International law requires all states in world politics to oppose crimes of aggression and crimes against human rights. Among other things, these coinciding requirements are “peremptory,” meaning that authoritative expectations of world community action “can permit no derogation.” But what is to be done when such core expectations conflict with each other, circumstances in which (1) any prioritization of human rights could heighten the likelihood of wider war, or (2) any prioritization of war mitigation/war avoidance could prove injurious to human rights?
Presently, in starkly violated Ukraine, the accelerated likelihood of any wider war could include nuclear war, and any expanding injury to human rights could include genocide.
What are United States obligations in this plainly urgent matter of law and policy? In essence, the pertinent American policy query should be framed as follows: What ought to be done about multiple Russian crimes in Ukraine that is suitably law-enforcing, but is not irrational from the standpoints of peace and justice?
Now that Vladimir Putin has openly threatened the use of nuclear weapons in variously volatile directions, Washington should continue to stand up for Ukraine’s legitimate human rights, but consciously avoid any intentional or inadvertent use of American nuclear forces. Should US-Russia relations continue on their downward trajectory of mutual destabilization – a path more-or-less mandated by presumptively generic requirements of “escalation dominance” – nuclear harms could be exchanged. Such tangible harms could prove irremediable.
There is more. By definition, the current issue of egregious Russian crimes against Ukraine is sui generis. This means that there exist no explicit guidelines to help answer the following question with confidence and reliability: What should be done by American decision-makers to take proper note of nuclear war and genocide hazards and to assess the corresponding risks of each intersecting concern?
In the end, these potentially existential decisions would have to be comparative, including speculative assessments in which plausible nuclear war risks and genocide risks could impact each other.
For the United States, international law enforcement is never just a volitional matter. Because such enforcement has been “incorporated” into the law of the United States (see Article VI of the US Constitution and two key cases from the US Supreme Court: Paquete Habana, 1900 and Tel Oren versus Libyan Arab Republic, 1984), it would support certain binding expectations of American domestic or national law. The Convention on the Prevention and Punishment of the Crime of Genocide (1948) obliges signatories not only to avoid committing genocide themselves, but to oppose and prevent genocidal behavior committed by other states. Article III of this Convention extends this obligation to certain grave acts involving “conspiracy to commit genocide,” “attempt to commit genocide,” and “complicity in genocide.”
Such core expectations are known in formal law as “peremptory” or “jus cogens” rules, and signify rules that can permit “no derogation.”
Always, in applicable matters of international law, some serious learning must be taken into account. Binding rules are discoverable in complementary expressions of international law, both customary and codified. More specifically, even if a transgressor state were not an actual party to the Genocide Convention (1948), it would still be bound by customary international law and (per Art 38 of the Statute of the International Court of Justice) by “the general principles of law recognized by civilized nations.”
Neither international law nor US law advises particular penalties or sanctions for states that would choose not to prevent or punish genocide committed by others. But all states, most notably the “major powers” belonging to the UN Security Council, are bound by a “peremptory obligation” defined at Article 26 of the Vienna Convention on the Law of Treaties (1969). This obligation references the always fundamental legal requirement to act in “good faith.”
The “good faith” or Pacta sunt servanda obligation is derived from an even more basic norm of world law known as “mutual assistance.” This norm was identified within the interstices of classical jurisprudence by eighteenth-century legal scholar, Emmerich de Vattel. Later, it was reaffirmed by English jurist William Blackstone, whose assembled Commentaries on the Laws of England became the bedrock or template of subsequent United States law.
As an historic aside, Vattel, whose The Law of Nations was first published in 1758, became a favored jurisprudential source for Thomas Jefferson. This American founding father relied upon his learned Swiss antecedent for many key principles he later chose to include in the Declaration of Independence. As a present-day matter, a prospectively revealing question should also be brought forth: How many American citizens can even imagine an American president reading classical political philosophy or international law?
Though the United States could never be held accountable under law for any wrongful abandonment of the Ukrainian people, any willful failure to act against Putin in this arena of ongoing Russian criminality would violate certain general and immutable principles of international law. The anti-genocide regime of international law includes the London Charter of August 8, 1945; UN Charter (1945); Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (1970); Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (1946, 1950); and the International Law Commission (ILC) Articles on State Responsibility (2001).
In its landmark judgment of 26 February 2007 “Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide” (Bosnia and Herzegovina v. Serbia and Montenegro), the International Court of Justice (ICJ) ruled that all Contracting Parties have a direct obligation to “prevent genocide.” Somewhat counter-intuitively, the ICJ found it easier to acknowledge this obligation expressis verbis (“with clarity”) than by referencing the corollary legal requirement not to commit genocide themselves.
Sixteenth-century Florentine philosopher Niccolo Machiavelli fused Aristotle’s plans for a more scientific study of world politics with assorted assumptions about geopolitics. His best known conclusion focuses on the timeless dilemma of seeking to practice goodness in an evil world: “A man who wishes to make a profession of goodness in everything,” Machiavelli warns in The Prince, “must necessarily come to grief among so many who are not good.”
If taken too literally, this very cynical assessment could lead not only individuals but entire nations toward a primal “state of nature.” This insufferably retrograde trajectory would describe a condition of rampant anarchy and disorder, one best clarified by classical political philosopher Thomas Hobbes. In Leviathan (a work similarly well-known to Thomas Jefferson), life in this “every man for himself” condition must inevitably be grievously harsh. Such a corrosively sad individual life must also be “solitary, poor, nasty, brutish and short.”
And yet, what Hobbes was still unable to foresee were the consequences of any future fusions of anarchy with nuclear weapons. Sometime such fusions could prove devastating.
Gabriela Mistral, the Chilean poet who won the Nobel Prize for Literature in 1945, wrote that crimes against humanity carry within themselves “a moral judgment over an evil in which every feeling man and woman concurs.” Now continuing to coexist with other states in a self-help or vigilante system of international law, the United States should do whatever possible under law to impede Russia’s genocide and genocide-like crimes against Ukraine, but without expanding the likelihood of superpower nuclear confrontations. Regarding this unwavering obligation, there could exist no clarifying foreign policy guidelines.
Louis René Beres (Ph.D., Princeton, 1971) is the author of twelve books and several hundred articles dealing with international law. He was born in Zürich at the end of World War II. His published writings on nuclear strategy and nuclear war go back more than fifty years. Many can be found at the Oxford University Press Annual Yearbook on International Law and Jurisprudence; Parameters (Pentagon); The War Room (Pentagon); Modern War Institute Pentagon); Air-Space Operations Review (USAF); Special Warfare (Pentagon); The Atlantic; Horasis (Zürich); JURIST; Yale Global; Harvard National Security Journal; The New York Times; World Politics (Princeton); Bulletin of the Atomic Scientists; and Israel Defense (Tel Aviv).