Perry World House Q&A with William Burke-White: Understanding the Legal Ramifications of U.S. Strikes Against Venezuela

On September 2, 2025, the Trump administration began launching military strikes against boats originating in Venezuela. International outcry was immediate; Venezuela insisted that these boats were full of fishermen, while the Trump administration asserted that they were drug smugglers and gang members. Many insisted that, even if the Trump administration is correct, the military strikes against civilians violates the law and amounts to murder. In more recent weeks, there have been rumors of impending U.S. air strikes within Venezuela, something that to date has not happened and that Trump himself has previously denied is on the table.

Perry World House asked William Burke-White, professor of law at Penn Carey Law, the inaugural director of Perry World House and a current faculty fellow at Perry World House responded to questions from PWH:

PWH:  What does international law say about the legality of U.S. military strikes in Venezuela? Is there likely to be an outcry from other countries about these U.S. strikes and how the Trump administration is going about trying to achieve its goals?

WBW:  The use of armed force against Venezuelan vessels must be evaluated under two distinct but interrelated bodies of law: international law and U.S. domestic law. International law governs when and how states may resort to force, while domestic law determines the scope of presidential authority to undertake military operations without congressional authorization. Under both frameworks, these strikes are unlawful. Internationally, they contravene the United Nations (UN) Charter-based prohibition on the use of force and the fundamental rules of humanitarian law. Domestically, they exceed the constitutional and statutory limits on executive power, as there has been no declaration of war, no congressional authorization for the use of military force, and no plausible claim that these operations were necessary to repel or prevent an imminent armed attack against the United States. The result is a campaign undertaken outside both international and domestic legal boundaries.

Under international law, the analysis proceeds in two parts—jus ad bellum, the law governing the resort to force, and jus in bello, the law governing conduct once force is used.

Jus ad bellum

Under the jus ad bellum framework, the central question is whether the U.S. resort to force satisfies the narrow exceptions to the UN Charter’s general prohibition on the use of force. Article 2(4) of the Charter bars the “threat or use of force against the territorial integrity or political independence of any state,” a rule that the International Court of Justice (ICJ) has repeatedly affirmed as a cornerstone of customary international law, most notably in Nicaragua v. United States(1986) and the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996). Force is lawful only under two conditions: when authorized by the UN Security Council under Chapter VII, or when exercised in self-defense pursuant to Article 51 “if an armed attack occurs.” No UN Security Council authorization exists for the U.S. operations against Venezuelan vessels, and the United States has not demonstrated that it is responding to any armed attack by Venezuela. Instead, Washington has invoked a form of self-defense against non-state actors—drug cartels and smuggling networks allegedly operating from Venezuelan territory. Yet the ICJ’s decision in Armed Activities on the Territory of the Congo (DRC v. Uganda) (2005) makes clear that self-defense against non-state actors is permissible only if those actors have launched an “armed attack” of sufficient gravity and the territorial state is demonstrably unwilling or unable to prevent it. Narcotics trafficking, however destructive, does not meet the Nicaragua threshold for an armed attack, nor has the United States established Venezuela’s unwillingness or inability to address a genuinely imminent military threat.

Even assuming an “armed attack” could somehow be inferred, the use of force must still satisfy the twin requirements of necessity and proportionality as jus ad bellum constraints on the right of self-defense. These concepts—first articulated in the 1837 Caroline correspondence and later affirmed in Oil Platforms (Iran v. United States) (2003)—serve as threshold conditions for the legality of any defensive action, not as standards for battlefield conduct. Necessity requires that force be the only reasonable means of halting or repelling an armed attack; if diplomatic, law-enforcement, or cooperative measures are available, military action cannot be justified. Proportionality limits the overall scale, scope, and duration of a defensive response to what is required to neutralize the attack itself, not to punish or deter more broadly. The destruction of unarmed or lightly manned vessels on the high seas—far from any ongoing hostilities—plainly fails both tests. The United States had non-forcible alternatives, including maritime interdiction and cooperation under existing counter-narcotics treaties, rendering force unnecessary. Moreover, the magnitude of the response—airstrikes that killed dozens of individuals—was disproportionate to any alleged threat posed by drug smuggling. The ICJ’s jurisprudence makes clear that actions exceeding these limits fall outside the lawful scope of self-defense and thus violate Article 2(4). Consequently, the U.S. campaign against Venezuelan vessels is unlawful under jus ad bellum: it was neither authorized by the Security Council nor justified as a necessary and proportionate act of self-defense.

