Former Philippine President Rodrigo Duterte made the war on drugs the focus of his administration. He implemented a policy called Operation Double Barrel, which included the extrajudicial killings of suspected drug dealers and users. As the death toll climbed into the thousands, Duterte praised the killings and threatened human rights organizations that raised concerns about their legality. Despite international criticism, U.S. President Donald Trump called Duterte in 2017 to congratulate him for doing “an unbelievable job on the drug problem.”
Duterte is now behind bars in The Hague. On April 23, the International Criminal Court (ICC) confirmed charges of crimes against humanity against Duterte. The primary charge is that he formulated and implemented a government plan to “neutralize criminals”—including those suspected of drug crimes—by unlawful means that included murder. The prosecution identified 49 incidents and 78 victims in a non-exhaustive list of crimes committed by law enforcement personnel and hitmen during Duterte’s time in office. Duterte allegedly ordered these murders and stated that the targeted individuals should be killed irrespective of their threat. His trial at the ICC is scheduled to begin on Nov. 30.
Former Philippine President Rodrigo Duterte made the war on drugs the focus of his administration. He implemented a policy called Operation Double Barrel, which included the extrajudicial killings of suspected drug dealers and users. As the death toll climbed into the thousands, Duterte praised the killings and threatened human rights organizations that raised concerns about their legality. Despite international criticism, U.S. President Donald Trump called Duterte in 2017 to congratulate him for doing “an unbelievable job on the drug problem.”
Duterte is now behind bars in The Hague. On April 23, the International Criminal Court (ICC) confirmed charges of crimes against humanity against Duterte. The primary charge is that he formulated and implemented a government plan to “neutralize criminals”—including those suspected of drug crimes—by unlawful means that included murder. The prosecution identified 49 incidents and 78 victims in a non-exhaustive list of crimes committed by law enforcement personnel and hitmen during Duterte’s time in office. Duterte allegedly ordered these murders and stated that the targeted individuals should be killed irrespective of their threat. His trial at the ICC is scheduled to begin on Nov. 30.
The Trump administration should be concerned about this development as it continues to target suspected drug traffickers at sea. The U.S. military has conducted 66 strikes in the Caribbean and Pacific Ocean, killing at least 221 individuals. The transfer of additional military assets to the region and the focus on drug cartels in the administration’s new counter-terrorism strategy suggests that the strikes will continue indefinitely. As a law professor and former attorney for the U.S. State Department, I agree with other experts that these attacks are extrajudicial killings under international law and murder under domestic law.
Similar to Duterte’s policy in the Philippines, the U.S. government’s policy of killing civilians also constitutes a more serious offense: a crime against humanity.
Crimes against humanity are one of the three atrocity crimes, along with genocide and war crimes, subject to the jurisdiction of the ICC. Crimes against humanity entail certain offenses (such as murder, torture, and forced disappearances) committed as part of a “widespread or systematic attack directed against any civilian population” and carried out “in furtherance of a State or organizational policy to commit such an attack.”
The existence of a governmental or organizational policy distinguishes crimes against humanity from ordinary crimes. Crimes committed pursuant to such a policy are particularly dangerous to society. The vast resources of the state become instruments of illegality, and government officials are cloaked with immunity in carrying out these offenses. Crimes against humanity are not just offenses against individual victims—they are a perversion of the social contract or, in legal scholar David Luban’s words, “crimes of politics gone cancerous.” The state’s monopoly on force transforms into the public threat that the state was designed to protect against. As ICC judge Hans-Peter Kaul wrote, “If leaders of a State who normally have the duty to uphold the rule of law and to respect human rights engage in a policy of violent attacks against a civilian population, it is the community of States which must intervene and prevent, control and repress this threat to the peace.”
The Trump administration’s campaign against suspected drug smugglers satisfies the elements of crimes against humanity. First, each strike by the U.S. military constitutes an act of murder or attempted murder. It is only lawful to target individuals with lethal force in two instances: in war against combatants or in self-defense where the individual poses an imminent threat of death or serious bodily harm. Neither situation applies here. Individuals cannot be killed merely because they might be ferrying drugs. Summarily executing a drug dealer in New York’s Times Square would plainly be murder; doing so on the high seas is legally no different.
Second, the attacks are “widespread or systematic.” Killing 221 individuals in 66 strikes carried out in the Pacific Ocean and Caribbean Sea over 10 months arguably meets the “widespread” prong. The “systematic” nature of these attacks is more evident, as is the “state or organizational policy” requirement. In Duterte’s case, the ICC found that the killings were systematic because the murders “occurred pursuant to the State or organizational policy … further to a hierarchical structure, which Mr Duterte headed, and the features of the killings generally followed a similar pattern.” This is also true of the drug boat strikes.
