The thing that separates war from murder is the law,
and the law of war contains two key components.
They go by two Latin terms: jus ad bellum and jus in bello.
Jus ad bellum refers to the limited legal right to go to war. In other words, when is it legal to fight?
Jus in bello refers to conduct within the war. If it’s lawful to fight, then how must I fight?
For the use of military force to be lawful, it must satisfy the requirements of both doctrines.
There must be a legal basis for the use of force, and the force that is used must also be lawful.
Russia’s war in Ukraine would be lawless, for example, even if President Vladimir Putin confined himself to conducting airstrikes against only military targets, and even if his troops behaved scrupulously in the field.
Why? Because there was no justification for the initial invasion. International law prohibits wars of aggression and territorial conquest, so Russia’s war itself is a crime, regardless of how the military behaves.
Conversely, when debating Israel’s war in Gaza, jus ad bellum is satisfied: Hamas’s attacks on Oct. 7, 2023, gave Israel the legal right to respond with military force, even to the point of removing Hamas from power.
The controversies are, for the most part, over jus in bello, Israel’s conduct in the war.
Hamas’s attack did not give Israel carte blanche to fight however it desires
In the United States, we have two firewalls against unjust and unlawful wars.
First, the Constitution grants Congress the exclusive power to declare war.
The president does have authority as commander in chief to respond to immediate military threats, like an armed attack, before a declaration of war,
but he is not supposed to initiate new hostilities in the absence of congressional action.
A crime — even a crime as vicious as trafficking hard drugs into the United States — is not an act of war.
It can’t be compared to Pearl Harbor, to Sept. 11 or to any other attack on American citizens or troops, or allied citizens or troops.
To even mention Tren de Aragua in the same breath as Al Qaeda, much less Imperial Japan, illustrates the absurdity of the administration’s argument.
Second, the international law of armed conflict still applies to United States forces.
The broad language of Article 18 of the Uniform Code of Military Justice
— the criminal laws that govern the armed forces
— extends the requirements of international law into U.S. military law,
and that means that presidents don’t have the power to order violations of the laws of armed conflict.
So where did Trump find the legal authority to initiate deadly force against suspected members of a drug gang?
The closest thing we’ve heard to an actual legal argument is the repeated assertion that Trump could order a strike on Tren de Aragua because it’s a designated terrorist organization.
Pete Hegseth, the secretary of defense, said after the attack that American forces may strike anyone
“trafficking in those waters who we know is a designated narco terrorist.”
“We knew exactly who was in that boat,”
he added, and
“we knew exactly what they were doing, and we knew exactly who they represented, and that was Tren de Aragua.”
Though I question his certainty (I’ve had enough experience with airstrikes to know that our intelligence is rarely that precise), even if he’s correct, then that knowledge granted American forces probable cause to stop and search the boat for evidence of a crime,
not grounds to execute the crew (or any passengers) from above.
For his part, Marco Rubio, the secretary of state, said that the United States will
“blow up” members of criminal groups, and on Thursday designated two more groups,
the Ecuadorean gangs Los Lobos and Los Choneros, as terror organizations.
It is true that the administration has the authority to designate foreign entities as terrorist organizations.
And it’s true that the administration has used its authority to classify a host of drug gangs as terrorist organizations,
but the relevant statute that allows the administration to make that designation does not include an authorization for military force.
What the statute does do is bar Americans from providing
“material support or resources” to the designated group
and bar members of the group from entry into the United States.
It can also require financial institutions to block transactions involving terrorist property and assets.
⚠️ What we are left with is a military strike conducted against suspects without due process,
in the absence of any need for immediate self-defense (the boat was not firing on American forces),
without any congressional authorization
and without any basis in international law.
https://www.nytimes.com/2025/09/07/opinion/trump-venezuela-airstrike-laws.html?smid=nytcore-ios-share&referringSource=articleShare
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