US legal obligation: Balancing risks of nuclear war, genocide - comment

Vladimir Putin’s most flagrant crime against Ukraine is aggression. Certain coinciding and overlapping acts of Russian criminality, however, also evidence genocide. Even if Russian military doctrine lacks an intent to destroy specific Ukrainian populations (such mens rea intent is integral to the legal definition of the 1948 Genocide Convention), Putin’s wrongdoings still rise to the level of other authoritative standards. Most egregious in this regard are forcible deportations of Ukrainian children to Russia.

What are the United States obligations in this peremptory jurisprudential matter, obligations that can never be properly disregarded? Among pertinent considerations, any attempts by Washington to interfere with Putin’s lawbreaking in Ukraine could heighten the chances of a superpower nuclear confrontation. In essence, therefore, an underlying American policy query should be as follows: What ought to be done by the US that is aptly law-enforcing, but still not unreasonable or irrational from a standpoint of preventing nuclear escalation?

By definition, of course, this urgent issue is unprecedented and unique. This means that there exist no tangible guidelines to answer the potentially existential question with reliability. What should be done by American decision-makers is to take explicit note of the two relevant concerns (nuclear war and genocide) and to assess the risks of each concern. In the end, these decisions will have to be about comparative hazards, including subtle ways in which plausible nuclear war risks and plausible genocide risks could impact each other.

For the US, international law enforcement is never just a volitional matter. Because such enforcement has been incorporated into the law of the United States (see Article VI of the US Constitution and two key cases from the US Supreme Court: Paquete Habana, 1900 and Tel Oren versus Libyan Arab Republic, 1984), it would support various binding expectations of American domestic law.

The Convention on the Prevention and Punishment of the Crime of Genocide (1948) obliges signatories not only to avoid committing genocide themselves, but also to oppose and prevent genocidal behavior committed by other states. At Article III of this Convention, the obligation extends to grave acts involving conspiracy to commit genocide, attempt to commit genocide and complicity in genocide. Such core expectations are known formally in law as peremptory or jus cogens rules. This signifies rules or obligations that permit no derogation.

There is more. These obligations are discoverable in corollary and complementary expressions of international law, both customary and codified. More specifically, even if a transgressor state were not a party to the Genocide Convention, it would still be bound by customary law and (per Art 38 of the Statute of the International Court of Justice) by the general principles of law recognized by civilized nations.

NEITHER INTERNATIONAL law nor US law advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. But all states, most notably the major powers belonging to the UN Security Council, are bound by peremptory obligation, defined at Article 26 of the Vienna Convention on the Law of Treaties. This is the always fundamental legal requirement to act in continuous good faith.

The good faith or Pacta sunt servanda obligation is derived from an even more basic norm of world law. Known commonly as mutual assistance, this civilizing norm was famously identified within the interstices of classical jurisprudence by eighteenth-century legal scholar, Emmerich de Vattel. Later, it was reaffirmed by William Blackstone, who’s meticulously assembled Commentaries on the Laws of England became the bedrock of United States law.

As an historic aside, Vattel, who’s The Law of Nations was first published in 1758, became a favored jurisprudential source of Thomas Jefferson. In fact, this American founding father relied upon his brilliant Swiss antecedent for many key principles he later chose to include in the Declaration of Independence. As a present-day matter, a prospectively revealing question should arise: How many American citizens can imagine an American president reading classical political philosophy or international law?

It’s a silly question, even after Donald J. Trump’s inglorious departure.

Back to Ukraine. In the strictest sense, though the US could never be held accountable under law for any legal abandonment of the Ukrainian people, any willful failure to act against Putin in this arena of ongoing Russian criminality would violate general and immutable principles of international law.

This anti-genocide regime includes the London Charter of August 8, 1945; UN Charter (1945); Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (1970); Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal (1946, 1950); and the International Law Commission (ILC) Articles on State Responsibility (2001).

IN ITS landmark judgment of February 26, 2007, “Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide” (Bosnia and Herzegovina v. Serbia and Montenegro), the International Court of Justice (ICJ) ruled that all Contracting Parties have a direct obligation to prevent genocide. Somewhat counter-intuitively, the ICJ found it easier to acknowledge this obligation expressis verbis (“with clarity”) than by referencing the corollary legal requirement not to commit genocide themselves.

Machiavelli and Hobbes

Much earlier, 16th-century Florentine philosopher Niccolo Machiavelli fused Aristotle’s plans for a more scientific study of world politics with assorted cynical assumptions about geopolitics. His best known conclusion focuses on the palpably timeless dilemma of practicing goodness in an evil world: “A man who wishes to make a profession of goodness in everything,” Machiavelli asserts in The Prince, “must necessarily come to grief among so many who are not good.”

If taken too literally, however, this conspicuously cynical assessment could lead not only individuals but also entire nations toward a primal state of nature. Among other things, this retrograde trajectory would describe a condition of rampant anarchy and disorder, one best clarified by another classic political philosopher, Thomas Hobbes. In his Leviathan (a work similarly well-known to Thomas Jefferson), life in this every-man-for-himself condition is grievously harsh. Such a corrosively sad individual life, we may learn from the seventeenth-century Englishman, must be “solitary, poor, nasty, brutish and short.”

What Hobbes was unable to foresee were the devastating consequences of any future exacerbations of anarchy by nuclear weapons.

Gabriela Mistral, the Chilean poet who won the Nobel Prize for Literature in 1945, wrote that crimes against humanity carry within themselves “a moral judgment over an evil in which every feeling man and woman concurs.” Today, continuing to coexist with other states in a self-help or vigilante system of international law, the US should do whatever is legally possible to publicize and impede Russia’s genocide and/or genocide-like crimes against Ukraine, but without expanding the likelihood of superpower nuclear confrontations. In this obligation, there could be no reassuring policy guidelines.

As Washington would be looking at circumstances that are unparalleled and extraordinary, the precise rules for any such law-enforcing behavior would be untested and ambiguous. The trick for the US will not be in avoiding strategic risk-taking – that would be impossible – but to manage worrisome escalations with intellect and integrity.

The writer (PhD., Princeton, 1971) is the author of twelve books and several hundred articles dealing with international law. He was born in Zurich at the end of World War II, the only son of Austrian genocide refugees.