On Saturday 15 November, the US destroyed another boat allegedly involved in drugs trafficking on the high seas. This strike took place in the eastern Pacific – the 21st such attack the US has carried out since September, there and in the Caribbean. Most attacks on ‘drug boats’ have been carried out off the coast of Venezuela. More than 80 people have been killed in the strikes, according to the Pentagon.
The 1982 UN Convention on the Law of the Sea applies in large part to all states, including the US which is not a party, by way of universal customary law. States are not entitled to interfere with foreign-registered vessels on the high seas. The exceptions are acts to suppress piracy, the slave trade, ships used for unauthorized broadcasting and ships of uncertain nationality.
The UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance is even more restrictive. If a state suspects, as the US alleges, that a vessel is involved in drugs running, it has to obtain the consent of the flag state before it can detain and search, not to speak of sinking without warning.
In this instance, it has been suggested that some, most or even all of the targeted vessels were unregistered or failed to display a flag. Even then, however, there is only a right of warships to stop, visit and search the suspect boats to establish their nationality, or lack of registration. This may be followed by detention and trial of persons on board of unregistered vessels for drugs offences, not missile strikes likely incurring the death of all on board.
Military attacks against shipping on the high seas are in principle unlawful, unless a legal justification – an exception to the rule – can be produced. In a letter to Congress of 4 September, US President Donald Trump attempted to do so by invoking the right to self-defence.
President Trump claims that tens of thousands of Americans have been killed because of drugs trafficking, and that attacks on boats like those of 3 October therefore constitute self-defence. However, Article 51 of the UN Charter on self-defence requires an ‘armed attack,’ in order to trigger the right to an armed response.
A non-state actor, like a terror organization, can commit such an armed attack, if the consequences are the same as would result from an onslaught by regular military forces. The destruction of the World Trade Centre in September 2001, with the loss of over 3000 lives, would qualify.
On the other hand, shipping drugs or supplying them to willing customers clearly does not constitute an armed attack. Self-defence is therefore not available as justification for the US strikes. Instead, drug smuggling is clearly a matter for border control and law enforcement, along with steps to reduce domestic demand.
Terrorism
Designating alleged drugs cartels as terrorist organizations, as the new US administration has started to do, also does not change the legal situation.
It is true, no general definition of terrorism exists in international law. Instead, there are individual conventions, addressing, for instance, bringing explosive devices aboard civil aircraft or taking hostages.
There are also international conventions seeking to repress the drugs trade. However, these are not considered to be part of the legal regime addressing terrorism. And even the terrorism conventions provide for judicial cooperation and criminal sanctions, instead of the use of force by military means, as a remedy.
Unilaterally labelling individuals or groups as terrorists does not alone make their destruction on the high seas or abroad legal. The fact remains, for a state to invoke self-defence it needs to be demonstrated that an assailant is just about to launch an armed attack akin to a military assault.
Arguably, the Coast Guard could instead intercept and inspect such vessels as they approach US waters, exercising an extra-territorial law-enforcement function in a maritime zone contiguous to the US territorial sea.
Armed conflict
The US has recently added a further legal argument. Going beyond terrorism, the White House asserts that there now exists an armed conflict between the US and drugs organizations. The idea is not dissimilar to the global ‘war on terror’ waged against al-Qaeda following the September 2011 attacks. If an armed conflict exists, the argument goes, those fighting in it can be engaged whenever and wherever they are found.
Yet, once again, there is no basis for this argument. Clearly this is not an international armed conflict, say between Venezuela and the US. Even an internal armed conflict requires the existence of hostilities of some intensity between regular or irregular armed forces acting under responsible command.
To bring the law of non-state armed conflicts into play, an opposition group would have to displace the central government from exercising effective control over entire parts of its national territory through concerted and sustained military operations. This concept simply does not fit the present circumstances.
Moreover, applying the law of armed conflict is meant to establish a modicum of legal protection for those engaged in combat. Opponents should not be killed when unnecessary and instead be taken prisoner and treated humanely. Simply destroying boats and everyone on them might not meet the legal requirements of necessity and proportionality. The US attempt to apply the humanitarian law of armed conflict, only to then deprive the supposed ‘terrorists’ of its protection by branding them as ‘unlawful combatants’ does not persuade.
The crew and passengers on board would also still enjoy the protection of their right to life under human rights law, along with due process guarantees. Or, to put it the other way around, no state is entitled to deprive them of their life through arbitrary killing simply because they happen to be aboard a craft suspected of involvement in drugs trafficking. Unless they are just about to launch an actual, kinetic armed attack against the US, the appropriate remedy remains that of arrest and fair judicial treatment as they approach US shores.
