President Trump has told Congress that he has decided the US is in an “armed conflict” with drug cartels, signaling he’s planning to expand the US military campaign in Latin America, The New York Times reported on Thursday.
In the memo, Trump cited his administration’s steps to designate Latin American drug cartels as “terrorist” organizations, which he has used to justify the bombing of three boats in the Caribbean. His administration has provided no evidence to back up the claim that the 17 people who were killed in the strikes were drug traffickers.
Trump and his top officials have justified the extrajudicial executions at sea by framing attempts to bring drugs into the US as attacks on the country. The president has pointed to the high number of overdose deaths in the US, which are mainly caused by fentanyl and other opioids. But the US military action has focused on Venezuela, which is not a source of fentanyl, as the synthetic opioid mainly comes into the US from Mexico. US officials have made clear that another agenda is at play when it comes to Venezuela, as they are pushing for regime change in the country.
The notice to Congress says that Trump has “determined” that cartels involved in drug smuggling are “nonstate armed groups” whose actions “constitute an armed attack against the United States.” The claim is being used to justify bombing boats out of the water and murdering the people on them instead of interdicting the vessels and seizing drugs, the standard practice to stop narcotic shipments.
The memo states that the US and the cartels are engaged in a “non-international armed conflict,” using a term from international law. According to the International Committee of the Red Cross (ICRC), a non-international armed conflict refers to conflicts in which one or more non-state actors are involved. It can refer to conflicts where non-state actors are fighting each other or engaged in combat with a government, and a closer look at the definition makes it clear that Trump’s claim doesn’t hold water.
To meet the threshold for a non-international armed conflict, the ICRC says the hostilities “must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.”
The ICRC says that the “non-governmental groups involved in the conflict must be considered as ‘parties to the conflict,’ meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.”
The nature of the cartels and gangs that Trump has designated as terrorist organizations is that they lack a command structure and are very decentralized. President Trump claimed the first strike on a boat targeted members of the Venezuelan gang Tren de Aragua, which a US intelligence assessment described as “loosely organized cells of localized individual criminal networks.”
The US assessment also said that Tren de Aragua’s “decentralized structure makes it highly unlikely” that it “coordinates large volumes of human trafficking or migrant smuggling.” According to InSight Crime, a US-government-funded think tank that focuses on organized crime in the Americas, Tren de Aragua is not even considered a “transnational drug trafficking organization.”
“Elements of the gang certainly engage in the retail sale of narcotics, and there have been sources talking about migrants and gang members carrying small amounts of drug across borders in Latin America, but so far there are no cases of large cocaine shipments being linked to Tren de Aragua, especially not in connection with the US market,” Jeremy McDermott, co-founder of InSight Crimes, wrote on August.
Legal experts have ripped the Trump administration’s weak attempts to find a legal justification for its extrajudicial executions in the Caribbean. Geoffrey S. Corn, a retired judge advocate general lawyer who served as the US Army’s senior adviser for law-of-war issues, told the Times that drug cartels were not engaged in “hostilities” and that it was illegal for the US military to target civilians who are not involved in armed attacks, even if they’re suspected of criminal activity. “This is not stretching the envelope. This is shredding it. This is tearing it apart,” he told the paper.
Members of Congress on both sides of the aisle are also questioning the legal rationale for the campaign. According to a report from The Wall Street Journal, during a Senate Armed Services Committee briefing on Wednesday, senators pressed the Pentagon’s top lawyer, Earl Matthews, who refused to provide a written justification for the strikes.
