Nullum crimen sine poena, “No crime without a punishment”[1]
Though US President Joseph Biden was initially criticized for interfering in Russia’s “sovereign jurisdiction,”[2] no allegation of “intervention” could have been more sorely mistaken. In this matter, the Nuremberg Principles are binding,[3] and are founded upon the inviolable notion that crimes of war, crimes against peace and crimes against humanity[4] should never again be allowed to proceed without tangible opposition or punishment. More precisely, because the world legal order[5] remains fundamentally “Westphalian” or anarchic,[6] each and every individual state has commensurate enforcement obligations, especially the five permanent members of the UN Security Council.
It is more than a little ironic that the brutalizing state in current aggressions against Ukraine is itself one such permanent member.[7]
For legal scholars and pertinent policy makers, there are various clarifying details. Prima facie, regarding current Russian crimes against Ukraine, authoritative international law has long been incorporated into US law.[8] Though it is ordinarily correct under international law that one sovereign’s open call for the removal of another represents an impermissible intervention, that expectation must be reversed whenever the called-for departure is based on “crimes against humanity” and/or related Nuremberg-category crimes.[9] Significantly, such egregious crimes are punishable even in the absence of a specific treaty or relevant “positive law.”[10]
Even in our Realpolitik[11] system of international law – the corrosive global system of “balance” brought into being at the Peace of Westphalia in 1648 – a core presumption of world community and solidarity trumps all normal prerogatives of national sovereignty. Now, especially after accepting strong reinforcements by the post-World War II Nuremberg Judgment and principles, states maintain not only the right but also the obligation to intervene in other states on behalf of basic (“peremptory”[12]) human rights. Among other obligations, and without any exception, all states are expected to categorically reject UN Charter claims to “domestic jurisdiction” in circumstances wherein major crimes are being committed during an unjust war.[13]
Correct legal language should stipulate that the harms Russia is inflicting upon Ukraine (crimes that include the establishment of “filtration camps” and mobile crematory units) warrant “international concern.” Here, every state member of the “global community” maintains both the right and obligation to stand against the Russian aggressor and with the Ukrainian victim. Scholars and policy-makers could find ample support for this imperative not merely in “common sense” jurisprudence, but in the classical legal writings of Cicero, Hugo Grotius, Samuel Pufendorf and Emmerich de Vattel. Though such names will appear arcane or esoteric to most readers and diplomats, they were substantially well known to Founding Fathers of the United States.
First transmitted into US law by William Blackstone’s eighteenth century Commentaries on the Laws of England[14] – learned observations that represent the recognizable beginnings of current United States law – these jurists were imbued with the philosophy of “natural law.”[15] It is a philosophy that continues to display variously practical and indispensable legal authority.
There is more. The natural law origins of the United States have never been seriously challenged or in any way abrogated. Such efforts would have been illogical ipso facto. These origins now call for the active removal of a Russian sovereign aggressor who is making a daily mockery of basic human rights in the victimized state. Scholars and policy makers need look no further than 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.”
Ironically, US President Joe Biden’s comments on 26 March 2022 concerning Vladimir Putin’s continuance in office actually fell short of his established rights under international and US law. If there should remain any sincere doubters of this shortfall, they need only recall the explicit language of the UN’s Statute of the International Court of Justice at Article 38, which describes as primary source of international law “the general principles of law accepted by civilized nations.”
Incontestably, the Constitution of the United States is based upon variously core foundations of Natural Law, “self-evident” principles that are perpetually binding upon all persons and all sovereigns. While less explicit and harder to identify than codified or “positive” law, these principles are in no way inferior to statute or treaty. Accordingly, they ought never be wittingly minimized or disregarded.[16]
There is more. The Reason-based principles of Natural Law represent more than quaint artifacts of America’s jurisprudential past. As the nation’s current political leaders consider and re-consider a broad variety of critical matters – e.g., US foreign and domestic policy on human rights; US domestic policies on civil rights; issues of nuclear war avoidance; [17]etc. – there are times when the written law could once again be manipulated for politically self-serving purposes. An example of this not-unprecedented problem would be reactionary political arguments for selective infringements or curtailments of civil rights, arguments that often take unsupportable refuge in the Second Amendment. As even the US Constitution is subject to almost any variety of unreasonable interpretations, justice can never be served by this document ipso facto. In essence, no law-based US codifications, no matter how well intentioned or intelligently conceived, could ever claim self-evident meanings.
Ultimately, the US Constitution, in the same fashion as any other authoritative codification of national or international law, must depend upon the method and human spirit by which it is consulted or invoked. In those plausibly foreseeable circumstances where adversarial interpretations would hinge less upon any peremptory expectations of order and justice than on variously antecedent preferences and prejudices (e.g., questions of gun control and public order), codified law could be suitably augmented by certain apt considerations of Natural Law. To be sure, per Blackstone, there would always be far-ranging differences on what actually constitutes “the eternal, immutable laws of good and evil,” but Natural Law should still remain a final template of correct legal judgment.
