February 27, 2024

Saluti Law Medi

Rule it with System

Trump’s Wrongful Pardons for Crimes Against International Law – JURIST – Commentary

The author, professor emeritus at Purdue University, argues that former president Trump’s dual-level legal derelictions not only coincide in speciousness, they also represent force-multiplying assaults upon America’s Constitutional and “higher-law” foundations…

“So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.”

Nuremberg Tribunal (1946)

At the beginning of 2024, former President Donald J. Trump’s most conspicuously unsupportable legal claim has been his personal immunity from criminal prosecution. With this claim, Mr. Trump and his lead attorneys have willfully disregarded that a US president’s sworn oath to “take Care that the Laws be faithfully executed” (art II, sec. 3) is incompatible with arguments that even the assassination of a political opponent would not be prosecutable unless there had been prior impeachment and conviction. Here, I focus on a different but closely-related and mutually reinforcing Trump legal issue, the generally ignored issue of awarding presidential pardons for crimes against international law. The former president’s dual-level legal derelictions not only coincide in speciousness, they also represent force-multiplying assaults upon America’s Constitutional and “higher-law” foundations.[1]

The defining purpose of the International Military Tribunal at Nuremberg (1945-46) was to fulfil the obligation to punish crimes against international law. Though some of those convicted for war crimes were subsequently granted commutations of sentence for extra-legal reasons,[2] the general principle continued to obtain that there should be no such crimes without proper punishment (nullum crimen sine poena). In its core origins, this “no pardon” principle derived from an always-binding “Higher Law” or “Natural Law,” the same universal and immutable doctrine upon which the United States Constitution had been founded.

But what exactly does this foundational American document actually say about US obligations concerning punishment of crimes against the “law of nations?” To begin, we may look back at Trump-era pardons for individuals convicted of such fundamental crimes. While the pertinent individuals involved surely didn’t rise to the levels of egregious criminality associated with those of prematurely released Nazis, the relevant grants of presidential pardon still left an ineradicable stain on both rudiments and precedents of United States justice.

Now, clarifying details are needed. After January 6, 2021, it was disclosed by special investigating committee of the Congress that several Trump associates had sought or were expected to seek a presidential pardon. Apart from any broader legal issues involved, one key Constitutional prohibition generally escaped public and lawmaker scrutiny. This prohibition expressly clarifies that no US president can ever claim codified or customary legal authority to pardon crimes against international law.[3]

Though Donald Trump’s pardoning actions for such crimes were inadmissible under US law,[4] and  despite the fact that the  former president has since been indicted for an assortment of other serious crimes in multiple judicial jurisdictions, he was allowed to “get away” with this specific Constitutional dereliction.[5] While typically unfamiliar even to capable jurists and legal scholars, the relevant issues of international law ought still to have been raised more directly by the January 6 committee, the Department of Justice and by uncompromised legal scholars.[6] Jurisprudentially and philosophically, all should recall, international law[7] shares its natural law[8] origins with US law. All three normative systems are inextricably intertwined.

The key legal problem here is unambiguous. Ipso facto, the law of nations is  part of the law of the United States.[9] Notwithstanding certain evident and substantial intersections of US law, natural law[10] and international law,[11] the United States Constitution is abundantly clear on one US-specific separation: A US president’s power to pardon does not extend to violations of  international law. This power is limited to “Offenses against the United States.” Moreover, these offenses are never subject to any idiosyncratic, whimsical or loosely ad hoc definitions. Rather, they are explicitly confined to “…only those offenses declared to be such by the solemn action of the legislative body.”[12]

There are further correlative details. The law of nations, or international law, is federal common law. Among other things, the constitutionality of federal subject matter jurisdiction on such inherently vital matters is established at Articles III and VI of the Constitution and in assorted 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 are evident facts of the Trump-pardoning cases? Did any of Donald J. Trump’s late 2020 pardons concern identifiable violations of international law?[15]  If “yes,” these openly-flaunted grants of presidential “largesse” were unlawful prima facie.

There is no mystery here. Only a few flagrant examples of the former president’s illegally-granted pardons[16] were acknowledged in official DOJ (Justice Department) records.[17] Plausibly, in coming months and years, perhaps even during a second Trump presidency, additional relevant evidence will surface. At that point, however, it should be the much larger issues of Constitutional and international law that occupy authoritative US decision-maker attention.

