Legal Considerations On The Murder Of 11 Venezuelans

I’ve been disappointed that my usual go-to legal commentators have been silent on this very important and disturbing event. The actions of our CinC and the US military are governed by a specialized body of law, but it isn’t rocket science. Today I was able to come up with some relevant material. I’ll start with Armchair Warlord, because it’s basically short and to the point, without technical digressions. He focuses on the deliberately extra-legal character of these slayings:

Armchair Warlord @ArmchairW

18h

Given that the Administration hasn't even attempted to provide a legal basis for the "drug boat" strike, it's likely that Trump's order for the attack was not only illegal but that the Navy task force commander knew that and obeyed it anyways despite a positive duty to refuse.

By the way, this cannot be excused merely as a poor decision made in the "heat of battle" - this was an airstrike on an unarmed boat which had been under surveillance for some time, authorized by a flag officer with access to legal counsel and presumably after some deliberation on the matter. Now, one may argue that the President of the United States has extraordinary authority to authorize the use of military force even to the point of outright military aggression against foreign nations, but even the President cannot lawfully issue orders for acts that would constitute war crimes - such as firing on civilians on the suspicion that they might be part of a conspiracy to commit a drug felony in the United States.

Literally everybody involved likely knew this and was told as much by legal counsel... and they went ahead anyways.

In spite of these clear principles, in justification of Trump’s ordered action, Rubio stated that 1) the decision to kill the Venezuelans was made by Trump—”on the president’s orders”—and 2) that the decision to kill rather than interdict was based on the contention that interdiction “doesn’t work” but that “what will stop them is if you blow them up.” “Works/Doesn’t Work” is simply not a principle or distinction that can be used to justify killing under US law. Rubio’s words actually undercut any rationale for the killing of these Venezuelans.

But here’s a more formally legal exposition, to show that Warlord isn’t overstating anything:

Ryan Goodman @rgoodlaw

Chaired Professor NYU Law. Former Chaired Professor Harvard Law. Former Special Counsel @DeptofDefense

1/ I worked at DoD. I literally cannot imagine lawyers coming up with a legal basis for lethal strike of suspected Venezuelan drug boat.

Hard to see how this would not be "murder" or war crime under international law that DoD considers applicable.

Read this expert analysis

2/ The author of the expert analysis [Brian Finucane] worked at the State Department under several administrations with these types of use of force issues as his portfolio.

3/ The best line of argument for the administration might be that the law of armed conflict somehow applies.

But if so (and it doesn't), that means the US War Crimes Act applies too, including the prohibition on murder.

Finucane spells out that implication here:

Moreover, certain violations of the law of war constitute war crimes under both international and U.S. domestic law. Specifically, the U.S. War Crimes Act criminalizes murder, defined as the

“act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.”

Many other states not only criminalize this offense but have universal jurisdiction over the crime, regardless of who perpetrates it.

4/ If the law of armed conflict does not apply (and it does not), then ....

DoD has a long-standing view that assassination and murder are part of the customary international human rights law that applies to military action beyond U.S. borders.

2024 Operational Law Handbook pp. 98-99

5/ The[] statements by Secretary Rubio make the legal case against the U.S. strike even stronger.

Brian Finucane covers all the applicable bases in detail and finds no legal justification:

Legal Issues Raised by a Lethal U.S. Military Attack in the Caribbean

• Domestic Legal Authority for the Use of Force

• War Powers Resolution

• UN Charter

• Use of Lethal Force [Law Enforcement paradigm]

• Assassination Ban (Executive Order 12333)

• The Law of War

• The Right to Life in Human Rights Law

His conclusion:

An Extraordinary and Unsettling Action

The Trump administration’s military attack on this alleged smuggling vessel is not only extraordinary and unsettling in its own right, but also because of the context in which it occurs and for what it may portend for future action.

The use of lethal force in this attack appears gratuitous and the administration has not explained why law enforcement tools were inadequate to address the situation. Of a piece with the deployment of troops to U.S. cities, the strike is an unnecessary and performative use of the U.S. military—a use that is legally fraught at best. (Indeed, Trump threatened Chicago with a troop deployment in the same Oval Office appearance in which he announced the strike.) And the use of lethal force against these supposed terrorists is ominous both because the Trump administration has vowed further such strikes in Latin America and because this administration has deployed the “terrorist” label more broadly domestically, including against migrants and political opponents.

Congress—which has largely been missing in action this year—needs to reassert its own prerogatives [I would say ‘responsibilities’] over war powers and the use of these military tools as the White House seeks to further abuse these instruments both abroad and at home.