Joyce Vance: What the Law of War Says about Trump's Threat to Commit Genocide

His words blatantly express a willingness to turn the U.S. into a rogue state like Iran and Russia, rejecting the fundamental legal restraints that protect innocent non-combatants like children.

By Joyce Vance /Civil Discourse

On Tuesday morning, in a social media post, the President of the United States signaled his intent to violate the rules of war, which prohibit targeting civilians. He didn’t speak of attacking military targets. Instead, he threatened to wipe out an entire people, an entire civilization. It “will die tonight,” Trump wrote.

As former Iraq War Commander, retired Major General Paul D. Eaton wrote later in the day, “Wiping out an entire civilization is the definition of genocide. Any order given to that effect must be refused by every service member up and down the chain — period.”

The Geneva Conventions, to which we are a signatory along with 196 other nation-states, form the basis for international humanitarian law, the goal of which is “to maintain some humanity in armed conflicts, saving lives and reducing suffering.”

That law is binding, and violations can be investigated and prosecuted as war crimes.

Trump breaking the law, even bragging about it, is nothing new. But this time, there are serious consequences, outside of his control, that he could come up against.

A reprieve, of sorts. On Tuesday afternoon, I flew home, spending several hours in the air with no Wi-Fi. Not even texts got through. Trump’s Iran deadline was approaching. And I realized that there were real reasons to fear that the world would be different by the time we landed. That this no-guardrails presidency could have taken us to an entirely predictable endpoint.

Instead, we got a reprieve of sorts. A ceasefire. (Albeit, as experts have noted, on terms favorable to Iran, which has demonstrated its ability to survive a joint attack by the U.S. and Israel and made clear its ability to use the Strait of Hormuz as a bargaining chip. Iran’s Islamic fundamentalist regime has not been toppled. The status of its enriched uranium is unclear.)

But really, how many more wake-up calls can the country, can Trump’s party ignore?

How many more people, in our own military, in countries we attack, American citizens protesting peacefully on our own streets, people abroad who rely on American programs that are suddenly withdrawn, will die? How much more of this do we have to tolerate so MAGA can continue to worship its idol, who rules from an altar built of greed?

The Founding Fathers created our divided branches, rule of law-based system of government, because they understood that men were not angels.

That’s why Donald Trump’s contempt for the rule of law is so alarming. Contempt for the rule of law is contempt for our way of life. Preserving the rule of law means we don’t have a king; it holds corruption at bay, and it forbids a president from running the country like it’s the mob.

And so, Trump’s distaste for it is a distaste for democracy itself, and that is something the country has never fully reckoned with. Trump’s party certainly hasn’t. At his core, he is anti-democratic.

Trump has never been afraid to express any of it, certainly not his belief that he is above the law. “When you’re a star, they let you do it,” he famously said in the Access Hollywood tape, and his wife explained it away as locker room talk. We have always known who he is because he does not pretend to be otherwise. “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters,” he told us.

A moment for choosing. No one should be surprised that the enfant terrible is threatening to take down an entire civilization.

The law is clear, but what is the law to Trump? It has never mattered.

He doesn’t care about targeting civilians or civilian infrastructure. He’s not concerned with the consequences; he’s promised them—the destruction of a civilization. It’s not new. It’s just an extension of what the Republican Party has let him get away with up until now, utter disregard for the law, as it applies to him.

To all the people who were willing to ignore Trump’s flaws for whatever reason—self interest, adjacency to power, a desire to be seen as tough guy— this is the moment to acknowledge that you were wrong and to try and make what amends you can.

It’s time to back away from the edge of the cliff that is the destruction of a civilian population. Really, it’s past time, but there is still some time left. Members of the military who are serving in harm’s way, at the whim of this petty little man, deserve it. They should not remain unprotected because Republicans in Congress can’t muster the grit to do their jobs.

It’s time to look in the mirror and decide whether we still like what we see. Can we live with this? Can we live with what our children and our grandchildren will think about us? That’s why so many of us have been working so hard to restore this democracy. Congress, which hasn’t done its job, needs to step up, and that largely means members of the president’s party.

