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3 hours ago
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Donald Trump is openly threatening war crimes in Iran because he apparently thinks he can get away with them. Sadly, the US supreme court has given him reason to believe in his impunity within the United States. But there are international options for prosecution that lie beyond the court’s lawless license. They are not easy to exercise, but the terrible precedent of the world’s most powerful president openly flouting international humanitarian law should compel action.
There is no doubt that Trump is contemplating war crimes. As part of his plan to bomb Iran “back to the stone ages” and wipe out a “whole civilization”, Trump has threatened to destroy such civilian infrastructure as desalination plants, electrical-generating facilities and bridges.
Even if there is some military use of these facilities – soldiers drink water, deploy electricity, drive over bridges – the anticipated “concrete and direct military advantage” of destroying them pales in comparison with the likely civilian consequences. That violates international humanitarian law’s rule of proportionality.
In other words, it is not enough for something to be a dual-use object. If the civilian harm of targeting the object is disproportionate to the military gain, it cannot be attacked. For example, destroying a country’s electricity-generating capacity has cascading effects throughout a modern society, disrupting sanitation, refrigeration, hospitals and other necessities.
That is why the international criminal court has charged four Russian military commanders with the war crime of attacking electrical infrastructure in Ukraine. The Pentagon did carry out such attacks in 1991 during the first Gulf war, but after Human Rights Watch and others documented these disruptive and often deadly results, Pentagon doctrine changed.
During the 1999 bombing of Serbia to protect Kosovo, the Pentagon didn’t destroy Serbia’s power plants but only temporarily disabled them by dropping graphite fibers to short them out. It used a similar approach during the 2003 invasion of Iraq. That is what Pentagon doctrine should now require in Iran as well, but Trump’s rhetoric suggests he would order “complete demolition” instead.
In the 2024 case of Trump v United States, the supreme court ruled that a president is entitled to either absolute or presumptive impunity for all official acts. That blow to the rule of law would preclude, for example, the next US administration from prosecuting Trump.
But it would not prevent prosecution of the defense secretary, Pete Hegseth, or court-martial of any other military commander. They have a duty to disobey a manifestly unlawful order, which Trump’s threatened destruction of Iran’s infrastructure would be. When Democratic members of Congress published a video in November highlighting this duty, Trump called them “seditious”, but they were right; he was wrong.
Even Trump is vulnerable to prosecution, but after the supreme court’s deplorable ruling, not in the United States. The simplest route would be via the international criminal court. Iran is not currently a member, meaning the court has no jurisdiction over crimes committed on Iranian territory. The Trump administration would veto any effort by the UN security council to confer jurisdiction, but a future US administration might look at things differently.
But there is no need to wait. The Iranian government could join the court now and grant it retroactive jurisdiction, similar to what Ukraine did to allow prosecution of Russian war crimes. Yet Tehran may be reluctant to risk ICC prosecutions because, depending on how far back jurisdiction were granted, its officials would become vulnerable too, such as for the crime against humanity of ordering the killing of at least 7,000 protesters in January.
There is another route that does not depend on Iran but would require collective action. Under the concept of universal jurisdiction, governments can use their national courts to prosecute certain crimes even if committed by non-nationals abroad. Universal jurisdiction began as an attack on piracy, with the pirate deemed to be an enemy of everyone subject to prosecution anywhere. It is now allowed for such crimes as genocide, war crimes, crimes against humanity, torture and arguably aggression.
There is a catch. In an ill-advised decision, the international court of justice ruled in 2002 that universal jurisdiction could not be used in national courts to prosecute a sitting president, prime minister or foreign minister because the court prioritized not disrupting their official functions. That would mean that Trump would be immune from prosecution until he stepped down from office.
Yet the ICJ ruled that “certain international criminal courts” could prosecute even these sitting officials. The ICJ illustrated what it had in mind by citing international tribunals set up by the security council for Rwanda and the former Yugoslavia and, of greatest relevance, the international criminal court, which was established in 2002 not by the security council but by treaty agreed to among a group of governments.
With the ICC precedent in mind, the Council of Europe is in the process of establishing a special international tribunal for the crime of aggression in Ukraine. The ICC has jurisdiction over war crimes in Ukraine but not aggression, which can be pursued only against citizens of members of the ICC that consent to such prosecutions. Russia is not an ICC member. Because Vladimir Putin should be charged with aggression for having invaded Ukraine, universal jurisdiction in national courts cannot be used against a sitting head of state, and the ICC lacks jurisdiction for aggression in Ukraine, the Council of Europe is setting up an international tribunal to fall within the exception allowed by the ICJ.
The same could be done for Iran. Presumably any group of countries – say, the European Union, or Nato or the G7 minus the United States – could establish an international tribunal to address crimes committed in Iran, including war crimes and aggression. That would allow Trump to be prosecuted as soon as the tribunal is established, without waiting for him to leave office.
Trump might feign indifference. After all, no one is going to invade the United States to arrest him. But he would risk the next US president surrendering him for trial. That is not so far-fetched, because it is what happened to the former Serbian president Slobodan Milošević and former Philippines president Rodrigo Duterte.
Am I holding my breath waiting for this to happen? No. I realize that few governments are willing to stand up to the vindictive, untethered Trump by establishing such a tribunal. But it is worth spotlighting this possibility because it should happen. If some of the more outspoken opponents of Trump’s illegality in Iran, such as the Spanish prime minister, Pedro Sánchez, or German president, Frank-Walter Steinmeier, want to do something useful, they should pursue this option.
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Kenneth Roth is a Guardian US columnist, visiting professor at Princeton’s School of Public and International Affairs, and former executive director of Human Rights Watch. He is the author of Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments
