By refusing to condemn Vladimir Putin’s egregious crimes against Ukraine,[1] U.S. President Donald Trump is undermining core expectations of both American law and international law. Because international law is part of the law of the United States,[2] ignoring Russian crimes is equivalent to avoiding direct legal obligations. More precisely, such flagrant unconcern renders the United States complicit in crimes against peace (aggression), crimes of war (humanitarian international law) and crimes against humanity (genocide).[3]
This is not an intuitive or whimsical judgment. It is supported by abundant jurisprudential detail.[4] Regarding Russian crimes against Ukraine, consistency between international legal obligations and U.S. legal obligations now exist beyond any reasonable doubt. Though ordinarily correct under international law that one sovereign’s call for removal of another represents impermissible intervention, the expectation of non-intervention must be reversed when calls for a leader’s departure are based on verifiable evidence of Nuremberg-category crimes.[5]
There is more. Even in our state-system of international law – the anarchic arrangement brought into being at the Peace of Westphalia in 1648[6] – a presumption of global community and solidarity overrides any usual prerogatives of sovereignty.[7] After the transformative legal expectations brought by the post-World War II Nuremberg Judgment and Principles, individual states have not only the right but the “peremptory”[8] obligation to intervene on behalf of basic human rights.[9] Correspondingly, without exception, all states are required to reject UN Charterclaims to “domestic jurisdiction” in matters where gross outrages are already underway. Prima facie, this “jus cogens” obligation is greater in an unjust war.
Expressed in formal legal language, the harms Russia is inflicting on Ukrainian civilians and cities represent crimes of “international concern.”[10] Accordingly, every member of the community of states has the right and the responsibility to stand against the aggressor and with the victim.[11] Scholars and policy-makers can find ample support for this imperative in the classical legal writings of Cicero, Hugo Grotius, Samuel Pufendorf and Emmerich de Vattel . Though these names will generally be unrecognizable to Americans, including high officials in all three branches of government, they were already known to Founding Fathers of the United States.
Transmitted into US law by William Blackstone’s eighteenth century Commentaries on the Laws of England – learned observations that represent tangible beginnings of United States law – these observations were imbued with the timeless expectations of “natural law.”[12] Significantly, for Donald J. Trump and his legal “experts,” the natural law origins of the United States have never been understood or embraced. Nonetheless, as complemented by codified or “positive” rules, these origins now call for open condemnations of a Russian president whose escalating crimes make daily mockery of law-based human rights. And when an American president rejects such imperative condemnation while simultaneously blaming Ukraine, US law and international law suffer irremediable setbacks.
There is more. In such foundational matters, legal erudition deserves conspicuous pride of place. Scholars and policy makers could gainfully consult Book 2 of Emmerich de Vattel’s “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.”
In essence, Donald J. Trump’s indifference to Russian crimes falls short of his basic obligations under international and US law.[13] If there should still remain any non-partisan doubters of this shortfall, they would need only to recall the explicit language of the UN’s Statute of the International Court of Justice.Article 38 of this document describes “the general principles of law recognized by civilized nations” as a primary source of international law.
Gabriela Mistral, the Chilean poet who won the Nobel Prize for literature in 1945, affirms that crimes against humanity carry within themselves “a moral judgment over an evil in which every feeling man and woman concurs.” In his ironic silence on this “moral judgment,” Donald Trump ignores his pertinent obligations under both US and international law. If there should still remain any “realists” who refuse to condemn such insidious silence, they ought at least to look back at the doctrinal foundations of authoritative jurisprudence.
International law includes 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.” The norms of customary international law bind all states whether or not they have ratified relevant treaties or convention.
International law compartmentalizes apparently identical 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.”[14]
Though already late, US president Trump owes United States law and international law variously explicit condemnations of Vladimir Putin’s crimes against Ukraine. To act otherwise, to support a “common enemy of humankind” (in law, a “hostes humani generis[15]”) would defile American’s peremptory obligation to oppose Nuremberg-category crimes.[16] Inter alia, no such failure could be consistent with historic American claims to be the champion of world security and global justice.
