The U.S. can, and does, go after foreign terrorists outside of U.S. soil. U.S. presidents generally have broad authority to authorize military action, at least temporarily. The attacks on Iran's nuclear facilities and on a boat carrying alleged Venezuelan gang members (in June and September of this year, respectively) are clear examples. But international and U.S. law is complex. This blog explains international law regarding U.S. attacks on foreign nationals and the potential domestic and global consequences.
Is it 'Legal' to Bomb a Foreign Territory Without Congressional Approval?
As we previously wrote, the U.S. Constitution states that only Congress can declare war, at least theoretically. However, presidents have used Congressional resolutions like the Authorization for the Use of Military Force (AUMF) to justify military actions. Historically, there have been cases where presidents have acted without a formal declaration of war, as in Korea and Vietnam, and more recently in Syria and Iran. The 1973 War Powers Resolution limits the time that forces can be engaged in combat without congressional approval, but it allows for responses to attacks and emergencies.
It's important to note that the Trump administration has declared Tren de Aragua to be a terrorist organization. Although AUMF was not used as a justification for attacking the alleged TdA boat, there is potential for it to be used in pursuing alleged members of TdA in the future.
A Snapshot of Maritime Law
What about attacking terrorists (or alleged terrorists) in international waters? According to the U.S., the attack against alleged Tren de Aragua members took place in international waters, not in Venezuelan territory (or sea). A country's territorial sea is the portion of the sea that belongs to that country. Territorial sea is a strip adjacent to a nation's coast, up to 12 nautical miles (about 22.2 kilometers).
The "Exclusive Economic Zone" extends up to 200 nautical miles and grants the state sovereignty over natural resources in the water, on the seabed, and underground. International waters extend beyond the exclusive economic zones.
The vast majority of the world's countries have signed the United Nations Convention on the Law of the Sea (also known as the Montego Bay Convention). This convention is an agreement among nations about rules in international waters. The United States has not signed it. However, the United States previously stated that it would act in accordance with the treaty even though it is not a party. The Convention mandates the avoidance of the use of force, especially lethal force. However, since the U.S. is not a signatory, it did not violate its international obligations.
International Human Rights Law
It can be argued that the attack on the alleged gang boat would violate the International Covenant on Civil and Political Rights, which holds that all people have the right to life. But, again, the U.S. is not a signatory. Neither has it signed the Convention against the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, or the Convention on the Rights of Persons with Disabilities.
If you're wondering whether the U.S. has signed fewer international human rights treaties than other Latin American or European countries, you're right. The "whys" of this are topics for debate that deserve another blog (or blogs).
Could the U.S. Face International Sanctions?
For the purposes of the recent attack, it's unlikely that the U.S. would have adhered to certain international treaties if it were a signatory. It didn't appear to be a response to an imminent attack, it used lethal force, and the U.S. didn't allow the alleged gang members to defend themselves in court, killing them outright without due process.
However, even if the U.S. were a signatory to the ICCPR, other countries would be unlikely to want to sanction the U.S.
Unlike other types of law, international law is as much about diplomacy as anything else. For example, the U.S. retaliated against judges and prosecutors of the International Criminal Court (ICC) who conducted investigations against Israeli leaders for crimes in the war in Gaza and against U.S. personnel in Afghanistan.
These sanctions froze all assets held by ICC officials in the United States and barred them from entering the country. They also prohibit U.S. citizens from doing business with them or providing them with funds or services. Both Israel and the United States argued that the ICC had no authority over its citizens, as neither country is a party to the Rome Statute (the treaty that created the ICC).
The Trump administration insists it is defending the national sovereignty of itself and Israel. Other countries disagree. The UN called the U.S. sanctions “an attack on the rule of law.” France, for its part, issued a statement urging the United States to lift the sanctions, emphasizing the importance of defending the independence of international institutions like the ICC. The ICC called the measures a “flagrant attack on the independence of an impartial judicial institution.”
Despite the rebuke, however, no official action has been taken by any country over U.S. sanctions.
What About U.S. Domestic Law?
President Trump invoked the powers granted to him by the Constitution in Article II to support the attack. The president, as head of the nation's armed forces, claimed to be acting in self-defense, ordering U.S. military forces to destroy the vessel to protect Americans and combat terrorist organizations, given the inability or lack of cooperation of other countries. As previously noted, the Trump administration designated Tren de Aragua as a terrorist organization. In his statement to Congress, President Trump asserted that the members of the vessel had "affiliation with a gang involved in illicit drug trafficking activities."
What's Next?
In a somewhat bizarre twist to this story, Venezuela is not criticizing the legality of the attack on its nationals. Instead, it denies that the attack occurred and claims that the video Trump shared was created using artificial intelligence.
Regardless of any consequences (or lack thereof), the current situation shows that tensions are rising over the presence of cartels in the U.S. Questions about how far the U.S. will go in persecuting TdA and other cartels seem far from over.
Related Resources
- Trump's Tariffs Face Legal Tussles (FindLaw's Federal Courts)
- SCOTUS Upholds Ability for ICE to Stop People Based on Race, Language, and Job (FindLaw's Federal Courts)
- America's Sanctions Showdown With the ICC Over Netanyahu Arrest Warrant (FindLaw's Courtside)
