Difficulties in Prosecuting Islamic State Members Under International Law

Since its emergence in 2013, The Islamic State has used increasingly violent tactics in an attempt to establish a worldwide caliphate.[i] The Islamic State is accused of committing crimes of unspeakable cruelty including mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children, and the persecution of ethnic and religious minorities.[ii] On March 13th, 2015, the Office of the United Nations High Commissioner for Human Rights published a damning report depicting purported abuses committed by members of the Islamic State including crimes against humanity, war crimes against the civilian population, and genocide.[iii] Amnesty International reports that the Islamic State has carried out ethnic and religious cleansing “on a historic scale”, systematically targeting non-Arab and non-Sunni Muslim communities, killing or abducting thousands, and displacing hundreds of thousands.[iv] On March 14th, 2016, Secretary of State John Kerry announced that the United States government determined the crimes committed by the Islamic State against Yazidis, Christians, and Shiite Muslims in Iraq and Syria amounted to genocide.[v]

Although the decision to classify the Islamic State’s actions as genocide is significant, it will be difficult for the international community to prosecute the leaders, especially while the conflict is on-going. While it may be possible to indict members of the Islamic State, because the conflict is on-going and because so many members of the organization reside in territories controlled by the Islamic State, prosecution is severely frustrated due to an inability to locate or capture leaders. If a leader is captured, the international community has three options in prosecuting Islamic State members for international crimes including: prosecuting criminals in the domestic State courts, before and ad hoc tribunal, or before the International Criminal Court.[vi]

States whose citizens who are members of the Islamic State have the option to investigate their own citizens to determine if they are responsible for committing crimes that amount to genocide. Under this option States may prosecute their own citizens for assisting terrorist efforts or committing terrorist acts. Currently it is unlikely that a majority of members of the Islamic State who are citizens of Iraq or Syria will be prosecuted because of the on-going conflict. Many members reside in areas under complete control of the Islamic State, making even basic judicial functions, such as execution of warrants, impossible. Because high-ranking officials of the Islamic State are often in hiding, their capture and prosecution is highly unlikely. In addition, some States have long-arm statutes which allow them to prosecute alien terrorists who have engaged in or provided support for a foreign terrorist organization.[vii] The United States, France, and Germany are all able to prosecute members of the Islamic State under their own domestic laws if they are captured.[viii]

The United Nations Security Council can establish an ad hoc tribunal to prosecute Islamic State members. The Security Council has created two tribunals in the past, the first to prosecute criminal violations during the genocide in Rwanda and the second to prosecute criminal violations in Yugoslavia.[ix] Because both Iraq and Syria are members of the United Nations, both States would be required to cooperate and abide by the decision of the tribunal.[x]

There have been increasing calls for the International Criminal Court (ICC) to prosecute Islamic State leaders.[xi] The ICC prosecutor, Fatou Bensouda, addressed the issue and stated while the Islamic State has committed atrocious crimes, her jurisdiction is too narrow launch a prosecution.[xii] Article Thirteen of the Rome Statute, permits the International Criminal Court (ICC) to exercise jurisdiction where:

(1) A State Party refers the situation to the Court pursuant to Article 14;

(2) The UN Security Council refers the situation to the Court under Chapter VII of the UN Charter; or

(3) The Prosecutor opens an invest1igation proprio motu under Article 15 on the basis of information on crimes within the jurisdiction of the Court.[xiii]

Because Iraq and Syria are not parties to the Rome Statute, the ICC can only exercise jurisdiction over its nationals if the Security Council refers the situation to it. [xiv] Because there are members of the Islamic States who are citizens of States which are party to the Rome Statute, it would be possible for the ICC to prosecute those members.[xv] The ICC has reviewed the nationalities of the highest ranking officials and as determined that they are primarily citizens of Iraq and Syria, therefore the ICC has not chosen to prosecute those mid-level members as it conflicts with the Prosecutor’s policy to indict those high-ranking leaders who are most culpable.[xvi] The Security Council does have the ability to refer the situation to the ICC, although this option is hindered by the requirement that the referral be unanimous among permanent members of the Security Council. The United States may be wary of permitting and ICC investigation which would scrutinize its own military operation in the area. [xvii]

