This article was originally published in Just Security. Read the original here.
When U.S. military leaders issue orders, the foundational legal frameworks come into play to determine their lawfulness, especially in contentious operations. Recent reports highlighted such a situation where Secretary of Defense Pete Hegseth allegedly ordered forces to eliminate suspected drug traffickers in the Caribbean. This order has sparked intense debate over legal obligations and responsibilities within the military regarding unlawful commands.
Unfolding the Controversy
Media reports by outlets like the Washington Post described an operation where U.S. forces purportedly received directives to “kill everyone” on a target boat. This action followed surveillance operations suggesting drug trafficking activities. The situation escalated with U.S. Special Forces allegedly targeting shipwreck survivors, continuing the initial assault after the vessel’s wreckage was observed.
In discussions going beyond the surface of the political implications, the focus has shifted to the military’s legal obligations concerning following or refusing orders deemed unlawful. Two primary legal questions emerge: when must military personnel refuse orders, and can a superior’s order serve as a defense against criminal accountability?
Military Legal Obligations
The Department of Defense’s Law of War Manual stipulates a clear duty for military personnel to reject commands that evidently breach the law of war. Included are orders to harm shipwrecked individuals. Notably, an instruction like this from a superior does not exonerate personnel from potential criminal liability if an order is plainly illegal.
An analysis of precedent and legal texts, such as the Commanders Handbook on the Law of Naval Operations, supports the view that naval forces must uphold humanitarian standards and report violations robustly. Historically, international agreements and court rulings, referencing cases like Llandovery Castle and the Peleus Trial, corroborated that executing manifestly illegal orders is indefensible in court.
International Law and Human Rights
The conversation extends into international human rights law, which is more restrictive outside declared armed conflicts. For example, human rights standards, as stated in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, limit the application of lethal force to situations of immediate threat to life, a criterion not met during the September operation.
Moreover, reported aspects of Secretary Hegseth’s order—as per the Washington Post and subsequent media analyses—suggest a breach of applicable human rights law. The alleged orders for execution against defenseless individuals at sea, notably survivors of the strike who were unarmed, falls under scrutiny for contravening principles that safeguard the right to life recognized by international law.
Such legal scrutiny implies that, if verified, the orders given during the Sept. 2 operation could reveal breaches not only of U.S. military law but of broader human rights protections, highlighting the critical need for military personnel to evaluate the lawfulness of commands they receive.
