Editor’s note—This post is part of a special series of CERL’s The Rule of Law Post titled, “The President, the U.S. Military, and the Authority to Order Lethal Boat Strikes.”
Since September 2, 2025, the U.S. military has been attacking boats in the Caribbean Sea and the eastern Pacific Ocean, alleging these vessels are smuggling drugs. On January 3, 2025, U.S. forces launched a strike against Venezuela and captured Venezuelan President Nicolás Maduro. On March 8, 2026, the U.S. military stated it launched another strike against a ship alleged to be carrying drugs, killing six men.
In this series, expert contributors address fundamental legal and normative questions arising from the escalating military campaign, including those relating to the role of the law of armed conflict and the law of the sea, as well as the role of senior military lawyers and legal ethics. The series also addresses Article II powers, presidential immunity, government transparency, and the strong presumption of legality for orders under existing law.
On October 2, 2025, U.S. military forces began a series of attacks on boats in the Caribbean alleged to be drug traffickers. These attacks were directed by civilian officials including President Donald Trump and Secretary of Defense Pete Hegseth, though in at least one instance Secretary Hegseth declaims having given the fateful order. The United States attempted to justify these attacks using the framework of war, with the White House notifying Congress that drug traffickers are “unlawful combatants” and that the United States was in an armed conflict with the cartels. Most legal experts have contested this framework, given that there is no evidence of any organized armed group fighting with the United States. But even within that contested framework of armed conflict, a subsequent attack on survivors who were clinging to a vessel appears to have violated both the Geneva Conventions and the Department of Defense Law of War Manual.
When the United States invaded Venezuela on January 3, 2026, however, the U.S. military was suddenly not at war. When helicopters carried U.S. special operations forces into Caracas, Venezuela to seize Venezuelan President Nicolás Maduro and his wife, Cilia Flores, and take them to the United States to face criminal charges, U.S. officials insisted that the mission, dubbed “Operation Absolute Resolve,” was not an armed conflict (despite its toll of about 100 deaths). Instead, they said it was a law enforcement operation to bring a wanted person to justice. In the aftermath of the raid, President Trump also declared that the United States would now run Venezuela.
Is the United States at war with drug cartels? Were the boat strikes legal? Was it legal to invade Venezuela and oust its president? Those questions have been heavily debated in the United States through the lenses of domestic law and U.S. constitutional authority. This post explores these issues through a different framework, international criminal law (ICL). Specifically, this post assesses the prospect of criminal accountability for those U.S. military and political officials involved in the 2025 boat strikes and 2026 invasion. This post first assesses whether the United States will hold its own military members and political officials involved in these incidents accountable, and second, whether other countries or international tribunals might ever prosecute those Americans involved.
One important caveat: Not all the facts of these recent incidents are known, including official legal justifications, accounts of survivors, and the factual record expected from President Maduro’s trial. Further investigation is likely to reveal whether the recent incidents amount to crimes. All persons are presumed innocent, and nothing in this ICL thought experiment should imply otherwise.
I. Will the United States hold its own members accountable?
The president enjoys broad criminal immunity thanks to the U.S. Supreme Court’s 2024 decision Trump v. United States, which held that the Constitution requires that President Trump be conferred immunity from a criminal prosecution in the United States for official acts within his constitutional authority. (This decision is at odds with other treaties binding the United States, including the 1948 Genocide Convention and 1987 Convention Against Torture, which specifically do not permit immunity for national leaders.) The president’s direction of military forces to destroy boats would surely qualify for the immunity the Supreme Court conferred since the president’s powers as commander in chief and in foreign relations are at the heart of Article II of the Constitution. Secretary Hegseth and other senior civilian officials could raise an argument that some of the president’s immunity trickles down to them. But even without the Trump decision, the United States has never prosecuted senior civilian leaders for their conduct of war and foreign policy. Realistically, any domestic remedies against top civilians involved in directing the strikes are likely political, not criminal.
U.S. military members are subject to the penal sanctions of the Uniform Code of Military Justice. It applies when they are on or off duty and anywhere in the world. Its specified provisions do not distinguish between criminal conduct in peace or at war. A murder is charged as murder whether it is a killing committed in the United States, during a peace operation overseas, or during war. (The U.S. military has not charged a military offense as a war crime per se since the American Civil War). Military members can be charged with offenses regardless of the classification of the boat strikes as an armed conflict.
