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Trump’s Wrongful Pardons for International Law Violations

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“….he shall have Power to grant Reprieves and Pardons for Offences against the United States….”Article 2, Section 2, US Constitution

ABSTRACT: At the time of a second impeachment trial, this one centering on Trump’s alleged “incitement to insurrection” in early January 2021, there would seemingly be no good reason to reference less serious presidential derelictions. Nonetheless, as a matter of US law, the Constitution makes explicit that the president’s pardoning power is restricted to “Offenses against the United States” (Donald J. Trump issued certain specific pardons for offenses against international law.) The following article clarifies the legal norms involved in this wrongful issuance, and key factual elements of  the former president’s pertinent wrongdoings.

During his persistently defiling tenure, US President Donald J. Trump’s legal wrongdoings were multiple, egregious and manifestly far-reaching. Mr. Trump was especially wanton in regard to required compliance with coinciding expectations[1] of Constitutional law and international law.[2] More precisely, in stark contravention of both the US Constitution  and his  presidential oath of office, several “law of nations” violations were wrongfully pardoned at the end of his tumultuous term in office.[3]

                In these vital matters, jurisprudence deserves pride of place. To the extent that law is ultimately an instrument of justice, all civilized legal norms are recognizably interconnected and universally binding. International law,[4] more traditionally called the law of nations,[5] shares its principal conceptual and historic origins with United States law.[6] Above any reasonable contestation, these discoverable wellsprings lie in “Natural Law.”[7]

                There are further particulars. Inter alia, international law is an integral part of US law.[8] When an American president encourages or ignores violations of international law, whether by the United States or by any other state (e.g., Trump and Putin’s Russia), he is acting (correspondingly or derivatively) against the Constitution and against natural law.[9] At the same time, though responsible for supporting the core norms of international law, an American president has absolutely no US law-based right to pardon individuals for their violations.

               Not any individuals.

               Following even a second Trump impeachment trial, Americans need to inquire more fully:  What went wrong when Trump pardons were issued for assorted offenses not committed “against the United States?” Though complicated by very substantial interpenetrations of US law, natural law[10] and international law, the United States Constitution is utterly clear on one specific pardoning exclusion: A president’s power to pardon does not extend to any violations of  international law.

               This power is always limited to “Offenses against the United States.”[11] These offenses, moreover, are not subject to any idiosyncratic, whimsical or loosely ad hoc definition. Prima facie, they are limited to “…only those offenses declared to be such by the solemn action of the legislative body.”[12]

               There is more. The law of nations, or international law, is federal common law.  The constitutionality of federal subject matter jurisdiction on such primary matters is established at Articles III and VI of the Constitution, and also in those actions involving US treaty violations. Per Judge Edwards in Tel-Oren, actions involving violations of international law arise under US law because “the law of nations[13] is an integral part of the laws of this country.”[14]

               And yet, several of Donald J. Trump’s 2020/2021 pardons expressly concerned violations of international law.[15]  These wrongful presidential grants of immunity not only undermined the fundamental law of nations, they were ipso facto unlawful under United States law.[16]  These are some prominent and representative examples:

Michael Flynn, criminal contacts with a foreign (Russian) ambassador

Paul Manafort, financial fraud with a foreign (Russia) government

Mark Siljander, criminal work as a foreign agent for an Islamic charity seeking removal of its name from the official US list of pro-terrorist organizations

Nicholas Slatten,  Blackwater contractor, sentenced for first degree murder in the 2007 massacre of Iraqi civilians including children[17]

Paul Slough, also a member of the “Blackwater Four,” sentenced for the unprovoked massacre of Iraqi civilians

Evan Liberty, for slaughter of Iraqi civilians in Baghdad

Michael Behenna, former US Army lieutenant, for 2008 murder of an Iraqi civilian during the US occupation

Clint Lorance, former US Army lieutenant, convicted in 2013 of war crimes; Lorance ordered his men to open fire on unarmed civilians in Afghanistan. Even former Trump-appointed Secretary of Defense Mark Esper had objected openly to this pardon.