Could the former president’s pardoning actions have been justified by clever word play regarding relevant legal definitions? For example, in  those cases that involved crimes of war,[18] a competent legal scholar could argue more or less persuasively that Trump pardons were not issued solely or primarily for any specific violations of international law. In part, such an argument could be based on well-established understandings that the laws of war – aka humanitarian international law – have long been “incorporated” into the laws of the United States[19] and that applicable presidential pardons rightfully concerned these US legal norms.

Still, “not so fast” should be the informed response to any such argument.  Any such highly “selective” assessment would first 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 pardon must represent “an act of grace, one proceeding directly from the power entrusted with the execution of the laws….”[21]

Looking back through the lens of January 6 committee disclosures, Trump’s impermissible pardons are not difficult to fathom.[22] Jurisprudentially, the former president’s contrived pardons were anything but “an act of grace.” Instead, understood in refined legal-philosophical terms, they expressed openly cynical re-affirmations of the earlier Sophist view of justice revealed by Plato.

Thrasymachus declares in The Republic: “Right is the interest of the stronger.”[23]

The complex legal problem considered by the January 6 committee ought not to have been confined to challenging, remediating or reversing Donald Trump’s conspicuous abuses of the US Constitution’s pardoning power. In principle, at least, the Committee’s mandate should also have considered how to best ensure that invalid exonerations for crimes against international law are never repeated by any successor American president. Reassuringly, purposeful answers would be readily ascertainable. With interest and dedication, they still lie within graspable reach of dialectical legal reasoning.[24]

The United States is not a party to the International Criminal Court.[25] A prospective plaintiff with appropriate judicial interest in these matters could sometimes bring legitimate claims into a US federal court by way of the Alien Tort Statute (1789).[26] Examples might be foreign nationals and identifiable relatives of victims injured or killed by one or several of the American beneficiaries of an unsuitable presidential pardon.

Nonetheless, 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.

Today, after examining so many well-documented Trump derogations, legal scholars and public officials could accept no reasonable question about the former president’s multiple violations of international law.[27] One de facto result of Donald J. Trump’s illegal pardoning of certain individual US citizen actions was the retroactive elimination of such criminal responsibility. The former president’s pardons were 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 international crimes.

What has been learned? What should be done, now?

Under authoritative international law,[28] criminal responsibility of individuals can never be removed by any unilateral actions of a national government.[29] 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.[30] 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.”[31]

Reciprocally, all states have an obligation[32]  to avoid “denials of justice”[33] in the sense of international  law.  This peremptory obligation is based on plausibly reasonable concerns that by pardoning a criminal, the state “assumes responsibility for his past acts.”[34] In specific regard to impermissible Trump pardons, especially those involving tangible war crimes, this means reputational consequences that include more-or-less substantial legal diminutions of the United States as such.[35]

It will always be better to demand presidential reversal at the actual time of any wrongful pardons. As witnessed with regard to Trump pardons for crimes against the Law of Nations, once such grants became a fait accompli, efforts at remediation became exceedingly difficult. Looking ahead, any American president should once again understand that no nation-state or its leaders can exculpate or exonerate violations of international law.

It is for sound reasons of human interdependence[36] and human “oneness”[37] that the US Constitution incorporates and codifies this vital understanding.

Recalling Sophocles’ Antigone (442 BCE) any sovereign’s legal responsibility (whether king or president) must be to his/her own country and to the wider world.  Ipso facto, whenever an American president issues pardons to assorted violators of the law of nations, he undermines variously 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 Constitution, and are central to explaining a president’s unequivocal incapacity to pardon crimes against international law. Accordingly, former President Donald J. Trump’s expressed willingness to issue such pardons despite clear legal prohibitions willfully undermined global security and human rights.

For capable scholars and policy-makers, conclusions here are “self-evident.” In still-conceivable worst-case scenarios, choosing once again to ignore the US Constitution-based rule on pardons for international crimes could encourage catastrophic war and/or genocide–like crimes. Such intolerable outcomes, which could include even a full-blown nuclear war,[38] need not be mutually exclusive. Plausibly, they could represent certain mutually reinforcing or “force-multiplying” outcomes.

