Legal experts clarify the law regarding the killing of survivors in a boat collision

WASHINGTON Legal experts have stated that the U.S. military would have committed a crime if it had killed the survivors of an attack on a suspected drug-trafficking vessel. They emphasize that it does not matter whether the Trump administration considers the U.S. to be in an "armed conflict" with drug cartels. Carrying out a fatal follow-up strike would have violated both peacetime laws and rules governing armed conflicts.

It is unimaginable that anyone could justify killing individuals clinging to a boat in the water, said Michael Schmitt, former Air Force lawyer and professor emeritus at the U.S. Naval War College. That would be clearly illegal.

The White House confirmed that a second strike occurred in September against a vessel accused of drug trafficking near Venezuela. Officials maintained that it was conducted in self-defense and followed the laws of armed conflict. A report about this strike has drawn scrutiny from lawmakers and intensified discussions about whether service members can legally refuse unlawful orders, an issue recently highlighted by some Democratic legislators.

Details of the Strikes

According to a recent Washington Post report, Defense Secretary Pete Hegseth allegedly gave verbal orders to kill everyone on the first targeted boat on September 2. That strike, part of what the administration describes as a counterdrug campaign involving over 20 known attacks and more than 80 deaths, left two men alive while killing nine others. Those survivors were clinging to debris when Admiral Frank Bradley reportedly ordered a second strike that killed them.

Hegseth dismissed the report as fake news, stating the boat operations complied with the laws of armed conflict and were approved by military and civilian legal advisors. President Trump expressed that he would not have supported a second strike and noted Hegseth did not personally order the deaths of the survivors. White House spokeswoman Karoline Leavitt asserted that Bradley acted within his authority and denied that Hegseth instructed leaving no survivors.

The administration has justified these attacks as necessary to curb the flow of drugs into the United States and has argued that the U.S. is engaged in an armed conflict with drug cartels, akin to the post-9/11 campaign against al-Qaida.

Legal Implications

Schmitt explained that even if an armed conflict existed, a second strike targeting survivors would still be illegal. He stressed that the U.S. is not in a legitimate armed conflict with cartels, which would require high levels of violent activity against the country rather than drug trafficking alone. International law prohibits no quarter actions, meaning indiscriminate killing of survivors has been illegal for over a century.

Matthew Waxman, law professor at Columbia University and former national security official, noted that whether an armed conflict exists would likely not be determined by international courts. However, U.S. allies could refuse to cooperate with operations deemed illegal under their laws or international law, unlike the U.S. campaign against al-Qaida, which had global support.

Consequences for Military Personnel

If the U.S. is not in an armed conflict, the actions would violate international human rights law, which permits lethal force only in the presence of imminent threats, which was not the case. Brian Finucane, a former State Department lawyer, emphasized that premeditated killings outside armed conflict constitute murder, punishable under U.S. law and the Uniform Code of Military Justice.

The Pentagons own laws-of-war manual cites situations like the September 2 boat strike, stating that orders to attack shipwrecked individuals are clearly illegal and should be refused by service members.

Congressional Oversight

Armed Services committees in both the House and Senate have launched investigations. Sen. Roger Wicker, committee chairman, and top Democrat Sen. Jack Reed pledged thorough oversight. Concerns about the second strike increased after a video featuring Democratic lawmakers, including Sen. Mark Kelly, urged military personnel to refuse illegal orders. The Pentagon is investigating Kelly for potential violations of military law connected to the video.

Senate Majority Leader John Thune defended the operations as a measure to stop narcotics entering the U.S., while Sen. Thom Tillis stressed the importance of determining whether any ethical, moral, or legal rules were violated.

Analysis: Legal and Ethical Boundaries of U.S. Counterdrug Operations

The recent revelations regarding the September strikes on suspected drug-trafficking vessels raise serious legal and ethical questions. Experts uniformly stress that targeting survivors of an attack constitutes a clear violation of both U.S. law and international norms. Michael Schmitt, former Air Force lawyer, underscores that killing individuals clinging to debris would be "clearly illegal," regardless of the administration's framing of the situation as an armed conflict.

Even if the U.S. considers itself in a counterdrug "armed conflict," the threshold for lawful engagement is not met. Cartels do not qualify as belligerents under international law, and indiscriminate targeting of survivors contravenes long-standing prohibitions on "no quarter" actions. Legal scholars like Matthew Waxman note that allies may refuse cooperation with operations deemed unlawful, further complicating operational legitimacy.

For military personnel, the implications are profound. Orders to attack shipwrecked individuals are explicitly forbidden by U.S. laws-of-war manuals, and premeditated killings outside a recognized armed conflict constitute murder under both domestic and international law. Congressional scrutiny is intensifying, with investigations by Armed Services committees examining both the legality of the strikes and the responsibilities of senior officials involved.

Ultimately, the events underscore the tension between aggressive counterdrug measures and adherence to established legal frameworks. Ensuring that service members are not placed in situations where compliance could be criminal is critical, as is maintaining U.S. credibility under international law.

Sources:

• Experts explain what the law says about killing survivors of a boat strike