Killing For Show

On September 2 and 15, President Trump ordered the United States Navy to destroy small speed boats in the Caribbean. In both cases, all on board died. International lawyers have uniformly criticized the killings as unlawful. Commentators called the first attack a “performative” use of force with no material connection to national self-defense or crime suppression. The killings were designed to “send a message” rather than for any legally sanctioned purpose. One opinion writer labeled them the president’s most “dangerous assault on the rule of law” to date.

And, yet, government officials in states long committed to the rule of law at home and abroad have remained largely silent. Even the United Nations Special Rapporteur on Extrajudicial Killing has remained silent to date. In July, Henning Lahmann argued here that Germany’s silence in the face of Israeli and U.S. attacks on Iran indicates the growing weakness of German democracy and commitment to law. In the U.S., I have argued that lawless killing with military force abroad has increased the militarization of policing and negatively impacted respect for the rule of law domestically.

In either case, international lawyers are contributing to the problem of declining commitment to law and legal institutions when they fit legal interpretation to policy rather than insist that policy comply with law. Some have done so with the best of intentions fearing that unless political leaders receive a “realistic” version of the law – one that gives them a permissive principle to cite – they will ignore the law altogether. The approach has not worked. Even scholars who attempted to find justifications for the June attacks on Iran found nothing to justify the killings in the Caribbean.

Killing for show

Two weeks after the first boat attack, basic facts remained in doubt. Trump said the boat held 11 “narco-terrorists” from the Venezuelan criminal gang, Tren de Aragua. He also stated with confidence the boat was headed to the U.S. with a cargo of dangerous, illicit drugs to poison Americans. Even if all of these facts were true, they would not add up to a right to use military force.

Yet, Trump had no real knowledge of any of his allegations. Little is known about the boat or its trajectory. The New York Times reported doubts about the number of people on the boat – it was apparently too small for a crew of eleven. Secretary of State Rubio said it was headed somewhere in the Caribbean, possibly Trinidad and Tobago, not the U.S. No evidence has been revealed to indicate why the president believed the boat carried drugs.

The administration placed Tren de Aragua on the State Department’s Foreign Terrorist Organization (FTO) list earlier in the year. The criminal gang is not known for drug smuggling. It is no cartel such as the major operations in Mexico and Colombia. Drug trafficking is not terrorism. The president’s term, “narco-terrorism” is not a term of art in international law. Drug trafficking is also not armed conflict. Perpetrators want to keep their victims alive to continue buying their products. They want to allude law enforcement, not engage them. It is also not known why Trump believed the people killed on the boat were members of Tren de Aragua. He provided even fewer assertions respecting the second boat.

Silence by officials globally many may well be due in part to fear of losing trade deals.  Republicans in Congress are also terrified of incurring the president’s wrath. A few have had the courage to raise due process concerns. After a Department of Defense briefing, Senator Reed, a Democrat of Rhode Island, concluded: “They have offered no positive identification that the boat was Venezuelan, nor that its crew were members of Tren de Aragua or any other cartel.”

Reed’s Senate colleague from North Carolina, former military judge Lindsey Graham, Republican, however, had advised President Trump soon after his inauguration to send a message to drug dealers, just “blow something up.” So, in the midst of poor jobs numbers, the Epstein affair, and losses in court, he did.

The president and his closest advisers have repeated that they simply do not care whether the killings violated the law. The Defense Department briefing to Congress mentioned only the president’s Constitutional authority. When confronted by the charge that blowing up the boat was a “war crime”, Vice President JD Vance used an expletive to say he does not care.

Diluting to suit

For high government officials to say they do not care about the principles restricting the taking of human life should raise every alarm. The quiet in capitals around the world indicates not just fear in the moment but the impact of steady dilution of the law to accommodate power. International law on the use of force leaves no room for using military force to kill individuals or groups suspected of crimes, any crimes, from terrorism to drug smuggling. The U.S. held this view strongly until the end of the Cold War. American presidents had violated the law on the use of force often enough prior to 1989, but they did not tend to denigrate or dismiss the law itself. They focused on attempting to manipulate facts.

The law did not change from then until now. Global power dynamics did. Without the Soviet Union as a major competitor for influence in the world, the U.S. began unilateral reinterpretations of the law on the use of force even before 9/11. Then the U.S. was in a real war in Afghanistan. It expanded use of military force far beyond that conflict. United Nations Special Rapporteur on Extrajudicial Killing, Asma Jahangir, reported in 2003, that a U.S. targeted killing in Yemen using a drone-launched Hellfire missile was a violation of the human right to life. Her report received little notice, and her successors began to consider that the right to use force in self-defense under Article 51 of the Charter might justify killing individuals. The most infamous attempts at accommodation, however, came in 2010 with the U.S.’s “Targeted Killings Memos” and 2016 when the U.S. said it would kill persons in states deemed “unable or unwilling” to control terrorism.

Nevertheless, President Obama effectively ended targeted killings of terrorism suspects in 2013, declaring them ineffective. The UK carried out two such killings in 2015 but apparently not since. France has also ended the practice after attacking terrorism suspects at a wedding in Mali in March 2021 in which 22 were killed. Targeted killings are ineffective, but more importantly, they are unlawful. They have lowered concern over the human right to life to the point that Trump has not hesitated to put suspected drug dealers on his kill list. The impact on lawlessness within the U.S. is readily apparent. One expert on countering the drug trade sees the influence of lawless killing abroad:  “What concerns me about this precedent is that the administration is normalizing extrajudicial killings. And it’s not a far jump – it’s not a great leap – to bring that back to a domestic context…” It is a domestic context in which other human rights, almost as important as the right to life, are disrespected even by the highest court in the land.

Speak law to power

It is, in the words of Juliette Kayyem, time to “shame the violence” if it is to stop. She identifies Trump’s rhetoric as providing “permission structures” to violence. She advises saying: “assassination is bad, period.” The violence and chaos in the United States is being exploited by adversaries abroad. America’s allies can support this country by standing by the rule of law, retaining it as the standard to which to return.

It must be the standard of authentic law. Philippa Webb and Lydia Kim put forward a range of views on how to deal with the current moment of crisis in compliance with international law. Several commentators want to follow the course of accommodation that led us here, more of the same – just more dilution of the law to try to lower the bar to compliance. The United Kingdom Foreign Minister is calling it “progressive realism.” It is the old argument to be “realistic”, and it will only make matters worse as significant numbers of UK residents demand the abandonment of legal institutions as important at the European Court of Human Rights.

Henning Lahmann counseled government ministers to speak in support of actual law. He wrote:

“[I]t’s not the breach itself that threatens normative stability, it’s how the international community responds… If the project of international law falters, it won’t be because it was thrown into a world where raw power reigns supreme, as the realists would have it. It will be because the people who were in a position to actualize it started wavering the moment consistency and sincere conviction became politically inconvenient …”

The same advice applies to international lawyers. The most important aspects of law will endure, the norms of jus cogensand the general principles of international law inherent in the law from equality to good faith. For people and the planet to benefit from these principles in tangible ways requires actualization through government, courts, and organizations of all kinds. Modeling law compliance and speaking and teaching fidelity to authentic law works.