On Monday, President Donald Trump was asked whether he was concerned about the possibility of U.S. military forces committing war crimes in Iran.
“Not at all,” the president said.
It is hardly a theoretical question.
Why We Wrote This
President Donald Trump has repeatedly threatened to bomb civilian infrastructure in Iran, generating charges that, if he followed through, he would be committing war crimes. Who defines a war crime, and who enforces it?
On Tuesday morning, a social media post from Mr. Trump began: “A whole civilization will die tonight, never to be brought back again.”
The statement followed previous threats by Mr. Trump to bomb civilian infrastructure if Iran does not open up the Strait of Hormuz. That’s the critical waterway providing passageway to roughly 20% of the world’s daily oil needs, which the regime in Tehran effectively shut down in response to joint U.S. and Israeli strikes that began on Feb. 28. The closure has disrupted the global economy.
The president’s threats have raised concerns among legal and political observers across the spectrum – including more than 100 legal experts who signed a letter of concern – that he is signaling his willingness to order the U.S. military to violate international law.
Is Trump threatening to commit war crimes?
Upon first glance, “yes,” says retired Lt. Col. Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles and a longtime judge advocate in the U.S. Air Force.
“To wage total war against an entire country – in his term, ‘the civilization’ of Iran – is, of course, strictly prohibited,” says Professor VanLandingham, who signed the letter of concern. “This isn’t new.”
The basis of the laws of war, she says, goes back hundreds of years, at least to Hugo Grotius of the early 17th century. The Dutch thinker is considered to be the founding father of international law. In essence, this is about making a distinction between the military forces of an enemy nation and its civilian population, and rejecting the concept of waging all-out war against an entire country.
It was after World War II that modern international laws around the conduct of warfare were firmly established because the “nuclear genie [was] out of the bottle,” Professor VanLandingham says.
The United States played a central role in updating the system of international and humanitarian law that culminated with the founding charter of the United Nations and the Geneva Conventions of 1949, among the most widely ratified treaties in world history.
That foundation was an effort to “double down on the protection of civilians during war,” Professor VanLandingham says.
A total of 196 countries ratified the Geneva Conventions, which apply to state and nonstate actors alike during times of war. They provide a legal basis for the protection of wounded, shipwrecked, or sick combatants, and the treatment of civilians and enemy prisoners.
“This is not a question of the law or rules being imposed by others upon the United States,” says Brian Finucane, a senior adviser for the U.S. program at the International Crisis Group.
“The United States developed these rules and agreed to them, because it was viewed in the United States’ own interests, both in terms of its own military interests but also humanitarian interests,” he says.
Dr. Finucane adds that U.S. military personnel were involved in the Nazi war-crime trials at Nuremberg, along with the tribunals to prosecute war criminals in the former Yugoslavia and in Rwanda.
What is a war crime?
An enormous range of actions might be considered violations of the laws of war or the Geneva Conventions. Torturing or executing enemy prisoners, for example, deliberately killing noncombatants, or deliberately targeting certain civilian areas or infrastructure, could all be determined to constitute war crimes.
“A bridge or a power plant could be a lawful target, a lawful military objective,” Dr. Finucane says. But if there is no enemy military connection to the target, he adds, and striking it does not present a military advantage, doing so might constitute a war crime under the law of war.
“You can’t just attack every road or every bridge in Iran because it might at some point in the future be used to transport parts for missiles or drones,” he says.
Mr. Trump’s order, if carried out, “would constitute a violation of the core principles of international humanitarian law, which, first and foremost, is the obligation not to target civilians and civilian objects,” says Oona Hathaway, professor at Yale Law School, where she is also the director of the Center for Global Legal Challenges.
Taken at face value, Professor Hathaway says that recent statements from President Trump appear, in their totality, to “constitute threats to destroy civilians and civil objects.”
“There’s zero doubt that if that was carried out, that this would be a massive war crime,” she says.
Who enforces the laws of war?
It is really up to national governments in states that have signed on to international treaties, such as the Geneva Conventions, to investigate possible war crimes and enforce international law.
“If there is an alleged violation of international humanitarian laws, then states are obligated to investigate those allegations of a violation and to prosecute anyone who is believed to be responsible for possible war crimes,” says Professor Hathaway, who is also a signatory on the letter of concern.
There are questions, she says, about whether the Defense Department would pursue legal action against members of the U.S. military suspected of carrying out possible war crimes.
“But there’s no statute of limitations on these crimes,” Professor Hathaway says. “So, while this particular administration may not enforce the rules, when a new administration comes into office, it could enforce the rules.”
In many ways, the laws of war as defined by the international system built in the aftermath of World War II have been “baked into” the way the U.S. military operates, according to Professor VanLandingham.
“States can be responsible overall for illegality, but individuals commit crimes. And therefore, there has to be individual accountability, or else the laws of war will never have any teeth,” she says. Military lawyers have played a crucial role in the way the Pentagon fights its wars and chooses its targets.
Professor Hathaway says she is concerned about the implications of President Trump’s threats for innocent civilians in Iran. But she adds that there is a moral hazard at work here, too, for the American service members participating in this war.
These are “people who joined believing what they were doing was joining an honorable military, and [that] they were going to engage in honorable military service, and they were serving their nation in the best interest of their country.” She argues they are “now being put in an absolutely impossible position.”
Staff writer Audrey Thibert contributed reporting.