When War Crimes Rhetoric Becomes Battlefield Reality

Just Security: “Tuesday will be Power Plant Day, and Bridge Day, all wrapped up in one, in Iran. There will be nothing like it!!!” posted President Donald Trump on Easter Sunday. In case one thought that was an impulsive utterance, it’s notable that the president in apparently prepared remarks a few days earlier said, “If there is no deal, we are going to hit each and every one of their electric generating plants very hard and probably simultaneously.” Such rhetorical statements – if followed through – would amount to the most serious war crimes – and thus the president’s statements place servicemembers in a profoundly challenging situation. As former uniformed military lawyers who advised targeting operations, we know the presidents’ words run counter to decades of legal training of military personnel and risk placing our warfighters on a path of no return….

• First, such threats undermine U.S. legitimacy and global standing, as they demonstrate a rejection of binding international agreements and core commitments to the laws of war. Indeed, the U.S. military doubled down on its commitment to the law of war following Vietnam War-era atrocities, requiring our Armed Forces to follow the law regardless how any conflict is characterized. An operation that followed through on Trump’s rhetoric would be one of infamy in the history of modern warfare.
• Second, they pose a significant risk of moral and psychic injury for servicemembers.  National soul-searching regarding how Americans fight followed the long U.S. wars in Afghanistan and Iraq, in which both civilian casualties and detainee abuse undermined strategic objectives and weighed heavily on soldiers’ consciences long after the fighting stopped.  This reflection led to initiatives such as the Pentagon’s civilian harm mitigation program and new laws regarding detention and interrogation practices, strengthening U.S. commitment to fighting honorably and effectively through adherence to the law.
• Finally, the public record of intent to commit war crimes puts soldiers at risk of later liability. In any future war crimes or U.C.M.J. investigation—for which there may be no statute of limitations—their actions will be judged based on the reasonably available information at the time of the strikes.  See, e.g., Executive Summary of the Investigation of the Alleged Civilian Casualty Incident in the al Jadidah District, Mosul, May 8, 2017.  Long after the Secretary of Defense receives his anticipated pardon from the president, it is not unlikely that both his and Trump’s expressly stated intent to commit acts that amount to clear war crimes and to dispense with “stupid rules of engagement” may be considered evidence of notice and scienter on the part of servicemembers’ during any future congressional or criminal investigations.

The U.S. military trains to fight with precision and lethality according to the law of war – precision meaning attacking only lawful military objectives while doing our utmost to protect innocent civilians caught up in the fight. The legal hurdle to convert a civilian object such as a power plant into a lawful military objective is a high one because the United States and its allies vigorously rejected “total war” after the massive suffering endured by millions during World War II.  What President Trump threatens is exactly that, from a civilian targeting perspective – total war against Iran, a complete rejection of the legal limits the United States has incorporated into the law governing U.S. military operations for both pragmatic and moral reasons…”