What the law says about killing survivors of a boat sinking, according to experts

WASHINGTON (AP) — A second strike on survivors of an initial attack on an alleged drug boat would have constituted a crime, legal experts say.

It does not matter whether the United States is in an “armed conflict” with drug cartels, as the Trump administration asserts. Experts say such a deadly attack would have violated peacetime laws and those governing armed conflict.

He watches: White House insists alleged attack on drug boat was lawful, confirms second strike

“I can’t imagine anyone, whatever the circumstances, thinking it’s appropriate to kill people clinging to a boat in the water,” said Michael Schmidt, a former Air Force lawyer and professor emeritus at the US Naval War College. “This is clearly illegal.”

The White House confirmed on Monday that a second strike was carried out in September against a ship accused of drug smuggling off the coast of Venezuela, insisting it was done in “self-defense” and in accordance with the laws of armed conflict.

Read more: All US military strikes against alleged drug boats

A news report about that attack led to a new level of scrutiny from lawmakers and added to a growing debate over whether service members can refuse to follow illegal orders, which some Democratic lawmakers have recently encouraged.

Here’s what to know about strikes and the laws of armed conflict.

The report sparked debate

The Washington Post reported last week that Defense Secretary Pete Hegseth issued a verbal directive to “kill everyone” on a boat that was targeted on Sept. 2, the first ship to be targeted in what the Trump administration calls a counterdrug campaign that has grown into more than 20 known raids and more than 80 deaths.

The newspaper reported that two men survived the first attack and were clinging to the debris. The report said that the commander in charge of the operation, Admiral Frank M. “Mitch” Bradley, ordered a second raid in compliance with Hegseth’s instructions, killing the two men and 11 people in total.

Read more: Lawmakers expressed bipartisan support for congressional reviews of Trump’s boating strikes

Hegseth called the news “fake news” on social media, saying the strikes on the boats “are consistent with the law of armed conflict — and approved by the best military and civilian lawyers, up and down the chain of command.”

President Donald Trump said Sunday that his administration would “look into” the matter, but added, “I didn’t want that — not a second strike.” He noted that Hegseth told him, “He did not order the killing of these two men.”

White House spokeswoman Carolyn Leavitt told reporters Monday that Bradley ordered the second strike and “was within his authority to do so.” She denied that Hegseth said he would leave no survivors.

Read more: High Commissioner for Human Rights: US strikes on alleged drug boats “unacceptable”

The administration justified the attacks as a necessary escalation to stop the flow of drugs into the United States, and stressed that the United States was engaged in an “armed conflict” with drug cartels, similar to the war against Al-Qaeda in the wake of the September 11 attacks.

What the law allows during armed conflict

Schmitt said that a second strike that killed survivors was considered illegal under any circumstances, whether it was an armed conflict or not.

He said he does not believe the United States is in a legitimate armed conflict with drug cartels, which he said must be committing a high level of violence against the country itself.

An example of this is Colombia’s battles with the FARC rebel group.

“But that’s not because they were selling drugs that were killing people,” Schmidt said. “This is because they were using force against the government in an attempt to carry out their drug activities with impunity.”

Schmitt said that if the United States was not in an armed conflict, it would have violated international human rights law, which governs how states treat individuals, including extrajudicial killings.

“You can only use deadly force in circumstances where there is an imminent threat — as imminent as now — to life or really serious injury,” Schmidt said. “And that was not the case.”

The legal threat facing US military personnel

Brian Finucane, a senior adviser at the International Crisis Group and a former State Department lawyer, agrees that the United States is not in an armed conflict with drug cartels.

“The term for premeditated killing outside of armed conflict is murder,” Finucane said, adding that US military personnel could be tried in US courts.

He added: “Murder on the high seas is a crime.” “Conspiracy to commit murder outside the United States is a crime. Under the Uniform Code of Military Justice, Article 118 makes murder a crime.”

Even in the midst of armed conflict, Schmidt said the army would have broken the law if it killed survivors, calling it a war crime.

“It has been clear for more than a century that you may not declare a so-called ‘nobody’ — take no survivors, kill everyone,” Schmidt said. Even when hitting an enemy warship leaves survivors, “you can’t attack them unless they’re still shooting at you.”

What Congress has said about what comes next

The leaders of the Armed Services Committees in both the House of Representatives and the Senate opened investigations.

Republican Sen. Roger Wicker of Mississippi, chairman of the Senate committee, and the top Democrat, Rhode Island Sen. Jack Reed, said in a statement late Friday that the committee “will conduct vigorous oversight to determine the facts regarding these circumstances.”

Read more: Senate Democrats ask Trump administration to provide legal basis for Venezuela strikes

Concern about a second strike comes after a group of Democratic lawmakers — all veterans of the armed forces and the intelligence community — released a video last month calling on members of the US military to defy “unlawful orders.”

Among them was Sen. Mark Kelly, an Arizona Democrat and former Navy fighter pilot, who clearly questioned the use of the military to attack alleged drug boats. The Pentagon says it is investigating Kelly for possible violations of military law linked to the video.

Kelly said Sunday on NBC’s “Meet the Press” that there should be an investigation into the report that survivors of the raid were killed, and reiterated that U.S. service members do not have to follow illegal orders.

Schmitt said: “If I received an order from the Minister of Defense to kill everyone, I would respectfully say: I will not carry out this order.”

Associated Press correspondent Konstantin Torobin contributed to this report.