“A government of laws, and not of men.” -John Adams (1774)
U.S. president Donald J. Trump’s obeisance to Russia’s Vladimir Putin recently escalated to once-unimaginable levels. On its face, such servile behavior is far more serious than matters of diplomatic posture or television appearance. By further encouraging Putin crimes against Ukraine,[1] Trump’s support of aggression and genocide[2] represents an unprecedented crisis of law and justice. Though unknown to most Americans, including distinguished lawyers and members of Congress, violations of international law (aka “the law of nations”) are violations of United States law ipso facto.
The current presidential crisis did not begin with the Trump-Vance Oval Office ambush of Zelensky. Ironically, on multiple occasions, the American president had proudly referenced the United States as “a nation of laws.” This uplifting phrase may offer reassurance to variously-misled millions, but it is not self-authenticating. To wit, before the start of his current administration, Mr. Trump urged a “deal” between Russia and Ukraine in which (1) the victim of aggression would negotiate “peace” with the perpetrator; and (2) the United States would side openly with the aggressor. During the February 28 Oval office meeting, the US leader warned Zelensky that by objecting to Trump-defined conditions of peace, the Ukrainian leader would be “starting World War III.”
Credo quia absurdum, said the ancient Roman jurist Tertullian: “I believe because it is absurd.” Historically and jurisprudentially, it’s as if the 1938 Munich surrender of Czechoslovakia to Adolph Hitler never happened or that the United States was somehow not the lead prosecutorial state at Nuremberg in 1945-46.[3] Because international law is part of the law of the United States,[4] negotiating over Putin’s aggression would simultaneously undermine U.S. law. Among other things, such indifference would make the United States complicit in crimes against peace (aggression),[5] crimes of war (humanitarian international law[6]) and crimes against humanity[7] (genocide).[8]
Under basic international law, Russian crimes against Ukraine are not a transactional or commercial matter. Rather, these crimes must be punished and reversed, not appeased. In words reaffirmed at Nuremberg, a core principle of justice is always Nullum crimen sine poena, “No crime without a punishment.” Jurisprudentially, President Donald Trump’s demand that the victim state “make a deal” with the aggressor for return of its own stolen territory lies far beyond any authoritative limits. To invoke literary genre, any such demand is patently absurd.
Even in our state-based system of international law – the sovereignty-centered system brought into being at the Peace of Westphalia in 1648[9] – a presumption of global community and solidarity ultimately overrides the prerogatives of sovereignty.[10] Following unambiguous legal expectations amplified by the post-World War II Nuremberg Judgment and Principles, states now have not only the right but the obligation to intervene on behalf of basic human rights. Because such obligation is jus cogens or “peremptory,” and may stem from a “higher law,” it is absolutely binding and overriding.[11]
In formal legal terms, the harms that Russia continues to inflict on Ukraine represent criminal behavior of “international concern.” Accordingly, every state member of the community of nations has the right and the obligation to stand against the Russian aggressor and with the Ukrainian victim. Scholars and policy-makers can find conspicuous support for this imperative in the classical legal writings of Cicero, Hugo Grotius, Samuel Pufendorf and Emmerich de Vattel. Though such names will be unrecognizable to President Trump, his Vice President, cabinet members and most Members of Congress, they were well known to Founding Fathers of the United States. Now, it is high time that political leaders who ritually proclaim this government as one “of laws, not of men” be reminded as follows: Both international law and US law are drawn from a timeless and universal “law of nature” (aka “natural law” or “higher law”).[12]
There I s more. By definition, the natural law origins of the United States can never be reasonably challenged or permissibly abrogated. Vladimir Putin’s Nuremberg-category crimes not “only” undermine international law’s binding human rights regime, they also enlarge risks of a nuclear war.[13] On its face, if such a war should ever result from an American government’s forcing Ukraine to negotiate over Putin’s crimes of war, crimes against peace and crimes against humanity, that irremediable outcome would represent the ultimate violation of civilized international relations.
There is still more pertinent legal background. A US president could consult Book 2 of Emmerich de Vattel’s encyclopedic “The Law of Nations” (1758): Says Vattel: “If there should ever be found a restless and unprincipled nation, every ready to do harm to others, to thwart their purposes and to stir up civil strife among their citizens, there is no doubt that all other states would have the right to unite together to subdue such a nation, to discipline it, and even to disable it from doing further harm.”
