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PaperclipPerfector  1mo ago (text post)   23384 thread views

Culture War Roundup for the week of December 1, 2025

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https://www.reuters.com/world/americas/white-house-admiral-approved-second-strike-boat-venezuela-was-well-within-legal-2025-12-01/

https://www.reuters.com/legal/government/some-us-republicans-want-answers-venezuela-strikes-despite-trump-2025-12-01/

Aaand (after previously denying it?) the White House confirms that a second strike killed survivors of an initial strike on an alleged drug smuggling boat. (Hegseth is joking about it) It even seems the purpose of the second strike was solely to leave no survivors.

Curious that the targeted smuggling boats have large crews, rather than conserving space and weight capacity for drugs...

  1. Anyone have a read on whether or not there are still "Trump is the anti-war President" true believers and, if so, how those people are trying to square the circle?

  2. The stupider this becomes, the more likely it seems that this conflict is a result of Trump's fixation with spoils of war and that he actually thinks we can literally just "take the oil."

Someone online pointed out that 18.3.2.1 of the Department of Defense Law of War Manual reads:

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. Similarly, orders to kill defenseless persons who have submitted to and are under effective physical control would also be clearly illegal. On the other hand, the duty not to comply with orders that are clearly illegal would be limited in its application when the subordinate is not competent to evaluate whether the rule has been violated.

That second strike, if it happened, is literally in the manual as an example of an illegal order that would be a violation of the laws of war. I am as-yet unclear on how involved Trump or Hegseth were in this operation but it sounds like, minimally, everyone in the chain of command between Admiral Frank Bradley and whomever actually executed the strike is, at least, a war criminal.

Interesting that the citation for that section is not to an actual law, but to a post-WWI German War Crimes trial of two U-boat gunners.

Is the DOD Law of War Manual itself a law? Does it get to issue binding commentary? Is something illegal just because the manual says it is?

Legally binding documents:

International Criminal Court Elements of Crimes art. 8 (2) (a) (i):

War crime of wilful killing

Elements

1. The perpetrator killed one or more persons.

2. Such person or persons were protected under one or more of the Geneva Conventions of 1949.

3. The perpetrator was aware of the factual circumstances that established that protected status.

4. The conduct took place in the context of and was associated with an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Second Geneva Convention of 1949 art. 12:

Protection and care

Members of the armed forces and other persons mentioned in the following Article, who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term “shipwreck” means shipwreck from any cause and includes forced landings at sea by or from aircraft.

Second Geneva Convention of 1949

To apply, wouldn't the crews need to belong to "Members of crews, including masters, pilots and apprentices of the merchant marine ... of the Parties to the conflict..." (literally "the following Article")? Are these boats Venezuelan-flagged vessels? I strongly suspect they're not because that would have raised a whole bunch of other arguments (literally acts of war) that haven't been brought up.

They're not flagged. Since the treaties comprising the laws of the sea were written by people representing nations, who had very little regard for stateless entities and none of it good (considering them brigands, pirates, or worse, libertarians), there's really no or almost no protection for them in those treaties.

Nobody likes non-flagged libertarians.

There are a couple of relevant conventions about stateless persons, but those seem to mostly boil down to "don't make people stateless" and even those aren't universally accepted. But Western nations are more prone to letting them live indefinitely in airports than issuing death warrants for private persons. Boats, on the other hand, don't even get that protection.

The us is not a party to the ICC and the ICC is a joke.

Terrorists are not covered by Geneva conventions.

And even if people want to argue over the definition of terrorist, "non-uniformed combatants" in general are not covered by the Geneva Conventions (or most of the laws of war in general). Non-uniformed combatants are generally punished when found via... summary execution. Whether or not alleged drug dealers allegedly bringing drugs to the US (allegedly on behalf of the Venezuelan government) count as non-uniformed combatants is a whole different question though.

is a whole different question though.

And one with a well-known answer. Merchant seamen are civilians, even if they are transporting contraband. Hence the theory that the drugs and not the people were the legally relevant target - if the drug war was a real war, the drugs would be a legitimate military target and the sailors would be acceptable collateral damage but not a military target in their own right.

