by Prof. Louis Rene Beres
Nullum crimen sine poena, “No crime without a punishment”
Though US President Joseph Biden was initially criticized for interfering in Russia’s “sovereign jurisdiction,” no allegation of “intervention” could have been more sorely mistaken. In this matter, the Nuremberg Principles are binding, and are founded upon the inviolable notion that crimes of war, crimes against peace and crimes against humanity should never again be allowed to proceed without tangible opposition or punishment. More precisely, because the world legal order remains fundamentally “Westphalian” or anarchic, each and every individual state has commensurate enforcement obligations, especially the five permanent members of the UN Security Council.
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It is more than a little ironic that the brutalizing state in current aggressions against Ukraine is itself one such permanent member.
For legal scholars and pertinent policy makers, there are various clarifying details. Prima facie, regarding current Russian crimes against Ukraine, authoritative international law has long been incorporated into US law. Though it is ordinarily correct under international law that one sovereign’s open call for the removal of another represents an impermissible intervention, that expectation must be reversed whenever the called-for departure is based on “crimes against humanity” and/or related Nuremberg-category crimes. Significantly, such egregious crimes are punishable even in the absence of a specific treaty or relevant “positive law.”
Even in our Realpolitik system of international law – the corrosive global system of “balance” brought into being at the Peace of Westphalia in 1648 – a core presumption of world community and solidarity trumps all normal prerogatives of national sovereignty. Now, especially after accepting strong reinforcements by the post-World War II Nuremberg Judgment and principles, states maintain not only the right but also the obligation to intervene in other states on behalf of basic (“peremptory” human rights. Among other obligations, and without any exception, all states are expected to categorically reject UN Charter claims to “domestic jurisdiction” in circumstances wherein major crimes are being committed during an unjust war.
Correct legal language should stipulate that the harms Russia is inflicting upon Ukraine (crimes that include the establishment of “filtration camps” and mobile crematory units) warrant “international concern.” Here, every state member of the “global community” maintains both the right and obligation to stand against the Russian aggressor and with the Ukrainian victim. Scholars and policy-makers could find ample support for this imperative not merely in “common sense” jurisprudence, but in the classical legal writings of Cicero, Hugo Grotius, Samuel Pufendorf and Emmerich de Vattel. Though such names will appear arcane or esoteric to most readers and diplomats, they were substantially well known to Founding Fathers of the United States.
First transmitted into US law by William Blackstone’s eighteenth century Commentaries on the Laws of England– learned observations that represent the recognizable beginnings of current United States law – these jurists were imbued with the philosophy of “natural law.” It is a philosophy that continues to display variously practical and indispensable legal authority.
There is more. The natural law origins of the United States have never been seriously challenged or in any way abrogated. Such efforts would have been illogical ipso facto. These origins now call for the active removal of a Russian sovereign aggressor who is making a daily mockery of basic human rights in the victimized state. Scholars and policy makers need look no further than Book 2 of Emmerich de Vattel’s encyclopedic “The Law of Nations” (1758): Says Vattel: “If there should ever be found a restless and unprincipled nation, every ready to do harm to others, to thwart their purposes and to stir up civil strife among their citizens, there is no doubt that all other states would have the right to unite together to subdue such a nation, to discipline it, and even to disable it from doing further harm.”
Ironically, US President Joe Biden’s comments on 26 March 2022 concerning Vladimir Putin’s continuance in office actually fell short of his established rights under international and US law. If there should remain any sincere doubters of this shortfall, they need only recall the explicit language of the UN’s Statute of the International Court of Justice at Article 38, which describes as primary source of international law “the general principles of law accepted by civilized nations.”
Incontestably, the Constitution of the United States is based upon variously core foundations of Natural Law, “self-evident” principles that are perpetually binding upon all persons and all sovereigns. While less explicit and harder to identify than codified or “positive” law, these principles are in no way inferior to statute or treaty. Accordingly, they ought never be wittingly minimized or disregarded.
