If convicted.
Yep, it is murky.
We generally honor treaties that has been signed, but once the Senate ratifies them, they becaome law. So the reasons arent always absurd.
I believe you are correct here.
re: International Waters
Jurisdiction is tough, but there can be a few legal ways. It’s mostly a matter of political will, not the legality. Let’s assume stateless boats operated by Venezuela drug runners in international waters shot by the US military; No armed conflict exists.
US - obvious. Federal and UCMJ murder laws would apply. No extradition necessary so also practical.
Venezuela - I’d guess, it’s illegal to murder a Venezuelan national anywhere in the world. Not really practical to extradite to Venezuela.
ICC - There’s a potential Crime against Humanity (ie civilians) claim; systematic and widespread (dozens over months) killings against a group (drug runners) that is state sanctioned (US policy). Jurisdiction is probably gone since the boats are stateless. Drug runners don’t register their boats. Fisherman might. If the boats were registered, Venezuela “territory” would go wherever the boat went in the world; and these would be attacks against Venezuela territory who is a signatory to the ICC. Outside registered boats, I don’t see other ways except a UN referral which would get blocked as mentioned above.
Germany - or any pure Universal Jurisdiction Country. Would be for a crime against humanity. Not likely d/t diplomatic relations and such. Spain did it though during the Iraq war - torture prosecutions I think.
The US is the best option for murder. Unless/Until the strikes are inside Venezuela territory and then the ICC is an option for a crime against humanity.
I was inclined to say that I don’t think your idea passes muster - I only meant that he becomes complicit in the eyes of society, not as a legal matter - but let’s review your case.
By Article VI of the Constitution, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”. The Geneva Conventions are, in essence, just as important to our law as any statute passed by Congress.
By the President’s Oath of Office, he is compelled to Faithfully Execute the Law of the Land. Any act that he takes that would be antithetical to that - for example, ordering soldiers to rob banks, to pay down the national debt - violates the Oath and for that particular action, renders him no longer the President, but just some a-hole who has failed to live up to his Oath of Office.
If he were to, subsequently, try to do something like pardoning those soldiers then that pardon may become reviewable due to it being entangled with the violation of the Oath.
Under this circumstance, we might envision that some Attorney General would charge the President with a racketeering charge for grand larceny. His move to pardon the soldiers would show evidence of his understanding that it was a crime and that he recognizes the guilt of the activity. (The pardon itself might still stand.)
So under that hypothetical, we might have a case where pardoning an act that was criminal might lead back to the President.
But in the case of the murder of the shipwrecked drug dealers, I don’t believe that we have any evidence that the President ordered the war crime.
If the President pardons a guy for murdering his brother, we might say that he’s complicit in that murder, because he let the murderer go. But we also might not, because it’s an act of forgiveness - generally given because the murderer has suitably reformed and made amends.
There’s no question that the murder was a violation of law. But the exact purpose of the pardoning power is to pardon people who did, quite probably, violate the law. Using the pardon power doesn’t implicitly violate the Oath of Office, despite a first blush view that it might do so. The intent is that it allows the President to say that the best way to Execute the law is, sometimes, to adjust the end results a hair, in unusual circumstances that the lawmakers didn’t foresee. The end-goal of the Constitution, the Law, etc. are all to ensure the General Welfare, the Domestic Tranquility, etc. of the nation (per the first sentence of the Constitution).
Minus some clear step like personally ordering people to violate the law, we would generally assume that any pardon is an acceptable use of the power, that does not violate the Oath.
So while you and I might look at what happened and feel like, in this particular case, the President is in violation and is complicit, it’s a much harder argument to make. You would need to demonstrate that his intent was to encourage such lawlessness, not to pardon a Federal worker who made a bad choice.
At the moment, it’s not clear what evidence you would use to support that argument past, “Well, it’s Donald Trump”. Even with the most favorable set of imaginary Supreme Court Justices that you might dream of, you’d need more real, documented evidence than that.
So, for you and I, there would be the stench of complicity. Legally, I don’t think there’s enough to make it stick.
“Armed conflict” is defined as part of the Geneva Conventions of 1949.
United Nations: International Armed Conflict (IAC)
One of the factors that would qualify as an armed conflict is:
- The use of armed force not directed against the enemy’s armed forces but only against the enemy’s territory, its civilian population and/or civilian objects, including (but not limited to) infrastructure (ICRC, 2016, para. 224)
The US military attacking Venezuelan citizens on a Venezuelan boat is considered an armed conflict by the definition established in the Geneva Conventions, that the US has signed and ratified multiple times.
Certainly, neither the ICC nor Venezuela has the power to do anything to Hegseth. But they could still be relevant. If Trump pardons Hegseth for his actions in this situation, then a future Democratic administration couldn’t try him under any American law, no matter how much they might want to. But they might still be able to turn him over to some other court.
That’s not correct. That is for an international armed conflict - State vs State.
This situation is not an armed conflict, but the only type it could possibly be is a non-international armed conflict (NIAC) - State vs. non-state organized armed group.
It’s not defined in the GC, and the most used/accepted definition is from a 1995 legal decision in a tribunal.
An NIAC exists when:
- Protracted armed violence; and
- between a State and organized armed groups; and
- the armed group has a minimum level of organization.
So basically, you need an intensity of violence and an organized group. All of those elements have sub elements/factors to further get at like number of attacks, frequency, severity, duration, types of weapons, casualties, territorial control, military response, breakdown of civil order, etc. etc.
You just don’t have that. You have a boat with drugs and it gets blown up and sinks. I’m pretty sure it’s news to the drug cartel that they are at war with America. There is no hostilities between the US and the drug cartel. It’s just one sided. It’s just us murdering drug runners.
