War Crime...or Murder?

Killing shipwreck survivors is patently illegal and morally abhorrent

Defense Secretary Pete Hegseth, who makes up in false bravado what he lacks in judgment and expertise, appears to have committed an inexcusable, unjustified violation of black-letter international and domestic law, according to a stunning Washington Post story released last Friday. The incident occurred during our Sept. 2 Caribbean military operation against suspected drug traffickers:

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.

After the attack, two survivors clung to the “smoldering wreck.” Then, in an action that should shock the conscience, forces murdered the two survivors. “The Special Operations commander overseeing the Sept. 2 attack—the opening salvo in the Trump administration’s war on suspected drug traffickers in the Western Hemisphere—ordered a second strike to comply with Hegseth’s instructions, two people familiar with the matter said,” The Post reported. “The two men were blown apart in the water.”

The Trump regime claims the report is false, but the evidence has not been specifically debunked. No explanation has been given as to why the video was edited to omit this part of the attack.

Putting aside for the moment the legitimacy of the underlying order to shoot these boats out of the water (which, frankly, is hard to justify based on a false theory and made-up facts), it is impossible to imagine any Pentagon lawyer blessing this action. The concept of hors de combat—literally, out of combat—is a fundamental aspect of the law of war that prevents harming those disabled from combat.

If we are at war, this is a shocking violation of the law of war and specifically the Department of Defense Law of War Manual (updated in July 2023). Per the latter, those shipwrecked (or “those in distress at sea or stranded on the coast who are also helpless”) are protected under the Geneva Convention, and in turn, U.S. law. Not only must shipwrecked individuals “not be knowingly attacked, fired upon, or unnecessarily interfered with,” but our military must “without delay, take all possible measures to search for and collect the wounded, sick, and shipwrecked at sea, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”

Conservative lawyer Jack Goldsmith reiterates, “ 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.” Todd Huntley, a former Special Operations military lawyer cited in The Post report, agrees that even if the U.S. were at war an order to kill all the survivors “would in essence be an order to show no quarter, which would be a war crime.”

Others take the view that these alleged drug traffickers are not in “armed conflict” against the U.S., no matter how Trump spins it. Military law expert Eugene Fidell shared with me:

It is a war crime to kill someone who is hors de combat. If, as the administration has suggested, the strikes are part of an armed conflict, we have a national duty to investigate and prosecute. If, on the other hand (as I believe), we are not in an armed conflict with drug traffickers, then we are dealing with a lawless law-enforcement operation, and the killings would fit the definition of murder. Killing survivors at sea, rather than rescuing them, is particularly reprehensible.

Without congressional authorization or a plausible justification that we are engaged in armed conflict with Venezuela, those involved are in an especially precarious position, as Brian Finucane, who served for a decade in the Office of the Legal Adviser at the U.S. Department of State where he advised the U.S. government on the use of military force, tells me. “Notwithstanding the administration’s supposed legal justification for its killing spree at sea, as a legal matter there does not appear to be an actual armed conflict,” he says. Since “without a war there’s no war crimes,” he concludes that “these premeditated killings implicate US domestic criminal laws—including murder on the high seas, conspiracy to commit murder outside the United States, and murder as an offense under the Uniform Code of Military Justice.”

Just Security’s Ryan Goodman points to “precedent dating back to World War II trial of Germans for that very act, which lawyers know well.” The Peleus World War II War Crimes Trial concerned a group of 12 survivors of a Greek Steamer whose vessel was sunk. The Nazi naval officer in command ordered grenades and machine guns to be used to sink the vessel and kill those stranded. At the war crimes trial, five German officers were convicted of war crimes for firing at the survivors. If the facts are as reported, is Hegseth’s order any different? (At least there was no doubt Germany was at war.)

In a statement of the former JAGs Working Group, the former military lawyers analyzed, in detail, relevant international and domestic law, concluding that “both the giving and the execution of these orders, if true, to constitute war crimes, murder, or both.” In stark terms, they declare:

We call upon Congress to investigate and the American people to oppose any use of the U.S. military that involves the intentional targeting of anyone—enemy combatants, non-combatants, or civilians—rendered hors de combat (“out of the fight”) as a result of their wounds or the destruction of the ship or aircraft carrying them.

We also advise our fellow citizens that orders like those described above are the kinds of “patently illegal orders” all military members have a duty to disobey.

Since orders to kill survivors of an attack at sea are “patently illegal,” anyone who issues or follows such orders can and should be prosecuted for war crimes, murder, or both.

Other military law experts agree. “The military justice system has to address these issues,” Fidell states. “If it doesn’t because of pressure from above, then that system itself will be collateral damage.” He adds: “Secretary Hegseth may not think that’s important, but anyone who cares about the proper administration of justice will disagree.”

Even Senate and House Republicans seem to comprehend the gravity of the situation. Departing from their normal spinelessness, they joined Democrats on both the Senate Armed Services Committee and the House Armed Services Committee in bipartisan statements vowing to investigate. Democrats—and any decent Republican—should use every tool available to insist on a thorough and independent investigation, reiterate zero tolerance for war crimes and murder, and pledge to hold everyone responsible to the full extent of the law.

No wonder Trump and his minions freaked out over Democratic congressmen and senators’ video advising military personnel not to follow illegal orders. It’s not Sen. Mark Kelly (D-Ariz.) who should be investigated, but those threatening retribution for raising the red flag.