United States President, Donald Trump, said that his administration is considering pardons for two or three American soldiers convicted of war crimes committed in Iraq and Afghanistan. According to The New York Times, the Trump Administration reportedly made requests for expedited reports on the paperwork required to issue pardons including military troops charged with the killing of unarmed citizens. In a bid to justify the largely controversial move, President Trump said that the soldiers have been treated “unfairly.” While speaking to reporters at The White House, the President did not indicate the specific cases that his administration is reviewing but said that he would wait for the soldiers to stand trial before granting them pardons. The possible pardons will be announced on 27 May, U.S Memorial Day.
The move has sparked a lot of debate since its announcement. Former military officers in the U.S have come out en masse condemning the move. Earlier this month, Trump pardoned 1st Lieutenant Michael Behenna. Behenna is a U.S soldier who had been convicted of the murder of a prisoner by a jury in his 2009 court martial. He was sentenced to 25 years in prison but got parole in less than five years. The main reason for the opposition of Trump’s actions is the moral repugnance behind excusing international crimes, especially because the soldiers are pardoned by for no other reason but being a government employee.
The process of granting a pardon should be holistic: the interests of the accused and the interests of justice and the society at large should be balanced. In a wider sense, somebody should be held accountable for crimes committed and the victims should see that justice has been served. During armed conflict, violations of International Humanitarian Law (IHL) should be handled with seriousness. The downside is that military pardons could affect the military discipline of that country and its reputation globally. Victims of IHL violations may be reluctant to report, thus enabling violations to continue.
IHL does not provide for pardons but allows for the granting of amnesty to individuals or groups for acts committed during armed conflict. Pardons are granted post-conviction by a country’s president or prime minister. Amnesty can be granted by barring criminal investigation or prosecution of individuals or groups by the executive or legislature. IHL rules pertaining to amnesty suggest that states are not to grant amnesty to perpetrators of war crimes including wilful killing, torture, inhumane treatment, and sexual violence.
All states around the world have an obligation to uphold the rules of IHL. However, IHL rules cannot interfere with the sovereignty of a country. Governments make decisions based on their constitutions and national legislation while complying with international law. We can only wait for Memorial Day to see what President Trump decides.
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