On Legal Justifications

Long time readers will know of my frustration with much public discourse on “war crimes,” especially in but not limited to progressive spaces. In brief, it is common to find colloquial invocation of the term “war crime” to mean “something that happened in war that seems unpleasant and that I don’t like,” which does considerable violence to actually existing International Humanitarian Law and the Law of Armed Conflict. Two areas where this kind of misunderstanding is both persistent and pernicious involve the “Doctrine of Retreat” and the intentional targeting of civilians. With respect to the first, an astonishing number of people believe that a Right of Retreat is enshrined in international law such that attacks against retreating combatants are prohibited. An astonishing number of people also believe that either a) any attack that kills non-combatants is by definition illegal, or b) any attack launched with the knowledge that civilians will die is illegal. I’m not going to supply links so you’ll just have to trust me that I have way too many conversations about these two points with “normies.”

None of these things are true. It may be unsporting to shoot a retreating enemy soldier in the back but it’s not illegal, and there are plenty of cases in which full knowledge that civilians will die in an attack does not make that attack faintly illegal. Moreover, these are not cases of “the real scandal is what’s legal, not what’s illegal.” Both of these doctrines are carefully considered and have long bodies of legal and theoretical reasoning behind them. With respect to the former, a retreating soldier is not a surrendering soldier; he remains a combatant, and because retreat is a standard maneuver of warfare he remains a legitimate target. It is impossible in practice to distinguish a Nazi who is running away because he no longer wants to fight from a Nazi who is redeploying to a more defensible position in order to kill more American soldiers. The effort to distinguish becomes even more absurd in air and naval contexts, where moving into range in order to fire a weapon then retreating as fast as possible in order to avoid counterattack is a standard tactic. The Bismarck was certainly retreating, but only a fool would conclude that she was immune to attack during the conduct of that maneuver.

This is more fraught but no less true of the killing of civilians. Civilians cannot be targets of military action, but (doctrine of double effect) civilians can knowingly be killed in pursuance of other military objectives, mediated by risk/uncertainty/proportionality et al. This gets abused A LOT, but the alternative is worse; strict restrictions on killing civilians would rapidly lead to abusive behavior such as positioning civilians in militarily secure areas, placing civilians upon warships, and (quite literally) strapping civilians to armored vehicles.

This throat clearing out of the way… the conduct of the Trump administration off Venezuela is just about as close to black letter war crimes as I have ever seen from a state actor (we’ll set aside Hamas and Al Qaeda for a moment as they are NGOs, but they are no less bound by the law of armed conflict than any state). For one, the targets are non-combatants. For another, attacks against shipwrecked sailors have been prohibited by the laws of war for just about as long as there have been laws of war. But even in these cases we have to appreciate that both the mechanisms that generate international law and the mechanisms that enforce it are more ambiguous than their domestic counterparts. That is becoming clear as the Trump administration has belatedly begun to set forth legal rationales for its attacks. On shipwrecked sailors:

Many law-of-war analysts have criticized President Trump’s assertion that drug traffickers are terrorists purposefully killing Americans, rather than criminals providing illegal narcotics to willing buyers. They have homed in on whether the two survivors in the Sept. 2 attack should have been deemed out of action—and therefore no longer legitimate military targets.

The accounts of the attacks provided so far by the administration have left even some Republicans questioning the legality.

“There is a difference between being accused of being a bad guy and being a bad guy. It is called the presumption of innocence,” said Sen. Rand Paul (R., Ky.), often a critic of the administration’s national security policy. “It is called due process. It is called, basically, justice that our country was founded upon.”

Trump signaled support Wednesday for releasing the surveillance video of the operation taken by overhead aircraft.

Bradley was watching the live feed as the operation unfolded, the Pentagon officials said, as was Hegseth for part of the attack. The first part of the strike set the boat on fire and killed nine people, the officials said. It took an hour before the survivors were visible on the live feed, a third defense official said.

Bradley, in making his decision, considered that other “enemy” vessels were nearby and that the survivors were believed to be communicating via radio with others in the drug-smuggling network, the officials said.