The United States’ report card for prosecuting its own members for international crimes can be fairly characterized as mixed. While it enjoys a robust military justice system that can deploy worldwide, for many reasons it is more difficult for the military to prosecute crimes committed overseas than domestic crimes. Additionally, it is politically unpopular to pursue justice against our own members who fought for their country, as evidenced by political interference in military cases against perpetrators of the My Lai Massacre in Vietnam and pardons of war crimes suspects in the recent wars in Afghanistan and Iraq. When prosecutions do occur, they are often directed at “a few bad apples” (predominantly lower-ranking enlisted members) and not at the higher-ups who ordered atrocities, as evidenced by the aftermath of the Abu Ghraib prisoner abuse scandal. To its credit, the U.S. military has shown some willingness to reckon with atrocities committed by its members, such as the court-martial and life sentence of U.S. Army Staff Sergeant Robert Bales for more than 20 counts of murder and attempted murder of Afghan civilians in 2012.
II. How would a prosecution work?
First, there could be wrangling within the military over who has prosecution authority. Traditionally, military prosecution decisions are made by non-lawyer military commanders. But a few years ago, Congress reformed military justice after a series of sexual assault incidents in the 2010s in which commanders used their prosecution authority to shield favored subordinates from rape allegations. The result of reform legislation is a bifurcated system where Special Trial Counsels, not commanders, make prosecution decisions for certain covered offenses including rape and murder. If military investigations into the Caribbean reveal the strikes to be potentially murder, the special prosecutors will get the first bite at the apple. However, these JAG officers would surely face strong political pressure to not pursue those leads, and they enjoy no protections from being fired by civilian leadership in the Pentagon.
Second, military defendants might join their civilian superiors in claiming immunity. A still-undisclosed 40-page Justice Department memo purportedly lays out the legal justification for the boat strikes and assures “battlefield immunity” for those involved. If that does not work, those involved could claim secondary immunity from President Trump’s constitutional immunity—a proposition so far untested in U.S. courts. Military members could also petition the president to pardon them. What they cannot do is claim that they unthinkingly followed their orders; the presumption that their orders are legal is subject to an exception that it “does not apply to a patently illegal order, such as one that directs the commission of a crime.”
The passage of time could lead to impunity. Article 43 of the UCMJ imposes a five-year statute of limitations for most offenses except a handful such as rape, murder, and other capital-eligible offenses. That means that after five years, military law would still reach conduct if charged under the regular “murder” but not necessarily for other conduct that amounts to war crimes or crimes against humanity. This goes against an emerging trend in international criminal law against statutes of limitations for atrocity crimes.
There is a constructive statute of limitations as well: Those who leave the military without retiring have also severed the military justice system’s jurisdiction over them. That was a challenge following a gruesome rape and murder incident in Mahmudiya, Iraq. There, the investigation did not reveal the involvement of Army Private Steven Green until after he had left the country and separated from the Army. Fortunately, in that case, a federal law called the Military Extraterritorial Jurisdiction Act allowed for Private Green to be prosecuted; he was convicted of several counts including murder and rape and sentenced to life imprisonment.
III. Could other nations or the ICC prosecute?
a. The ICL Lens
ICL is a body of international law devoted to how to address the most serious international crimes and what can be done when nations cannot or will not pursue accountability on their own. ICL’s modern origins trace to the landmark International Military Tribunal at Nuremberg from 1945 and 1946 against 24 senior Nazi leaders and six Nazi organizations. ICL development chilled during the Cold War but then thrived in its wake, first with ad hoc tribunals in Yugoslavia and Rwanda in the 1990s, and now with a wide array of international institutions and tribunals. ICL’s concern with accountability gaps reflects the first Nuremberg Principle: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable for punishment.” In other words, ICL is meant to address the possibility of impunity for serious offenses.
There are four “core international crimes” in ICL, which are also called the atrocity crimes: genocide, crimes against humanity, war crimes, and aggression. Each played some role in the landmark International Military Tribunal at Nuremberg from 1945 to 1946 and was further developed through a series of international tribunals beginning in the 1990s. These are the four crimes now within the subject matter of the International Criminal Court (ICC) in The Hague.
Nations bear primary responsibility for prosecuting crimes within their jurisdiction, but there are times when nations cannot or will not do so on their own. A state devastated by war may lack capacity to prosecute atrocities, and a powerful state may lack the will to prosecute members of its own security forces.
