Folks of my generation who studied Property at a law school in the United States may recall this passage from the dissenting opinion of Justice Henry Brockholst Livingston in the 1805 case of Pierson v. Post (New York Supreme Court of Judicature, 3 Caines Reports 175, 2 Am. Dec. 264 (1805). The case was about the right to the cadaver of a fox that was chased by one and his hounds and slain by an opportunist on a vacant land belonging to neither man. Justice Livingston wrote: “… [A] fox is a ‘wild and noxious beast.’ Both parties have regarded him, as the law of nations does a pirate, ‘hostem humani generis, and although ‘de mortuis nil nisi bonum,’ be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barn yards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit.” 3 Caines at 130.

That the hostem generis in the Pierson Case be likened to pirates was no exaggeration, nor Livingston’s admonition that such scourges be put to death wherever found for the public good. As a matter of U.S. law, Article I, §8 of the U.S. Constitution gives the Congress power to “define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations.”  As a matter of Law of Nations (international law), under the Universality Principle any country has the authority, if not the moral and/or legal obligation to take action against perpetrators of acts that shock the conscience of the world. Within the traditional scope of this principle have been offenses such as maritime and aerial piracy, traffic and trade in narcotics, and traffic and trade in slaves, and, of late (since World War II) also infliction of unacceptable violence, war crimes, and abuses of human rights

Where the actions of the U.S. against “alleged” narcoboats in the Pacific and Caribbean runs into legal limitations is in three areas. First, what is the evidentiary proof that these boats are engaged in the traffic and trade of narcotics? Striking a boat on the mere suspicion of illegal activity does not cut it. That is why interdiction and interrogation of suspicious boats and ships on the high seas is the preferred way to gather the necessary evidence that could result in the forfeiture of the boat, destruction of the cargo, and punishment of the traffickers.       

Second, under normal rules of international law of the seas, each country has the right of freedom of navigation on the high seas and any interdiction of traffickers would occur typically when the boat suspected of illegal activity enters the zone contiguous to the coastal county’s territorial sea. The U.S. territorial sea extends 12 nautical miles from the shores of the United States, where the U.S. has full sovereignty, while the contiguous zone extends further out to 24 nautical miles from shore, allowing the U.S. to enforce customs, fiscal, immigration, and sanitary laws. https://nauticalcharts.noaa.gov/data/us-maritime-limits-and-boundaries.html.

The U.S. Department of Defense Law of War Manual (June 2015, updated July 2023)

XVIII – Implementation and Enforcement of the Law of War [pp. 1082-1160]

Subsection 18.3.1 [p. 1087] [citations omitted].

Comply With the Law of War in Good Faith. Each member of the armed forces has a duty to comply with the law of war in good faith. In practice, the obligation of individual service members to comply with the law of war in good faith is met when service members: (1) perform their duties as they have been trained and directed; and (2) apply the training on the law of war that they have received.

The duty of each individual service member to comply with the law of war in good faith rests within a broader framework of law of war implementation by the U.S. armed forces.

Subsection 18.3.2 [p. 1088] [citations omitted].

Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations. Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations. In addition, orders should not be construed to authorize implicitly violations of law of war.

Subsection 18.3.2.1 [pp. 1088-1089] [citations omitted]

Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal. Similarly, orders to kill defenseless  persons who have submitted to and are under effective physical control would also be clearly illegal. On the other hand, the duty not to comply with orders that are clearly illegal would be limited in its application when the subordinate is not competent to evaluate whether the rule has been violated.

The subordinates are not required to screen the orders of superiors for questionable points of legality, and may, absent specific knowledge to the contrary, presume that orders have been lawfully issued.

The persons exempt from the requirements of the foregoing limitations and prohibitions are identified in Subsection 18.3.2.1. They are subordinates who are not competent to evaluate whether the rule against carrying out of an illegal order has been violated. The degree to which a subordinate is competent to evaluate the illegality of an action is suggested in Subsection Section 18.3.1, which requires one to comply with the law of war in good faith, which means that one is performing one’s duty as they have been trained and directed; and one is applying the training on the law of war that they have received.

One expects the current Secretary of Defense (of War) to know these rules. He has military training and is the recipient of two Bronze Star Medals for meritorious service in combat zones (leadership as a platoon leader and civil affairs officer in Iraq and role as a counterinsurgency instructor in Afghanistan), and has been shown to know right from wrong ( https://www.msn.com/en-us/news/world/hegseth-war-video-resurfaces/vi-AA1RERYh). One expects the same of the admiral overseeing the September 2, 2025 strike on a “narcoboat” and the subsequent killing of the two survivors of the initial strike.

BUT can we expect the same degree of sophisticated analysis of what constitutes a war crime or what is an illegal order on the part of a drone or missile operator belonging to a generation raised on a steady diet of “blow ‘em up” and “kill ‘em all” video games?