The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950) (Principle III)
There is a widely overlooked flaw in Donald J. Trump’s argument concerning presidential immunity from criminal prosecution. [1] It is the former president’s disregard that international law is an integral part of US law and that all derivative obligations of the US-incorporated “Nuremberg Principles” are binding on Mr. Trump as “the supreme law of the land.” [2] By not “relieving” the Head of State from criminal responsibility under international law, the US Constitution offers no possible relief from his responsibilities under American criminal law.
There are related issues. Jurisprudentially, no US president can claim Constitutional pardoning power regarding the Law of Nations. [3] In part, at least, Mr. Trump’s last minute barrage of presidential pardons in late 2020 and early 2021 displayed no discernible obeisance to any authoritative expectations of justice. This barrage, impermissible on its face, was motivated by the then-outgoing president’s unambiguous prioritization of personal self-interest over comprehensive national law. [4]
Though his presidential pardoning actions on matters of international law were inadmissible under US law, [5] Mr. Trump was allowed to get away with variously injurious manipulations. While generally unknown to jurists as well as laypersons, relevant issues of international law ought still to have been be taken into explicit account by the successor attorney general and President Joseph Biden’s Department of Justice. [6] Among legal rationales, international law [7] shares its “self-evident” Natural Law [8] origins with US law. These shared origins reinforce the wrongfulness of Donald Trump’s claims of broad legal immunity from criminal prosecution for tangible acts as president. [9]
There are clarifying details. The law of nations is part of the law of the United States. [10] Still, despite certain obvious and substantial intersections of US law, natural law [11] and international law, the United States Constitution is plain on one US-specific jurisprudential separation: A president’s power to pardon does not extend to violations of international law. This significant power is limited to “Offenses against the United States.” Moreover, these particular offenses are not subject to any idiosyncratic, whimsical or loosely ad hoc definitions. They are expressly confined to “…only those offenses declared to be such by the solemn action of the legislative body.” [12]
The law of nations, or international law, is federal common law. Inter alia, the constitutionality of federal subject matter jurisdiction on such inherently important matters is established at Articles III and VI of the Constitution and in certain 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]
What were evident facts of the Trump-pardoning cases? Did any of Donald J. Trump’s late 2020 or 2021 pardons concern actually identifiable violations of international law? [15] If “yes,” these flaunted grants of presidential “largesse” were unlawful prima facie.
An affirmative response is warranted. Just a small number of especially flagrant examples of this outgoing president’s illegally-granted pardons [16]were acknowledged in any official DOJ (Justice Department) records. [17] In coming months and years, legal scholars may surmise, more evidence will likely surface. At that point, however, it should be variously larger issues of Constitutional and international law that occupy authoritative US decision-makers.
Could this former and re-aspiring president’s pardoning actions have been justified by clever word play regarding legal definitions? In all cases that involved crimes of war, [18] a competent legal scholar could argue more or less persuasively that the Trump pardons were not issued solely or primarily for specific violations of international law. In part, such an argument could be based on certain well-established understandings that laws of war – aka humanitarian international law – have long been “incorporated” into the laws of the United States [19] and that the applicable presidential pardons rightfully concerned these US legal norms.
“Not so fast” should be the correct response to such an argument. Any such highly “selective” assessment would have to overlook that the Trump pardons (1) represented an obvious abuse of a US president’s Constitutional obligation to “faithfully execute the law,” [20] and (2) ignored the always-complementary position that a relevant pardon represents “an act of grace, one proceeding directly from the power entrusted with the execution of the laws….” [21]
Looking ahead, and this is the primary direction in which interested legal scholars should now orient pardon-centered queries, these expressions of impermissible action are not difficult to fathom. The former and re-aspiring president’s contrived pardons were anything but “an act of grace.” Rather, when understood in aptly refined legal-philosophical terms, they expressed openly cynical re-affirmations of the Sophist view of justice revealed by Plato.
Declares Thrasymachus famously/infamously in The Republic: “Right is the interest of the stronger.” [22]
At this point, again, the law-supporting “plan” should be to look forward. The basic legal problem before scholars and lawyers ought no longer be one of challenging, reversing or remediating Donald Trump’s sordid abuses of the US Constitution’s pardoning power. This query should be how best to ensure that plainly invalid exonerations for crimes against international law are never repeated by a successor American president, now including Donald J. Trump himself.
