If it’s a felony (of any sort) to issue the order for this, then that would mean the whole chain of command would be guilty of felony murder. And you could probably call it conspiracy to commit murder, too.
Also under the Piracy laws- International law allows sinking of pirate ships even in international waters.
A German ww2 U-boat captain was executed for doing that exact thing. So even in times of a open declared war, killing survivors is not allowed.
However, Hegspeth has claimed “Fog of War’ , and that appears to be a legal excuse.
Got it. I see it now.
It’s probably semantics again, but I would disagree. I wouldn’t confuse military, uniforms, orders, etc. as making this turn into an armed conflict and that legal framework. It’s still peacetime murder/conspiracy and is illegal and can be charged as such from the top to the bottom. Absolutely no legal problem.
It never is, but again, that doesn’t mean it can’t be or is not illegal under federal law/UCMJ counterparts for murder.
For example….If a uniformed admiral orders a young sailor to take a pistol and kill a drug dealer on the street, that’s just felony/capital murder. At its core, these boats are not much different except there’s more bigger complicated weapons involved. The apparatus is military, but what is happening is just illegal law enforcement.
All that aside, it’s fine to call it a war crime because the Navy did it with a drone. Even if it’s just peacetime law enforcement, it’s me splitting hairs. But the bigger point remains that it would/could just be charged as a regular peacetime crime, not a violation of the law of armed conflict (you have to be in a factual armed conflict). Using the Navy to illegally enforce US law is not an armed conflict.
The Geneva Conventions apply to the armed forces all the time, as far as I understand. And they certainly apply as soon as lethal force is used against foreign nationals.
The term “war crime” is definitely used loosely, and it would be better to use a more precise phrase like “violation of the Geneva Conventions”.
Primary sources:
Rome Statute of the International Criminal Court
Geneva Conventions of 12 August 1949
We agree on everything that matters. I also don’t think there is a real definition to what is a war crime.
I’m a broken record at this point, but no, the Geneva Conventions only apply when there is an armed conflict. I’m not trying to exploit a loophole, I’m just trying to clarify what is actually happening. It’s a factual state of affairs, and there’s two states of legal reality that apply to a situation, and only one can happen at a time: peacetime or armed conflict. Plenty of other laws apply during peacetime, but not the laws of armed conflict/laws of war/International Humanitarian Law (all the same thing). For the same conduct: Peacetime laws are stricter. Laws of war are looser.
Here, since there is no armed conflict, the peacetime UCMJ laws would apply. These laws follow the military member anywhere in the world. There is a crime against murder that is just like federal crime murder. You can’t unlawfully intend to kill someone. In federal law murder, there’s really only one defense: self-defense. For the military in this situation Hegseth is claiming we’re at "war, there could be two: self-defense or argue this is an armed conflict and a different set of looser restrictions against premediated killing apply (like the Geneva Conventions; laws of armed conflict/war/IHL). Since the peacetime law of murder says it must be “unlawful” the Defense will argue the premeditated killing was lawful because the facts of the situation put this not in peacetime, but in an armed conflict and premediated killing is allowed as long as it’s a military necessity, distinct, and proportional. These don’t come into play during peacetime murder.
Peacetime or armed conflict. It’s always one or the other at any given moment, never both. In a real armed conflict, while not impossible as I’ve laid out a few posts up, it should be harder to be charged with a premeditated killing. It’s a war, right. That’s the point. No argument from me. I just don’t think we’re in an armed conflict with this drug cartel. I don’t think most people do, but this is why the distinction is important. It’s legally easier to kill someone in a war, as it should be.
I understand why with all the military trappings of the situation, but it just really seems like we’re taking the bait when we start viewing this in a war realm instead of peacetime murder.
Late: To be clear, there’s nothing in the Geneva Conventions that don’t also apply during peacetime, and much stricter too. Also, the above is very loose with accuracy for the sake of clarity.
From the Rome Statute definition of “war crimes”, note that 2(a) covers acts not during armed conflict. (The U.S. has not ratified this, but it indicates the context that “war crime” is inclusive of “grave breaches of the Geneva Conventions” and not dependent on armed conflict.)
