In jurisprudential matters, whether national or international, precedent remains vitally important. When former (and possibly future) US President Donald J. Trump issued illegal pardons to selected American officials for established crimes against international law, the consequences reverberated in other countries. Now, with still-mounting Russian crimes against Ukraine – crimes of war; crimes against peace; and crimes against humanity – President Vladimir Putin could draw upon this dangerous precedent to protect himself and the many military and civilian subordinates who presently carry out flagrantly lawless orders. Significantly, such manipulative extrapolation could undermine justice and human rights at almost every palpable level.
The pertinent jurisprudential context would likely not be in a Russian domestic court, but in some specially-constituted (ad hoc) international tribunal or the International Criminal Court at The Hague. There would be serious difficulties involved in allowing non-Russian tribunals to acquire actual physical custody over the Russian defendants, but even trials in absentia could make coherent and law-enforcing sense. In essence, such trials could be used to make certain underlying and overriding points about natural law and global justice. One such point would be the evident absence of “military necessity” in Putin’s intentional violence against civilian populations in Ukraine. Recently, however, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and Maria Lvova-Belova, who serves as the commissioner for children’s rights under the leadership of Putin. The arrest warrant alleges that Putin and Belova are accountable for the commission of war crimes and crimes against humanity, specifically, the illegal expulsion and transfer of population, here children, from the occupied regions of Ukraine to Russia.
Donald J. Trump’s most serious derelictions were enduring and (in the matters here at hand) of potentially universal significance. Trump’s pardons were not just ill advised because the recipients were manifestly undeserving or mala in se (“evil in themselves”). These wrongly exculpatory actions represented specific violations of US Constitutional law provisions. No US president – and no head of state in any country – can ever claim pardoning power regarding the Law of Nations. It follows that Mr. Trump’s last minute barrage of presidential pardons bore no discernible relationship to authoritative expectations of justice. Ipso facto, this barrage was motivated only by the then-outgoing chief executive’s expressed priorities of personal self-interest.
Though his pardoning actions were inadmissible in law, Trump was allowed to get away with this conspicuously injurious example of legal contrivance. While generally unknown to laypersons and to jurists, relevant issues of international law ought still to have been be taken into careful and explicit account by the successor US attorney general and Department of Justice (‘DoJ’). Among pertinent legal rationales, one rarely considered or even mentioned is this: International law shares its “self-evident” Natural Law origins with US law.
The Law of Nations is always an integral part of the law of the United States and of all other national legal systems. Still, despite certain obvious and substantial intersections of US law, natural law and international law, the United States Constitution is unambiguous on one US-specific jurisprudential separation: An American president’s power to pardon does not extend to violations of international law. This important power is limited to “Offenses against the United States.”
These particular offenses are not legally subject to idiosyncratic, whimsical or ad hoc definition. Expressly, they are confined to “…only those offenses declared to be such by the solemn action of the legislative body.”
For the United States, the Law of Nations, or international law, is federal common law. The constitutionality of federal subject matter jurisdiction on such inherently important matters is established at Articles III and VI of the Constitution and in certain actions involving US treaty violations. Per Judge Edwards in Tel-Oren, actions involving violations of international law arise under US law because the Law of Nations is “an integral part of the laws of this country.”
Ironically, Tel-Oren notwithstanding, US politicians of both parties are occasionally fond of alleging the superiority of US law over international law. Normally, any such proposed bifurcation is false on its face.
What were evident facts of the Trump-pardoning cases? Did any of Donald J. Trump’s late 2020 pardons concern actually identifiable violations of international law? If “yes,” these flaunted grants of presidential “largesse” were plainly unlawful.
An affirmative response is warranted. Just a few especially flagrant examples of the former president’s illegally-granted pardons were acknowledged in any official DOJ (Justice Department) records. In coming years, legal scholars may surmise, more such evidence will likely surface. At that point, however, it should be the larger issues of Constitutional and international law that occupy authoritative decision-maker attention.
Could this former president’s pardoning actions have somehow been justified by clever word play regarding core legal definitions? In all cases that involved crimes of war, a competent legal scholar could argue more or less persuasively that the controversial Trump pardons were not issued solely or primarily for specific violations of international law. In part, such an argument could be based on certain well-established understandings that the laws of war – aka humanitarian international law – have long been “incorporated” into the laws of the United States and that the applicable presidential pardons rightfully concerned these US legal norms.
