Granting a pardon for war crimes is a war crime

It is a measure of how deeply depraved the man in the Oval Office is that the question of granting pardons to people who have been convicted of or are about to go on trial for war crimes is even a question. That the issue arises during Memorial Day weekend, when we commemorate Americans who have died in combat, only serves to drive home the level of depravity.

Trump is reportedly considering issuing a number of such pardons. He recently requested, on an expedited basis, the paperwork necessary to issue pardons. It’s quite a list of soldiers and private contractors who have engaged in considerable brutality.

Special Operations Chief Edward Gallagher of the Navy SEALs is scheduled to stand trial in the coming weeks on charges that while deployed in Iraq, he shot several unarmed civilians and stabbed a prisoner to death. Nicholas A. Slatten, a former Blackwater security contractor, was recently convicted of first-degree murder for the 2007 shooting of dozens of unarmed Iraqis. Maj. Mathew L. Golsteyn is an Army Green Beret accused of killing an unarmed Afghan in 2010. A group of Marine snipers have been charged with urinating on the corpses of dead Taliban fighters. These are all war crimes that violate the most fundamental principle of the laws of war, the principle of distinction: combatants may target enemy combatants, but civilians and even combatants no longer participating in hostilities, such as PoWs, not to mention the deceased, must be protected. (‘Can a Pardon Be a War Crime?: When Pardons Themselves Violate the Laws of War‘, Just Security)

It is such an extraordinary proposal that the International Committee of the Red Cross, an organization that goes to great lengths to stand as a neutral observer and behind-the-scenes arbiter of the laws of war, has issued a special public statement regarding the issue of pardoning war criminals. The ICRC does not name Trump specifically. That would be a violation of their neutrality, but it is clearly no coincidence that their “explainer” was issued in the immediate wake of media reports about Trump’s consideration of the pardons.

The Red Cross makes clear that the issuance of such pardons could themselves be considered war crimes, in that they subvert a country’s solemn duty to investigate and punish reports of war crimes.

[International Humanitarian Law (IHL)] does contain rules pertaining to the granting and scope of amnesties. Under this body of law, States/governments must investigate and punish war crimes, otherwise known as serious violations of IHL.

In addition, States may not provide amnesties for war crimes, which include murder, torture, sexual violence, attacking civilians, and a host of other offences when committed during armed conflict.

[P]eople suspected, accused or sentenced for war crimes are excluded from amnesty, according to customary IHL. (Customary international law consists of rules that come from “a general practice accepted as law” and exist independent of treaty law.)

Customary law is unequivocal that in both international armed conflicts (i.e. cross-border wars between opposing militaries) and non-international armed conflicts, governments must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and if appropriate, prosecute suspects.

Trump’s possible complicity in war crimes if he issues the pardons is compunded by the fact that our Constitution makes him Commander in Chief of our country’s armed forces.

The principle of command responsibility is well established in the laws of war, reflecting not only what is morally right, but also the importance of discipline to the accomplishment of the military mission. After the Second World War, a U.S. military tribunal convicted Japanese General Tomoyuki Yamashita for his troops’ torture and massacre of civilians in the Philippines. There was no evidence that Yamashita ordered or participated in the crimes. It was enough that he either knew or should have known and failed to prevent the atrocities or punish his troops. General Yamashita was executed. (Just Security)

It would be highly unlikely that any legal body in the U.S. with the authority to charge Trump with war crimes would do so. But Trump would be vulnerable to universal jurisdiction, a legal concept that allows any country to prosecute any person for war crimes and crimes against humanity, regardless of the nationality of the perpetrator or the victims. A number of European countries, in particular, have established the legal frameworks to prosecute international crimes. And many of these frameworks even allow for individual citizens to file charges in the case of international crimes. It is, in fact, such an important legal consideration that the International Criminal Court makes it a requirement for a country to recognize universal jurisdiction to even become a member. (The United States is not a member of the ICC, shamefully.)

Trump owns several golf courses around the world. He may have shot his last rounds at those courses if he goes ahead with this despicable plan.

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