CNN legal analyst Elie Honig explains that the Department of Defense Law of War Manual uses a second strike on defenseless survivors of a shipwreck, such as the one the Washington Post says took place against an alleged Venezuelan drug boat, as an example of an unlawful act. Page 239 of the DOD’s Law of War Manual states that U.S. policy, based on the Geneva Convention, says it is “dishonorable and inhumane” to attack people in a “helpless state” due to “wounds, sickness, or shipwreck.” It specifically defines “shipwrecked combatants” as no longer valid targets, to “include those who have been shipwrecked from any cause, including forced landings at sea by or from aircraft.” “It is a core principle of the rule of law and of the law of war that you cannot target and kill people who have been rendered incapacitated or defenseless,” Honig said. “If you look at the Department of Defense’s own manual on the law of war, it uses as an example of something that would be illegal this exact scenario. It says that if you have survivors of a shipwreck, they cannot be targeted because they are incapacitated.” “If somebody took this order or gave this order knowingly, and with the intent to take out two survivors who had been rendered helpless in the water, then yes, it would be illegal.”

ELIE HONIG, CNN: In a word, they were illegal. It is a core principle of the rule of law and of the law of war that you cannot target and kill people who have been rendered incapacitated or defenseless. That conflicts with the Geneva Convention. There was a group of Judge Advocate General – former military attorneys – who came out with a statement over the weekend saying that these acts would be patently illegal. Colonel Cedric Leighton just told you 15 minutes ago on air that it would be illegal. And, if you look at the Department of Defense’s own manual on the law of war, it uses as an example of something that would be illegal this exact scenario. It says if you have survivors of a shipwreck, they cannot be targeted because they are incapacitated. So if somebody took this order or gave this order knowingly, and with the intent to take out two survivors who had been rendered helpless in the water, then yes, it would be illegal. WOLF BLITZER, CNN: And not only the commanding officers who gave the order, but those who actually committed the acts – they would be engaged in a war crime. Is that right? ELIE HONIG: Yeah. So it all will depend on their level of knowledge. What did they know at that moment? If they were aware that there were people in the water who had been rendered defenseless, who were incapable of defending themselves and fighting back, and they took that order, then yes, they would be acting on an illegal order. And that has been rejected as a defense in court cases. WOLF BLITZER: The U.S. Justice Department’s Office of Legal Counsel last month argued in a classified legal opinion that the President of the United States is allowed to authorize deadly force against a broad range of cartels because they pose an imminent threat to Americans. Would this apply to what are being described as so-called double-tap strikes – a second strike going in and killing wounded individuals? ELIE HONIG: So, I don’t believe that that memo by the Office of Legal Counsel does provide legal cover here. Now, this – as you said – is a classified memo. We know it exists. We in the public have not seen it. However, a couple of things. First of all, while that memo relates to the overall effort to target these Venezuelan drug boats, it apparently does not relate to this double-tap – to this effort to go back and attack people who had been rendered helpless in the water. The second thing is that that Office of Legal Counsel memo actually was issued on September 5th, which was three days after this attack. And so you can’t provide retroactive cover for something that happened three days ago. So I do think that Office of Legal Counsel memo is very important. I think it could provide some cover for the overall actions against these drug boats, but I do not think it’s going to help anybody who is involved in this effort to go back and go after the two survivors. WOLF BLITZER: Interesting. A bipartisan group of lawmakers – not just Democrats, but Republicans as well – now say they plan to conduct what they call vigorous oversight into these U.S. military strikes. Can you explain for our viewers what happens next? ELIE HONIG: So, Wolf, it is notable, first of all – and really, for the first time on a major issue, I think, during this administration – we are seeing a Republican-led bipartisan group in both the House and the Senate Armed Services Committees. Now, these committees are going to have extensive fact-finding powers. First of all, they can issue subpoenas – that means one must testify. They can hold depositions behind closed doors. They can hold public hearings. They can issue reports and rulings. And perhaps most importantly, Wolf, they have the ability to make formal referrals of potential criminal matters over to either the military courts or to the Department of Justice. And finally, of course, Congress always does have the power to consider impeachment of executive branch officials. Now, that’s a very drastic step; we’re not there. But I think, as Congress – both houses – have properly recognized, the first thing is to get the details, get the facts, and act from there.

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