Can international human rights law ever justify destroying drug shipments that can kill or addict Americans? (Maybe)

Recent U.S. military strikes on boats allegedly loaded with illicit drugs (typically killing everyone on board) have caused discussions around dinner tables and in classrooms, in the U.S. and around the world.  Most pundits charge the operations are illegal (but see here and here) and insist that the only lawful path is to rely upon law enforcement procedures to intercept the vessels, search them, and arrest the occupants if illicit drugs are found.  

While it appears the U.S. is continuing the Coast Guard’s anti-drug efforts using an international human rights law approach (that is, law enforcement procedures), they are being supplemented by military operations employing a law-of-war legal regime.

The latter decision seems to be based on the government’s conclusion that law enforcement measures weren’t working effectively enough to stem the flow of illicit drugs that killed 80,391 Americans in 2024, and caused “drug use disorders” (addiction) in millions more.

Unfortunately, the Administration has offered insufficient public information about the strikes or the legal rationale underpinning them.  Consequently, my view is that we currently lack adequate information to draw definitive conclusions about the legality or illegality of the strikes. 

To help you make your own assessment, this is the first of two “Q & A”-style posts that will discuss some of the possibilities based on the publicly available evidence.  Although the Administration is now striking alleged drug boats in the Pacific, this post will focus on the Caribbean, where cocaine is the principal drug being smuggled.

 

What is cocaine, and why is it dangerous? 

Cocaine is a vicious, highly addictive stimulant that can cause immediate death.  The Drug Enforcement Administration describes its effects this way:

“Restlessness, irritability, anxiety, paranoia, dilated pupils, insomnia, loss of appetite. Irregular heartbeat, ischemic heart conditions, sudden cardiac arrest, convulsions, strokes, and death. Tolerance builds quickly, easy to overdose. Long-term use of inhaled cocaine has led to a unique respiratory syndrome, and chronic snorting of cocaine has led to the erosion of the upper nasal cavity. The crash that follows a high is mental and physical exhaustion, sleep, and depression lasting several days. Following the crash, users crave cocaine again.”

Moreover, as one source reports:

[Cocaine causes] an increase in muscular activity can lead to a dangerously elevated body temperature. The extremities may also feel shaky and weak, and, eventually, the exhausted muscles may seize up to a point where the user may not even be able to call for help.  (Emphasis added)

How much cocaine is fatal? 

Here’s what the experts say:

Cocaine doses typically range from 30 – 70 mg, but as users develop tolerance, they tend to use more and increase their doses above 1 g. The minimum dose of cocaine that is considered lethal is 1.2 g, but users with hypersensitivity to cocaine have suffered fatal overdoses from as little as 30 mg. In some rare cases of remarkably high tolerance, cocaine addicts have reported using 5 g of cocaine daily, which would prove fatal for most individuals.  (Emphasis added.)

Thus, a single kilogram is potentially lethal to more than 800 people.  It is not unusual for a drug boat to carry 1,000 kilograms.

How many people in the U.S. have been killed by cocaine?

In the U.S. alone, the drug killed at least 22,174 people in 2024, about seven times the number who died in the 9/11 attacks.  Over two million people in the U.S. suffer from cocaine addiction.  (Overall, as noted above, it is estimated that there were 80,391 drug overdose deaths in 2024.) 

What is the legal status of cocaine in the US?

According to the DEA: 

“Cocaine is a Schedule II drug under the Controlled Substances Act, meaning it has a high potential for abuse and has an accepted medical use for treatment in the United States. Cocaine hydrochloride solution (4 percent and 10 percent) is used primarily as a topical local anesthetic for the upper respiratory tract. It also is used to reduce bleeding of the mucous membranes in the mouth, throat, and nasal cavities. However, more effective products have been developed for these purposes, and cocaine is now rarely used medically in the United States.”

How available is illegal cocaine? 

Consider this report:

“According to Statista, in 2022, about 1.1% of high school students reported having used cocaine at some point in their lives. 17.7% of high school students indicated that obtaining cocaine is “fairly easy” or “very easy.” ”  (Emphasis added.).

Cocaine is a threat not just to the U.S., but to countries around the globe.  Here’s a May 2025 assessment from Insight Crime:

“Despite record cocaine seizures in production and transit countries, huge quantities of the drug arrived in consumer markets in 2024.”

“Across the board, cocaine production soared, and traffickers explored new markets to profit from their never-before-seen levels of supply. Record-breaking seizures became the norm across the world, yet these multi-ton interdictions likely made only a small dent in what has become one of the most lucrative and violent industries for Latin American organized crime.”

Recently, headlines shouted “America Loves Cocaine Again,” noting that cocaine “[c]onsumption in the western U.S. has increased 154% since 2019 and is up 19% during the same period in the eastern part of the country.”  In other words, the threat is very real and increasing.