“Not so fast” would be the correct response to any such argument. Such a highly “selective” assessment would have to overlook that the Trump pardons (1) represented an obvious abuse of a US president’s Constitutional obligation to “faithfully execute the law,” and (2) ignored the complementary position that a relevant pardon represents “an act of grace, one proceeding directly from the power entrusted with the execution of the laws.”
Looking ahead, these expressions of impermissible action are not difficult to fathom. Jurisprudentially, the former president’s contrived pardons were anything but “an act of grace.” Rather, when understood in legal-philosophical terms, they expressed openly cynical re-affirmations of the Sophist view of justice most famously revealed by Plato.
Declares Thrasymachus in The Republic: “Right is the interest of the stronger.”
Once again, the law-supporting “plan” should be to look forward. The core legal problem before scholars and lawyers ought no longer be one of challenging, reversing or remediating Donald Trump’s evident abuses of the US Constitution’s pardoning power. Now, this query should be how to best ensure that plainly invalid exonerations for crimes against international law are never repeated by a successor American president (including Trump himself, who could conceivably win a second term in 2024). In this connection, purposeful answers are readily ascertainable. With interest and dedication, they lie within reach of disciplined legal reasoning. Still, recalling the ongoing influence of Plato, they should always be approached dialectically.
In the end, though inherently legal as subjects of explanation, these pardoning issues are intellectual questions.
There is more. The United States is not a party to the International Criminal Court. In principle, however, a prospective plaintiff with an appropriate judicial interest in these matters could bring justifiable claims into a US federal court by way of the Alien Tort Statute (1789). Relevant examples might be foreign nationals and identifiable relatives of victims injured or killed by one or several of the American beneficiaries of an unsuitable presidential pardon. But even if civil law remedies were allowed in any such claim, this judicial strategy would not necessarily revoke or remediate any of the patently unconstitutional Trump pardons.
Today, in 2023, there can remain no reasonable question about an individual’s responsibility for violations of international law. One de facto result of Donald J. Trump’s pardoning of certain individual US citizen actions overseas was to retroactively eliminate such well-established criminal responsibility. Here, in effect, the former president’s pardon was illegal on two separate but interrelated grounds:(1) the general invalidity of pardons for violations of the Law of Nations and (2) the specific exonerations of particular international crimes.
What has been learned? What should be done now? What are the expected legal consequences for Russia’s Vladimir Putin?
Under authoritative international law, criminal responsibility of individuals can never be removed by the unilateral actions of a national government. A “person” is always liable for punishment by international law independently of any provisions of internal law. This fundamental principle, reaffirmed in the Nuremberg Principles, references the unchallengeable supremacy of international law over national law. At Nuremberg, the Tribunal included the following key statement in its final judgment: “…the very essence of the Charter (London Charter of August 8, 1945) is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.”
Reciprocally, all states have a peremptory obligation to avoid “denials of justice” in the sense of international law. Among other things, this obligation is based on plausibly reasonable concerns that by pardoning a criminal, the state “assumes responsibility for his past acts.” In specific regard to impermissible Trump pardons, especially those involving tangible war crimes, this means reputational consequences that include more-or-less substantial legal diminutions of the United States as such.
The only potentially realistic source for any law-based remediation of Trump’s wrongful pardons involving the Law of Nations would have involved his legal successor, Joe Biden. Though at least conceivable in principle, any presumed imperatives to take such a technically-complicated route were presumably outweighed by the current president’s legitimate hopes for prioritizing national and international reconciliation. The prospective primacy of any such hopes ought never to be minimized or ridiculed, but simply elevating them above all other competing expectations may prove morally and legally shortsighted in the longer run.
It will always be better to demand presidential reversal at the actual time of any wrongful pardons. As we witnessed with the Trump pardons for crimes against the Law of Nations, once such grants have become a fait accompli, efforts at remediation become effectively impossible. Looking ahead, beyond Trump, every American president should once again understand that no nation-state or its leaders can exculpate or exonerate violations of international law. It is for incontestably sound reasons of human interdependence and “oneness” that the US Constitution incorporates and codifies this vital human understanding.
