ARGUMENT: NO ARMED CONFLICTAttacking Drug Boats: Bending or Breaking the Law?
The Trump administration’s policy of attacking alleged narcotics trafficking boats continues unabated with little apparent concern for near-unanimous legal condemnation. Geoffrey Corn and Ken Watkin write that the administration’s argument that it is engaged in self defense against a non-state group engaged in armed conflict against the United States is factually flawed and “legally defective.”
U.S. attacks on alleged narcotics trafficking boats continue unabated with little apparent concern for near-unanimous legal condemnation. Geoffrey Corn and Ken Watkin write in War on the Rocks that the Trump administration justifies these attacks by making two assertions: it argues, first, that its policy amounts to an exercise of national self-defense; and, second, that it is self-defense against a non-state group engaged in armed conflict against the United States.
These are “two inherently defective legal assertions,” Corn and Watkin write. As is the case with the administration’s own legal invocation of the right of self-defense and that this situation constitutes an armed conflict, the legal opinions supporting the administration’s policies “seek to push a legal square peg into an operational round hole.”
Corn and Watkin continue:
The fundamental flaw of both these assertions of international legal authority is that they seek to transform what is into what isn’t: what is fundamentally a law enforcement challenge into what isn’t a war by any objective measure. This conclusion is not based on a “restrictive” or overly formalistic view of international law. Indeed, we have both been strong advocates for acknowledging the right of self-defense and the existence of armed conflicts in the post-9/11 period. It is undeniable that interpretations of the law to deal with the threat posed by al-Qaeda and similar groups expanded beyond a traditionally more restrictive approach, which only accepted that self-defense could be exercised against attacks by states. The very term “transnational” armed conflict — an armed conflict against a non-state organized armed group operating beyond national borders — was first suggested by one of us in a 2005 Army Law article.
But acknowledging such an evolution is not an invitation to transform every national security threat into an armed conflict. Unless such a threat manifests in a manner that effectively overwhelms normal law enforcement response capabilities, it is legally and functionally overbroad to treat it as an armed conflict. When dealing with a non-state group, that line is crossed only when the group has military-type organization, engages (or is about to engage) in armed attacks against the United States or its personnel or interests abroad, and brings to bear a military-type capability that cannot be effectively addressed within the normal law enforcement legal framework. In short, only when common-sense dictates a genuine threat-based necessity to resort to combat power is it legitimate to assert the existence of an armed conflict.
