President Trump’s threat to target cultural sites in Iran has sparked outrage, with legal experts arguing the president would likely be violating international law if he took such a step.
Top aides have tiptoed around the president’s statements, saying the administration would act lawfully and that Trump wasn’t definitively saying that he would target Iranian cultural sites if Tehran escalates the current situation. Sen. Lindsey Graham (R-S.C.), a top ally of Trump on Capitol Hill, said Monday he raised concerns with Trump about the remarks on a phone call.
“Cultural sites, religious sites are not lawful targets under the law of war unless they’ve been weaponized by the enemy,” Graham told reporters. “Putting cultural sites on the table as a military target, I think, undercuts what we’re trying to do.”
Defense Secretary Mark Esper told reporters that the Pentagon would “follow the laws of armed conflict” when asked if he would target Iranian cultural sites — a sign the military would not strike the sites despite the president’s remarks.
On Monday, White House counselor Kellyanne Conway also told reporters that Iran has “many” strategic military sites that could also be considered cultural sites.
“The president has identified those sites and has said that it may happen if Iran retaliates in a certain way,” Conway said. “You have the president on the record. You have to read the entire thing.”
Legal experts said that while there could be exceptions for cultural sites that serve a dual purpose as strategic military sites, they doubted that military officials would carry out an order that goes against international rules.
“The general rule regarding armed conflict is that when you use military force against a target it’s only supposed to be for military necessity and proportional to the strategic interest,” said Scott Anderson, a former U.S. diplomat and expert in international law at the Brookings Institution.
Anderson said those rules are reflected in customary international law, the Geneva Conventions and U.S. government policy documents, including those issued by the Pentagon. The 1954 Hague Convention also treats targeting a cultural site as a war crime.
Trump’s remarks prompted criticism from national security and foreign policy circles as well as human rights advocates.
He threatened the cultural sites in a tweet on Saturday amid high tensions with Iran over the U.S. airstrike that killed Maj. Gen. Qassem Soleimani, the leader of the Quds Force, who is accused of plotting imminent attacks on Americans.
On Sunday, Trump said there was no reason for the U.S. to hold back given the threat from Iran.
“They’re allowed to kill our people. They’re allowed to torture and maim our people. They’re allowed to use roadside bombs and blow up our people,” he said as he traveled back to Washington, D.C., on Air Force One from his estate in Mar-a-Largo. “And we’re not allowed to touch their cultural site? It doesn’t work that way.”
Brett McGurk, who served as the State Department’s ISIS envoy under Trump, called the president’s comments doubling down on the threat “un-American” and “reckless.”
UNESCO, the United Nation’s cultural organization, said Monday that the U.S. had signed treaties pledging not to harm cultural heritage amid armed conflict.
Those supportive of the Trump administration’s strike on Soleimani also characterized Trump’s statements as counterproductive, while doubting that they amounted to more than a rhetorical device.
Lt. Gen. Tom Spoehr, a defense expert at the Heritage Foundation and former Pentagon official, said the statements were not helpful at a time when the administration is trying to reduce tensions in the region, comparing them to pouring gas on a fire.
“I think it’s good to put Iran on notice that we are going to react if they attack American interests,” Spoehr said, calling the remarks about targeting cultural sites “a bit over the top.”
Andy Keiser, a former House Intelligence Committee aide who worked on Trump’s 2016 transition team, argued Trump was staking out an extreme position to demonstrate how Iran has flouted international law.
“I think he’s willing to at least say things that he might not later act on,” Keiser said. “I can’t imagine the U.S. government operating outside of the law. Any action would be lawful including this one.”
“I think people are fair to be concerned when the leader of the most important nation on earth threatened cultural heritage sites whether it’s meant to be an actual threat or not. But at the same time I don’t view it that way,” he continued.
Soleimani, who has been blamed for the deaths of hundreds of U.S. troops in the Middle East over the years, was killed in a U.S. airstrike late Thursday that the Pentagon described as a defensive measure. Trump said the action was taken to “stop a war,” as Iran warned of payback.
In response, Trump said Saturday that his administration had targeted 52 sites, including those important to Iranian culture, and would hit them if Tehran were to strike Americans or U.S. assets in reprisal for the drone strike that killed Soleimani on Thursday in Baghdad.
The president’s words came as others in his administration were trying to de-escalate the situation following the strike, which continued to reverberate across the Middle East on Monday.
“We’ll behave lawfully. We’ll behave inside the system. We always have and we always will,” Secretary of State Mike Pompeo said Sunday morning on ABC’s “This Week” when asked about the president’s remarks.
“The American people should know that every target that we strike will be a lawful target and it will be a target designed at the singular mission of protecting America.”
By Sunday evening, Trump was doubling down with his Air Force One comments.
Anderson, the international law expert, doubted that military officials would compile a target list including cultural sites because Defense Department manuals incorporate international rules against targeting cultural property.
“It’s hard to imagine them assembling a target list like the president has described,” he said, noting that officials could refuse to carry out such orders or resign over them.
But others said there’s little administration officials could do if Trump decides to take a step that is determined not to be in accordance with international rules.
“There’s probably nothing they can do to prevent him as administration officials, other than persuasion. It’s always been a question of whether and when a president in his Article II powers can essentially trump a treaty or even a law. That seems to be the position that he is taking,” said Steven Cash, a national security lawyer at Day Pitney and former counsel to Sen. Dianne Feinstein (D-Calif.).
“He’s been pretty clear about his view: Under Article II, he can do what he wants,” Cash continued, echoing Trump’s remarks to a young conservatives summit last year.