The Trump administration continues undeterred in its campaign to kill alleged drug traffickers in international waters near Central and South America despite an emerging consensus among legal experts who say that the effort is illegal.
As of this writing, the U.S. military has killed at least 61 people. On Friday, Volker Türk, the U.N. High Commissioner for Human Rights, condemned the killings and said they were illegal under international law. President Gustavo Petro of Colombia has accused the Trump administration of “murder” in connection with the death of a man that Petro described as a fisherman on one of the boats. Meanwhile, the administration is stonewalling Congress.
According to Philippe Sands, who frequently argues before international tribunals, the administration’s actions are “contrary to the basic precepts of international law.” The question, of course, is what that means as a practical matter and whether foreign governments — including the countries whose citizens have been killed in the attacks — might try to do anything about it.
As it happens, Sands recently published a well-reviewed book, 38 Londres Street, about efforts by foreign countries to bring the Chilean dictator Augusto Pinochet to justice.
In an interview with POLITICO Magazine, he discussed the lessons from the Pinochet case, the relevance of the U.S. Supreme Court’s Trump immunity decision and the potential mechanisms for international legal accountability. Prosecuting a senior U.S. official, let alone a president, in a foreign court would be immensely difficult politically — but it may not be impossible.
“I think it’s a sort of ‘watch this space’ type of scenario,” Sands said. “It’s hard to predict what direction these matters might take.”
This interview has been edited for length and clarity.
Pinochet died in 2006 without being convicted of anything. How did that happen, and what do you see as the thematic connections to current events?
Augusto Pinochet came to power in a coup d’etat in September 1973. Over the next 17 years, thousands of people were detained, tortured, disappeared, killed. During his tenure there was never any justice in Chile because he’d passed an amnesty law, and he had personal immunity by reason of his position as former president.
He travels to London in October ’98, he’s arrested on the basis of an arrest warrant from a Spanish judge. The English courts then have to decide whether he can be extradited to Spain. In order to reach that decision, the House of Lords — today the UK Supreme Court — have to address his claim to immunity. They rule in a landmark judgment, in March 1999, that where international crimes are concerned, immunity is not absolute. In particular for the crime of torture, because of a treaty that’s in force between the three countries — Spain, Britain, Chile — he has no immunity.
In the end, he’s sent back to Chile on medical health grounds, but the consequences of his return are significant: as I will write in my book, a deal is cut between the British and the Chileans. Pinochet loses his immunity. He is investigated, he’s indicted, and at the time of his death, he’s under house arrest.
A central point of 38 Londres Street is that this is the first time in human history that a former head of state, a former president, is indicted and charged in a foreign country and is not able to claim immunity. It’s a most significant moment, a real landmark case after the Nuremberg trial in 1945.
Do you see any relevance to Donald Trump or contemporary American politics?
I think the first point of connection, for me, was the very significant judgment given a year or so ago by the Supreme Court in July 2024 — Trump vs. the United States — where the Supreme Court, by a majority of six to three, rules that a former president of the United States, in relation to official conduct, not private acts, has absolute immunity for conduct in relation to the exercise of core constitutional powers, and a presumption of immunity for all other official actions. I read that judgment with great care.
I wrote a piece recently for The Atlantic which compared the two cases and suggested there was a paradigm shift away from the origins of the Pinochet judgment, which go all the way back to Nuremberg and decisions actually taken by the chief prosecutor with the countries concerned. Robert Jackson — actually, ironically, a U.S. Supreme Court justice on leave — writes to Harry Truman in June 1945 and says to the U.S. president, and I paraphrase, “There will be no immunity in the Nuremberg tribunal for former leaders, because that is an obsolete relic. And in any event, it’s not what we do in the United States.”
And if you compare that June ’45 letter with the judgment of July 2024, you can understand the apparent shift that has taken place within the United States.
What that Supreme Court judgment effectively does, in large part — although I recognize the parameters, the details remain to be determined in future litigation, no doubt — is that it appears to give a sort of “off-the-hook” type of approach to an American president who crosses a line.
