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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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Early Elections in Canada: Will the Fourth Wave Get in the Way?

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On August 15, Justin Trudeau, the Prime Minister of Canada and leader of the Liberal Party, announced an early parliamentary election and scheduled it for September 20, 2021. Canadian legislation allows the federal government to be in power up to 5 years, so normally, the elections should have been held in 2023. However, the government has the right to call early elections at any time. This year, there will be 36 days for the pre-election campaigns.

At the centre of the Liberals’ election campaign is the fight against the COVID-19 epidemic in Canada and the economic recovery. The coronavirus has also become a motivator for early elections. In his statement, Justin Trudeau emphasised that “Canadians need to choose how we finish the fight against COVID-19 and build back better. Canadians deserve their say, and that’s exactly what we are going to give them.” Thus, the main declared goal of the Liberals is to get a vote of confidence from the public for the continuation of the measures taken by the government.

The goal, which the prime minister did not voice, is the desire of the Liberal Party to win an absolute majority in the Parliament. In the 2019 elections, the Liberals won 157 seats, which allowed them to form a minority government, which is forced to seek the support of opposition parties when making decisions.

The somewhat risky move of the Liberals can be explained. The Liberals decided to take advantage of the high ratings of the ruling party and the prime minister at the moment, associated with a fairly successful anti-COVID policy, hoping that a high level of vaccination (according to official data, 71% of the Canadian population, who have no contraindications, are fully vaccinated and the emerging post-pandemic economic recovery will help it win a parliamentary majority.

Opinion polls show that the majority of Canadians approve Trudeau’s strategy to overcome the coronavirus pandemic. Between the 2019 elections and the onset of the COVID-19 pandemic, Trudeau’s government was unpopular, with ratings below 30%. Unlike Donald Trump, Trudeau’s approval rating soared after the outbreak of the pandemic to 55%. During the election campaign, the rating of the Liberal Party decreased and was 31.6% on September 16, which reduces the chances of a landslide victory.

Trudeau left unanswered the question of whether he’d resign if his party fails to win an absolute majority in the elections.

Leaders of opposition parties—the Conservative Party, the New Democratic Party, Bloc Québécois, and the Green Party—criticised Trudeau’s decision to call early elections, considering the decision inappropriate for the timing and situation with regard to the risk of the fourth wave of the coronavirus epidemic. They stressed that the government’s primary task should be taking measures to combat the pandemic and restore the economy, rather than trying to hold onto power.

The on-going pandemic will change the electoral process. In the event of a fourth wave, priority will be given to postal voting. Liberal analysts are concerned that the registration process to submit ballots by mail could stop their supporters from voting, thereby undermining Trudeau’s drive to reclaim a majority government. However, postal voting is the least popular among voters of the Conservative Party, and slightly more popular among voters of the Liberal and New Democratic parties. The timeframe for vote-counting will be increased. While ballots are usually counted on the morning after election day, it can take up to five days for postal voting.

One of the key and most attractive campaign messages of the Liberal Party is the reduction of the average cost of childcare services. Liberals have promised to resolve this issue for many years, but no active action has been taken. Justin Trudeau noted that the pandemic has highlighted the importance of this issue.

As in the 2019 elections, the Liberal Party’s key rival will be the Conservative Party, led by new leader Erin O’Toole. The Conservative Party’s rating a five days before the election was 31.3%. Conservatives suggest a different approach to childcare—providing a refundable child tax subsidy that covers up to 75% of the cost of kindergarten for low-income families. Trudeau has been harshly criticised by the Conservatives in connection with the scale of spending under his leadership, especially during the pandemic, and because of billion-dollar promises. In general, the race will not be easy for the conservative O’Toole. This is the first time he is running for the post of prime minister, in contrast to Justin Trudeau. Moreover, the Conservative Party of Canada is split from within, and the candidate is faced with the task of consolidating the party. The Conservative will have to argue against the billion-dollar promises which were made by the ruling Liberals before the elections.

The leaders of the other parties have chances to increase their seats in Parliament compared to the results of the 2019 elections, but they can hardly expect to receive the necessary number of votes to form a government. At the same time, the personal popularity of Jagmeet Singh, the candidate from the New Democratic Party, is growing, especially among young people. The level of his popularity at the end of August was 19.8%. Singh intends to do everything possible to steal progressive voters from the Liberal Party and prevent the formation of a Liberal-majority government. Singh will emphasise the significant role of the NDP under the minority government in the context of the COVID-19 pandemic and highlight that it was the New Democratic Party that was able to influence government decisions and measures to support the population during the pandemic.

