By Louis René Beres
Among several noteworthy and interrelated Helsinki summit policy derelictions – most obviously, Vladimir Putin’s still unpunished aggressions in Crimea – US President Donald Trump chose to ignore America’s binding legal obligations regarding Russian war crimes in Syria. This sorely evident disregard reflects not “merely” willful antipathy to pertinent international law, but also a concurrent indifference to certain primary laws of the United States. In essence, this effectively dual-level violation exists because US law incorporates the preexisting law of nations, whether directly (either by express Constitutional requirement, or by specific Supreme Court ruling) or by the more general but equally authoritative convergence of various customary legal norms. The express Constitutional requirement or specific Supreme Court rulings are seen especially especially in Article VI of the US Constitution (the “Supremacy Clause”) and two prominent cases from the US Supreme Court: Paquete Habana(1900) and Tel Oren v. Libyan Arab Republic (1984).
Significantly, both forms of domestic incorporation are vital, incontestable and immutable. This conclusion follows directly from the explicit terms of Article 38 of the 1945 Statute of the International Court of Justice.
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Under mutually reinforcing rules of national and international law – rules that are known more formally as “peremptory” or “jus cogens” norms because they permit “no derogation” – an American president simply has no recognizable right to ignore egregious Russian war crimes committed against Syrian civilians. This absolute prohibition extends to literally any conceivable reason or pretext for such indifference, including even the “traditional” presumption of geopolitical advantages expectedly accruing to the United States. Among other relevant documents, the US Declaration of Independence codifies a social contract that sets limits on the power of any government, including the operational powers of war waging. Accordingly, because justice, which is ultimately based on “natural law,” commits all human society, those specific rights articulated by the Declaration can never be reserved exclusively to Americans.
Of necessity, they must extend to all human societies.
However much it is unrecognized in the current White House, this is still “the law.” For Mr. Trump to suggest otherwise, as he did at Helsinki, if “only” by omission, is both illogical and self-contradictory. By definition, after all, any such injurious suggestion could nullify the immutable and universal law of nature from which the Declarationand all subsequent US law necessarily derive.
Precious few Americans are even remotely aware of this basic history or its corollary jurisprudence, but both facts and law remain valid nonetheless. Furthermore, as just a matter of usefully specific history, the actual conveyance of natural law thinking into American Constitutional theory was largely the work of John Locke’s Second Treatise on Civil Government. In view of our current jurisprudential concerns, this particular history warrants some distinct and entirely visible respect.
Back in 1776, a then future American president named Thomas Jefferson relied upon this Treatise to craft his own Declaration of Independence. Significantly, can anyone seriously maintain today that US President Donald Trump has any idea about John Locke or his influence upon national and world law (or, for that matter, about even Thomas Jefferson)?
Now, in all important matters of national legal obligation, history deserves some recognizable pride of place. While fellow seventeenth-century English philosopher Thomas Hobbes regarded the natural law and civil law as coextensive, Locke echoed a more than two thousand year tradition with his markedly contrary view. This critically opposite stance was that the civil law must be kept consistent with preexisting natural law, always. Moreover, regarding the related laws of war of international law, sometimes termed the law of armed conflict or humanitarian international law, obligatory respect for noncombatant populations in warfare goes back much further; indeed, as far as the Old Testament or Hebrew Bible, especially the basic rules outlined in Deuteronomy.
For an American president, it is not enough to justify an apparent “ally’s” war crimes because of mutually gainful geopolitical goals, e.g., the destruction of ISIS. Accepting the timeless legal maxim – jus ex injuria non oritur – “rights do not arise from wrongs” – Mr. Trump should finally attempt to grasp certain fundamental traditions and pertinent laws of his own country, and then proceed to acknowledge them as the only permissible standard for enforcing the civilizing laws of war. More broadly, the president also needs to understand these unchanging obligations as one part of the vastly more general obligation to support the international law of human rights.
Again, the basic principles of this even wider law are already incorporated into certain vibrant statutes of the United States. As one example, the US Department of State is required to enforce the universal human rights provisions mandated by sections 116 (d) and 502B(b) of the Foreign Assistance Act of 1961, as amended.
For several years, Russian bombs have maimed and killed thousands of Syrian noncombatants, sometimes with chemical components, and always without even a hint of decent concern for compliance with the laws of war of international law. By failing to reference these persistently indiscriminate killings during his recent summit meeting with President Vladimir Putin at Helsinki, US President Donald Trump made the United States complicit in genuinely grievous international crimes. More precisely, he openly violated not only American jurisprudential obligations to the UN Charter, the Hague and Geneva Conventions, and assorted longstanding rules of warfare concerning discrimination (sometimes called “distinction”), proportionality and military necessity, but he also managed to sully the closely related expectations of US law. In the final analysis, these multiple and coinciding Russian derelictions are significant not just because they express formal legal “delicts” or codified “wrongs,” but because they inevitably bring very tangible and palpable suffering to wholly innocent human beings.
Following other once-unthinkable Helsinki summit concessions by Donald Trump, they already represent unforgivable crimes for which the United States must conspicuously accept a derivative but still-major responsibility.
This article was first published at JURIST
Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics; Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.