What I’m interested in is not so much when the line is crossed according to U.S. law. I’m not an expert on U.S. criminal law or constitutional law. But what if a U.S. president commits conduct that crosses a line into international criminality? And at that point, the U.S. Supreme Court judgment and the Pinochet precedent, in effect, come together, and appear to conflict.
What are the implications when you put them together?
If you were a president of the United States and you had a piece of paper called a Supreme Court judgment, which said, so long as your conduct comes within your core constitutional powers — for example, national security, attacking threats of terrorism, national defense and so on and so forth — you will not be subject to criminal prosecution in the United States ever. That may be seen as a sort of green light for taking actions which might otherwise have the mind concentrated on whether there is a risk at some point in the future of criminal proceedings.
The concern is, of course, that an American president could be said to have been given a greenlight to commit torture, to disappear people, to murder people — even to commit genocide, if it’s on that kind of scale — or other crimes against humanity.
Now I’m not sure that’s what the majority intended to do, but it’s an issue that is going to have to be watched very closely going forward. That’s largely because, in many respects, the U.S. led the world in 1945 in creating this new order. And the concern is, if the U.S. leaves the table, who’s left to pick up the pieces?
It’s not just implications in the U.S., or implications for international law. We may see other countries follow suit and issue similar decisions or rules under their own domestic law.
That is absolutely right. The Supreme Court is not just any court — it’s a very significant and highly respected court.
You can imagine other countries around the world taking a look, perhaps not reading it as carefully as others might, and thinking, “Whoa, there’s a nice way forward. Why don’t we get our national court to interpret our law, to give you in effect what might be an absolute immunity for official conduct in relation to core powers, and you’re off the hook in relation to crossing certain lines?” So it’s pretty worrisome.
The hope has to be, and I’ve been talking to many people about this, that at some point the Supreme Court will come back and say, “Actually, we’re going to refine a little bit what we were saying.”
Just to be clear, my own position is that for a serving president, obviously, immunity on criminal process has got to be pretty watertight. And you can imagine that you don’t want frivolous cases brought under criminal process, in relation to a former president or former head of state, but in my view the Supreme Court offered no evidence of such cases.
But I went back to speak to one of the Law Lords — the UK justices who dealt with the Pinochet case — to ask him what he thought about the center of gravity of the reasoning — which seems to be that an American president should not be concerned, in taking important actions, that at some point in the future they might be subject to criminal process.
And David Hope, Lord Hope, told me it was a “ridiculous” argument. I think that captures the views of a lot of people.
I share that view. I wish I could say I was surprised that the six Republican appointees came down the way they did. For what it’s worth, they didn’t need to do any of that. All they needed to do was determine whether the indictment that was filed was an indictment that should move forward or not.
I don’t even think it was accidental, to be honest. We had Justice Neil Gorsuch say at the oral argument — this is now sort of a famous line — “We’re writing a rule for the ages.” No, you actually don’t have to write a rule for the ages. Much of what courts do is just decide the dispute that is right in front of them.
This leads, perhaps, into where we’re going in the conversation. President Trump and others around him have made this view clear — that they really don’t much like international law!
They don’t like international courts. They don’t like the International Criminal Court. They basically don’t like the 1945 settlement, the UN, the idea that states are subject to limitations, the idea that international courts can make determinations. I think there is a desire to really sweep all that away.
There’s a very fine new book written by an Italian, Giuliano de Empoli, called The Hour of the Predator, in which he effectively says that this is the age in which we “kill all the lawyers,” and in particular, we kill all the international lawyers.
What is striking about the Supreme Court judgment is that it seems to be motivated by a similar instinct.
I mean, these are smart and savvy people. They will have known this will be read not just in the United States, but around the world. It’s a way of signaling that this stuff that was done in 1945 at Nuremberg and later in respect to Rwanda and in Yugoslavia — and the emergence of the International Criminal Court and these indictments that take place now — we have grave concerns about them.
Over the last couple of months, the Trump administration has killed at least 61 people in international waters near Central and South America. Let’s set aside U.S. law. What sorts of issues does this raise under international law?