                In all of the above cases that involve crimes of war,[18] a competent legal scholar could argue more-or-less cogently that the Trump pardons were not granted solely for violations of international law. Such an argument would be based on the well-established understanding that the laws of war – aka humanitarian international law- have previously been “incorporated” into the laws of the United States.[19] Such a selective argument, however, would overlook that the Trump pardons (1) represented an abuse of a president’s Constitutional obligation to “faithfully execute the law;”[20] and (2) ignored the always-complementary US position that a pardon is “an act of grace, proceeding directly from the power entrusted with the execution of the laws….”[21]

               These expressions of impermissible action are not complicated or hard to fathom. US President Donald J. Trump’s pardons were anything but “an act of grace.” Rather, in legal-philosophical terms, they were cynical re-affirmations of the Sophist view of justice revealed inter alia in Plato’s Republic. In that dialogue, says Thrasymachus famously (or infamously), “Right is the interest of the stronger.”[22]

               At this point, a continuously core legal problem for the Biden administration will be how to challenge, reverse and/or remediate Donald J. Trump’s  flagrant abuses of the US Constitution’s pardoning power. Are there discoverable ways in which proper actions could be correctly andpragmatically undertaken? Plausibly, valid answers are (1) within calculable reach of disciplined legal reasoning; and (2) best  approached dialectically.[23]

               Though now subject to change by President Joe Biden and a willing Senate, the United States is still not a party to the International Criminal Court.[24] In principle,  a prospective plaintiff with an appropriate judicial interest in correcting these matters could bring justifiable  claims into US federal court by way of the Alien Tort Statute (1789).[25] Some examples might be by foreign nationals and identifiable relatives of victims injured or killed by one or several of the above-listed American beneficiaries of wrongful presidential pardon (e.g., the “Blackwater Four”). But even if civil law remedies were allowed in such a markedly complex claim, this particular judicial strategy would not necessarily revoke or remediate any of the now-antecedent Trump pardons.

               In 2021, there can no longer exist any reasonable questions about an individual’s criminal responsibility for violations of international law.[26] A de facto result of US President Donald J. Trump’s pardoning of certain individual US citizen actions overseas was to retroactively eliminate or override such established responsibility. In effect, the former president’s pardon was illegal on two separate but closely interrelated grounds:  (1) the general invalidity of pardons for violations of international law and (2) the specific exoneration of particular international crimes.

               On these subjects, legal scholars must look ahead. Accordingly, they ought to inquire, “What is to be done now?” The principal underlying question is how to effectively revoke or remediate a series of unlawful US presidential pardons. For a variety of reasons – not the least being a statutory reliance upon foreign nationals in order to support US law – looking to the eighteenth-century Alien Tort Statute for guidance would prove unsatisfactory.

               Among other things, Alien Tort was enacted in 1789 for different and very precise reasons; it has never been leveraged for the markedly urgent purpose currently under discussion.[27]

               There is more. Under authoritative international law, the criminal responsibility of individuals cannot be removed by the unilateral actions of any national government. This is because a person is always liable for punishment by international law independently of any exculpatory provisions of internal law.

               Significantly, this fundamental principle references the unchallengeable “supremacy” of international law over national law.[28] At Nuremberg, the Tribunal included the following statement in its binding final judgment: “…the very essence of the Charter (London Charter of August 8, 1945) is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.”[29]

               States have a reciprocal and peremptory obligation[30]  to avoid “denials of justice”[31] in the sense intended by international  law.  This vital obligation is based on eminently reasonable concerns that by pardoning a criminal, a state “assumes responsibility for his past acts.”[32] In the particular case of  multiple Trump pardons for violations of international law, especially those pardons involving war crimes, this means reputational consequences. By definition, this signifies consequences that include specific legal diminutions of the United States.

               At this stage, the only potentially realistic source for any justice-based remediation  of Trump pardons involving international law would have to originate with President Joe Biden. Though conceivable in law-supporting principle, any presumed imperative to take this technically-complicated route is also apt to be outweighed by the new president’s legitimate hopes for both national and international reconciliation. To be sure, the prospective value of such law-enforcing hopes ought not to be minimized or disparaged, but there should nonetheless remain a prominent place for the US Constitution.

               It is a document that deserves to be taken seriously on all counts.

               As has now been made manifest, under terms of Article 2, Section 2 of the Constitution, a US president has authority to pardon only for “Offenses against the United States.” When Donald J. Trump pardoned several US citizens who had been complicit in various egregious offenses against the law of nations, this president wittingly exceeded his lawful authority. Naturally, as a practical matter, after a sitting president encouraged an armed insurrection  against his own country – an insurrection that led directly to his second impeachment trial – this less palpable Trump violation pales in hierarchical importance. Still, it warrants meaningful condemnation and suitable punishment.

               To the extent that Americans could now agree to demand more genuinely law-observant presidents, it will be crucial to preserve legal memory of this  overlooked violation and to do whatever is Constitutionally required to prevent similar pardon-related derelictions . Among other grievous harms, ignoring such a primary legal obligation in the future could sometime heighten the odds of spawning serious international conflict. In an utterly worst-case scenario, this expanded risk-prospect would include even a nuclear war.[33]

——————–


[1] These coinciding expectations concern a US president’s authoritative incapacity to pardon for crimes committed against international law. These normative expectations are also mutually reinforcing.