Jus in bello

Assuming arguendo that the United States is engaged in an armed conflict—a premise that is itself doubtful—the conduct of the airstrikes must conform to the jus in bello, or the law governing how force may be used once hostilities begin. The jus in bello is codified in the four 1949 Geneva Conventions and their 1977 Additional Protocols, as well as in customary international humanitarian law. Its central purpose is to limit the effects of armed conflict by protecting persons who are not, or are no longer, participating in hostilities and by restricting the means and methods of warfare. Common Article 3 of the Geneva Conventions, which applies to any armed conflict “not of an international character,” prohibits “violence to life and person, in particular murder of all kinds,” against those not actively engaged in hostilities. The individuals targeted in these strikes—suspected traffickers aboard unarmed or lightly armed vessels—do not meet the criteria for lawful combatants or members of an organized armed group under international law. As the International Criminal Tribunal for the Former Yugoslavia clarified in Prosecutor v. Tadić (1995), a non-international armed conflict requires a minimum threshold of intensity and organization. A series of isolated attacks on civilian boats, without sustained armed engagement or an organized opposing force, falls well below that standard.Accordingly, there is little legal basis to apply the law of armed conflict at all; the operations more closely resemble law-enforcement actions governed by human rights law, particularly Article 6 of the International Covenant on Civil and Political Rights, which prohibits arbitrary deprivation of life.

If, however, an armed conflict were deemed to exist, the U.S. conduct would still violate key jus in bello principles—distinction, military necessity, and proportionality. Article 48 of Additional Protocol I to the Geneva Conventions requires parties to distinguish at all times between civilians and combatants and to direct attacks only against legitimate military objectives. The targeted vessels were not military assets and offered no definite military advantage, as required by Article 52(2) of Protocol I. Under the rule of military necessity, codified in the Hague Regulations of 1907 and reflected in customary law, only the degree of force needed to secure a concrete and direct military objective is permitted. Non-lethal interdiction was plainly available here. The proportionality principle, set forth in Article 51(5)(b) of Additional Protocol I and reaffirmed by the ICJ in its Advisory Opinion on the Wall (2004), prohibits attacks that cause incidental civilian harm excessive in relation to the anticipated military advantage. Destroying small boats and killing their crews to prevent possible drug shipments cannot plausibly be justified as proportionate. If these operations are viewed outside the framework of armed conflict, the same acts constitute arbitrary and extrajudicial killings under human-rights law. Under either interpretation, the U.S. airstrikes fail to satisfy the most fundamental obligations of the jus in bello and thus fall outside the bounds of lawful conduct under international law.

PWH:  Does President Trump have the legal authority to carry out these strikes under domestic U.S. law?

WBW:  Under U.S. foreign relations law, the legality of President Trump’s decision to order airstrikes on Venezuelan vessels turns on both constitutional and statutory limits on the use of military force. The Constitution divides war powers between Congress and the President: Article I, Section 8 vests in Congress the power “to declare War,” while Article II, Section 2 designates the President as “Commander in Chief of the Army and Navy of the United States.” The Supreme Court has interpreted these provisions to grant the President some independent authority to use limited force to protect U.S. personnel or interests abroad (The Prize Cases, 1863), but not to initiate sustained hostilities absent congressional authorization (Youngstown Sheet & Tube Co. v. Sawyer, 1952). In practice, the scope of unilateral presidential power depends on congressional authorization or acquiescence. Under Justice Jackson’s influential framework in Youngstown, presidential authority is at its “lowest ebb” when the President acts contrary to the expressed or implied will of Congress.

