War on Drugs at Sea: Lethal Interdiction, IHRL, and the “No Survivors”

[Davit Khachatryan is an international law expert and lecturer specializing in public international law, alternative dispute resolution, investment law, international humanitarian law, and security]

A short video clip circulating online appears to show a US strike on a small vessel at sea, followed by imagery that has been read as suggesting that there were survivors in the water. The clip has reignited a serious legal question: how far a State may try to extend a “war” paradigm into a counter-narcotics and maritime interdiction setting. It also arrives amid public reporting that senior members of the US Senate Armed Services Committee, Roger Wicker and Jack Reed, intend to investigate allegations that Defense Secretary Pete Hegseth directed that there be “no survivors” in strikes on alleged drug-running boats. Linked reporting describes an alleged operation on 2 September 2025 in the Caribbean in which an initial strike left survivors in the water, followed by an alleged further lethal attack.

For an international law analysis, the decisive move comes before attribution of wrongdoing: classification and applicable law. If the armed conflict threshold is unmet, the relevant regime is international human rights law, complemented by the law of the sea, in which intentional lethal force is exceptional and tightly constrained, and distress at sea pulls strongly toward rescue and criminal process, including the duty to render assistance reflected in the United Nations Convention on the Law of the Sea  (UNCLOS). 

If, by contrast, an International Humanitarian Law (IHL) framework is established, the analysis shifts to the conduct of hostilities rules. 

Law Applicable

A State can describe an operation as a “war” and still lack an armed conflict in the legal sense. Conversely, a State can deny the existence of armed conflict and still be bound by IHL if the objective criteria are met. Armed conflict classification is an objective determination, made based on facts and legal criteria established under IHL. The classic formulation is the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber’s statement in Prosecutor v Tadić: an armed conflict exists whenever there is protracted armed violence between governmental authorities and organised armed groups, or between such groups within a State (para. 70). 

International Armed Conflict

Current operational framing is lethal action against suspected trafficking vessels and their crews, which does not amount to armed conflict between the United States and Venezuela. Unless an investigation were to reveal that force was directed against Venezuelan State organs or State-controlled assets, used in a manner that legally engaged Venezuela as the opposing State, or that the relevant violence by the smugglers was attributable to Venezuela under the law of State responsibility (Articles 4, 5, 8, 11), the IAC category remains inapplicable. 

Non-international Armed Conflict

Two conditions must be met for a situation of violence to qualify as a non-international armed conflict and therefore trigger IHL: (i) the non-state party must be sufficiently organized, and (ii) the violence must be sufficiently intense. 

First limb implies at least a minimum of internal organization and the ability to plan, coordinate, and sustain operations. Transnational criminal networks may be violent, profitable, transboundary, and networked. Those features do not automatically make them an organized armed group for NIAC purposes. The organization criterion is designed to prevent IHL from becoming a universal law of violent situations, and it functions as a real constraint when the “adversary” is described as a diffuse category rather than a defined armed group. 

The intensity prevents IHL from being activated by episodic incidents, spikes of violence, or enforcement operations that remain closer to policing than to armed conflict. Even repeated uses of force do not, by themselves, establish protracted armed violence between governmental authorities and an organized armed group. The publicly available information does not supply the kind of bilateral hostilities, sustained armed confrontations, and conflict intensity that normally mark NIAC in law. 

In the present context, UN human rights actors have treated the strikes as falling on the law enforcement side of the line. The UN High Commissioner for Human Rights has stated that the attacks “find no justification in international law” and violate international human rights law, warning that a “war on narco terrorists” framing cannot supply a legal basis for summary lethal violence against vessels at sea.

Therefore, the NIAC gateway is not established. The analysis, therefore, proceeds on the basis that the governing regime is International Human Rights Law (IHRL), complemented by the law of the sea. 

Even if IHL applied arguendo, Additional Protocol I Article 40 prohibits ordering that there shall be no survivors, threatening an adversary therewith, or conducting hostilities on that basis. The same prohibition is reflected in customary IHL as Rule 46 (denial of quarter). Customary IHL Rule 47 prohibits attacks against persons hors de combat. Geneva Convention II reinforces the protection of the wounded, sick, and shipwrecked. 

Human Rights Framework

Once the armed conflict gateway is not established on the public record, the applicable legal grammar is international human rights law, with the right to life as the controlling norm. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) prohibits the arbitrary deprivation of life, and the Human Rights Committee’s General Comment No. 36 makes clear that this is an operational standard: it governs planning, rules of engagement, training, and the concrete choice and sequencing of force in operations that foreseeably risk death (para. 13).

A useful way to express the point in international law language is this: outside armed conflict, the default objective is restraint and capture, not destruction. The UN Code of Conduct for Law Enforcement Officials makes that baseline explicit: force may be used only when strictly necessary and to the extent required for the performance of duty (Article 3).  The UN Basic Principles on the Use of Force and Firearms then add the familiar sequence that matters in practice: law enforcement officials must, as far as possible, apply non violent means before resorting to force and firearms (Principle 4); where force is unavoidable, they must exercise restraint and act proportionately, minimise damage and injury, respect and preserve human life, and render medical aid (Principle 5); firearms may be used against persons only in tightly defined scenarios, and intentional lethal use may occur only when strictly unavoidable to protect life (Principles 9-10).  