ICL seeks to bridge such accountability gaps. Some of this gap-filling has been accomplished through international tribunals, including ad hoc tribunals (Yugoslavia and Rwanda), hybrid mechanisms (Sierra Leone and Cambodia), and other situational tribunals (such as Lebanon, Iraq, Kosovo, and East Timor). The most famous modern tribunal of the ICC is in the Hague. The Court operates under the principles of a treaty called Rome Statute, of which 125 nations are states parties. Some powerful nations such as the United States, China, Russia, and Israel are not states parties. The United States at one point signed and then unsigned, and has never ratified the treaty.
b. Accountability for boat strikes
There is mounting evidence that other countries view the boat attacks as unlawful and do not accept the legal basis put forth by the administration. Many nations such as Canada, Mexico, Colombia, the United Kingdom, and the European Union stopped sharing intelligence with the United States in response to the strikes. One reason for this might be that they do not become complicit in what they perceive to be atrocities.
The subject matter of a prosecution by the ICC or another nation would likely focus on crimes against humanity. This is defined in Article 7 of the Rome Statute as the “widespread or systematic attack directed against any civilian population, with knowledge of the attack” through means such as murder or torture. The 53 armed attacks to date which have killed 169 people would likely satisfy the elements of being widespread and systematic. Unlike war crimes, crimes against humanity can apply outside armed conflict.
A template for such a charge can be found in former Philippines President Rodrigo Duterte, who is now on the docket at the ICC in the Hague for his policy of extrajudicial killings of suspects in the drug trade amounted to a widespread or systematic attack on civilians. As with the boat strikes, President Duterte’s say-so that his forces were at war with drug traffickers was out of step with the reality that there was no armed conflict between two or more warring parties.
U.S. persons involved in the boat strikes could possibly be prosecuted if they are arrested in any countries that have reformed their criminal laws to permit universal jurisdiction over atrocity crimes. This becomes more likely if the United States demonstrates a refusal to prosecute on its own. This form of universal jurisdiction requiring a nexus to the prosecuting country is now common. For example, several persons who committed atrocities in Syria and later went to Germany were arrested and prosecuted in German criminal courts. On the other hand, an “undistilled” version of universal jurisdiction (one that does not require a territorial nexus) has largely been a failed experiment and is on the decline. Examples of this include Spain’s unsuccessful attempt to prosecute John Yoo and other American officials for torture crimes, and a Belgian criminal case against President George W. Bush, Vice President Dick Cheney, and General Colin Powell for their roles in the U.S.’s 2003 invasion of Iraq.
As an effort to thwart the threat of other nations prosecuting its troops, the United States has for a long time devoted considerable efforts to shield its military members from foreign prosecutions. There is some good reason for this caution. The United States is unique among nations in the breadth of the worldwide deployment of its armed forces: 178 countries by one recent count. Part of this shield is the negotiation of status of forces agreements with host nations to ensure that in most cases the United States will retain the first bite at criminal jurisdiction of its members. But even that is not considered enough. Fearing that host nations might cooperate with the ICC, the United States also negotiates Article 98 agreements with host nations to not surrender any U.S. suspects to that court.
Hostility towards the ICC, especially during Republican administrations, has been employed to try to chill investigations into American misconduct. To be sure, the Rome Statute provides no direct mechanism for the ICC to investigate the United States since the United States has not agreed to be bound by its obligations. But there is still a possibility of the ICC looking into American misconduct when it occurs in a country that is subject to ICC jurisdiction. This possibility existed with an ICC Afghanistan investigation and Colombia preliminary examination, both of which could have included inquiries into the conduct of American troops and CIA officials. Nothing came of either inquiry (the ICC prosecutor announced in 2021 that U.S. misconduct was not an investigative focus in Afghanistan, and the Colombia examination closed on its own because of the progress of national efforts), but just their possibility was enough to evoke harsh responses. President Trump expressed further grievances against the ICC for investigating U.S. ally Israel for alleged atrocities committed in Palestine (which had accepted ICC jurisdiction).
The hostility from the United States towards the ICC reached a fever pitch last month when President Trump threatened new ICC sanctions unless the Court amends the Rome Statute to agree to not prosecute President Trump and his top officials. “There is a growing concern … that in 2029 the ICC will turn its attention to the president, to the vice president, to the secretary of war and others, and pursue prosecutions against them,” a Trump administration official said, citing “open chatter” in the international legal community. “The solution is that they need to change the Rome Statute to make very clear that they don’t have jurisdiction,” the official said.
c. Accountability for the invasion of Venezuela
As for the Venezuela invasion and ouster and transfer of its president to the United States, most nations reacted negatively to the news. National responses often used the language of ICL, such as Brazil’s reaction that the invasion violated Venezuela’s sovereignty and Russia’s reaction that the invasion amounted to aggression. To be sure, many other nations cheered the move by the United States or were muted in their reaction. For example, Argentine President Javier Milei called it “excellent news for the free world” because the event was “the collapse of the regime of a dictator that was rigging elections.”
