Do the Blackwater Pardons Violate International Law?

Omar Chatriwala of Al Jazeera English, via Wikimedia Commons

Paige Richardson, Associate Member, University of Cincinnati Law Review

I. Introduction

On September 16, 2007, a car bomb exploded in the vicinity of a U.S. diplomat working in Baghdad, Iraq.[1] A security team from defense contractor Blackwater Worldwide evacuated the diplomat to a secure location.[2] During the operation, some of the Blackwater guards fired shots in Nisur Square, an area through which the diplomat never passed.[3] Although the guards later claimed that they did not fire the first shot, the gunfire in Nisur Square ultimately ended with fourteen Iraqi civilians dead and twenty more wounded.[4] Among the dead were ten men, two women, and two children, ages nine and eleven.[5]

After a lengthy prosecution process, four of the guards—Slatten, Slough, Liberty, and Heard—were found guilty of first-degree murder and voluntary manslaughter for their roles in the deaths.[6] Slatten was sentenced to life in prison, while Slough, Liberty, and Heard each received thirty-year sentences, which were later reduced.[7] But on December 22, 2020, President Trump pardoned all four guards.[8]

The pardons have drawn swift condemnation. Among those to speak out against the pardons are the victims of the attack,[9] the lead FBI investigator on the case,[10] Gen. David Petraeus and other top American officials in charge of U.S. policy in Iraq at the time of the shootings,[11] and United Nations experts.[12] Jelena Aparac, the Chair-Rapporteur of the U.N.’s Working Group on the use of mercenaries, called the pardons “an affront to justice.”[13] Ms. Aparac also claimed the “pardons violate US obligations under international law and more broadly undermine humanitarian law and human rights at a global level.”[14] Several U.N. experts have called on parties to the Geneva Conventions to condemn the pardons.[15] This article will examine whether the Blackwater pardons have violated U.S. obligations under international law.

II. International Law

International law has two primary sources: treaties and Customary International Law.[16] Treaties are binding agreements between two or more nations.[17] For a treaty to be binding, it must be signed by a head of state or appropriate dignitary and ratified through the proper domestic procedures.[18] In the U.S., treaties are ratified through a two-thirds vote in the Senate.[19] According to the 1969 Vienna Convention on the Law of Treaties, when a treaty is signed but not ratified, the state is obligated to “refrain from acts which would defeat the object and purpose of a treaty . . . until it shall have made its intention clear not to become a party to the treaty.”[20]

Under Article VI of the U.S. Constitution, treaties are considered “the supreme Law of the Land,”[21] so long as they have been properly implemented.[22] In most cases, the U.S. does not consider treaties to be self-executing.[23] This means that the treaty obligations only become judicially enforceable upon the passing of national legislation.[24] When it is unclear whether a treaty is non-self-executing or self-executing, courts decide.[25] If there is no national legislation and the treaty is non-self-executing, there is no national enforcement mechanism for treaty obligations in the U.S.[26]

International law is also significantly based on Customary International Law, or “CIL.”[27] CIL is a body of universal norms, standards, and practices that are accepted as international standards.[28] These norms are assessed through state practice and opinio juris, a sense of legal obligation, to determine their universality.[29] CIL is binding upon all states in the absence of repeated objection or contrary national legislation.[30] U.S. courts have held that CIL does not apply in cases where contrary national legislation has been adopted; however, courts are bound to interpret U.S. statutes consistently with CIL wherever possible.[31]

Among the types of international law is International Humanitarian Law (IHL), which governs the initiation (jus ad bellum) and waging (jus in bello) of war.[32] Perhaps the most important sources of IHL are the 1949 Geneva Conventions and their Additional Protocols. The four Geneva Conventions govern the treatment of wounded[33] and shipwrecked[34] soldiers, prisoners of war,[35] and civilians[36] in times of armed conflict. The first additional Protocol further restricts the adverse treatment of the classes protected by the four Conventions and adds rules for the treatment of significant cultural objects.[37] The second Protocol more clearly defines the “humane treatment” that is to be given to those members of the protected classes under the Conventions.[38] Finally, the third Protocol adds to the list of emblems used to identify humanitarian and aid workers in conflict areas.[39] The United States has signed and ratified all four of the Conventions and Protocol III.[40] The United States has signed but not ratified Protocols I and II.[41]

