If Trump pardons the troops accused of war crimes this weekend, we'll know what he really stands for

Earlier this month, the President granted a full pardon to former Army 1^st Lt. Michael Behenna, who had been convicted in 2009 of the premeditated killing of an unarmed and naked Iraqi prisoner who was said to be suspected of belonging to al-Qaeda. Now the rumor is that he will pardon another handful of soldiers in time for Memorial Day weekend. These include Special Operations Chief Edward Gallagher, who is accused of having a personal policy of indiscriminately killing unarmed civilians in Afghanistan; Maj. Matthew Golsteyn, who is accused of killing an unarmed Afghani man; and a group of Marine Corps snipers who urinated on the cadavers of dead Afghanis.

All of these men could face severe punishment under the Military Uniform Code of Justice and the US War Crimes act of 1996 if investigated, convicted and prosecuted by the military. Trump’s probable intervention, however, would further politicize what should be left to the realm of judicial independence and military justice – if not the mechanisms of international criminal justice.

“Cherif would have believed these men were not worthy of a pardon.” The Cherif that Elaine Klemen-Bassoiuni is referring to here is the one and only late Mahmud Cherif Bassiouni, the so-called “architect of modern international criminal justice” and my former boss and mentor.

Bassiouni was many things, among them an aristocrat, a former Egyptian military officer, a DePaul University professor of law, a prolific writer on international criminal law and human rights, one of the world’s foremost international law experts, and framer of the international criminal court – to mention a few. Bassiouni helped draft the UN Convention Against Torture and the laws to prosecute apartheid in South Africa; he was appointed the UN monitor in Afghanistan until the US shut the mission down after he issued critical reports against that country; he headed the committee to document war crimes in Bosnia and the former Yugoslavia, and his report from that mission lead to the founding of the International Criminal Tribunal for the Former Yugoslavia. He was a major force in the development of the International Criminal Court in the Hague. He was a true champion of human rights.

As his wife, Elaine Klemen-Bassouni, told me in a phone conversation, “He was a military man himself, he led his own troops in the 1956 war [Suez Canal Crisis] and he fundamentally understood how difficult and how essential it was to follow the military code of ethics.”

She went on to tell me that, “Those who have been sentenced or face sentencing need to carry out their sentence because what they have done is destructive to humanity and the concept of justice and to the concept of a so-called ‘just war’ – if you are willing to believe in that.”

Since the end of the First World War the term “war crimes” has continued to evolve, and so has international law. At the end of the Second World War, Winston Churchill planned to shoot Nazi military leaders, but it was US Secretary of War Henry Stimson who advocated to President Roosevelt for a trial in an international tribunal. In his opening remarks, US Supreme Court Justice and head of the US prosecutorial team Robert Jackson stated, “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that power has ever paid to reason.”

America has fallen far from where it once stood in the eyes of the international legal community.

Granted, it is true that the Nuremburg Trials were trials of winners: the allied forces were never subjected to investigation or prosecution for war crimes committed by their militaries. But that does not take away from the significance of the achievement: the 1947 Nuremburg Principals laid out what constituted a war crime. This was then later further developed and codified in the Geneva Conventions of 1949, which have been ratified by almost every country on the planet, including the United States.

If the US would just prosecute its war criminals like it’s supposed to under military law then there would be no need to worry about international legal responsibility for the commission of war crimes or crimes against humanity – the principal reason why the US withdrew from the International Criminal Court in 2002, after ratifying the treaty in 2000.

Allowing for suspected war criminals to evade the appropriate judicial process, however, exposes the true motivations of this administration’s political posturing on global human rights situations like the one in Venezuela, for example.

Chicago-based international attorney Dan Swift told me that by staying away from the ICC, the US wants to “uphold the prerogative of the president to put his thumb on the scales of justice in order to further his own domestic political agenda. We saw it with Nixon and Lt. Calley, now we are seeing it with Trump and Special Operations Chief Edward Gallagher and the others.”

Trump’s probable Memorial Day pardon of military men accused of war crimes is another hard reminder that this administration cares nothing for justice or rule of law. Along with the Muslim ban, the implicit and sometimes explicit encouragement of racist right-wing violence, warmongering with Iran, friendly meetings with the world’s worst dictators, and his administration’s horrific immigration policy at the southern border, this pardon would show that our president in the White House will now stop at nothing to further his far-right agenda. The era of US influence in international criminal justice has officially ended.

Bassiouni — or “Professor”, as many of us who studied under him or worked for him called him — told the Chicago Reader in 1999 that “human nature being what it is, there are those who will always seek power and those who will always abuse it. I'm not cynical, because I believe that as human beings, we are condemned to be optimistic. Our lives depend upon being optimistic.”

I’m not sure how he stayed so positive after everything he had seen and lived through. But I deeply admire him for it. So, here's to being optimistic, Professor. But, in all honesty, I’m not sure how much optimism I have left in me.