Where the cowards of Congress? Members of the military, and especially leaders, take an oath to uphold the Constitution. Their oath requires that they not obey illegal orders. That was the whole point of the video six members of Congress made, reminding people serving in the military of their duty.

On Tuesday, Michigan Democratic Senator Elissa Slotkin warned that if Trump’s threat against Iran was carried out, it would “violate the law of armed conflict as laid out in the Geneva Conventions.” It’s wrong for Congress to abandon the military when it needs protection from a president who was on the verge of doing and ordering the unthinkable, and could easily go there again. Enough.

We are at war in Iran while Congress is out of session—and out of town.

The war started on February 28, 38 days ago. The War Powers Act gives the president 90 days to withdraw deployed troops absent a Congressional authorization of the use of military force—the withdrawal must start at the 60 day mark and be complete by day 90. Congress should be present. Congress should act.

What military lawyers say. “A whole civilization will die tonight, never to be brought back again.” Civilians. Human beings.

Writing for Just Security, two former military lawyers weighed in. Margaret M. Donovan served in the Army as a Captain in the Judge Advocate General’s (JAG) Corps. Retired Lt. Col Rachel E. VanLandingham served in the Air Force as Chief, International Law at HQ US Central Command, advising on the law of armed conflict during the wars in Afghanistan and Iraq.

They started by reviewing Trump’s comments on social media and in the press and concluding:

“Such rhetorical statements – if followed through – would amount to the most serious war crimes – and thus the president’s statements place servicemembers in a profoundly challenging situation. As former uniformed military lawyers who advised targeting operations, we know the president’s words run counter to decades of legal training of military personnel and risk placing our warfighters on a path of no return.”

Bombing energy facilities and other critical infrastructure is a clear violation of the law of war. But that’s what Trump threatened. That led Donovan and VanLandingham to write:

“His comments are blatant expressions that he is willing to turn the United States into a rogue State like Iran and Russia, one that rejects the fundamental legal restraints that protect innocent non-combatants like children, and the Iranian civilian population itself.”

Kamala Harris’ assessment:

“The President of the United States is threatening to commit war crimes and wipe out a “whole civilization” — all because he started a disastrous war of his own making and had no plan and no strategy for how to end it.”

Republican Congressman Nate Moran got there:

“So, let me be clear: I do not support the destruction of a ‘whole civilization.’ That is not who we are, and it is not consistent with the principles that have long guided America.

I have and will continue to support a strong national defense—one that is focused, disciplined, and firmly rooted in protecting the safety and security of the American people. But, how we protect the lives of the innocent is just as important as how we engage the enemy.

America is great because America is good.”

Have they no shame? It’s not that difficult—except for Trump supporters.

And that continues to be one of the lasting mysteries of this era. Why is it so difficult for a party that claimed it always did the right thing, the moral majority, the law and order party, to actually do the right thing when the chips are down and the moment demands it?

Far too many other Republicans couldn’t do what Moran did.

Iowa Republican Senator Joni Ernst, a military veteran who is not running for reelection, defended Trump: “It’s an ongoing operation, and if he needs leverage, he’s using that leverage.” She justified attacks on civilian resources like bridges and power plants because they are “being used by the military, there’s no doubt.”

Nebraska Republican Representative Don Bacon got as far as saying he wasn’t thrilled with Trump’s “vulgar and profane” language, but when it came to whether Trump’s threats violated the rules of war, he waffled, “There’s mixed opinions on it. I got mixed feelings on it.”

Louisiana Republican Representative Clay Higgins encouraged Trump to “hit” the Iranians “harder than ever Mr. President. Hit them so hard, the Angels in Heaven nod in wonder.”

And so on. Some people have no shame.

This piece is excerpted from a post by law professor and former U.S. Attorney Joyce Vance in her “Civil Discourse” newsletter. Subscribe here.

Cartoon by Steve Sack in The Week.