The Department of Defense [sic] maintains a manual on the Law of War, last updated in July 2023. The foreword opens with these words:
The law of war is of fundamental importance to the Armed Forces of the United States.
The law of war is part of who we are. George Washington, as Commander in Chief of the Continental Army, agreed with his British adversary that the Revolutionary War would be“carried on agreeable to the rules which humanity formed” and “to prevent or punish every breach of the rules of war within the sphere of our respective commands.
and
The law of war is a part of our military heritage, and obeying it is the right thing to do.
Which brings us to section 18.3.2 (page 1116):
18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations. In addition, orders should not be construed to authorize implicitly violations of law of war.
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal. [emphasis added]
There is a footnote to this example, citing this case: Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second Criminal Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922):
“As naval officers by profession they were well aware, as the naval expert Saalwiachter has strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of the law. They should, therefore, have refused to obey.”
The only factual difference between that case and the shooting in the Caribbean is that, in the first case, the men were clinging to lifeboats, and in this case they were clinging to boat wreckage.
Hegseth not only issued a clearly illegal order, his order was almost word for word the specific action used an example of this violation: Hegseth order to “kill everybody” triggers war crimes alarms:
As the operation began, the directive Hegseth issued “was to kill everybody,” an intelligence analyst told the Post. When the initial missile strike left two people alive, a second strike was conducted to comply with that order. . . .
Hegseth publicly rejected the Washington Post’s findings as “fabricated, inflammatory, and derogatory reporting,” claiming, “Our current operations in the Caribbean are lawful under both U.S. and international law.” He did not deny issuing the orders described. [emphasis added]
Tick. Tock.
