Over at NRO, Andrew McCarthy largely agrees with Jack Goldsmith's conclusion that the the reported attack on survivors of a drug boat strike was unlawful. According to McCarthy, "If this happened as described in the Post report, it was, at best, a war crime under federal law." He writes further:
even if we stipulate arguendo that the administration has a colorable claim that our forces are in an armed conflict with non-state actors (i.e., suspected members of drug cartels that the administration has dubiously designated as foreign terrorist organizations (FTOs)), the laws of war do not permit the killing of combatants who have been rendered hors de combat (out of the fighting) — including by shipwreck.
To reiterate, I don't accept that the ship operators are enemy combatants — even if one overlooks that the administration has not proven that they are drug traffickers or members of designated FTOs. There is no armed conflict. They may be criminals (if it is proven that they are importing illegal narcotics), but they are not combatants.
My point, nevertheless, is that even if you buy the untenable claim that they are combatants, it is a war crime to intentionally kill combatants who have been rendered unable to fight. It is not permitted, under the laws and customs of honorable warfare, to order that no quarter be given — to apply lethal force to those who surrender or who are injured, shipwrecked, or otherwise unable to fight.
A key point here is that McCarty is not relying upon UN-affiliated entites nor unincorporated international law for his conclusion. Rather, he is resting his contentions on federal law (including those portions of the laws of war or international law that have been formally ratified by the Senate).