While options exist for the international community in prosecuting Islamic State leaders, the possibilities are severely limited by an inability to locate and capture Islamic State members. Until the situations in Iraq and Syria have stabilized and the militant branch of the Islamic State is defeated, it is highly unlikely that the international community will be able to prosecute the majority of Islamic State leaders. If the Islamic State folds into the legitimate governments of Iraq or Syria, it is unlikely that the international community will be able to force either State to prosecute it’s own citizens, or to comply with international prosecution.

 

 

 

[i] Tim Lister, What does ISIS rally want?, CNN (Dec. 11th 2015), http://www.cnn.com/2015/12/11/middleeast/isis-syria-iraq-caliphate.

[ii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[iii] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7. (citing UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups, U.N. Doc. A/HRC/28/18, at 5–14 (Mar. 13, 2015)).

[iv] Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of Minorities in Northing Iraq, Amnesty International, (2014), file:///C:/Users/Sarah/Downloads/mde140112014en.pdf.

[v] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[vi] Id.

[vii] 18 U.S.C. § 2339A, !8 U.S.C. § 2339B.

[viii] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[ix] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[x] Id.

[xi] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[xii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xiii] Rome Statute of the International Criminal Court, art. 13, 2187 U.N.T.S. (Jul. 17 1998).

[xiv] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7.

[xv] Id.

[xvi] Id., see, Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xvii] Id. at xiv.

Loudspeakers: The Winning Strategy Against North Korea? Part II

Beginning of this year, South Korea and North Korea began shouting at each other again. It was just last August when the escalated tension between two divided nations came to a halt. Then on January 6, North Korea conducted an underground nuclear test at Punggye-ri Nuclear Test Site, causing tension between the two Koreas. The United States Geological Service reported a 5.1 magnitude earthquake from the location[1]; China Earthquake Networks Center described the seismic activity a “suspected explosion.”[2] As the investigation of the test began, South Korea began blasting loudspeakers over the border again.

What is Broadcasted Over the Loudspeakers?

Propaganda has been a useful weapon to South Korea since the Korean War. North Korea is a nation where its survival is based on isolation. Information is closely monitored, and its people live in complete isolation from the world. The Juche ideology, the cornerstone of party works and government operations, emphasizes a Korea-centered revolution. The three core tenets are political independence, economic self-sustenance, and self-reliance in defense. North Korean government controls almost every aspect of its people, and this control is use to perpetuate a cult of personality surrounding Kim Il-sung and Kim Jong-il. Since its people does not have any idea of the world outside of North Korea, much of the broadcast over the loudspeakers are world news, weather, and K-pop songs, mostly intended to demoralize North Korean soldiers along the border. World news and weather is broadcasted as a strategy to gain trust of the North Koreans at the border and foster mistrust in its own government. Weather, for example, is broadcasted giving warnings of rain or snow. North Koreans who hear this broadcast soon find out the weather broadcast to be true and respond accordingly, such as carrying umbrella when they go out or collecting and taking their laundry inside their home. South Korean pop and drama are broadcasted due to its popularity in North Korea, especially because North Korea pretty much has no pop culture and to show them that the world has modernized. Moreover, North Koreans are prohibited from listening to K-pop, and are allowed to listen only to government-controlled radio stations or TV channels. Despite the restriction by the government, South Korean pop culture has crossed into North Korea. Some defectors say that South Korean music is popular in their country. [3]

How long is the broadcast and how far does the sound travel? According to South Korean military spokesperson, there were two to six hours of broadcast daily, day and night, without any set schedule. The distance of the broadcasts varies depending on the time of the day and the weather. During the day, the broadcast carries for over six miles, and on maximum power at night, it can reach as far as 15 miles. This is far enough to reach Kaesong, one of the largest cities in North Korea,

Does it work?

