The American campaign of attacking vessels in international waters from the Caribbean Sea near its shores to far-flung West Asia,
which has killed more than 200 sailors so far, is illegitimate under international law, according to Prof. Radhika Jagtap.
While the Donald Trump administration has defended strikes in the Caribbean and the eastern Pacific as legitimate actions against narcoterrorist groups, and justified strikes on ships in West Asia —
including repeated attacks on Indian-crewed vessels that killed three Indian sailors— as permissible acts of war, Jagtap argued that international law requires seizure and arrest in the first instance, rather than the use of force against a vessel.
In the Caribbean and the Eastern Pacific, the US military has killed at least 215 sailors in 66 strikes. The US military has not identified the sailors it killed, named the groups to which they purportedly belonged, or furnished evidence of drug smuggling in most of these strikes.
Jagtap, who teaches international law and humanitarian law at UPES, explained to Firstpost how the international legal frameworks view US attacks on ships in international waters.
The interview has been edited for brevity and clarity.
What international legal provisions —conventions, UN provisions, customary law, etc — govern warfare at sea in general and US strikes in the Caribbean/Eastern Pacific and West Asia in particular?
There will be four different regimes at work in general if there is warfare or technically speaking, “use of force” at the high seas.
Firstly, the UN Charter prohibits the sovereignty, territorial integrity and political independence of the flag state or the coastal state as under Article 2(4).
Without any pre-emptive strike or military provocation, no use of force is justifiable as per the Charter provisions.
Secondly, the UN Convention on the Law of Sea (Unclos) is not an essentially law of warfare but it does have certain provisions that protect freedom of navigation, transit and safe passage to neutral and non-armed vessels. This also includes commercial vessels.
Thirdly, the convention also requires the navigating states to refrain from using force or any form of threats that may compromise other state’s sovereignty, especially if the former is in the territorial waters of the latter.
Fourthly, the customary and foundational principles of International Humanitarian Laws like “military necessity”, “proportionality”, and “distinction” will be applicable if the war or armed conflict is in a state of existence. The 1949 Geneva Conventions came into play to protect the shipwrecked, wounded and civilians on board. Belligerent vessels are strictly required to not attack neutral or civilian or merchant vessels.
In the eyes of international law provisions, how do you look at American strikes in the Caribbean, Eastern Pacific, and West Asia?
Looking at the US strikes in the Caribbean/Eastern Pacific and West Asia in particular, there is an evident concern of illegitimate as well disproportionate use of force.
In the case of strikes in the Caribbean, the justification was given in favour of eliminating drug cartels. However, no evidence of boats being used for the same was produced to the satisfaction of international law that could have allowed the United States to exercise its extraterritorial or universal jurisdiction.
However, drug trafficking isn’t a “core international crime” but is considered as “transnational organised crime”, which requires high level coordination, cooperation and consultation among affected nation states in terms of combating it.
American strikes amounted to extrajudicial murders. The killing of the sailors of MT Settebello invites a deeper International Humanitarian Law (IHL) scrutiny.
As the United States continued with the blockade, it was supposed to warn the vessels to not approach. Even when the vessel ignored or missed the warnings, international law requires seizure and arrests first and not use of force against the vessel.
Even if a ship or boat is suspected of carrying drugs, as in the Caribbean/Eastern Pacific, does international law allow a country to strike it with a missile or does it mandate arrests and prosecution in line with a law enforcement process?
If there were an apprehension or sufficient reason to believe that the ship carried drugs and had the ship been in American territorial waters, the United States could exercise its jurisdiction and its own territorial law and act accordingly.
But, on the high seas, as long as it was not piracy, the United States has no legal capacity to take any measures as such. However, if there was the flag state’s consent, the United States could take necessary law and order measures in a pursuit of combating the transnationality of the crime in question.
Does drug trafficking qualify as a law enforcement matter or a military matter justifying lethal strikes? Does a unilateral terrorist designation allow a country t destroy boats and kill sailors in the absence of any imminent threat from these vessels?
Notably, the United States has been striking boats without coming under attack and without checking whether the sailors were armed or whether the vessels carried weapons. The entire exercise is based entirely on suspicion.
Drug trafficking is not a military matter or a war crime. It is an international crime but of transnational nature requiring cooperation and consultation among states.
The UN Convention on Transnational Organised Crimes governs the same and it does not allow a country to destroy boats and kill sailors in the absence of any imminent threat from these vessels or strong evidence to justify the killings.
In the Caribbean/Eastern Pacific, the US military has at least once admitted to striking unarmed, shipwrecked sailors. How does international law view this?
International law views it as an illegal use of force inviting serious questions of state responsibility on the United States.
Articles on State Responsibility –adopted in 2001– define international state responsibility in cases of international wrong or breaches. The countries of the deceased sailors’ nationality could initiate a dispute against the United States in the International Court of Justice (ICJ) under UN Charter violation.
Are countries required to furnish evidence, even retrospectively, for lethal actions in international waters? The United States has not named the purported terrorist groups or identified the sailors it has killed in almost any of these strikes.
As a moral and ethical responsibility to the international community, there’s an expectation that the administration provides evidence, but there is no legal obligation binding the United States as such as long as there is no international litigation or an inquiry led by the UN Security Council or any other relevant UN body.
In my opinion, since these were around 64 different strikes, this could potentially qualify as a systemically committed crime against humanity as also under Article 6 of the ICC Rome statute. Although the United States is not a party to it, the affected country could accept the jurisdiction and register the matter with the ICC for the killings of its nationals.
Does international law allow a country to attack ships for violating blockades during a war? And how does this apply in a ceasefire, given that US strikes on ships in West Asia occurred while the United States and Iran were observing a broader ceasefire and were engaged in talks for a peace deal?
No, international law does not allow a country to attack ships for violating blockades during a war if they are civilian or commercial vessels. They are protected under the Geneva framework. Even if they are suspected of hiding adversaries or hostile groups, the benefit of doubt leans in favour of persons being civilians.
The Pentagon has argued that it warned the Indian-crewed ship, MT Settebello, nearly 60 times before striking it. Does this meet the criteria of international law?
No, again, ignoring warnings does not justify the military use of force against a civilian vessel. The US military personnel could have entered the vessels, raided it, arrested the captain and members, and could have seized it completely.
The situation in no case invited self-defence under Article 51 of the UN Charter as there was no “armed attack” from the other side first.
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