Destroying the law to save it
Due process is the heart of civilization
During the deranged Vietnam War, journalist Pete Arnett reported a United States major insisting about the Battle of Ben Tre, “It became necessary to destroy the town to save it.”
If history does not repeat itself, it at least rhymes.
The United States shouts from the rooftops daily that Russia’s invasion of Ukraine must be defeated to preserve a rule-based international order. Yet the Biden administration and Congress have raced to convict Russia of crimes against humanity without a trial-a form of vigilante justice. Even the worst of the worst among the Nazis, Herman Goering, received a due process trial at Nuremberg for crimes against peace, war crimes, and crimes against humanity.
Yesterday, Vice President Kamala Harris, former Attorney General of California, decreed that Russia has committed “crimes against humanity” in Ukraine. She continued, “In the case of Russian actions in Ukraine, we have examined the evidence, we know the legal standards, and there is no doubt: These are crimes against humanity. Russian forces have pursued a widespread and systematic attack against a civilian population—gruesome acts of murder, torture, rape and deportation.”
Secretary of State Anthony Blinken added that the United States had undertaken a “careful evaluation of the law and available facts” to determine that Russian officials and military forces had committed crimes against humanity, including “execution- style killings of Ukrainian men, women, and children; torture of civilians in detention through beatings, electrocution, and mock executions; rape” and the deportations of “hundreds of thousands of Ukrainian civilians to Russia, including children who have been forcibility separated from their families.”
British Primes Minister Winston Churchill wanted summary execution of Nazi leaders, but cooler heads prevailed. Three of 19 defendants were acquitted by the International Military Tribunal at Nuremberg.
Executive Branch officials like Harris and Blinken have no authority to adjudicate crimes. That is the exclusive province of courts. As United States Chief Justice John Marshall famously declared in Marbury v. Madison (1803), “It is emphatically the province and duty of the judicial department to say what the law is.”
Moreover, the International Court of Justice, an arm of the United Nations, is available to entertain an accusation of crimes against humanity by the United States against Russia. The ICJ’s jurisdiction extends to suits arising under international law between nations. Indeed, Ukraine has already sued Russia for falsely employing an alleged Ukrainian genocide as a pretext for its invasion in the ICJ and obtained a preliminary ruling in its favor in Ukraine v. Russian Federation.
Due process—the presumption of innocence until proven guilty in an impartial tribunal—is the heartbeat of civilization. It was born when a person unknown to history reflected, “I could be wrong.” Jack Ruby’s homicide of Lee Harvey Oswald was witnessed by hundreds of millions on television. He pled not guilty by reason of insanity. His initial conviction was voided by Ruby’s death pending a retrial for prejudicial errors that infected the guilty verdict.
The reason for withholding judgment until due process has been satisfied was vividly conveyed in the following exchange in Robert Bolt’s play A Man for All Seasons:
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”