Think of this. Carnival Cruise Lines operates throughout the Caribbean. Let’s say the staff also ran drugs hiding them in the engine room. If the Navy just started blowing up the cruise ships, is there now a war between Carnival and America? No, but you’d actually have a better case there since they are at least an organized group. But there is no armed conflict because drug running is just a crime and that’s literally all that is happening. They are not fighting us.
I’m not saying you can’t get there, but only Trump wants/needs there to be an armed conflict since he needs that legal cover to do this. It’s fighting his legal fight when this is argued.
Late: This is very hard to summarize but all the above is accurate. Mostly, we were concerned with Stave vs. State; then thought we should also include Civil Wars (State vs. non-state). Having armed conflicts with terrorists and drug runners was never really contemplated. We’re stretching the civil war armed conflict to fit onto terrorists and drug runners.
That is not what a NIAC is. A non-international armed conflict is what happens within a state. So, for example, if the National Guard started shooting at Antifa, that would be a NIAC. That what makes it “non”-international; it is nation’s military taking action within its own borders against its own people.
That’s why the threshold is so much higher than what it takes to be declared an international armed conflict. Because it effectively requires going into a nation and involving yourself in that state’s domestic issues in a way that conflicts with its sovereignty.
The US shooting Venezuelan boats is quite clearly international in nature, as it involves two different nations.
This might help clear it up:
International humanitarian law defines and regulates only two categories of armed conflict. It uses the term non-international armed conflict to denote very diverse situations, both in terms of the form and the objective of armed confrontations. This term is used as opposed, on the one hand, to the category of international armed conflict and, on the other, to the category of internal disturbances and tensions, which are excluded from the definition of armed conflicts.
And it goes on to say that often times, a state that is dealing with internal strife will try to keep it quiet, which complicates matters.
The national State whose authority and sovereignty is being attacked from the inside is naturally reluctant to acknowledge the status of adversary to those who threaten its power. The State concerned will in most cases be tempted to deny the existence of a conflict and to invoke instead a situation of disturbance that will legally allow it to criminalize the actions of the armed opposition groups and to mobilize the whole law enforcement and national military apparatus in the name of public order.
Another reason why the NIAC concept is a tricky one, and has to be handled differently. But again, the issue with the drug boats is not an issue of NIAC, since they aren’t US boats being blown up.
If Pete Hegseth is guilty of a war crime punishable by the ICC … so what?
Yeah, what is the Interstate Commerce Commission gonna do to him - suspend his trucking license?
ICC is a-checkin’ on down the line
Well, I shot up them boats but my conscience is feeling fine
Nothin’ bothers me tonight, I can dodge all the courts all right
Even if it does, he has a right to “travel”, or so I’ve been told.
Back to the subject, if Pete has some kind of sanction against him within the US itself (impeachment, censure, whatever), I wonder if that has any impact on how he is judged by the international community.
I’m very familiar with this.
you’re proving my point. Trump is taking a concept meant to apply to civil war and stretching it to drug runners. Like Bush and Obama did before. it’s bonkers.
I could not agree more.
The phrase people came up for this new dynamic is “transnational armed conflict”. What applies is still be worked out, but for now it’s NIAC framework.
This might be prescient. Antifa and migrants.
It wasn’t a 100% random hypothetical.
This article (which, I believe, sources from the WSJ) gives a good bit more context around the event:
The legal argument is that the two remaining drug smugglers had successfully gotten back into the vehicle and sent a radio call for someone to come get them and continue the drug run. If we take the view that “completing a drug run” is akin to “delivering and setting off a bomb in a civilian gathering zone” then this attempt to continue the act of violence, legally, clears the commander of making a second strike.
To be honest, I could see that clearing the hurdle - as an argument.
From a realistic standpoint, I’m a bit skeptical that a small unarmed or lightly boat, facing down a a sci-fi war drone that can fire rocket missiles, would think that it made sense to make a second go of it. The better interpretation is that they called for someone to come get them.
But, then again, I wouldn’t be surprised if they would try to save the drugs (if they did exist and survived) and, at a later point, try to make the delivery again through an alternate method.
I’m not sure what War on Terror law would say about it if a terrorist bomber was stranded, but was trying to make his way back to base, while carrying the bomb that he’d been trying to deliver back with him.
Thanks for posting that. I think they don’t want to put anyone in detention because if they do, they’ll have to explain the basis for the detention. Dead people can’t file lawsuits.
That was the first attack and they went out of their way to make sure everyone died. Illegal on multiple levels. Since then, they changed the policy to not allow clearly illegal double taps and have rescued survivors.
In Trumps view, those survivors are the enemy and should be detained until the end of hostilities. But if he did that, they’d file a lawsuit asking the US to provide a legal basis for the detention. And Trump would have to explain why this is an armed conflict and that’s not possible.
Instead the survivors were released back to their home countries scot free and are free people today. The enemy is completely free. If that’s not the biggest tell…
Watch for where they ever have to detain someone. It won’t be Gitmo. It’ll be a new Gitmo, like the Middle East or something where they won’t have any right to protest the detention and Trump won’t have to explain anything.
Has congress declared war on Venezuelan citizens?
No?
OK, this is just murder. Otherwise it would be a war crime.
You don’t have to have a declaration of war to have a war crime.
Not one boat. They’ve killed at least 83 people on many boats (can’t find a boat count).
Huh. If I kill a bunch of people on a boat, it’s not a war crime. This is all just very strange.
I suspect he’ll not be visiting South Africa soon.
We gave a fairly henious history, but we now have a very low tolerance for war ciminals.
I’d punch him in the face, if it was allowed by local law and his protection squad.