Extrajudicial Killing

 Tom Nichols at The Atlantic writes about deadly military attacks against boats in international waters:

The Trump administration’s justification for these strikes, such as it is, seems to be that any shipment of drugs connected to the Venezuelan gang Tren de Aragua is a direct threat to the United States. These “narco-terrorists” may therefore be destroyed on sight, and without the fuss of asking permission from the U.S. Congress. This argument reflects the president’s childlike but dangerous understanding of his role as commander in chief. The United States, once the leader of a global system of security and economic cooperation, is now acting like a rogue state on the high seas.

The White House position is wrong on many levels. I taught the rules and theories that govern the use of force to military officers at the Naval War College for many years, and every summer for two decades to civilians at Harvard; I always reminded students that international law and traditions require states to show that they are acting in some form of self-defense, either in response to an attack or to forestall more violence. Moreover, American law does not permit the president to designate people as terrorists and then declare open season on them in defiance of international agreements and without any involvement from Congress. Perhaps Trump’s people are watching too many Tom Clancy movies, but he cannot legally send the Navy out onto the world’s oceans as though they are seagoing sheriffs with satchels full of death warrants.

No one in the White House seems to care very much about the rules that govern killing people, at home or abroad, but these rules actually exist. International law allows interdicting contraband—drugs, weapons, captured human beings—under many circumstances, and countries execute such missions legally every day. These activities require great care to limit the danger to the military and the loss of civilian life, including diligently identifying suspect vessels, warning them to stop, and sometimes boarding them to identify and seize their cargo.

Military ships can engage these targets in combat under limited conditions. If they open fire on American vessels, for example, no one would deny that they’re signing their own death warrant. But in general, when states want to initiate the use of force in the international arena, their arguments are subject to what international law calls “the Caroline test,” an 1837 case that led the U.S. to agree that to employ force, a threat must be “instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This is an elegant way of saying that nations can use violence in self-defense when they have neither the time nor ability to do anything else. What constitutes an “imminent” threat is an ongoing debate among international lawyers, but the recent Venezuela strikes do not appear to fall even remotely under any of this doctrine.