When US President Donald J. Trump proposes that Russia and Ukraine “swap territories,” he is advocating multiple violations of international law and United States law. In essence, Russian President Vladimir Putin acquired Ukrainian territories by committing grievous acts of aggression, and thus has no conceivable legal right to keep them. Ipso facto, if Trump diplomacy intentionally rewards Putin crimes with a surrender of Ukrainian lands, the US president would also be in violation of international law.
There is more. Because international law is part of the law of the United States, [1] Trump’s acceptance of Russian crimes would amount to a significant dereliction under America’s domestic law. More precisely, it would render the United States complicit in crimes against peace (aggression), [2] crimes of war (humanitarian international law [3]) and crimes against humanity [4] (genocide). [5]
In law, Ukraine is basically a “crime scene” in which only the Russian side is criminal. It follows that what Donald Trump is agreeing to in this matter is effectively identical to British Prime Minister Neville Chamberlain’s woeful declaration of “peace in our time.” On its face, Trump’s prospective 2025 “settlement” of a war created entirely by Russian aggression is an evident re-play of 1938 Munich and its inexcusably tragic capitulations to German aggression. [6] “Beyond a reasonable doubt,” any such imposed settlement on Ukraine would violate Principle 1 of the 1950 Nuremberg Principles and every imaginable expectation of global justice.
There is more. Even in our state-based system of international law – the sovereignty-centered system brought into being at the Peace of Westphalia in 1648 [7] – a presumption of global community and solidarity overrides any presumed prerogatives of sovereignty. Especially after the strong legal expectations brought about by the post-World War II Nuremberg Judgment and Principles, states have not only the right but also the “peremptory” obligation to act in support of basic territorial sovereignties. Without exception, all states are obligated to reject claims of “just war” made for incontestable acts of aggression.
In formal legal language, the harms that Russia is inflicting on Ukraine represent criminalities of “international concern.” Therefore, every state member of the community of nations has the immediate obligation to stand against the aggressor and alongside the victim. Scholars and policy-makers can find ample support for this uncontroversial imperative in the classical legal writings of Cicero, Hugo Grotius, Samuel Pufendorf and Emmerich de Vattel. Though such names will appear unrecognizable to laypersons, even lawyers, they were substantially well known to Founding Fathers of the United States.
Transmitted into US law by William Blackstone’s eighteenth century Commentaries on the Laws of England—learned observations that represent beginnings of United States law—these observations were imbued with the timeless philosophy of “natural law.” [8] For Donald J. Trump, the natural law origins of the United States have never been meaningfully recognized or understood. Among appropriately codified or “positive” rules, these origins now call for the prompt rejection of Russian territorial claims in Ukraine and (ultimately) correlative prosecution of Vladimir Putin by the International Criminal Court or by another national or ad hoc tribunal of competent jurisdiction.
Interested scholars and policy makers should consult 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.”
Donald J. Trump’s declared “open-mindedness” on Russian crimes falls tangibly short of his obligations under both US law and international law. If there should still remain any doubters of this shortfall, they would need only to recall the explicit language of the UN’s Statute of the International Court of Justice. Article 38 of this foundational document describes “the general principles of law recognized by civilized nations” as a primary source of international law.
Gabriela Mistral, the Chilean poet who won the Nobel Prize for literature in 1945, opines that crimes against humanity carry within themselves “a moral judgment over an evil in which every feeling man and woman concurs.” In his expected silence on this “moral judgment,” Donald Trump seems likely to ignore his overlapping obligations under US law and international law. If there should remain any “realists” who do not acknowledge a need to condemn such insidious silence, they ought to look back over the doctrinal foundations of all authoritative jurisprudence.
There is more. International law includes 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.” The norms of customary international law bind all states irrespective of whether a state has ratified the codifying instrument or convention.
International law compartmentalizes apparently identical rights and obligations arising 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.” [9]
To support the world’s most blatant “common enemy of humankind” (in law, “hostes humani generis”) would defile American’s immutable obligation to stand reliably against Nuremberg-category crimes. In a best case scenario, though one unlikely to resonate with a US president who previously identified Putin’s crimes as examples of “genius,” Donald J. Trump would affirm America’s non-negotiable support of Ukrainian sovereignty and global justice. While Trump is not oriented toward making such a “best case” argument in this matter, [10] he ought still to understand that any “swapping of territories” would violate national and international law simultaneously.
Notes
[1] In 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.'”).
[2] Following the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), there remains no defensible legal right to waging an aggressive war. However, the long-standing customary right of post-attack self-defense does remain codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum standards. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.
[3] Humanitarian international law, or the laws of war, comprise: (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 to bring discrimination, 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 Amelioration 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.
[4] 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.
[5] Neither international law nor US law specifically advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. Nonetheless, all states, most notably the “major powers” belonging to the UN Security Council, are bound, among other things, by the peremptory obligation (defined at Article 26 of the Vienna Convention on the Law of Treaties) known as pacta sunt servanda, to act in continuous “good faith.” In turn, this pacta sunt servanda obligation is itself derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by the eighteenth-century legal scholar, Emmerich de Vattel in The Law of Nations (1758).
[6] See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. 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.
[7] International law remains a “Westphalian” system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia.
[8] Under international law, the idea of Natural or Higher Law—drawn originally from the philosophic writings of ancient Greeks and ancient Hebrews—is contained, inter alia, within the principle of jus cogens or “peremptory” norms. 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).
[9] See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
[10] This brings to mind the closing query of Agamemnon in The Oresteia by Aeschylus: “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatreds, the destruction”?
Louis René Beres was educated at Princeton (Ph.D., International Law, 1971). He is Emeritus Professor of International Law at Purdue University. Dr. Beres has published at The New York Times; The Atlantic; The Bulletin of the Atomic Scientists; Harvard National Security Journal (Harvard Law School); The Hill; World Politics (Princeton); JURIST; Yale Global; BESA (Israel); Oxford Annual Yearbook on International Law and Jurisprudence (Oxford University Press) and several dozen major law reviews. He also publishes widely in principal journals of the US Army and US Air Force. Professor Louis René Beres was born in Zürich at the end of World War II.
