A bombshell revelation on November 28 that the US secretary of defense, Pete Hegseth, ordered a second strike to kill the survivors of a Venezuelan drug boat targeted by US forces has shocked Congress and American citizens alike.
The US president, Donald Trump, citing Hegseth’s affirmations, has disputed these reports. Trump said Hegseth told him “he did not” give a spoken order to kill all crew members aboard the boat. “I believe him, 100%,” Trump added.
But US lawmakers have pledged to investigate the strike. Mark Kelly, a Democrat senator who recently urged military members to refuse unlawful orders, declared: “We’re going to have a public hearing. We’re going to put these folks under oath. And we’re going to find out what happened.”
Whatever the true nature of this incident, one fact is inescapable: there is no credible basis by which Trump’s military campaign against Latin American drug vessels is lawful under either US or international law.
For the past two months, the Trump administration has been flexing US muscle through a campaign of deadly strikes on alleged drug-carrying vessels in the Caribbean and eastern Pacific. At least 20 strikes have so far killed upwards of 80 people since early September.
With the recent addition of a US aircraft carrier to the substantial military assets deployed to the region, the campaign appears to only be getting more deadly. Yet, despite his insistence that Venezuelan criminal networks commit crimes “with impunity”, it is Trump who is acting with disregard for the law.
The US military reportedly carried out a follow-up strike on a suspected drug vessel in the Caribbean.
Undermining legal principles
Trump’s first term foreshadowed his transgressive behaviour regarding legal constraints on the military, a subject we have examined in depth elsewhere. Among other actions, he granted clemency to multiple US service members accused or convicted of war crimes and spoke enviously of enemies who “chop off heads” while US forces are bound by rules of engagement.
This trend has accelerated in Trump’s second term with efforts that are culminating in a broad-scale attack on international and domestic law in the unfolding armed campaign in the Caribbean and eastern Pacific. These unilateral strikes on drug vessels go further than any US president in recent history in undermining fundamental legal principles, breaching long-established rules and norms in three key ways.
First, the Trump administration’s strikes against drug vessels appear to flout the international legal prohibitions against extrajudicial killings. The International Covenant on Civil and Political Rights, a foundational treaty of international human rights law and one to which the US is a party, prohibits governments from arbitrarily depriving individuals of life.
Customary human rights law, which binds US government actions and is considered part of US law, also prohibits the killing of individuals without legitimate judicial processes. Customary law develops over time through a general acceptance of certain behavioural norms by states and is distinct from written treaty law.
Summary executions that happen outside the confines of domestic and international law can be considered as murder. It appears the Trump administration is ordering US service members to commit such offences as part of its Latin America campaign.
Second, the Trump administration is executing these strikes outside the legal exceptions that permit military force under the laws of war. Under these laws, soldiers receive a special exception during armed conflict to kill without facing judicial consequences.
Known as the “combatant’s privilege”, it is what keeps soldiers from going to jail for killing when a war ends. Vitally, however, this privilege extends only to combatants who kill other combatants during wartime.
The White House has provided no evidence that these alleged drug smugglers on the high seas are “combatants” instead of mere criminals. And despite the clear criminality of Latin American drug cartels, the administration has also provided no evidence that they are “organised armed groups” or have conducted protracted or intense violence against the US.
These are the conditions that mark a state of “armed conflict”, which triggers the laws of war and permits lawful military force against terrorists, insurgents or other armed groups.
Not only do these attacks transgress bedrock legal rules, they may expose US service members to criminal prosecution in the years ahead. Indeed, concern for the legality of the strikes reportedly led Admiral Alvin Holsey, commander of the military command responsible for Latin America, to announce in October that he would be giving up his position a year early.
Giving up such a high-ranking command is extremely unusual in US military practice, signalling the extraordinary and troubling nature of these strikes.
Third, much as the administration has disregarded international law, it is probably breaching domestic law as well. The strikes on drug smugglers appear to violate both US federal and military legal codes outlawing murder, including murder on the high seas.
Under the War Powers Resolution, any military action during hostilities must also be reported to Congress. The president then has a 60-day window after which US military force needs to be authorised by Congress or halted. The Trump administration has essentially rejected the constraints of the War Powers Resolution altogether.
In an October letter to Congress, Trump argued that because airstrikes on alleged drug runners are not “hostilities”, War Powers Resolution restrictions do not apply. With the acceptance of the quiescent Republican-led Congress, this has stripped the War Powers Resolution of much of its ability to constrain executive force.
Trump’s strikes in Venezuela represent another example of his rejection of any constraint on his powers as commander-in-chief. He has previously praised the virtues of torture and has declared the Geneva Conventions, which set rules for how people are to be treated during times of war, to be a “problem”. Trump is now putting his disregard for law into action.
It remains to be seen where such disregard will take the US military. However, one thing remains certain: in ordering this campaign of armed attacks, the Trump administration is rejecting the rule of law outright. Trump’s leadership in this campaign is, simply put, a military agenda defined by impunity.
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