Bloc Québécois leader Yves-François Blanchet, whose popularity level was 6.6%, intends to increase the Bloc’s presence in Parliament and prevent the loss of votes in the province of Quebec in favour of the Liberal Party. According to him, it is fundamentally important to protect the French language and the ideas of secularism. The Bloc Québécois is also not interested in the formation of a majority government by the Liberals.

Green Party leader Annamie Paul is in a difficult position due to internal party battles. Moreover, her rating is low: 3.5%. Higher party officials have even tried to pass a no-confidence vote against her. Annamie Paul’s goal is, in principle, to get a seat in Parliament in order to be able to take part in voting on important political issues. The Greens are focused on climate change problems, the principles of social justice, assistance to the most needy segments of the population, and the fight against various types of discrimination.

Traditionally, foreign policy remains a peripheral topic of the election campaign in Canada. This year, the focus will be on combating the COVID-19 epidemic, developing the social sphere, and economic recovery, which will push foreign policy issues aside even further.

The outcome of the elections will not have a significant impact on Russian-Canadian relations. An all-party anti-Russian consensus has developed in Canada; none of the parties have expressed any intention of developing a dialogue with Russia.

From our partner RIAC

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Interpreting the Biden Doctrine: The View From Moscow

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Official White House Photo by Carlos Fyfe

It is the success or failure of remaking America, not Afghanistan, that will determine not just the legacy of the Biden administration, but the future of the United States itself.

The newly unveiled Biden doctrine, which renounces the United States’ post-9/11 policies of remaking other societies and building nations abroad, is a foreign policy landmark. Coming on the heels of the U.S. withdrawal from Afghanistan, it exudes credibility. Indeed, President Biden’s moves essentially formalize and finalize processes that have been under way for over a decade. It was Barack Obama who first pledged to end America’s twin wars—in Iraq and Afghanistan—started under George W. Bush. It was Donald Trump who reached an agreement with the Taliban on a full U.S. military withdrawal from Afghanistan in 2021. Both Obama and Trump also sought, albeit in strikingly different ways, to redirect Washington’s attention to shoring up the home base.

It is important for the rest of the world to treat the change in U.S. foreign policy correctly. Leaving Afghanistan was the correct strategic decision, if grossly overdue and bungled in the final phases of its implementation. Afghanistan certainly does not mean the end of the United States as a global superpower; it simply continues to be in relative and slow decline. Nor does it spell the demise of American alliances and partnerships. Events in Afghanistan are unlikely to produce a political earthquake within the United States that would topple President Biden. No soul searching of the kind that Americans experienced during the Vietnam War is likely to emerge. Rather, Washington is busy recalibrating its global involvement. It is focusing even more on strengthening the home base. Overseas, the United States is moving from a global crusade in the name of democracy to an active defense of liberal values at home and Western positions abroad.

Afghanistan has been the most vivid in a long series of arguments that persuaded Biden’s White House that a global triumph of liberal democracy is not achievable in the foreseeable future. Thus, remaking problematic countries—“draining the swamp” that breeds terrorism, in the language of the Bush administration—is futile. U.S. military force is a potent weapon, but no longer the means of first resort. The war on terror as an effort to keep the United States safe has been won: in the last twenty years, no major terrorist attacks occurred on U.S. soil. Meantime, the geopolitical, geoeconomic, ideological, and strategic focus of U.S. foreign policy has shifted. China is the main—some say, existential—challenger, and Russia the principal disrupter. Iran, North Korea, and an assortment of radical or extremist groups complete the list of adversaries. Climate change and the pandemic have risen to the top of U.S. security concerns. Hence, the most important foreign policy task is to strengthen the collective West under strong U.S. leadership.

The global economic recession that originated in the United States in 2007 dealt a blow to the U.S.-created economic and financial model; the severe domestic political crisis of 2016–2021 undermined confidence in the U.S. political system and its underlying values; and the COVID-19 disaster that hit the United States particularly hard have all exposed serious political, economic, and cultural issues and fissures within American society and polity. Neglecting the home base while engaging in costly nation-building exercises abroad came at a price. Now the Biden administration has set out to correct that with huge infrastructure development projects and support for the American middle class.

