions are being carried out in a logic of war, without explicit limits and with an opaque explanation as to their legal basis and the facts surrounding his recent attacks. The dynamics of armed conflict do not hold up. The closest example to this situation (and one that is not really very similar) is the U.S. “War on Terror” against Al-Qaeda and its allies, who indeed declared war on the U.S. and that was authorized by Congress in a 2001 resolution that remains in force.

Additionally, and no less vitally, it has not provided a legal justification that clearly and sufficiently links three distinct phenomena: drug trafficking, terrorism, and armed conflict. First, the gap between drug trafficking and terrorism. Terrorism has no established definition under international law. It is, above all, a definition that to date has been political in nature, not legal. But even under U.S. domestic law, drug trafficking does not fit the definition: terrorism involves “violent acts or acts dangerous to human life” that violate the law and “appear to be intended– (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” A person who traffics drugs for economic reasons would not meet this definition because it is not clear that it is a violent or dangerous act and the required intent would be lacking. So “narco-terrorism” is, above all, a concept that until now has only been used in the political sphere, not the legal sphere.

But even if a person is part of an FTO, this designation does not authorize the use of lethal force under domestic or international law. Rights advocates in the U.S. have requested access to the legal opinion issued by the U.S. Office of Legal Counsel (OLC) on lethal strikes because it is likely that their justification did not have a solid legal basis. 

Not only are these attacks disproportionate, they are illegal under international law

Under international law, there is no justification for these attacks. According to the law of jus ad bellum, reflected in Article 2(4) of the United Nations Charter, the right to use force in self-defense is triggered by the lack of alternative methods to neutralize an immediate threat. But there is no evidence that these ships posed an immediate threat of serious injury or loss of life. Clearly, based on the available information, any claim of self-defense is unfounded.

A more feasible response in line with precedent would have been to interdict, arrest, and prosecute these individuals, who are suspected of drug trafficking and who entered U.S. territorial waters. For those outside U.S. territory, the U.S. Maritime Drug Law Enforcement Act (MDLEA) is a law that allows for the prosecution of individuals detained outside U.S. jurisdiction and even within the territorial waters of other states. But U.S. courts are divided over whether this extraterritorial effect violates the Constitution. So in some cases, the only legal option would have been to wait for the vessels to reach national waters to intercept them and arrest the individuals.

All individuals, regardless of whether they are accused of a crime, have rights that must be respected, including the right to life and due process, which are recognized in the International Covenant on Civil and Political Rights, ratified by the U.S. When a person is accused of committing a crime, they are brought to trial and have the right to legal defense. Under international human rights law, law enforcement officials, including military personnel, must attempt to minimize harm and preserve human life. Lethal force may only be used when strictly unavoidable to protect against an imminent threat of death or serious injury. 

Defining whether or not there is an armed conflict in this case is crucial, as it determines whether international humanitarian law (also known as the laws of armed conflict) is an applicable legal framework. Under IHL, the lethal use of force and the capture of enemy combatants without due process are permissible.

However, “according to the well-established understanding of the preconditions for a ‘noninternational armed conflict,’ it is necessary (at a minimum) (i) that the non-State entity is an “organized armed group” with the sort of command structure that would render members targetable on the basis of their status because they’re subject to commanders’ direction and control and (ii) that the organized armed group has engaged in armed violence against the State that is of some intensity . . . and that has been protracted.” In this case, there is no evidence that a drug trafficking group has engaged in intense, protracted armed violence against the United States. Trump has not even specified the names of the cartels involved in the alleged armed conflict, nor has he revealed the criteria he has used to decide whether someone is sufficiently linked to a cartel to be considered a target. 

A foreign policy of force based on illegal premises

Concerns about organized crime, its threats to security, and its connections to authoritarian regimes are legitimate. Part of the support these actions have received from some groups stems from a perception that other approaches to curbing these dynamics have failed. However, their effectiveness is questionable not only because they violate international law, but also because they harm those caught in the crossfire, such as Wilder and his wife. That this is happening at a time of escalating tensions between governments raises alarm bells about the aims of this illegal operation. It is impossible not to think of a modern big stick policy supported by false legal theories, which negotiates little and intimidates more. This type of foreign policy results in violations of international law and could lead the region into tremendous uncertainty. 

It could even mean an even more rapid deterioration of international dialogue. Validating the illegal position of the U.S. government also means validating the narrative that Trump has sought to impose since he became president: that the United States continues to be the power that defines (even by force, in violation of the law) global geopolitics. A regional approach to dialogue and sovereignty is essential to guaranteeing people’s rights.

To reiterate the words of Sarah Yager, Washington Director at Human Rights Watch, “The problem of narcotics entering the United States is not an armed conflict, and U.S. officials cannot circumvent their human rights obligations by pretending otherwise.” We cannot accept these flawed legal theories that lead to the loss of civilian lives. Furthermore, there are valid criticisms that drug trafficking is not the focus of these actions by the U.S., but rather a pretext for other political and economic objectives of Trump and his administration. 

Wilder deserves to continue his work as a fisherman in peace. Wilder’s wife deserves to live in peace, knowing that her husband can return from work alive. Denouncing these actions, calling for a de-escalation of tensions in the region and for the United States to respect the human rights of all people, is and will continue to be essential.