While it is difficult to know how much influence the broadcast has in North Korea, it seems to be an effective propaganda tool. Even though the broadcast is heard up to 15 miles from the border, it is possible that the message could spread via cell phone.[4] Ju Seung-hyeon, who served in a North Korean propaganda broadcast station on the border before defecting in the early 2000s, told a South Korean newspaper that Seoul’s messages influenced his opinions over a prolonged period. He initially believed that the broadcasts were lies. However, in a span of two years, he believed most of it.[5] Jang Jin-sung, a former North Korean propaganda official and who defected North Korea in 2004, said that the broadcast are powerful because they undermine the North Korean government and “it’s akin to a peaceful version of the nuclear bomb.”[6]

The use of loudspeakers caused exchange of artilleries between the two countries last August, before South Korea agreed to halt them. Moreover, North Korean delegates repeatedly demanded the halt of the broadcast, citing concerns that it was agitating their solders on the border. North Korea’s violent retaliation and South Korea’s loudspeakers may be an indication that it is a powerful weapon against North Korea, or at least it is a powerful bargaining chip to use in negotiations.

[1] Greg Botelho, U.N. Poised to Act against North Korea After Latest Nuclear Test, CNN Jan. 7, 2016,  http://www.cnn.com/2016/01/06/asia/north-korea-hydrogen-bomb-test/index.html.

[2] North Korea Claims Successful Hydrogen Bomb Test After Quake, Channel NewsAsia Jan, 6, 2016, http://www.channelnewsasia.com/news/asiapacific/man-made-quake-detected/2402490.html.

[3] Ask a North Korean, Do You Love K-pop, Guardian Newspaper, June 18, 2015, http://www.theguardian.com/world/2015/jun/18/k-pop-south-korea-ask-a-north-korean.

[4] Alexandre Dor, North Korea’s Achilles Heel: Propaganda Broadcasts, The Diplomat, Sept. 12, 2015, http://thediplomat.com/2015/09/north-koreas-achilles-heel-propaganda-broadcasts/.

[5] Alastair Gale, High-Wattage Speakers Play Role In Korean Deal, Wall St. J., Aug. 28, 2016,  http://www.wsj.com/articles/high-wattage-speakers-play-role-in-korean-deal-1440758282.

[6] Id.

Stopping Terrorism at the Border

Are the U.S. borders the last stop before both foreigners and citizens are entitled to the constitutional rights generally afforded to all within the United States? Terrorists have long been recruiting Americans whose outward appearance matches the local population to make their war against the non-believers more effective and inconspicuous. A limit on search and seizure to the standard of reasonable suspicion allows these “typical Americans” to cross the U.S. land borders without any additional scrutiny; meanwhile, those who fit the terrorist stereotype are subject to interrogation. Perhaps security measures at a land border and other checkpoints should mimic those at the airport to prevent a lapse in judgment or a border guard from overlooking a subtle red flag.

Should only an act of suspicion trigger a search and seizure at the U.S./Mexico and U.S./Canada borders, or should border guards subject all travelers to the same kinds of security measures as those in an airport? Ahmed Ressam, commonly known as the Millennial Bomber, attempted to enter the U.S. from Canada via a ferry.[1] When Ressam reached Port Angeles, Washington, U.S. Customs and Border (CBP) officers performed a standard search of the vehicle he brought with him.[2] Officials found nothing during this search, but a border guard decided to give him additional scrutiny based on his body language and facial expressions.[3] A more thorough search of Ressam’s car then produced explosives hidden in the spare tire well.[4] Should we always wait for that act of suspicion to occur, and if not, then how thorough should a required search and seizure be? The routine search and seizure of Ressam’s car failed to yield results since CBP officers did not check the trunk’s spare tire well.[5] Without another agent’s shrewd assessment of Ressam’s body language, perhaps Ressam would have been able to successfully bomb the Los Angeles Airport.[6]

