The United States Department of Defense provides to all military personnel a Law of War Manual (herewith the “Manual”). The idea of generally accepted “laws of war” goes back at least to George Washington, and has been carried forward and followed by generations of U.S. armed forces. Even during horrific battles and unimaginable horror, there were certain actions that were seen as beyond the pale.
And now we have a U.S. Secretary of Defense who has ordered U.S. sailors under his command to commit an act clearly prohibited by that same Manual: the killing of shipwrecked survivors of an attack.
And unlike some military actions where the legality or morality could be debated, this act can only be one of two things: either the survivors were actual combatants, in which case this was a war crime; or, they were not actively attacking the United States and its military, in which case this was murder.
War crime, or murder — it is one or the other. The question now is, what is going to be done about it?
War Crime: Background
Let’s dig into why this was a war crime.
- First, were the persons on this boat engaged in attacking our country? Many would say No, but the Trump administration and SecDef Hegseth say Yes. So, if they were, then how they are treated falls under the Laws of War.
- There is a term of art in the Manual called “hors de combat” — a French term meaning “out of the battle.” The Manual specifically says (page 278) that “persons, including combatants, placed hors de combat may not be made the object of attack.”
- There is also the concept of “no quarter,” which is when an attacking force kills everyone, even civilians, rather than take prisoners. Issuing a command to “kill them all,” as Hegseth is alleged to have done, is a clear-cut war crime.
Murder: Background
But what if the persons on the boat were not actual “enemy combatants”? What if they were fishermen, as their families have said? In that case, the laws of war do not apply; instead, killing them is an act of murder.
Some will say “but what if they were, indeed, running drugs? Wouldn’t that make this action legal?” The answer to that is simple: No.
First of all, the boat they were in was incapable of making it to the U.S. mainland. Second, even if they were involved in the drug trade, they still deserve due process, rather than a summary execution.
Defying Illegal Orders: Background
As noted by the six Democratic veterans in their video message to our armed forces, “you have the right to refuse to carry out illegal orders.”
In fact, permission to refuse illegal orders is not only given in the Manual, it is ordered: “Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations.” (page 1117) And, in a fitting piece of irony, that section of the Manual concludes with this: “For example, orders to fire upon the shipwrecked would be clearly illegal.”
Where Things Stand Now
In contrast to almost all other illegal acts by Trump and his lackeys, this one seems to have actually bothered some Republicans enough to take action. Bipartisan and bicameral investigations have been announced just in the this country. International investigations are sure to follow.
And realizing just how bad this could get, both Trump and Hegseth are attempting to distance themselves by throwing others under the bus: Trump says he didn’t know anything about the “double tap” strike, but leaves that stuff to Hegseth; and for his part, Hegseth says he never said “kill them all,” and Admiral Bradley is to blame.
What is certain is that members of the U.S. military carried out a clearly illegal act, rather than refusing to comply as was their duty. What is certain is that in doing so, they either committed a clear-cut war crime, or committed murder.
What is not certain is whether, in the end, anything will be done about it. This administration has already shown it cares nothing for the rule of law, and will continue to act like the crime family it clearly is. It remains to be seen whether Congress and the judiciary will hold them to account, or let this criminal act slide like they have all the others.
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