How successful have maritime law-enforcement intercepts been?

Secretary of State and Acting National Security Advisor Marco Rubio has said “interdiction doesn’t work because drug cartels plan to lose 2% of their cargo.”  The suggestion seems to be that 98% of the drugs do get through.  I think interdiction may be better than that, but not by much.  

Here’s what the Department of Homeland Security Inspector General (IG) concluded in part in a report from last February:

“The United States Coast Guard (Coast Guard) was not able to consistently interdict non-commercial vessels smuggling drugs into the United States. From fiscal years 2021 through 2023, the Coast Guard interdicted an estimated 421.9 metric tons of cocaine but fell short of its total cocaine removal goal of 690 metric tons. This occurred, in part, because the Coast Guard did not always have cutters available to perform the counterdrug mission and did not have a contingency plan to address the cutters’ unavailability.”

Notably, the 421.9 metric tons of cocaine intercepted by the Coast Guard represented a little more than 5% of the 7,924 metric tons of the “total known non-commercial maritime cocaine flow from fiscal years 2021 through 2023.”

If a bulk shipment isn’t stopped at sea, experience shows that halting the flow is much harder, and significantly greater quantities will get through.  A Coast Guard officer conceded:

“While stateside law enforcement seizures have more visibility, stopping bulk loads of cocaine before they reach the United States can be more effective at slowing the flow of illicit drugs. In 2024, Customs and Border Patrol seized 28.4 metric tons (MT) of cocaine; the U.S. Coast Guard intercepted 106.3 MT.”

“Seizing bulk shipments at sea prevents cartels shoreside from breaking the loads into smaller amounts, which are more challenging to interdict.”

Overall, how successful has law enforcement been in interdicting cocaine?

According to a July 2025 Department of Justice report, since January 20, 2025 the Drug Enforcement Administration (DEA) ashore has seized “more than 201,500 pounds of cocaine.” If the rate continues, we might expect a total of 400,000 pounds (about 181 metric tons) of cocaine to be seized in 2025. 

This means that despite heroic efforts, US government law-enforcement–both maritime and ashore–could, at best, be expected to intercept 12-13% of the cocaine before it reached US streets.

Why are law-enforcement maritime drug intercepts so hard?

As the Coast Guard itself says, it is “most successful at interdicting high-speed vessels when using a force package that combines maritime patrol aircraft, unmanned aerial surveillance, airborne use of force, and surface pursuit assets.”  Assembling that package at precisely the right time and place is challenging.

For example, Coast Guard ships cannot chase down “go fast” boats like the ones commonly targeted in these cases, because the narco-vessels are “much faster than Coast Guard cutters and their rigid-hull inflatables.”

Rather, interception depends upon the immediate availability of an expert sharpshooter on a helicopter who tries “to engage the vessel with warning shots and disabling fire.”   Here’s a bit more detail about how the HITRON (Helicopter Interdiction Tactical Squadrons) work:

“HITRON’s helicopters were equipped 7.72 mm MGs and a .50 caliber, laser sighted, precision rifle. When a fast boat attempted to outrun a cutter, its assigned HITRON aircraft would quickly overtake the fleeing vessel, and if both commands to stop and warning shots across its bow were ignored, the helo’s gunner would disable the go-fasts engines with a shot from the .50 caliber rifle.”

Firing these shots can be dangerous.  In January 2024 an alleged narco-boat crewman was accidentally killed by what was intended to be disabling fire. 

Once slowed or stopped, a nearby Coast Guard team will attempt to board and secure the vessel.

Again, the need for all the right resources at the right place at the right time underscores the inherent limitations of the law enforcement approach–particularly given the enormous size of the maritime domain.

How large? As a Coast Guard officer put it, “in the Maritime Transit Zone—a 6 million square mile region between the United States and drug-producing countries that is roughly twice the size of the continental United States—interdiction is a cat-and-mouse game.”

There are limited assets with which to play the “cat-and-mouse game.”  For example, in the Coast Guard’s Sector San Juan (responsible for 1.3 million square miles of the Eastern Caribbean), there are just five cutters assigned. 

Even when temporarily supplanted by U.S. Navy ships and those of coalition partners, it remains a vast area, particularly given the Coast Guard’s responsibility to carry out a wide variety of other missions and mandates.

Can only the Coast Guard be involved in law enforcement activities on the high seas?

No. The Coast Guard does have explicit law enforcement authority under U.S. law (here), and has historically taken the lead in enforcing the Maritime Drug Law Enforcement Act (MDLEA).

However, there does not appear to be any constitutional or statutory provision that affirmatively prohibits the use of the armed forces to enforce the law on the high seas.  Among other things, the Posse Comitatus Act, which curtails the use of the military for domestic law enforcement, does not apply extraterritorially, including on the high seas.