The fourth amendment protects Americans from unlawful search and seizure; however at the border, should national security rely solely on CBP officers to determine who receives a more stringent search?[7] Perhaps stricter searches will lead to capturing others like Ressam and remove the element of human judgment while simultaneously treating all travelers equally. In U.S. v. Ramsey, the Supreme Court held that border searches are considered reasonable due to the fact that the person or item of interest entering the U.S. is from the outside.[8] As a result, the border represents the best and final opportunity for CBP officers to secure our borders before domestic law enforcement has to allocate limited resources in an effort to protect American citizens from those who breezed across the border with the sole intent to do substantial harm to the U.S. and its people.

Lastly, racial profiling and other stereotypes will not be a point of contention if everyone is required to be thoroughly searched. In 2004, CBP officers detained five American Muslims returning from an Islamic revival conference in Canada.[9] Although they did not have criminal records, they were questioned, patted-down, fingerprinted, and photographed by CBP officers over the course of several hours.[10] The court held that in Tabbaa v. Chertoff, searches and detentions constituted the least restrictive means to protect the nation from terrorism.[11] Given the recent surge of terrorist activities in Europe, the court’s opinion has merit. Despite the inconvenience of a detailed search, the time lost is a small price to pay for the safety of the country.

 

 

[1] United States v. Ressam, 474 F.3d 597 (9th Cir. 2007).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] United States v. Ressam, 474 F.3d 597, 600 (9th Cir. 2007).

[7] U.S. Const. amend. IV.

[8] United States v. Ramsey, 431 U.S. 606, 619 (1977).

[9] Tabbaa v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007).

[10] Id.

[11] Id.

Cell Site Simulator Technology Violating Fourth Amendment Rights

In the age of modern technology, the balance between individuals’ privacy rights and national security have been heavily weighed. Advances in technology have enabled government agencies to obtain cellular information without appropriate judicial review and without the individual’s knowledge. Due to public outcry and complaints made by the American Civil Liberties Union, the Federal Government felt that appropriate action should be taken to minimize the use of this rare technology and has restricted the use of cell-site simulator technology without a warrant; however, state and local governments have not been instructed to do so and many have failed to address the issue at all. 1

The Fourth Amendment protects persons’ personal privacy from government intrusion.2 When intrusion leads to the obtainment of intimate knowledge, it will be deemed unreasonable unless the need for public interest is outweighed by the privacy interest of the individual.3 For a search to be reasonable, officers generally will need to acquire a search warrant signed by a magistrate.4 If information is obtained without a search warrant and without an exception to the search warrant clause, it will be deemed inadmissible at trial.5

The use of technology, not acquirable by an ordinary person, dates back to the Supreme Court’s decision, Kyllo v. United States.6 The Supreme Court held that the obtainment of information through sense-enhancing technology into the interior of the home, that could not have been obtained without a physical intrusion, is a search.7 The Supreme Court has also determined that the monitoring of a beeper device in a private residence, not in a location open to visual surveillance, is a violation of the Fourth Amendment.8

More recently, with the storage capacity of modern cellular devices, the Supreme Court has instructed that the Government must obtain a search warrant before conducting a search of the content.9 This is because of the vast amount of intimate information such as emails, medical information, photographs and credit card information.10 The protection is placed on what a person preserves as private and in the modern era, the contents of a cellphone will be preserved as private to most individuals.

