DON QUIXOTE OR DARTH VADER? PRESIDENT TRUMP'S VIEWS ON INTERNATIONAL HUMANITARIAN LAW.

• Author: Ford, Stuart

1. INTRODUCTION 47 II. BACKGROUND ON INTERNATIONAL HUMANITARIAN LAW 52 III. HOW TO DETERMINE THE PRESIDENT'S VIEWS ON IHL 57 IV. THE PRESIDENT'S VIEWS ON INTERNATIONAL LAW 58 A. An "America First" Foreign Policy 59 B. The United Nations and Other International Organizations 60 C. Multilateral Trade Agreements 61 D. International Human Rights 62 E. Conclusion 64 V. THE PRESIDENT'S VIEWS ON VIOLENCE 65 A. Violence Against Protesters 66 B. Violence Against the Press 68 C. Violence by Law Enforcement 68 D. Using Violence to Maintain Power 69 E. Conclusion 70 VI. THE PRESIDENT'S VIEWS ON INTERNATIONAL HUMANITARIAN LAW 71 A. General Views on IHL 71 B. Views on Torture 72 C Views on Collective Punishment 75 D. Views on the Killing of Prisoners 77 E. Views on Pillage 80 F. Views on Protection of Cultural Heritage 83 G. Conclusion 85 VII. THE PRESIDENT'S ABILITY TO IMPLEMENT HIS VIEWS 88 VIII. THE FUTURE OF IHL 91 IX. CONCLUSION 95 I. INTRODUCTION

   Much has already been written about President Trump's "America First" policy and its effect on international law.' This Article builds on that earlier literature by focusing on the President's views on international humanitarian law (IHL). (2) International humanitarian law is that part of international law that regulates the conduct of parties engaged in an armed conflict. (3) The most famous part of IHL is probably the Third Geneva Convention, which protects prisoners of war (POWs), (4) but IHL is considerably broader than just the protection of POWs. It also governs the treatment of civilians, (5) as well as when and how force can be used during an armed conflict. (6) It determines which targets may be attacked (7) and what weapons may be used to attack them. (8) As a result, IHL is of critical importance for any military (9) and serves as the normative foundation for key components of international criminal law. (10) For these reasons, the rules of IHL are almost universally recognized as important, particularly among combatants. (11)

   But why focus on President Donald Trump's beliefs about IHL? The President does not like complexity, (12) disdains expertise, (13) and does not have any military experience. (14) So why do his views on IHL matter? First, he is the elected leader of the world's second largest economy (15) which makes him one of the most powerful individuals on Earth. (16) Thus, in a general sense, what President Trump believes matters simply because he is President of the United States of America. This is especially true with regards to IHL because the U.S. Constitution designates him the Commander in Chief of the armed forces of the United States. (17) This gives him control over the day to day operations of the U.S. military, (18) which is the most powerful military in the world. (19) Given the President's role as Commander-in-Chief of the world's most powerful military and the importance of IHL to the operation of every military, his views on IHL matter.

   Second, the President's views on IHL are important because they are so anomalous. (20) They are unlike the views of any other modern U.S. President. (21) While previous Presidents have taken positions on IHL that have been controversial, (22) President Trump has regularly proposed actions that almost everyone, including the U.S. government, agrees are violations of IHL. (23) In many cases, those actions would also constitute war crimes. (24) For example, the President has repeatedly called for the use of torture. (25) Torture, when committed in the context of an armed conflict, is universally recognized as a war crime. (26) The President has also proposed other acts that would be war crimes, including intentionally killing the family members of enemy combatants (27) and deliberately attacking cultural heritage sites to punish an enemy. (28) His views are unprecedented for an American President.

   The President, in his capacity as Commander in Chief of the armed forces, has enormous control over the U.S. military. (29) Thus, the President appears to be in a good position to implement his views about IHL within the U.S. military. Yet, the President has often been unable to turn his vision of IHL into action. (30) For example, the President retreated from his initial desire to bomb cultural heritage sites in Iran after pushback from senior members of his administration (31) and the President has been unable to implement his plans to torture our enemies. (32) Despite a number of failures, however, President Trump has sometimes been able to take action. For example, the President pardoned several members of the U.S. military who were either accused of or had been convicted of war crimes despite opposition from within the military and his administration. (33) Understanding President Trump's views on IHL, as well as when and how he is able to implement them, is thus very important in understanding what effect he is likely to have on IHL.