Like you, I am completely dependent on news and media reports. As I will always say, I don’t know all of the facts, so I tread carefully. In fact, I think most of us don’t know all of the facts because the administration has been quite restrained, shall we say, in setting out all the facts and giving some of the underlying evidence.
What we know is, I think, that there have been 10 attacks since Sept. 2, the most recent on Oct. 27. Sixty-one people killed in boats connected to Venezuela, connected to Colombia, involving nationals from Venezuela, Colombia, Ecuador, Trinidad and Tobago. And it has been justified by reference to what is known as the laws of armed conflict.
The administration has made a determination, the president has made a determination: Essentially, the United States is at war with various drug cartels. And because it is at war, the laws of war and armed conflict apply — and it is therefore entitled to exercise the right of self-defense, to take the ultimate step of eliminating this threat by using military force. That’s the argument.
To assess that claim, you have to start by going back to the basics. And the basics are the United Nations Charter, which, of course, the United States led the world in drafting. The United Nations Charter makes it clear — Article 2, paragraph 4, famously — states that members of the UN shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state in any manner inconsistent with the purposes of the UN.
Now there’s a carve-out. There’s an exception, a sensible exception, in Article 51: “Nothing in the present charter shall impair the inherent right of individual or collective self-defense…” — and then the keywords — “…if an armed attack occurs.”
That line has really dominated global thinking for 80 years, and there’s never really been any departure from that principle: You can use self-defense if an armed attack occurs, or imminently about to occur.
And so, the question becomes, in relation to these allegations of drug cartels and narco-trafficking: Can this be said to amount to an armed attack? Frankly, it’s very difficult to see how that argument can be made.
It’s not only that, but once you start saying that entities which basically exist not to destroy the United States, but to make money from the people in the United States — that’s essentially what they’re motivated by — if you start saying that people are combatants, that they are the enemy, that they are warriors who can be destroyed by the use of force, why can’t others make the same argument in relation to other categories of people?
I think most reasonable people across the political spectrum have concluded that this is a matter of international law. Using military force to take out drug couriers, drug carriers, narco-traffickers, and so on and so forth is contrary to the basic precepts of international law. Those precepts provide that action is to be governed by criminal law, not the law of armed conflict.
Here, I rely on a group that I’ve always had the highest regard for, and that is JAG officers. We’ve had a number of former very senior JAG officers make it very clear that the drugs issue is not a situation in which hostilities — of the kind in which the use of force and self-defense is justified — prevails.
Some have expressed the gravest concerns, and I share in those concerns, because of what it is likely to lead to. That’s the real problem.
How do you explain to someone what the sources of international law really are? What are we really talking about in terms of legal sources — treaties, conventions, bilateral, multilateral agreements?
To understand where we are today, you basically have to go back to 1941, and a meeting that took place off the coast of Newfoundland between Winston Churchill, the British prime minister, and Franklin Delano Roosevelt, the U.S. president.
They adopted an instrument called the Atlantic Charter. This basically said, we’re going to create a new world order once the horrors of the Nazis and what’s going on in Japan have ended, and that new order will be premised on three fundamental pillars.
One: economic liberalization, trade, investment. Two: rights for individuals and groups to be protected from the excesses of the kind that took place between ’33 and ’45. And three: a prohibition on the use of force.
Once the war was over in ’45, they set about putting all of those rules in place. You can argue the advantages and the disadvantages, but my own perspective is that it is that rules-based order which the United States has benefited from greatly over the last 80 years, and which has given it its preeminence.
The rules of international law that are relevant in relation to the taking out of narco-traffickers require this to be addressed by criminal law — just to be absolutely clear, I absolutely support the usual practices under the criminal law to address what is a heinous practice. There’s no question of justifying or supporting what they do.
But the big question that arises now is whether the invocation of the law of armed conflict, coupled with the scale of what appears to be happening, crosses into the line of international lawlessness, or even, as some may say, international criminality. I mean, 61 people killed in 10 attacks over the space of a couple of months is a pretty significant number.
These are not isolated acts. The acts appear to be part of a general policy. People are asking themselves — the question I get asked — at what point does this cross a line into international criminality?
