'That 2nd strike was a violation of the laws of war,' former senior military lawyer says

Key Concepts

• Authority of a Commander: The scope of a commander's power over an operation.
• Kill Chain: The sequence of events and decision-making processes involved in a military strike.
• No Quarter Order: A directive to kill all enemy combatants, including those who surrender or are incapacitated.
• Hors de Combat: A term in international law referring to individuals who are no longer participating in hostilities due to injury, surrender, or incapacitation.
• Law of War: The body of international law that governs the conduct of armed conflict.
• Special Operations Forces: Elite military units trained for specialized missions.

Admiral's Authority and the Second Strike

Retired Major General Steven Lepper, former Deputy Judge Advocate General of the Air Force, discusses the White House's defense of Admiral Frank Bradley regarding a follow-up strike on survivors of an alleged drug boat in the Caribbean. Lepper states that if Admiral Bradley was the commander of the operation, he would have been acting within his authority concerning both the initial and the subsequent strike. However, the critical question is whether the orders for the second strike originated from a higher level or directly from the Admiral.

Violation of the Laws of War

Lepper unequivocally asserts that, based on the available information, the second strike constituted a violation of the laws of war. He explains that the orders to conduct this second strike were illegal and should not have been executed by anyone in the "kill chain."

Implications of the Defense Secretary's Directive

Regarding a reported directive from the Defense Secretary to "kill everybody," Lepper interprets this as a communication, whether intentional or unintentional, to subordinates that no quarter would be given. In international law, a "no quarter" order implies that no one should be left alive after a strike. This suggests that individuals who surrender, survivors of the initial attack, or anyone "out of the fight" who can no longer pose a threat should not be targeted.

Distinction Between Pursuing Retreating Forces and Targeting Survivors

Lepper clarifies the distinction between engaging retreating enemy fighters on land and shooting at survivors in the water. Retreating forces on land are typically considered lawful targets as they are engaged in a tactical maneuver to regroup and potentially re-engage. In contrast, survivors of a disabled or destroyed boat, floating in the water with no means to resist, are considered hors de combat. The responsibility shifts from targeting them while they were in the intact boat to rescuing them once they are in the water and clinging to wreckage.

Legal Basis for Protection of Survivors

Lepper references the Defense Department's Law of War Manual, which states that "members of the armed forces and other persons who are wounded, sick, or shipwrecked, shall be respected and protected in all circumstances." These individuals are categorized as hors de combat, and targeting them is strictly prohibited.

Unlawful Order and Lack of Grey Area

Lepper emphasizes that if surveillance video showed survivors clinging to wreckage, there is "no question" that the order to target them was unlawful. He asserts that neither international nor U.S. domestic law would justify a second strike intended to kill these survivors. He explicitly states there is "no legitimate grey area" in such a scenario.

Application of Rules to Special Operations Forces

Addressing the argument that special operations forces might push the boundaries of the law, Lepper firmly states that the rules of war apply to everyone, regardless of their unit. He points out that the Law of War Manual uses the precise example of shooting survivors in the water as an illustration of an unlawful order, and this prohibition applies equally to regular military forces and special operations forces.

Conclusion

Retired Major General Steven Lepper concludes that the second strike, if it targeted survivors clinging to wreckage, was a clear violation of the laws of war. The authority of a commander does not extend to issuing or executing illegal orders, and the principles of hors de combat and the Law of War Manual unequivocally prohibit the targeting of incapacitated or shipwrecked individuals. The rules of engagement are universal and apply without distinction to all military personnel.