   This Article has three goals. First, it seeks to understand the President's views on IHL by looking at his public statements about issues related to IHL. While the President has never publicly articulated a coherent vision of IHL, his statements and actions are guided by certain beliefs about IHL. His statements reflect a consistent worldview in which international law is imposed on the United States to weaken it (34) and the indiscriminate use of violence is praiseworthy. (35) Not surprisingly, this causes him to instinctively reject the limitations imposed by IHL and he has repeatedly proposed violating IHL. (36) Second, this Article assesses the President's effect on IHL so far. (37) When has he been successful in implementing his vision of IHL? Why has he been unsuccessful so often? Finally, this Article looks at what effect President Trump will have on the future of IHL. (38) Can the President succeed in remaking IHL to be consistent with his vision of it? Or is IHL resilient enough to survive President Trump's attacks on it?

   This Article proceeds as follows. Section II discusses the scope and importance of IHL, while Section III explores the best way to understand what President Trump believes about IHL. Sections IV and V explore the President's views on international law and violence, respectively. Section VI then uses the President's own statements to illuminate his views on IHL. The President's ability to turn his vision into action is evaluated in Section VII and the consequences of the President's repeated attacks on IHL are discussed in Section VIII, while Section IX summarizes this Article's conclusions.

2. BACKGROUND ON INTERNATIONAL HUMANITARIAN LAW

   International humanitarian law regulates how force is used during an armed conflict. (39) Modern IHL has its origins in the nineteenth century. (40) In 1863, President Abraham Lincoln issued a set of instructions for how the Union Army was to conduct itself during the Civil War. (41) This set of instructions--known as the Lieber Code because it was written by the influential political scientist and international lawyer Francis Lieber (42)--was one of the earliest attempts to codify what was permissible during war and set the stage for much of the development of IHL. (43) The antecedents of many of the key components of modern IHL can be seen in the Lieber Code, including an early version of the principle of distinction. (44) For this reason, it is viewed as one of the most influential documents in the development of modern IHL. (45)

   IHL continued to evolve during the second half of the nineteenth century, (46) but the next major developments occurred at the turn of the twentieth century, with the Hague Conventions of 1899 and 1907. (47) The Hague Conventions codified the rules that governed the means and methods of warfare. (48) For example, the 1899 Hague Convention contains one of the bedrock principles of IHL: "The right of belligerents to adopt means of injuring the enemy is not unlimited." (49) This is an early incarnation of what would later become known as the principle of humanity. (50) The Hague Conventions are important because they represented one of the earliest attempts to enshrine the rules of war in international law. (51) Ultimately, fifty-one states became parties to the 1899 Convention. (52)

   The next major advances to IHL came after WWII with the adoption of the 1949 Geneva Conventions. (53) While the Hague Conventions addressed the means and methods of warfare, the Geneva Conventions spelled out states' duties with respect to prisoners of war, non-combatants, and combatants hors de combat. (54) In particular, they contain detailed provisions on the treatment of civilians. (55) The Geneva Conventions principally apply during international armed conflicts, (56) but they also provide some protections during non-international armed conflicts. (57) The Geneva Conventions now form a key part of IHL. (58)

   IHL has continued to develop since WWII and more recent contributions include the Additional Protocols to the Geneva Conventions. (59) Additional Protocol II, in particular, is important because it expands on the protections of Common Article 3 of the Geneva Conventions and spells out in more detail states' duties in non-international conflicts. (60) Collectively, these and other treaties--like the Chemical Weapons Convention, (61) the Biological Weapons Convention, (62) and the Hague Convention on Cultural Property (63)--as well as state practice, (64) comprise the body of international humanitarian law.

   Today, IHL is oriented around three limiting principles that underlie many of the specific rules. (65) They are the principle of distinction, the principle of proportionality and the principle of humanity. (66) The principle of distinction requires that combatants distinguish between (1) civilians and civilian objects and (2) combatants and military objectives. (67) Combatants may never deliberately target civilians or civilian objects. (68) Combatants may only attack other combatants and...