The Geneva Conventions say nations have a duty to “take all possible measures” to help rescue victims of shipwrecks. A U.S. submarine left that to Sri Lanka.

In this photo released by Sri Lankan President Media Division, Sri Lankan Navy sailors rescue Iranian sailors after the Dena warship sank outside Sri Lanka`s territorial waters on Wednesday.Sri Lankan Presidential Media Division via Associated Press

The U.S. torpedoing of an Iranian frigate off Sri Lanka this week may have violated the Geneva Conventions by failing to help rescue sailors from the stricken warship, an act that could potentially endanger American service members in this and future wars.

The 312-foot Dena and its 130-member crew, many of them musicians in the Iranian navy band, had just finished participating in an Indian government naval exercise and cultural exchange that the U.S. Navy had also participated in and were on the way home on Wednesday. After clearing Sri Lanka, it was struck by a torpedo fired from a U.S. Navy submarine about 20 miles from the island`s southern tip. The weapon appears to have ruptured the hull from beneath, and the warship quickly sank. The submarine did not attempt to rescue Iranian sailors in the water.

White House press secretary Karoline Leavitt bragged about how the attack featured the first American use of a torpedo to sink a ship since World War II. Defense Secretary Pete Hegseth, narrating a video clip of the attack, used the same gloating tone. "An American submarine sunk an Iranian warship that thought it was safe in international waters. Instead, it was sunk by a torpedo. Quiet death," he intoned.

Hegseth had previously mocked the "stupid rules of engagement" that aim to limit civilian deaths and other actions that could constitute war crimes.

"There is an affirmative duty to rescue under the Geneva Conventions," said Mark Nevitt, a former Navy lawyer in the judge advocate general corps and now a law professor at Emory University.

He and other legal experts warn that disregarding those and other rules invites mistreatment, even death, to Americans who are shipwrecked or captured.

The Geneva Conventions, the 1949 agreements governing international armed conflict, state that, following a naval engagement, "parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled."

After sinking the Dena, though, the attacking submarine appears to have done none of those and instead left it to Sri Lankan authorities to find survivors and collect the bodies of those killed.

Laurie Blank, also an international law professor at Emory, said the rule applies to submarines, as well, and if the sub did not have the ability or room to care for the shipwrecked sailors, the crew still had the obligation to do what it could to save their lives.

"This rule reflects and maintains the long-standing customary duty to rescue and save lives at sea," she said. "In such case, taking all possible measures would mean that the submarine should pass the location of possible survivors to other vessels, aircraft or coastal facilities that are able to render assistance, or at a minimum to higher headquarters, at the earliest possible moment."

Asked about the submarine`s actions, a US Defense Department spokesman said: "We`re not going to discuss operational details regarding the submarine or actions following the engagement. Sri Lankan authorities responded promptly to distress signals from the vessel and conducted search and rescue operations that recovered survivors. We defer to the government of Sri Lanka for additional details regarding those efforts."

It took at least an hour for Sri Lankan rescuers to arrive at the scene, however, and it is unknown how many of the 87 dead thus far might have survived if the U.S. sub had surfaced as the Dena was sinking.

The U.S. Navy`s own "Handbook on the Law of Naval Operations" largely repeats the Geneva Conventions language buts adds a caveat: "As far as military exigencies permit, after each engagement all possible measures should be taken without delay to search for and collect the shipwrecked, wounded, and sick and recover the dead."

That clause, "as far as military exigencies permit," could be used by the Navy to justify the submarine`s failure to take part in the rescue, Nevitt said.

Submarines are virtually undetectable underwater, but uniquely vulnerable to attack when at the surface. Their structure, with limited deck space, and relatively small size also make them ill-suited for search and rescue.

"It`s a submarine, it`s secret, it`s very small," Nevitt said, adding that the Navy jealously guards the location of all its submarines, both nuclear-armed missile boats and attack subs.

"The basic idea is that any ship, including a submarine, should do its best to rescue shipwrecked enemy sailors. Attacking them would be a war crime," said Marko Milanovic, a professor of international law at the University of Reading in England. "The problem is that submarines are not best equipped to do this kind of mission, and that to do this they`d have to surface, which could expose them to attack."

In this particular instance, however, it is unclear how surfacing to assist in a rescue would have endangered the submarine, given that the sinking took place 1,600 nautical miles from the Persian Gulf, where virtually all of the naval combat is taking place.

"There are still some questions remaining," Nevitt said.

In any event, whether the submarine crew`s failure to aid in the rescue technically violates the Geneva Conventions is an academic question. The United States is not party to the International Criminal Court, and the Trump administration in particular has openly denigrated the very concept of international law, shown most recently by the extrajudicial killings of more than 150 suspected drug smugglers in the southern Caribbean and eastern Pacific.

More important, Nevitt and others said, by ignoring the spirit if not the letter of the Geneva Conventions, the U.S. is endangering the lives of service members in this and subsequent conflicts.

"That is a fundamental problem with the way this Pentagon operates," said Brian Finucane, who spent a decade in the State Department`s legal office. "This secretary of defense has a long track record of denigrating the law of war."

"There are still some questions remaining," Nevitt said.

In any event, whether the submarine crew`s failure to aid in the rescue technically violates the Geneva Conventions is an academic question. The United States is not party to the International Criminal Court, and the Trump administration in particular has openly denigrated the very concept of international law, shown most recently by the extrajudicial killings of more than 150 suspected drug smugglers in the southern Caribbean and eastern Pacific.

More important, Nevitt and others said, by ignoring the spirit if not the letter of the Geneva Conventions, the U.S. is endangering the lives of service members in this and subsequent conflicts.

"That is a fundamental problem with the way this Pentagon operates," said Brian Finucane, who spent a decade in the State Department`s legal office. "This secretary of defense has a long track record of denigrating the law of war."

"Our partnership is grounded by our shared values and strategic interests. When we operate and exercise together in the Indian Ocean like here at MILAN, we strengthen our capabilities which leads to stronger, credible deterrence which maintains peace and security in the region," Steve Koehler, commander of the Navy`s Pacific Fleet, said in a press release a week before the attack.

 

By: S.V. Date