There remains one final observation about relevant international law, a system of norms and procedures that is always a binding part of United States law. During the Trump years, American foreign policy routinely turned a selectively blind eye to massive human rights violations in other countries, including even genocide and genocide-like crimes. In these unhidden cases, codifications of US law, including specific provisions of the US Constitution, were cynically reinterpreted to support presumptive geopolitical interests.[18]
It was hardly “interventionary” or even inappropriate for Joseph Biden to declare that Russian president Putin “cannot remain in power.”[19] Ultimately, pursuant to the authoritative Nuremberg Principles and various antecedent norms, even senior Russian military officers who carried out Putin’s illegal orders to target Ukrainian civilians and carry out multiple crimes of war, crimes against peace and crimes against humanity should be apprehended and prosecuted. As a practical matter, casting any wider net of criminal containment and punishment will prove exceedingly difficult to operationalize, but openly identifying some high-level examples should at least be attempted.
With respect to the plea of superior orders,[20] the classical writers on international law rejected that plea as a proper defense against any charge of war crimes. Even the German Code of Military Law operative during World War II provided that a soldier must execute all orders undeterred by the fear of legal consequences, but added that this would not excuse him in such cases where he must have known with certainty that the order was illegal. This view was upheld in a landmark decision of the German Supreme Court in Leipzig in 1921.[21] According to the Court, a subordinate who obeyed the order of a superior officer was liable to punishment if it were known to him that such an order involved a contravention of international law.
The defense of “superior orders” was also rejected at the Einsatzgruppen Trial undertaken by an American military tribunal. According to the tribunal: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officers order him to do. The subordinate is bound only to obey the lawful orders of his superior.”[22]
The overriding obligation to remove and prosecute Vladimir Putin is linked to another peremptory obligation under international law – the obligation of national self-defense, of “staying alive” as a state. The first stipulated obligation stems in part from the second. According to Emmerich de Vattel’s classic 1758 work on The Law of Nations, a text that influenced Blackstone, Jefferson and other conceptual founders of US law, “The right to punish injustice is derived from the right of self-protection.” The peremptory right of self-defense in international law is itself drawn from Natural Law,[23] which can never be subordinated to any “man-made” international agreements or any extra-legal considerations of power politics.
After the multiple crimes of state committed by Nazi Germany during World War II, international law made certain to create certain guiding principles to prevent and punish future crimes. Taking the lead in this heroic effort, the United States has since been closely associated with fashioning the derivative Nuremberg Principles, formal norms and procedures intended to thwart any repeat of Nazi-era crimes of war, crimes against peace and crimes against humanity. Today, faced once again with such state-inflicted barbarisms[24] – this time, Russia’s war of aggression against Ukraine – American leaders should stand firmly by what was codified at Nuremberg. As a beginning, there must be a greater awareness that US President Joe Biden’s plea for removing Vladimir Putin from power represented not an intervention, but a preliminary act of global law-enforcement.
[1]Stemming from three separate passages of the Jewish Torah (in their sequence of probable antiquity, they are Exod. 21:22-25; Deut. 19: 19-21; and Lev. 24: 17-21), the Lex Talionis or “law of exact retaliation” was integral to the Nuremberg Trial and its more specialized successor tribunals. In 1946, when the Special International Military Tribunal justified a portion of its sentencing on long-standing arguments for retributive justice, it reaffirmed this binding principle. The IMT’s exact words were: “Any person who commits an act which constitutes a crime under international law is responsible therefore, and liable to punishment.”
[2] Said the US President on March 26, 2022: “For God’s sake, this man cannot remain in power.”
[3] See: https://nurembergprinciples.com/
[4] For definition of crimes against humanity, 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.
[5] This term has its modern origins in programs established at the Yale Law School and Princeton University Department of Politics back in the late 1960s. The present author, Louis Rene Beres, was an original member of the Princeton-based World Order Models Project, or “WOMP.”
[6] This anarchic system dates back specifically to the Peace of Westphalia in 1648. 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] Similarly, ironic in an historic sense is that Germany is now calling for international tribunals to investigate and prosecute Russian war crimes against Ukraine. See: https://news.yahoo.com/german-president-calls-war-crimes-085919124.html?fr=sycsrp_catchall
[8] In words used by the U.S. Supreme Court in The Paquete Habana (1900), “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] Unlike crimes against humanity, which must be committed “before or during a war” the crime of genocide can be committed “in time of war or time of peace.” Moreover, an obligation at The Convention on the Prevention and Punishment of the Crime of Genocide (1948), a major international treaty to which the US is a party, obliges signatories not only to steer clear of committing genocide themselves, but also to oppose and prevent genocidal behavior by other states. At Article III of the Convention, this unequivocal obligation extends to grave acts involving “conspiracy to commit genocide,” “attempt to commit genocide,” and “complicity in genocide.” These immutably core expectations are known in law as “peremptory” or “jus cogens” rules – that is, obligations that permit “no derogation.” They can be discovered as well in various corollary and complementary expressions of authoritative international law, both customary and codified. International law underscores the particular derogations involved when former US president Donald Trump stood openly with Vladimir Putin’s multiple crimes of war, crimes against peace (aggression) and crimes against humanity in Syria and Ukraine.