Reassuringly, in this connection, purposeful answers are readily ascertainable. With interest and dedication, they lie well within reach of disciplined legal reasoning. Nonetheless, once again recalling the influence of Plato, they should be approached dialectically. [23] In the end, though inherently legal in nature, these pardoning issues represent fundamentally intellectual questions.
There is more. The United States is not a party to the International Criminal Court. [24] In principle, a prospective plaintiff with an appropriate judicial interest in these vital matters could sometime bring justifiable claims into a US federal court by way of the Alien Tort Statute (1789). [25] Clear examples could be foreign nationals and identifiable relatives of victims injured or killed by one or several of the American beneficiaries of an unsuitable presidential pardon. But even if civil law remedies were allowed in any such claim, this judicial strategy would not necessarily revoke or remediate any of the unconstitutional Trump pardons. Nor would it relieve Donald Trump of his incontestable obligation to support international law as a part of US law.
Today, during 2024, after multiple and well-documented Trump derogations. there can remain no reasonable questions about an individual’s responsibility for violations of international law. [26] One de facto result of Donald J. Trump’s pardoning of certain individual US citizen actions overseas was to retroactively eliminate such well-established criminal responsibility. The former and potentially future president’s pardon was illegal on two separate but interrelated grounds:(1) the general invalidity of pardons for violations of the Law of Nations and (2) the specific exonerations of particular international crimes.
What has been learned? And what should be understood now, concerning Trump’s position on a president’s “total immunity” from certain criminal prosecutions?
Under international law, [27] criminal responsibility of individuals can never be removed by the unilateral actions of any national government. [28] A “person” is always liable for punishment by international law independently of any provisions of internal law. This fundamental principle references the unchallengeable “supremacy” of international law over national law. [29] At Nuremberg, the Tribunal included the following key statement in its 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.” [30]
All states have a peremptory obligation [31] to avoid “denials of justice” [32] in the sense of international law. Among other things, this obligation is based on plausibly reasonable concerns that by pardoning a criminal, the state “assumes responsibility for his past acts.” [33] In specific regard to impermissible Trump pardons and his false claims of criminal law immunity, this means reputational consequences that include more-or-less substantial legal diminutions of the United States as such.
The only potentially realistic source for any law-based remediation of Trump’s wrongful pardons involving the law of nations would have involved his legal successor, Joe Biden. [34] Though at least conceivable in principle, any presumed imperatives to take such a technically-complicated route were presumably outweighed by the current president’s legitimate hopes for prioritizing national and international reconciliations. The prospective primacy of any such hopes ought never to be minimized or ridiculed; still, simply elevating them above all other competing expectations could prove morally and legally shortsighted in the longer term. [35]
It will always be better to demand presidential reversal at the actual time of any wrongful pardons. As we witnessed with the Trump pardons for crimes against the law of nations, once such grants became a fait accompli, efforts at remediation became effectively impossible. Looking ahead, the American president should once again understand that no nation-state or its leaders can exculpate or exonerate violations of international law. It is for manifestly sound reasons of human interdependence [36] and “oneness” [37] that the US Constitution incorporates and codifies this primary human understanding.
Recalling Sophocles’ Antigone, a sovereign’s legal responsibility (whether king or president) must be to both his own country and to the wider world, never to his own presumed popularity. Whenever an American president issues pardons to assorted violators of the law of nations, perhaps for reasons of his own popularity, he undermines core legal precepts of human interdependence and co-responsibility. Ranging from Justinian, Grotius and Vattel to present-day United States law, these precepts figure importantly in the US Constitution and are central to explaining a president’s unequivocal incapacity to pardon crimes against international law. Accordingly, Donald J. Trump’s express willingness to issue such pardons despite overriding legal prohibitions has undermined global security and human rights.
Conclusions are “self-evident.” Looking ahead, no American president should ever be permitted to issue pardons for crimes against international law. In conceivable worst case scenarios, choosing once again to ignore this US Constitution-based rule could result in catastrophic war and/or genocide–like crimes. Moreover, such intolerable outcomes, which could sometime even include a nuclear war, [38] need not be mutually exclusive. Plausibly, they could represent mutually reinforcing or “force-multiplying” outcomes.