It has recently come to light that government agencies, local and federal, have been using cell-site simulator technology to obtain physical locations of suspects. A cell-site simulator, known as Stingray, acts as a substitute cell tower and awaits signals from particular cellular phones.11 Based on the strength of the signal, a general location can be determined.12 Once multiple signals and locations have been obtained, a precise location is then determined.13 The location is so precise that it can pinpoint the cellular phone to a particular room in a large building. Based on precedent, Courts are likely to hold that the use of Stingray is a search and inadmissible without obtaining a warrant. The ability to obtain tracking information from the device is in violation of the decision in Riley v. California, where the Court held that a cellular phone may  not be accessed and searched without first obtaining a warrant or consent.14 This technology is also rare technology that is not available to the general public and would physically intrude into an individual’s home.15

The Department of Justice has recently drafted and adopted a policy instructing government agencies to obtain appropriate approval before utilizing cell site simulators.16 This was in light of claims being made by organizations like the American Civil Liberties Union that the government was failing to inform the courts that they have access to this information and instead reported using criminal informants to obtain the information.17 While this was determined to be used more often local police departments, this technology allowed the ability for the Government to violate individual’s privacy rights.

After the Department of Justice drafted a policy requiring investigators to obtain warrants before using cell site simulators, state and local departments have not been forced to do the same. There are even loopholes to this policy. It merely applies to criminal investigations NOT national security or border cases. This means, that the Government has the ability to use Stingray when “monitoring” the border for national security. Has the Government failed to protect its citizens again? After the excessive collection of citizen’s information found under the United States Patriot Act, shouldn’t the Government protect individuals’ privacy rights at a higher level? Also, does this new policy prohibit the use of Stingray on suspected terrorists without a warrant? To many questions are still left unanswered after the drafting of this policy that need to be answered.

  1. Neema Singh Guliana, ACLU, The Four Biggest Problems With DHS’s New Stingray Policy, Oct. 22, 2015, available at https://www.aclu.org/blog/free-future/four-biggest-problems-dhss-new-stingray-policy.
  2. U.S. Const. Amend. IV.
  3. Kyllo v. United States, 533 U.S. 27, 36 (2001).
  4. U.S. Const. Amend. IV.
  5. Id.
  6. Kyllo, 533 U.S. 27.
  7. Id. at 40.
  8. United States v. Karo, 710 F.2d 1433, 1439 (1983).
  9. Riley v. California 134 S. Ct. 2473, 2494 (2014).
  10. Id.
  11. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  12. Id.
  13. Id.
  14. Riley, 134 S. Ct. 2473, 2494.
  15. Kyllo, 533 U.S. 27.
  16. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  17. Jeremy Schahill & Margot Williams, The Intercept, Stingrays: A Secret Catalogue of Government Gear for Spying on Your Cell Phone, Dec. 17, 2015,  available at https://theintercept.com/2015/12/17/a-secret-catalogue-of-government-gear-for-spying-on-your-cellphone/.

Donald Trump, Illegal Orders, and the Law of Armed Conflict

During the course of the current Republican Primary campaign, Donald Trump has made a number of jarring comments regarding American armed forces and the actions he would take as president. At a rally in Columbus, Ohio, Trump said that he approves not only of waterboarding, but also that he would bring back “a hell of a lot worse than waterboarding.” Trump elaborated on his belief that waterboarding is an effective means of extracting information from terrorists, saying, “only a stupid person would say it doesn’t work,” and that even if waterboarding were not effective, “[terrorists] deserve it anyway for what they’re doing.” Trump has also waxed nostalgic for the days “when we were strong” and Sergeant Bowe Bergdahl, who is being tried for desertion and misbehavior before the enemy, would have been summarily executed. Decrying the politically correct nature of the present conflict with ISIS on Fox News, Trump said, “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

In response to Trump’s comments about waterboarding and killing the families of terrorists, General Michael Hayden, former Director of both the NSA and CIA, said that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” Gen. Hayden, in an interview with Bill Maher, said that if members of the American armed forces were ordered to kill the families of terrorists, they would refuse to act. Gen. Hayden explained that members of the military are not required to obey an unlawful order and that Trump’s hypothetical order would be a violation of international laws of armed conflict. When asked about Gen. Hayden’s statement at a Republican Debate, Trump responded, “They’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.”