Here, no existing statute authorizes the use of force against Venezuela or against non-state actors such as drug cartels operating from its territory. The 2001 Authorization for the Use of Military Force (AUMF) applies only to entities responsible for the 9/11 attacks and their associates, while the 2002 Iraq AUMF concerns operations against threats emanating from Iraq. Neither can plausibly extend to anti-narcotics strikes in the Caribbean. The President’s War Powers Resolution (WPR) report to Congress in September 2025 invoked his Article II powers as Commander in Chief, claiming that the operations served to “protect U.S. citizens” and “disrupt transnational threats.” Yet, under the WPR of 1973, presidentially initiated hostilities must be reported to Congress within 48 hours and terminated within 60 days absent explicit authorization. Unless Congress subsequently enacted or renewed authority—which it has not—the continuation of these strikes beyond that period would violate the WPR. Congress has also specifically limited executive action in this area through annual defense authorization acts, which prohibit military operations “against any nation-state except as authorized by law.”

Accordingly, under U.S. foreign relations law, the President’s decision to initiate and sustain these strikes stands on equally fragile ground as under international law. It was not authorized by Congress, it exceeds the time and scope limits imposed by the War Powers Resolution, and it cannot be justified under the limited defensive powers historically recognized under Article II. In the absence of a statutory authorization or an imminent armed threat to the United States, these operations constitute an unconstitutional exercise of the war power—precisely the form of unilateral presidential action the constitutional design was intended to prevent.

PWH:  What do you expect to see happen next?

WBW:  It is extremely difficult to hold the United States legally accountable for the strikes under existing international law. The combination of state immunity, the absence of any compulsory jurisdiction over the United States, and its veto power as a permanent member of the UN Security Council forecloses any binding enforcement mechanism. Even when the International Court of Justice (ICJ) ruled against the United States in Nicaragua v. United States (1986), the decision went unenforced because Washington vetoed Security Council measures intended to compel compliance. Venezuela and its allies will likely continue pursuing symbolic and political forms of accountability—first through the Security Council and, when blocked, through the General Assembly using the Uniting for Peace procedure. Caracas may also turn to regional mechanisms such as the Organization of American States or CELAC to issue resolutions or establish investigatory commissions. These avenues cannot compel compliance but can generate political pressure and reputational costs, documenting violations and reinforcing the perception that the U.S. actions breach the international prohibition on the use of force.

Judicial avenues are effectively closed. The ICJ lacks jurisdiction because the United States withdrew from its optional clause jurisdiction in 1985 and has not accepted any treaty compromissory clause that would apply to this dispute. The UN Charter does not confer compulsory jurisdiction, and the United States is not a party to the UN Convention on the Law of the Sea, which might otherwise offer a jurisdictional hook. The International Criminal Court (ICC) is similarly unavailable: the United States is not a party to the Rome Statute, the strikes occurred on the high seas rather than in the territory of an ICC member state, and any referral by the Security Council would be blocked by a U.S. veto. The result is that formal legal accountability is unattainable; the likely outcome will be investigatory and political rather than judicial—through UN special rapporteurs, fact-finding missions, and sustained diplomatic condemnation.

At a deeper level, this episode underscores the broader erosion of international norms governing the use of force. The UN Charter’s prohibition on unilateral military action has long served as a structural restraint on great-power behavior. Each time a major state disregards it with impunity, the prohibition weakens for everyone. The U.S. claim to an elastic right of self-defense against non-state actors mirrors arguments later used by others—most starkly in Russia’s unlawful invasion of Ukraine under the guise of “protecting” its nationals. The normalization of such exceptions corrodes the very rules that distinguish law from power in international affairs. The United States may find, as great powers often do, that undermining the prohibition on force for short-term advantage ultimately invites its erosion in ways that come back to threaten its own security and legitimacy.