Editor’s note: Originally published on May 25, 2019; with an author’s note published on Dec. 24, 2020.
Author’s note, Dec. 24, 2020: Not all corrupt pardons are created equal. Many of the ones being handed out by President Donald Trump are morally repugnant, potentially improper exercises of the pardon power, and possibly even criminal because they appear to reward his allies for covering up his own criminal conduct. This week’s pardons of American Blackwater mercenaries found guilty of massacring unarmed civilians in Baghdad in 2007 do not fall into this category, and yet, are the most odious of all the pardons Trump has issued to date. They may, in fact, themselves constitute war crimes. All other States party to the Geneva Conventions should publicly condemn the Blackwater pardons, consistent with their obligation to ensure respect for the Conventions. My 2019 Just Security article explains why:
President Donald Trump’s inclination to grant pardons to several military and contractor personnel accused or convicted of war crimes may itself be a violation of the laws of war, if not a war crime. In an extraordinary public statement issued Friday, the International Committee of the Red Cross (ICRC) – an international organization that usually acts through confidential communications with parties to armed conflict – explains the distinction between pardons and amnesties. The ICRC does not comment on specific cases, and in this statement, does not opine on the legality, let alone the possible criminality, of any particular grant of pardon/amnesty. But the fact that the organization chose to weigh in on such a hot button issue suggests how serious a threat such action by President Trump would be to the system of international law. Here’s what’s at stake.
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.
What else these men have in common is the attention of President Trump, who is reported to be considering pardons for them, just in time for Memorial Day. The President essentially confirmed he is considering this action on Friday. Pardoning these men, especially the ones who have not yet been tried (amnesties), is an insult to the legal and moral standards the U.S. military is bound to uphold. It undermines the ability of the military to enforce discipline among its ranks and after the torture scandals of post-9/11, further damages the reputation of the United States for adherence to its international human rights obligations and the laws of war. This much has been broadly recognized by legal and military experts, including here and here on these pages. In the first of these essays, a group of retired military leaders go so far as to note that as Commander in Chief of the armed forces, the President, acting in compliance with the U.S. Law of War Manual, “should not interfere with his commanders’ fulfillment of their legal duties when they face strong evidence that their subordinates have breached [the] law.”
There’s a possible consequence to issuing these pardons that the President and his close advisors might not have considered. That to do so would itself be a war crime, related to the president’s constitutional role as Commander in Chief of the armed forces.
As the commander of these soldiers, and perhaps even of the Blackwater contractor, the President, himself, has a responsibility to punish, if not prevent, violations of the laws of war committed by his subordinates.
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. During the Vietnam War, U.S. Army Captain Ernest Medina was prosecuted under the command responsibility doctrine for the massacre by his troops of civilians at the village of My Lai. He was acquitted.
Normally, it would be highly suspect to charge a president with war crimes under a command responsibility theory. Certainly, President Trump did not know, and probably couldn’t have known or prevented these acts. He wasn’t even president when they were committed. But presidents don’t normally pardon war criminals. The law of command responsibility doesn’t only address crimes a commander ordered his or her troops to commit, or even only those which he or she failed to prevent. It also requires a commander to impose consequences for violations committed by his or her subordinates. It is hard to imagine a clearer violation of this obligation than a pardon.
The ICRC’s statement makes the point:
“Customary law is unequivocal that … governments must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and if appropriate, prosecute suspects.
With regard to amnesty, the objective should not be to enable war criminals, or those thought to have seriously violated the laws of war, to evade punishment for their actions.”
It’s been said that the Constitution imposes no limits on the president’s pardon power. That may well be true, but as Commander in Chief, President Trump also has an obligation under both domestic and international law to at least not impede processes to hold war criminals responsible, and his pardon powers do not override that responsibility.
In spite of, or perhaps given, the laundry list of President Trump’s flirtations with illegality, it’s not easy to imagine him ever being charged by a U.S. court as a war criminal. But the buck for war crimes doesn’t stop at our border. War crimes belong to a category of international crimes, including crimes against humanity, genocide, torture, and waging aggressive war, that a number of countries can and do prosecute under a theory of universal jurisdiction. These are crimes that are so serious that they are an affront not only to the country where they occurred, or from which the victims or perpetrators hail, but are of concern to the entire international community. In other words, they are crimes that can be prosecuted by any country. Several European countries, for example, have robust mechanisms for applying universal jurisdiction to international crimes committed outside their borders by and against non-citizens. While one may be rightfully skeptical that another State would prosecute a sitting or former President of the United States, the fact that the potential exists, including the right of private citizens to initiate such complaints in some States, should make this President pause.
If these pardons are President Trump’s vision of how to make America great again, he is terribly mistaken. If he doesn’t care about the integrity of our country and its military, he may nevertheless want to consider his golfing plans abroad before he decides to issue these pardons.