If the boat was incapacitated and the men were unable to threaten U.S. military personnel, then the survivors would have met the definition of unable to fight, legal experts say. But if Bradley’s account is accurate, “it would appear to provide a legitimate explanation for the second strike,” said Geoffrey Corn, a former military lawyer who now directs the Center for Military Law and Policy at Texas Tech.

It is extremely unlikely that anyone will ever face trial for these attacks, and so that last point is critical; “it would appear to provide a legitimate explanation for the second strike.” That’s the game. Assembling a rationale, however belatedly, overrides internal resistance and allows the strikes to continue. That the Navy is mostly probably lying about the situation is only important if full information about the background reasoning becomes available, and that’s unlikely, especially in the short term.

And before you conclude “well that Corn guy is obviously some kind of pro-Trump squish,” note that there is also an effort afoot to develop a legal rationale for the entire campaign. Here are James Kraska and Pete Pedrozzo explaining why everything is fine and dandy:

We suggest these attacks are a lawful exercise of the president’s powers under the U.S. Constitution and U.S. law, and consistent with the international law of self-defense.

TdA suddenly appeared as an imminent threat in the United States as part of a massive surge of 1.5 million Venezuelans that entered the country during the previous administration. TdA is not just a violent drug gang involved in mafia-like tactics like taking over apartment complexes and trafficking in guns, drugs, and humans, and committing rape, torture, murder, and robbery. The organization is also a state-sponsored tool of asymmetric warfare – connected to the regime of Venezuela’s Nicolas Maduro, a blended organization encompassing the state with non-state actors. The White House claimed TdA is “undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” Nicolas Maduro is believed to be the leader of the Cartel de los Soles (Cartel of the Suns), a Specially Designated Global Terrorist group that provides material support “to foreign terrorist organizations threatening the peace and security of the United States, namely Tren de Aragua and the Sinaloa Cartel.”

And here is Geoffrey Corn and Ken Watkin responding with a “what in the ever living fuck are you talking about?”

Like the administration’s legal invocation of the right of self-defense and that this situation constitutes an armed conflict, these opinions seek to push a legal square peg into an operational round hole. It is, of course, accurate to focus on an actual or imminent armed attack to justify military action in self-defense. This right is enshrined in Article 51 of the United Nations Charter and is an important aspect of customary international law. And while the meaning of armed attack — the trigger for self-defense — must be pragmatically responsive to emerging threats, its malleability is not unlimited. Indeed, by invoking the international legal language of self-defense, it is clear the United States has not abandoned the view that its use of military force must “fit” within an international legal framework. It is, however, the Trump administration’s effort to advance its policy agenda by continuing to distort what constitutes an armed attack that lies at the heart of the legal invalidity of this campaign.

Now to my vaguely trained eye Corn and Watkin have the case here, to the extent that if I ran into Kraska or Pedrozzo at a conference I’d avoid them out of an effort not to catch the Stupid and Obsequious. But the administration doesn’t really care, and the mechanism by which we distinguish between the two arguments have a lot to do with which political outcomes we’d like to see, what precedent we’re citing, and which learned experts we choose to listen to.

Some takeaways… I do not get my dander up against journalists who “both sides” war crimes questions because the details are incredibly important and are very hard to delineate unless you have a lot of training in a specific kind of law. In this area, most of the time that journalists use the “experts say” construction they’re quite literally telling the truth, because the journalist doesn’t have the training (very few do!) to discern between two groups of experts saying two different things. More importantly, LOAC and IHL work (when they work, which is often) because combatants want to abide by the law. This isn’t even a “liberal international order” question; combatants often want to know what’s legal and what’s not because they like to know the rules of the game that they’re playing and they want to avoid any unpleasantness down the line. The strikes here are particularly egregious because it’s clear that Trump and Hegseth WANT to commit war crimes; they place positive utility on the violation of norms that the rest of the civilized world takes seriously.

And that, of course, is a major problem.