The last two sessions of my Thursday morning breakfast group have been devoted to the Nuremberg trials, following the end of World War II, and the precedents they set for international criminal responsibility. It’s a complicated subject, and one that I have a hard time grappling with beyond thinking that winners or those with power have the ability to try and convict their enemies, whether or not they actually have the authority to do so. “Authority”, in this case, may be no more than a result of legal constructs created by those seeking to bring others to their sense of justice for bad actions committed (whether these bad actions constitute actual crimes is of course just another aspect of the same question). In Nuremberg, the four most powerful winning allied Nations (U.S., U.S.S.R., Britain and France) created the forum, the jurisdiction, and the trial rules, and gave themselves the authority both to conduct the trials and to dole out punishments.
There have been other trials following the general parameters of Nuremberg, often conducted through the International Criminal Court in The Hague, whose website states: “The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the greatest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression. As a court of last resort, it seeks to complement, not replace, national Courts.” Most countries have signed the Rome Statute that created and governs the Court, but the United States, Russia and Israel are among the few that have not. The Court has indicted Putin and Netanyahu, among others, but these potential defendants have not submitted to its jurisdiction and avoid travel to those countries where there is a risk of arrest.
As of yet, the ICC has not indicted any American officials. Perhaps, they could. They could, for example, determine that Donald Trump’s attacks on Iran were against international law or his attacks on fishing boats in the Caribbean or Pacific, but the risks to the Court in doing so would be high, even if the risks did not go beyond having to defend itself from financial and editorial attacks from Trump and his cronies. And interestingly, even those the U.S. does not submit to the jurisdiction of the Court, it does not oppose the jurisdiction of the Court over residents and leaders of other countries.
But the United States has, of course, its own concept of international legal authority. It thought nothing, for example, of bombing small Venezuelan boats or sending a team of secret agents into Venezuela to arrest President Nicolas Maduro and his wife, charging them with various crimes involving exporting cocaine into the United States. In order to effectuate these arrests, a team was sent into a foreign country without invitation and through a quasi-military invasion, the headquarters of the Venezuelan government was attacked, and the President and his wife were arrested through kidnapping, and dragged (not extradited) out of the country into the United States. At the same time, the United States threatened Venezuela and its remaining leadership with dire consequences if they did not cooperate with the United States in various ways, including providing the U.S. with certain commercial rights that had nothing to do with the arrest.
Yesterday, an indictment was issued against former Cuban leader Raul Castro (President of Cuba from 2008-2018, and brother of former leader Fidel Castro) for his participation in 1996 in in the killing of four Americans when Cuban planes shot down two planes operated by an American non-profit, Brothers to the Rescue, an anti-Castro organization. Assuming Donald Trump is not just going to let this indictment languish, it seems that another invasive operation, like the one in January in Caracas, will take place in Havana (unless Castro, now warned, will be able to be hidden away).
If Trump does try to grab Castro and bring him to the United States, you can also assume that there will be further repercussions with Cuba, as there were with Venezuela. In Venezuela, Vice President Delcy Rodriguez (perhaps somewhat surprisingly) decided to cooperate with the Trump government to avoid further military action by the United States. In Cuba, the outcome of an arrest might be different. We shall see.
But once these individuals become subject to the American judicial system in the United States (the Maduros are being held in a detention center in Brooklyn; no clue where they might take Castro), we are no longer in the strange realm of international law, where the victors and the power can set whatever rules they want. In the U.S. courts, questions will be raised about the jurisdiction of the Courts, about the legality of the arrests, and of course about the facts of the case. It may be that the facts of the case against the Maduros is the stronger, although corroborating witnesses may be hard to find or to extradite for testimony. As to Castro, I have seen nothing that implicates him directly in this 30 year old event, and even if there were such evidence, 30 year old cases are hard to try. Witnesses have died, and others have less than perfect memories.
One of the legacies of Nuremberg is that proving that you were “just following orders” is not sufficient to get you off the hook, if you committed a crime. This has become obvious in the years following 1945, although the Trump folks appear to want this lesson to be forgotten, as their attacks on Senator Mark Kelly demonstrate. In the Castro case at least, the situation may be reversed. Here there may be no evidence that Raul Castro ordered the strike on the American planes (the strike itself may or may not have been illegal, under American, Cuban or international law – which one applies?), but he was both Minister of Defense and First Vice President of Cuba at the time. Will a potentially criminal act of a subordinate now become the responsibility of his superior? Under what authority? American agency law? How would this even apply?
So, the topic is complicated. The Trump administration will do what it can to simplify everything. But, if the Courts take their responsibility seriously, the Trump prosecutors may find that holding the Maduros or Castro responsible for their actions, and penalizing them here in the United States, may not be as easy as they wish.





























