By Bruce Altschuler
Should the United States be bound by international law? Donald Trump doesn’t think so nor does his defense secretary. Last January President Trump told the New York Times, “I don’t need international law.” According to Pete Hegseth, “We will keep pushing, keep advancing, no quarter, no mercy for our enemies.” Not only has “no quarter” been considered a war crime since the 1899 Hague Convention; it violates the United State War Crimes statute which has a maximum penalty of life imprisonment. Hegseth has dismissed such concerns as “stupid rules of engagement.” Nor is it likely that the Trump administration would prosecute him for following the orders of the President.
The Iran War itself is likely a violation of the United Nations Charter which prohibits the use of force against another country except in cases of actual or imminent armed attack. In addition, the principle of proportionality, established in Article 51 of the Geneva Convention prohibits attacks which may cause incidental loss of civilian life, injury to civilians or damage to civilian objects, excessive in relation to any anticipated military advantage. Trump’s actions and threats have gone even further than that. At an April 6 news conference, he threatened to “decimate” every bridge and put every power plant in the country “out of business” if Iran failed to end its blockade of the Strait of Hormuz. In a later social media post, he declared, “A whole civilization will die tonight, never to be brought back again.” The President of the U.S. Conference of Bishops, Archbishop Paul S. Coakley was so appalled that he declared that “the threat of destroying a whole civilization and the intentional targeting of civilian infrastructure cannot be morally justified.”
Why should any country obey international law, especially during a time of war? Because war is literally a matter of life or death, why should any means of winning be off limits? Trump’s and Hegseth’s view seems to be that in war, might makes right, moral values be damned.
International law itself is a slippery concept. Unlike American domestic law, which is set out in the Constitution, statutes passed by Congress and state legislatures, and court decisions, there are no equivalent international institutions that enact and enforce international law. Instead, it is made up of treaties and conventions such as the Geneva Conventions or the United Nations Charter that have been approved by most countries as well as customs established by years of precedent. As for Courts, the International Court of Justice settles disputes between countries but only if they have agreed to its jurisdiction. Although the International Criminal Court (ICC) can prosecute war criminals, the United States is not one of the 125 countries that ratified the Rome Statute which established the court and does not recognize its authority. Under Donald Trump, sanctions have been imposed on nine judges and the chief ICC prosecutor for investigating U.S. and Israeli officials for possible war crimes.
Without an international law enforcement agency to arrest violators, the fear of punishment that deters at least some people from crime lacks an international equivalent. Donald Trump’s Department of Justice is not going to investigate him, especially since the Supreme Court has declared him immune from criminal prosecution for official acts nor is a Congress controlled by his own party likely to impeach him, let alone remove him from office through a Senate trial. As Trump told the New York Times when asked if there were any limits to his own power, “there is one thing. My own morality.”
If what induces most of us to obey the law, our own morality or the fear of punishment, does not deter Trump from following the law, is there anything that can? The answer, however counterintuitive it may seem at first, is self-interest. That is why most countries enter into international agreements that limit their own power such as the U.N. Charter, the Geneva Conventions, the Hague Accords, the Nuremberg Principles, or even the ICC.
The Geneva Protocol banning the use of poison gas provides a good example. The effect of these weapons in WWI was so horrible that negotiations after the war culminated in its adoption in 1925. Although there have been notable examples of violation, neither side used it during WWII because they knew that if they did, their enemy would retaliate in kind. While hardly perfect, the protocol has at the very least significantly reduced the use of chemical weapons in war.
Hegseth’s “no quarter, no mercy” edict should be rejected, even if he lacks the character to do so for moral reasons, on similar self-interest grounds. Countries treat prisoners of war humanely because they want their own prisoners to be similarly treated. When Iran shot down two American airplanes, until they were recovered, there was a fear that Iran would capture them. If Iran did so, what would prevent them from executing them, using “no quarter, no mercy” as justification? The obligation can’t simply be that only one side should act humanely. This self-interest explains why so many countries have approved these agreements.
To say that international law is imperfect is a gross understatement. However, observing it is not only the right thing to do, preventing the death of uncountable innocent civilians, it serves the self-interest of every country that respects it.
Dr. Bruce Altschuler is emeritus professor of political science.
