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Operation Southern Spear, the U.S. campaign against alleged drug trafficking small boats off the coast of several South American nations, continues unabated. But while both the public and politicians seem to have become numb to this campaign – or perhaps distracted by the seemingly endless Iran debacle - a few things have remained constant. First, U.S. military forces are killing boat crews without any effort to apprehend them. Second, this practice lacks, as it has from inception, any credible legal justification.
President Trump bragged that his administration has reduced by more than 90% illegal drug importation by sea. Like so many other bombastic or mendacious claims made by the President, there was no data or methodology provided to corroborate this alleged statistic, which is wildly exaggerated. What is more concrete is the human toll this ongoing campaign has inflicted to date. According to a recent report, at least 233 people have been killed in these strikes on 67 boats, all part of a campaign.
Even if the President’s exaggerated assertions of efficacy were accepted, and even assuming these attacks are coordinated with coastal countries like Ecuador, the inherent illegality is in no way altered. Why? Because interdicting the flow of illegal narcotics – even when the importation operation is controlled by criminal gangs – is not a war and does not justify invocation of wartime authority. It is, instead, a law enforcement problem. More specifically, the authority to attack ‘enemy’ personnel and resources with lethal combat power may be justifiably invoked only in situations of armed conflict. When the United States chose to address that problem through the lens of wartime attack authority, it forfeited any claim of legal justification.
The administration knows that, as a matter of international law, the United States may designate individuals as enemy belligerents and attack them with lethal combat power only in the context of an armed conflict. This is why from inception it has emphasized the gravity of harm to Americans resulting from illegal narcotics smuggled into the nation. Proponents of this campaign have emphasized that more Americans are killed every year by illegal drugs than were killed by the September 11th terrorist attacks. No one questions the tragic consequences of this problem. But every harm to the nation or its people does not ipso facto indicate the existence of an armed conflict. Instead, it is why and how that harm is inflicted that are decisive.
Thus, it is obvious why supporters of this campaign consistently claim the harm caused by illegal drugs means we are at war with drug traffickers: because they seek to justify invoking wartime authority to attack these boats and occupants. Doing so avoids the pesky challenge of apprehension and criminal prosecution – the normal and legally presumptive method for disabling criminal threats: the very modality used by the U.S. prior to this invalid assertion of armed conflict (and apparently one that was more effective). More fundamentally – and problematically – it seeks to validate what by any objective measure is the invalid campaign that is employs lethal force as a measure of first resort based not on the imminent threat posed by the target of attack, but instead on the assertion that target is a member of an enemy group.
The loss of 233 enemy combatants in a war – what international law calls an armed conflict – might be expected. Enemy casualties in the ongoing armed conflict with Iran are undoubtedly more substantial. But it is the context of armed conflict that makes such loss of life unremarkable. This is because in that context the customary international law principle of military necessity justifies targeting enemy personnel – members of the enemy organized armed group – with lethal force as a measure of first resort. And, unlike a law enforcement use of force, the objective of such attacks is not limited to eliminating an individual threat, but instead to bring about the submission of the enemy as a whole.
This is an exceptional use of force authority invoked by States precisely because armed conflict is considered an exceptional situation. Unlike peacetime, armed conflict involves a contest – hostilities – between the State and armed groups operating at the direction of enemy leadership. More fundamentally, the objective of that enemy group would have to be to inflict harm on the U.S. or its assets. It is that motive and conduct that distinguished the September 11th attacks from criminal gangs smuggling illegal drugs into the United States. Unlike al Qaeda, these groups do not operate with the objective of inflicting harm on the United States (it would be an odd drug dealer who wants to kill his customers) nor do they engage in hostile attacks against the U.S. or its interest abroad.
This is why State invocation of this exceptional power is supposed to be limited to situations of genuine threats to the nation from groups organized for that purpose. It is justified only when a state is challenged by the military forces of another state or by a non-state organized armed group capable of engaging in sustained combat operations. Absent such a situation, state security forces must respond to what is a criminal threat with law enforcement type rules for the use of force. Whether police, Coast Guard, or regular military forces are utilized, lethal force is justified only as a measure of last resort and only when reasonably assessed that the individual subjected to that use of force presents a threat of death or great bodily harm.
This binary use of force construct is reflected in ‘peacetime’ versus ‘wartime’ rules of engagement: use of force control measures utilized by U.S. commanders to align authority with mission requirements. During the many military operations outside the context of armed conflict – including military support to law enforcement – deadly force is authorized only in response to an actual or imminent deadly threat, the same use of force authority applicable to law enforcement officers. That means that it is the conduct of the ‘target’ offering a direct threat that triggers any use of deadly force in response. In contrast, wartime ROE authorize use of deadly force as a first resort against individuals identified as members of the enemy armed group (unless they have surrendered or been disabled by wounds or sickness). Unlike a conduct-based use of force decision, this authority is triggered by a determination of enemy status.
This shift in lethal force authority is perhaps the most significant consequence flowing from a situation of armed conflict. It is also why the existence of armed conflict is not left to arbitrary assertions but is based on widely accepted objective conditions – the so-called conflict classification test that looks at issues like the intensity of the violence, the degree of organization of the group and its ability to carry out sustained operations. That test is pragmatic and, as noted above, covers both state and non-state threats. But it is not so elastic as to allow a state to bypass the peacetime use of force constraints by simply characterizing a threat posed by criminals as an armed conflict.
Yet that is exactly what the U.S. has done to justify lethal targeting of small boats. These boats may indeed be trafficking in illegal narcotics, and the occupants may indeed be members of criminal syndicates or gangs (although there has been scant information provided to validate these claims). And those drugs may indeed be destined for the United States. But none of this indicates the existence of an armed conflict.
Sadly, the continuation of this campaign seems to have numbed the public and Member of Congress to the perpetuation of this illegality. Yet this is also a reminder of an historic legal maxim: the repetition of an illegal act shall not make it legal. When committed under the authority of the United States, it does, however, stain our national reputation and undermine our claim to stand for the rule of law.
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