Under the fourth Geneva Convention, “the willful killing”[42] of “persons taking no active part in the hostilities,”[43] including civilians and wounded, detained, or surrendered soldiers, constitutes a grave breach. Under each of the four Conventions, as well as CIL,[44] member states are obligated to search for, investigate, and prosecute or extradite persons who have allegedly breached any of the Geneva Conventions.[45]

III. Analysis

As explained above, the U.S. has signed and ratified each of the four Geneva Conventions.[46] Most U.S. Courts have found that the Geneva Conventions are non-self-executing and therefore do not create a judicially enforceable legal mechanism on their own.[47] However, the specific international obligations under consideration in the fourth Geneva Convention protecting citizens in times of war are supplemented by 18 U.S. Code § 2441 on war crimes, which states any conduct “defined as a grave breach” in any of the Geneva Conventions will be subject to prosecution in the U.S.[48] This means that even if the Geneva Conventions are non-self-executing treaties, Congress has implemented specific legislation enshrining the Convention in domestic law. The U.S. is therefore obligated to search for, investigate, and prosecute or extradite persons who have allegedly breached any of the Geneva Conventions.[49] The United States met this obligation by prosecuting four members of the Blackwater team.

Despite the required prosecution, the pardons certainly seem to undermine the purported purpose of the Geneva Convention and the U.S. War Crimes statute—holding those found guilty of committing war crimes accountable. In the past, a number of nations have also attempted to pardon or grant amnesty to war criminals.[50] In most cases, these pardons or grants of asylum have been deemed unconstitutional by their respective domestic courts or have incited significant international backlash resulting in revocation.[51] Despite this, there is no black letter law forbidding the granting of pardons to war criminals. In fact, Additional Protocol II states that broad amnesty should be applied following the cessation of armed conflict.[52] Since the ratification of Additional Protocol II, several judicial decisions and UN Security Council Resolutions have attempted to synthesize Geneva Convention IV with Additional Protocol II by creating an amnesty exception for war criminals.[53] According to sources such as the International Committee of the Red Cross, there is enough state practice and opinio juris on the matter of war crimes amnesties exceptions for it to be binding under CIL.[54]

CIL is only binding in the U.S. in absence of contrary legislation, though that legislation should be interpreted in line with CIL wherever possible.[55] Article II, Section 2, Clause 1 of the U.S. Constitution states: “[the President] shall have Power to grant Reprieves and Pardons for Offenses against the United States.”[56] This Executive power is practically limitless. Following the Civil War, the Supreme Court found that Congress could not change or limit the effects of a presidential pardon.[57] Later, when the Supreme Court again had the chance to limit presidential pardon powers, Chief Justice Taft wrote, “Our Constitution confers this discretion on the highest officer in the Nation in confidence that he will not abuse it.”[58] Recognizing the possibility of abuse, Chief Justice Taft continued,

“If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.”[59]

In other words, the pardon powers of the President are so broad that the power could be abused to the point of destroying the judicial system and the proper remedy would be impeachment, rather than limitations on Executive power.

The U.S. must meet its treaty obligations under the Geneva Conventions. These obligations are binding under IHL and CIL and are enshrined in domestic law under the U.S. War Crimes statute. However, international opinion as to the legitimacy of pardons or grants of amnesty for war crimes is binding only through CIL. CIL is binding on the U.S. except in cases where there is contrary legislation. Here, the President’s Constitutional grant of executive pardon powers is in contradiction of the CIL obligation to a pardon exception for war crimes. The U.S. is nevertheless obligated to interpret the contrary legislation—the pardon power—in congruence with CIL wherever possible. Because the Supreme Court has previously affirmed the unlimited scope of the President’s power to pardon any crime against the U.S., there is no way to reconcile the CIL pardon exception with the Constitutional grant to the President. Thus, the pardon power is superior law and the pardon exception for war crimes is not binding on the U.S.

