Americans And International Law: Who Has Jurisdiction?

International law is a complex topic, and the question of whether Americans can be tried under it is a mix of politics and law, making a definitive answer challenging. While the United States played a pivotal role in establishing the United Nations, the World Bank, and other international organizations, its respect for international law has seemingly diminished over time, especially in its military interventions and drone attacks. Americans are subject to the laws of the country they are visiting, and foreign laws can be enforced in American courts under specific circumstances, as long as they don't contradict American laws.

US intervention in Syria

International law has grown due to new international trade and investment agreements, intellectual property accords, and treaties on the environment. However, when it comes to waging war, the United States increasingly acts as if international law does not apply to it. The law of war prohibits force unless it has been approved by the UN Security Council or unless a country has been attacked and is acting in self-defence. Even under those conditions, force is regarded as a last resort, permissible only if it is likely to be successful.

The United States has been accused of violating international law in several countries, including Syria. Since 2014, the US has conducted periodic airstrikes and maintained hundreds of troops in Syria as part of broader counterterrorism efforts against the self-proclaimed Islamic State (IS) and al-Qaeda (AQ). The legal justification for these counterterrorism wars has become more tenuous as the conflicts have shifted, with IS's territorial defeat in Syria and Iraq, and new actors entering the fray. The US has also provided non-humanitarian assistance to support the moderate Syrian opposition in southwest Syria until the regime took over control of this region in July 2018. This assistance included capacity-building for local governance entities, essential service restoration, and non-lethal support to units of the Free Syrian Army and Free Syrian Police to promote safety and stability.

The US government has never publicly articulated its views on the limits of the "unwilling or unable" doctrine, which justifies its military operations in Syria. Critics argue that the capabilities of the Syrian state have changed since 2014, as it has regained control of most of its territory and partnered with other capable military forces, such as Russia, which began its full-scale intervention in September 2015. The US has also been criticized for its use of drones and for conducting airstrikes in Syria, which some have described as "an illegal use of force" and "a crime of aggression."

The US's involvement in Syria has been part of a broader strategy to work with the Global Coalition to Defeat ISIS, which has included stabilization efforts in liberated areas, facilitating the return of displaced individuals, and promoting justice and accountability efforts in Syria and Iraq. The US has also imposed economic sanctions on Russia for its support of the Syrian government, demonstrating its commitment to finding areas of mutual interest, reducing regional tensions, and promoting Middle East peace. However, the US's track record of securing the "enduring defeat" of insurgent groups is not strong, and the costs of maintaining these operations in Syria from a rule of law perspective should not be minimized.

Drone attacks

The United States' use of drone strikes has been a highly controversial topic in international law. Drone strikes have been used by the US in countries including Libya, Yemen, Somalia, Syria, and Afghanistan.

International law professor Mary Ellen O'Connell has been a longtime critic of drone strikes, calling them a grave violation of international law. O'Connell and others argue that drone strikes are unlawful and therefore immoral, and that they are counterproductive in suppressing terrorism. The law of war, also called the law of armed conflict (LOAC), prohibits force unless it has been approved by the UN Security Council or unless a country is acting in self-defence after being attacked. Even under those conditions, force is regarded as a last resort.

The Obama administration tried to establish a new legal right to use force to legalize drone strikes, with Obama's lawyers introducing the "unable or unwilling" concept. They also produced a re-interpretation of the right to self-defence, arguing that an armed attack need not be immediate or even truly imminent. The Biden administration has continued to cite the "unable or unwilling" rule, which holds that when a sovereign state is "unwilling or unable" to assist the US with respect to terrorist suspects, the US has legal justification to attack with military force. However, this has been criticised as being legally and logically flawed.

The CIA's participation in drone strikes has also raised questions about the applicability of the LOAC. The CIA's mission includes violations of foreign or international law when authorised by the president, and unlike the military, it is not trained in the requirements and doctrine of the LOAC. While Obama administration officials affirmed that all targeting operations abide by the LOAC, they did not explicitly address the concern that CIA drone strikes may not comply with these requirements.