America’s domestic crises, some of the similar problems in European countries, and the growing gap between the United States and its allies during the Trump presidency have produced widespread fears that China and Russia could exploit those issues to finally end U.S. dominance and even undermine the United States and other Western societies from within. This perception is behind the strategy reversal from spreading democracy as far and wide as Russia and China to defending the U.S.-led global system and the political regimes around the West, including in the United States, from Beijing and Moscow.

That said, what are the implications of the Biden doctrine? The United States remains a superpower with enormous resources which is now trying to use those resources to make itself stronger. America has reinvented itself before and may well be able to do so again. In foreign policy, Washington has stepped back from styling itself as the world’s benign hegemon to assume the combat posture of the leader of the West under attack.

Within the collective West, U.S. dominance is not in danger. None of the Western countries are capable of going it alone or forming a bloc with others to present an alternative to U.S. leadership. Western and associated elites remain fully beholden to the United States. What they desire is firm U.S. leadership; what they fear is the United States withdrawing into itself. As for Washington’s partners in the regions that are not deemed vital to U.S. interests, they should know that American support is conditional on those interests and various circumstances. Nothing new there, really: just ask some leaders in the Middle East. For now, however, Washington vows to support and assist exposed partners like Ukraine and Taiwan.

Embracing isolationism is not on the cards in the United States. For all the focus on domestic issues, global dominance or at least primacy has firmly become an integral part of U.S. national identity. Nor will liberal and democratic ideology be retired as a major driver of U.S. foreign policy. The United States will not become a “normal” country that only follows the rules of realpolitik. Rather, Washington will use values as a glue to further consolidate its allies and as a weapon to attack its adversaries. It helps the White House that China and Russia are viewed as malign both across the U.S. political spectrum and among U.S. allies and partners, most of whom have fears or grudges against either Moscow or Beijing.

In sum, the Biden doctrine does away with engagements that are no longer considered promising or even sustainable by Washington; funnels more resources to address pressing domestic issues; seeks to consolidate the collective West around the United States; and sharpens the focus on China and Russia as America’s main adversaries. Of all these, the most important element is domestic. It is the success or failure of remaking America, not Afghanistan, that will determine not just the legacy of the Biden administration, but the future of the United States itself.

From our partner RIAC

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AUKUS aims to perpetuate the Anglo-Saxon supremacy

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Image credit: ussc.edu.au

On September 15, U.S. President Joe Biden worked with British Prime Minister Boris Johnson and Australian Prime Minister Scott Morrison together to unveil a trilateral alliance among Australia-U.K.-U.S. (AUKUS), which are the major three among the Anglo-Saxon nations (also including Canada and New Zealand). Literally, each sovereign state has full right to pursue individual or collective security and common interests. Yet, the deal has prompted intense criticism across the world including the furious words and firm acts from the Atlantic allies in Europe, such as France that is supposed to lose out on an $40-billion submarine deal with Australia to its Anglo-Saxon siblings—the U.K. and the U.S.

               Some observers opine that AUKUS is another clear attempt by the U.S. and its allies aggressively to provoke China in the Asia-Pacific, where Washington had forged an alliance along with Japan, India and Australia in the name of the Quad. AUKUS is the latest showcase that three Anglo-Saxon powers have pretended to perpetuate their supremacy in all the key areas such as geopolitics, cybersecurity, artificial intelligence, and quantum computing. In short, the triple deal is a move designed to discourage or thwart any future Chinese bid for regional hegemony. But diplomatically its impacts go beyond that. As French media argued that the United States, though an ally of France, just backstabs it by negotiating AUKUS in secret without revealing the plan. Given this, the deal among AUKUS actually reflects the mentality of the Anglo-Saxon nations’ superiority over others even if they are not outrageously practicing an imperialist policy in the traditional way.