Donald J. Trump’s criminal immunity argument is unsupportable in law for many authoritative reasons. One of these reasons is based upon an American president’s legal obligations under international law. For example, when then President Trump’s executive orders directed the Department of Homeland Security (DHS) to expand his coercive program of “expedited removal,” he placed himself in flagrant violation of the legal principle known as non-refoulement. This peremptory principle is prominently codified at Article 33 of the 1951 Refugee Convention. Owing to the prior incorporation of international human rights law into US law, these always-serious violations extend to the immigration laws of the United States.
During his presidential tenure, Trump was proudly complicit with asserted crimes against humanity. [39] In specific regard to North Korea, a persistently grievous human rights violator, Donald Trump’s fawning personal behavior toward dictator Kim Jung Un (“We fell in love”) expressed open disregard for Nuremberg obligations. [40] Such disregard, ipso facto, represented an egregious violation of US law. Here, again, a former president should be held accountable under US law for crimes against international law. Here, again, there is no recognizable law-based argument for presidential criminal immunity.
Summing up, pursuant to the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950), Donald J. Trump is responsible for any criminal acts identifiable under international law. Such core responsibility is not in any way removed or “relieved” because he was the American Head of State at the time these crimes were being committed. Moreover, because these Principles have become a peremptory part of US domestic law, this former and re-aspiring president is ineligible for any grants of immunity (let alone “total immunity”) from US criminal prosecution. This widely overlooked or neglected fact is embedded in assorted universally acknowledged jurisprudential sources, and is “off limits” to any partisan political contraventions.
Donald J. Trump’s criminal immunity argument is impermissible, and comes down to the following judgment: “Any person who commits an act which constitutes a crime under international law,” per 1950 Nuremberg Principles, “is responsible therefor and liable to punishment.” Under mutually reinforcing principles of international and national law, Donald J. Trump exemplifies this peremptory responsibility. He is no exception to the jus cogens (“compelling law”) obligations of Nuremberg.
Notes
[1] “Without presidential immunity” argues Trump, “a President will not be able to properly function, or make decisions, in the best interest of the United States of America,” Trump opined further: “Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office. This could actually lead to the extortion and blackmail of a president.” See: https://news.yahoo.com/supreme-court-indulging-trumps-immunity-231110605.html?fr=sycsrp_catchall
[2] US Constitution, art vi.
[3] This presidential pardoning exclusion derives from every nation-state’s broad and irrevocable obligations under international law. To wit: “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[3] 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.
[4] See, by this author, at Yale Global, Louis René Beres, https://yaleglobal.yale.edu/content/after-mueller-report; see also, by Professor Beres at JURIST: https://www.jurist.org/commentary/2020/12/louis-rene-beres-presidential-crimes-and-pardons/; and Louis René Beres, https://www.jurist.org/commentary/2020/08/louis-beres-trump-punishment/
[5] See e.g., United States v La Jeune Eugenie, 26 F. Case. 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, “Contra gate 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.
[6] For the authoritative 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.
[7] 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).
[8] 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.
[9] These claims are scheduled to be heard by the US Supreme Court beginning on April 25, 2024. They concern Trump’s plea for “total immunity,” not just immunity from criminal prosecution for his alleged role in seeking to overturn 2020 presidential election results.
[10] 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.’”).
[11] Emmerich de Vattel’s 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.)
[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 again 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.” Prima facie, various behaviors thought to be justly pardonable by an American president could nonetheless undermine Vattel’s “general law.”
[16] Illegally granted because they pertain to assorted violations of international law.
[17] See, US Department of Justice: https://www.justice.gov/pardon/pardons-granted-president-donald-trump
[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 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 melioration 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 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 might not be correctly invoked in these specific 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).
[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). But contrast with Plato’s own view in The Republic: “Justice is a contract neither to do nor to suffer wrong.” See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[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 regards dialectic as the highest or supreme form of knowledge.
[24] See the Rome Statute, 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] Today, key expectations of this always-overriding law lie in the twin–principles of sovereignty and 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).