European human rights case law gives the same logic sharper doctrinal edges, and it is directly relevant because it captures how international law evaluates lethal force during security operations. In McCann and Others v United Kingdom, the European Court of Human Rights (ECtHR) held that the use of lethal force by State agents must be “no more than absolutely necessary” for the permitted aims, and it underlined that Article 2 review is not confined to the trigger pull but extends to planning and control of operations where death is a foreseeable risk (paras 148-150).  In Nachova and Others v Bulgaria (Grand Chamber), the Court reiterated that Article 2 does not simply prohibit intentional killing; it requires a legal and administrative framework that effectively deters threats to life, and it again anchored the test for lethal force in “absolute necessity” and strict proportionality (paras 95-97).  Transposed to maritime interdictions, the doctrinal implication is straightforward: if a State chooses to deploy military capabilities in a law enforcement mission, that choice does not relax the legal standard. It heightens the need for rules, training, command oversight, warnings and graduated measures, and genuinely last resort lethality, because the foreseeable risk to life increases.

Because the scenario involves action beyond a State’s territory, one predictable pushback is jurisdiction. But human rights law does not evaporate at sea. In Hirsi Jamaa and Others v Italy,  ECtHR has held that people intercepted on the high seas may fall “within [a State’s] jurisdiction” where State agents exercise continuous and exclusive de jure and de facto control over them (para. 81). The Court treated the migrants intercepted at sea as within Italy’s jurisdiction precisely because they were on Italian military vessels and under the exclusive control of Italian authorities from interception onward (para. 82).  More generally, the Grand Chamber in Al Skeini and Others v United Kingdom restated that Article 1 ECHR jurisdiction is primarily territorial (para. 131), yet it can arise extraterritorially in exceptional circumstances (para. 132), including where State agents exercise authority and control over an individual outside national territory (paras 133-137). Applying those principles, the Court held the United Kingdom had jurisdiction because, through its soldiers in Basrah security operations, it exercised authority and control over the individuals killed, creating the necessary jurisdictional link (para. 149).  

In our context, the legal question becomes whether there was an imminent threat to life that could not be addressed through capture, rescue, or other less harmful measures. 

Where deaths result from state use of force, Article 6 ICCPR carries a duty to conduct an effective investigation capable of establishing the lawfulness of the deprivation of life and identifying responsibility where the deprivation was unlawful. General Comment No. 36 frames this as part of the State’s duty to protect life through law and institutions, including by ensuring that potentially unlawful deaths are examined through processes that are independent, prompt, thorough, and transparent (esp. paras 27-28).  In practical terms, this means that a lethal maritime interdiction cannot be “closed” by a purely internal assessment of whether the strike matched an operational objective. The inquiry must be structured to test necessity and feasibility: what was known about the persons targeted, what warnings and graduated measures were possible, what capture or rescue options existed, what orders and rules of engagement governed the operation, and how decisions were made in real time. The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) is the clearest operational articulation of these requirements, translating the duty to investigate into concrete standards for independence, evidence preservation, and fact-finding rigor, precisely because Article 6 would be hollow if the State could avoid scrutiny whenever its agents use lethal force.

Additionally, UNCLOS Article 98 requires every State to oblige masters of ships flying its flag to assist persons in danger of being lost at sea and to proceed with all possible speed to rescue persons in distress, subject to the saving clause of “no serious danger” to the rescuing ship, crew, or passengers. In parallel, the International Convention for the Safety of Life at Sea framework imposes a general obligation on masters to proceed to the assistance of persons in distress and on Contracting Governments to maintain search and rescue services. The standard formulations apply “regardless of the nationality or status of such persons or the circumstances in which they are found.” 

Where the Law Lands

All of this can sound abstract until it is mapped onto the sequence of events. The key is to treat the incident as two legally distinct, but not disconnected, episodes: the initial strike on the vessel, and the alleged follow-on strike once persons were in the water. The right to life framework evaluates each episode through the same lens, but the legality calculus changes as the facts evolve.

So the question is not “was this a good policy,” but “was lethal force strictly unavoidable to protect life.” That question applies twice here, first to the strike on the vessel, and then to what happened after. Applied to the first strike, the right to life framework does not ask whether the objective was important or whether the target was morally unsympathetic. It asks whether lethal force was strictly unavoidable to protect life at that moment. On the record available, the legal justification for the initial strike remains unproven. It becomes an unlawful deprivation of life if an investigation confirms that the vessel was not presenting an imminent threat to anyone and that feasible alternatives existed, including warning, pursuit, disabling measures, and interdiction oriented toward arrest.

For readers who still insist on an IHL frame, the legal assessment does not become easier. Even arguendo, a “no survivors” posture and any lethal action against shipwrecked survivors engage IHL’s bright line prohibitions on denial of quarter and the protection of persons hors de combat. That arguendo analysis is included for one reason: to show that the most generous reclassification still does not neutralise the legal gravity of the alleged conduct.