               Historically, there are only two qualified global powers which the Europeans still sometimes refer to as “Anglo-Saxon” powers: Great Britain and the United States. As Walter Mead once put it that the British Empire was, and the United States is, concerned not just with the balance of power in one particular corner of the world, but with the evolution of what it is today called “world order”. Now with the rise of China which has aimed to become a global power with its different culture and political views from the current ruling powers, the Anglo-Saxon powers have made all efforts to align with the values-shared allies or partners to create the strong bulwarks against any rising power, like China and Russia as well. Physically, either the British Empire or the United States did or does establish a worldwide system of trade and finance which have enabled the two Anglo-Saxon powers to get rich and advanced in high-technologies. As a result, those riches and high-tech means eventually made them execute the power to project their military force that ensure the stability of their-dominated international systems. Indeed the Anglo-Saxon powers have had the legacies to think of their global goals which must be bolstered by money and foreign trade that in turn produces more wealth. Institutionally, the Anglo-Saxon nations in the world—the U.S., the U.K, Canada, Australia and New Zealand—have formed the notorious “Five eyes alliance” to collect all sorts of information and data serving their common core interests and security concerns.

This is not just rhetoric but an objective reflection of the mentality as Australian Foreign Minister Payne candidly revealed at the press conference where she said that the contemporary state of their alliance “is well suited to cooperate on countering economic coercion.” The remarks imply that AUKUS is a military response to the rising economic competition from China because politics and economics are intertwined with each other in power politics, in which military means acts in order to advance self-interested economic ends. In both geopolitical and geoeconomic terms, the rise of China, no matter how peaceful it is, has been perceived as the “systematic” challenges to the West’s domination of international relations and global economy, in which the Anglo-Saxon superiority must remain. Another case is the U.S. efforts to have continuously harassed the Nord Stream 2 project between Russia and Germany.

Yet, in the global community of today, any superpower aspiring for pursuing “inner clique” like AUKUS will be doomed to fail. First, we all are living in the world “where the affairs of each country are decided by its own people, and international affairs are run by all nations through consultation,” as President Xi put it. Due to this, many countries in Asia warn that AUKUS risks provoking a nuclear arms race in the Asian-Pacific region. The nuclear factor means that the U.S. efforts to economically contain China through AUKUS on nationalist pretexts are much more dangerous than the run-up to World War I. Yet, neither the United States nor China likes to be perceived as “disturbing the peace” that Asian countries are eager to preserve. In reality, Asian countries have also made it clear not to take either side between the power politics.

Second, AUKUS’s deal jeopardizes the norms of international trade and treaties. The reactions of third parties is one key issue, such as the French government is furious about the deal since it torpedoes a prior Australian agreement to purchase one dozen of conventional subs from France. Be aware that France is a strong advocate for a more robust European Union in the world politics. Now the EU is rallying behind Paris as in Brussels EU ambassadors agreed to postpone preparations for an inaugural trade and technology council on September 29 with the U.S. in Pittsburgh. European Commission President Ursula von der Leyen declared in a strong manner that “since one of our member states has been treated in a way that is not acceptable, so we need to know what happened and why.” Michael Roth, Germany’s minister for European affairs, went even further as he put it, “It is once again a wake-up call for all of us in the European Union to ask ourselves how we can strengthen our sovereignty, how we can present a united front even on issues relevant to foreign and security policy.” It is the time for the EU to talk with one voice and for the need to work together to rebuild mutual trust among the allies.

Third, the deal by AUKUS involves the nuclear dimension. It is true that the three leaders have reiterated that the deal would be limited to the transfer of nuclear propulsion technology (such as reactors to power the new subs) but not nuclear weapons technology. Accordingly, Australia remains a non-nuclear country not armed with such weapons. But from a proliferation standpoint, that is a step in the direction of more extensive nuclear infrastructure. It indicates the United States and the U.K. are willing to transfer highly sensitive technologies to close allies. But the issue of deterrence in Asia-and especially extended deterrence-is extremely complicated since it will become ore so as China’s nuclear arsenal expands. If the security environment deteriorates in the years ahead, U.S. might consider allowing its core allies to gain nuclear capabilities and Australia is able to gain access to this technology as its fleet expands. Yet, it also means that Australia is not a non-nuclear country any more.

In brief, the deal itself and the triple alliance among AUKUS will take some years to become a real threat to China or the ruling authorities of the country. But the deal announced on Sept. 15 will complicate Chinese efforts to maintain a peaceful rise and act a responsible power. Furthermore, the deal and the rationales behind it is sure to impede China’s good-will to the members of AUKUS and the Quad, not mention of their irresponsible effects on peace and prosperity in the Asia-Pacific region.

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