Could the U.S. invasion of Venezuela and ouster of its president amount to the crime of aggression? Building from the UN General Assembly’s 1974 Resolution 3314 defining aggression, which is commonly accepted as customary international law, Article 8 bis of the Rome Statute defines aggression as the use of an armed force by a state against the “sovereignty, territorial integrity or political independence of another state” that amounts to a manifest violation of the UN Charter (here, the pertinent UN Charter provision is Article 2(4)). The U.S. military’s armed invasion of Venezuela and sacking of its president surely qualifies, and none of the Trump administration’s justifications for the invasion would amount to a valid legal defense. Claims that this was a mere law enforcement operation and not the use of force to infringe on sovereignty are impossible to square with later statements, such as President Trump’s assertion that the United States would now run the country.
Despite seemingly qualifying as aggression, there is hardly any chance of a prosecution for aggression. This is not only that the United States has not acceded to the ICC’s jurisdiction; if a state causes crimes to be committed on the territory of a state party, the crimes can still be investigated. That has been applied to non-states parties Israel (for alleged atrocities committed in Palestine) and Myanmar (for crimes against humanity against the Rohingya into the territory of state party Bangladesh).
Venezuela is (for now at least) still a state party to the Rome Statute. So why would the same jurisdictional approach that was used against Israel and Myanmar not also apply to the United States for crimes committed in the territory of a state parties? The reason is that the crime of aggression has a more exacting jurisdictional standard than other core international crimes. Articles 15 bis of the Rome Statute makes it harder for the ICC to exercise jurisdiction over aggression committed by non-states parties. That is why those seeking redress for aggression by Russia (which does not accept ICC jurisdiction) towards Ukraine (which accepts ICC jurisdiction) have had to look to a non-ICC forum to pursue accountability for Russian aggression. The ICC can still address and has addressed allegations of Russian war crimes and crimes against humanity committed in the territory of Ukraine. There is still a sliver of possibility of the ICC prosecuting aggression if the Court authorizes a UN Security Council Resolution (authorized by Rome Statute Article 15 ter), but the United States holds veto power over any Venezuela referral, just as Russia does for Ukraine.
IV. Conclusion
If history holds, there will never be criminal trials in the United States (civilian or military) for those who planned and executed the boat strike campaign or invasion and ouster of Venezuela’s president. Bush administration torture practices are an instructive example of the practical limits of American accountability for atrocities: Although President Obama ran for office touting torture accountability, the promise was only partially delivered. To its credit, the Obama administration successfully dismantled Bush administration torture policies, but backed away from seeking criminal accountability for those responsible, and did not fulfill a promise to close the Guantánamo Bay detention center. In the United States, real accountability for past atrocities requires that it be a high political priority with sustained public attention, and an alignment of interests between the president, Congress, and federal courts. Perfect alignment of all those elements is no sure bet in any case. Still, some measures short of prosecution are feasible: the appointment of a special counsel, truth processes (Congressional hearings; the declassification and public release of evidence of atrocities such as the Senate’s 2014 Torture Report), and electoral accountability.
Despite energetic U.S. efforts to protect Americans from any chance of foreign prosecution, no shield of protection is entirely complete. With boat strikes and the Venezuela invasion, there remains some chance of international accountability, though this is more likely to involve domestic accountability by other countries than the ICC itself. The world tends to become a smaller place for those accused of atrocities. Henry Kissinger learned this in 2002 when he cancelled a trip to Brazil following reports that he might be questioned for his role in the Chilean Coup and Argentina’s “Dirty War.” Similarly, President George W. Bush cancelled a trip to Switzerland in 2011 due to concerns that he might be questioned about torture and waterboarding. These mere travel restrictions might seem minor to those alarmed by the gravity of the criminal allegations at issue, but they are at least one small measure of possible justice.
Franklin D. Rosenblatt is an Associate Professor of Law at Mississippi College School of Law where he teaches International Criminal Law, Constitutional Law, Evidence, and Military Justice. He serves as the President of the National Institute of Military Justice. He is a retired Lieutenant Colonel in the U.S. Army. For more information, read his full bio here.
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