Effective Opposition to Summary Executions in an Escalating Phony War at Sea

President Donald Trump’s attacks on small boats in the Caribbean and Pacific began on September 2, 2025.  To date, 87 people have been killed in 23 incidents, all on the high seas. The President has justified the killings by labeling the individuals involved “narco-terrorists” and linking his policy to the terror wars of his predecessors. International lawyers have weighed in extensively against the attacks. (See, for example, the UN High Commissioner for Human Rights here; UN Special Rapporteurs, here; a compilation of posts at JustSecurity here; a Lawfare post here, a Center for Ethics and the Rule of Law (CERL) post, and my own early assessments, here and here.)

U.S. Secretary of War Pete Hegseth has promised the attacks will continue along with other unlawful armed action. On December 10, the U.S. seized an oil tanker off Venezuela’s coast.   It is important, therefore, to continue the criticism and to do so effectively. When the U.S. began its “global war on terror” in 2001, there was also significant legal opposition to killings beyond armed conflict hostilities, including by the U.S. Air Force and UN Special Rapporteurs (see discussion here). That opposition faded over time. The law protecting the right to life never fades but respect for it does, to the point of providing no pull to compliance when Trump gave his order to kill.     

This is the moment to bring renewed, sustained attention to the law. It is not a time to try to defend the past by teasing out the factual differences between Bush’s or Obama’s “war on terror” versus Trump’s (see attempts here and here). Members of the U.S. Armed Forces are being advised to disobey unlawful orders to kill, but they may well not see the clear distinction between the terrorism suspects they are killing today in Somalia in the old terror war and those in the Caribbean and Pacific. It is time to focus on the actual principles governing the use of lethal force, which do not include the category “terrorist”. 

Focus on the Future

Gabor Rona is on solid ground when he writes that “the legal abuses of the Bush, Obama, and Biden administrations form a foundation upon which the Trump policy is built     ”. He was not surprised when Trump invoked the “flawed, but long-standing and deeply embedded justifications and practices of the United States in the post-9/11 era.” He and I may, however, disagree about a need for “acknowledging” those connections at this point. Criticizing the old terror war justifications had only modest effect. A new approach is needed that will maintain the legal consensus against the strikes and in support of the law against war for the next U.S. presidential administration.     

An effective approach for maintaining consensus is especially urgent as attempts to try to support Trump emerge. Past justifications of terror war must be left behind but acknowledgement of error is not necessary. It is enough to move to accurate interpretation in light of new circumstances. The “past exonerative” mode provides a way of referring to past positions as in      error without the need to spell out why or who is responsible. The aim is accurate interpretation now – to save lives and prevent a deeper slide to lawlessness.  

Already, prominent international lawyers are supporting the Trump attacks. James Kraska and Pete Pedrozo, international law professors at the U.S. Naval War College, lay out a case not only for the right to fire missiles at small boats but for an expanded war throughout the Caribbean region against criminal cartels. They reject the Nicaragua case’s holding that the type of violence typically used by criminal organizations does not implicate the United Nations Charter right of self-defense. They assert that the court was wrong and that the U.S.’s position of 30 years is right that the “‘inherent right of self-defense potentially applies against any illegal use of force.’ Criticism of the administration’s use of force against the cartels is really about a rejection of the [30-year-old] U.S. position on the law of self-defense”. At least this analysis offers no defense to a U.S. war aimed at regime change in Venezuela to gain control of the country’s oil. (See the views of Richard Haass, here).

The situation in the region is leaving states vulnerable to accepting U.S. military operations and adopting the Kraska-Pedrozo rationale to justify it. Some would even welcome an invasion of Venezuela. The challenge from organized crime is overwhelming. The offer of military help from the U.S. may seem like the only option available to save their countries. Several are now actively participating with the U.S. in the attacks on suspected drug boats. Trinidad and Tobago is accommodating the U.S. naval operations against the boats, allowing drone launches from its territory and providing other cooperation. The Prime Minister has said she wants to see all drug traffickers “die violently”. The Dominican Republic is offering similar assistance. Grenada is considering doing so. 

Providing continuing, clear analysis on the law against these killings and other uses of force is imperative, as is providing information on the lawful way to respond to high levels of violent criminality that hinder democracy and the rule of law.

Respecting the Right to Life

Until September 2, the U.S. was pursuing drug trafficking suspects in compliance with international law. The United States Coast Guard, in cooperation with states in the region, used law enforcement techniques for gathering evidence against traffickers to aid lawful detention and prosecution. If the evidence warranted, boats were stopped, boarded, and brought to ports for further criminal proceedings in line with due process. If a boat attempted to flee or in other respects resisted arrest, the Coast Guard used police level force.

Complaints have been made and reached Trump that the law enforcement approach was ineffective. Too few suspects were being caught. So, citing baseless statistics of deaths in the U.S. from drug overdoses, Trump moved to a war footing. He had no reason to think military force would prove more effective than law enforcement. Law enforcement is effective when paired with responses to the problems that give rise to organized crime — weak economies, often climate-ravaged. Building legitimate economies and supporting governance reform works. Perpetrating high profile, extrajudicial killing at sea is modeling the very lawlessness states wish to remedy. Obama came to realize this in the post-9/11 terrorism context. He ended the use of military force beyond armed conflict hostilities in 2013. The United Kingdom carried out its only counter-terrorism military strikes in 2015. France ended a longer run of attacks in 2021, after killing dozens of people at a wedding celebration in Mali. 

The International Covenant on Civil and Political Rights sets out the fundamental principle in Article 6 on the right to life: “Every human being has the inherent right to life. This right shall be protected by law.  No one shall be arbitrarily deprived of his right to life.” The arbitrary deprivation standard depends on the context of the taking of a life. In the absence of armed conflict hostilities or a right under Article 51 of the Charter to use military force, government authorities may only use lethal force “when strictly unavoidable in order to protect life”. There is no right in peacetime to ever risk a bystander’s life. Police and military operate under law enforcement principles, and the governance on the use of firearms does not allow for “collateral damage”. This means bombs and missiles are prohibited.

The unintentional killing of civilians and right to use of higher firepower weapons are part of the law governing the use of force in armed conflict hostilities. Hostilities are the actual exchange of fighting that must exist for a situation to meet the definition of armed conflict. International law    defines an armed conflict as the exchange of intense armed fighting by two or more organized armed groups that lasts for at least 24 hours. The intentional killing of enemy fighters is permitted in such situations. Regular members of a state’s armed forces may be killed as well as civilians who are directly participating in hostilities. There have been  no hostilities in the Caribbean or Pacific during the period under review.

Trump himself has emphasized the right to attack the boats as acts of self-defense, rather than as part of hostilities. Under the United Nations Charter and the jurisprudence of the International Court of Justice, a state may use force in self-defense if responding to an armed attack by a sovereign state. The attack must be sufficiently grave to give rise to the right. It must be more than the force of a mere “frontier incident”. Just as important, even when a sovereign state is the victim of a si  gnificant armed attack, the response must be necessary to secure the lawful defensive purpose and proportionate to the initial international wrong. Trump’s attacks meet none of these conditions. 

The administration has produced a classified legal memo to make its case among the military and civilians who must carry out the policy. The New York Times has reported that the secret memo concludes “that suspected cargos of drugs aboard boats are lawful military targets because cartels could otherwise sell them and use the profits to buy military equipment to sustain their alleged war efforts”. International lawyers have the responsibility to prevent such assertions from becoming accepted as law. Doing so may well bring forth a renaissance of accurate understanding of law against force and an end to 25 years of “war on terror” and wars for regime change–by the next U.S. administration.