If the Reports Are True, the Second Strike Was a War Crime

By Gabriel Vincent Tese, Esq.

On September 2, 2025, U.S. military forces struck a vessel in the Caribbean carrying eleven individuals the administration claimed were trafficking drugs from Venezuela. According to reporting from the Washington Post, CNN, and NBC News, two survivors emerged from the wreckage, clinging to what remained of the burning boat. A second strike was then ordered. Those two men were killed in the water.

If these reports are accurate, that second strike was a war crime under both U.S. and international law. It does not matter whether the administration's underlying legal theory for the strikes is valid. It does not matter whether the individuals were originally lawful targets. Once they were shipwrecked, they became hors de combat, out of the fight, and were entitled to protection from further attack.

The Legal Framework: Status-Based vs. Conduct-Based Targeting

To understand why the second strike crosses a clear legal line, we need to understand the two legal bases under which the U.S. can target individuals during armed conflict.

Status-based targeting allows U.S. forces to engage members of a declared hostile force at any time based solely on their membership in that force. Under the Standing Rules of Engagement (SROE), once the National Command Authority designates a force as hostile, its members may be targeted without any requirement that they be engaged in hostile activity at the moment of the strike. The Trump administration has designated Venezuelan drug cartels, including Tren de Aragua, as Foreign Terrorist Organizations. The administration's theory is that membership in these organizations makes individuals targetable as enemy combatants in a non-international armed conflict.

Conduct-based targeting allows U.S. forces to engage individuals who are committing hostile acts or demonstrating hostile intent, or who are directly participating in hostilities. Under this framework, the individual's conduct, not their organizational membership, provides the legal basis for engagement. The administration has argued that transporting drugs constitutes participation in hostilities because it provides material support to designated terrorist organizations.

Both theories have been challenged by legal experts, uniformed military lawyers within the Pentagon, and allied nations. The United Kingdom has ceased sharing intelligence on suspected drug-trafficking vessels because it believes the strikes are illegal. Multiple current and former military lawyers have publicly stated the strikes do not appear lawful. Admiral Alvin Holsey, Commander of U.S. Southern Command, offered to resign after raising concerns about legality.

But here is what matters for the second strike: even if we assume both targeting theories are valid, neither authorizes attacking shipwrecked individuals.

Hors de Combat: The Line That Cannot Be Crossed

The concept of hors de combat, literally "out of the fight," is one of the oldest and most fundamental principles of the law of armed conflict. A person who is hors de combat may not be made the object of attack, regardless of what they were doing moments before.

The Department of Defense Law of War Manual states this principle clearly in Section 5.9:

"Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack."

The Manual further provides at Section 5.9.4 that persons "placed hors de combat may not be made the object of attack." And at Section 18.3.2.1, the Manual states explicitly: "orders to fire upon the shipwrecked would be clearly illegal."

This is not ambiguous guidance buried in footnotes. This is black-letter law that every military lawyer learns and every commander is trained to follow.

Article 41 of Additional Protocol I to the Geneva Conventions, which the United States recognizes as reflective of customary international law, defines a person as hors de combat when he is in the power of an adverse party, when he clearly expresses an intention to surrender, or when he has been rendered unconscious or is otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself.

Two men clinging to the burning wreckage of a destroyed vessel in the middle of the ocean meet this standard. They were incapacitated by shipwreck. They were incapable of defending themselves. They posed no threat to anyone.

Why the Original Targeting Basis Is Irrelevant

The administration may argue that the survivors remained legitimate targets because they were still members of a designated terrorist organization, or because they could theoretically contact other traffickers to retrieve them and any surviving cargo. According to the Washington Post, Admiral Frank "Mitch" Bradley made precisely this argument before ordering the second strike.

This argument fails completely.

Hors de combat status is not dependent on the original basis for targeting. It is a status that attaches automatically when the conditions are met. A member of a declared hostile force who is wounded and incapacitated is hors de combat. A civilian directly participating in hostilities who is shipwrecked is hors de combat. The targeting authority that existed before the incapacitating event is extinguished by the event itself.

The DoD Law of War Manual addresses this directly. The protection applies to persons "incapacitated by wounds, sickness, or shipwreck" provided they abstain from hostile acts and do not attempt to escape. Two men floating in the water after their boat was destroyed by a missile are not committing hostile acts. They are trying to survive.

The theoretical possibility that survivors might call for help does not change this analysis. As Jack Goldsmith, former Assistant Attorney General for the Office of Legal Counsel under President George W. Bush, wrote in response to the Washington Post report: "The theoretical possibility of calling other traffickers for help is not the test. The incapacitated survivors simply may not be targeted unless... they affirmatively committed a 'hostile act' or 'attempt[ed] to escape.'"

The Prohibition on Declaring No Quarter

The reported order, "kill everybody," implicates another fundamental prohibition in the law of armed conflict: the prohibition on declaring that no quarter will be given.

The DoD Law of War Manual states:

"It is forbidden to declare that no quarter will be given. This means that it is prohibited to order that legitimate offers of surrender will be refused or that detainees... will be summarily executed. Moreover, it is also prohibited to conduct hostilities on the basis that there shall be no survivors."

The 1863 Lieber Code, the foundational U.S. military law of war document, was even more direct:

"Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed."

If Secretary Hegseth ordered that there be no survivors, and if that order was carried out by killing men who were already incapacitated, this is precisely the conduct these provisions prohibit.

The Duty to Refuse Unlawful Orders

The DoD Law of War Manual imposes a duty on military personnel to refuse clearly unlawful orders. Section 18.22.4 states that service members have a duty "to refuse to comply with clearly illegal orders to commit violations of the law of war."

An order to kill shipwrecked survivors is clearly illegal. The Manual says so explicitly. Every military lawyer knows this. The prohibition is taught at every level of professional military education.

Admiral Bradley, if the reports are accurate, could not lawfully rely on Secretary Hegseth's order. The prohibition on targeting the shipwrecked is so fundamental, so clearly established, that compliance with a contrary order provides no defense.

What This Means

If the reporting is accurate, the September 2 second strike was not a close legal question. It was not an edge case requiring careful analysis of novel targeting theories. It was a clear violation of one of the most basic rules of armed conflict. A rule that predates the Geneva Conventions. A rule that the U.S. military has recognized since the Civil War. A rule that our own Law of War Manual calls "dishonorable" to violate.

The administration has denied the reports. Pentagon spokesman Sean Parnell called the Washington Post's narrative "completely false." But Congress has launched bipartisan inquiries. The House and Senate Armed Services Committees have announced they will conduct "vigorous oversight."

The questions that must be answered: Did Secretary Hegseth order that there be no survivors? Were survivors of the first strike identified before the second strike was ordered? Who authorized the second strike and on what legal basis? Did military lawyers advise that the second strike was lawful? Were any service members in the chain of command aware that survivors had been identified?

These are not academic questions. If the reports are true, individuals in the chain of command may have committed war crimes. The fact that the President has pardon power does not make the underlying conduct legal. It simply means there may be no accountability.

We hold ourselves to a higher standard. That is not weakness. It is what distinguishes us from those we fight. Senator Mark Kelly, a former Navy captain, said it plainly: "We are not Russia."

The law of armed conflict exists precisely for moments like this. When the temptation to eliminate an enemy completely is strongest, the law requires restraint. When survivors are helpless in the water, the law demands we take them prisoner, not kill them.

If we abandon that principle, we abandon what we claim to stand for.

Gabriel Vincent Tese is the founding attorney of Tese Law, a veteran-owned law firm. The views expressed here are his own.