[2] For sources of international law, see art. 38 of the Statute of the International Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945.  59 Stat. 1031,  T.S. No. 993,  3 Bevans 1153, 1976 Y.B.U.N., 1052.

[3] For official US Department of Justice listing of all Trump pardons, see: https://www.justice.gov/pardon/pardons-granted-president-donald-trump

[4] International law, which is an integral part of the legal system of all states in world politics, already assumes a reciprocally common general obligation to supply benefits to one another, and to avoid war at all costs. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is not even subject to question. It can be found already in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).

[5] The US Neutrality Act, 18 U.S.C. Sec. 960 (originally Sec. 25)(1794) was enacted in order to implement this Law of Nations. Pertinent Congressional authority derived most specifically from article 1, Section 8, clause 10 of the U.S. Constitution. See also Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 156 (1795)(Paterson, J).

[6] International law is ultimately deducible from natural law. According to Blackstone, each state and nation is always expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.” Lest anyone ask about the current significance of Blackstone, one need only point out that Commentaries represent the original and core foundation of the laws of the United States.

[7] Natural Law is based upon the acceptance of certain principles of right and justice that prevail because of their own intrinsic merit.  Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason.  This dynamic idea and its attendant tradition of human civility runs continuously from Mosaic Law and the ancient Greeks and Romans to the present day.  For a comprehensive and far-reaching assessment of the natural law origins of international law, see Louis René Beres, “Justice and Realpolitik:  International Law and the Prevention of Genocide,” The American Journal of Jurisprudence, Vol. 33, 1988, pp. 123-159.  This article was adapted from Professor Beres’ earlier presentation at the International Conference on the Holocaust and Genocide, Tel-Aviv, Israel, June 1982.

[8] International law is part of US domestic law. In the precise words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”  See The Paquete Habana, 175 U.S. 677, 678-79 (1900).  See also:  The Lola,  175 U.S. 677 (1900);  Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774,  781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied,  470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).

[9] We may recall here Thomas Aquinas’ commentary on Augustine: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs, a thing is said to be just when it accords aright with the rule of reason; and as we have already seen, the first rule of reason is the Natural Law. Thus, all humanly enacted laws are in accord with reason to the extent that they derive from the Natural Law. And if a human law is at variance in any particular with the Natural Law, it is no longer legal, but rather a corruption of law.” See: SUMMA THEOLOGICA, 1a, 2ae, 95, 2; cited by A.P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPPHY (1951), pp. 42-43.

[10] Emmerich de Vattel’s The Law of Nations or the Principles of Natural Law (1758) gives important emphasis to the natural law origins of international law. Arguing from the assumption that nations are no less subject to the laws of nature than are individuals, he concludes that what one man owes to other men, one nation, in turn, owes to all other nations: “Since Nations are bound mutually to promote the society of the human race, they owe one another all the duties which the safety and welfare of that society require.” With this in mind, Vattel proceeded to advance a permanent standard by which we can distinguish between lawful and unlawful practices in global affairs: “Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change. Since this law is not subject to change, and the obligations which it imposes are necessary and indispensable, Nations can not alter it by agreement, nor individually or mutually release themselves from it.” (See: Vattel, The Law of Nations, supra, Introduction to Book I, p. 4.)

[11] “States shall not take….any measures  which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.” See Principles of International Cooperation, General Assembly Resolution, 1973 See Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, GA Res. 3074 (XXVlll), 3 December 1973.

[12] See United States v. Grossman, 1 F. 2d 941, 950 (N.D. 111. 1924).

[13] This law includes certain norms of a customary as well as codified nature. Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.”  59 Stat.  1031,  T.S. No. 993 (June 26, 1945).  The norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention.  International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law.  “Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.”  See Military and Paramilitary Activities (Nicaragua v. U.S.),  1986 I.C.J. Rep.  14,  para. 178 (June 27).

[14] 726 F.2d at 787 (Edwards, J., concurring).

[15] In this regard, consider Emmerich de Vattel, The Law of Nations (1758),  “The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.”

[16] See e.g., United States v La Jeune Eugenie, 26 F. Cas. 832, 846 (C.C.D. Mass, 1822)(No. 15, 551)(regarding “an offense against the universal law of society.) Per Jordan J. Paust, “…violations of international law are not merely offenses against a sovereign, and a sovereign cannot absolve them.” See: Jordan J. Paust, “Contragate and the Invalidity of Pardons for Violations of International Law,” Houston Journal of International Law, Vol. 10:51 (52). It should also be noted that Professor Paust’s refined work on these complex  legal issues was both seminal and exemplary.

