Scholarship Saturday: The President’s power to pardon – is it limited by a duty under international law to punish war criminals?
The most recent version (Volume 35, Issue 4) of The American University International Law Review includes an article by Stuart Ford, a law professor at the University of Illinois Chicago, entitled: “Has President Trump Committed a War Crime by Pardoning War Criminals?”
This column has discussed the pardoning of war criminals in the past: Scholarship Saturday: Presidential pardons for convicted wartime murderers. That article focused on the extent to which a President ought to hold tight to a set of time-tested principles when exercising the pardon prerogative. Specifically, we focused on the principles that have traditionally driven clemency decisions: the need to remedy erroneous convictions, to show appropriate deference to those with more knowledge of the accused and the offense, to relieve unintended collateral consequences, to relieve excessive adjudged punishment, and to reduce punishment if the prisoner is reformed. Professor Ford’s article, at 758, asserts an additional principle:
Command responsibility includes both a duty to prevent violations of International Humanitarian Law and a duty to punish violations.
Professor Ford then explores the pardons of Special Operations Chief Edward Gallagher, First Lieutenant Michael Behenna, First Lieutenant Clint Lorance, and Major Mathew Golsteyn. He ultimately concludes that:
The analysis suggests that President Trump has probably committed at least one war crime[.] 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 violation of the President’s duty to punish Golsteyn’s war crimes. Pardons such as this one expose President Trump to criminal liability under the doctrine of command responsibility.
Id. at 758-759 (The signed Pardon, dated November 15, 2019, can be seen, here.)
The problem with Professor Ford’s conclusion is that Mr. Trump was not the Commander-in-Chief in 2010 when, outside the rules of engagement, and outside of any lawful judicial process, Golsteyn stalked and killed an unarmed Afghan man that Golsteyn suspected of being a bomb maker. Mr. Trump wasn’t even President when, in 2016, Golsteyn invited a criminal investigation into his 2010 actions by admitting to the killing on a nationally-televised Fox News broadcast entitled “How We Fight.”
Professor Ford’s article recognizes the difficulties that those facts present to his conclusion that Mr. Trump can be held criminally liable under international law for pardoning Golsteyn. A portion of the article, entitled, “Successor Liability” offers a robust discussion of the question, and even acknowledges that the idea of successor liability was expressly rejected by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Part III of the Appellate Chamber’s decision in Prosecutor v. Hadžihasanović (Case No. IT-01-47-AR72, 16 July 2003). But, Professor Ford concludes that the decision in Hadžihasanović is unpersuasive and that successor liability is still a viable theory of liability, asserting “[i]s a ‘difficult legal question’ about which ‘reasonable minds’ might disagree.” Has President Trump Committed a War Crime at 800. Although Professor Ford’s treatment of the successor liability issue is quite detailed, it fails to account for precedent set in one of the first cases to articulate a commander’s duty to punish offenders: The 1948 trial of Admiral Soemu Toyoda, of the Imperial Japanese Navy, before the International Military Tribunal for the Far East (IMTFE).
During the Allied occupation of Japan, the IMTFE was established and organized by the Supreme Commander for the Allied Powers, General of the Army Douglas MacArthur, to carry out a term that was in the unconditional surrender ultimatum that the United States, United Kingdom, and China issued to Japan (the “Potsdam Declaration”): that “stern justice shall be meted out to all war criminals[.]” The work of the IMTFE is, perhaps, not as famous as it’s sister tribunal in Europe: Nuremburg. But, it was exceptionally important and lasted twice as long. Combined, the Nuremberg tribunal and the IMTFE are considered the “founding tribunals for what is today known as modern international criminal law.” The IMTFE was held in Tokyo and was overseen by The Far Eastern Commission, which was comprised of representatives from the United States, United Kingdom, Soviet Union, China, France, The Netherlands, Canada, Australia, New Zealand, India, and the Philippines. The panel that tried Admiral Toyoda consisted of 7 members: 6 American field grade officers, with an Australian Army Brigadier General as the tribunal’s President.
Admiral Toyoda was accused of being partially responsible for the atrocities subordinate Japanese forces committed in the Philippines, including acts of cannibalism against Allied prisoners. He was acquitted, in full. In rendering that acquittal, the IMTFE provided the following legal standard to determine whether a commander’s failure to punish is itself a crime:
In the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before the Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.
Toyoda at 5006.
The language I emphasized in the quote above – “by his failure to take any action to punish the perpetrators, permitted the atrocities to continue” – was a vital element that had to be proven before a commander could be punished for his own failure to punish a subordinate. At that early stage in the development of the principle of commander responsibility, international law, at least as the IMTFE understood it, tied a commander’s duty to punish offenders for misconduct to that commander’s duty to prevent that misconduct in the first place. That understanding – that a duty to punish is tied to a duty to prevent – did not die on the vine. It was followed in 2006 by the International Criminal Tribunal for Rwanda (ICTR) in the genocide trial of Prosecutor v. Jean Mpambara, Case No. ICTR-01-65-T. There, the court held, in ¶ 27:
On any view, liability for failing to discharge a duty to prevent or punish requires proof that: (i) the Accused was bound by a specific legal duty to prevent a crime; (ii) the accused was aware of, and willfully refused to discharge, his legal duty; and (iii) the crime took place.
Applying that standard: Mr. Trump was under no legal duty in 2010 to prevent Golsteyn from killing anyone. Golsteyn was fighting in Afghanistan while Mr. Trump was just a reality TV show star. Golsteyn’s killing occurred a full 6 years before Mr. Trump decided to follow his wife down a golden escalator to announce his candidacy. Because Mr. Trump had no duty to prevent Golsteyn’s offense, he also had no duty under international law to punish it. Mr. Trump’s Pardon of Golsteyn may have been many things, but it was not a war crime.
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