US President Donald Trump’s recent affirmation of support for Saudi Arabia following the Jamal Khashoggi murder is painfully illegal. More precisely, both the laws of the United States and international law were violated by this American affirmation. Inevitably, those particular US allies that are themselves concerned about Saudi power and authority in the Middle East will be affected.
For Israel, the pertinent question will be this: Will Riyadh be substantially strengthened by this misconceived American exoneration, and would any expected strengthening prove to be a net security positive or negative for Jerusalem?
It begins with jurisprudence. A powerful nation’s legal behavior must always be knowledge-based and fair-minded, not just a seat-of-the-pants ramble about nationalistic “greatness” or “America First.” Significantly, the incorporation of international law into United States law is vital, incontestable, and immutable. This conclusion flows directly from Article 38 of the 1945 Statute of the International Court of Justice.
Under the mutually reinforcing rules of national and international law – rules that are known formally as “peremptory” or “jus cogens” norms because they permit “no derogation” – an American president has no recognizable right to ignore or implicitly support egregious violations of human rights. This blanket prohibition obtains for absolutely any reason. It includes any supposed interest of geopolitics (e.g., Saudi Arabia presumably represents a “lesser evil” than Iran) or of presumed economic advantage (“Thank you, Saudi Arabia, for lower oil prices”).
Mr. Trump’s problem here goes back to the very beginnings of the American Republic. The US Declaration of Independence codifies a social contract that sets limits on the authority of any government, especially on those matters concerning human rights. As justice, which for Americans is necessarily based on “natural law,” commits every human society, the specific rights that are referenced by the Declaration of Independence can never be reserved only to Americans.
Such rights, specifically from the historical standpoint of the United States, are now and forever universal. They are never subject to modification or diminution by a sitting president. They may never be shelved on account of any current policies.
However much it remains incognito in the Trump White House, a jurisprudence based upon a Higher Law background is still very much in force for the United States. For Mr. Trump to glibly suggest otherwise, as he did recently regarding Saudi Arabia, is illogical and self-contradictory. Any such suggestion undermines and prospectively nullifies the immutable and universal jurisprudence from which the Declaration of Independence and US Constitution so obviously derive.
Few Americans are aware of this basic US history and jurisprudence, but the associated facts and law remain valid nonetheless. For those who might like to look behind the news, however, the philosophical conveyance of natural law thinking into American Constitutional theory was largely the result of John Locke’s Second Treatise on Civil Government. In 1776, a then future American president named Thomas Jefferson relied very heavily upon this Treatise to craft his Declaration of Independence.
In important matters of national legal obligation, history always deserves a conspicuous pride of place. While fellow seventeenth-century English philosopher Thomas Hobbes had regarded the natural law and national civil law as coextensive, Locke echoed a more than two thousand year tradition with a stirringly contrary view. This literally opposite view was that a country’s domestic law must be kept scrupulously consistent with pre-existing natural law. Indeed, without such a mandatory consistency, any so-called domestic law was simply not fit to be called law.
It is not enough for an American president to justify any alleged ally’s multiple crimes against human rights in terms of gainful geopolitical goals. Accordingly, Mr. Trump should grasp and reaffirm the most fundamental legal expectations of the United States. Even more broadly, regarding recent Saudi Arabian crimes and assorted derelictions of certain other law-violating regimes (e.g., Russia), this president finally needs to understand an invariant and aptly perpetual premise of American justice: Respect for universal human rights is a long-codified legal obligation of the United States, and should never be disregarded for narrowly personal or presumptively “nationalistic” benefit.
For whatever reasons, President Donald Trump continues to think against himself and the interests of the United States at the same time. Moreover, as is evident from America’s established tradition of concern for worldwide human rights, such misconceived thinking undermines the most basic values and ideals of a nation long committed to “justice for all.” While every country must still continue to live with the corrosive legacy of fragmented international relations, each state must unhesitatingly acknowledge the interdependence of all states.
By standing proudly together with a murderous regime in Riyadh, US President Donald Trump recently launched a destabilizing salvo against global law and justice. In essence, it can never be proper or purposeful for an American president to stand in unambiguously strong support of a regime that is increasingly willing to flaunt core legal obligations in world politics. In this connection, the consequent security implications for Israel of such support could prove both tangible and more-or-less far-reaching.
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 (Princeton); 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.
His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear
This article was first published at Israel Defense