US Military Attacks Venezuelan Boats, Killing 11, Disguised as Civilian Aircraft, a 'War Crime'
The Trump administration's September 2nd attack on a suspected drug smuggling vessel off the coast of Venezuela, killing 11 people, was the first attack on a secret aircraft painted to resemble a civilian aircraft by the Pentagon, and appears to be a war crime.
The New York Times reported on the 12th that officials familiar with the September 11 deaths of 11 people on a drug smuggling vessel revealed that the aircraft, disguised with non-military paint, carried ammunition inside the fuselage, not underneath the wings.
Legal experts say non-military appearances are a crucial element in military attacks, and the US administration has consistently argued that deadly boat attacks are "legal and not murder."
The issue stemmed from President Trump's statement at the time that he had "determined" the United States was engaged in an armed conflict with drug cartels. The US law of armed conflict, which applied to the incident, prohibited "combatants disguising themselves as civilians to lull an enemy into a letdown and then attack and kill them," defining this as a "war crime" of "treachery."
The hit boat reportedly sighted a US aircraft before the initial attack and then turned back toward Venezuela. Two survivors from the initial attack appeared to wave at the aircraft from a piece of the overturned hull, but the military killed them in a follow-up attack, sinking the boat's wreckage.
The New York Times reported, "It's unclear whether the two initial survivors knew their vessel's explosion was caused by a missile strike," adding, "Officials who viewed surveillance footage of the attack said the US aircraft dived low enough to be visible to those aboard." “If an aircraft is painted to conceal its military character and comes close enough to the vessel to be seen by the people on board, preventing them from realizing they must take evasive action or surrender for their lives, that’s a war crime under the standards of armed conflict,” retired Major General Stephen J. Lepper, a former deputy attorney general of the U.S. Air Force, told the Times. “Hiding one’s identity is an element of treachery, and unless an aircraft is identified as a fighter, it should not be engaged in combat.”
The U.S. military later began using military aircraft in boat attacks, including MQ-9 Reaper drones.
“While it’s unclear whether U.S. aircraft subsequently flew low enough to be visible, in one boat attack in October, two survivors of the initial attack swam away from the wreckage and avoided death in a subsequent attack on the vessel,” the Times reported. “The U.S. military rescued them and returned them to their home countries of Colombia and Ecuador.” The Department of Defense Law of War Manual defines "betrayal" as "including instances where a combatant assumes civilian identity and the enemy fails to take necessary precautions."
The Commander's Handbook on the Law of Naval Operations states that lawful combatants use offensive force "within the bounds of military honor, and especially without resort to betrayal," and that commanders have a "duty to distinguish their forces from civilians."
Questions about betrayal were raised in a closed-door congressional briefing last year, but were not discussed publicly due to the aircraft's classified nature. Public debate at the time focused on the subsequent attack, which killed the two initial survivors, despite the law of war prohibiting targeting shipwrecks.
Three people familiar with the matter confirmed to the New York Times that the aircraft was not painted in the standard military gray and had no military markings. Officials, however, told the Times that the transponder was transmitting a military tail number, indicating it was broadcasting, or "squawking," its military identity via radio signals.
War law experts told the Times that the use of a military transponder signal would not solve the issue of betrayal, as the use of the aircraft as a transmitter alone is not legal, and the people on board likely did not have equipment to receive the signal.
The Times reported that amateur aircraft observers posted photos on Reddit in early September of what appeared to be a modified Boeing 737 with blue stripes and no military markings at St. Croix Airport in the U.S. Virgin Islands.
The U.S. military operates several aircraft based on civilian aircraft, including modified Boeing 737s and Cessna turboprops.
The New York Times reported, "These civilian aircraft, disguised as civilians, can fire ammunition from internal weapons bays without external armament. These aircraft are typically painted gray and have military markings, but military and aircraft-watching websites show some aircraft painted white and have few markings."
The US military has killed at least 123 people in 35 boat attacks, including the one on September 2.
Legal experts on the use of force told the Times that Presidents Trump and Hegemony ordered the boat attacks, which were illegal and amounted to murder.
The military cannot target civilians suspected of crimes who pose no imminent threat. The New York Times reported, “The Trump administration has argued that the attack was legal and that the people on board were ‘combatants,’ because the president has determined that this is a so-called non-international armed conflict—a war against non-state actors—between the United States and 24 criminal organizations and drug cartels he has designated as terrorists.” The legitimacy of that argument is widely disputed, and attention is now focused on how the specific attack may have violated the laws of war.
Jeffrey Cohn, a former Army law-of-war advisor (lieutenant colonel, JAG legal officer) and now a law professor at Texas Tech University, told the Times, “I don’t believe the September 2 attack occurred during an armed conflict.” He added, “The United States considers betrayal a crime in a non-international armed conflict.” Professor Cohn said the assessment of whether the September 2 attack constituted a betrayal hinges on whether the US military intended to create a 'surprise' by leading those on board the ship to believe the aircraft were civilians. "The key question is whether there was a credible alternative reason to use an unmarked aircraft in an attack other than exploiting its apparent civilian identity to gain a tactical advantage."