Pardoning War Criminals: The Trump Administration, the Duty to Prosecute, and the Duty to Protect Human Rights

During former U.S. President Trump’s last months in office, one rather prominent issue among the numerous controversies surrounding the presidency was the use of the presidential pardon. Especially the seven pardons for military service members and private contractors charged with or convicted of homicide during U.S. military operations in Iraq and Afghanistan sparked criticism. This paper assesses the pardon’s conformity with the duty to prosecute grave violations of international humanitarian law, i.e., grave breaches of the Geneva Conventions and war crimes under customary international law. Besides, it considers whether the pardons were compatible with a duty to prosecute serious human rights violations as an emanation from the duty to protect human rights, particularly the right to life. The analysis finds that most of the pardons represent a failure to appropriately punish human rights offenders, while all of them undermine the deterrent effect of criminal prosecution and weaken respect for international humanitarian law. The U.S. hence violates its international legal obligations.