[17] Slatten and the other three convicted Blackwater defendants were found guilty of war crimes (see below) including “Grave Breaches.” This term applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977.  The actions defined as “Grave Breaches” in the four Conventions must be performed willfully or intentionally, and against the different groups of “protected person” identified by each Convention.  The High Contracting Parties to the Geneva Conventions are under obligation “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,” a grave breach of the Convention.  As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T.  3516, signed on Aug. 12 1949, at Geneva),  Grave Breaches  “shall be those involving any of the following acts, if committed against persons or property protected by the present Convention:  willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.  Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS,  UNITED NATIONS DOCUMENT,  S/25274,  January 2, 1993, at Sec. 3.,  Art. 47.

[18] “Crimes of War” concern (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules.  Codified primarily at the Hague and Geneva Conventions, and known thereby as the Law of the Hague and the Law of Geneva, these rules seek, inter alia, to bring discrimination (distinction); proportionality and military necessity into belligerent calculations.  On the main corpus of jus in bello, see: Convention No. IV, Respecting the Laws and Customs of War on Land, With Annex of Regulations,  Oct. 18, 1907,  36 Stat. 2277,  T.S. No. 539,  1 Bevans 631 (known commonly as the “Hague Regulations”);  Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,  Aug. 12, 1949,  6 U.S.T.  3114,  T.I.A.S.  No. 3362,  75 U.N.T.S.  85;  Convention Relative to the Treatment of Prisoners of War,  Aug. 12, 1949,  6 U.S.T.  3316,  T.I.A.S.  No. 3364,  75 U.N.T.S.  135;  Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,  1949,  6 U.S.T.  3516,  T.I.A.S.  No. 3365,  75 U.N.T.S.  287.

[19] It was essentially on the basis of these incorporations (and not antecedent codified and/or customary international law) that the four Blackwater defendants were originally prosecuted by the US Department of Justice. It follows that the herein-discussed international law violation exception to a US president’s power to pardon could not be correctly invoked in these cases. The actual language of their respective pardons excused them only for crimes under US law, which would have included Title 18 federal court) and Title 10 (military court). Nonetheless, at least in principle, these four convicted and pardoned war criminals could still become the object of assorted extradition requests sometime during the upcoming Biden presidency or after – for alleged war crimes in Iraq and/or Afghanistan (venues outside of the United States).Moreover, all  four will remain subject to arrest and prosecution if they should travel anywhere outside of the United States.

[20] Criminal responsibility of leaders under international law is not limited to direct personal action or by official position. On the principle of command responsibility, or respondeat superior, see, e.g., Yamashita v. Styer, 327 U.S. 1(1945); Trial of Wilhelm von Leeb(Case No. 72) 12 L. Rep. Trials War Criminals 1 (1948);William V. O’Brian, The Law of War, Command Responsibility and Vietnam, 60 GEO. L.J.605 (1972); William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1(1973). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 7, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

[21] See United States v, Wilson, 32 (U.S. 7 Pet., 150, 160 (1833)(Marshall, CJ writing for the majority.). See also, Laurence Tribe, American Constitutional Law 193, n.10 (1978). On the president’s obligation to faithfully execute international law, see: J. Paust, “The President is Bound by International Law,” 81 A. J. Int’l L., 377(1987).

[22] Bk. I, Sec. 338 of Plato, The Republic, (B. Jowett tr., 1875). 

[23] Taken from Plato’s lexicon of philosophical investigation, dialectic has its root in the Greek verb meaning “to converse,” where the objective of any such conversation is to discover “what each thing actually is.” (Republic.) Speaking through Socrates, it is evident that Plato regarded dialectic as the highest or supreme form of inquiry and knowledge.

[24] https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[25] Originally enacted as section 9 of the Judiciary Act of 1789, granting to district courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980, in a suit pertaining to the international crime of torture (a crime conceivably relevant to one or more of the listed Trump pardon beneficiaries), the US court upheld federal jurisdiction under the Alien Tort Statute because the crime of torture was in violation of “modern international law.” See: Filartiga v. Pena-Irala; 630 F.2d, 876 (2d Cir. 1980)(Kaufman, J.).

[26] See for example, Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa. Sup. Ct 1784).

[27] Alien Tort could only grant actual victims or their survivors a capacity to seek monetary damages. It would not directly serve the interests of countermanding or remediating  any relevant Trump pardons.

