When Everything Becomes War, Nothing Is Law
Part 2: Why drug trafficking, even by violent criminal organisations, does not constitute an armed attack, an armed conflict, or a lawful basis for the use of military force under international law.
As mentioned in Part 1, US secretary of defense (as he then was) Pete Hegseth, on 21 February 2025, removed the incumbent judge advocates general (JAGs) of the Army, Navy and Air Force. JAGs are military lawyers who advise on international law and rules of engagement and investigate potential violations of the laws of armed conflict and military law.
Analysts say that Hegseth’s late-night dismissal of the JAGs is a grave threat to the rule of law. Prof Rosa Brooks at Georgetown University in Washington DC states in the ABA Journal of the American Bar Association that firing the top lawyers is “what you do when you’re planning to break the law: You get rid of any lawyers who might try to slow you down.”
In response to their firing, those and other erstwhile JAGs have established a “Former JAGs Working Group” which issues unofficial opinions containing advice they would have given to US commanders about the lawfulness or otherwise of specific uses of military force.
The Working Group has issued opinions about the lawfulness of US military air attacks against alleged narcotrafficker “go-fast” boats in the Caribbean Sea and the eastern Pacific Ocean.
As stated in Part 1, the Former JAGs Working Group concludes that no domestic law authorises the President to engage these targets with lethal force, and therefore extrajudicial killing of these targets without legal justification constitutes the crime of murder.
Furthermore, the Former JAGs Working Group is of the opinion that there is no international legal authority permitting the boat strikes.
The President’s notice to Congress asserts that a “non-international armed conflict” existed between the US and these groups. This is not legally correct. “Armed conflict” has an established meaning in international law: An armed conflict exists when there is an international armed confrontation (between the armed forces of two States), or an intense and protracted non-international armed conflict within a State (between governmental authorities and an organised armed group or between two such groups). Any lesser situation, such as an internal disturbance or tension, is not an armed conflict.
The Working Group concludes that there is no pre-existing non-international armed conflict between the US and these groups. Nor would a non-international armed conflict begin as a result of a US airstrike on these vessels, because no intense or protracted armed violence is occurring (other than the lethal missile strikes originating from US military aircraft, manned or unmanned). An armed conflict presupposes two parties fighting. There is no evidence that these gangs have engaged in any such armed violence against the US. Drug trafficking is not armed violence.
The Charter of the United Nations permits use of force in self-defence against a current or imminent “armed attack,” whether from another country or from a non-state armed group. Drug trafficking, even by violent criminals and even if the eventual downstream use of the drug can be deadly, has never been treated as an armed attack justifying use of force in national self-defence.
Even when an armed attack is imminent, the force used in self-defence must be “proportional and necessary” in the circumstances. Lethal strikes on privately-owned vessels which are not located near US borders are not proportional or necessary, because non-lethal interdiction is possible and are a routine part of the Coast Guard’s mission.
Assuming hypothetically that a non-international armed conflict does exist between the US and any of these groups, then the law of armed conflict drawn from the Geneva and Hague Conventions and customary international law governs when, where, and how armed force can be used and against whom. There are only two types of legal targets of lethal operations: members of organized armed groups and civilians “directly participating in hostilities”.
An act by a civilian does not constitute “directly participating in hostilities” unless it is likely to adversely affect the military operations or capacity of a party to an armed conflict or to inflict death or injury or destruction on persons or objects protected against direct attack; there must be a direct causal link between the act and the harm likely to result from it or from a military operation of which it is an integral part; the act must be specifically designed to directly cause that harm in support of a party to the conflict and to the detriment of another. Drug smuggling does not meet this three-fold test.
There is no evidence that smuggling illicit narcotics adversely affects the military operations or military capacity of the US; or that illegal smuggling of these drugs inflicts death, injury, or destruction on persons or objects protected against direct attack; or that drug smuggling is
specifically designed to cause that harm.
Drug smugglers do not intend to harm or kill their customers. Drug cartels wish to expand their operations and increase the number of users of their product, not cut off their revenue source by putting users’ lives at risk.
Drug smuggling is neither combat nor an integral part of combat operations. It is not aimed at prejudicing US military operations and does not constitute military action. It is not part of a war effort. It is not viewed as a military activity and is not traditionally performed by military forces conducting military operations.
The Former JAGs Working Group conclude that international law furnishes no basis for permitting the strikes.
Consequently, any such strike that is premeditated (as it would be in the operations described here) without such legal authority or justification is murder. Federal law prohibits murder. For military personnel, the Uniform Code of Military Justice also prohibits murder, and any planning by military staff to conduct these operations would constitute conspiracy to commit murder.
Even if the US were in an armed conflict with any of these cartels such that the law of armed conflict applied, targeting civilians ferrying drugs for profit would violate the Geneva Conventions, which categorises murder in non-international armed conflict as a grave breach of the Conventions. Federal law describes such violations of the Conventions as war crimes.
It is a defence to a charge of murder or conspiracy under the Uniform Code of Military Justice that the “accused was acting pursuant to orders”, unless the accused knew or a person of ordinary sense and understanding would have known that the orders were unlawful. The Code gives, as an example of a manifestly or patently unlawful order, an order to commit a crime. The Department of Defense Law of War Manual gives, as the key example of an unlawful order, an order to fire upon the shipwrecked.
Given the overwhelmingly clear reasons why killing drug-smuggling civilians without investigation, prosecution, and conviction in a criminal proceeding is unprecedented and without legal basis, an order to conduct these targeted strikes is manifestly or patently unlawful. Thus, in any criminal prosecution, the commanders, staff or operators could not avail themselves of an “obedience to orders” defence.
[To be continued in Part 3.]
Gary Moore, a practising attorney for 30 years, is a Senior Associate at the Free Market Foundation.