30 December 2020   Leave a comment

In September 2007, 14 Iraqi citizens were killed and 17 were injured in Nisour Square in Baghdad. Among the dead was a nine year old boy, Ali Kinani. They were killed by four military contractors employed by a security firm called Blackwater at the time (it was renamed as Xe Services in 2009 and known as Academi after it was purchased by private investors in 2911). In 2007 Blackwater was run by Erik Prince, the brother of the current US Secretary of Education, Betsy DeVos.

These four men were convicted in October 2014 in a US court. According to The Guardian:

“In October 2014, Paul Slough, Evan Liberty and Dustin Heard were found guilty of 13 charges of voluntary manslaughter and 17 charges of attempted manslaughter, while Nicholas Slatten, the team’s sniper who was the first to open fire, was convicted on a separate charge of first-degree murder.

“Slatten was sentenced to life; Slough, Liberty and Heard got 30 years each.

“’In killing and maiming unarmed civilians, these defendants acted unreasonably and without justification,’ the US attorney’s office said in a statement. ‘In combination, the sheer amount of unnecessary human loss and suffering attributable to the defendants’ criminal conduct on September 16, 2007, is staggering.’

“The massacre left 14 civilians dead and at least 17 wounded. ‘None of the victims was an insurgent, or posed any threat to the Raven 23 convoy,’ the government said, in a sentencing memorandum filed to the court on 8 April.

In international law, states have the obligation to try suspected war criminals. If states fail to prosecute, international law allows international tribunals, such as the International Criminal Court or the Hague Tribunals, to prosecute. The failure of a state to uphold the laws of war is considered a serious abdication of one of the most important attributes of sovereignty–the protection of civilians from war crimes. The US conviction of the four mercenaries was a clear manifestation of this responsibility.

US President Trump has pardoned these mercenaries and there is a serious question whether that act violates treaties that the US has signed, including the Geneva Conventions. The United Nations has a working Group on the use of mercenaries within its Human Rights Council. That group believes that Trump’s pardons are a violation of US legal obligations and issued the following statement:

“‘Pardoning the Blackwater contractors is an affront to justice and to the victims of the Nisour Square massacre and their families,’ said Jelena Aparac, Chair-Rapporteur of the Working Group on the use of mercenaries.

“’The Geneva Conventions oblige States to hold war criminals accountable for their crimes, even when they act as private security contractors. These pardons violate US obligations under international law and more broadly undermine humanitarian law and human rights at a global level.

“’Ensuring accountability for such crimes is fundamental to humanity and to the community of nations,’ she said. ‘Pardons, amnesties, or any other forms of exculpation for war crimes open doors to future abuses when States contract private military and security companies for inherent state functions.’

“The Working Group is extremely concerned that by permitting private security contractors to operate with impunity in armed conflicts, States will be encouraged to circumvent their obligations under humanitarian law by increasingly outsourcing core military operations to the private sector.”

Chris Walker writes in Truthout and raises an important question: do the pardons violate the Geneva Conventions and are therefore not legally legitimate? The Constitution gives the US President the right to issue pardons and places no restrictions on that right.

“Article II, Section 2, Clause 1:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

But the US Constitution also considers treaties to be the “supreme law of the land”. Article VI, paragraph 2 of the Constitution reads: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The people who wrote the US Constitution never anticipated a time when international treaties would deal with war crimes but it seems to me that Trump’s pardons are a clear violation of the Geneva Conventions. Thus, a case could be made that the pardons of the war criminals is not legitimate or legal. It would be interesting to see how the Supreme Court would rule on this case although I have no doubt that it would find some way to rule that the Geneva Convention should not be considered “supreme law” in this case.

Ali Kinani, youngest victim of the Nisour Massacre

Posted December 30, 2020 by vferraro1971 in World Politics

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