[10] In his opening statement to the International Military Tribunal, US Chief Prosecutor Justice Robert Jackson commented: “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”
[11]Throughout history, Realpolitik has been associated with personal immortality. In his posthumously published lecture on Politics (1896), German historian Heinrich von Treitschke observed: “Individual man sees in his own country the realization of his earthly immortality.” Earlier, German philosopher Georg Friedrich Hegel opined, in his Philosophy of Right (1820), that the state represents “the march of God in the world.” The “deification” of Realpolitik, a transformation from mere principle of action to a sacred end in itself, drew its originating strength from the doctrine of sovereignty advanced in the sixteenth and seventeenth centuries. Initially conceived as a principle of internal order, this doctrine underwent a specific metamorphosis, whence it became the formal or justifying rationale for international anarchy – that is, for the global “state of nature.” First established by Jean Bodin as a juristic concept in De Republica (1576), sovereignty came to be regarded as a power absolute and above the law. Understood in terms of modern international relations, this doctrine encouraged the notion that states lie above and beyond any form of legal regulation in their interactions with each other.
[12] In the language of Article 53 of the Vienna Convention on the Law of Treaties (1969: “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.”
[13] Inter alia, the barbarous Russian war represents a crime of aggression. See: Resolution on the Definition of Aggression, adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 UN GAOR, Supp. (No. 31), 142, UN Doc A/9631 (1975) reprinted in 13 I.L.M., 710 (1974). The UN Charter is a treaty to which the United States and Russian Federation are both parties. Under the US Constitution, Article VI (the “Supremacy Clause”) defines all properly ratified treaties as the “supreme law of the land.”
[14] The first volume of Blackstone’s Commentaries appeared in 1765, the fourth in 1769. An American edition of the full work was printed in Philadelphia in 1771-72
[15] See, by this writer, Louis René Beres: https://www.jurist.org/commentary/2021/12/louis-rene-beres-natural-law-us-constitution/
[16] The idea of Natural Law/Higher Law figured with great importance at the post-world War II Nuremberg Trials (less so at the later Tokyo Trial). In his opening statement to the International Military Tribunal, US Chief Prosecutor Justice Robert Jackson commented: “The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”
[17] 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
[18] A pertinent norm here is the anti-genocide obligation binding upon individual nation states, a universal obligation now incorporated into authoritative international law. The Convention on the Prevention and Punishment of the Crime of Genocide (1948), a major international treaty to which the US is a party, obliges signatories not only to steer clear of committing genocide themselves, but also to oppose and prevent genocidal behavior by all other states. At Article III of the Convention, this unequivocal obligation extends to grave acts involving “conspiracy to commit genocide,” “attempt to commit genocide,” and “complicity in genocide.” These immutably core expectations are known in law as “peremptory” or “jus cogens” rules – that is, obligations that permit “no derogation.” They can be discovered as well in various corollary and complementary expressions of authoritative international law, both customary and codified. International law underscores the particular derogations involved when a US president stood openly and silently with Vladimir Putin’s multiple crimes of war, crimes against peace (aggression) and crimes against humanity (in both Syria and Ukraine).
[19]Following Nuremberg, responsibility of leaders for pertinent crimes is never limited by official position or requirement of direct personal actions. 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, 71 (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 for aggression, genocide and genocide-like crimes is 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 Strat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, Art. 7. Under traditional international law, violations were the responsibility of the state, as a corporate actor, and not of the individual human decision-makers in government and in the military.
[20] The principle has been well-established that orders pursuant to municipal law are no defense to violations of international law. See: Vienna Convention on the Law of Treaties, Art. 27, U.N. Conference on Law of Treaties, Doc. A/CONF. 39/27, May 23, 1969, reprinted in 8 I.L.M. 679 (1969); Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1932, P.C.I.J. (ser. A/B), No. 46, at 167; Treatment of Polish Nationals in Danzig (parties abbreviated), 1932 P.C.I.J. (ser. A/B), No. 46, at 24; see also: RESTATEMENT (second) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES. Secs. 3.2 (collected in Legal Advisor), U.S. Dept. of State, Memorandum on the Application of International Law to Iranian Exchange Regulations (Feb. 15, 1984), reprinted in 130 Cong. Rec. S. 1679, 1682 (1984).
[21]See Llandovery Castle case, cited by T. Taylor, Nuremberg and Vietnam, An American Tragedy, 24 (1970).
[22]Cited by T. Taylor, supra note 17, at 51.
[23] See by this writer, Louis René Beres: https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1297&context=psilr
[24] This brings to mind the closing query of Agamemnon in The Oresteia by Aeschylus: “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatreds, the destruction”?