Does Trump&#39;s pardon of the Blackwater mercenaries violate international law? President Trump recently pardoned Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard, four Blackwater mercenaries convicted in 2014 of killing civilians in Iraq back in 2007. The United States is a party to some of the Geneva Conventions. A UN Working Group on the use of mercenaries spokeswoman said that &quot;these pardons violate US obligations under international law&quot;. Is that correct? Did Trump violate binding obligations of the U.S. government under the Geneva Conventions (the part the U.S. is a party of) to prosecute war crimes with that pardon? This question has two parts: Do the Geneva Conventions the U.S. is party to establish an obligation? Does the pardon legally violate these obligations?
There are a number of complexities that come together that make the claim that President Trump violated obligations under the Geneva Convention difficult to justify. By definition, the Blackwater employees were not mercenaries according to the Geneva Convention (United Nations Mercenary Convention). Among other things, the Geneva Convention requires that a mercenary is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict The Blackwater employees would have been considered civilians according to the Geneva Convention. Although civilians can be considered combatants according to the Geneva Convention in International Armed Conflict, by the time of this incident in 2007 the situation in Iraq was no longer considered International Armed Conflict and it's questionable if the Geneva Convention applied. (The status of the conflict changed with the handover of sovereignty on June 28, 2004.) The incident that occurred, often called the Nisour Square massacre, was related to Blackwater employees who were guarding a convoy of U.S. State Department employees. In essence, the Blackwater employees were acting as private security guards, not as active participants in armed conflict. As civilians, the employees could have been charged under Iraqi law or U.S. law for the actions they took that day. However, under the Coalition Provisional Authority, U.S. contractors were not subject to Iraqi legal jurisdiction without the permission of the U.S. From a CRS Report for Congress titled Private Security Contractors in Iraq: Background, Legal Status, and Other Issues: Under CPA Order Number 17, as revised June 27, 2004, contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts... This left U.S. law, specifically the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), as a means to prosecute the Blackwater employees for any potential criminal acts and it is under this law the Blackwater employees were ultimately charged and convicted. MEJA allowed persons who are &quot;employed by or accompanying the armed forces&quot; overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act of 2000 for any offense that would be punishable by imprisonment for more than one year if committed within the special maritime and territorial jurisdiction of the United States. The Blackwater employees were not charged for &quot;war crimes&quot; under the Geneva Convention but for manslaughter, attempted manslaughter and a weapons violation. Now to the question of President Trump's pardon legally violating the obligations of the Geneva Convention. Assuming that the Geneva Convention applied to the Blackwater employees and their actions at Nisour Square, from a U.S. perspective a treaty cannot alter the President's constitutional powers. The second article of the Constitution of the United States, in Section 2, states: ...he shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The law upon which the Blackwater employees were convicted was U.S. law; an offense against the United States and, therefore, a pardon for a conviction under this law is within the President's constitutionally granted powers. In Reid v. Covert, the U.S. Supreme Court made it clear that treaties cannot alter constitutional powers: It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. The pardon issued by President Trump was legal from a U.S. law perspective. As such, it represents an official action of the United States. This would leave it to the United Nations to determine if the U.S. was in violation of any treaty. Given the difficulty in establishing that the Geneva Convention even applied to the actions of the Blackwater employees it seems a stretch to think that the U.S. would be found in violation.
This issue was addressed in United States v. Meng, 2020 BCSC 785. The authority to extradite is via the extraditing state's treaty with the U.S. and its domestic implementing legislation. In Canada, this is the Extradition Act. Extradition requires consent of the extraditing state and for the requesting state to follow the extraditing state's domestic procedure. The question you raise is how sanctions of requesting state affect the interpretation of the domestic offence for the purpose of establishing the double criminality requirement. Critical in this case was that the charged offence was fraud against HSBC (albeit based on alleged concealment of sanctions violations). See para. 23: The double criminality question in the committal hearing is therefore whether Ms. Meng’s alleged conduct, had it occurred in Canada, would have amounted to fraud contrary to s. 380(1)(a) of the Criminal Code. Ms. Meng argued: that the conduct cannot amount to fraud because in essence the proposed prosecution is to enforce US sanctions laws against Iran, measures that are not part of Canadian law and which, indeed, Canada has expressly rejected. The Attorney General argued: that the double criminality analysis may properly take the US sanctions into account as part of the foreign legal backdrop against which the essential conduct is to be understood. The court agreed with the Attorney General: The effects of the US sanctions may properly play a role in the double criminality analysis as part of the background or context against which the alleged conduct is examined.
The law does not say. It is up to the judgment of the judge to determine what constitutes "Le fait de provoquer directement à des actes de terrorisme ou de faire publiquement l'apologie de ces actes". I would not have predicted that the act constituted "faire publiquement l'apologie", but if that expression can reasonably construed as meaning "indicating approval of", then I understand the conclusion. The law does not mention SSIDs, that simply falls under the penumbra of "publicly approving of terrorism", and there isn't a specific list of forbidden acts. Analogously, Holocaust denial is against the law in France, and there is not a specific list of things that you can't say, there is a general rule from which specifics can be inferred. Publicly saying "Free Kurdistan!" could be construed as supporting PKK and thus approving of terrorism, but that would be quite a stretch. Using the SSID Pkk21, on the other hand, could be a problem.
International law is always subordinate to domestic law. In the Westphalian world we live in, all power rests with each and every Sovereign nation. International law is a creation of those nations and only has force where the affected nation acquiesces to it. For example, the US and Russia have refused to sign up to the International Criminal Court so that court has no jurisdiction in their territory or over their citizens. North Korea has refused to sign the Berne convention so there is no protection of foreign copyright there. Similarly, a nation, having entered a treaty, can revoke that treaty. There would be consequences but these would be geo-political, not legal. Of course nations can and do behave hypocritically - insisting that others follow the law they ignore.
Yes. The President can pardon everyone (with the possible exception of himself) of crimes, and can pardon people by category rather than by name. But, the President can only pardon federal crimes that have been committed and are mentioned in the pardon. However, the federal crimes do not have to have resulted in convictions or even charges to be pardonable. Many mass pardons of this type were made after the U.S. Civil War. Another notable mass pardon was of draft dodgers after the Vietnam War was over by President Carter. The President cannot (in the opinion of many, it hasn't been authoritatively resolved) pardon himself. The President cannot pardon a state or local crime or a crime against the law of another country. The President cannot use the pardon power to eliminate the right of one person to sue another person. The President cannot pardon a crime that was not committed at the time that the pardon was issued.
International Humanitarian Law applies to all armed conflicts The Geneva Conventions are a part of the overarching body of this law. It applies to all armed conflicts, not just declared wars. An armed invasion by R of U is a conflict to which IHL applies irrespective of if it is a declared war or not. BTW, declared wars outside Africa and South America are virtually unknown since WWII
Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies.
I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the &quot;fraudulent or wrongful&quot; use of the FBI's seal. But &quot;fraudulent&quot; and &quot;wrongful&quot; generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States.