Irregulars at Sea

The Washington Post did a creditable job of covering the controversy about the order to deliver a second strike to complete the sinking of a drug boat at sea, inter alia killing two survivors. I don't see anything highly objectionable in their coverage, and they correctly grasp and convey that the decision was ultimately not the lawyer's but the military commander's. He is ultimately responsible for making the determination of what applies to the case, as he also carries the responsibility for the action. A military lawyer's opinion is advisory. 

It doesn't sound as if the admiral is likely to face any sort of military tribunal to second-guess his decision; Congress seems likely to go along with it as well, although as is their oversight privilege they seem to want more inclusion in discussions about all this (a point they recently made clear in the NDAA budget bill). Thus, the controversy will pass. 

This is a matter of law rather than ethics, because it pertains to the application of technical definitions stipulated in the law (specifically, the Second Geneva Convention). The Post thus further obtained my approval for this article by actually citing and linking the exact text of those laws. In this case, you also have to look at Article 13, which helps to clarify who is and isn't covered by the convention. 

Speaking as a philosopher rather than a lawyer, we can apply logic to the categories. That leaves out entirely the debate about whether it was moral or ethical to kill them; whether it was militarily legal is the only question here under discussion.

Article 12 states who is covered:

Article 12 applies to persons who are either members of the armed forces or who belong to the other categories of persons mentioned in Article 13 of the Second Convention. In the context of the Second Convention, it is important to recall that, pursuant to Article 13(5), civilian members of the merchant marine (who are wounded, sick or shipwrecked) are also protected persons.[17] Article 12(4) contains an additional obligation with a specific personal scope of application: the wording of this provision indicates that female members of the armed forces or of the categories of persons mentioned in Article 13 are entitled to specific protections.

These are obviously not members of the armed forces or the merchant marine, nor were they females. Thus, we have to look at Article 13 to see who fits in the "other categories." Those of us who have been involved in what we used to call the GWOT since the beginning will know this one well, because it covers the same categories that have been an issue since the very first days when we were trying to decide who was a POW and who could be detained at Guantanamo Bay or in other facilities outside the American court system. 

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates; 

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.

(5) Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who not benefit by more favourable treatment under any other provisions of international law

(6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

These are not covered under (1) as they are not members of an armed force or any sort of volunteer corps or militia formally part of an armed force. (2) does not apply because they lack fixed distinctive signs/insignia, the habit of being openly armed, and the habits of carrying out their operations in accord with the laws of war. (3) is irrelevant as these are not members of any regular forces at all; (4) is also not relevant as these were not accompanying any armed forces; (6) is not relevant because it covers only spontaneous guerrillas protecting home territory, not people traversing the open ocean. (That was often relevant to us in Iraq and Afghanistan, however.)

So we are down to (5). In order to argue that (5) did apply, you would have to argue that these constituted a "crew" of a ship (or aircraft) "of [one of] the Parties to the conflict." 

The lawyers among you -- we used to have several military lawyers in the audience, and among my co-bloggers as well -- can discuss whether or you not you think that there's sufficient cause to grant that condition. Usually a crew would have a degree of formality, ranks and positions and jobs; and the tie to the Party to the conflict would be formalized in some way as well. But perhaps receiving pay is sufficient to formalize the relationship; and perhaps even if this was a one-off group, the fact that they were operating a boat together would make them a "crew" for that purpose. 

I'm not sure about the value of all of this these days. In the beginning of the GWOT, this all made perfect sense to me: these groups were analogs of pirates, hostis humani generis, that anyone might kill because the world would be better off without them. 

Yet the reason we have not wanted to apply these laws all along has been that the courts provide an additional field for conducting a kind of warfare ('lawfare') to bedevil American efforts using asymmetrical and irregular capabilities. I'm not sure how effective that has been pragmatically; the Guantanamo Bay detainees have in fact managed to tie up American courts for decades in spite of the precaution. If there isn't a good pragmatic reason for doing it, why kill them? Survivors washing ashore would also provide a helpful warning to deter the behavior of running drugs; or if you provided them with aid and assistance, you'd also collect evidence. Even if you couldn't interrogate the men under the Conventions, you could analyze the physical evidence and generate intelligence. The only cost would be a cost you're going to end up paying anyway, i.e., letting their ideological allies fight you in court while you also try to fight them physically abroad. 

Perhaps the United States simply can't avoid that cost, in which case it could at least have the good of abiding by the Convention and extending the protections of the laws of war to the conflict. As it is the government still gets the asymmetrical bedevilment in the press and court while also clearly killing helpless men at sea.