Can a Pardon Be a War Crime?: When Pardons Themselves Violate the Laws of War

[swag]

https://www.justsecurity.org/64288/can-a-pardon-be-a-war-crime-when-pardons-themselves-violate-the-laws-of-war/?fbclid=IwAR3thcAG5xWI9weRU3LYYkC8v4eqEkQXBoK6oTLVRZGZtcQ4OnnGeMoZAKc

by Gabor Rona
May 25, 2019

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.

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[TomSlick]

1. I don't buy the command responsibility argument -

Trump was not the CinC at the time the crimes were committed. However, granting amnesty (pre-trial pardon) would arguably be a violation of the obligation of signatory nations to enforce the Geneva Conventions. I doubt anything will come of it but wouldn't it be delicious if the ICRC issued a request from Trump's arrest and trial?