[28] A derivative issue here may concern the presence or absence of a formal “state of war.” Under both codified and customary international law, the question of whether or not a formal belligerency exists between states could be starkly ambiguous. Traditionally, it was held that an actual declaration of war was necessary before any “real” war could be presumed. Hugo Grotius divided all wars into declared wars, which were legal, and undeclared wars, which were not. (See Grotius, THE LAW OF WAR AND PEACE, Bk. III, Ch. iii, V and XI). By the beginning of the twentieth century, the position that war obtains only after a conclusive declaration of war by one of the parties, was codified by Hague Convention III. More precisely, this convention stipulated that hostilities must not commence without “previous and explicit warning” in the form of a declaration of war or an ultimatum. (See Hague Convention III Relative to the Opening of Hostilities, 1907, 3 NRGT, 3 series, 437, article 1.) Currently, of course, declaration of war may be tantamount to declarations of international criminality (because of the criminalization of aggression by authoritative international law), and it could be a jurisprudential absurdity to tie a state of war to formal declarations of belligerency. It follows that a state of war may exist without formal declarations, but only if there is an armed conflict between two or more states and/or at least one of these states considers itself at war. On the argument that war need not be formally recognized, see J. Pictet, IV Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 20-1 (1958) (“no need for formal declaration of war, or for recognition of the existence of a state of war”); U.S. Dept. of Army FM 27-10, The Law of Land Warfare 7-8, paras. 8-9 (1956) (instances of armed conflict without declaration of war; law of war applies); The Prize Cases, 67 U.S. (2 Black) at 668 (“war may exist without a declaration on either side”); see also M. McDougal & F. Feliciano, LAW AND MINIMUM WORLD PUBLIC ORDER (1961), pp. 97-113 (legal status of war may be brought about by use of armed force).
[29] For the matter here at hand, this post-Nuremberg supremacy extends to national leaders who are now legally responsible even for indirect crimes. Under an always-overriding international law, the criminal responsibility of leaders is not limited to direct personal action nor is it 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.
[30] 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.
[31] 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).
[32] See The Federalist No. 80 (Alexander Hamilton).
[33] See 1 Restatement of the Foreign Relations Law of the United States (Revised) Sec. 711, 2B (Tent, Draft No, 6, 1985).
[34] Should this include any court action/judicial strategies, there could conceivably be a gainful place for filing an amicus brief to the appellate court.
[35] Nullum crimen sine poena (“No crime without a punishment”) is the key principle that distinguishes between criminal and civil law, and one that defines the overriding “competing expectation.” Without prospect of punishment, there can be no distinction between a penal statute and any other statute. (See Redding v. State, 85 N.W. 2d 647, 652; Neb. 1957) (concluding that a criminal statute without a penalty clause is of no force and effect). The earliest statements of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 B.C.); the Laws of Eshnunna (c. 2000 B.C.); the even-earlier Code of Ur-Nammu (c. 2100 B.C.) and the Lex Talionis or law of exact retaliation presented in three separate passages of the Jewish Torah or biblical Pentateuch. At Nuremberg, the words used by the Court, “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,” represented an unambiguous reaffirmation of Nullum crimen sine poena. For the Court statement, see: A.P. d’Entreves, Natural Law (London: Hutchinson University Library, 1964), p. 110.
[36] International law assumes a reciprocally general obligation of states to supply benefits to one another and to avoid war wherever possible. This core assumption of jurisprudential solidarity is a “peremptory” or jus cogens expectation. It can be found very early on 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).
[37] Concerning such “oneness,” Americans may learn from Epictetus, the ancient Greek Stoic philosopher, “You are a citizen of the universe.” An even broader idea of human interdependence followed the death of Alexander in 322 BCE, and with it came a coinciding doctrine of “universality.” By the Middle Ages, this political and social doctrine had fused with the notion of a Respublica Christiana, a worldwide commonwealth, and Thomas, John of Salisbury and Dante were looking upon Europe as a single and unified Christian community. Accordingly, below the level of God and his heavenly host, all humanity was to be considered as one. This is because all the world had allegedly been created for the same incontestable purpose; to provide a secular background for the always-overriding human drama of salvation. Here, but only in its relationship to the universe itself, was the world considered as part rather than a whole. More exactly, says Dante in De Monarchia: “The whole human race is a whole with reference to certain parts, and, with reference to another whole, it is a part. For it is a whole with reference to particular kingdoms and nations, as we have shown; and it is a part with reference to the whole universe, which is evident without argument.”
[38]On the effects of a nuclear war by this author, 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
[39] 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
[40] See, by this author, at Oxford University Press: Louis René Beres, https://blog.oup.com/2018/07/trump-north-korea-human-rights/