The Trump administration has officially adopted a policy, called Operation Southern Spear, of targeting suspected drug smugglers at sea. The policy is implemented by U.S. Southern Command, using MQ-9 Reaper drones and Hellfire missiles. The victims are chosen based on their suspected membership in designated South American cartels, and they are targeted in international waters. The U.S. government publicizes each strike after the fact. On Dec. 2, 2025, a U.S. Defense Department spokesperson accurately forecasted the situation when they quoted Defense Secretary Pete Hegseth: “When it comes to killing narco-terrorists, we have only just begun.”
The similarities between the U.S. drug boat strikes and the conduct underlying the charges against Duterte are evident. Like Duterte, the Trump administration is carrying out a policy of extrajudicially killing suspected criminals. It has ordered the U.S. military to implement this policy regardless of any imminent threat posed by the targeted individuals. It has ignored international law constraints and sidelined career lawyers and military officers who have raised concerns. The killings have been carried out in an organized manner, pursuant to a similar pattern, over a prolonged period.
These are crimes against humanity.
The United States’ legitimate interest in preventing and deterring drug trafficking does not excuse the illegality of the attacks. Nor does labeling drug smugglers as “narco-terrorists” confer any legal authority on the government to target them with lethal force. Trump has tried to justify the killings by claiming that the United States is in a non-international armed conflict against various drug cartels and that the drug traffickers can thus be targeted as unlawful combatants.
Trump’s invocation of the law of war as a basis for targeting suspected drug smugglers is legally and factually wrong. It is also profoundly concerning.
The laws of war confer extraordinary authority to use force that would be prohibited in peace time, including the right to use lethal force as the first resort against enemy combatants. For this reason, the laws of war are only triggered when an armed conflict exists as a matter of fact. For a non-international armed conflict to exist, there must be “intense” violence between a state and a nonstate group that is “both armed and organized.” As a general rule, the authorities of the laws of war can only be invoked when the situation of violence exceeds law enforcement capabilities.
That factual predicate does not exist here. The cartels are not engaged in combat against the United States, nor are they “organized militarily to engage in military operations.” An armed conflict cannot be brought into existence by unilateral proclamation or through unilateral force by the state. Trump’s baseless assertion of wartime authorities should scare all Americans, as it would mean any group disliked by the president could be targeted with lethal force. It would mean that the president could deprive individuals of their inherent human rights through unilateral decree.
This is a real concern. The White House’s counter-terrorism strategy identifies “violent left-wing extremists” as a top terrorism threat and prioritizes the “neutralization of violent secular political groups whose ideology is anti-American, radically pro-transgender, and anarchist.” Trump’s justification for targeting drug boats could also, under the administration’s theory, be used to justify targeting these groups.
U.S. officials involved in these drug boat strikes should be aware of the legal risks they incur and thus refuse to obey “patently illegal orders.” Trump may not be concerned about prosecution in U.S. domestic courts given the Supreme Court’s decision on presidential immunity in Trump v. United States. He may also pardon those involved in executing his unlawful orders. There is no immunity, however, for international crimes.
The international criminal character of the drug strikes creates additional avenues for accountability. The ICC could assert jurisdiction over crimes committed within the territory (or maritime jurisdiction) of a state that has ratified the ICC’s Rome Statute, which includes all South American countries. Indeed, the U.S. killing of Niño Guerrero, leader of the Tren de Aragua gang, in Venezuela would provide the ICC with a jurisdictional hook to open an investigation.
U.S. officials (including the president) could also face prosecution in foreign courts that exercise “universal jurisdiction” over international crimes, such as crimes against humanity. European countries, in particular, have shown a willingness to invoke universal jurisdiction to prosecute atrocity crimes committed outside their territory. In 2025, a European Union representative told the United Nations, “When territorial states … are unwilling or unable genuinely to prosecute, or the International Criminal Court or other relevant international Courts or Tribunals lack the necessary jurisdiction, universal jurisdiction serves an indispensable function in closing the accountability gap.” EU member states have invoked universal jurisdiction to successfully prosecute perpetrators of atrocity crimes committed in Syria, Iraq, Rwanda, and Ukraine. European countries may be less inclined, at least in the near term, to prosecute U.S. officials for fear of retribution. Nevertheless, the prospect of foreign prosecution could make it risky for some U.S. officials to travel in Europe.
The Trump administration is wrong to believe that it is above the law. The wheels of international justice may turn slowly, but they turn nonetheless. Perpetrators of crimes against humanity are never beyond the reach of justice—just ask Duterte.
