The War Crimes of Donald J Trump
To every rule that exists in the international system the Middle East always is the exception. Perhaps with only Central America as a region subject to a comparable amount of foreign interventions and violations of international law, the Middle East in recent years has been the testing ground for various exceptions to the rule; the experimenters being the United States, often with the United Kingdom and other NATO powers falling in line behind them.
Following a debate in the Council of Representatives on the 5th of January Iraqi representatives voted to revoke the agreement that permits US foreign military presence in Iraq. Though many have pointed out that the resolution is non-binding, there is evident anger and mistrust following the US’s assassination of Qasem Soleimani. Donald Trump in response to this has threatened Iraq with sanctions if they follow through with expelling US soldiers.
Iraq is attempting to assert its sovereignty, something the US has considered to be conditional in light of their military intervention against Daesh. But by breaching the sovereignty of Iraq — and claiming it was legal — the US has entered into grounds it is historically and politically uncomfortable in: international law.
In a letter to UN Secretary-General, regarding the US assassination of Qasem Soleimani, Iran’s Permanent Representative Majid Ravanchi deemed the strike ‘a gross violation of the fundamental principles of international law’ and a ‘breach of generally recognized principles of international law and of the Charter of the United Nations, including the principle of sovereign equality of States’.
To separate the partisan from the strictly legal is difficult, but the breach of international law and principles of the UN charter is comparatively simple.
Qasem Soleimani Assassination
The UN Charter only allows for two exceptions to its prohibition on a states use of force: self-defence, and force authorized by the Security Council. The US has largely framed the assassination of Qasem Soleimani as anticipatory self-defence.
Speaking at a briefing representatives of the US State Department continually reiterated that ‘this was an action taken in self-defense, and the United States has the inherent right to defend itself if it is faced with an attack’. And as Secretary of State Mike Pompeo has repeated ‘It was wholly lawful. We’re confident that we not only got it right legally but we got it right strategically’. But having provided no official legal position it is hard to see how this is justified.
In customary international law it is permissible for a state to attribute the actions of a non-state actor to the state that is responsible for aiding or condoning its unlawful attack. Article 11 of the ILC Articles on the Responsibility of States for International Wrongful Acts provides the possibility for attributing the attack of non-state actors to states. The United States however would never allow this principle to be applied reciprocally. It would be unthinkable if such an argument was used to target high ranking US military personnel for its support of the Free Syrian Army. But the anticipatory nature of this attack makes it much more questionable.
Stemming from the Caroline Affair of 1837 — where the United States was the one subject to an unwarranted invasion of US territory and destruction of its vessel — certain principles were laid down to qualify anticipatory self-defence as warranted. It must show an overwhelming evidence of an imminent attack on the state; the action must be necessary, and the action must be proportionate. Without the release of detailed intelligence of the attack the these criteria remain to be proven, however the death of single combatant in an hostile environment is more ambiguous than the terrorist attacks of 9/11 that began the reevaluation of anticipatory self-defence.
On the point of proportionately little coverage has been given to the other deaths that occurred from the strike. This was pointed out by Agnes Callamard of the United Nations High Commissioner for Human Rights along with stressing the narrow acceptable circumstances for lethal strikes. Lastly the strike itself was clearly conducted without the permission of Iraq within their territory. Their subsequent anger and desire for US troop expulsion point to what Mary Ellen O’Connell said was ‘unlawful’ and ‘unjustified’. By every criteria of international law the strike is a breach of either customary or codified principles.
Threats are International Crimes
Lots of commentators are saying that Trumps threats would be a war crime were they carried out, such as the targeting of cultural sites. They however miss that such threats in themselves are illegal under international law. Article 2(4) of the UN Convention prohibits the ‘threat’ of force as well as the use of it. Statements count towards a criminal definition of a threat if the force threatened would be illegal when used. In the case of threats of aggression or war crimes, the threat is enough to be illegal.
This principle is adumbrated in the ICJ’s advisory opinion on The Legality of Threat or Use of Nuclear Weapons. It states:
If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths.
Ironically if a state is attacked then its subsequent threat to retaliate would be lawful as the force threatened would be sanctioned under self-defence. If the US’s strike is considered to be an attack against Iran then Iran’s threat of ‘severe revenge’ is legal and an act of self-defence.
Donald Trump has repeatedly threatened North Korea during his first term as President. The most famous two being the ‘fire and fury’ comment of August 8th, 2017 and the ‘Nuclear Button’ threat of January 2nd, 2018. Both of these have the added jeopardy of being related to the use of nuclear weapons, something specifically detailed by the ICJ in international law.
Following the assassination of a senior military figure of Iran, Trump proceeded to issue threats on twitter with the stated aim of deterring threats from Iran. Threatening to target ‘52 Iranian sites’ including cultural sites Trump is not only breaching international law of aggression, but adds on top of it the war crime of ‘intentional attacks on historic monuments’. Furthermore Trump is threatening sanctions against Iraq for their desire for US troops to leave their country.
On the 5th of January Donald Trump again threatened Iran following Iran’s threat to the US, and again compounding the threat he said any future strike by the US could be ‘perhaps in a disproportionate manner’. The proportionality of a use of force is a customary international law, and the stated intention to engage in a military strike that is ‘disproportionate’ is again a threat to commit a war crime. And if there was any doubt that what Trump was doing was engaging in threats he spelled in out most clearly in a tweet on New Year’s Eve:
This is not a Warning, it is a Threat.
First Term Breaches
The US continually has undermined the institutions of international law that would allow it to be subject to investigations or court cases. The Trump administration’s undermining of the ICC was a direct response to their proposed investigation into the war crimes of US soldiers in Afghanistan. In order to frustrate the course of justice the Trump administration denied visas to ‘those individuals directly responsible for any ICC investigation of U.S. personnel’.
This is congruent with the growing indiscriminate nature of US bombing around the world that has seen greater civilian deaths in Afghanistan, Yemen, Somalia, Syria, and Iraq. The extent of civilian deaths as a result of Trump’s expanded military engagement policy cannot be fully appreciated as it is not fully disclosed. While it is impossible to determine the discrimination of these airstrikes the attention of the US to international law as regards the use of force can be highlighted by the two strikes conducted against Syria in 2017 and 2018.
Following the 2017 Khan Shaykhun and 2018 Douma chemical attack in Syria the United States along with allies attacked Syria with no confirmation or legal justification. In both cases there was no UN Security Council resolution to justify the attacks, and as pointed out by Mary Ellen O’Connell these strikes were ‘at best counterproductive when the response involves a law violation as serious as the triggering offense’.
And were its own breaches of international law and war crimes not enough, the US partners and defends those who have committed such violations and ensures their impunity. The US defends Saudi Arabia despite its committing of war crimes in Yemen, and actively opposes the ICC in its attempts to investigate Israel’s war crimes in the Gaza Strip. Donald Trump personally has also pardoned Navy Seal of war crimes, a decision unpalatable even to military chiefs.
While war crimes have been the regular business of Presidents since World War II, Trump certainly attempting to reach new heights of illegal threats and intimidation. The open and brazen threats throughout his first term as President has shown the degree the United States exists under impunity with respect to the UN Charter, the International Criminal Court, the International Court of Justice, and any equal and fair application of justice.