[28] Significantly, for the matter at hand, post-Nuremberg, this supremacy extends to leaders, who are now legally responsible even for indirect crimes. In essence, under an always-overriding  international law, the criminal responsibility of leaders is not limited to direct personal action nor is it necessarily limited by official position.  On the peremptory principle of command responsibility, or respondeat superior, see:  In re Yamashita,  327 U.S. 1 (1945);  The High Command Case (The Trial of Wilhelm von Leeb),  12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp., 1949);  see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES,  62 MIL.L. REV. 1 (1973);  O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM,  60 GEO. L.J.  605 (1972);   U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907),  10 (1970).  The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS,  Aug. 8, 1945,  59 Stat.  1544,  E.A.S.  No. 472,  82 U.N.T.S.  279,  art. 7.

[29] The principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL.  Adopted by the U.N. General Assembly, Dec. 11, 1946.  U.N.G.A. Res. 95 (I), U.N. Doc. A/236 (1946), at 1144.  This AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL (1946) was followed by General Assembly Resolution 177 (II), adopted November 21, 1947, directing the U.N. International Law Commission to “(a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offenses against the peace and security of mankind….” (See U.N. Doc. A/519, p. 112).  The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL.  Report of the International Law Commission, 2nd session, 1950, U.N. G.A.O.R. 5th session, Supp. No. 12, A/1316, p. 11.

[30] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[31] See The Federalist No. 80 (Hamilton).

[32] See 1 Restatement of the Foreign Relations Law of the United States (Revised) Sec. 711, 2B (Tent, Draft No, 6, 1985).

[33] For early accounts by this author of nuclear war risks and consequences, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986). Most recently, by Professor Beres, see: Surviving Amid Chaos: Israel’s Nuclear Strategy (New York, Rowman & Littlefield, 2016; 2nd ed. 2018). https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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The Private And Public Joe Biden: Belief And Policy

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Official White House Photo by Cameron Smith

Joe Biden supports abortion rights politically, a position conflicting with doctrine in the Catholic church.  Despite the pope issuing a warning to act with care, the US Conference of Catholic Bishops (USCCB) is now ready to prepare a teaching document that could potentially bar Biden from receiving Holy Communion at mass.  A central sacrament during mass, Catholics believe that eating the consecrated wafer dipped in wine, representing the body and blood of Jesus Christ, unites them with their savior fortifying them to face evil temptations.

The USCCB vote to prepare the document was an overwhelming 168-55, and a committee of US bishops has been assigned the task.  Responding to questions, President Biden called it a private matter.  The document is expected to be ready in time for debate at the November bi-annual conference of US Catholic Bishops.

If that is one headache for Biden, another is in the offing.  Perhaps as a consequence of US policy towards Iran, the election of a hard-liner in Iran’s presidential election seems almost certain.  Judge Ebrahim Raisi, who is also Iran’s top judge, is on his way to victory on the basis of the votes counted so far.

The 60-year old cleric spent most of his life as a prosecutor until he was appointed Iran’s top judge in 2019.  He is fiercely loyal to his fellow clerics, particularly to Ayatollah Khamenei, Iran’s supreme leader who has the final say in all matters.  All the same, the president does the administration and has significant input in both domestic and foreign policy.  Suffice to say, Raisi lost in a landslide to Hassan Rouhani, who sought accommodation with the West, in the previous election four years ago.

Having played hardball with Iran, the US is repeating itself with a Russia anxious for better relations.  Following the G7 meeting in Cornwall a week ago, President Biden flew to Geneva meeting President Putin at the Villa La Grange for a closely-watched summit.

Relations between the two countries have been tense following a series of events including the Russian annexation of Crimea.  The latter was transferred to Ukraine for administrative convenience when a connecting bridge was being constructed so that both ends of it would fall under the same authority.  The people of Crimea have no other connection with Ukrainians other than they were both part of the Soviet Union. 

Climate change, arms control, cyber security and American interest in jailed dissenters in Russia including Alexei Navalny .  Reading the riot act to Mr. Putin does little to further stability in relations.  Peace is not a problem among like-minded countries with a commonality of interests, it is a challenge when the parties are rivals, nuclear armed, and capable of blowing up the world.  Mr. Biden may be proud of his performance but is he able to accept the challenge, for if not where does it leave the rest of us …

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Is Covid-19 Zoonotic, Natural or Lab-engineered?

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President Trump led the US government propaganda that Coronavirus originated in WIV. However, even after twelve months the US government failed to provide factual or scientific evidence. Now, the Biden administration, inspired by the “dark web,” has tasked the US intelligence community to produce evidence in 90 days to establish that COVID-19 had no “natural ancestors.” As half the world’s scientific community is busy speculating, a simple forensic investigation is what is needed to find the answer.

