War Crime or Murder?

The United States has attacked over 20 boats in the Caribbean Sea and the Pacific Ocean, killing over 80 individuals. According to the administration of cult leader, convicted felon, and failed President Donald Trump, the boats were carrying drugs destined for the United States, and those killed were drug traffickers and gang members. The administration has provided no evidence to support its allegations, and there is a strong debate over whether the attacks amount to extrajudicial killings. This dispute gained additional attention last week when the Washington Post published an article reporting that there were two survivors of the initial strike during the first boat attack on September 2. The two were subsequently killed by a follow-up strike. Killing survivors is one of the most widely acknowledged war crimes, and these attacks put U.S. personnel at risk of prosecution under both U.S. and international laws.

There are a couple of clarifications that I think are worth making for the sake of those who, like me, have learned about this story primarily through social media. First, while the Washington Post story is getting most of the attention, The Intercept was actually the first publication to report the multiple strikes aimed at killing the survivors. This is acknowledged in the Post article but hasn't received much attention. Second, many of the social media posts that I have seen have suggested that Secretary of Defense Pete Hegseth gave the order to kill the survivors. This is not quite correct as I will explain later.

The September 2 attack was the first of attacks, which now number over 20, on small boats operating in the Caribbean Sea and the Pacific Ocean. Trump has justified the attacks by claiming that they are targeting drug smugglers who are in the process of attempting to traffic drugs to the United States. There is considerable evidence to suggest that Trump's claims are not factually sound. Trump has repeatedly claimed that the boats are carrying fentanyl, but experts on drug trafficking say that Venezuela, the country of origin of the boats, is not involved in fentanyl smuggling. The boats may be carrying cocaine, but, if so, the drugs may not be destined for the United States. Cocaine is normally transported to intermediate locations where it is then redirected to separate destinations. For instance, the Caribbean shipments may end up going to Europe.

Legally, the attacks are also on tenuous ground. The United States is not currently at war with Venezuela. Trump claims that he is targeting international gangs that have been declared terrorist organizations. A legal memo that was prepared to justify the attacks has not been made public. Moreover, the top Department of Defense lawyers were fired soon after Hegseth became secretary, and the remaining attorneys may not be willing to risk Hegseth or Trump's anger by providing unwanted advice. Mysteriously, Admiral Alvin Holsey, who had been the head of the U.S. Southern Command, which oversees the area in which the attacks have taken place, suddenly resigned in October. This was a highly unusual move and could suggest discomfort with the attacks. The legality of the attacks is very much in question.

The Washington Post reports that when the boat was located and identified as a target on September 2, Hegseth gave an order to "kill everybody." A missile was then fired at the vessel, causing a large explosion. When the smoke cleared, however, observers saw two individuals clinging to the wreckage. Admiral Frank M. “Mitch” Bradley, the commander overseeing the operation from Fort Bragg in North Carolina, then ordered a second strike to kill the survivors. This was allegedly in order to comply with Hegseth's order. However, killing survivors in this manner is a widely acknowledged war crime. In fact, the Department of Defense's "Law of War" manual actually provides this as an example of an illegal order. In section "18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations," the manual states that "For example, orders to fire upon the shipwrecked would be clearly illegal." A footnote referred to the "HMHS Llandovery Castle," a Canadian hospital boat that was torpedoed by German forces during World War I. A lifeboat carrying survivors was later machine-gunned. German sailors were subsequently tried, with the court determining that the order to attack the survivors was clearly illegal.

There seems to be no question that the attack on the two survivors was unlawful. If the attack occurred during wartime, it would be a war crime. If it occurred absent a state of war, it would be a simple case of murder. It is notable that there have been no reports of attacks on survivors since the first one. In a later attack, survivors were rescued and subsequently repatriated to their home counties. Even Trump distanced himself from the attack, saying, "I wouldn’t have wanted that, not a second strike."

It is possible that word of the illegal attack on survivors made its way to Democratic members of Congress and motivated a group of Senators and Representatives to produce the controversial video in which they reminded U.S. service members that they may refuse illegal orders. Trump later called the video "seditious behavior" and suggested that the Democrats be hanged. However, the Democrats were entirely correct about the law, and now we have an example of a clearly illegal order, though one that was followed.

Everyone involved in issuing and carrying out the order to kill the two survivors is exposed to legal ramifications. While Trump may eventually pardon the higher-ups, and nobody will have the stomach to prosecute the underlings, charges may well be brought on the international level. There may come a day in which Hegseth and Bradley cannot travel outside the U.S. without risking arrest. Hegseth may well argue that his order to "kill everybody" was not meant to apply to survivors. However, absent a state of war, the initial attacks themselves are likely unlawful and could have legal repercussions for him.

It is typical of this administration that nobody can really explain what is going on with regard to Venezuela. If you are to believe Trump, he is trying to prevent fentanyl smuggling to the United States. However, as noted above, the boats that have been attacked are very unlikely to be carrying fentanyl, and their cargo is not necessarily destined for the U.S. in any case. Trump says that there is evidence that those attacked are drug smugglers and gang members, yet when survivors were rescued, they were not charged and were subsequently released. Trump's opposition to drug smuggling was put in doubt by his announcement that he plans to pardon former Honduran President Juan Orlando Hernández, who was sentenced to 45 years in prison due to conspiring to distribute more than 400 tons of cocaine into the United States. Nearly every day it appears that an U.S. invasion of Venezuela is imminent, but then Trump routinely suggests that it is not. He recently announced that Venezuela's airspace was closed. This is an act of war.

Why would the U.S. even want to go to war against Venezuela? Trump has suggested that in addition to the alleged drug smuggling, it is because of Venezuelan migrants that have come to the U.S., something Trump believes Venezuelan President Nicolás Maduro encourages. Republican Representative Maria Salazar recently told Fox News that "Venezuela for the American oil companies will be a field day because it will be more than a trillion dollars in economic activity." So maybe it would be a war for oil? From the outside, what is happening appears to be little more than Hegseth playing soldier and attempting to earn respect through killing, and Secretary of State Marco Rubio addressing one of his personal priorities. In the meantime, poor people from Latin America are being blown to smithereens, and American service men and women are being ordered to either commit murder or war crimes.

Update: In today's White House press conference, Press Secretary Karoline Leavitt was asked, "Does the administration deny that that second strike happened, or did it happen and the administration denies that Hegseth gave the order?" Leavitt's reply began, "The latter." She then went into a long justification for the attack. The clear message here is that Hegseth is more than willing to throw his subordinates under the bus. This is even more reason why those subordinates should not follow unlawful orders.