Twelve hours after Donald Trump warned that a “whole civilization will die tonight, never to be brought back again”—after he’d previously threatened to bomb Iran “back to the Stone Ages”—the president agreed to a temporary cease-fire. Since then, initial peace negotiations failed and Trump responded with a naval blockade of the Strait of Hormuz; a new round of talks may begin soon.
But what to do with his everyone in Iran is going to die comments last week? Because they were designed to pressure Iran to come to the table, and because the promised carnage did not materialize, many observers simply moved on, explaining away Trump’s threats as a ham-fisted negotiation tactic, some kind of 5-D chess, or another example of the president’s propensity to “TACO” (Trump Always Chickens Out).
Former military attorneys, human-rights lawyers, and genocide scholars told us that moving on from Trump’s remarks would be unwise. The president’s words, they believe, will have a lasting impact—not least because they appear to violate the rules governing warfare that the United States has supported since the aftermath of World War II. “There’s so much going on in the world, but this is the kind of issue that I really think deserves some sustained attention,” Rachel VanLandingham, who served as the chief of international law at U.S. Central Command from 2006 to 2010, told us.
Trump’s Truth Social post threatening to erase a “whole civilization,” scholars told us, was itself a violation of Article II, Section 4 of the United Nations Charter, which prohibits “the threat or use of force against the territorial integrity” of other nations. The American law-of-war manual—a binding document for members of the U.S. military that clarifies treaty and legal obligations—also prohibits “threats of violence” against a civilian population, especially if the threats’ primary objective is to “spread terror.” Nearly identical language appears in Additional Protocol I of the Geneva Conventions, which was adopted in 1977.
The post was “basically an announcement that I’m about to commit war crimes at the very least—and possibly crimes against humanity and, in a worst-case scenario, genocide,” Leila Sadat, a professor of international criminal law at Washington University Law School, told us.
Perhaps as important, that post and others represented a sharp departure from how commanders in chief speak during wartime, when they ordinarily treat matters of life and death with solemnity. Trump is not the first American president to threaten mass bloodshed during war. Hours after the United States dropped an atomic bomb on Hiroshima, President Harry Truman said that if Japan refuses to “accept our terms, they may expect a rain of ruin from the air, the like of which has never been seen on this earth.” President Richard Nixon, in recorded conversations with Henry Kissinger, said during the Vietnam War, “I’d finish off the goddamn place” and threatened to deploy “even the nuclear weapon if necessary.”
Still, those statements were made more than 50 years ago, and they don’t negate the point that the language presidents use in official communications matters. “Presidents have always taken great care to make it clear that the United States was at war with enemy governments, not enemy peoples,” Devin Pendas, a Boston College historian who studies genocide and war-crimes trials, told us. Nixon was speaking in private. And Truman’s threat came after he had decided to seek an end to six years of global war by using weapons more powerful than anything seen before. Trump’s threat, nearly six weeks into a war that he started, was of a different order and shouldn’t be dismissed as just a “Trump-being-Trump moment,” Timothy Naftali, a presidential historian at Columbia University’s School of International and Public Affairs, told us. “That’s a no-go zone.”
One might argue that tone and word choice matter little compared with actions: the killing of civilians by the U.S. military in conflicts, including in Vietnam, Iraq, and Afghanistan, prompted their own claims, and sometimes convictions, of war crimes. But what the commander in chief says matters. The Iran war stands apart because the president and the defense secretary are “saying things that seem to either authorize war crimes or seem to suggest that it would be okay if the U.S. did it, because no one’s going to stop us,” Daniel Maurer, a former Army judge advocate who is now a law professor at Ohio Northern University, told us. “That has never happened before.”
At least not since nearly 200 nations ratified strict rules governing armed conflict, including the Geneva Conventions of 1949, the Hague Conventions, the Nuremberg Principles, and the United Nations Charter. The U.S. was the principal supporter of that postwar order—and now its president’s words gnaw away at the order’s foundations.
“When he talks about the destruction of a civilization, is it just hyperbole?” Gabor Rona, a professor of international human rights at Cardozo School of Law, said to us. “Or are we really at risk of the U.S. committing the gravest mass of war crimes since the Second World War?”
This is hardly the first time Trump has demonstrated an eagerness to ignore the laws and norms of conflict. The 12-day war last June, when the U.S. joined Israel in attacking Iran’s nuclear and missile sites, was launched without the usual domestic or international legal sanction. Boat strikes in the Caribbean and the Eastern Pacific that have killed more than 175 people since September are intended to target suspected drug smugglers, according to the Pentagon, but some European officials have condemned the strikes for disregarding international law. The military operation that ousted the Venezuelan strongman Nicolás Maduro in early January violated the UN Charter, several lawyers told us. (“I don’t need international law,” Trump told The New York Times shortly after.) Human-rights experts at the United Nations have denounced as illegal the U.S. fuel embargo on Cuba.
The launch of the war against Iran in late February may have violated terms of the UN Charter that prohibit military aggression against a sovereign state absent UN authorization or an imminent threat. The White House has claimed that Iran posed such a threat, but a U.S. intelligence assessment cast doubt on that assertion.
[Read: The Pentagon cut its civilian safeguards before the Iran war]
Within hours of the start of the war, the U.S. struck a school, killing more than 170 people, most of them children. A preliminary Pentagon investigation found that the strike may have been the result of errant targeting.