Under military law, a soldier is generally subject to criminal sanctions for failing to follow a superior’s lawful order. [1] The only defense available to members of the armed forces for failing to follow an order is that “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”[2] More specifically, the standard is that “manifestly illegal orders must not be obeyed.”[3] Determining whether an order is manifestly illegal or not can be difficult because “[m]embers of all armed services have a right to presume the lawfulness of orders they receive.”[4]

The presumption of legality “helps maintain and promote good order and discipline . . . . Since subordinates do not risk incurring liability in most situations, the presumption effectively compensates for the subordinate’s lack of information and eliminates the possibility of hesitation and delay in carrying out orders.”[5] Thus, a soldier’s duty to disobey applies only to “a positive act that constitutes a crime [that is] so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their lawfulness.”[6] Under this standard, “a person’s conscience, religious beliefs, moral judgment, or personal philosophy” do not constitute manifest illegality “to justify or excuse the disobedience of an otherwise lawful order.”[7]

The relevant standard in determining whether an order is manifestly illegal is “would a reasonable person recognize the wrongfulness of the act or order, even in light of a soldier’s duty to obey?”[8] Thus, in cases where the legality of an order is uncertain, “the order must be presumed lawful and it must be obeyed.”[9]

If a U.S. service member believes that an order is manifestly illegal or beyond the authority of the superior issuing the command, the order should not be obeyed.[10] The service member should then “ask for clarification of the order to ensure it was correctly understood, or correctly heard, or was not merely misspoken by the senior person.”[11] Should the superior issuing the order persist, a subordinate must then report the incident to a higher authority.[12]

Under this analysis, an order from President Trump to murder the civilian family members of a suspected terrorist would most certainly qualify as a manifestly illegal order. In his interview with Gen. Hayden, Bill Maher remarked that the military would commit a coup d’etat by refusing to follow an illegal order from Trump. However, “receipt of a manifestly illegal order is not justification for a subordinate to attempt to relieve the superior of duty or, even more unwise, to take physical action, such as resorting to armed force, to stop a superior’s unlawful plan.”[13]

In an interview on CBS, Trump said that, “We have an enemy that doesn’t play by the laws. You could say laws, and they’re laughing. They’re laughing at us right now. I would like to strengthen the laws so that we can better compete.” Trump went on to say, “I happen to think that when you’re fighting an enemy that chops off heads, I happen to think that we should use something that’s stronger than we have right now.”

Trump’s concerns with fighting an enemy that eschews the laws of armed conflict were presaged by former Secretary of Defense Donald Rumsfeld. “There’s something about the body politic in the United States that they can accept the enemy killing innocent men, women and children and cutting off people’s heads, but have zero tolerance for some soldier who does something he shouldn’t do.”[14] However, the laws of armed conflict (LOAC) serve a critical purpose. “We obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”[15] To view weakening the standards of professional conduct of the battlefield as “strengthening” the laws is Orwellian, at best. Engaging groups such as ISIS in a competition of cruelty is beneath the dignity of the United States. The duty of members of the armed forces to disobey manifestly illegal orders serves to protect the honor of the profession of arms as well as our republic.

 

 

 

 

 

 

 

[1] Captain Robert E. Murdough, I won’t participate in an illegal war: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law. Jul. 2010, at 4, 5.

[2] See id. (quoting Manual for Courts Martial, United States, R.C.M. 916(d) (2008)).

[3] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 359 (2010).

[4] Id.

[5] James B. Insco, Defense of Superior Orders Before Military Commissions, 13 Duke J. Comp. & Int’l L. 389, 393 (2003).

[6] Solis, supra note 3, at 359 n. 111 (citing United States v. Huet-Vaughn, 43 M.J. 105, 107 (1995)).

[7] Id. at 359.

[8] Id.

[9] Id. at 360.

[10] Id.

[11] Id. at 361

[12] Solis, supra note 3, at 361.

[13] Id.

[14] Id. at 11 n. 49 (citing Bob Woodward, State of Denial 486 (2006)).

[15] Id. at 9-10.