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President Trump recently pardoned Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard, four Blackwater mercenaries convicted in 2014 of killing civilians in Iraq back in 2007.

The United States is a party to some of the Geneva Conventions. A UN Working Group on the use of mercenaries spokeswoman said that "these pardons violate US obligations under international law".

Is that correct? Did Trump violate binding obligations of the U.S. government under the Geneva Conventions (the part the U.S. is a party of) to prosecute war crimes with that pardon?

This question has two parts:

  1. Do the Geneva Conventions the U.S. is party to establish an obligation?
  2. Does the pardon legally violate these obligations?
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  • The fact that these persons haven't been prosecuted in the last 13 years by the US government may be a matter of 'International law' (violation of obligations). The pardon of peaple that haven't been prosecuted/charged only prevents future prosecution and would therefore probably be seen as a matter of the local jurasdiction to resolve. Jan 2 at 11:15
  • Assuming the previous comment is correct (matter of the local jurasdiction to resolve) the interesting question would be how this would be done. Supreme court ruling that would invalidate the pardon because it prevents the fullfillment of international treaty obligations? Jan 2 at 11:32
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    @MarkJohnson The four I had in mind had been in prison since 2014. Jan 2 at 11:55
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    If the following is the original text: war criminals accountable for their crimes, I would think that prosecution, conviction and serving of 5 years would fullfill the 'accountablity' condition. Unless the treaty explicitly states that pardons are not permitted or that all sentences must be served in full, I don't see how such a pardon would be considered a violation. The exact text of the relevent portion of the convention would be needed. Your source doesn't seem to quote that directly (neither as text or article number). Jan 2 at 12:20
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There are a number of complexities that come together that make the claim that President Trump violated obligations under the Geneva Convention difficult to justify.

By definition, the Blackwater employees were not mercenaries according to the Geneva Convention (United Nations Mercenary Convention).

Among other things, the Geneva Convention requires that a mercenary

is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict

The Blackwater employees would have been considered civilians according to the Geneva Convention.

Although civilians can be considered combatants according to the Geneva Convention in International Armed Conflict, by the time of this incident in 2007 the situation in Iraq was no longer considered International Armed Conflict and it's questionable if the Geneva Convention applied. (The status of the conflict changed with the handover of sovereignty on June 28, 2004.)

The incident that occurred, often called the Nisour Square massacre, was related to Blackwater employees who were guarding a convoy of U.S. State Department employees. In essence, the Blackwater employees were acting as private security guards, not as active participants in armed conflict. As civilians, the employees could have been charged under Iraqi law or U.S. law for the actions they took that day. However, under the Coalition Provisional Authority, U.S. contractors were not subject to Iraqi legal jurisdiction without the permission of the U.S.

From a CRS Report for Congress titled Private Security Contractors in Iraq: Background, Legal Status, and Other Issues:

Under CPA Order Number 17, as revised June 27, 2004, contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts...

This left U.S. law, specifically the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), as a means to prosecute the Blackwater employees for any potential criminal acts and it is under this law the Blackwater employees were ultimately charged and convicted. MEJA

allowed persons who are "employed by or accompanying the armed forces" overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act of 2000 for any offense that would be punishable by imprisonment for more than one year if committed within the special maritime and territorial jurisdiction of the United States.

The Blackwater employees were not charged for "war crimes" under the Geneva Convention but for manslaughter, attempted manslaughter and a weapons violation.

Now to the question of President Trump's pardon legally violating the obligations of the Geneva Convention.

Assuming that the Geneva Convention applied to the Blackwater employees and their actions at Nisour Square, from a U.S. perspective a treaty cannot alter the President's constitutional powers.

The second article of the Constitution of the United States, in Section 2, states:

...he shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The law upon which the Blackwater employees were convicted was U.S. law; an offense against the United States and, therefore, a pardon for a conviction under this law is within the President's constitutionally granted powers.

In Reid v. Covert, the U.S. Supreme Court made it clear that treaties cannot alter constitutional powers:

It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights -- let alone alien to our entire constitutional history and tradition -- to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.

The pardon issued by President Trump was legal from a U.S. law perspective. As such, it represents an official action of the United States. This would leave it to the United Nations to determine if the U.S. was in violation of any treaty. Given the difficulty in establishing that the Geneva Convention even applied to the actions of the Blackwater employees it seems a stretch to think that the U.S. would be found in violation.

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  • I suppose that a government can act legally according to its national laws but still violate international law. For example the U.S. Commander in Chief could declare a war (he has an almost unrestricted authority to do so) which violates international law. (Whether that violation will be formally stated, let alone prosecuted, is a separate question.) Jan 6 at 22:25
  • @Peter-ReinstateMonica - I kind of allude to this in my final paragraph. The difficulty I had here was the ease with which the UN working group on the use of mercenaries ignores the legal definition of the term. It's difficult for me to see how the Geneva Convention, or any other international law, even applies to this situation given the rules under which everyone was operating. Were it not for the CPA or if the U.S. had given permission then the employees could have been charged in Iraq. The U.S. based charges faced tremendous process difficulties and required multiple attempts.
    – Dave D
    Jan 6 at 22:37
  • I was referring to your discussion along the lines " treaties cannot alter constitutional powers". Since international law can be broken by entirely constitutional actions the discussion is not directly relevant to the question -- I don't doubt that it was entirely in the president's constitutional authority to pardon the Blackwater guards. I was -- independently of that -- wondering whether it violated international law. I suppose both is possible concurrently, as much as we hate juridical inconsistencies. Jan 6 at 23:16

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