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“Throw enough dirt, and some will stick”  – Thomas Boghardt, Historian

Recently, there has been growing renewed interest in Coronavirus “lab leak” hypothesis. One can only speculate if more recent revelations of the presence of coronavirus in the US in mid-December 2019 – weeks before the first confirmed case was announced on January 21, 2020, would impact Wuhan lab leak controversy. But thanks to Trump’s “anti-China xenophobia,” for past whole year the leak theory was sidelined in public scientific debate in the US. As Covid-19 was turning into a global pandemic, the lab leak hypothesis got stuck in “hyper-politicized context.” Looking to inject fresh energy in his ongoing anti-China rhetoric with eyes on the November presidential vote, President Trump began “instrumentalizing the Wuhan Institute of Virology (WIV) lab leak theory and even called it “China Virus” and “Kung Flu.” According to media reports, such pernicious intertwining of anti-China rhetoric and the xenophobic framing of the pandemic “caused an apparent chilling effect among the scientific community.”

During the past twelve months, science writers mocked and some even condemned anyone claiming lab leak origins of Coronavirus. Now, same lot among these writers and a few more joining them afresh, have lately been saying that Coronavirus may well have originated in a lab in Wuhan. As The New Yorker’s veteran political editor Amy Davidson Sorkin observed last Sunday, with President Biden entering the battle over the coronavirus lab-leak theory “the debate about the origin of the pandemic has become loud, contentious, and infused with politics.”  A rare Chinese commentary even alleged the Biden administration’s call for a fresh probe into the origins of Covid-19 is inspired by the latest “explosive” new study by two European scholars claiming that “Chinese scientists created the virus in Wuhan Institute of Virology (WIV) laboratory.”

What has changed for these science writers? If we go by what author and activist David Swanson says, nothing really. Swanson, who is also a popular radio host, thinks the latest change in the stance of the scientific community is largely a question of fashion. (Emphasis added) Indirectly attributing the “new outlook” of the scientists to the fresh call coming from the White House, Swanson wrote in a recent article “One doesn’t wear a wrong outfit too early in the season, or explore the wrong epidemiological idea when the White House is claimed by one Party or the other.” In fact, Swanson refused to be persuaded by the fact that the virus jumping out of the Wuhan lab was cause enough to condemn or “hate” China. Why?

Swanson offers two reasons. First, the bogey that the virus was created by Chinese scientists engaged in “Gain of Function” (GoF) project. Further elaborating on “Gain of Function” projects, Sorensen told DailyMail.com in an interview recently, GoF research involves “tweaking natural viruses to make them more infectious” and had been outlawed by former US President Barack Obama. Although denying the money US invested in WIV had gone into GoF projects, Dr. Antony Fauci told US lawmakers just the other day that the US National Institute of Health funded WIF with $600,000 between 2015 and 2021. So, instead of limiting one’s hatred for China, if China is a military threat, then why fund its bioweapons research? Swanson asked. Indeed, extremely pertinent question!

The other reason Swanson did not consider Coronvirus lab leak theory worthy of condemnation has much to do with the issue of censorship surrounding the whole topic of bioweapons in the US. For example, no one is supposed to know what is common knowledge anyway that the 2001 Anthrax attacks originated with material from a US bio- weapons lab. Or that Lyme disease which affects 400,000 Americans every year spread from a US bioweapons lab. Therefore, for Swanson, plausibility of a lab leak, even if never proven, is a new good reason to shut down all the world’s bioweapons labs. It is beyond comprehension why all those for probing the coronavirous lab leak origin are silent and have not demanded a ban on all the world’s bioweapons labs! (Emphasis added)

But why even after one and a half year since Covid-19 was detected in Wuhan, its source of origin remains a mystery? What about the WHO probe? Perhaps a calculated decision, or maybe not, as soon as President Trump exited the White House, the WHO sent a much awaited investigative team of seventeen experts to Wuhan. After spending four weeks in the “city of silence,” during which the team visited the laboratory, the WHO scientists concluded the lab-leak theory was “extremely unlikely.” But in a bizarre twist, even the so-called “China-centric” WHO chief Tedros surprised everyone and angered China, when speaking in Geneva two months ago he said “although the [WHO scientific] team has concluded that a laboratory leak is the least likely hypothesis, this requires further investigation.”    

