Has President Trump Committed a War Crime by Pardoning War Criminals?

Abstract

In 2019, President Trump pardoned four members of the U.S. military who had either been accused or of convicted of serious violations of international law. Those pardons were widely criticized on various grounds. Among other things, it was alleged that they undermined the morale and effectiveness of the U.S. military, undermined the rule of law in the United States, and increased the risks for other members of the military. But most commentators conceded that the pardons were a valid exercise of the President’s authority over the military and thus not a violation of U.S. law.

This Article approaches the pardons from an international perspective and asks whether the President’s actions are a violation of international law. Specifically, it looks at whether the President of the United States could have committed a war crime by granting them. Commanders have an affirmative obligation to ensure that their subordinates comply with the rules of international humanitarian law (IHL) and to punish them when they do not. Commanders who fail in this obligation can be held criminally liable for their subordinate’s actions. This concept is known as command responsibility.

The Article concludes that President Trump has probably committed at least one war crime. In particular, the pardon of Major Mathew Golsteyn, which occurred prior to his trial, made his punishment impossible. As a result of the pardon, Major Golsteyn can never be prosecuted in the United States for his actions, which include murdering a prisoner. The issuance of the pardon by President Trump was a clear violation of the President’s duty to punish Golsteyn’s war crimes. This likely exposes President Trump to criminal liability under the doctrine of command responsibility.

Keywords: President, Trump, war crimes, command responsibility, pardon, international law, successor liability

JEL Classification: K33