The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
McCarthy: "'We Intended the Strike to Be Lethal' Is Not a Defense"
NRO's Andrew McCarthy on why strike on defenseless survivors of strike on drug boat was "at best, a war crime under federal law."
Over at NRO, Andrew McCarthy largely agrees with Jack Goldsmith's conclusion that the the reported attack on survivors of a drug boat strike was unlawful. According to McCarthy, "If this happened as described in the Post report, it was, at best, a war crime under federal law." He writes further:
even if we stipulate arguendo that the administration has a colorable claim that our forces are in an armed conflict with non-state actors (i.e., suspected members of drug cartels that the administration has dubiously designated as foreign terrorist organizations (FTOs)), the laws of war do not permit the killing of combatants who have been rendered hors de combat (out of the fighting) — including by shipwreck.
To reiterate, I don't accept that the ship operators are enemy combatants — even if one overlooks that the administration has not proven that they are drug traffickers or members of designated FTOs. There is no armed conflict. They may be criminals (if it is proven that they are importing illegal narcotics), but they are not combatants.
My point, nevertheless, is that even if you buy the untenable claim that they are combatants, it is a war crime to intentionally kill combatants who have been rendered unable to fight. It is not permitted, under the laws and customs of honorable warfare, to order that no quarter be given — to apply lethal force to those who surrender or who are injured, shipwrecked, or otherwise unable to fight.
A key point here is that McCarty is not relying upon UN-affiliated entites nor unincorporated international law for his conclusion. Rather, he is resting his contentions on federal law (including those portions of the laws of war or international law that have been formally ratified by the Senate).
The laws of war, as they are incorporated into federal law, make lethal force unlawful if it is used under certain circumstances. Hence, it cannot be a defense to say, as Hegseth does, that one has killed because one's objective was "lethal, kinetic strikes."
And, it is worth noting, that federal law imposes the most severe penalties on war crimes.
McCarthy also highlights the fundamental irrationality of the Administration's policy, particularly given the constraints of federal law
. . . if an arguable combatant has been rendered hors de combat, targeting him with lethal force cannot be rationalized, as Bradley is said to have done, by theorizing that it was possible, at some future point, that the combatant could get help and be able to contribute once again to enemy operations. . . .
if the Post report is accurate — Hegseth and his commanders changed the protocols after the September 2 attack, "to emphasize rescuing suspected smugglers if they survived strikes." This is why two survivors in a subsequent strike (on October 16) were captured and then repatriated to their native countries (Colombia and Ecuador).
This was a ludicrous outcome: under prior policy, the boat would have been interdicted, the drugs seized, and the operators transferred to federal court for prosecution and hefty sentences. Under the Trump administration's policy, if the operators survive our missiles, they get to go back home and rejoin the drug trade. But put that aside. The point is that, if the administration's intent to apply lethal force were a defense to killing shipwrecked suspected drug traffickers, the policy wouldn't have been changed. It was changed because Hegseth knows he can't justify killing boat operators who survive attacks; and he sends them home rather than detaining them as enemy combatants because, similarly, there is no actual armed conflict, so there is no basis to detain them as enemy combatants.
