On Oct. 14, President Donald Trump announced on social media that the United States had once more attacked an alleged drug smuggling small boat in international waters off the coast of Venezuela. This is the latest strike in what the Trump administration has, in a notification to Congress, designated a “non-international armed conflict” against Tren de Aragua, a narco-group based in Venezuela. In other words, the administration has invoked war powers to justify the targeting of these vessels and, ostensibly, other assets of the organization in the future — perhaps even inside Venezuela.
This assertion that the United States is now engaged in a “war” against Tren de Aragua matters for two profound reasons. First, these attacks may very well expand into Venezuelan territory with an almost certain risk of a Venezuelan military response. While such a response is unlikely to present a significant impediment to U.S. forces, what began as a limited action against a handful of alleged drug smugglers could quickly expand to an interstate war, regime change (which recent news suggests may be the administration’s ultimate goal), and all the second and third order consequences the United States has experienced that are often harder to address than defeating the enemy in battle.
Second, by invoking the characterization of armed conflict against what is by any objective measure a criminal threat that does not justify that invocation, the United States is setting a precedent of pretextual invocation of extraordinary combat power that other countries may follow in the future, resulting in overzealous claims of war powers, international destabilization, and abuse of fundamental human rights.
This raises a critical question: Do the objective facts warrant characterizing the threat posed by such a group as being of a magnitude to amount to an armed conflict, justifying crossing that line from the normal criminal law response authority to the extraordinary powers derived from such a situation? While the Trump administration asserts a categorical “yes” to this question, the objective facts point to a categorical “no.”
Crossing the Line
States bear a fundamental obligation to protect their people and territory from a wide array of threats. This obligation, and the state’s authority to fulfill it, is beyond dispute. But this does not mean that every threat justifies the use of combat power — a power restricted to “war,” what international law designates as armed conflict.
Like domestic law, international law — through the operation of human rights principles — normally limits the power of the state to disable criminals who pose a threat. That power is fundamentally constabulary in nature — law enforcement authority. This means states may only resort to using deadly force as a last resort and only in response to an actual or imminent unlawful threat (not a future threat) of death or great bodily harm. This is why police carry less-than-lethal weapons, like Tasers, enabling the use of minimum necessary force to subdue a threat. Once an individual is subdued, subsequent deprivation of liberty — detention — requires a criminal charge, prompt appearance before a judicial officer to validate the arrest, and ultimately trial and conviction with the accordant imposition of penal sanction.
If, in contrast, the state is engaged in an armed conflict, the range of lawful measures to bring the enemy — in the collective sense — into submission is far more permissive. The legality of these measures is derived from international law, namely the law of armed conflict. Members of the enemy armed group are subject to deadly attack as a measure of first resort, and those attacks are justified based on a determination of enemy belligerent status and not based on the individual posing an actual or imminent threat. This attack authority terminates only if the enemy belligerent is taken “out of the fight” as the result of capture, wounds, or sickness. And if captured, deprivation of liberty — detention — is justified to prevent a return to hostilities and based solely on the enemy belligerent status determination. This means there is no requirement for criminal charge or trial (although that is an option) and that the detention is indefinite, with repatriation required at the end of hostilities. Furthermore, if the detaining power determines the detainee committed a “war crime” prior to capture, criminal sanction may be imposed by a military rather than civilian court.
All this indicates why crossing the line between peacetime security operations and armed conflict has such profound consequences. Prior to 1949, there was almost no international legal indication of where that line was drawn. This was in large part because the international law of war was understood to apply only to interstate “wars,” coupled with the assumption that it would not be difficult to determine when war began. But following World War II, international law evolved to include within the four Geneva Conventions of 1949 express provisions indicating when those treaties — and the broader law of armed conflict — came into force, or more pragmatically, what “triggers” application of the “‘wartime” law. For interstate conflicts, the answer was simple: any dispute between states resulting in hostilities between armed forces. The duration, intensity, or even characterization of such situations by the states involved was irrelevant. Armed conflict was intended to be a pragmatic, and not formalistic concept.
Coupled with this definition of what international lawyers now call “international armed conflict” came another provision requiring “parties” to an “armed conflict not of an international character” to ensure humane treatment of any individual not actively participating in hostilities. This was a monumental development in the law. For the first time, international legal regulation was injected into what were commonly known as “internal” armed conflicts: armed hostilities between state authorities and organized non-state armed groups. While quite modest in scope, the dam was broken, and states were obligated to ensure respect for international law if and when an internal threat rose to the level of armed conflict.
Exaggeration and Expansion
Since 1949, both the understanding of what qualifies as a non-international armed conflict and the extent of applicable legal regulation has expanded substantially. Perhaps the most profound expansion has been the characterization of non-state armed groups that operate transnationally as threats triggering the existence of a non-international armed conflict. The most influential example has been what the United States characterizes as an ongoing, global armed conflict against al-Qaeda and the Islamic State. Today, certainly as far as the United States is concerned, the law of armed conflict may be justifiably “triggered” in response to transnational non-state threats.
Thus, in theory there is no legal impediment to characterizing operations against a transnationally operating non-state group — even a narco-terrorist group — as an armed conflict, at least in accordance with prior U.S. interpretation. But theory alone is insufficient to justify this claim of non-international armed conflict. That theory must be paired with objective facts that support this invocation — facts that are woefully insufficient in the Tren de Aragua case.