Despite the non-binding nature of CIL in this case, there are other substantive legal arguments as to the unlawful nature of the Blackwater pardons. Some argue that the pardons themselves are war crimes under the law of command responsibility.[60] Others point out that the pardons subordinate U.S. military law and may implicate the President’s position as Commander in Chief.[61] However, these arguments also rely on obligations under military law, CIL, or treaties to supersede the Executive powers expressly granted by the Constitution and affirmed by the Supreme Court.

This does not preclude other international enforcement mechanisms. For example, Spanish courts have previously held that domestic grants of amnesty do not revoke Spanish universal jurisdiction over the prosecution of war crimes.[62] However, amnesty is granted prior to prosecution, so it is unclear in the case of pardons granted after prosecution if international courts apply any principle of double jeopardy. Additionally, extradition of the accused may not be feasible. The U.S. is not party to the International Criminal Court or the International Court of Justice. Further, the U.S. holds a permanent seat and veto rights on the UN Security Council. International enforcement of obligations that U.S. does not believe are binding upon it would be difficult, if not impossible.

Therefore, while the Blackwater pardons expressly undermine the purpose of the IHL, the Geneva Conventions, CIL, and the U.S.’s own War Crimes statute, there is likely no violation per the U.S. interpretation of international law.

IV. Conclusion

In conclusion, the Blackwater pardons undermine the purpose and object of the Geneva Conventions as well as the U.S. War Crimes statute. While the pardons may be inhumane and a gross invalidation of international law and human rights, they do not violate international law as interpreted by U.S. domestic courts. The U.S.’s unlimited Executive power to pardon crimes supersedes the obligation to restrict pardons for those convicted of war crimes. That obligation is therefore not binding on the U.S., demonstrating the striking tension between the purpose of the International Humanitarian Law and its often contrary implementation in the U.S.

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[1] U.S. v. Slough, 641 F.3d 544, 547 (C.A.D.C., 2011).

[2] Id.

[3] Id. at 548.

[4] Id.

[5] Dept. of Justice, U.S. Attorney’s office, Former Blackwater Employee Sentenced to Life Imprisonment for Murder in 2007 Shooting at Nisur Square in Iraq (2019) [hereinafter Dept. of Justice].

[6] Scott Neuman, Blackwater Guards Found Guilty in 2007 Shootings in Iraq, NPR (Oct. 22, 2014, 1:18 PM), https://www.npr.org/sections/thetwo-way/2014/10/22/358076714/blackwater-guards-found-guilty-in-2007-shootings-in-iraq.

[7] Dept. of Justice, supra note 5; Charlie Savage, Three Ex-Blackwater Guards Are Resentenced in Iraq War Massacre, NY Times (Sept. 5, 2019), https://www.nytimes.com/2019/09/05/us/politics/blackwater-guards-sentencing-iraq.html.

[8] Maggie Haberman and Michael S. Schmidt, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards, NY Times (Dec. 22, 2020), https://www.nytimes.com/2020/12/22/us/politics/trump-pardons.html.

[9] Laurel Wamsley, Shock and Dismay After Trump Pardons Blackwater Guards Who Killed 14 Iraqi Civilians, NPR (Dec. 23, 2020, 5:44 PM), https://www.npr.org/2020/12/23/949679837/shock-and-dismay-after-trump-pardons-blackwater-guards-who-killed-14-iraqi-civil.

[10] Martin Pengelly, Lead FBI investigator in Blackwater case likens Iraq Massacre to My Lai, The Guardian (Jan. 2, 2021), https://www.theguardian.com/us-news/2021/jan/02/blackwater-trump-pardons-john-m-patarini-fbi.

[11] John Bowden, UN says Trump Blackwater pardons violate international law, The Hill (Dec. 30, 2020, 9:51 AM), https://thehill.com/homenews/administration/532065-un-says-trump-blackwater-pardons-violate-international-law?rl=1.

