A MARTÍNEZ, HOST:
President Trump is brushing off concerns that his threats of attacking Iran's civilian infrastructure could be considered war crimes. Here's the president speaking with reporters at the White House on Monday.
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PRESIDENT DONALD TRUMP: I'm not worried about it. You know what's a war crime? Having a nuclear weapon, allowing a sick country with demented leadership have a nuclear weapon. That's a war crime.
MARTÍNEZ: Asli Bali is a professor of international law at Yale Law School. She previously worked for the United Nations' Office of the High Commissioner for Human Rights. Professor, what's your assessment of the legality of threatening to destroy every bridge and every power plant in Iran?
ASLI BALI: The threat to destroy civilian infrastructure at scale is really suggesting that the president is announcing no distinction between civilian and military objects. And explicit statements about targeting infrastructure without that kind of distinction basically means abandoning the constraints that international law requires.
MARTÍNEZ: Can the distinction be made after the fact?
BALI: The distinction between civilian and military objects is a difficult one. And the sort of debates around the distinction and how it should be understood are not new. So power plants do provide electricity for homes and sometimes for military bases. Bridges do provide civilian transport and potentially transport for troop movements. But if you say, I'm going to destroy every power plant and every bridge in a country, that in itself is a declaration of an intent to violate core international humanitarian law principles, because the determination about whether something not only has a civilian use but whether it can be a lawful target requires determining in advance whether that infrastructure is specifically making a meaningful contribution to military action.
If it's tied to civilian life in some way and the attack risks serious civilian harm, you have to show that there's a real military advantage not in excess compared to the civilian harm that it's causing. And if you can't meet that test, you can't engage in that strike. If you do engage in that strike and you determine after the fact, or you leave to after the fact a determination of its civilian character, you are essentially saying, I am not going to abide by distinction. I'm going to destroy first and ask questions later. Instead, you have to ask the question about whether there's excessive civilian harm relative to military advantage.
MARTÍNEZ: OK.
BALI: Ensure that you're respecting proportionality and take precautions against excessive civilian harm.
MARTÍNEZ: So let's just imagine it for a second, if we can. If President Trump saying every power plant is just a threat and it winds up being a few, can the argument be made that those specifically were military targets and it's not a war crime?
BALI: Yeah, if you can show that there was a real military advantage and that the civilian harm was not excessive compared to that advantage, then that specific strike can be lawful. That's the meaning of dual use. The problem is, almost all modern infrastructure is dual use, which means modern war is constantly forcing a trade-off between military necessity and civilian protection. And the analysis of whether or not the civilian harm will be excessive needs to be conducted in advance of the strike.
MARTÍNEZ: Yeah. How common are threats like these from a U.S. president?
BALI: They are quite uncommon. On the one hand, civilian harm, dual use disputes, even unlawful strikes have become common in modern warfare. And aggressive interpretations of dual use targeting is not new. What is unusual here is an apparent explicit rejection of the legal framework, with the president and senior officials dismissing international law as obstacles. That's qualitatively different than any past moment I can think of in the 20th or 21st century among U.S. presidents and senior officials.
Also, public threats of systemwide civilian harm - that is, announcements of campaigns against all infrastructure and not just tactical strikes on specific infrastructure - is new. And then when you add to that the institutional rollback of all the constraints within the Department of Defense around the necessity to comply with international law - so weakening the roles of JAGs, dismantling civilian protection structures within the Defense Department. All of that suggests a reduced capacity to comply. So basically, states are normally expected to maintain the language of legality and preserve institutions...
MARTÍNEZ: OK.
BALI: ...To comply. Both of those are out the window at the moment.
MARTÍNEZ: Really quick, professor, really quick. What could the consequences be if the Trump administration is accused of war crimes?
BALI: I mean, to begin with, it's the erosion of the credibility of the United States that has long relied on the claim that it follows the rules internally through military justice and JAG oversight, and that it cares about international law and seeks to comply with it. International law depends on reciprocity and signaling. If the U.S. sets this precedent, others will have cover to do the same in the future.
MARTÍNEZ: Asli Bali is a professor of international law at Yale Law School. Professor, thanks.
BALI: Thank you. Transcript provided by NPR, Copyright NPR.
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