On Friday, May 29th, the Trump Administration launched yet another military attack against an alleged drug boat, killing three men, which puts the overall death toll from these military strikes against boats in the Caribbean and Eastern Pacific Ocean to at least 202 people. The Trump Administration began these military attacks in early September.
The Trump Administration’s policy is that the U.S. is at war
with Latin American narco-traffickers, some of whom the administration claims
are designated Foreign Terrorist Organizations. However, Congress has never
legislated an act of war or an authorization of military force pertaining
specifically to these military strikes against alleged drug boats.
The legality of these lethal military attacks is highly
contested. Typically, the Coast Guard would interdict these vessels, search
them for drugs, and if any were found, seize them, detain the traffickers on
board, and turn them over to federal law enforcement who would arrest them. The
traffickers would then be prosecuted and face trial in a federal Court. The Coast Guard already does this routinely.
This is how our law enforcement system normally functions.
The Trump Administration has radically departed from this norm, and is choosing
to kill people, denying them due process of law.
Congressmen Jamie Raskin (D-MD) and Ted Lieu (D-CA) wrote a
letter to then-Attorney General Pam Bondi back in December about these military
attacks on alleged drug boats, stating “the entire Caribbean operation appears
to be unlawful.”
The letter pointed to the first attack on September 2 where
the U.S. military initiated a fatal second strike on two shipwrecked members of
the boat’s crew, potentially on the order of Defense Secretary Pete Hegseth. The
Congressmen note that “The deliberate targeting of these two individuals is a
blatant violation of the Department of Defense’s Law of War Manual, which
clearly states: “[p]ersons who have been incapacitated by ... shipwreck are in
a helpless state, and it would be dishonorable and inhumane to make them the
object of attack.” The letter’s authors also state that an order to kill
survivors constitutes a war crime and request “that the Department of Justice
(DOJ) open a criminal investigation into whether these strikes violated either
the War Crimes Act or the federal murder statute.”
The Trump Administration claims it is in a Non-International
Armed Conflict (NIAC) with narcotraffickers, which ostensibly justifies its use
of lethal force against the alleged drug boats.
However, Michael Schmitt, Professor of International Law at
the University of Reading, Tess Bridgeman, Senior Fellow and Visiting Scholar
at the Reiss Center on Law and Security at NYU School of Law, and Ryan Goodman,
Professor of Law at New York University School of Law, challenge this position
in an article published in Just Security.
The authors note, “… hostile action using military means has
been engaged in only by the United States, not by any cartel or criminal gang
against us. The gangs and cartels are involved in criminality when they are
trafficking drugs, to be sure, but they are not organized militarily to engage
in military operations.” They argue that “to reach the threshold for a NIAC,
the conflict situation in question must be military in character.” The authors go on to assert that “…in the
absence of an armed conflict, whether international or non-international, the
applicable international law governing the targeting of boats with people
aboard is international human rights law (IHRL). Under IHRL, life may not be
taken by a State “arbitrarily…””
The authors also point to Article 17 of the Narcotics
Suppression Convention, to which the U.S. is a party, which “provides
well-established procedures for the interdiction of suspected drug smuggling…it
cautions that “the Parties concerned shall take due account of the need not to
endanger the safety of life at sea.” The authors assert, “there is a robust
international law framework for interdicting drugs at sea in place, and it does
not include the use of lethal force.”
The authors conclude that there exists no armed conflict between
narcotraffickers and the U.S. Military and because of this, the law of armed conflict
does not apply. Instead, international human rights law governs the U.S.
Military’s operations. “The law does not allow for the use of deadly force
except in situations where it is employed to safeguard life,” the authors
write, “Moreover, as counterdrug operations, there is no legal basis for using
deadly force during them except in situations of defense of self or others…These
strikes conducted to date are clear violations of U.S. obligations under
international human rights law (and may also amount to crimes, including
murder, by some of those involved under the domestic law of States having
jurisdiction over the offenses).”
Also, the narcotraffickers staffing these boats do not
qualify as an “Organized Armed Group,” (OAG) which the U.S. would be permitted
to target under the Law of Armed Conflict. “…almost none of the cartels against
which the United States is using force qualify as an OAG, “ the authors write, “they
are not organized to engage in military-like operations, are not armed to do
so, and have conducted no armed operations against U.S. forces. On the
contrary, their organization and activities are those of a purely criminal
organization, which at times engages in violence, but not to fight against the
United States in any systemic way.”
The authors further conclude, “there is no justification
under either international human rights law, the correct legal framework, or
the law of armed conflict, the wrong one, to target the boats or the people on
board. The [Trump] administration’s justification for conducting the strikes is
a house of cards, unable to withstand scrutiny.”
Meanwhile, a significant proportion of U.S. public opinion remains skeptical of these lethal strikes against alleged drug boats. According to an American Civil Liberties Union/YouGov poll, 42% of respondents strongly disapprove of the U.S. Military’s strikes on alleged drug boats and 10% somewhat disapprove; 21% strongly approve and 16% somewhat approve. 69% of respondents think that the Trump Administration has not clearly shown evidence to the public justifying such strikes.
According to a Reuters/Ipsos poll, only 29% of Americans
support using the U.S. military to kill suspected drug traffickers without a
judge or court being involved, while 51% were opposed to the killings of drug
suspects.
27% of Republicans in the poll opposed the strikes, while 58% supported them, with the rest unsure. Three quarters of Democrats opposed the strikes compared to one in 10 who supported them.
The Trump Administration, which is eschewing standard drug
interdiction methods in the Caribbean and Eastern Pacific, appears to be on
unsound legal ground with these lethal military strikes against alleged drug
boats. These aggressive, extrajudicial strikes which result in killing people are
also not popular with much of the U.S. public. The legal debate as cited
previously by both Congressmen and the legal experts raises the question
whether the U.S. Military leadership responsible for ordering these lethal strikes
could be charged, at some point, with murder.
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David Fine
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