Eric the Blue

I’m kind of amused–a better person would probably be repulsed–by all the mincing words applied to the Trump administration’s crimes in the Caribbean. If (the details are as reported), then (there might be a legal problem), etc. Either we’re at war with Venezuela or we’re not. If as seems clear to me we’re not, then the targeted killings are straight-up murder. Maybe you could say “unadjudicated capital punishment for the crime of being suspected of drug trafficking”–yes, in other words, murder. If you take the implausible view that we are actually at war, then the normal laws of war apply, and we’re violating them. So, in that case, war crimes.

John Hinderaker, of the Power Line blog, says he’d like to see the law that we are said to have violated. I think the administration’s most recent position is that we did kill survivors of an attack who were clinging to boat wreckage in the sea, but that Trump didn’t know about that second strike, would not have approved it if he knew what was going on, and that Hegseth didn’t order it either. The details of what actions actually were done is thus not in dispute. The DOD has a document, called Law of War Manual, last updated in 2023, that explicitly states that illegal orders are not to be obeyed. In Section 18.3.2.1 it then takes up the question of what kinds of orders might be illegal:

The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.

Out of all possible examples of a clearly illegal order that must not be obeyed, the DOD plucks the very one–firing upon the shipwrecked–that the Trump administration performed last September. I fail to detect ambiguity, especially since, if you allow that we aren’t actually at war with Venezuela, the first strike was as illegal as the second.

If you read up on this subject just a little, you soon come to discussions of the Peleus case from World War II. The Peleus was a Greek ship chartered by the British Ministry of War Transport. On March 13, 1944, it was sunk in the middle of the Atlantic Ocean by a German submarine. Most of the crew survived the first attack and were floating on rafts when the sub surfaced. After conducting brief interviews concerning the ship’s intentions and destination, the Germans lobbed grenades onto the rafts and also fired on the helpless Brits with machine guns. A few of the crew survived this second event and were days later picked up by a Portugese ship and taken to port.

At a war crimes trial in Hamburg, in October of 1945, counsel for the five German defendants argued that the attack was “operationally necessary” and that the defendants were following the orders of superiors. The prosecutor argued that there was no duty to obey an unlawful order, adding:

It is quite obvious that no sailor and no soldier can carry with him a library on international law or have immediate access to a professor in that subject who can tell him whether or not a particular command is a lawful one. If this were a case which involved the careful consideration of questions of international law as to whether or not the command to fire at helpless survivors struggling in the water was lawful, you might well think it would not be fair to hold any of the subordinates responsible for what they are alleged to have done; but is it not fairly obvious to you that if in fact the carrying out of [the sub’s commanding officer’s order] involved the killing of these helpless survivors, it was not a lawful command, and that it must have been obvious to the most rudimentary intelligence that it was not a lawful command, and that those who did that shooting are not to be excused for doing it upon the ground of superior orders?

The Germans were convicted of having committed war crimes. One was sentenced to 15 years, another to life in prison, and the other three to death. The executions occurred at Hamburg on November 30, 1945.