That’s literally my next question.
Curiously, we’ve got a recent case which addresses some of these issues. That is the case of Mr. Duterte, the former president of the Philippines, who had a particular concern about drug trafficking, drug sales, people involved in narco activities within the territory of the Philippines. Many people met their end, it was said, as a result of policies that he was adopting.
In March, the International Criminal Court issued a secret arrest warrant for him in relation to his practice and policy of exterminating drug traffickers. The arrest warrant was premised — and I’m just reading the alleged facts right here — that during the relevant period, there were murders of persons allegedly involved in various forms of criminal activities, including drug-related ones. The indictment in the arrest warrant refers to 19 persons, allegedly drug pushers or thieves, killed before he became president, and then 24 persons, allegedly criminals, drug pushers and thieves or drug users, killed by or under the supervision of members of the Philippines law enforcement whilst Mr. Duterte was president.
The chamber of the International Criminal Court concludes that, in light of this material, there are reasonable grounds to believe that the elements of crimes against humanity, of murder pursuant to the statute of the International Criminal Court, have been committed. It was on that basis that Mr. Duterte was then indicted and, astonishingly, arrested and then transferred to the Hague, where he now awaits trial.
Although he will use various procedures to challenge these actions, the bottom line is this: If you’re going to use instruments of murder to exterminate drug pushers, drug traffickers, drug users, on the scale that the International Criminal Court has identified, there is at least a colorable argument that you have crossed the line into international criminality.
That, of course, brings us right back to the Pinochet case, where we began our conversation. If you cross a line into international criminality, you’re at least exposed to the risk of what is known as the principle of universal jurisdiction. Countries around the world, not just the International Criminal Court, exercise their criminal jurisdiction. And in relation to some of these crimes, it is possible you will not have immunity.
Now, very few people have immunity, but the kinds of second-tier players we’re looking at might be people in the countries who are assisting the United States, who could be exposed if they travel abroad, or even U.S. nationals.
But there’s an important point to make here: The United States is not a party of the statute of the International Criminal Court, and therefore, on that basis, it is not subject to the jurisdiction in relation to these acts.
But the ICC has jurisdiction on another basis. It has jurisdiction if the crime was committed onboard a vessel or aircraft of a state party, and that at least opens a possible door to investigations before the International Criminal Court. There will presumably be also a basis for investigations before other international courts.
All of this is somewhat theoretical at this point, but it needs to be part of the conversation, because that is the broader international context which pertains. Much as those in power may not like these rules, and I understand that, the rules exist and they are there. People will say, “Why aren’t they being used?”
You’ve prosecuted cases at international tribunals, including the ICC. As a practical matter, do you think that there’s some chance that there might be an effort to prosecute a case over these killings?
I think it depends on what happens in the coming period, and whether the conduct continues.
The first thing one has to say is the United States is obviously a particularly powerful player. The reality of international law is that it is not disconnected from political realities, including power realities. Law and politics go closely hand in hand — and the ICC has, in the past, generally refrained from investigating or indicting individuals associated with more powerful countries.
That’s changed more recently, and I think the most significant change came in March 2023, following the invasion of Ukraine by Russia, when Mr. Putin, the president of Russia, was indicted. Curiously, that attracted considerable support from the United States, and the United States Senate voted — remarkably, by 100 votes to zero, including all Republicans — to welcome a role for the ICC in crimes committed by Russia in Ukraine.
Matters took a different turn a year or so later, when the ICC issued indictments, not only of individuals associated with Hamas for the terrible events of Oct. 7 on the territory of Israel, but in relation to the response of Israel in Gaza. The indictment by the ICC of [Prime Minister Benjamin] Netanyahu and [Former Defense Minister Yoav] Gallant was for war crimes and crimes against humanity. Of course, that was met with absolute uproar in some parts of the United States, contrary to the position adopted in relation to the indictment of Mr. Putin.
This is the broader political context. The administration of President Trump has issued sanctions in relation to various individuals associated with the International Criminal Court who have been involved in the investigation or indictment of Mr. Netanyahu — prosecutors, judges, there may be more to come. We hear rumors about this.
