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

U.S. military experts assert that a second strike killing survivors of a drug boat operation would violate international law, regardless of the administration’s “armed conflict” claims against cartels.

The controversy erupted following a Washington Post report that Defense Secretary Pete Hegseth allegedly ordered troops to “kill everybody” during a September 2 operation off Venezuela’s coast, the first in a campaign that has resulted in over 20 strikes and more than 80 deaths.

According to the report, two survivors were clinging to wreckage after an initial strike killed nine others. The commander, Admiral Frank Bradley, allegedly ordered a second strike that killed the remaining men to comply with Hegseth’s directive.

“I can’t imagine anyone, no matter what the circumstance, believing it is appropriate to kill people who are clinging to a boat in the water,” said Michael Schmitt, a former Air Force lawyer and professor emeritus at the U.S. Naval War College. “That is clearly unlawful.”

Hegseth denied the allegations on social media, calling them “fake news” and insisting the operations comply with the laws of armed conflict and were approved by military and civilian lawyers throughout the chain of command. President Trump stated he “wouldn’t have wanted” a second strike and said Hegseth told him “he did not order the death of those two men.”

White House spokeswoman Karoline Leavitt defended the action Monday, saying Admiral Bradley ordered the second strike and “was well within his authority to do so,” while denying Hegseth directed troops to leave no survivors.

The Trump administration has characterized these operations as a necessary escalation to combat drug trafficking into the United States, claiming the U.S. is engaged in an “armed conflict” with drug cartels similar to the post-9/11 war against al-Qaida.

Legal experts strongly dispute this framing. Schmitt explained that the U.S. is not in a legitimate armed conflict with drug cartels, which would require high levels of violence against the country, not merely drug trafficking. He added that even in recognized armed conflicts, declaring “no quarter” – taking no survivors – has been prohibited for over a century.

Matthew Waxman, a Columbia University law professor and former national security official under George W. Bush, noted that while no international body would likely officially determine the conflict’s status, the U.S. could face significant consequences from allies who might refuse to share intelligence for operations they consider illegal.

The legal implications for U.S. personnel could be severe if the operations aren’t recognized as part of an armed conflict. “The term for a premeditated killing outside of armed conflict is murder,” said Brian Finucane, a senior adviser with the International Crisis Group and former State Department lawyer. He explained that U.S. military personnel could face prosecution under American law for murder on the high seas or conspiracy to commit murder outside the United States.

Notably, the Pentagon’s own manual on the laws of war specifically mentions scenarios like the September boat strike when discussing unlawful orders, stating that “orders to fire upon the shipwrecked would be clearly illegal.”

The controversy has prompted investigations by the Armed Services committees in both the House and Senate. Republican Senator Roger Wicker of Mississippi and Democratic Senator Jack Reed of Rhode Island announced the Senate committee “will be conducting vigorous oversight to determine the facts.”

The issue has intensified after several Democratic lawmakers with military backgrounds released a video encouraging service members to defy “illegal orders.” Senator Mark Kelly, an Arizona Democrat and former Navy fighter pilot who has questioned the military’s use in these operations, expressed concern for service members if the reported events occurred as described.

While Senate Majority Leader John Thune has defended the boat strikes as necessary to stop drug trafficking, Republican Senator Thom Tillis of North Carolina acknowledged that “if there was a direction to take a second shot and kill people, that’s a violation of an ethical, moral or legal code. We need to get to the bottom of it.”

The Pentagon is currently investigating Senator Kelly over potential breaches of military law related to the video urging defiance of illegal orders.