For two and a half months, the Trump administration has been conducting airstrikes on small vessels allegedly engaged in narcotics trafficking in the Caribbean and eastern Pacific. The initial shock that accompanied the announcement of the first strike on Sept. 2, in which 11 people were killed, has been replaced by a sense of routine and dread, as the administration has fulfilled its promise that more strikes would follow. Indeed, they have. As of this writing, the administration has publicly disclosed 21 strikes on 22 vessels in two oceans, resulting in the extrajudicial killing—the murder—of at least 83 people, including one missing and presumed dead.
As its body count has mounted, the Trump administration has grasped to publicly defend its legal justification for the strikes. In the days following the first strike, the administration struggled to articulate a legal rationale for this extraordinary use of military force, even as senior Trump officials baselessly hinted that the boat had been targeted in self-defense. Eventually, the administration formally embraced that implausible position in a War Powers Resolution report to Congress that was long on invective and short on justification. Since then, however, the administration has staked out an even less plausible legal basis for its campaign: the existence of a non-international armed conflict (NIAC), the legal term for war with nonstate organized armed groups. Public reporting indicates that the Justice Department’s Office of Legal Counsel (OLC) issued a memo this summer claiming that the United States was engaged in a NIAC with 24 cartels and criminal organizations that have been designated as terrorist organizations.
For two and a half months, the Trump administration has been conducting airstrikes on small vessels allegedly engaged in narcotics trafficking in the Caribbean and eastern Pacific. The initial shock that accompanied the announcement of the first strike on Sept. 2, in which 11 people were killed, has been replaced by a sense of routine and dread, as the administration has fulfilled its promise that more strikes would follow. Indeed, they have. As of this writing, the administration has publicly disclosed 21 strikes on 22 vessels in two oceans, resulting in the extrajudicial killing—the murder—of at least 83 people, including one missing and presumed dead.
As its body count has mounted, the Trump administration has grasped to publicly defend its legal justification for the strikes. In the days following the first strike, the administration struggled to articulate a legal rationale for this extraordinary use of military force, even as senior Trump officials baselessly hinted that the boat had been targeted in self-defense. Eventually, the administration formally embraced that implausible position in a War Powers Resolution report to Congress that was long on invective and short on justification. Since then, however, the administration has staked out an even less plausible legal basis for its campaign: the existence of a non-international armed conflict (NIAC), the legal term for war with nonstate organized armed groups. Public reporting indicates that the Justice Department’s Office of Legal Counsel (OLC) issued a memo this summer claiming that the United States was engaged in a NIAC with 24 cartels and criminal organizations that have been designated as terrorist organizations.
While mere designation does not provide domestic or international legal authority to use force against such groups, the existence of a NIAC would, if true, trigger application of international humanitarian law and unlock its permissive framework for using force against enemy forces. Also known as the law of armed conflict or the laws of war, international humanitarian law is an extraordinary body of law that permits, among other things, the use of lethal force as a first resort against enemy fighters and the detention of those fighters for the duration of an armed conflict. This permissive framework departs markedly from the laws that govern during peacetime—domestic law enforcement standards and international human rights law—which strictly limit states’ authority to deprive individuals of their life or liberty.
But the Trump administration’s assertion is utterly nonsensical because the United States is simply not in an armed conflict with any cartel, let alone 24 of them. As has often been the case with this administration, it is approaching law as a labeling exercise; it claims extraordinary authorities by merely asserting the existence of a legal condition irrespective of the facts. This is not how the law or reality works.
The concept of a NIAC originates in the post-World War II codification of international humanitarian law in the four Geneva Conventions of 1949. The term derives from Common Article 3—“common” because it appears in each of those treaties—which established minimum standards of conduct and protection in “armed conflict[s] not of an international character” (that is, armed conflicts other than those between states). But the drafters of those treaties left the term “armed conflict not of an international character” undefined in the conventions. And it would remain without authoritative judicial definition until the U.N. Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) to adjudicate alleged war crimes committed during the wars arising from the collapse of Yugoslavia in the early 1990s.
In the ICTY’s very first case, Prosecutor v. Dusko Tadic, the court was asked to resolve the existence of an armed conflict, and in answering that question, it established what has emerged as the consensus test for NIAC. The court pronounced that NIACs exist whenever there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Subsequent cases before the ICTY and other tribunals have elaborated the so-called Tadic test into an objective, fact-intensive, two-pronged evaluation that measures the existence of a NIAC against (1) the organization of the parties and (2) the intensity of the armed violence occurring between them. Subsequent tribunals have further illuminated each of these prongs with a large set of non-dispositive signs of sufficient organization and sufficient intensity to satisfy the test. But, at bottom, the Tadic test requires hostilities between two or more opposing parties; the parties to be organized in a hierarchical, military-like manner with some degree of durability, internal discipline, and the ability to exert command and control; and hostilities that are more sustained and substantial than riots, banditry, short-lived rebellion, terrorist attacks, or other isolated and sporadic acts of violence. Fundamentally, the test seeks to distinguish violence that attends crime, terrorism, and unrest from bona fide contests of arms.
