Marie Miller, Program Associate, Reiss Center on Law and Security, NYU School of Law

On September 2, 2025, President Donald Trump announced that he had ordered a kinetic strike against a boat off the coast of Venezuela. U.S. military forces, he said, had identified those onboard as “narcoterrorists” of Tren de Aragua (TdA), a decentralized criminal organization with Venezuelan origins and a transnational reach. Thirteen days later, another strike, and a glimpse into the administration’s purported rationale: to disrupt narcotics networks affecting Americans—notwithstanding that Venezuela plays essentially no role in fentanyl production and smuggling. And then came another. Now, nearly a year later, more than 200 have been killed in 66 strikes by the U.S. Without evidence, without interdiction and trial, nor the administration’s stated legal authority made public, there’s still no telling when Operation Southern Spear, as the U.S. calls the campaign, will truly end.

With each strike, the administration has failed to make public any evidence that these boats are transporting drugs, much less that the passengers on board are affiliated with cartels or are participants in an “armed attack.” Most of the victims have not been identified, yet reports suggest victims include farmworkers and fishermen, compelled to participate in the trafficking network as independent laborers without ownership over the illicit product. With regard to cases where boats have been unusually crowded, one military official suggested that human trafficking victims could have been amongst those killed.

The Trump administration has claimed that the laws of war permit the killing of passengers smuggling narcotics in support of cartels designated as Foreign Terrorist Organizations (FTOs). In 2025, TdA was designated as such by Trump’s State Department, under a statutory authority delegated by Congress. Typically, the military can stop instances of trafficking with far less lethal force. If a vessel is suspected of ferrying drugs, it can be intercepted by the U.S. Coast Guard and its passengers arrested. Instead, it appears that boats merely suspected of drug trafficking have been blown to bits from above, taking the lives of those on board and occasionally leaving survivors who, eventually, are also presumed dead or missing at sea. Even if evidence had been provided that these individuals were indeed associated with TdA—and it has not—the administration’s justification for these strikes relies on a flawed legal basis.

An FTO designation made by the U.S. government can include financial, criminal, and immigration consequences for its material supporters. Importantly, despite having led to military operations in the past, the designation by itself does not create a state of war or armed conflict, nor does it authorize “wartime” authorities like targeting or detention. Nonetheless, in a classified memo notifying Congress of the administration’s legal basis for the operation, the “President determined that the United States is in a non-international armed conflict with these designated terrorist organizations.” The president can surely repel threats of terrorism when a sudden attack is imminent. Yet there is no evidence that this high threshold was met at the onset of Operation Southern Spear. The initial strikes were framed as “self-defense” against a critical threat to American life and security. A state’s self-defense is justified under the U.N. Charter’s Article 51 only in the case of preventing an armed attack or subduing an ongoing one.

In an undisclosed notice to Congress, the Trump administration apparently shifted its basis, indicating that the strikes go beyond discrete acts of self-defense, labeling the targeted cartels as “nonstate armed groups” whose actions amount to “an armed attack” against the U.S. Many legal experts, on the other hand, contend that drug trafficking and its effects cannot constitute an “armed attack” triggering the right of self-defense. In its description of non-international armed conflict, the International Criminal Tribunal for the former Yugoslavia refers to it as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” While the Trump administration has indicated that TdA is engaged in “irregular warfare” in the U.S., it has yet to define what this entails. Whether this amounts to “protracted armed violence” is uncertain and unsupported by available evidence.

In the absence of such an organized group engaged in protracted armed violence with the U.S., the law of armed conflict does not apply. Thus, the passengers on the boats—alleged associates of TdA, though not identified as such in the formal report from President Trump informing Congress of the initial strike—would not be combatants, nor civilians within an armed conflict. (If there was an armed conflict, the boaters’ civilian status would render them prohibited targets). Subsequently, the strikes would not be classified as war crimes. Outside of armed conflict, premeditated killing of suspected criminals is called murder. And under U.S. domestic law, it is prohibited. Article 6(1) of the International Covenant on Civil and Political Rights, to which the U.S. is a party, further prohibits arbitrary deprivation of life. Those responsible for authorizing the strikes may also be guilty of murder under Article 118 of the U.S. Uniform Code of Military Justice.

