Debate
over
the
legality
of
recent
strikes
on
alleged
narcotics-smuggling
vessels
has
been
loud
but
shallow.
Critics
cite
the
UN
Charter
and
international
legal
bans
on
the
use
of
force
and
call
the
strikes
“murder.”
Defenders
say
the
devastation
of
synthetic
opioids
and
the
ways
the
illicit
profits
are
used
are
reason
for
a
decisive
response.
Both
sides
tend
to
ignore
the
fact
that
the
international
system
has
been
here
before.
International
law
doesn’t
evolve
by
treaty
alone.
It
evolves
through
state
practice,
which
is
how
states
interpret,
stretch,
and
sometimes
break
the
rules
when
the
system
can’t
contain
new
threats.
The
law
of
armed
conflict,
built
for
mid-twentieth-century
wars
between
states,
was
never
designed
for
the
world
of
fragmented
governance,
global
crime,
and
hybrid
networks
that
blur
the
line
between
criminality
and
warfare.
When
law
meets
the
vacuum
of
state
failure,
practice
fills
the
gap.
When
weak
states,
transnational
crime,
and
global
commerce
collide,
the
rules
of
international
law
bend,
and
they
usually
bend
first
under
US
pressure.
Critics
label
such
actions
illegal
or
immoral,
but
this
misses
the
complexity
of
how
law
evolves.
Every
major
change
in
the
use-of-force
regime
from
humanitarian
intervention
to
counterterrorism
began
as
something
unlawful.
Over
time,
repetition
and
multilateral
participation
transformed
what
began
as
violations
into
accepted
practice.
The
real
question
for
narcotics
interdiction
is
not
whether
it
violates
the
law
today,
but
whether
states
can
meet
the
same
standards
that
made
past
deviations
sustainable:
clear
necessity,
proportionality,
transparency,
and
restraint.
If
strikes
on
narcotics
vessels
are
ever
to
gain
legitimacy,
they
will
need
not
only
justification
but
proof
of
humanity.
To
understand
how
narcotics
interdiction
fits
into
this
broader
trajectory,
four
examples
are
instructive:
the
1998
US
strikes
against
al-Qaeda,
the
campaign
against
Somali
piracy
from
2005
to
2008,
the
targeting
of
ISIS
oil
convoys
in
Syria
and
Iraq
beginning
in
2014,
and
the
recent
strikes
against
the
Houthis.
Together,
they
show
how
states
repeatedly
bend
the
law
when
encountering
the
gray
space
between
crime
and
war
—
and
how
current
US
policy
appears
to
rely
on
the
same
evolving
logic,
regardless
of
the
textbook
legality.
The
question
is
not
whether
striking
a
narcotics
boat
is
lawful
under
today’s
strict
reading
of
positive
law
—
because
it
almost
certainly
isn’t
—
but
whether
states
will
once
again
evolve
the
law
through
necessity.
Piracy
And
A
Major
First
Bend
When
Somali
pirates
terrorized
the
Gulf
of
Aden
and
western
Indian
Ocean
from
2005
to
2008,
there
was
no
legal
authority
to
destroy
pirate
vessels
or
strike
their
coastal
infrastructure.
Pirates
were
criminals,
not
combatants.
But
after
piracy
threatened
global
commerce,
the
UN
Security
Council
passed
Resolution
1851
authorizing
“all
necessary
measures”
to
repress
it.
The
United
States,
NATO,
the
EU,
China,
India,
and
Russia
all
joined
in
direct
military
operations,
including
sinking
vessels
and
attacking
shore
bases.
This
was
a
remarkable
stretch
of
the
law.
Rather
than
only
using
force
against
individuals
actively
performing
piracy
in
the
moment,
the
campaign
broadly
targeted
and
dismantled
the
pirate
networks
on
land
and
sea.
What
began
without
clear
basis
in
the
UN
Convention
on
the
Law
of
the
Sea
(prohibiting
the
lethal
targeting
of
pirates)
evolved
into
an
accepted
practice
through
collective
action.
The
lesson:
when
criminal
networks
exploit
governance
vacuums
and
threaten
global
order,
the
law
adapts.
Yet
this
adaptation
did
not
emerge
in
a
vacuum.
The
idea
that
states
could
use
military
force
against
criminal
networks
was
born
a
decade
earlier
in
the
original
campaign
against
al-Qaeda.
Infinite
Reach
And
The
Power
To
Declare
Conflict
The
problem
of
criminal
networks
wasn’t
new,
and
the
methods
deployed
to
fight
them
were
the
result
of
hard-fought
experience.
Global
terrorism
demonstrated
there
were
few
ways
to
combat
complex
criminal
threats.
The
lesson
began
in
1998
when
President
Bill
Clinton
launched
Operation
Infinite
Reach,
a
series
of
cruise
missile
strikes
against
al-Qaeda
camps
in
Afghanistan
and
a
suspected
chemical
facility
in
Sudan.
The
strikes
followed
the
US
embassy
bombings
in
Kenya
and
Tanzania
that
killed
over
200
people.
