The President of the United States targeted a specific high official of the Iranian government in a military strike, killing Iran’s Qasem Soleimani, commander of Iran’s notorious “Quds” division (just one of his many titles). An argument exists that such targeted assassinations themselves violate U.S. law. However, I accept that as a commander of a dangerous, hostile force Soleimani is a “combatant” and legitimate target under the rules of war (not that any war declared by Congress exists). Soleimani led a force responsible for many deaths, and contributed to the destabilization of the Middle East. I do not mourn for him.
Trump’s assassination of Soleimani carries great risks. He was essentially the second most powerful person in the Iranian government. The blowback from this decision is likely to be substantial, even more destabilizing, and could lead to a major war against Iran. In response to this danger, Trump has responded with his usual diplomacy via Twitter bluster. The tweets are full of chest puffing threats to use “beautiful” high tech American military might to make short work of Iran. Stuff like this:
At least he hasn’t threatened nukes . . . yet. However, in one such tweet Trump did threaten to commit war crimes.
The United States Criminal Code
52 sites, a number based not on military need or expediency, but rather to match the number of hostages taken 40 years ago. The problem here is Trump’s specific threat to target “Iranian culture.” Targeting cultural targets is a war crime, as defined by United States law. Let’s start with that law at 18 U.S.C. 2441.
Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
One would hope that “penalty of death” part would get the President’s attention. Next, we go to the statute’s definition of a war crime.
(c) Definition. — As used in this section the term “war crime” means any conduct —
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907
In essence the United States Code adopts the Geneva and Hague Conventions as United States law.
The Hague Conventions
The most relevant provision of the Hague Convention is Article 27, which is among those specifically listed as adopted by the United States Criminal Code, and it is rather on point.
Art. 27. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
Trump’s threat to attack cultural targets seems directly aimed at “buildings dedicated to religion, art, science, charitable purposes or historical monuments.”
The Geneva Conventions
The Geneva Conventions of 1949 provide for the protection of civilians in occupied areas. Later variations of the Conventions extend more general protections for civilians against the effects of war. Perhaps most applicable are Article 52 of Protocol I of the Conventions and Article 53 signed in 1977. Article 52 states:
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
Article 53 is even more on point:
It is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals.
However, while the United States is a signatory to Protocol I, it was not ratified by the Senate as a treaty and it is not incorporated into the United States Criminal Code. Even so, Article 53 is pretty much a restatement of the above cited Hague Convention, which is adopted by the United States Criminal Code. Further it is clear what international law in this regard states.
Conclusion
The President of the United States of America clearly tweeted an intent to commit war crimes as defined and prohibited by the United States Criminal Code. This mere threat is not a crime. However, should Trump consummate this threat, that would be a crime under the Code. His Twitter statement is clear evidence of premeditation and planning, which should be viewed as aggravating factors of the offense. Trump’s pardoning of war criminals should also be viewed as evidence of his contempt for the rule of law in this area, and as encouragement for the illegal acts he orders.
It should also be noted that other members of the Administration involved with such planning would be criminally culpable as well, along with any members of the military who commit the war crimes under the President’s direction.
I don’t make allegations of war crimes without careful consideration. I am a published author in the field who repudiated false claims of war crimes advanced by Ramsey Clark against the Bush Administration relating to conduct of the first war against Iraq. What Trump proposes is unquestionably a war crime.