Donald J. Trump’s flagrantly un-American indifference to Russian crimes against Ukraine falls unequivocally short of his obligations under international and US law. If there should remain any law-respecting doubters of this shortfall, they need only recall the explicit language of the UN’s Statute of the International Court of Justice (1945).Unambiguously, Article 38 describes “the general principles of law recognized by civilized nations” as a continuously primary source of all international law.[14]
Gabriela Mistral, the Chilean poet who won the Nobel Prize for literature in 1945, affirmed that crimes of war, crimes against peace and against humanity carry within themselves “a moral judgment over an evil in which every feeling man and woman concurs.” In his casual defiance of this “moral judgment,” Donald Trump seems wittingly inclined to ignore correlative obligations under both US and international law.[15] Any political figures or scholars who don’t acknowledge a need to condemn such corrosive indifference ought to look back over the doctrinal foundations of relevant jurisprudence, including the specifically American claim to “a government of laws, not of men.”
There are further details. International law includes norms of 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.” Moreover, the norms of customary international law bind all states irrespective of whether a particular state has ratified the relevant codifying instrument or convention.
International law compartmentalizes the apparently identical rights and obligations that arise from 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.”[16] Regarding the law-violating Trump stance on Ukraine, this means that there can be no defensible reason to support such a stance.
Immediately, especially after the American president acted as Putin’s witting proxy vis-à-vis Zelensky during the aberrant Oval Office meeting, the United States should strongly reaffirm the territorial sovereignty and independence of Ukraine. To act otherwise, to support the inherently unjust claims of the world’s most unpardonable “common enemy of humankind” (in law, Putin is “hostes humani generis”) would grievously defile America’s founding principles of justice.[17] In the final analysis, forcing Ukraine to negotiate “deals” with Russia to recover its own stolen territories must contradict any description of the United States as “a government of laws, and not of men.”[18]
[1] These Trump-encouraged crimes by Russia’s head of state are both mala prohibita (“evil as prohibited”) and malum in se (“evil in themselves”).
[2] On aggression as a specific crime under international law, see RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[3]See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. 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.
[4] In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also: Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).The specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”
[5] Following the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), there remains no defensible legal right to waging an aggressive war. However, the long-standing customary right of post-attack self-defense does remain codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum standards. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hagueand Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.
[6] Humanitarian international law, or the laws of war, comprise: (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 to bring discrimination, 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.
[7] Crimes against humanity are defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated….” Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288.
[8] Neither international law nor US law specifically advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. Nonetheless, all states, most notably the “major powers” belonging to the UN Security Council, are bound, among other things, by the peremptory obligation (defined at Article 26 of the Vienna Convention on the Law of Treaties) known as pacta sunt servanda, to act in continuous “good faith.” In turn, this pacta sunt servanda obligation is itself derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by the eighteenth-century legal scholar, Emmerich de Vattel in The Law of Nations (1758).
[9] International law remains a “Westphalian” system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia.
[10] United States law, as founded on the learned jurisprudence of Sir William Blackstone, acknowledges, the ubiquitous obligation of all states to help one another. More precisely, according to Blackstone, each state is 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 significance of Blackstone for current US national security decision-making, one need only remind that the Commentaries were an original and core foundation of the laws of American law. This plain fact remains unknown or irrelevant to US President Donald Trump and his steeply anti-intellectual counselors. In essence, Trump’s force-based policies of “America First” exhibit the logical fallacy argumentum ad bacculum, and represent the diametric opposite of what Blackstone would have expected.
[11] The United States Constitution is based on the idea of a “higher law.” See: Edward S. Corwin, “The `Higher Law’ Background of American Constitutional Law” (Cornell, 1928). Says Corwin, America’s constitutional democracy is “a system of government in which “the wielders of power are held in check by the rule of law.” (Preface). Such a system, prima facie, is always “a government of laws, and not of men.” This idea of a “higher law,” the American Founders already knew from Blackstone, is “eternal and immutable,” a system “to which the creator himself must conform.”
[12] Under international law, the idea of “natural law” or “higher law” was drawn originally from the philosophic writings of ancient Greeks and Hebrews (Torah Law), and is contained, inter alia, within the principle of jus cogens or “peremptory” norms. 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).
[13] For early accounts by this author of nuclear war risks and effects, 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
[14] See: https://www.icj-cij.org/statute
[15] United States law is 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 significance of Blackstone, one need only point out that his Commentaries represent the original and core foundation of United States law.
[16] See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
[17] “Justice,” America’s founders learned originally from Plato’s Republic, “is a contract neither to do nor to suffer wrong.”
[18] For original of this phrase, see John Adams, Novanglus Papers, No. 7 (1774). Adams likely drew this phrase from 17th century English political philosopher James Harrington. He later used it in the Declaration of Rights drafted specifically for the Massachusetts Constitution (1780).
