Were the Lethal Strikes Against Drug Boats Legal? (Part II)
In a previous post, I discussed the legality of the Trump Administration lethal attacks on Venezuelan drug boats, and noted that these strikes are only permissible under International Law if the U.S. is engaged in an “armed conflict” with the organized drug groups. This is the legal standard to apply the rules of the Law of Armed Conflict instead of the normal rules that govern law enforcement activity. I expressed my view that there is not an armed conflict that would justify use of military force. Since I posted this analysis, the Trump Administration has given Congress notice of its legal position on the strikes, and this post will address this justification.
In a notice sent to Congress, the Trump Administration justified using the law of armed conflict framework by asserting that the U.S. is an “non-international armed conflict” with drug control organizations that they label “terrorist” organizations, and that those killed were legitimate targets because they were “unlawful combatants.”
As I will detail below, there are at least two major problems with this justification. First, the standard for “armed conflict” has not been met. Second, even if there is armed conflict, it is doubtful that the personnel on the boat were legitimate military targets unless they were directly engaged in hostilities.
While the Law of Armed Conflict developed in the context of State versus State armed conflict—known as international conflicts—after World War II, the international community recognized that there are also war-like conflicts that involve non-State actors, and applied the Law of Armed Conflict to these so-called “non-international armed conflicts.” Examples of such conflicts in recent years include numerous civil wars as well as our armed conflict with al Qaida and other terrorist groups.
The key to whether the Law of Armed Conflict applies is whether the threshold of armed conflict or hostilities has been crossed. A “Non-International Armed Conflict” exists when there is “protracted armed violence between government authorities and organized armed groups or between such groups within a State.” The key agreement that governs this issue, the Additional Protocol II, explains that armed conflict “does not apply to situations of internal disturbance and tension, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, which are not considered armed conflicts.” The international tribunals that have focused on this issue have emphasized that non-international armed conflict requires violence that is continuous and of high intensity, looking at such factors as the number, duration and intensity of individual confrontation; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones.
By and large, the violence by and against criminal organizations does not meet this test. This violence is too sporadic and isolated. West Point’s Lieber Institute has a very useful analysis of when criminal organizations can be said to be armed conflict with a State. As the Lieber Institute notes, most criminal organizations “are mainly economic actors; they do not aim to supplant existing governments. Instead, their objective is to pursue illicit business” that “engage in armed confrontations against State forces only when it is strictly necessary to run their criminal activities.” Criminal organizations in these circumstances may be threats to the State, but their limited engagement in violent activity does not cross the threshold for armed conflict.
There are, as the Lieber Institute notes, circumstances when organized criminal organization do cross this threshold. In Colombia, for example, the leading anti-government guerilla group, FARC, used drug trafficking to finance its political struggle.
While drug cartels certainly use violence in their operations, they are far removed from FARC. They are traditional criminal organizations with an economic motive who use violence when strictly necessary to protect their drug trafficking. The level of violence is simply not at the intensity sufficient to find armed conflict.
Does the fact that the Trump Administration labeled these groups terrorist organizations make a difference? No. The law looks at activity, not labels. The Trump Administration cannot short cut the law by using labels. Otherwise it could justify a lethal attack on any group simply by labeling.
Even if the drug cartels are engaged in armed conflict with the U.S., this does not mean that the lethal attack against the drug boats was lawful. Under the Law of Armed Conflict, only the members of a drug cartel that are directly engaged in the conflict are lawful military targets. This rule is the result of the Law of Armed Conflict’s prime requirement: that only military members, not civilians, be targeted by violent action. For State militaries, the rule is simple: if you are a member of the Armed Forces, you can be targeted. For non-governmental organizations such as criminal organizations, this is a hard distinction to make. Many member of drug cartels never handle a weapon and instead are involved in other, non-violent missions of the organization. There is a great deal of debate as to how to distinguish lawful targets, but most have adopted a test promulgated by the International Red Cross. The Lieber Institute has a good summary of this approach:
Lastly, the ICRC, in its Interpretative Guidance on the Notion of Direct Participation in Hostilities, suggests a solution that has been widely accepted by scholars and practitioners alike. According to the ICRC, members of the military wing of ANSAs are those who exercise a continuous combat function (CCF). This categorization encompasses individuals whose specific function in the group is “to continuously commit acts that constitute direct participation in hostilities.” The difficulty comes when determining who, in practice, has a CCF.
The ICRC in its Interpretative Guidance posits that “[c]ontinuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-state party to an armed conflict,” while “[i]ndividuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities . . . remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces.” In practice, determining who performs a CCF could be deduced from a number of indicia, such as if the individuals concerned were trained by the group, if they received weapons, and if they were trusted with specific targets.
Under this test, it is not at all clear that the personnel on the boat qualify as legitimate military targets. Their rule does not seem to be to engage in violent activity at all, which under the ICRC approach would make them off-limits for lethal targeting. This, of course, is a factual question that requires more information: were those on the boat armed? Trained to use violence? Regularly engage in violence? It is possible that the test is satisfied, but from what I know about cartel operations, I am doubtful. More likely the unfortunate souls on the boats were low level couriers who never engage in violence.
So where does this leave us? Geoffrey Corn, a highly respected expert of the Law of Armed Conflict who had a long career as an Army JAG gave the best summary of my views in the New York Times:
Geoffrey S. Corn, a retired judge advocate general lawyer who was formerly the Army’s senior adviser for law-of-war issues, said drug cartels were not engaged in “hostilities” — the standard for when there is an armed conflict for legal purposes — against the United States because selling a dangerous product is different from an armed attack.
Noting that it is illegal for the military to deliberately target civilians who are not directly participating in hostilities — even suspected criminals — Mr. Corn called the president’s move an “abuse” that crossed a major legal line.
“This is not stretching the envelope,” he said. “This is shredding it. This is tearing it apart.”