Which is probably part of why the US is claiming they are military irregulars operating under the command of the Venezuelan government: https://www.bbc.com/news/articles/cy8j4ye5x0mo

Whether or not that claim is true is, again, an entirely different matter. But if they are then they are both non-uniformed and operating flagless vessels in international waters, which means the amount of protection they have against pretty much any action another state chooses to take is effectively zero.

But if they are then they are both non-uniformed and operating flagless vessels in international waters,

There is no requirement for merchant seamen to wear uniforms, or for merchant ships to fly their flags in international waters (unless asked to by a warship of any nationality). For the crews of the drug boats to be unlawful combatants, they have to be fighting out of uniform. Otherwise "they are members of TdA and therefore Venezuelan irregulars" (which I agree is probably the Trump admin's position) would make them combatants currently not fighting - which means the people (but not the boat) would be valid military targets, but subject to GC protections (including against continued attack after being shipwrecked)*

The legal position that makes the boat a military target is that the drug war is a real war which triggers Article 2 war powers and the international law of armed conflict, and that shipping drugs is a belligerent act. And indeed that shipping drugs from Venezuela to Trinidad is a belligerent act against the United States based on the ultimate destination of the drugs. The only people who have historically taken that position as regards shipments of weapons were supporters of unrestricted submarine warfare in WW1 and WW2.

* The distinction the Geneva Conventions make between combatants not currently fighting and combatants rendered hors-de-combat (sick, wounded, surrendered, shipwrecked), while clear as a matter of the current international law in force, doesn't quite make sense in the context of off-battlefield drone strikes. The fact that you can legally (subject to normal considerations about proportionality of collateral damage) drone-kill an off-duty enemy soldier in his bed at home, but not in his hospital bed, doesn't really serve a logical purpose. The fact that you can legally drone-sink a civilian boat (again subject to proportionality) in order to kill the off-duty enemy combatant passengers, but not finish them off once they are in the water, is producing mildly absurd results in the instant case.

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Second Geneva Convention of 1949 art. 3:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Commentary ¶ 489 (applying to the first-quoted paragraph):

The object and purpose of common Article 3 supports its applicability in non-international armed conflict reaching beyond the territory of one State. Given that its aim is to provide persons not or no longer actively participating in hostilities with certain minimum protections during intense armed confrontations between States and non-State armed groups or between such groups, it is logical that those same protections would apply when such violence spans the territory of more than one State.

Commentary ¶¶ 893–896 (applying to the last-quoted paragraph):

This provision confirms that, while humanitarian law provides for equal rights and obligations of the Parties to the conflict in the treatment of people in their power, it does not confer legitimacy on non-State armed groups that are Parties to a conflict.

Furthermore, it serves to underline that, as international humanitarian law applies based on the facts, regardless of whether a State qualifies the members of a non-State armed group as ‘terrorists’ or its actions as ‘terrorism’, humanitarian law applies if and when the conditions for its applicability are met.

The denial that groups that a State has labelled as ‘terrorist’ may be a Party to a non-international armed conflict within the meaning of humanitarian law carries the risk that the non-State armed group loses an incentive to abide by that body of law. This in turn reduces the ability of humanitarian law to serve its protective purpose. Humanitarian law seeks to protect civilians and all those who are not directly participating in hostilities; it does this in part by obliging Parties to distinguish between civilians and civilian objects and military objectives.

Nothing since the introduction of common Article 3 in 1949 has altered the fact that the applicability of humanitarian law to situations of non-international armed conflicts does not affect the legal status or enhance the legitimacy of non-State armed groups. This remains as essential today as it was at that time, as any other interpretation will almost inevitably lead States to deny the applicability of common Article 3 and thereby undermine its humanitarian objective.

I don't think the ICC rules apply to the United States. (Isn't there an literal statute repudiating them?)

The Geneva Convention is your best bet, but it's pretty vague. I don't think anyone actually wants our armed forces interpreting it literally (okay, some people want that, but I'd wager most people don't, especially not if we were in a real war with enemies who shoot back.)

I never put much stock in the, "we would never follow illegal orders," shtick in the first place. If the military wants to do something in wartime, they'll do it.

I will caveat that the Second Geneva Convention only applies between contracting parties by its own terms, so unless Venezuela wanted to do the funniest thing, it's not clear how binding it would be here. But the United States tends to flip back and forth about whether it wants to apply the same rules regardless, and it'd probably be a good idea.

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