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The Implications of President Trump’s Pardon on International Law

President Trump’s decision to pardon two United States’ servicemen and restore the rank of another has effectively undermined the United States’ military judicial system. The three United States’ service members were accused of war crimes for killing civilians or prisoners hors de combat, a legal term meaning ‘outside’ of combat. Major Mathew L. Golsteyn killed and burned the body of a suspected Taliban bombmaker that was scheduled for trial in February. Lieutenant Clint Lorance issued an order for his platoon to open fire on civilians riding motorcycles who, according to the testimony of his platoon, posed no direct threat. Former Chief Petty Officer Edward Gallagher was demoted for posing for a photograph with the dead body of an Islamic State detainee. The decision to pardon Golsteyn and Lorance and restore the rank of Gallagher has greater implications for international law.

In a press briefing, the White House press secretary stated the president “is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted.” There is no denying that the president has the authority to pardon individuals of their crimes; however, what is more important is the broader implications of these pardons. The White House recalled President Trump’s statement, “when our soldiers have to fight for our country, I want to give them the confidence to fight.” However, the military officers, had no justification for their wrongdoings because they were not operating within a combat zone, nor were their actions in line with United States security interests.

The 1949 Geneva Convention, which the United States has signed but not ratified, directly prohibits the killing of civilians and prisoners of war. However, these prohibitions are largely considered to be part of customary international humanitarian law. In 1987 Theodor Meron, a presiding judge of the Appeals Chambers of the International Criminal Tribunal for Rwanda writing for the American Journal of International Law, pointed out that the 1949 Geneva Convention is binding on more states than the UN Charter. Additionally, war crimes are explicitly forbidden in the United States military under the War Crimes Act of 1996, which directly recognizes war crimes to be understood by the definition provided in the 1949 Geneva Convention. This means that the United States would not have to ratify the 1949 Geneva Convention for United States service members to be held responsible for the acts recognized internationally as illegal.

President Trump’s decision to issue these pardons openly invites international courts, such as the International Criminal Court (ICC), to try these servicemen under international criminal law. In the cases of Major Golsteyn and Lieutenant Lorance, the crimes occurred in the territory of Afghanistan, a state party to the ICC meaning the conduct falls within the court’s jurisdiction. The ICC’s jurisdiction is limited in that it cannot try individuals if the offenders are already being charged in domestic courts. However, if the investigation or case is not being tried seriously, the ICC has legal jurisdiction to try these individuals. There could be a substantial legal argument made that the clemency given to these individuals constitutes the case to be tried under the ICC’s jurisdiction.

No United States service member has been charged for war crimes under international law by an international court, partly because of the United States’ perception of the court as illegitimate and United States’ reservations over the extent of the court’s jurisdiction. This can be observed from the court’s most recent decision on April 12, 2019, not to try the United States for war crimes committed in Afghanistan based on the fact that the prevalent actors and authorities likely would not cooperate. Furthermore, in April 2019 the United States revoked the visa of Fatou Bensouda, the prosecutor for the ICC and Secretary of State Mike Pompeo threatened to revoke visas of those in connection to the court’s investigation in Afghanistan and even threatened economic sanctions against the court. The pardons send a message to service members of other states, that the decision to use force does not need to be sidelined by concerns surrounding war crimes and international humanitarian law.

Humanitarian laws are only as strong as their reciprocal nature bears, meaning that states are bound equally to their obligations under international law. States comply with international humanitarian law due to the expectation of reciprocity, among other things. If the United States absolves itself from these obligations, they are sending an open invitation to other states to allow their service members to commit war crimes, endure the judiciary systems of domestic or military courts, and then eventually pardon them of these crimes. Further, the April 12 decision by the ICC suggest that states can choose to consent to the court’s jurisdiction. This is a further invitation for war crimes to be committed by other members of armed forces. This would directly put United States service members under a security risk abroad, whether they be prisoners of war or injured soldiers no longer taking an active part in hostilities. Further, it could put United States citizens abroad, who may be providing administrative support to United States foreign policy and who are also taking no active part in hostilities at risk of being injured by opposition forces. The implications of this decision undermine the prohibition of war crimes, making armed conflict increasingly dangerous for civilians and soldiers everywhere.