Not Everything is Legal in War

 

EDITORIAL | Martin Sicilian, PO ‘17

At the recent NBC “Commander-in-Chief Forum,” Donald Trump suggested the United States should have taken oil from Iraq as it withdrew the bulk of its forces from the country. Rudy Giuliani, a Trump campaign surrogate, defended Trump’s statement on Sunday. Questioned by ABC’s George Stephanopoulos about the legality of taking the natural resources of another country, Giuliana asserted that “of course it’s legal. It’s a war.” He continued: “Until the war is over, anything’s legal.”[i]

To state the obvious, not everything is legal in war. Any professor of international law (or a cursory Google search) would show Giuliani that the law of war is a firmly established and growing branch of public international law, dating back hundreds, if not thousands, of years. There are laws regarding when it is legal to go to war, how war can and cannot be legally waged, and how and for what actions war criminals are to be sanctioned.

Specifically, Giuliani defended Trump’s statement that the United States should steal Iraq’s resources. But such an action would violate both the fourth Geneva Convention and The Hague Conventions of 1899 and 1907[ii].  There is no justification for Giuliani’s (or Trump’s) statements under international law. A potential explanation is that Trump and his team think that the United States should invoke its sovereignty as a nation and no longer subject itself to parts of international law. This is a natural extension of Trump’s “America First” promise, if combined with the simplistic and dangerously wrongheaded view of America’s strategic interests that Trump often espouses.

Radical rhetoric like this is not new from the candidate. While still battling in the GOP primary, Trump promised to “go tougher than waterboarding” in the Middle East, referring to torture. Former CIA Director Michael Hayden responded publically that he and his agents would disobey the order because it is unconstitutional. Pressed about the exchange by Bret Baier in the 11th primary debate, Mr. Trump said “[the military] won’t refuse. They’re not going to refuse me. Believe me.” Instead of arguing that his proposal was constitutional, his response was to assure the voters that he could get it done despite that it was against the supreme law of the United States. He continued: “If I say do it, they’re going to do it. That’s what leadership is all about.[iii]” Little that Trump has said since has been as revealing of how dangerous a President he might make.

To be sure, Hillary Clinton also raises flags in this area. Both her and President Obama share Donald Trump’s less-than-total devotion to following international law, even with regards to the use of force. Citizens should do what they can to hold our next President, whoever s/he is, accountable for violations of international law. But Donald Trump’s positions are much more extreme than those of his rival, and his policies, if enforced, would most likely do more damage to the United States’ international standing than would the policies of Secretary Clinton.

Laws of war are something humans should be proud of. If the United States of America, the world’s largest superpower, disregards some of those rules, the international community will take a small step backwards. The force of international law is tied to whether influential states decide to follow it. In this way, the United States’ decision to follow the laws of war (or not) will markedly affect the future validity of those laws. Should the United States choose to turn its back on the global rule of law in some cases, it will be a black mark in history, and, frankly, American voters will bear the responsibility.

Donald Trump is not making a good case for being the “law and order candidate.” He advocates for a stronger America but, if given the opportunity, his policies could make the country weaker. He often asserts that America is fighting “with one arm tied behind its back.” Releasing that arm, in his view, would mean loosening soldiers’ rules of engagement, killing the innocent families of terrorists, instituting torture programs, and, now, stealing the resources of one of the most important US allies in the war against ISIS.

To borrow the words of the Israeli Supreme Court, it is the “destiny of democracy, as not all means are acceptable to it,” that not all methods used by its enemies should be open to it. “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.” Voters should carefully consider whether the methods that Trump suggests are acceptable to them, and whether the immediate battlefield gains would be won at too high of a cost.

 

 

 

 

 

[i] Jenna Johnson, “Top Trump Adviser Rudy Giuliani: ‘Until the War is Over, Anything’s Legal,’” Washington Post, September 11, 2016. https://www.washingtonpost.com/news/post-politics/wp/2016/09/11/top-trump-adviser-rudy-giuliani-until-the-war-is-over-anythings-legal/

 

[ii]Damian Paletta, “Trump’s ‘Take the Oil’ Plan Would Violate Geneva Conventions, Experts Say,” The Wall Street Journal, September 8, 2016. http://blogs.wsj.com/washwire/2016/09/08/trumps-take-the-oil-plan-would-violate-geneva-conventions-experts-say/

 

[iii] Team Fix, “The Fox News GOP Debate Transcript, Annotated,” Washington Post, March 3, 2016. https://www.washingtonpost.com/news/the-fix/wp/2016/03/03/the-fox-news-gop-debate-transcript-annotated/

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