It is nearly impossible to assess whether the strike might constitute a war crime without knowing the chain of decision making, which would help determine whether the order was an honest mistake or the result of criminally reckless behavior, former military lawyers told us. Maurer, who has taught constitutional and criminal law at West Point, said that he has faith that U.S. service members would fulfill their legal obligations and, if necessary, refuse an unlawful order. “In the fog and friction of battle, mistakes get made; that happens—but I don’t see purposeful, deliberate actions that would constitute war crimes being a systemic concern,” he said. He worries, however, about the “dangerous signal” to troops from the top that the laws of war they were taught don’t matter. Over time, he told us, that could weaken service members’ “sense of duty.”
Defense Secretary Pete Hegseth has shown disdain for what he has called “stupid rules of engagement” and promised in a briefing on March 13 to give “no quarter” to the enemy. International law expressly prohibits declarations that “no quarter will be given.” This prohibition is also in the Department of Defense’s law-of-war manual.
Since the start of the war, Trump has repeatedly threatened to “obliterate” Iran’s power plants. The Geneva Conventions and international law generally prohibit targeting civilian infrastructure, though there are exceptions. “If we have really strong intelligence indicating that an entire convoy of tanks is going to roll across a bridge at midnight tonight, we don’t necessarily have to wait until midnight, when the tanks are actually crossing it, to attack it,” Kevin Jon Heller, a professor of international law and security at the University of Copenhagen, told us. “We can probably attack it now.” But, he and others cautioned, such cases require meticulous fact assessments. “You’re not allowed to say, Oh, at some point in the future, this bridge might be used to ferry tanks or soldiers, so I’m going to blow it up now. That’s not how it works,” he said.
Three overarching principles of international humanitarian law must be factored in before a country can strike a primarily civilian object, such as a bridge or a power plant: the principle of distinction (you cannot deliberately target civilians or civilian objects), the principle of proportionality (you must weigh the military advantage to be gained against the harm to civilians, and that harm cannot be excessive), and the principle of precautions (you must take constant care to spare civilians from the ravages of war).
Those principles have come into play as Pentagon war planners have expanded possible target lists to include energy sites they describe as “dual use,” or used by both civilians and the military. The legality of launching a war is a separate issue from the legality of individual strikes—but the former informs the latter. If the Iran war violated international law from its inception, any further action can be thought of as “a force multiplier of the original sin,” David Scheffer, a senior fellow at Council on Foreign Relations, told us.
Hegseth has also dismantled the Pentagon office responsible for preventing civilian casualties. And he has fired and marginalized judge advocates general, the officials at the Pentagon who impose legal guardrails. Those actions could suggest to war-crimes investigators that U.S. officials failed to act responsibly and lawfully when selecting targets and executing strikes in the Iran war, scholars told us. Trump’s and Hegseth’s statements, meanwhile, have arguably created a record of mens rea—a reckless disregard for civilian life.
[Read: The Pentagon’s lawyers are now under review]
“There are questions in the law about whether criminal recklessness” rather than intent “is enough to charge someone with war crimes,” Beth Van Schaack, who was an adviser at the State Department on war-crimes issues during the Biden administration, told us. “But at a certain point, the recklessness absolutely becomes a violation of the laws of war.” The U.S. has frequently condemned Russian strikes on civilian infrastructure, including attacks on Ukrainian energy facilities, schools, and cultural sites. “We condemned them as war crimes,” Van Schaack said. “And now suddenly we’re committing the exact same conduct.” Iran, too, has attacked civilian infrastructure, including a major natural-gas facility in Qatar and oil-production equipment in Kuwait, prompting accusations of war crimes.
The tenor of top U.S. officials’ statements has left Steven Schooner, a former Army lawyer who previously taught judge advocates, feeling that “this administration isn’t really entitled to the benefit of the doubt on issues related to law of war,” he told us.
The White House spokesperson Anna Kelly told us in an email that the Iranian regime had “committed egregious human rights abuses against its own citizens for 47 years, murdered tens of thousands of protestors in January, and indiscriminately targeted civilians across the region in order to cause as much death as possible throughout this conflict.” (The Pentagon referred our request for comment to the White House.)
Finding evidence of potential war crimes is one thing; assigning accountability is another. Experts in the laws of armed conflict told us that it is extremely unlikely that an American president would be held legally responsible, especially given that the Supreme Court recently ruled that a former president has at least presumptive immunity from prosecution for all official acts. Neither the U.S. nor Iran is party to the International Criminal Court, which adjudicates possible war crimes. (Since returning to office, Trump has imposed sanctions on at least 11 ICC officials.)
But hypothetical routes exist for members of the military, and possibly its leadership, to be charged through the military or the civilian justice system, or in foreign courts. Signatories of the Geneva Conventions (which include the U.S.) have “universal jurisdiction” over grave treaty breaches, giving nations the right to bring charges against other countries’ citizens regardless of where an alleged crime was committed. Some Israeli soldiers traveling abroad have been investigated for alleged war crimes in Gaza: Belgium arrested and interrogated two Israeli soldiers last summer for such alleged crimes; another Israeli soldier fled Brazil after a federal judge there ordered a similar Gaza-related probe. If U.S. service members were accused of war crimes by any other nation, “if I was their lawyer, I’d tell them they shouldn’t travel,” Oona Hathaway, an international-law professor at Yale Law School, told us. “They certainly shouldn’t travel to a country that has a universal-jurisdiction statute and that might potentially bring charges against them.”
[Read: Trump ditched hearts and minds in the Iran war]
Trump and Hegseth’s conduct of the war may ultimately be subject to the verdict of public opinion rather than to judicial review. What is more likely than legal accountability, Hathaway said, is that their crimes will be recorded in the history books for future generations to judge.
The post One of These Trump Threats Is Not Like the Others appeared first on The Atlantic.