“Civilization,” says distinguished social philosopher Lewis Mumford, “is the never ending process of creating one world and one humanity.”[17] By failing to condemn Vladimir Putin’s barbarous crimes against Ukraine,[18] Donald J. Trump is undermining humankind’s residual prospects for operationalizing this process. In fairness, even before this American president, “one world and one humanity” was already an unrealistic goal and Earth’s trajectory toward chaos was already fixed. Nonetheless, whatever the odds, there can never be any defensible moral, strategic or intellectual argument for civilizational surrender.
In essence, America has only one decent path forward. As prescribed by its historical and jurisprudential foundations, the United States should strenuously oppose all international aggressors and conspicuously support all international victims. For the immediate future, an American president fond of declaring this country a “nation of laws” has only one dignified option. To condemn Vladimir Putin’s egregious and force-multiplying crimes against Ukraine.
[1] In law, these Trump-accepted crimes committed by Russia’s head of state are both mala prohibita (“evil as prohibited”) and malum in se (“evil in themselves”). They also heighten the likelihood of a nuclear war. See, by this writer, Louis René Beres, at The War Room (Pentagon): https://warroom.armywarcollege.edu/articles/friction/
[2] In the words of Mr. Justice Gray, delivering 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 codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”
[3] 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.
[4] In this connection, the UN has established an Independent International Commission of Inquiry on Ukraine: https://www.ohchr.org/en/hr-bodies/hrc/iicihr-ukraine/index
[5] 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
[6] The reference is to the Peace of Westphalia (1648), which concluded the Thirty Years War, and created the still-existing state 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.”
[7] International law is an integral part of the legal system of all states in world politics and assumes a reciprocally common general obligation of states to supply benefits to one another and to avoid war whenever possible. 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).
[8]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).
[9] Though there will be significant differences from case to case, international law maintains certain core obligations to the sovereignty-centered principle of “self-determination.” See, by this author: Louis Rene Beres, “Self-Determination, International Law and Survival on Planet Earth,” Arizona Journal of International and Comparative Law, Vol. 11., No. 1., 1994, pp. 1-26. See also: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (The Principle of Equal Rights and Self-Determination of Peoples), G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28 at 121, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292; Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).
[10] Under international law, Russian leadership responsibility for these crimes is not limited to direct personal action or official position. On the 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.
[11] Neither international law nor US law specifically advises particular penalties or sanctions for states that choose not to prevent or punish egregious crimes committed by other states. At the same time, 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, the pacta sunt servanda obligation is derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within classical interstices of international jurisprudence, most notably by eighteenth-century legal scholar Emmerich de Vattel in The Law of Nations (1758).
[12] The core idea of 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 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. See also, more recently, Louis René Beres, https
[13] President Trump is fond of saying that “The United States is a nation of laws, not of men.” For origins of this phrase, see John Adams, Novanglus Papers, No. 7 (1774). Adams likely drew the 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).
[14] See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
[15] Under international law, terrorists are always hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Sup 1935) 435, 566 (quoting King v. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[16]Understood as Nuremberg-category crimes, aggression and genocide should never be considered to be mutually exclusive. War might well become the means whereby genocide is undertaken. According to Articles II and III of the Genocide Convention, which entered into force on January 12, 1951, genocide includes any of several listed acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such….” See Convention on the Prevention and Punishment of the Crime of Genocide Done at New York, Dec. 9, 1948. Entered into force, Jan. 12, 1951. 78 U.N.T.S. 277.
[17] See: In the Name of Sanity (1954). We may think also of the Talmudic observation: “The earth from which the first man was made was gathered in all the four corners of the world.”
[18] In the reductio ad absurdum of Trump-supported Putin policies in Ukraine, Ukrainian fighters against aggression are now being tried for “terrorism” in Russian courts. See: https://www.durangoherald.com/articles/russia-convicts-captured-ukrainians-on-terrorism-charges-in-a-trial-kyiv-denounces-as-a-sham/