Can deadly force be used in a law-enforcement setting? 

In certain circumstances, the answer is “yes.”  As the International Committee of the Red Cross (ICRC) put it in its monograph about international human rights law (IHRL) in law enforcement settings (emphasis added):

[R]esorting to firearms [and “other forms of lethal or potentially lethal force] is authorized exclusively in the following’ situations, and only when less extreme means are insufficient to achieve these objectives:

• • • self-defence or defence of others against the imminent threat of death or serious injury

• • • prevention of the perpetration of a particularly serious crime involving a grave threat to life

• • • arrest of a person presenting a danger of perpetrating such a crime and resisting authority, or prevention of his or her escape.

In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. (Emphasis added.)

This generally comports with U.S. domestic law as expressed in Graham v. Connor, 490 U.S. 386 (1989).  The U.S. Department of Justice (DoJ) explains:

“Officers may use force only when no reasonably effective, safe, and feasible alternative appears to exist and may use only the level of force that a reasonable officer on the scene would use under the same or similar circumstances.”

“As the Supreme Court stated in Graham: The decision to use force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id at 396.”  (Emphasis added.)

What does “imminence” mean?

The meaning of “imminence” has evolved in recent decades with the rise of powerful terrorist organizations.  Once (and still by some) assessed in strictly temporal terms, many authorities now consider it a contextual concept.  For example, back in 2012, then Attorney General Eric Holder observed:

“The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States….

“Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel…In that case, our government has the clear authority to defend the United States with lethal force.” (Emphasis added.)

Later, in the Obama Administration’s Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations issued in December 2016, it described the factors used in determining if there was an “imminent” threat:

These factors include “the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.”…[It] is now increasingly recognized by the international community, the traditional conception of what constitutes an “imminent” attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations. (Emphasis added.)

Many international authorities take a similar approach.  For example, in the highly influential Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, the issue of imminence was addressed.  Specifically, the Manual says:

“The majority of the International Group of Experts rejected the strict temporal analysis of imminence. It took particular note of the ‘last feasible window of opportunity’ standard.””

Later, the Manual noted that key scholars took a practical approach, given the realities of 21st-century threats:

“For these Experts, the critical question is not the temporal proximity of the anticipatory defensive action to the prospective armed attack, but whether a failure to act at that moment would reasonably be expected to result in the State being unable to defend itself effectively when that attack actually starts.”

Though emerging from somewhat different circumstances, decide for yourself if you think it’s appropriate to employ the “last window of opportunity” standard to the extraordinarily lethal–and unique–threat that bulk drug smuggling on the high seas presents, taking into account that opportunities to act amidst the 6 million square mile Maritime Transit Zone may be fleeting.

Does the criminal offense have to be punishable by death before deadly force can be used?

No, neither U.S. nor international law requires that the offense involve a potential death penalty before deadly force is used.  Understandably, the ICRC says it must involve a “particularly serious crime.”  Drug trafficking is a very serious offense in the U.S., and the severity of the penalty varies according to a number of factors (see here).

Although drug trafficking alone is not a death penalty offense in the U.S., the issue is more complicated than that.  The Death Penalty Information Center points out:

In 1988, President Reagan signed the Anti-Drug Abuse Act. This legislation included a provision, sometimes referred to as the “drug kingpin” death penalty, which created an enforceable federal death penalty for murders committed by those involved in certain drug trafficking activities. The death penalty provisions were added to the “continuing criminal enterprise” statute first enacted in 1984, 21 U.S.C. § 848. The drug trafficking “enterprise” can consist of as few as five individuals, and even a low-ranking “foot soldier” in the organization can be charged with the death penalty if involved in a killing.

Must there be evidence of guilt beyond a reasonable doubt before deadly force can be used in a law enforcement setting?  

No. As the Supreme Court explained in Graham, the standard is “objective reasonableness.”  DoJ explains:

“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id at 396-97. In addition, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id at 397. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” (Emphasis added.)

It is important to note again that the ICRC says the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 

Have military forces used deadly force to stop purely for-profit criminal activities on the high seas?

Yes, many times.  In 1802, President Thomas Jefferson sent warships to attack the Barbary pirates, who were engaged in human slave trafficking, armed robbery at sea, and extortion, causing the victimization of thousands of innocents—including Americans.  Although Congress had not declared war, it did authorize arming and manning vessels “for protecting  effectually the commerce and seamen..in the Mediterranean and adjoining seas.”  Scholars generally consider Jefferson’s actions lawful under domestic and international law 

In fact, over the years, the US Navy has conducted numerous military operations to interdict criminal (piratical) activities at sea.  In a highly-publicized case (later made into a movie), U.S. Navy SEALS rescued a kidnapped merchant captain on the high seas, killing three of his captors.

