There has been much discussion of Donald Trump’s open pledge to commit torture and war crimes if elected President. He has said that he would bring back waterboarding and techniques that are even “worse”, “bomb the shit out of” ISIS until there was “nothing left,” and kill the families of terrorists. On at least one occasion, he explicitly declared that he would embrace the use of torture.
But Trump has also confused this message, indicating at other times that he would abide by the law. When retired four-star general and former CIA and NSA director Michael Hayden suggested that the military would refuse to follow Trump’s illegal orders, the Republican front-runner did not initially back down. “They won’t refuse. They’re not going to refuse me,” he boasted. But the following day he seemed to reverse his position, issuing a statement that he understood that the US is bound by laws and treaties and he would “not order our military or other officials to violate those laws.” Later, however, he indicated that if elected President he would try to change those laws to allow stronger interrogation techniques, including at a minimum waterboarding, to better “compete” with ISIS. (David Luban dove into the details of what changes would need to be made to allow Trump to pursue those techniques in a post yesterday.) On another occasion, he suggested that waterboarding might not in fact amount to torture (which is also Ted Cruz’s position).
Given these apparently mixed statements, if torture or war crimes occurred during a Trump administration, how would war crimes prosecutors assess Trump’s liability? Could he be held responsible? What evidence would they look for?
Under either US domestic law or international law, prosecutors would essentially have to prove that Trump either ordered the crimes or intentionally contributed to their planning or execution. Did the crimes occur pursuant to policy? Were they part of a pattern? Were they directed or authorized or intentionally encouraged by senior officials, including Trump? What were the links between the top leaders and the perpetrators on the ground? These are the kinds of questions that investigators would ask. Single or isolated episodes are ordinarily difficult to connect to senior military or political officials, whereas repeated conduct allows the strong inference that direction is coming from above.
Trump’s broad statements in support of torture and war crimes would likely be strong evidence of his participation in the crimes as well as his intent that they be committed. If the crime were torture, it would not be necessary to prove that Trump knew that the conduct amounted to torture as a legal matter. The crime requires proof that the perpetrator specifically intended to inflict severe physical or mental pain or suffering. If that is established, it is not a defense that the perpetrator himself termed the conduct “enhanced interrogation” rather than “torture.”
Moreover, the array of seemingly conflicting statements that we have seen from Trump would be familiar to war crimes prosecutors. In fact, it is standard fare for senior leaders responsible for international crimes to issue proclamations or orders “insisting” on adherence to the law. These statements may be politically necessary or expedient, or may simply be designed to provide cover for criminality. The case of former Bosnian Serb President Radovan Karadžić is a good example. The trial judgment in Karadžić’s case will be handed down this Thursday by the International Criminal Tribunal for the former Yugoslavia (ICTY) and there is little doubt that he will be convicted of at least crimes against humanity and war crimes for his central role in directing massive crimes in Bosnia during the war in the early 1990s (even his own lawyer expects a conviction).
The evidence shows that at times, Karadžić was remarkably open about his goal of creating an ethnically pure Serb state, insisting that Serb areas in Bosnia be “clean” and “pure,” that Muslims and Serbs were like “oil and water,” and that the two groups could not live together. (See Prosecution’s Final Trial Brief at paras. 28-33.) Karadžić also issued orders that explicitly commanded the targeting of civilians. Directive 7, for example, issued on March 8, 1995, instructed the VRS (the Bosnian Serb army) to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Žepa.” (Brief at para. 69). A few months later, the VRS committed genocide in Srebrenica and Žepa, massacring some 8,000 Bosnian Muslim men and boys.
At the same time, Karadžić issued orders advocating adherence to the law, insisting that the forced transfer of people and the targeting of civilians be prevented and that crimes against Bosnian Muslims be addressed. (Brief at paras. 541-45.) The ICTY judges will not likely be deceived by these declarations, however, when they render their judgment on Thursday. In context, it is clear that Karadžić made these statements only to deceive international officials and to hide his crimes. Similarly, if prosecutors were ever to examine Trump’s statements and conduct, they would look beyond his insistence on legality to ascertain his true actions and intentions.
Finally, international law provides for criminal responsibility for military and political leaders if subordinates over which they have effective control commit crimes, those leaders have knowledge of the crimes, and they fail to prevent or punish them. Jean Pierre Bemba was convicted yesterday under this theory by the International Criminal Court for crimes committed by his subordinates in the Central African Republic in 2002-2003. This mode of liability is particularly salient when a leader, through his statements or conduct, creates an atmosphere in which actors on the ground believe they have license to engage in criminal conduct. Much in the way Trump’s violent rhetoric at campaign rallies has encouraged attacks on protesters, his loose and irresponsible statements about torture and war crimes could embolden individual actors on the ground to violate the law. If that happened in a Trump administration, senior officials would no doubt blame the crimes on “a few bad apples.” Given Trump’s own statements, however, this defense would be difficult to sustain.
What should be clear is that once a political leader steps over the line and advocates the commission of international crimes, it is not so easy to step back. A few statements advocating adherence to the law may not be enough. Rather, if someone genuinely seeks to avoid criminality, he or she must have a consistent and clear message against torture and war crimes. So, in the unlikely event he ever becomes President, Trump will have to work extra hard to ensure that crimes are not committed under his watch if he wants to avoid finding himself in the dock.