Defining what qualifies as a non-international armed conflict that justifies use by the state of extraordinary “wartime” powers has been far more difficult than defining the interstate armed conflict counterpart. There are, however, some almost universally recognized benchmarks. First, the threat faced by the state must be an organized armed group. This does not mean the group needs to have a formal organization and command structure like national armed forces. It does, however, mean the group must have sufficient military-type capability to engage in hostilities and that group members operate under the direction of group leadership. Second, and most significant in relation to Tren de Aragua, the group must engage in a level of violence against the state (or present an imminent threat of such violence) of such magnitude that it necessitates resort to military combat operations in response. This is known in international law as the “organization and intensity” test for what qualifies as an armed conflict.
In more pragmatic terms, there is an imperative question that should be asked when assessing the legitimacy of a state asserting it is involved in an armed conflict with a non-state group: whether the activities of that group have overwhelmed (or are about to overwhelm) normal law enforcement response capabilities. This was the true essence of the concept of non-international armed conflict since the 1949 inception of that legal concept: Does the extraordinary nature of the threat necessitate invocation of extraordinary response authority?
To answer this question, the Trump administration has emphasized — and exaggerated — the fentanyl death toll in the United States. There can be no real debate that the loss of approximately 80,000 lives each year to this pernicious illegal drug is tragic. Setting aside a recent report that Venezuela plays no role in the movement of fentanyl, although some Colombian cocaine passes through that country, harmful effect does not ipso facto indicate the United States is engaged in an armed conflict with a narco syndicate responsible for a portion of that influx. Nor does it justify the administration’s analogy to the threat posed by — and the U.S. response to — al-Qaeda. The fundamental difference between these two threats is intent: Unlike al-Qaeda, there is no objective support for the conclusion that Tren de Aragua intends to inflict death and destruction on the United States or its citizens, armed forces, or facilities abroad. Indeed, if the group is motivated by the profits derived from the sale of illegal narcotics, it is counter-intuitive to infer an intent to kill the consumers or provoke the type of armed response they now confront.
The administration should be applauded for designating this group (and other narco groups) as foreign terrorist organizations. This move justifiably expanded federal criminal and immigration powers to deprive the group of resources (most notably triggering the Material Support to Terrorism statute, a federal crime that prohibits anyone from providing resources or support to the group knowing the group has been so designated). But this in no way indicates the existence of an armed conflict. Nor does it, or the illegal activities of the group, justify invocation of unilateral presidential war powers, an invocation historically restricted to protecting the nation and its citizens abroad from actual or imminent armed attacks. Instead, the Trump administration’s assertion of armed conflict appears to be a pretext to justify invoking both constitutional and international legal authority inapplicable to this situation.
Just Because You Can Doesn’t Mean You Should
Is all this functionally irrelevant? In a sense, yes. It seems clear that there are immense political advantages to this expansive assertion of legal authority: U.S. forces face minimal risk; the president looks uniquely aggressive in combating the drug problem; there is little sympathy for the alleged drug-runners being attacked; and Venezuela has neither the interest nor capacity to intercede on their behalf. Nor is there meaningful domestic legal risk. Unlike so many of this administration’s moves, there is almost no chance a U.S. court will entertain a challenge to the president’s authority in this case. This leaves only Congress to scrutinize and ultimately check abuse of war power by a president, but as Justice Robert Jackson warned in a famous Supreme Court decision striking down President Harry Truman’s seizure of U.S. steel mills to end a strike that jeopardized war production during the Korean conflict, party loyalties have quite obviously nullified any congressional interest in checking this aggrandizement of power.
But being able to get away with something does not make it legitimate. No one should underestimate the consequences of treating what is by all accounts a criminal enforcement problem as “war,” triggering the use of combat power to kill criminals as a measure of first resort. That is a slippery slope. When coupled with the established U.S. interpretation of the international legal right of self-defense that permits projection of military force into the territory of another nation when that nation is “unable or unwilling” to prevent the activities of a non-state group engaged in armed conflict with the United States, this opens the door to extending attacks into Venezuelan territory. The consequences of such an attack are not hard to predict: Venezuela acts to defend its territory, and suddenly an interstate armed conflict comes into existence. Where it ends would be anyone’s guess.
A Venezuelan friend recently shared with me his view that such an outcome might be celebrated by the millions of Venezuelans living under President Nicolás Maduro’s tyranny. That is certainly true, as is the likelihood that defeating the Venezuelan armed forces would probably be relatively easy. Yet one need only consider the U.S. experiences in Iraq, Afghanistan, and Libya to understand that what would come after that might very well be quite difficult. But the slippery slope extends beyond the United States. Other governments dealing with problematic criminal threats might very well adopt the U.S. playbook, expanding “policing through combat” and asserting justification to extend combat operations into the territory of other states. That might sound fine in the abstract, but the consequences for human rights, respect for basic liberties, and international stability would almost certainly paint a different picture.
Since the terrorist attacks of Sept. 11, 2001, I have been among the most vocal advocates for the view that international law and the meaning of armed conflict — especially against organized non-state armed groups — should evolve to keep pace with the evolving nature of such threats. But there is a difference between pushing the envelope and shredding it. While it may be tempting to applaud this aggressive military campaign against Tren de Aragua, it seems wise to reflect on President Dwight Eisenhower’s admonition from his first inaugural address: “Whatever America hopes to bring to pass in the world must first come to pass in the heart of America.”
Geoffrey S. Corn is the George R. Killam Jr. Chair of Criminal Law and director of the Center for Military Law and Policy at Texas Tech University School of Law. Prior to joining academia he served as an Army officer for 21 years, retiring as a lieutenant colonel. He served one additional year as the civilian senior Army law of war advisor.
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Image: The White House via X
