Taking Trump literally: a lethal consequence

Anybody throwing stones, rocks — like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico — we will consider that a firearm, because there’s not much difference…. Because there’s not much difference when you get hit in the face with a rock. 

President Donald J. Trump, 1 November 2018

For the past few weeks, we have witnessed scenes of a caravan of Central Americans, mainly from Honduras, heading toward the US. They are asylum seekers and migrants, escaping extreme violence and poverty. Laden with despair yet armed with hope, they are seeking a better life for themselves, their children, their grandchildren – they are seeking a shot at the American dream.

President Trump, who unabashedly has expressed his preference to have Scandinavians (or, so it seems, only lily-white Aryan-looking types) migrating to the US as opposed to Latin Americans or others from “shit-hole” African countries, has vowed to take on this caravan, which he and many of his like-minded xenophobic coterie describe as an “invasion”. President Trump would have you believe this caravan of asylum seekers and migrants is not just full of thugs, killers, rapists, drug dealers, diseased, but also hidden among them are a bunch of Middle Easterners (code for Arab/Brown/Muslim terrorists). Listening to President Trump you would think Texas and other states bordering with Mexico are at the cusp of a Normandy-like landing by this menacing caravan of poor, frightened, exhausted children, women, men, elderly, fathers, mothers, brothers, sisters, uncles, aunts, friends, and fellow-destitute asylum seekers and migrants.

Indeed, this caravan is so, so dangerous, that President Trump is sending to the southern US border as many as 10,000 active military troops to repel the invasion. For good measure, even though the caravan is hundreds of miles away and there is no telling how large or small it will be, if and when it makes it to the US border (logistically and practically they will be nowhere near the US border for weeks or months at best), President Trump publicly announced that US soldiers should meet rocks with bullets; US soldiers are to shoot to kill any asylum seekers or migrants who throw any rocks (what he views as a “rifle”) at them. He did not say what US soldiers should do if any person were to wave sticks at them; perhaps President Trump thinks bayoneting would be more sporting than shooting – unless, of course, sticks were thrown, in which case shooting would be more appropriate; a projectile for a projectile.

You have to wonder what kind of a president, as the supreme commander of the armed forces, would encourage soldiers to criminally use deadly force. Considering the disproportionality, lack of deadly threat, and high probability of killing innocent children, women, and men, President Trump was effectively green-lighting US soldiers to commit crimes against humanity.

And what of the optics. Can you just picture the image of well-fed, well-dressed, well-armed US soldiers in full battle-gear regalia shooting at a crowd of children, women, elderly, and maybe at a few frustrated, overwrought fathers, sons, and daughters throwing rocks and waving sticks? Well, if you’re having a hard time conjuring such an image, look no further than Nigeria on 29 October 2018. Nigerian soldiers opened up fire on some 1000 marching protesters in Abuja, Nigeria’s capital, killing at least 40 and wounding over a hundred people. Justifying their actions, the Nigerian Army pointed to President Trump’s press conference of 1 November 2018 where he noted that stones will be treated as rifles (and thus legitimate to shoot and kill) with a caption “Please Watch and Make your Deductions.”

To be fair to President Trump (a courtesy he seems incapable of extending to anyone he opposes or takes issue with), less than 24 hours later he walked back his remarks by saying that the soldiers “…. won’t have to fire. What I don’t want, I don’t want these people throwing rocks.”

So, no harm no foul.

Not so fast.

President Trump should not get a pass for either coming to his senses, or having enough sense to listen to professionals such as Secretary of Defense James N. Mattis (no kowtower to President Trump), and the top US military brass who no doubt schooled President Trump on the finer points of the rules of engagement, international legal conventions, laws, etc., that US soldiers must abide by faithfully. Perhaps they even schooled him (since he seems sublimely ignorant) on some of the inconvenient legal constraints associated with orders, such as the obligation of his subordinates (the senior military officers) and the subordinates of the subordinates (the ranking officers down to the troop level) not to comply with illegal orders – even when they come from the commander-in-chief. Who knows, some might have even hinted to President Trump that for a US soldier to shoot and kill a rock-thrower is a wee bit of a disproportionate (excessive) response. Let’s hope so.