But
the
United
States
was
not
in
an
armed
conflict
with
either
Afghanistan
or
Sudan,
and
the
attacks
lacked
both
Security
Council
authorization
and
a
clear
self-defense
justification.
Al-Qaeda
were
simply
criminals,
and
by
any
legal
measure
of
the
time,
the
operation
was
unlawful.
Infinite
Reach
exposed
the
gap
between
the
world’s
legal
categories
and
its
emerging
realities.
Al-Qaeda
was
a
transnational
network
thriving
in
lawless
spaces,
much
like
the
smuggling
networks
of
today.
It
was
neither
a
state
nor
a
traditional
army,
but
its
reach
was
global.
If
the
US
had
followed
international
law
to
the
letter,
there
were
no
lawful
means
to
strike
al-Qaeda
before
9/11,
and
critics
later
faulted
the
Clinton
administration
for
not
doing
enough.
As
with
current
debates
on
narcotics
smuggling,
judgments
about
unilateral
action
often
turn
less
on
doctrine
than
on
political
orientation.
After
9/11,
the
United
States
filled
the
gap
in
international
law
with
domestic
law.
The
2001
Authorization
for
the
Use
of
Military
Force
(AUMF)
declared
an
armed
conflict
against
those
responsible
for
the
attacks
and
those
who
harbored
them.
That
single
statute
created
a
domestic
legal
foundation
for
unilateral
global
counterterrorism
operations.
The
United
States
used
its
interpretation
of
international
law
to
declare
conflict
with
non-state
actors
and
used
force
anywhere
it
perceived
a
threat.
This
recognition
—
that
the
entire
network
needed
to
be
targeted
if
the
threat
was
going
to
be
defeated
—
led
directly
to
the
response
to
Somali
piracy
and
a
series
of
additional
bends
in
international
law.
It
is
a
pattern
other
states
would
follow.
The
Red
Line
And
The
Houthi
Precedent
Other
states
and
US
allies
embraced
the
logic
of
the
AUMF
when
confronting
Somali
piracy
in
2008,
but
the
pattern
of
bending
the
law
did
not
stop
there.
In
the
years
that
followed,
new
and
even
more
controversial
justifications
emerged
outside
the
counterterrorism
context.
When
the
Assad
regime
used
chemical
weapons
in
Syria
in
2017
and
2018,
the
United
States
launched
strikes
alongside
allies
without
Security
Council
authorization.
The
strikes
were
not
acts
of
self-defense;
they
were
punitive
and
deterrent.
Yet
the
international
community
tolerated
them,
and
the
law
bent
accepting
deterrence
and
humanitarian
necessity
as
sufficient
justification.
The
same
pattern
applied
more
recently
in
American
and
allied
strikes
on
the
Houthi
movement
in
Yemen.
These
operations
were
justified
as
protecting
freedom
of
navigation
in
the
Red
Sea,
but
that
is
a
global
commercial
interest,
not
a
national
one.
There
was
no
declared
armed
conflict
with
the
Houthis,
no
direct
attack
on
US
forces
or
commercial
interests
prior
to
American
military
involvement,
and
no
explicit
international
mandate.
Still,
many
Western
and
regional
powers
accepted
the
strikes
as
legitimate,
echoing
the
rationale
once
used
to
fight
piracy.
Each
of
these
episodes,
from
Infinite
Reach
to
Somalia,
to
Syria
and
Yemen,
represents
a
growing
willingness
to
bypass
the
rigid
categories
of
international
law.
They
show
that
when
existing
law
cannot
manage
transnational
threats,
state
practice
builds
its
own
authority.
ISIS
And
The
Targeting
Of
Civilian
Infrastructure
Although
the
campaign
against
ISIS
unfolded
several
years
before
the
strikes
in
Syria
and
Yemen,
it
belongs
in
a
different
category
of
adaptation.
If
those
previous
examples
stretched
the
law
procedurally
by
redefining
when
and
why
states
could
use
force,
the
war
against
ISIS
stretched
it
substantively,
redefining
what
could
be
lawfully
targeted.
In
2014,
ISIS
was
funding
its
operations
through
oil
production
in
captured
Syrian
and
Iraqi
fields.
Civilians
drove
the
trucks
that
moved
the
oil,
and
civilians
refined
the
oil
and
sold
it.
Destroying
this
profit-generating
network
meant
striking
the
civilian
infrastructure
and
civilian
workers,
an
act
that,
on
its
face,
seems
to
violate
the
law
of
armed
conflict’s
protection
of
civilians
and
civilian
objects.
It’s
a
thorny
problem.
Money
is
not
a
military
object,
and
unrefined
oil
is
several
steps
removed
from
fuel
for
military
vehicles.
The
US
and
its
coalition
partners
nevertheless
targeted
ISIS’s
oil
fields,
refineries,
and
convoys
under
the
rationale
that
the
oil
itself
was
a
“military
objective.”
This
expanded
doctrine
of
“war-sustaining
activities”
held
that
resources
directly
financing
enemy
operations
could
be
lawfully
targeted.
It
was
a
controversial
idea
and
threatened
to
blur
the
lines
between
civilians
and
combatants.
But
it
helped
to
defeat
ISIS
and
became
state
practice.
