On May 27, 2019 the United States will remember those who died serving in our nation’s armed forces. Originating as Decoration Day on May 30, 1868, Memorial Day is an annual remembrance of all Americans who have died serving the nation, our Constitution, and the values that are at the heart of what it means to be an American.
Traditionally, the President will place a wreath on the Tomb on the Unknown Soldier at Arlington National Cemetery to honor those who have given their lives in defense of our nation. This Memorial Day however, President Trump is reported by the New York Times to be considering pardons for those accused or convicted of serious war crimes. As eloquently stated by NIMJ’s Advisors Professor Chris Jenks on Just Security, and Prof. Rachel VanLandingham in USA Today, it is difficult to conceive of an action by a Commander-in-Chief that is more likely to degrade good order and discipline, damage our national security and dishonor the millions of men and women who have served their nations honorably and in compliance with the law of war. As recognized by the Senate in their consideration of the 1949 Geneva Conventions in the aftermath of World War II and the Korean War,
“The United States has a proud tradition of support for individual rights, human freedom, and the welfare and dignity of man. Approval of these conventions by the Senate would be fully in conformity with this great tradition. Through its own conduct in previous wars the United States has been instrumental in encouraging the acceptance of standards of treatment which would preserve the peoples of all races and all nations from the savageries and barbarisms of the past.”
As the Commander-in-Chief, the President has the privilege of leading the men and women of the US military and of enforcing and reinforcing the long and proud tradition of compliance with the laws of war. As the Commander-in-Chief and the Chief Executive of the United States, the President has primary responsibility to ensure respect for the obligations of the Geneva Conventions that embody the laws of war and maintain the integrity of the military justice system. The circumstances of the cases reported to be under consideration by President Trump for Memorial Day pardons make these cases inappropriate for pardons. These cases are not a miscarriage of justice; but instead represent the commitment of the United States in holding our soldiers, sailors, airmen and marines accountable for the standards that preserve us all from the savageries and barbarisms of the past. The National Institute of Military Justice encourages all Americans to read the commentaries on this proposed action, and join us in urging the President not to issue such pardons in disregard of the military justice system that is designed to ensure that all military members are provided due process of law and held to the standards established by the rule of law. That would be the true memorial to all of America’s fallen.
The following blog post was published on Just Security on Friday, May 24th by two former TJAGs in the Navy and our own Rachel VanLandingham, Professor, Southwestern Law School, and retired JAG.
Andrew Milburn, a former Marine Colonel, provides the best reflection on why adherence to the law of war matters in the Atlantic.