The ICTY’s case against Ramush Haradinaj et al. provides a good example of the sort of analysis necessary to establish the existence of an armed conflict. In that case, the tribunal was asked to determine a particular date on which armed violence between the Kosovo Liberation Army and the former Yugoslavia crossed the threshold of a NIAC. The trial chamber recounted a series of events, tracing out a steady escalation of armed violence. Most significantly, the court found that both parties initiated multiple hourslong clashes, one of which lasted for as long as 36 hours, and resulted individually in tens of deaths. However, it also found that the weekslong intervals between these clashes deprived the situation of the legal character of a NIAC. Only after the clashes became sustained, marked by simultaneous and geographically dispersed fighting, heavy weapons, and the flight of civilians, did the situation become a NIAC. The violence between the parties prior to the date on which the NIAC began simply occurred outside of armed conflict and outside the reach of international humanitarian law.
A Haradinaj-like analysis of the Trump administration’s claim that the United States is engaged in one or more NIACs is made difficult by its failure to release the OLC memo or even publicly identify with whom the United States is supposedly at war or the supposed affiliations of most of those killed in the boat strikes. In its episodic announcements of strikes to date, the administration has identified only two boats with specific groups—one supposedly affiliated with the National Liberation Army and the other with Tren de Aragua. Otherwise, the announcements have baldly claimed that boats or their passengers were affiliated with “designated terrorist organizations.” This lack of transparency makes it impossible to evaluate the sufficiency of organization or intensity of armed violence unfolding between the United States and the unidentified “cartels” with which the United States is supposedly at war.
Nevertheless, the Trump administration’s claim that the United States is engaged in NIACs with 24 separate entities is simply not credible for three fundamental reasons. First, narcotics trafficking is a criminal pursuit; recasting it as armed conflict reflects a basic category error in law. Second, and most significantly, the existence of a NIAC requires organized armed violence between at least two opposing parties. Unlike international armed conflicts, campaigns of one-sided violence—even if undertaken by sufficiently organized entities, employing the weapons of war—are legally insufficient to bring a NIAC into existence. In this case, however, the armed violence appears to be entirely one-sided, limited to strikes by the U.S. military against boats that are presumably affiliated with two dozen disparate cartels and criminal organizations. We have seen no reporting of any cartels launching attacks on U.S. forces in the region or at the border between the United States and Mexico or within the United States. Nor have we seen any reporting of people on the boats even attempting to engage the drones stalking them. And the Trump administration itself has told Congress that there is no risk of violence to U.S. forces in the Caribbean or Pacific conducting these strikes. It is difficult to square the fundamental character of NIAC—organized armed violence between parties—with this assessed absence of risk to U.S. forces.
Third, the one-sided violence perpetrated by the United States over the last two months, while terrible, is insufficiently intense to constitute a NIAC. Under international humanitarian law, the killing of 83 people in 21 attacks over 11 weeks is unlikely to cross the threshold of intensity necessary for a NIAC, even if those deaths resulted from mutual violence between just two parties. Here, the United States claims that the 21 attacks and 83 deaths relate to 24 separate armed conflicts, meaning that across each of these wars there would be less than one incident of violence resulting in the death of approximately three people and the destruction of one boat every three months. Even if these deaths arose as the result of armed violence perpetrated by just two opposing parties, they likely would be best described as sporadic and infrequent—the very type of violence from which armed conflict is distinguished.
The absence of one or more NIACs between the United States and the “cartels” that are “designated terrorist organizations” means that the Trump administration cannot rely on international humanitarian law’s permissive legal framework in carrying out strikes on boats allegedly belonging to those cartels in the Caribbean and Pacific. Of course, even if international humanitarian law were the appropriate legal framework, lethal force as a first resort would only be permissible as a general matter against military objectives and enemy fighters. The strikes themselves would not automatically be lawful, and the legality of individual strikes would still have to be evaluated against the law’s substantive rules.
On the bright side, the inapplicability of that body of law means that the U.S. service members conducting the strikes would not be exposed to potential liability for war crimes. Unfortunately, it also means that the legality of the Trump administration’s strikes must be evaluated under the rules of general international law, international human rights law, and domestic law, none of which furnish a justification for using lethal force as a first resort against suspected criminals. And, of course, U.S. domestic law criminalizes premediated killings in the absence of armed conflict or self-defense. Such killings are known as “murder.”