What
often
gets
lost
in
the
controversy
is
how
carefully
those
strikes
were
conducted.
Coalition
forces
took
deliberate
steps
to
mitigate
civilian
harm.
Leaflets
were
dropped
to
warn
drivers.
Pilots
made
low-altitude
passes
to
scare
them
away.
Precision
munitions
were
used
to
destroy
the
trucks
rather
than
the
drivers.
Certainly,
drivers
were
tragically
killed,
but
the
intent
and
method
reflected
restraint,
not
indifference.
From
Piracy
To
Narcotics:
The
Next
Legal
Frontier
The
analogy
to
narcotics
interdiction
should
be
clear.
The
networks
moving
synthetic
opioids
by
sea
or
air
are
not
states,
but
they
threaten
public
safety
on
a
scale
greater
than
each
of
the
previous
examples.
These
networks
operate
in
spaces
where
law
enforcement
is
weak
and
where
legal
categories
break
down.
If
the
narcotics
trade
is
treated
as
a
transnational
network
financing
armed
groups,
its
interdiction
can
fit
within
the
logic
of
past
precedents.
As
with
Somali
pirates
and
the
Houthi
militias,
a
threat
to
global
order
can
invite
a
collective
response
that
blurs
the
lines
between
law
enforcement
and
war.
As
with
al-Qaeda,
a
criminal
enterprise
can
become
an
adversary
in
armed
conflict
when
governments
run
up
against
the
limits
of
combating
terrorist
groups.
The
Syria
and
Houthi
strikes
sidestepped
both
Security
Council
and
self-defense
rationales
to
protect
global
interests.
And
the
ISIS
campaign
expanded
the
definition
of
military
objectives
to
include
treating
civilian
infrastructure
as
legitimate
military
objectives,
provided
efforts
are
made
to
spare
civilians.
This
is
not
to
say
such
evolution
is
unproblematic.
Every
time
the
law
bends,
accountability
bends
with
it.
The
more
that
states
claim
the
power
to
define
their
own
adversaries
and
conflicts,
the
greater
the
risk
that
convenience,
not
necessity,
drives
their
decisions.
The
use
of
force
becomes
a
matter
of
policy
rather
than
principle.
The
opposite
risk
of
clinging
to
an
inflexible
legal
order
in
the
face
of
global
criminal
networks
is
equally
real.
The
world
has
already
accepted
that
terrorism
and
piracy
warranted
exceptional
responses.
Narcotics
trafficking,
which
kills
tens
of
thousands
annually
and
destabilizes
entire
regions,
may
prove
to
be
the
next
domain
where
law
follows
practice
rather
than
the
other
way
around.
The
law
of
armed
conflict
has
never
been
static.
Somali
piracy,
al-Qaeda,
Syria,
the
Houthis,
and
ISIS’s
oil
convoys
all
show
that
the
rules
bend
when
states
confront
threats
that
do
not
fit
existing
categories.
Sometimes
the
bending
comes
with
UN
authorization,
and
sometimes
it
comes
through
unilateral
declaration.
What
unites
these
cases
is
the
same
pattern:
novel
threats
emerge,
states
act
first,
and
law
catches
up
later.
The
narcotics-boat
debate
is
only
the
latest
manifestation
of
that
pattern.
Dismissing
these
strikes
as
“illegal”
ignores
decades
of
precedent.
But
embracing
these
strikes
without
question
would
ignore
the
moral
and
legal
costs
of
every
prior
exception.
The
path
between
them,
acknowledging
that
the
law
evolves
through
practice,
but
insisting
that
practice
be
humane
and
justified,
is
the
only
way
the
rules
survive.
If
the
law
bends
again,
it
should
bend
the
way
it
did
against
ISIS’s
convoys
with
self-imposed
precision,
restraint,
and
a
recognition
that
necessity
and
humanity
are
not
opposites
but
the
conditions
for
legitimacy
itself.
Humanity,
in
this
sense,
is
not
a
sentimental
limit
but
an
operational
standard.
It
means
distinguishing
the
guilty
from
the
incidental,
choosing
methods
that
minimize
suffering
even
when
law
does
not
compel
it,
and
subjecting
new
forms
of
force
to
public
explanation
and
review.
The
legitimacy
of
future
interdictions
will
depend
less
on
the
perfection
of
legal
theory
than
on
the
care
with
which
states
wield
their
power.
The
world
tolerates
bends
in
the
law
only
when
it
can
see
the
discipline
behind
them.
Maj.
Trent
Kubasiak is
a
judge
advocate
with
First
Army
at
Rock
Island
Arsenal.
Previously,
he
was
chief
of
national
security
law
for
Eighth
Army
in
the
Republic
of
Korea.
He
deployed
three
times
to
Afghanistan
and
once
to
Kuwait.
He
has
a
JD
from
Marquette
University
School
of
Law,
Wisconsin;
an
LLM
from
the
Judge
Advocate
General’s
Legal
Center
and
School,
Virginia;
and
an
MBA
from
Capella
University.
The
views
expressed
in
this
article
are
his
own
and
do
not
represent
the
official
position
of
the
Department
of
Defense.