According to former U.S. State Department attorney Charlie Trumbull, with each of the 66 strikes constituting discrete acts of murder across a ten month window, the attacks can arguably be described as “widespread.” Crimes against humanity (CAH), one of three atrocity crimes alongside genocide and war crimes, are understood as part of a “widespread or systemic attack directed against a civilian population” in “furtherance of a State or organizational policy to commit such an attack.” A named policy—Operation Southern Spear—implemented by U.S. Southern Command in an organized manner, therefore, may meet the “state or organizational policy” requirement for CAH.

Operation Southern Spear appears to be one of many prongs of the Trump administration’s aggressive aims to reassert the U.S. preeminence in the western hemisphere, as part of the National Security Strategy’s “Trump Corollary to the Monroe Doctrine.” In spite of condemnation from civil society, a largely tepid response from Caribbean states met the U.S. militarization of the Caribbean and the capture of Maduro in January. While Cuba’s representative to the U.N. decried the “military aggression” of the United States against Venezuela, Trinidad and Tobago—whose military has partnered with the U.S. for joint exercises in Caribbean waters—verbally committed to the “cooperative efforts led by the United States to disrupt and dismantle networks that enable transnational crime,” remaining “steadfast” in support of U.S. “initiatives that strengthen regional security.” When Colombian President Gustavo Petro called one of the strikes “murder,” President Trump sanctioned members of his family, threatening to reduce aid and raise tariffs on the country. Since ending intelligence sharing with the U.S. (to, in his words, refrain from “collaborating with a crime against humanity”) Petro has reportedly toned down his criticism of U.S. Southern Command. Colombian authorities, moreover, have been slow to identify bodies that have washed ashore.

In the wake of Operation Absolute Resolve, which removed Venezuela’s president Nicolás Maduro from power, and the reported preparation of indictments against Cuba’s “political and military leadership,” Caribbean and Latin American states may be hesitant to further push back on the campaign, lest they risk falling into disfavor with a highly unpredictable Trump administration. In March, Ecuador began joint military exercises with U.S. Southern Command, with the intention of combatting drug trafficking. These led to various land and sea strikes, property destructions, and detentions. Since Operation Southern Spear appears to rely on a presumption that the U.S. is in an armed conflict with TdA, would the U.S. further target perceived associates—potentially including civilians—on land in Latin America? It is not outside the bounds of possibility.

If the relevant crime is indeed murder under U.S. law, the U.S. would hold prosecutorial jurisdiction. An ACLU case brought on behalf of the boat strikes victims’ families for wrongful death and extrajudicial killing is currently pending in Massachusetts, for instance. But if the killings are recognized as a crime against humanity, states outside of the U.S. may have universal jurisdiction status, in which international or foreign courts could step in when the U.S. fails to hold perpetrators accountable. This is why the distinction between war crimes and crimes against humanity matters. Despite President Trump’s ability to pardon those who have executed his orders in his chain of command, a determination that Operation Southern Spear is a crime against humanity would open new routes of accountability on the international level.

The International Criminal Court (ICC), for instance, can assert jurisdiction over crimes committed within the territory and maritime space of states that have ratified the Rome Statute. A point of comparative interest lies with the case of former Philippine president Rodrigo Duterte, who is now jailed after the ICC confirmed charges of crimes against humanity against him. In light of the murders of persons involved in drug-related criminal activity under the supervision of Philippines law enforcement, the ICC found reasonable grounds for the elements of crimes against humanity to be met. States can also prosecute crimes committed against their citizens abroad, such as the victims of the boat strikes, if they embrace passive personality jurisdiction and are able to either acquire prosecutorial custody or allow in absentia prosecution.

The geopolitical risks of accountability-seeking by victims’ states—Colombia or Trinidad, for instance—are evident. But the Trump administration won’t last forever. Right now, if they are able to muster the political will, Caribbean and Latin American states can quietly gather evidence of the strikes and secure witnesses. Once President Trump is out of office, indictments of perpetrators responsible for driving Operation Southern Spear on the state’s behalf can still come about.