Killing in the Name: Three Legal Paradigms to Evaluate the Legality of US Actions in the Caribbean (Part I)

[Moises A. Montiel Mogollon is a professor of international law at the Centro de Investigaciones Docentes y Económicas (CIDE)]

As a result of the unilateral military buildup in the southern Caribbean by the United States with the alleged goal of combatting drug trafficking, the North-American nation has conducted a series of militarized operations resulting in the death of presumptively Venezuelan nationals with alleged ties to organizations deemed as terrorist by the US Government. Taking into consideration that – from publicly available information of which there isn’t much around – all operations seem to have been conducted in international waters, the question of the legality of these actions lingers and will receive different answers depending on which legal regime is used for the scrutiny. 

To address the question, this post will analyze the attacks on and deprivation of life of, at least, eleven alleged Venezuelan nationals whom the US claims were complicit in drug trafficking in connection with the Tren de Aragua criminal organization from the perspective of the rules governing the use of force in international relations. This, in order to try and start a conversation beyond slogans and political platitudes as well as to draw out preliminary conclusions on the general lawfulness of these actions.

As far as the use of force regime or jus ad bellum goes, it is noteworthy to point out that the Maduro administration and its spokespersons have deemed the attacks an “undeclared war,” raising the question of whether the attacks satisfy the threshold set up by the joint reading of articles 2(4) and 51 of the UN Charter in the context of UNGA Resolution 3314 (XXIX). Thus, to determine whether these actions clear the use of force threshold, two simple questions should be asked: what kind of force is being used and against what or whom is it directed?

As is evident from the text of article 2(4) of the UN Charter, one of its shortcomings is that it doesn’t betray what actions amount to force in nature and intensity. Rather, it points towards protected objects (the territorial integrity and political independence of a State, and the principles underlying the UN Charter) whose attack constitutes a prohibited use of force. It would be legitimate to consider that any action that attacks one of those protected objects could, theoretically, be considered an use of force. However, the conventional wisdom in qualifying instances of use of force is to try and complement the laconicism of article 2(4) by interpreting it alongside article 51 (and the standard of armed attack) as developed by resolution Res. 3314 for clear instances of breaches of the prohibition on the use of force (see for example pp, 18-23 here) amounting to armed attacks. 

These are all, however, contingent on the attack or threat being clearly directed at another State’s territorial integrity or political independence, which is, ostensibly, not the case here thus far in that the alleged aim of the attacks was to halt drug trafficking into the US not make an attempt against any of Venezuela’s protected rights under the UN Charter. Even if the Trump administration has made the claim that the Tren de Aragua organization is a branch of the Venezuelan Government, such an affirmation creates an evidentiary burden to demonstrate agency and/or control in order to consider that an attack on the organized crime group equals an attack directed at the Venezuelan State infringing upon its political independence or territorial integrity. Since evidence in that respect has not been presented nor a serious legal claim made, the conclusion is that the acts are not directed at any of the protected objects under article 2(4) of the UN Charter and therefore do not constitute a use of force under general international law – neither in the generic sense nor in the stricter armed attack dimension due to a lack of identity in intent and target to bring it under the aegis of the jus ad bellum regime.

To support this finding, one should properly look at where the alleged actions took place and against whom they were directed. As far as publicly available information goes, the location of the vessels was outside of Venezuelan waters, in the “southern Caribbean,” and they were manned by individuals with no demonstrable affiliation to the Venezuelan government as well as exhibiting no signs of acting under its effective or overall control. All these facts support the conclusion that these conducts cannot be legally qualified as being to the prejudice of Venezuela and are thus not governed by jus ad bellum rules on account of not being directed against another State’s political independence or territorial integrity. Or, rather, that the use of force regime is inadequate to assess the legality of the strikes for a lack of identity ratio materiae.

Along the same lines, attention should be paid to the communication emanated from the White House on September, 4, 2025, characterizing the strike as self-defense under the unwilling/unable doctrine. The rationale behind this would be, presumably, to present an allegation of preclusion of wrongfulness on the grounds that US national security was, at the time of the strike, the object of an ongoing attack by a non-state actor, that there were no alternate or less deadly means to halt or neutralize the attack, and that the need for action stemmed both from the actual and grave nature of the attack and from the inability of parties undisclosed -but yet theoretically able- to hinder, halt or prevent these attacks by a non-state actor against the US. Such a claim, even in its own grounds, is unsustainable. Let’s see why.

First, regardless of which version of self-defense one is referring to (the UN Charter inter-State regime, the wider customary regime the ICJ recognized in Nicaragua, the Caroline Standard, or even more daring versions like those stemming from the unable/unwilling doctrine as championed by the US and a handful of other States) there is an almost unanimous consensus that only an armed attack – in the sense of Res. 3314, leaving aside for now the actual or immediate nature of it, as the point raises unwarranted discussion – triggers the right of self-defense as recognized in UNSC resolutions S/RES/1368 and S/RES/1373. While terrorism as an abstract phenomenon is indeed a threat to international peace and security, and this has been categorically upheld by the Security Council, it is noteworthy that both resolutions reaffirm the right of self-defense as enshrined in the UN Charter. Such a reaffirmation can only be taken to mean that to clear the threshold present in article 51 of the UN Charter, armed force should be directed at a protected object among those already mentioned.

One would be hard-pressed to equate the threat posed to US national security by unchecked drug trafficking to the type of attacks that trigger the inherent right of self-defense as per article 51 of the UN Charter. As the Court pointed out on the Oil Platforms Case (see para. 51) it is paramount to distinguish an armed attack from other actions that, while perhaps constituting a use of force under article 2(4) of the UN Charter, fail to meet the criteria of an armed attack for the purposes of self-defense. The contention here is that the drug trafficking which these naval operations seek to curtail clears neither threshold. In the case of the generic use of force standard, because it does not infringe upon the exercise of political independence by the US government nor on the integrity of its territory, and since no proof of feasible attribution to Venezuela or other State is present, said criminal actions cannot be deemed to contravene the rights of the US deriving from the principles of the UN Charter. As for the armed attack threshold, absent a use of force there can be no discussion as to whether said use of force constitutes an armed attack or not, which renders the point moot. Additionally, and as has been already pointed out, phenomena like transnational drug trafficking do not belong in the jus ad bellum drawer but are rather more clearly – and legally addressed – under regimes like those of the Palermo Convention dealing with transnational organized crime.

Even if the material requirement for self-defense is ignored, there is a factual point that erodes the credibility of any claim of self-defense. There were, in fact, less deadly means to halt the particular drug-run the attack sought to stop, as Secretary Rubio indicated. It was a choice to utilize deadly force instead of capturing or interdicting in some other way. That alone negates the necessity and proportionality of using force in self-defense and makes it clear that this was no instance of self-defense without even having to enter the more contested theoretical battleground of the unwilling/unable doctrine. Absent an armed attack characterized as actual/imminent, necessitating force to be stopped and met proportionally directed against protected objects under article 2(4) of the UN Charter, the September 4 communications rings hollow in terms of legal justifications.

In light of all the above, the absence of the fundamental requisites for both the threat or the response to be at least analyzed through the lens of the use of force regime, the first conclusion of this piece becomes evident: this was not an action which can be satisfactorily justified  by recourse to the use of force regime or its exceptions, no matter the intended loan of the language and rhetoric.