All of the suspected drug boat killings are murders | Kenneth Roth

The largely supine Republicans in Congress had no apparent trouble as Donald Trump and defense secretary Pete Hegseth ordered the killing of suspected drug runners off the coasts of Venezuela and Colombia. But suddenly they are up in arms because the Washington Post reported on 28 November about one incident, a double-tap strike, in which the US military finished off two survivors of an attack.

Tempted as I am to accept whatever it takes to spark some minimal scrutiny of these summary executions, I hope this unexpected opening prompts broader investigation of this entire series of murders, which have now claimed 87 victims in 22 attacks. As Democrats join in, there are some indications that this expanded scrutiny may be finally beginning.

The reason for the congressional awakening is the revelation that during the first strike on 2 September, the US military initially killed nine occupants of a boat but then returned to kill two men clinging to the remains of the destroyed boat. These two clearly posed no threat to anyone. The Pentagon has advanced no evidence to support its claim that they might have been trying to radio their compatriots. Admiral Frank “Mitch” Bradley, who was overseeing the operation, acknowledged that the two men were in no position to make a distress call.

Representative Adam Smith, the top Democrat on the House armed services committee, who has seen the still-withheld full video of the attack, said there was no evidence to support the claim that the survivors were trying to contact their collaborators. Representative Jim Himes, the top Democrat on the House intelligence committee, said the two survivors “were barely alive, much less engaging in hostilities,” when the follow-up strike took place.

The Pentagon has also fallen back on the claim that the two were trying to right the remains of the boat which might have still have contained cocaine. But the stricken boat was clearly going nowhere and could easily have been intercepted. There was no need to kill the two men clinging to its wreckage.

In an armed conflict, it is a war crime to attack people who have been shipwrecked at sea, as some in Congress have alleged. They are considered hors de combat – outside the fight – and hence no longer combatants who can be shot on sight. They are akin to wounded or surrendering combatants. Opposing forces have a duty to receive and care for them, not kill them.

But the United States is not in an armed conflict with the alleged drug cartels that Trump is targeting. Despite the rhetoric being bandied about, there can be no war crime if there is no war. But there can still be murder, which these attacks were. So were every one of the other killings at sea that Trump and Hegseth have ordered.

Drug cartels are criminal networks. The US Coast Guard has a long history of interdicting such boats and arresting participants for prosecution. That is a law-enforcement operation. International human rights law strictly limits when such an operation can use lethal force – only as a last resort to avoid an imminent threat of death or serious bodily injury. Except in the most dire circumstances, we want police presenting people for trial, where they can contest the evidence against them before an independent judge and jury. We do not want a police officer on the beat to serve as the judge, jury and executioner.

Trump sought to evade that requirement by declaring an “armed conflict”. Under international humanitarian law governing armed conflicts, enemy combatants who are not trying to surrender or are otherwise hors de combat can be summarily shot. There is no duty to try to detain them.

But the existence of an armed conflict is not a subjective phenomenon dependent on the whims of a national leader, let alone one so prone to flights of fantasy as Trump. It is an objective inquiry, requiring sustained hostilities between two organized armed forces.

The drug cartels being attacked by Trump are not at war with the United States. They are not shooting at the boats and drones hunting them down. To be sure, they are often trying to move cocaine and other drugs to the United States, which brings its own dangers, but that is not an armed conflict. Indeed, US law does not even impose the death penalty for drug trafficking, yet Trump is summarily executing these suspects without bothering to present evidence against them and allowing them to defend themselves in court.

For Trump to be able to concoct an armed conflict out of thin air is extraordinarily dangerous. If these suspected drug runners can be summarily executed upon Trump’s mere assertion of a war against them, he could do the same to kill off anyone – shoplifters, jaywalkers, or even anti-Trump protesters. The national guard whom Trump is deploying to Democratic-run cities could be the agents.

The precedent set would compound the dangers. Vladimir Putin and Xi Jinping could declare a fake “war” to assassinate their own dissidents, whether at home or in exile. The most fundamental human right – the right to life – would be rendered meaningless.

By all means, Congress should challenge Trump about the blatant illegality of the 2 September double-tap strike. That was murder, plain and simple. But the other 85 people who have been killed during the attacks on suspected drug boats since early September were also murdered. The secret Department of Justice memo approving these attacks reportedly relies on little more than Trump’s assertions, which may explain why the administration has refused to release it.

It is understandably difficult to defend drug suspects. They are not the most sympathetic of victims, even if the men taking these dangerous boat rides are far from the kingpins running the cartels. But the stakes are more profound. There is no rule of law if the president can deem anyone an enemy combatant and order them summarily shot. Political leaders should stand for more than merely continuing in office whatever the price. If there is ever a time for Republicans in Congress to risk a Trump-inspired primary challenge, this is it.

• Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs. His book, Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments, is published by Knopf and Allen Lane.