Article 8
War crimes
2. For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
And the Geneva Conventions apply when any armed conflict has occurred, Chapter I, Article 2. Note that it requires implementation in peacetime. Anyway, armed conflict is the use of armed forces to inflict damage against the property and people of another country, regardless of any declarations.
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Finally, “grave breaches” are defined in Chapter IX, Article 50 of the Geneva Conventions:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
@CoolHandCox, we’re not disagreeing, but I thought it useful to explicate. How these criminals ultimately get prosecuted, via criminal law, military law, or international tribunal is less important than the fact these crimes impugn our nation and our armed forces.
We do disagree but it’s not a big deal. I would use your same cite to say the GC/laws of “armed conflict” to say they only apply in an armed conflict. It’s in your quote. The peacetime provision is a red herring (it’s a small administrative part - read this convention during peacetime so you know it in an armed conflict). The ICC/Rome Statute is just a place where you try the violations. If we’re citing the same source language and both take away opposite views, I’m just going to let it be for a different topic.
This is where the debate is - whether the situation is actually an armed conflict or not. It’s purely a factual situation - can’t hide behind the lack of a declaration to say you’re not in an armed conflict. It also doesn’t take much and can come in and out of existence quickly.
It’s definitely possible it’s an armed conflict. We’d need to see how it’s been applied in the past to nonstate actors (terrorists). I don’t think so, but mostly don’t want it to - further stretching the application to the point of absurdity. It’s pure law enforcement to me.
on another note I just caught up on the wapo article re 2nd strike. The excuse is they did not see the survivors and only shot again to sink the boat/drugs. Only saw survivors after the fact on video. BS, but Plausible.
late: The Rome statute/ICC does handle other big crimes - crimes against humanity; genocide; aggression. But not normal crimes like peacetime murder, etc.
No piracy is effectively armed robbery at sea. Destroying a vessel and killing all the seafarers is not piracy because it lacks the necessary element of robbery.
Pirates typically did not destroy the vessels they took nor kill their crew or passengers because they were too valuable.
Whether the US government‘s recent actions in the Caribbean are morally better or worse than those of pirates is not an FQ issue, but I know what I think.
Piracy is “any act of violence, detention, or depredation committed on the high seas for private ends by the crew or passengers of a private ship or aircraft against another ship or aircraft.” So not restricted to robbery. However if those acts are committed by a government, it is by definition not piracy.
Yeah, historically people started shooting each other at sea with some kind of motive.
Your batshit crazy navy just started shooting.
Piracy doesn’t quite cover the bill. It was too kind.
That leaves “murder” and “murderers”.
Waddaya mean “your”, kimosabe!
However, sinking pirate ships is perfectly legal in open waters. If that is Hegpeths defense, that those drug boats are effectively pirates, then he has a point, and whether he is right is up to experts in International law- which none of us are.
He’s not claiming that so it’s irrelevant. He’s claiming they are running drugs not that they are pirates.
Good article by military law expert. He always gives great background to help it all make sense big picture-wise.
Why U.S. Strikes Against Drug Boats Matter (6 pages)
This assertion that the United States is now engaged in a “war” against Tren de Aragua matters for two profound reasons. First, these attacks may very well expand into Venezuelan territory with an almost certain risk of a Venezuelan military response. While such a response is unlikely to present a significant impediment to U.S. forces, what began as a limited action against a handful of alleged drug smugglers could quickly expand to an interstate war, regime change (which recent news suggests may be the administration’s ultimate goal), and all the second and third order consequences the United States has experienced that are often harder to address than defeating the enemy in battle.
Second, by invoking the characterization of armed conflict against what is by any objective measure a criminal threat that does not justify that invocation, the United States is setting a precedent of pretextual invocation of extraordinary combat power that other countries may follow in the future, resulting in overzealous claims of war powers, international destabilization, and abuse of fundamental human rights.
This raises a critical question: Do the facts actually support treating this group’s threat as an armed conflict — one that would justify moving from ordinary law-enforcement powers to the extraordinary powers allowed in war? While the Trump administration asserts a categorical “yes” to this question, the objective facts point to a categorical “no.”