President Trump may have been floating a trial balloon, or was just playing the role of a tough President – on a mission to make America safe (not just great) again, or was just fear-mongering and race-baiting to get his supporters to vote in the mid-term elections. So what of his motives? It was reckless of President Trump to even suggest that US soldiers should shoot at the civilian asylum seekers and migrants, even if some hurled some rocks.

And not to put a too fine point on this, but with US soldiers acting as a wall between the US and Mexico, rock-throwing asylum seekers/migrants would be on Mexican territory. With bullets traveling over the Mexican border, and with Mexico being a State Party to the Rome Statute, shooting, wounding and killing asylum seekers/migrants would not only be a disproportionate use of force but would very likely fall under one of the crimes under Article 7 of the International Criminal Court’s (ICC) Rome Statute – as the recent Pre-Trial Chamber’s Decision concerning the Rohingya in Bangladesh informs (see my posts here, here, and here).

Yes, there is the issue of complementarity, but when a US soldier acts on orders and rhetoric based on what invariably is traced back to none other than the US President, what is the likelihood that the current US Justice Department would indulge in investigating and prosecuting US soldiers (the My Lai Massacre and the abhorrent events at Abu Ghraib prison are poignant references). There should be no expectations of the US as a permanent member of the UN Security Council to cooperate with the ICC. This may sit well with President Trump and his ardent supporters who think of the US’s exceptionalism as a carte blanche – a privilege to behave with wanton abandon and with little or no regard for international norms.

What message does the US – through President Trump – send to despots and pseudo-democratically elected leaders of illiberal democracies? Not a good one. They can now claim legitimacy and legality for some of their illegitimate and illegal/criminal behavior by pointing to the words and deeds of the US President and/or US institutions. Why, for instance, should there be any fear of killing and disposing of a journalist, and then blatantly lying about it when President Trump day in and day out calls journalists (and by extension the free press) the enemy of the people? Why not open fire at protesters if the President of the United States of America says that a rock is the same as a rifle and therefore it is justifiable to open fire and kill civilians?

Is it any wonder that the Nigerian authorities claimed that the protesters were not peaceful? Does this not sound familiar? True or not, it makes no difference. Alternative facts work just as well. When Trump was asked to back up his claim that Middle Easterners were among the asylum-seeking caravan, he came clean and prevaricated in on breath: “There’s no proof of anything,” adding that “there very well could be.” I guess we need to take his words as an article of faith, though thus far in the two years of his presidency he has proved to be a pathological liar of historic proportions (as of November 2018, Trump has made over 6,420 false or misleading statements since taking office). So yes, why should the Nigerian authorities not follow President Trump’s lead; just lie, lie, and lie some more, and when there is no quarter left, deflect and obfuscate with more extravagant lies and vicious innuendo. Trumpism.

Racial and political dog-whistling and gaslighting aside, words that have the capacity to incite, to ignite, and to invite criminality should be taken both seriously and literally, for which President Trump should be held to account. Maybe not in a court of law (for now) but in the court of public opinion. Pipe bombs being mailed to his branded enemies, journalists being killed by crazed fanatics drunk on President Trump’s enemy-of-the-people-Kool-aid, Jewish worshipers being attacked, having been touched by President Trump’s anti-Semitic rhetoric, and now the Nigerian Army’s indiscriminate killings of protestors in Nigeria, who appreciatively accepted President Trump’s words literary in justifying their actions, are the results of President’s reckless and lawless political speeches.

Even if President Trump’s words are aimed at galvanizing his base to get out and vote, his supporters – with the exception of the ultra-nationalists with bigoted beliefs and depraved hearts – know or should know better than to accept his words at face value, just as they know or should know that stoking fear and intolerance with bogus claims is a currency of no value. It is of no surprise that a campaign ad ran by the Trump’s political team has been finally banned from major networks including Fox News for being overtly racist. Regrettably, driven by political expediency and myopic interests, President Trump’s party and supporters have yet to stand up and speak out. Perhaps it is asking the Republican Party too much to take the moral high ground and put country above politics. One has to wonder, however, what will it take for at least some of the Party faithful to say enough is enough – we are not Joe McCarthy’s party; have you no sense of decency, Mr. President?

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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