Trump, pardoning war criminals, should himself be prosecuted for crimes against humanity

November 3, 2021

See “Brazilian Senate recommends President Jair Bolsonaro be indicted for Crimes Against Humanity,”The Trenchant Observer, October 26, 2021.

Today, December 22, 2020, President Donald Trump has issued pardons for war criminals who have been convicted by military courts of war crimes, including the wanton killing of innocent women and children, and men.

This action follows Trump’s earlier intervention in the Gallagher case.

The pardoning of war criminals is somewhat ironic, as there is a possibility that some day Donald Trump may himself be prosecuted for international crimes, here crimes against humanity consisting in his knowing and wilful mismanagement of the corona virus pandemic in the United States, including undercutting his own CDC guidelines and urging people to engage in behavior which put their lives at risk.

A strong case can be made that by his actions and inactions, he caused the death of tens of thousands of unnecessary deaths.

His actions may not fit within the current categories of actions recognized as “crimes against humanity”. But sometimes crimes on a large scale are so horrendous they become formally recognized as international crimes. Such as the case with the Nuremberg Tribunal and the Nuremberg Charter approved by the United Nations in 1950.


James Rowles, “Defending the Right to Life and Other Human Rights During the Coronavirus Pandemic,” Lawyers for Humanity, May 7, 2020.

(The author holds a Doctor of Juridical Science (S.J.D.) in International Law from Harvard Law School, and is a former Lecturer on Law at Harvard where he taught a course on international human rights.)

Extensive excerpts from this article are reprinted below, with permission from Lawyers for Humanity.


May 7, 2020

United Nations Covenant on Civil and Political Rights (1966)

Article 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

Article 6

    1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.


United States Constitution

Amendment V

No person shall be…deprived of life, liberty, or property, without due process of law…

Amendment XIV

Section 1.

…No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Defending Human Rights During the Coronavirus Pandemic

Human rights defenders need to be vigilant and to fight against violations of fundamental human rights by governments which put values aside in their desperate search for measures that might help control and defeat the spread of the coronavirus pathogen.

The erosion of human rights’ protection sometimes seems to be spreading like a pandemic across the world.

The Right to Life

No right is more basic or fundamental than the right to life. Yet government leaders are adopting policies, or failing to adopt measures, which directly endanger the right to life of tens of thousands of people.

In the United States, President Donald Trump seems to have failed to undertake the actions that would be necessary to provide doctors, nurses, first-responders, and other medical workers the Personal Protective Equipment (PPE) that could protect them from catching the virus, and in some cases dying.

He also appears to have failed to organize the nation’s resources and productive capacities, which only the federal government can do (e.g., by employing the Defense Production Act), which could provide citizens with the masks, ventilators, testing, and contract tracing which might help prevent them from catching the virus, being hospitalized, put on ventilators, and dying.

Because of these shortages, some governments, including state governments, have developed guidelines for the rationing of life-saving equipment such as ventilators on the basis of criteria, including age, which violate the individual’s rights to Equal Protection under the 14th and 5th amendments of the U.S. Constitution.

The withdrawal of medical support from a person based on criteria including age which leads to an individual’s death may be construed as murder, and potentially prosecuted as criminal homicide.

In Brazil, President Jair Bolsonaro appears to have followed a policy based on denial of the reality of the coronavirus pandemic, publicly urging citizens to ignore recommendations or requirements by state and local governments to stay at home, use masks, and to maintain physical distancing in order to control transmission of the virus.  Similarly, the government of Belarus appears to have adopted policies based on a denial of the existence of the coronavirus pandemic.

The actions of governments led by leaders such as Bolsonaro are likely to lead to greater spread of the virus, as indicated by an acceleration in (or failure to reduce) the infection rate and the resultant hospitalizations, intensive care cases, intubations with ventilators, and deaths in hospital settings.  Given Brazil’s comparatively poor medical infrastructure, particularly in poorer parts of the country and poorer sections even of urban areas, many other Covid-19 deaths may occur outside of hospital settings.

Because of these actions and government policies, the right to life of tens of thousands if not millions of people are likely to be violated.

Crimes Against Humanity

The right to life of potential victims of the coronavirus pandemic must be protected from government actions, whether these be affirmative actions or failures to act when the consequences of such failures to act are predictable.

Such actions, which may lead to the deaths of tens of thousands or millions of people, should be considered to be  crimes against humanity.

There may be a need to delineate a new kind of crime against humanity because the actions and failures to act arguably do not fit within the strict definition of crimes against humanity as currently embodied in Article 7 of the Rome Statute of the International Criminal Court.

There is the further issue of whether a crime against humanity may consist not only of actions but also of failures to act, of omissions, when the consequences of such failures or omissions are foreseeable.

Yet we are faced with entirely new phenomena, on an unprecedented scale. A government has a duty to protect its population against avoidable causes of wide-scale death. When it breaches that duty, e.g., by doing nothing to protect the population against a lethal virus, we need to learn to think of its actions in a new way, as constituting the commission of an international crime, a crime against humanity.

The international crime of genocide had not been authoritatively defined before the Nuremberg Charter was adopted in 1945. The facts on the ground demanded its creation. This was also the case with apartheid, which became recognized as a crime against humanity and is now included under Article 7 of the Statute of the ICC.

It is time to hold leaders and governments accountable for their actions and failures to act which result in violations of the right to life of individual human beings, on a massive scale.

No human right is more fundamental than the right to life, and no human right is more strongly protected in both domestic and international law. It is a right from which no derogation is permitted, under any circumstances, under applicable international human rights treaties.

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.