The international community well recognizes the need for military force against criminal threats at sea. In fact, the UN Security Council passed multiple resolutions starting in 2008 that authorized countries, including the United States, to use “all necessary means” to fight pirates off the coast of Somalia who were seizing and ransoming merchant ships and crews for profit.  

Later UN authorizations permitted attacks not only on those who had seized or were about to seize a ship, but also on their alleged bases in Somalia itself.  Because traditional law enforcement activities failed to sufficiently suppress the criminal activity, these authorizations and those of the internationally-supported Somali government permitted multi-national military forces to conduct combat-like operations under the law of war rules against criminals solely engaged in for-profit ransom activities that rarely involved killing captives.  (Interestingly, both international humanitarian law and international human rights law were cited in the resolution.)  

What do we know? 

As I say, there isn’t much publicly available information, but there is some.  For example, the videos of the boats themselves fit the description of the “go-fast” vessels that are the “frequent modus operandi for criminal groups and organizations for drug trafficking and distribution.”

In addition, the President said the U.S. had “tapes of them speaking,” presumably a reference to the U.S.’s powerful signals intelligence capability that seems to have been employed to identify the drug-smuggling activities. This is the same capability American forces often used to target terrorists and other adversaries after 9/11.

How good is the intelligence?  There is at least one incident that amply supports its accuracy.  In late September, CBS News reported:

“In a news conference, the Dominican Republic’s National Directorate for Drug Control (DNCD) said it recovered 377 packages of cocaine from the boat which was allegedly carrying 1,000 kilograms, or more than 2,200 pounds, of the drug. The drugs were recovered after “an aerial military strike by the United States against a speedboat of narcoterrorists,” the DNCD said in a statement.”

As to another strike, Secretary Rubio stated that the boat was headed to Trinidad, and this led some to believe there was no threat to the U.S.  However, it is consistent with such a threat. As the Global Organized Crime Index explains:

“Cocaine trafficking is pervasive in the country, with foreign actors exercising influence over the market. The country lies along one of the world’s most significant cocaine corridors, which influences Trinidad and Tobago’s role as a transit country for South American cocaine bound for the US and Europe.”

Attempting to evade: In the case of one of the alleged go-fast drug boats, reports indicate it attempted to evade aerial surveillance. It seems plausible that the crew assumed a Coast Guard cutter would appear and tried to evade pursuit and arrest. perhaps in hopes of outrunning the Coast Guard vessel.  Nevertheless, besides possibly providing a basis for the use of force, the attempt at evasion is also indicative of “consciousness of guilt.”

Concluding thoughts

Allow me to reiterate: we do not have sufficient public information to definitively conclude, one way or another, on the legality of the boat strikes.  Depending on the facts, might there be a path under a law enforcement approach that could justify, in certain cases, the destruction of an alleged drug boat?  You decide this scenario:

An armed US Navy surveillance drone discovers a boat with two crew members speeding across the high seas in the Caribbean.  Intelligence intercepts and surveillance imagery, along with an analysis of the configuration of the boat, its bundles (visible amidship being consistent with the packaging and arrangement of a 1,000-kilo cocaine shipment), its course, and other factors, allow for a good-faith, reasonable determination that the vessel, which is flying no flag, is engaged in illicit cocaine smuggling.   

There is no Coast Guard cutter or other law enforcement vessel available and, given the boat’s speed and direction, as well as the other information, it is reasonable in this instance to assume it will be among the approximately 95% of shipments that escape maritime interdiction and reach the U.S.  That being the case, would it be lawful to use deadly force, as a last resort, to stop the shipment which, again, is reasonably believed to be extremely harmful if not lethal to hundreds or even thousands of Americans? 

What should the decision-maker do, especially since it is impossible to know the facts with certainty?  Would the decision-maker on the scene be acting in an “objectively reasonable” fashion to destroy the boat to protect the lives of those who the drugs will certainly victimize?  Can the decision-maker take advantage of what reasonably appears to be the “last window” of opportunity?  Or should the decision-maker simply notify the authorities ashore and hope they are lucky enough to find and stop the traffickers?  What would be the consequences of inaction?

Again, you decide.

Something to think about:  

In the next post, we will grapple with the legal theories the Administration seems to rely upon:  the jus ad bellum legal approach, and the non-international armed conflict legal regime, theories successfully propounded after 9/11 when the nation and, really, the world, realized that terrorism had outstripped the ability of law enforcement to contain it. 

We can’t lose sight of the 80,000+ Americans being killed each year by drugs being smuggled into the U.S., but we should also recognize that interdiction cannot really work until demand is brought under control. A holistic approach that includes treatment is the only one that will ultimately work.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!