On Sept. 2, U.S. President Donald Trump ordered the sinking of an outboard motor-powered, open boat somewhere in the Caribbean, killing 11 people. The Trump administration claims that the boat departed from Venezuela and was operated by Tren de Aragua, a criminal organization that the United States designated as a foreign terrorist organization in February. Rather than interdicting and searching the vessel, then arresting its occupants if evidence of drug smuggling were discovered—the approach that the United States normally uses to counter narcotics trafficking at sea, which is the approach required by law—the Trump administration chose to kill all those aboard. And it has promised more such killings to come.
Responsible states do not kill people intentionally without a legal basis. While one might debate the source in international law, human beings clearly enjoy a right to life, and when a state takes a life, it must have some legal basis for doing so. As W. Hays Parks wrote nearly 30 years ago with respect to the U.S. prohibition on assassination, “In peacetime, the citizens of a nation—whether private individuals or public figures—are entitled to immunity from intentional acts of violence by citizens, agents, or military forces of another nation.”
Of course, there are legal bases for killing individuals in certain circumstances—self-defense is one; the existence of an ongoing armed conflict is another—but alleged narcotics trafficking is not. Moreover, whether in peace, war, or extremis, the circumstances in which a state may use lethal force are defined and limited by law, and they are triggered by the existence of particular facts.
Thus, the Trump administration’s deliberate choice to strike the boat is not just a sea change in U.S. counternarcotics operations, nor an effort to convert the rhetorical war on drugs into a literal one—potentially with Venezuela.
Rather, it represents a more fundamental and dangerous shift. By relabeling narcotraffickers as “terrorists,” by striking the boat without a legal rationale, and by celebrating these actions in its rhetoric, the Trump administration has articulated its desire to treat alleged drug smugglers as simply outside of the law, neither deserving nor entitled to legal protections. That would mark an extraordinary return to a long-discarded concept of outlawry, a form of ostracism that deprives individuals of any legal protections and is fundamentally irreconcilable with rule of law.
In 1863, at the height of the Civil War, the U.S. Army’s Lieber Code offered an unambiguous judgement on this approach:
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor … on the contrary, it abhors such outrage.
In the days following the strike, the Trump administration decided that it had killed the 11 people aboard the boat in self-defense. The Trump administration’s 48-hour-later War Powers report—its first and materially deficient formal justification for the strike—claimed that “drug trafficking cartels. … have evolved into complex structures with the financial means and paramilitary capabilities needed to operate with impunity, engaging in violence and terrorism that threaten the United States and destabilize other nations in our own Hemisphere.”
Due to “the inability or unwillingness of some states in the region to address the continuing threat to United States persons and interests emanating from their territories,” the report continued, “we have now reached a critical point where we must meet this threat to our citizens and our most vital national interests.”
While self-defense is a legal basis for using force, the available facts do not support that justification here. States are imbued with an inherent right to self-defense in international law that may be exercised individually or collectively. But, as in domestic law, self-defense is not a limitless excuse to use force. Instead, under the U.N. Charter, the right is triggered only by an actual or imminent “armed attack,” and the force used in defense must be both necessary and proportionate to the threat justifying its use. Additionally, a state using force in self-defense must “immediately report” such an invocation to the U.N. Security Council through so-called Article 51 letters.
Even if the individuals aboard the boat who were killed on Sept. 2 were members of Tren de Aragua, and even if Tren de Aragua’s activities rose to the level of an armed attack on the United States (or another state), it is difficult to see how the United States’ strike could satisfy the necessity or proportionality requirements of self-defense. In former Secretary of State Daniel Webster’s famous formulation, self-defense is lawful when its “necessity” is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
But in this case, there appears to have been a choice of means and plenty of opportunity for deliberation—to say nothing of the absence of overwhelming need. The boat was in international waters and, consequently, far from U.S. shores. It was under active U.S. surveillance. And, perhaps most damning, Secretary of State Marco Rubio has indicated that the United States affirmatively chose to destroy rather than stop the boat (and arrest its passengers) out of frustration that routine interdiction has insufficiently stemmed the tide of narcotics smuggling.
Nor is the claim of collective self-defense, invoked in a statement by White House spokeswoman Anna Kelly, likely to save the United States’ strike from illegality. Collective self-defense—one or more states’ defense of another state suffering an actual or imminent armed attack—requires the satisfaction of the same requirements as individual self-defense as well as a request for assistance from the state suffering the armed attack.
As the International Court of Justice opined in the “Case Concerning Military and Paramilitary Activities” (Nicaragua v. United States), “It is … clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation.”
In this case, there is no public indication that another state has asked the United States to defend it from Tren de Aragua. Of course, it is entirely possible that such a request was made through confidential, diplomatic channels. Still, the fact of such a request would ordinarily become public through an Article 51 letter, but the United States has thus far failed to submit one to the United Nations, and its War Powers report merely alludes vaguely to “[f]riendly foreign nations” that have been suffering significant losses of life due to organized violence at the hands of the groups designated as terrorist organizations.”
Alternatively, the Trump administration could attempt to justify the strike as lawful under the less restrictive law of armed conflict. However, this would require the existence of an armed conflict, and it would still require the U.S. government to abide by the relevant rules. Even in war, drug smugglers would still be civilians, not direct participants in hostilities. And the intentional killing of civilians during armed conflict is a war crime.
There is also another risk in the United States’ claiming the mantle of war when it comes to Tren de Aragua. In defending its March invocation of the Alien Enemies Act in the context of deporting immigrants, the Trump administration has argued that Tren de Aragua is so entwined with the government of Venezuela as to be an agent or alter ego of Venezuela. If the Trump administration is right, then Tuesday’s strike would constitute an attack on Venezuela as well, putting the United States and Venezuela in a state of international armed conflict. That, in turn, would expose U.S. armed forces to lawful attacks by Venezuela’s military—an unwelcome eventuality that portends further escalation into a war of choice that is presently unauthorized by Congress.
Whatever the geopolitical consequences, the Sept. 2 strike represents a terrifying precedent. The administration’s post hoc rationalization and dubious claim of self-defense, its unprecedented portrayal of narcotics traffickers as not just terrorists but also enemies to be killed on sight, and its disdain for the distinct requirements and limits that accompany disparate legal frameworks suggest a willingness to treat certain categories of individuals as outside legal protection.
If the president can dispense with the law and its limits simply by calling one man a “narcoterrorist,” then he can proclaim anyone an outlaw. As the U.S. Army recognized a century and a half ago, murders carried out by any authority under this rationale represent “relapses into barbarism.”