On the other hand, China, as expected has repeatedly denied WIV was responsible for the lab leak and insisted that the virus emerged naturally or that it was zoonotic. In fact, by refusing to be either transparent or cooperative in sharing information, Beijing has only furthered global backlash against China’s antagonistic policies. China’s foreign ministry hitting back at the US as Biden ordered to revisit Wuhan lab leak theory is the latest example of its “wolf-warrior” attitude. China’s official media is no different. A month before the Wall Street Journal renewed media onslaught against Beijing in May end, official Chinese news broadcaster CGTN stated: “With Trump gone, the lab leak hypothesis is now acceptable. This plays into both an old Orientalist trope as well as a modern Sinophobic one to manufacture consent for America’s hybrid war against China.”

Though not officially declared a “taboo” subject, the op-ed commentaries have been scarce and few and far between on the WIV lab leak theory in China. A recent signed commentary jointly written by a seasoned India watcher who uses pen name “countryside Brahmin” and South Asian affairs expert Gao Xirui, strongly challenged May 26 executive order by President Biden. The commentary also ridiculed India for “piggy riding” America in the latest lab leak theory hype. The authors attributed Biden’s renewed interest in WIV lab leak to the recent study published in the science journal Quarterly Review of Biophysics Discovery by two European scientists, cited in the early part of this article.

Earlier on in August last year, WIV scientists had again refuted the leak theory. Speaking to the NBC News from the US which became the first foreign news agency to get access to the laboratory, Wang Yanyi, the WIV director had said: “None of the institute’s scientists contracted the virus, which made it extremely unlikely that the pathogen could have escaped from the facility.” NBC News in its report claimed WIV had been targeted because it was equipped to study the world’s “highest-risk infectious agents and toxins, like the latest coronavirus.” More recently, a GT editorial described President Biden ordering fresh probe as indulging in a bigger gamble against China than even Trump.  “No matter what Biden has in mind, the US government is generally up to something big against China,” the edit said.

As the flip-flop on the “leak theory” in the US continues, the narrative is not only inconclusive but still unfolding. Just as this write-up was near closing, the Financial Times reported researchers in the US fear “decades of fortuitous partnership” between the USA and P R China is under threat, all thanks to Wuhan lab row. “Beginning 2004, the US Centers for Disease Control and Prevention signed an agreement with the Chinese National Influenza Centre to help China improve its analysis of seasonal flu strains.  Scientists are now worried this type of collaboration is under threat, imperiled by mutual suspicions which have been exacerbated by the recent row over whether Covid-19 could have come from a lab leak in Wuhan,” the FT reported. Over the next decade, the US trained nearly 2,500 Chinese scientists and helped open dozens of laboratories in the country, the report added.    

Finally, according to Richard Ebright, “little has changed in terms of scientific evidence since the genome sequence of the virus was first released in January of 2020.” Ebright is one of 21 international scientists who detailed what a full, interdisciplinary investigation in Wuhan should look like in an open letter last March. At the same time, security analysts and think tank scholars in the US believe the new administration is forced to chase “lab leak” theory as “Biden doesn’t want to look ‘weak on China’.” Meanwhile, as China’s media is comparing the lab leak theory with the infamous “washing powder” lie about the WMDs in Iraq, professor Ebright has inadvertently replied to the New Yorker’s demand to find real answers. “The coronavirus origin can be answered through a forensic investigation, not a scientific speculation,” Ebright averred.   

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Juneteenth and Getting Over Our Systemic Induced Ignorance and Denial

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Juneteenth Day after generations of struggle for national recognition with local and statewide celebrations for years   here and there,is finally a paid federal holiday as of yesterday. If you are  an African American like me who grew up in the North with second generation or more deep southern born  parents and/ or in majority white communities or in those northern and west coast communities without deep southern African American migrants particularly from Texas, chances are you never heard about Juneteenth day while growing up. And like me you may not have even heard of the day before in much older age ranges unless you happened to be an expert in or well read in African American history, culture, and politics as an African American or Non-African American.And such  African American cultural expertise and literacy is a rarity in a nation which is routinely  ignorant of and has  denied its horrible enslaved African American history systemically ; which means most of we Americans irrespective  of our ancestries have  been victimized by systemic induced ignorance and denial by federal and state governments refusing for generations to tell us a truth which has kept us all degraded and dehumanized by a horrible racialized injustice with we  as a nation has yet to repent of and authentically do systemic penitence about. 

This systemic induced ignorance and denial about African American enslavement has gravely tainted our character as a nation since colonial times and  consistently makes our claims to be a democracy the brunt of cruel jokes globally through the generations.It  has over time constantly played effectively into the hands of our global allies and foes who then justify their own racialized and cultural prejudices and inequalities.

When not denied, the enslavement of African Americans even today has been publicly portrayed by right wing commentators as being not really all that bad or as a gift to Africans to save us through capture and enslavement  from the clutches of what they viewed and still do as the dark continent replete with what their hero formerly in the White House called sh**hole countries.