Politics should never be allowed to displace a national leader’s obligation to aid and enforce the law of nations.[39] At the start of 2024, however, a former and re-aspiring US president is magnifying his previous derelictions of national and international law by proclaiming personal immunity from all criminal prosecutions. Though this proclamation is not directly related to Donald J. Trump’s prior pardoning actions for crimes against international law, its origins lie is similarly distorted notions of national and global justice. Above all, these coinciding presidential misbehaviors signify violations of a peremptory legal principle reaffirmed at Nuremberg: The jus cogens principle of “no crime without a punishment.”

In principle, though there are circumstances in which reasonable or compassionate pardon could still be consistent with justice, none of these circumstances obtain in the pertinent actions of former US president Donald J. Trump. Reinforcing or “force-multiplying” this important conclusion are Trump’s ongoing efforts to declare himself immune to all criminal prosecutions absent any prior impeachment and conviction. In essence, such exaggerated efforts to place Trump above the law are equivalent to seeking another wrongful pardon. This de facto pardon would not be for crimes against international law in particular, but for broadly accumulated violations of this former president himself.

Could any action more conspicuously undermine the Constitution of the United States or its immutable foundations in Higher Law? 

LOUIS RENÉ BERES (Ph.D. Princeton 1971) is the author of many books and articles dealing with literature, art, philosophy, international relations and international law. Emeritus Professor of International Law at Purdue, he was born in Zürich, Switzerland at the end of World War II. Dr. Beres’ twelfth and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016) (2nd. ed., 2018)   http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy. Some of his pertinent writings can be found at The New York Times; The Atlantic; The Jerusalem Post; The Bulletin of the Atomic Scientists; The Hudson Review; The National Interest; JURIST; Modern Diplomacy; US News & World Report; World Politics (Princeton); Daily Princetonian; Yale Global Online; Harvard National Security Journal (Harvard Law School); International Security (Harvard); The War Room (Pentagon); Air-Space Operations Review (USAF); Modern War Institute (West Point); Israel Defense; Parameters: Journal of the US Army War College (Pentagon); and more than a dozen national and international law journals. Professor Beres, a five-times contributor to the annual Oxford University Press Yearbook of International Law and Jurisprudence, is a member of the Oxford University Press Yearbook’s board of editors.

[1] See, on this “higher law,” Edward S. Corwin, The “Higher-Law” Background of American Constitutional Law (Cornell University Press, 1928.). Corwin writes famously of the American Constitution as an expression of the Higher Law, that is “…in fact imperfect man’s most perfect rendering of what Blackstone saluted as `the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms’” (p. vi).

[2] For geopolitical reasons (i.e., Cold War with the Soviet Union), American occupation officials set many convicted Nazi war criminals free ahead of schedule. See:  https://www.nationalww2museum.org/war/articles/american-justice-at-nuremberg-military-tribunals

[3] In significant measure, this presidential pardoning exclusion derives from every 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 e.g., United States v La Jeune Eugenie, 26 F. Cas. 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 seminal and exemplary.

[5] 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/

[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] 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.’”).

[10] 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.)

[11] See William Blackstone’s Commentaries on the Law of England (Book 4): “Each state is expected, perpetually, to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law.”

[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 discrimination (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). Nonetheless, at least in principle, these four convicted and pardoned war criminals could still become the object of correctly prepared extradition requests during or after the incumbent Biden presidency for alleged war crimes in Iraq and/or Afghanistan (venues outside the United States).

[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] Said US Federal Judge Robert Pain: “It’s not surprising that a criminal like Trump pardons other criminals, but apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey.” (Judge Pain, Southern District of Iowa, 28 December 2020.)

[23] 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.

[24] 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.

[25] https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[26] 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.).

[27] See for example, Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa. Sup. Ct 1784).

[28] 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).

[29] 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).

[30] 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.

[31] 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.

[32] 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).

[33] See The Federalist No. 80 (Alexander Hamilton).

[34] See 1 Restatement of the Foreign Relations Law of the United States (Revised) Sec. 711, 2B (Tent, Draft No, 6, 1985).

[35] Nullum crimen sine poena (“No crime without a punishment”) is the key principle that distinguishes criminal law from 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] “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

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