In October 2021, President Biden signed a new policy tightening the rules for the CIA and Pentagon to conduct drone strikes outside of traditional war zones. The new policy requires the president's approval before a lethal drone strike can be launched. However, the policy allows the president to waive certain requirements at his discretion, and there are concerns that Biden may permit more attacks than Obama.

Americans abroad

Americans living abroad are subject to the legal systems of their respective countries of residence. They are also subject to some American laws, such as the requirement to file US tax returns and respect US restrictions on travel to certain countries. The US has signed numerous bilateral and multilateral agreements with other countries that affect Americans living abroad, including tax treaties and social security agreements.

Americans living abroad are also protected by some US laws and international conventions. For example, the Vienna Convention on Consular Relations, a binding US treaty, mandates that arresting authorities must first ask detained foreign nationals if they want their country's consulate notified. If requested, the consulate must be notified, and the consulate must be allowed to provide assistance.

The US government is committed to securing the safe recovery of US nationals held hostage abroad and deterring future hostage-taking by denying hostage-takers any benefits from their actions. The US government has also taken steps to protect Americans living or traveling abroad, such as by requiring US consular officials to ensure that US citizens are afforded due process under local laws and international standards.

However, it is important to note that US consular officials have limited power. They cannot demand the immediate release of US citizens, get them out of jail or the country, represent them at trial, give legal counsel, or pay legal fees and/or fines with US government funds.

US as a military power

The United States is considered a top global military power. It has been ranked first out of 145 countries reviewed in the 2025 GFP Annual Review. The US military comprises the Army, Navy, Marine Corps, Air Force, and Space Force. The US Navy is the country's principal maritime service, responsible for maritime warfare operations. The Marine Corps has seven specified functions, including seizing and defending advanced naval bases, providing close air support for ground forces, and conducting complex expeditionary operations. The Combat Air Force (CAF) makes up the majority of the Air Force's combat power and is used to achieve air superiority and strike enemy ground and naval forces. The Air Force operates an expanding force of fifth-generation fighters, including the F-22A Raptor stealth fighter.

The US military also has access to advanced technology, such as the Global Positioning System (GPS), which is operated by the 2nd Space Operations Squadron and used by both civilian and military users worldwide. The Space Force has also been working on space-based solar power, with potential civilian applications similar to GPS.

The US's rise as a military power has been linked to a diminishing respect for international law. Some commentators have observed that the US acts as if international law applies to other countries but not to itself, particularly when it comes to waging war. For instance, the US intervention in Syria has been described as "an illegal use of force" and "a war crime" by Michael Ratner, president emeritus of the Center for Constitutional Rights. Similarly, US drone attacks in countries like Libya, Yemen, and Somalia have been characterised as an unlawful use of force without UN approval. The US has also been criticised for its unilateralism, with its threat of economic revenge against countries that maintain economic ties with Iran being described as "naked economic terrorism."

US foreign policy

The US Constitution grants the power to set foreign policy to the President of the United States. This includes the power to command the military, negotiate treaties, and appoint ambassadors. The Department of State carries out the president's foreign policy, while the Department of Defense implements the president's military policy. The Central Intelligence Agency (CIA), an independent agency, is responsible for gathering intelligence on foreign activity.

Since World War II, the United States has pursued a grand strategy characterised by primacy, "deep engagement", and liberal hegemony. This strategy involves maintaining military dominance, building and maintaining an extensive network of allies, integrating other states into US-designed international institutions, and limiting the spread of nuclear weapons.

The United States has had an ambivalent and shifting stance towards the international rule of law. After World War II, the US championed the creation of an international order based on legal principles. However, in recent decades, enthusiasm for rules-based order has decreased. The US has also been reluctant to submit to the jurisdiction of international courts, and has abandoned or failed to ratify several international treaties, including the Comprehensive Nuclear-Test-Ban Treaty, the Convention on the Rights of Persons with Disabilities, and the Joint Comprehensive Plan of Action.

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