[12] US pardons Blackwater guards: An ‘affront to justice’ – UN experts, UN News (Dec. 30, 2020), https://news.un.org/en/story/2020/12/1081152.

[13] Id.

[14] Id.

[15] Id.

[16] Statute of the International Court of Justice, art. 38, ¶1.

[17] See Alexander Orakhelashvili, Akehurst’s Modern Introduction to International Law, 251-75 (8th ed. 2019).

[18] Id.

[19] U.S. Const. art. II, § 2.

[20] United Nations Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, https://www.refworld.org/docid/3ae6b3a10.html.

[21] U.S. Const. art. VI, § 2.

[22] See Orakhelashvili, supra note 17.

[23] See M.C. v. Bianchi, 782 F. Supp. 2d 127 (E.D.Pa., 2011).

[24] Id.

[25] Id.

[26] Id.

[27] Statute of the International Court of Justice, art. 38, ¶1.

[28] See The Paquete Habana, 20 S.Ct. 290 (1900).

[29] Id.

[30] Id.

[31] Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804).

[32] See ICRC, What is International Humanitarian Law?, Advisory Service on International Humanitarian Law (2004), https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.

[33] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.

[34]Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85.

[35] Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[36] Geneva Convention Relative to the Protection of Civilian Persons in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

[37] Protocol Additions to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.

[38] Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

[39] Protocol III Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/615.

[40] Geneva Conventions and their Additional Protocols, Cornell Legal Information Institute, https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols#:~:text=The%20United%20States%20has%20signed,though%20it%20has%20signed%20them.

[41]Id.

[42] Geneva IV art. 147.

[43] Geneva IV art. 3(1)

[44] Customary IHL, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158#Fn_499E7213_00013.

[45] See Geneva I art. 49; Geneva II art. 50; Geneva III art. 129; Geneva IV art. 146.

[46] Geneva Conventions and their Additional Protocols, supra note 40.

[47] See Noriega v. Pastrana, 559 U.S. 917 (2010) (Thomas, J., dissenting) (arguing that writ of certiorari should have been granted so the Court could resolve questions of the right to private action left open by the decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)).

[48] 18 U.S.C. §2441(c)(1).

[49] See Geneva I art. 49; Geneva II art. 50; Geneva III art. 129; Geneva IV art. 146.

[50] See, e.g., Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 14/6/2005, “Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc.,” Fallos (2005-17-768) (Arg.); Masacre Las Hojas v. El Salvador, Case 10.287, Inter-American Commission on Human Rights (IACHR), 24 September 1992, available at: https://www.refworld.org/cases,IACHR,3ae6b69818.html [accessed 9 February 2021]; S.C. Res. 1315 (Aug. 14, 2000); Commission on Human Rights Res. 79 (April 25, 2002); U.N. Secretary-General, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, ¶¶ 22-24, U.N. Doc. S/2000/915; Rep. of the S.C., at ¶ 62, U.N. Doc. S/2020/366.

[51] Id.

[52] Additional Protocol II art. 6(5).

[53] See Rule 159. Amnesty, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule159.

[54] Id.

[55] Charming Betsy, 6 U.S. at 118.

[56] U.S. Const. art. II, § 2, cl. 1.

[57] U.S. v. Klein, 80 U.S. 128 (1872).

[58] Ex parte Grossman, 267 U.S. 87, 121 (1925).

[59] Id.

[60] Gabor Rona, Can a Pardon Be a War Crime?: When Pardons Themselves Violate the Laws of War, Just Security (Dec. 24, 2020), https://www.justsecurity.org/64288/can-a-pardon-be-a-war-crime-when-pardons-themselves-violate-the-laws-of-war/.

[61] Noor Zafar, Trump’s War Pardons Are Sabotaging the Military Justice System, ACLU (Dec. 13, 2019), https://www.aclu.org/news/national-security/trumps-war-pardons-are-sabotaging-the-military-justice-system/.

[62] See Practice relating to Rule 159. Amnesty: Spain, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_es_rule159.