Last week, I saw the movie “Nuremberg,” which is a psychological thriller about the war crime trial of Hermann Göring. After the Nazi surrender in May 1945, Nazi leaders were subjected to war crimes trials in Nuremberg, which is the backdrop for the movie.
Those trials established international legal principles, including making individuals responsible for war crimes. In addition to governmental responsibility, the Nuremberg trials made it clear that individuals who carried out state policies could be held responsible for their actions. Individuals could not be excused of the actions because they were merely following orders.
One of the movie’s minor characters was Karl Dönitz, who as commander in chief of the German navy developed the wolfpack tactics used by German U-boat commanders during the war. Dönitz was involved day-to-day supervision of U-boat operations and made most operational decisions.
At Nuremberg, Dönitz was convicted of war crimes and crimes against peace. The war crimes included ordering the sinking of neutral merchant ships without warning and ordering that survivors of sunken ships could not be rescued. Dönitz served 10 years in prison for those crimes.
Although rare, there were several incidents during the war when U-boats opened fire on life boats carrying survivors of sunken ships, the most notorious of which was the crew of U-852 who were tried for sinking the SS Peleus and killing its survivors. The U-boat commander, his second-in-command and the ship’s doctor were all found guilty of war crimes and were executed by a firing squad.
The Nuremberg movie was released concurrently with the U.S. Naval actions off the coast of Venezuela. Perhaps this is merely coincidental, but critics of the Trump Administration question to what extent those naval actions may constitute war crimes while the movie brings war crimes to the public’s attention — particularly in the closing scenes.
The Washington Post recently reported (allegations) that, in connection with the first air strike undertaken, Defense Secretary Pete Hegseth issued an order to kill everyone aboard a Venezuelan boat that ostensibly was carrying drugs destined for the United States. According to the Post, because not everyone on board was killed in the first air strike, a second strike was targeted at the survivors who were “clinging to the smoldering wreck.” If true, this is stunningly similar to the attack by U-852 on the survivors of the SS Peleus during World War II.
Time magazine interviewed Rebecca Ingber, professor of law at Cardozo Law School and an expert in international law, who stated, “It is absolutely unlawful to order that there will be no survivors. There is no actual armed conflict here, so this is murder. Declaring that there be no survivors or otherwise killing people hors de combat (out of the fight) is a war crime. This is one of the most basic and longstanding rules of LOAC.”
LOAC is an acronym for the Law of Armed Conflict, a body of international law governing the conduct of combatants during armed conflict. Laura Dickinson, professor of law at George Washington University and an expert in the law of armed conflict, stated, “In an armed conflict, the intentional killing of a protected person — someone who is a civilian or a person who is ‘hors de combat’ because they have laid down their arms or are shipwrecked at sea — is a war crime.”
However, it is not certain whether the actions against Venezuela rise to the level of an armed conflict. Under U.S. law, an armed conflict is defined as “a prolonged period of sustained combat involving members of the U.S. Armed Forces against a foreign belligerent. The term connotes more than a military engagement of limited duration or for limited objectives, and involves a significant use of military and civilian forces.”
The law provides that incursions and interventions generally do not rise to the level of an armed conflict.
In the event that the naval actions are not an armed conflict, several legal scholars believe that Hegseth and those under his command who are responsible for carrying out the attacks would be subject to a much lower criminal standard dealing with murder and could face prosecution under the Uniform Code of Military Justice.
If the Washington Post reports are correct and the naval actions constitute an armed conflict, then the second strike was potentially a war crime. However, if there is no armed conflict, all the strikes may be criminal acts. A congressional investigation should be undertaken in order to ascertain the underlying facts and to determine whether prosecution is warranted.
Jim de Bree
Valencia