Whenever an American president issues pardons to assorted violators of the Law of Nations, perhaps for reasons of his own popularity, he undermines core legal precepts of human interdependence and co-responsibility. Ranging from Justinian, Grotius and Vattel to present-day United States law, these precepts figure importantly in the Constitution and are central to explaining any president’s unequivocal incapacity to pardon crimes against international law. Accordingly, Donald J. Trump’s express willingness to issue such pardons despite always-overriding legal prohibitions deeply undermined core considerations of national and international justice.
The conclusions here are “self-evident.” Looking ahead, no American president or other head of state should be permitted to issue pardons for crimes against international law. In conceivably worst case scenarios, choosing once again to ignore this US Constitution-based rule could produce “grave breaches” and/or genocide–like crimes. Moreover, such intolerable outcomes, which could sometime include even a nuclear war, need not be mutually exclusive. Plausibly, they could represent mutually reinforcing or “force-multiplying” outcomes.
Vladimir Putin has no reasonable legal defense for Russia’s incessantly barbarous crimes against Ukraine (Hague Convention (No. IV); (1907); “Annex to the Convention,” Section II, “Hostilities,” Chapter 1, Art. 22, “The right of belligerents to adopt means of injuring the enemy is not unlimited). Nonetheless, drawing upon a wrongful legal precedent made earlier by his previous American presidential counterpart, Putin could more easily sidestep certain ordinary and established expectations of international law and justice. Ultimately, while Putin might not have to face any meaningful judicial prosecution, former US President Trump’s extra-legal pardons for violators of international law could carry both reputational and exculpatory benefits for the murderous Russian president. Plainly, pertinent circumstances of global justice and human dignity would worsen considerably if Donald J. Trump were to once again become president of the United States.
In Commentaries – a basic foundation of United States law – William Blackstone underscores vital connections between domestic and international law enforcement. “Each state,” says Blackstone famously, “is expected, perpetually, to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law” (Book IV). Understood in terms of ongoing and escalating Russian crimes against Ukraine – crimes of war; crimes against peace and crimes against humanity – this means, inter alia, a global obligation to prosecute Vladimir Putin and certain complicit subordinates. Though this peremptory obligation could be rendered more difficult by former US President Donald J. Trump’s unconstitutional pardons of American citizens for violations of international law (pardons that set a dangerous precedent for much wider considerations of justice in world affairs), it could still emerge as feasible and practicable.
At the surface, it may not appear that former US President Donald Trump’s law-violating pardons for crimes against international law are related to Russian President Putin’s capacity to evade punishment for ongoing atrocities against Ukraine, but there are potential “spillover effects.” Though now too late to remediate Trump’s initial violations of the US Constitution’s pardoning power, there is still time for relevant American authorities to affirm that Vladimir Putin should have no derivative claims to legal immunity regarding Russian crimes in Ukraine. In the overriding interests of peace and justice, the very last thing we should ever wish to witness under international criminal law is that a former US president’s multiple wrongdoings become exculpatory for a Russian president’s crimes of war, crimes against peace and crimes against humanity.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of twelve major books and several hundred journal articles dealing with international relations and international law. Some of his publications have appeared in The Harvard National Security Journal (Harvard Law School); International Security (Harvard University); The Atlantic; US News & World Report; The National Interest; e-Global (University of California, Santa Barbara); Yale Global Online; World Politics (Princeton); The Brown Journal of World Affairs; The Israel Journal of Foreign Affairs; JURIST; The New York Times; The Hudson Review; American Political Science Review; American Journal of International Law; Daily Princetonian; Bulletin of the Atomic Scientists; The American Journal of International Law; The Atlantic; International Journal of Intelligence and Counterintelligence; Parameters: Journal of the U.S. Army War College (Pentagon); Modern Diplomacy; Air and Space Operations Review (USAF); Special Warfare (Pentagon); The War Room (Pentagon); Modern War Institute (West Point); Israel Defense (Tel Aviv); BESA Perspectives (Israel); INSS (Tel Aviv); Horasis (Zurich); and Oxford University Press. He is a regular contributor to the Oxford University Press Annual Yearbook of International Law and Jurisprudence. Professor Beres was born in Zürich, Switzerland at the end of World War II.
Suggested citation: Louis René Beres, A Perilous Fusion: Putin’s Crimes Against Ukraine and Trump’s Pardons for Crimes Against International Law, JURIST – Academic Commentary, May 24, 2023, https://www.jurist.org/commentary/2023/05/Putin-trump-intl-law.
This article was prepared for publication by JURIST Commentary staff. Please direct any questions or comments to them at commentary@jurist.org