The seemingly surprising easy Congressional passing of The 2021 Juneteenth National Independence Day Act and its signing by President Biden was not so shocking given the present political climate in a guilt ridden  polarized country with a usual gridlock Congress and a President skilled at plucking off the branch low hanging apples and oranges rather than climbing the full  height of  the  tallest trees to get the even more ripe fruit. The passing and signing of the bill came off the backs of scores if not hundreds and thousands  mostly African Americans advocating for decades indeed generations  for the day to be memorialized as the  enslaved African American  day of independence from slavery already being celebrated around the country and recognized by 47 states though mostly as unpaid holidays. The problem is on the national level fresh from four years of mainstreaming of white nationalism in electoral and judiciary  appointment politics and a hysterical convoluted media about racial issues and in the aftermath of the George Floyd protest we remain  very much a rudderless nation without effective restorative justice leadership to lead us to a more just America including all of us. How can we become more just in more than symbolic ways if we allow ourselves to be subjected to the passing of  civil rights acts like this one which look good and mean good while we remain a nation in which systemic  ignorance and denial of the enslavement of African Americans and their continued enslavement after abolition though under different names and structures such as Jim Crow, chain gangs, cotton tenancy,  community massacres, mass incarceration, human trafficking, defunding public education, perpetual urban and rural poverty, street violent prone  illegal drugs dumping grounds,  loan shark predator communities, ill- health communities,and police brutalized communities with low standards of housing and quality of life services? The tossing of symbolic crumbs of racial justice progress by American governments, businesses, schools, media, faith communities, and nonprofit organizations with no sustainable advances in authentic justice has since the ending of the American Civil War in 1865  been a soroid American public tradition which keeps us twirling in a sewer of societal morass.Consequently , we continue to remain a nation in which we all grow up becoming less than what we all can be collectively and individually because we have buried this horrible crime of humanity which haunts and cripples all of us emotionally, economically, socially,and politically 

 in ways we systemically are induced to deny and ignore.We therefore  don’t have the cognitive and socioemotional tools and skills  to  bring ourselves to admit and authentically reckon with  the horrible blight of African American enslavement through genuine though painful restorative justice practices. Restorative justice practices that is   to regain our humanity through embracing truly the humanity of others we have been taught from the crib to old age are less than human or more than human due to their ancestry dangerously distorted through the myth making of ” race.” 

It is tempting to say as I started to write that well at least The 2021 Juneteenth National Independence Day Act  is a start.But the problem with that almost Freudian slip of a neo- liberal tongue is that we are always saying that about symbols of racial justice in America which usually just stay there ” as a start” which go nowhere except on the resumes of politicians and civil rights leaders while no next steps occur to assure genuine sustaining justice occurs. And when I say justice I mean for everyone since when one population is unfree we are all unfree..when one population becomes freed we all become free.

What this means in regards to The 2021 Juneteenth National Independence Day Act is that the Biden-Harris administration as the next step needs to, through Executive Order, mobilize their cabinet secretaries to do the necessary expedited policy  designs,declarations, and monitorings  to require the agencies and institutions under their jurisdictions with positive incentives to  effective policy implementers such as bonuses and promotions to spread public awareness about the atrocious history of the enslavement of African Americans , their legal abolition and their continued enslavement in these post- emancipation eras.It should be stressed that the enslavement of African Americans , legal emancipation, and the continued impacts of enslavement in its different names and structures is not just an African American experience.African American enslavement was and remains  a tragic societal experience which negatively impacts every American no matter our ancestral origin when it comes to our mental health, interpersonal relationships, our electoral and appointment politics, and the health of our  families,communities, and economies.

So as we move forward with The 2021 Juneteenth National Independence Day Act  let us not just assume it is for Black folks only though we all get the day off with pay irrespective of our ancestries and our care or awareness about the significance of the day.

Let us, we the people, insist to the Biden-Harris administration  as a means of accountability , that we  go beyond mere resume building  political posturing since they took the keys and opened a too long closed door we all need to step in as a nation and do the necessary to wake us all from the slumber of induced ignorance of this filthy little secret  -the enslavement of African Americans as a crime against humanity and its post- legal emancipation continuation  which impacts all of us in need of public exposure and resolution authentically.No  more symbolic resume building crumbs and celebrations which lead us down paths to nowhere except filled bellies and perchance hangovers once a holiday is over only to discover when sober again we are all still dehumanized by our systemic induced ignorance and denial  of a grave centuries long racialized injustice now in need of total exposure and genuine reckoning for now we can and thus we must.

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