That broader international context, I think, does have the effect of concentrating the mind.
Do you think that there’s any chance that foreign governments like Colombia or Venezuela might bring criminal charges in their own countries against U.S. officials for the murder of their citizens?
I’m British, living in London, I have friends in various countries. I hear various stories and things.
I think the possibility cannot be excluded that one or more countries might decide to initiate investigations in domestic law about what has happened — or maybe bring an inter-state case to the International Court of Justice in The Hague — but if they so proceed they’ll surely do so in the knowledge that the mere opening of such an investigation or bringing of a case could be met with very significant political or economic consequences.
But as things ratchet up in relations between the U.S. and Venezuela, could one imagine Venezuela taking certain steps? And of course relations between President Trump and President Petro of Colombia have not exactly been rosy. In recent weeks, Brazil has taken a very strong line on these issues.
And then you have other countries who will want to reflect on these matters. The British government right now, under Keir Starmer, is committed to international rules and the international rule of law, and supports strongly the work of the International Criminal Court. The UK may not agree with all of the things that have been done, and so will find itself in a bit of a bind, when its closest ally might be said to be engaged in actions which, some will say, manifestly cross a line into illegality, and perhaps also international illegality.
I think it’s a sort of “watch this space” type of scenario. It’s hard to predict what direction these matters might take.
Curiously, of course, the United States continues, under the administration of President Trump, to support international law when it sees crimes that are being committed elsewhere. In Sudan right now, the administration has come in strongly in relation to the horrors being perpetrated there. As always, and as with pretty much all countries in the world, there is always something of a double standard in relation to how these international rules are played out. “International law for others,” my dear, late friend Professor James Crawford used to call it.
But to wrap up, the 1945 moment of justice at Nuremberg opened a new world order. For about 50 years, nothing much happened. The U.S. and others then led the world in the 1990s, establishing tribunals in relation to the crimes committed in Rwanda and in the former Yugoslavia. An International Criminal Court was established in 1998, and in the same year Pinochet was arrested and President Milosevic of Serbia was indicted. With the Pinochet judgment by the House of Lords, the curtain came down on absolute immunity before national courts in relation to international crimes.
And so you’ve got now an international order that you can’t just wish away. It’s there. There are rules, there are laws, there are judges, there are other countries.
You can’t quite predict exactly what is going to happen, which is why I say: Watch this space.
One last question: What is the practical effect of these sorts of indictments of foreign officials? Is it reputational harm, restrictions on travel to avoid arrest and extradition? That’s not nothing, but is there something more?
It’s an important question. There’s obviously a symbolic effect and a reputational effect, but does it actually change practice or behavior in any way?
Again, we can’t know exactly what it is. In relation to the recently vaunted proposed meeting between President Trump and President Putin in Budapest, that produced an interesting flurry in the European context. The Hungarian government said it would have no problem hosting Mr. Putin, despite the fact that he’s been indicted by the International Criminal Court — and Hungary, as a party to the statute of the International Criminal Court, would have a legal obligation to arrest him if he sets foot on their territory.
On the other hand, Poland said, and I paraphrase: “Huh, I wonder whether he ought to be flying over our airspace to get to Hungary. We can’t offer any guarantees.”
Coming back to 38 Londres Street, I briefly mention some of the examples of people not traveling because of the fear of international actions. One of those examples was former President George W. Bush of the United States, who didn’t travel, apparently, to Canada on one occasion — to Switzerland on another occasion — because there were suggestions that prosecutors in those countries might want to question him on the use of waterboarding.
But again, this is anecdote. I haven’t spoken to any of these folks, so I can’t say for sure what did or did not happen.
I can say in relation to one case that I was involved in, in the Yugoslav context, that a serving head of state of one of the countries involved in that conflict did not travel to Germany for medical treatment because of a fear that there might be a secret indictment issued by the Yugoslav war crimes tribunal, and he lost his battle with cancer earlier than he might otherwise have lost it.
So there’s some anecdotal evidence of changes of behavior, but this is to be treated always with some caution.
Watch this space, as you say.
