US attacked boat with aircraft that looked like a civilian plane

WASHINGTON – The Pentagon used a secret aircraft painted to look like a civilian plane in its first attack on a boat that the Trump administration said was smuggling drugs, killing 11 people last September, according to officials briefed on the matter.

The aircraft also carried its munitions inside the fuselage, rather than visibly under its wings, they said.

The non-military appearance is significant, according to legal specialists, because the administration has argued its lethal boat attacks are lawful – not murders – because US President Donald Trump “determined” the United States is in an armed conflict with drug cartels
.

But the laws of armed conflict prohibit combatants from feigning civilian status to fool adversaries into dropping their guard, then attacking and killing them. That is a war crime called “perfidy”.

Retired Major General Steven Lepper, a former deputy judge advocate general for the United States Air Force, said that if the aircraft had been painted in a way that disguised its military nature and got close enough for the people on the boat to see it – tricking them into failing to realise they should take evasive action or surrender to survive – that was a war crime under armed-conflict standards.

“Shielding your identity is an element of perfidy,” he said. “If the aircraft flying above is not identifiable as a combatant aircraft, it should not be engaged in combatant activity.”

The aircraft swooped in low enough for the people aboard the boat to see it, according to officials who have seen or been briefed on surveillance video from the attack.

The boat had turned back towards Venezuela, apparently after seeing the plane, before the first strike.

Two survivors of the initial attack later appeared to wave at the aircraft after clambering aboard an overturned piece of the hull, before the military killed them in a follow-up strike
that also sank the wreckage.

It is not clear whether the initial survivors knew that the explosion on their vessel had been caused by a missile attack.

The military has since switched to using recognisably military aircraft for boat strikes, including MQ-9 Reaper drones, although it is not clear whether those aircraft got low enough to be seen.

In a boat attack in October, two survivors of an initial strike swam away from the wreckage and so avoided being killed by a follow-up strike on the remnants of their vessel.

The military rescued them and returned them to their home countries, Colombia and Ecuador.

US military manuals about the law of war discuss perfidy at length, saying it includes when a combatant feigns civilian status so the adversary “neglects to take precautions which are otherwise necessary.”

A US Navy handbook says lawful combatants at sea use offensive force “within the bounds of military honour, particularly without resort to perfidy,” and stresses that commanders have a “duty” to “distinguish their own forces from the civilian population”.

Questions about perfidy have arisen in closed-door briefings of Congress by military leaders, according to people familiar with the matter, but have not been publicly discussed because the aircraft is classified.

The public debate has focused on a follow-up strike that killed the two initial survivors, despite a war-law prohibition on targeting the shipwrecked.

The press office for the US Special Operations Command, whose leader, Admiral Frank Bradley, ran the operation on Sept 2, declined to comment on the nature of the aircraft used in the attack.

But the Pentagon insisted in a statement that its arsenal has undergone legal review for compliance with the laws of armed conflict.

“The US military utilises a wide array of standard and nonstandard aircraft depending on mission requirements,” Mr Kingsley Wilson, the Pentagon press secretary, said in response to questions from The New York Times.

“Prior to the fielding and employment of each aircraft, 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.”

The White House did not respond to a request for comment.

It is not clear what the aircraft was.

While multiple officials confirmed that it was not painted in a classic military style, they declined to specify exactly what it looked like.

Amateur plane-spotting enthusiasts posted pictures on Reddit in early September of what appeared to be one of the military’s modified 737s, painted white with a blue stripe and with no military markings, at the St Croix airport in the US Virgin Islands.

Regardless of the specific aircraft at issue, three people familiar with the matter acknowledged that it was not painted in the usual military gray and lacked military markings.

But they said its transponder was transmitting a military tail number, meaning broadcasting or “squawking” its military identity via radio signals.

Several law-of-war experts said that would not make the use of such an aircraft lawful in these circumstances, since the people on the boat probably lacked equipment to pick up the signal.

Among the legal specialists who said the use of a military transponder signal would not solve a perfidy problem was Mr Todd Huntley, a retired Navy captain who formerly deployed with the Joint Special Operations Command as a judge advocate general, or JAG, and directed the Navy’s national security law division.

Mr Huntley said he could think of legitimate uses for such an aircraft that would make it lawful to have in the arsenal for other contexts, including a hostage rescue scenario in which munitions might be needed for self-defence but were not intended for launching offensive attacks.

The Trump administration kept planning for the boat attacks operation closely held, excluding many military lawyers and operational experts who would normally be involved.

Moreover, Defence Secretary Pete Hegseth has sought to undercut the role of military lawyers as an internal check, including by firing the top service JAGs in February.

The US military has killed at least 123 people in 35 attacks on boats, including the Sept 2 strike.

A broad range of specialists in laws governing the use of force have said the orders by Mr Trump and Mr Hegseth to attack the boats have been illegal and the killings have been murders.

The military is not allowed to target civilians who pose no imminent threat, even if they are suspected of crimes.

The administration has argued that the strikes are lawful and the people on the boats are “combatants” because Mr Trump decided the situation was a so-called non-international armed conflict – meaning a war against a non-state actor – between the United States and a secret list of 24 criminal gangs and drug cartels he has deemed terrorists.

The legitimacy of that claim is widely disputed.

Still, it has put attention on ways particular attacks may have violated the laws of war. NYTIMES