The US aircraft that carried out the first airstrike on a suspected drug-trafficking boat in the Caribbean was reportedly disguised as a civilian plane – a possible war crime.
The New York Times reported that the aircraft had been painted to obscure its military identity, and its munitions were hidden inside its fuselage rather than visible under its wings.
The 2 September attack on a small boat last year killed 11 Venezuelans, including two survivors from the first strike who were clinging to wreckage in the water when they were bombed a second time. The Venezuelan government denied that the dead men had been gang members, and Washington presented no proof they were involved in drug smuggling.
The Trump administration went on to kill more than 120 people in 35 separate attacks on small boats in the Caribbean and Pacific, in what it said was a counter-narcotics campaign in the run-up to this month’s direct attack on Venezuela.
The Pentagon has justified the killings on the grounds that the US is at war with drug trafficking cartels. Most international legal experts reject that and say the attacks amount to murder.
Even if the claim of being at war is justified, specialists in the laws of war say the use of a plane disguised to look like a civilian aircraft, so that its targets would be caught off-guard, would represent the war crime of “perfidy” under international and US military legal standards.
“If we move from the legally incorrect premise that this is a lethal operation governed by the laws of war, then the concept of perfidy here is relevant,” Nehal Bhuta, professor of public international law at the University of Edinburgh, said.
Bhuta said the use of civilian disguises in war would have a corrosive effect, for example making every airliner with civilian markings a potential target. “This is precisely the destructive slippery slope that a firm commitment to prohibition against perfidy is aimed to avoid,” he said.
He added, however, that in the absence of an armed conflict, the “perfidy” issue was irrelevant as the strikes should be classed as extra-judicial killings.
“Fundamentally, the debate about ‘war crimes’ is a distraction – the whole operation is illegal, and the conduct of an extrajudicial execution by means of a plane with civilian markings is in fact reminiscent of a death squad operation,” Bhuta said.
The US Law of War manual defines perfidy as “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence”. It provides the example of “feigning civilian status and then attacking”.
The Commander’s Handbook on the Law of Naval Operations, used by the US Navy, Marines and Coast Guard, states that “honor prohibits perfidy” and gives the example of “feigning non-hostile relations in order to seek a military advantage”.
The handbook for the military commissions, set up to judge terror suspects held in Guantánamo Bay prison camp, also has a section on “using treachery or perfidy”. One inmate was charged with perfidy for the 2000 al-Qaida attack on the USS Cole, in which the attackers waved in friendly manner as they approached the US warship in a small boat packed with explosives.
The military commission handbook stipulates the death sentence “if the death of any person occurs as a result of the improper use of treachery or perfidy”.
The New York Times report said it was unclear what kind of aircraft was used, or how exactly it was disguised, but noted that the US military had modified civilian aircraft, such as Boeing 737s and Cessna turboprops, which have internal weapons bays and have been reported by plane spotters painted white with minimal markings.
The report said that since the initial September airstrike, the US military has switched to using identifiably military aircraft, including drones, though added it was unclear whether those aircraft were at low enough altitude to be seen by their targets.
The Pentagon did not respond to a request for comment, but told the New York Times that the US military used “a range of standard and non-standard aircraft” and that before any deployment “they go through a rigorous procurement process to ensure compliance with domestic law, department policies and regulations, and applicable international standards, including the law of armed conflict”.
Craig Jones, an expert on the laws of war and a senior lecturer in political geography at Newcastle University, said that in the past, the US military’s legal advisers in the judge advocate general (JAG) corps would have been consulted on the use of civilian disguise, to give a view on whether it was compliant with US and international law. However, the current defence secretary, Pete Hegseth, fired the top JAGs soon after taking office and has limited the role of those who remain.
“The problem now with the Trump administration is that he’s sidelining all the JAGs, either shutting them out entirely, not listening to them, or getting rid of them,” Jones said. “We’re left with a quite terrifying situation whereby those who are supposed to be ensuring compliance are not even part of the conversation – unless they are willing to ‘get to yes’.”
