More On: Putin
If Biden is correct, he, Bush, and Truman were all war criminals.
Last week, President Biden sparked outrage in the media when he dubbed Russian President Vladimir Putin a "war criminal." Mr. Biden's comment appears to have been made in order to capitalize on the government's and the American media's unified anti-Russian narrative.
Is Vladimir Putin a war criminal? In a nutshell, no.
The backstory is as follows.
Criminals are those who have been duly convicted by a court with jurisdiction over them and the location of their claimed crime, and where the crimes were documented and accepted prior to their alleged illegal behavior. Mr. Putin is not one of them.
However, Mr. Biden's inflammatory statement is worth investigating from a historical and legal standpoint, as it has been bandied around as if it had legal significance. The word has been used politically to refer to unpopular government officials who directed the use of state force in an unlawful or disproportionate manner, as shown by the media.
What is illegal and what is disproportionate is a matter for the victor to decide. Victors are never war criminals because, as a result of their success, they control the prosecution system or other mechanisms that shield them from prosecution.
If you count innocent human deaths per second, President Harry Truman was the greatest governmental mass killer in wartime when he ordered the use of atomic bombs on civilian targets in Japan in August 1945, knowing from intelligence reports that the Japanese government was ready to surrender in a matter of days. However, because the United States won the war, Mr. Truman was never prosecuted.
The term "war criminal" entered common use following the Nuremberg trials of surviving high-ranking Nazi officers following World War II. During those trials, German government officials were accused of committing crimes against humanity.
The purported crimes were fabricated ex post facto — a technique clearly outlawed in the United States — and were accepted by prosecutors and judges in the United States, the United Kingdom, and the Soviet Union. The phrase "crimes against humanity" was invented by Josef Stalin's hand-picked prosecutor, which is a sad irony.
Consider a court today where prosecutors are given the authority to draft retroactive statutes that will apply to the defendants they are going to try.
This is the culture that gave rise to Nuremberg and the jurisprudence that resulted from it. Despite the egregious unfairness of these trials, international opinion accepted them.
Justice Robert Jackson, a former U.S. attorney general and sitting justice on the U.S. Supreme Court at the time, gained a celebrity as the chief American prosecutor at Nuremberg. He appears to have had no qualms about applying ideas in defeated Germany that were barred by the U.S. Constitution, which he swore to preserve.
The idea that a nation's officials could be prosecuted for breaking a body of unwritten laws sparked postwar academic and judicial interest in natural law theory, which holds that our rights and understanding of good and evil come from within us, are understood and identified by the exercise of human reason, and bind all persons.
Because natural law forbids aggression, no government on the earth has been obligated to follow it. The concept of the just war was one of the natural law foundations that motivated Nuremberg and continues to inspire contemporary international tribunals.
However, the nonaggression concept is the fundamental natural law premise. It teaches that all initiated or threatened aggression, even that of the government, is intrinsically unlawful since it violates the victim's basic rights. As a result, only defensive battles are just.
To put it another way, a country, like a person, can defend itself against an invader and use violence to do so, but only to the extent necessary to stop the invasion, lest the defender become the aggressor.
Now, let us return to Mr. Putin. Mr. Biden's "war criminal" remark ignores the use of state violence in the United States. While a senator, Mr. Biden supported former President George W. Bush's immoral invasion of Iraq, which slaughtered hundreds of thousands in the name of regime change. If Mr. Biden is correct, Mr. Bush, Mr. Truman, and himself are all war criminals.
The International Criminal Court at The Hague, Netherlands, is starting up where Nuremberg left off. It is the result of a treaty to which the United States, Russia, and Ukraine are not signatories. This court asserts universal jurisdiction, although its assertion is speculative.
The legal fiction of universal jurisdiction was invented for political reasons by the United States Department of Justice during Ronald Reagan's presidency to prosecute terrorist crimes conducted overseas where the offenders were unlikely to be prosecuted. It asserts that American courts have jurisdiction over crimes against humanity perpetrated by foreign citizens in foreign nations.
Today's version of universal jurisdiction is a bilateral one. As a result, foreign courts in the European Union and The Hague assert jurisdiction over the entire globe, including America, Russia, and Ukraine.
Consensus justice or legal fiction is never just. The consent of a proper authority is required for jurisdiction. If a court lacks jurisdiction over the claimed crime's location and the accused offender, any judgement is fictitious. Can a Dutch court lawfully convict Mr. Putin because its justices are disgusted by what they watch on cable television? Obviously not.
The history of human liberty has paid close attention to procedure and the safeguarding of rights. Look no farther than recent history to see how every post-World War II president — including Mr. Biden — has unjustly slaughtered foreign innocents and lived to brag about it.
However, victors' justice assumes that an unaccountable court has the legal authority to select whatever wrongs it can discover wherever it can find them and then prosecute them by using laws and norms that suit its purposes, as American prosecutors have done. This is judging aggression, regardless of the target, and it violates NAP.
Mr. Biden should be cautious about what he requests.