There is more. The Reason-based principles of Natural Law represent more than quaint artifacts of America’s jurisprudential past. As the nation’s current political leaders consider and re-consider a broad variety of critical matters – e.g., US foreign and domestic policy on human rights; US domestic policies on civil rights; issues of nuclear war avoidance; etc. – there are times when the written law could once again be manipulated for politically self-serving purposes. An example of this not-unprecedented problem would be reactionary political arguments for selective infringements or curtailments of civil rights, arguments that often take unsupportable refuge in the Second Amendment. As even the US Constitution is subject to almost any variety of unreasonable interpretations, justice can never be served by this document ipso facto. In essence, no law-based US codifications, no matter how well intentioned or intelligently conceived, could ever claim self-evident meanings.
Ultimately, the US Constitution, in the same fashion as any other authoritative codification of national or international law, must depend upon the method and human spirit by which it is consulted or invoked. In those plausibly foreseeable circumstances where adversarial interpretations would hinge less upon any peremptory expectations of order and justice than on variously antecedent preferences and prejudices (e.g., questions of gun control and public order), codified law could be suitably augmented by certain apt considerations of Natural Law. To be sure, per Blackstone, there would always be far-ranging differences on what actually constitutes “the eternal, immutable laws of good and evil,” but Natural Law should still remain a final template of correct legal judgment.
There remains one final observation about relevant international law, a system of norms and procedures that is always a binding part of United States law. During the Trump years, American foreign policy routinely turned a selectively blind eye to massive human rights violations in other countries, including even genocide and genocide-like crimes. In these unhidden cases, codifications of US law, including specific provisions of the US Constitution, were cynically reinterpreted to support presumptive geopolitical interests.
It was hardly “interventionary” or even inappropriate for Joseph Biden to declare that Russian president Putin “cannot remain in power.” Ultimately, pursuant to the authoritative Nuremberg Principles and various antecedent norms, even senior Russian military officers who carried out Putin’s illegal orders to target Ukrainian civilians and carry out multiple crimes of war, crimes against peace and crimes against humanity should be apprehended and prosecuted. As a practical matter, casting any wider net of criminal containment and punishment will prove exceedingly difficult to operationalize, but openly identifying some high-level examples should at least be attempted.
With respect to the plea of superior orders, the classical writers on international law rejected that plea as a proper defense against any charge of war crimes. Even the German Code of Military Law operative during World War II provided that a soldier must execute all orders undeterred by the fear of legal consequences, but added that this would not excuse him in such cases where he must have known with certainty that the order was illegal. This view was upheld in a landmark decision of the German Supreme Court in Leipzig in 1921. According to the Court, a subordinate who obeyed the order of a superior officer was liable to punishment if it were known to him that such an order involved a contravention of international law.
The defense of “superior orders” was also rejected at the Einsatzgruppen Trial undertaken by an American military tribunal. According to the tribunal: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officers order him to do. The subordinate is bound only to obey the lawful orders of his superior.”
The overriding obligation to remove and prosecute Vladimir Putin is linked to another peremptory obligation under international law – the obligation of national self-defense, of “staying alive” as a state. The first stipulated obligation stems in part from the second. According to Emmerich de Vattel’s classic 1758 work on The Law of Nations, a text that influenced Blackstone, Jefferson and other conceptual founders of US law, “The right to punish injustice is derived from the right of self-protection.” The peremptory right of self-defense in international law is itself drawn from Natural Law, which can never be subordinated to any “man-made” international agreements or any extra-legal considerations of power politics.
After the multiple crimes of state committed by Nazi Germany during World War II, international law made certain to create certain guiding principles to prevent and punish future crimes. Taking the lead in this heroic effort, the United States has since been closely associated with fashioning the derivative Nuremberg Principles, formal norms and procedures intended to thwart any repeat of Nazi-era crimes of war, crimes against peace and crimes against humanity. Today, faced once again with such state-inflicted barbarisms – this time, Russia’s war of aggression against Ukraine – American leaders should stand firmly by what was codified at Nuremberg. As a beginning, there must be a greater awareness that US President Joe Biden’s plea for removing Vladimir Putin from power represented not an intervention, but a preliminary act of global law-enforcement.
Louis Rene 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.
You may find here his latest law review article Israeli Nuclear Deterrence And International Law: Calculating Effects Of Power Politics And Pandemics.
This article was first published in Modern Diplomacy