There is much debate over whether Donald Trump’s decision to order a drone strike on Qasem Soleimani, the commander of a crack unit of the Iranian Revolutionary Guard, was necessary or legal. However, there is no debate that one of the responses Trump has in store in the event of retaliation from Tehran is illegal–a threat to attack a number of sites considered part of Iran’s cultural heritage. Now a former federal prosecutor wants any officials who oppose this move to state–publicly–that they won’t obey such an order.
Trump detonated this bombshell via his usual venue–one of his patented weekend tweetstorms.
Just in case he didn’t get the point across, he expressed a similar sentiment on Facebook.
The suggestion that Trump was threatening attacks on sites “important to Iran & the Iranian culture” raised alarm among a number of international law experts. Human Rights Watch, for instance, stated in no uncertain terms that if Trump were to make good on this threat, he would be committing a war crime. Attacks on sites and objects that are of “great importance to a people’s cultural heritage” are banned by Protocol I of the Geneva Convention, as well as the 1954 Hague Convention.
While the United States has not ratified Protocol I, it has ratified the Hague Convention. Much of the substance of both is incorporated in the 2016 U. S. Law of War Manual. It is beyond dispute that these provisions are part of customary international law–the accepted standard of behavior for civilized nations.
That’s probably why, according to CNN’s Jim Scuitto, there is “widespread opposition” within the White House and Pentagon to any talk about attacking Iranian cultural sites. When Joyce Vance, the U. S. Attorney for the Northern District of Alabama during almost all of the Obama administration, saw this, she called for those officials to put their money where their mouths are and publicly state they won’t obey such an order.
If anyone in the West Wing or Pentagon were to publicly tell Trump they would not obey such an order, it would almost guarantee a 280-character tirade. But such refusal would be on solid legal ground. It was amply established at Nuremberg that it is not possible to obey an order when you know that it’s illegal.
Harvard Law professor and constitutional scholar Laurence Tribe was one of many on legal Twitter to back Vance’s call.
Tribe also pointed out that anyone who refuses to obey such an order would actually be obeying U. S. law.
Specifically, Article 27 of the Hague Convention of 1907, which requires attackers to spare historical monuments.
By Monday afternoon, the furor had progressed to the point that Defense Secretary Mark Esper was forced to publicly state that American forces would “follow the laws of armed conflict,” which forbid attacks on cultural sites. But that’s not exactly comforting. For one, it comes just 24 hours after Secretary of State Mike Pompeo defended the original tweets on CNN’s “State of the Union.”
For another, it says a lot that the leader of a civilized nation would even think this is a good idea. What Trump was proposing would have put us in the same company as the likes of the Taliban and ISIS, who destroyed a number of cultural treasures located within their then-bailiwicks. It would also have put us in the same company with the Nazis, who looted thousands of national treasures while steamrolling through Europe.
Given the circumstances, those who would be charged with passing down such an order through the chain of command, as well as those charged with actually carrying out, must state publicly they will not obey it. In a normal administration, this step wouldn’t be necessary. But it has been amply established that this is far from a normal administration.
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