There can be no conceivable legal justification for what the Washington Post reported: The U.S. Special Operations Forces killed the survivors of a first strike on a drug boat off the coast of Trinidad who, in the Post’s words, “were clinging to the smoldering wreck.”
According
to the blog Executive Function, Section 5.4.7 of the DOD
Law of War Manual says:
Prohibition
Against Declaring That No Quarter Be Given. It is forbidden to declare that no
quarter will be given. This means that it is prohibited to order that
legitimate offers of surrender will be refused or that detainees, such as
unprivileged belligerents, will be summarily executed. Moreover, it is also
prohibited to conduct hostilities on the basis that there shall be no
survivors, or to threaten the adversary with the denial of quarter. This rule
is based on both humanitarian and military considerations. This rule also
applies during non-international armed conflict.
This is an
old principle of the laws of war. The Hague Regulations
of 1907 state that “it is especially forbidden . . . [t]o declare that
no quarter will be given.” The 1863 Lieber Code—the
famous U.S. government rules governing military conduct during the Civil
War—provides: “Whoever intentionally inflicts additional wounds on an enemy
already wholly disabled, or kills such an enemy, or who orders or encourages
soldiers to do so, shall suffer death, if duly convicted, whether he belongs to
the Army of the United States, or is an enemy captured after having committed
his misdeed.” And the currently governing DOD Manual in Section 5.9 states
clearly that persons “placed hors de combat may not be made the object of
attack.” The Manual defines “hors de combat” to include “persons . . .
otherwise incapacitated by . . . shipwreck.”
In short,
if the Post’s facts are correct, it appears that Special Operations Forces
committed murder when the “two men were blown apart in the water,” as the Post
put it.
It is
unclear from the Post’s reporting precisely what role Secretary of Defense Pete
Hegseth played in the decision to kill the survivors of the first strike. The
story opens:
The longer
the U.S. surveillance aircraft followed the boat, the more confident
intelligence analysts watching from command centers became that the 11
people on board were ferrying drugs.
Defense
Secretary Pete Hegseth gave a spoken directive, according to two people
with direct knowledge of the operation. “The order was to kill everybody,” one
of them said.
The Post
then reports that after then-Joint Special Operations Command chief U.S. Navy
Admiral Frank “Mitch” Bradley became aware of the survivors, he “ordered the
second strike to fulfill Hegseth’s directive that everyone must be killed.”
This makes it seem like Hegseth—even if his initial “order” was (as it appears)
a command to take no quarter—might not have been in the loop between the first
and second strikes.
I do not
believe, based on the facts in the Post story, that Bradley could have relied
on Hegseth’s order—even if Hegseth formally ordered the second strike. The
prohibition on targeting a disabled combatant is so clear that Bradley had a
duty, in the words of 18.22.4 of the Manual,
“to refuse to comply with clearly illegal orders to commit violations of the
law of war.”
According
to the Post, Bradley at some point argued that “the survivors were still
legitimate targets because they could theoretically call other traffickers to
retrieve them and their cargo.” That is wrong. The theoretical possibility of
calling other traffickers for help is not the test. The incapacitated survivors
simply may not be targeted unless, as Section 5.9 of the Manual says, they
affirmatively committed a “hostile act” or “attempt[ed] to escape.” If the
Post’s facts are in the vicinity of the truth, that could not have happened.
(The Intercept, which reported the
kernel of this event in September, said that the survivors were “killed shortly
after in a follow-up attack.”)
I wrote a
few weeks ago about the possibility of an OLC golden shield as a defense to
illegal conduct in connection with the boat strikes. OLC is forbidden to
“advance an interpretation of the law as the position of the United States that
contravenes the President or the Attorney General’s opinion on a matter of law”
and is exercising power delegated from an Attorney General unflinchingly
beholden to the President. But I do not believe that even the Bondi OLC could
legally justify the events the Post reported. In an opinion last summer
upholding the general legality of the drug boat campaign, OLC apparently
stated (or at least assumed) that the law of armed conflict governed
the strikes. In this light, it is hard to see how OLC could bless these
strikes, much less do so ex post. Which leaves the pardon power as the
option that can, and no doubt will, eventually immunize what happened.
Hegseth
has emphasized that he wants to restore the “warrior
ethos” in the U.S. military. In the hours after the story, he signaled generic
support for the boat strike campaign and chest-thumped that “We
have only just begun to kill narco-terrorists.”
Yet the
warrior ethos has always demanded honorable conduct in warfare. The Navy Seals,
for example, describe
themselves as “a special breed of warrior” but the Seal Ethos thrice
emphasizes the importance of honor, including “on . . . the battlefield.” And
surely the warrior ethos, whatever else it means, doesn’t require killing
helpless men clinging to the burning wreckage of a blown-up boat. The DOD
Manual is clear because the law here is clear: “Persons who have been
incapacitated by . . . shipwreck are in a helpless state, and it would be
dishonorable and inhumane to make them the object of attack.”
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