Agreed, 100 percent. And in the case of the Nazi criminals, it was a higher moral law that was being enforced. Justice was done–but my point is really that they had a hard time, as lawyers, figuring out how to justify it. You’ll remember that they simply took certain defenses away, a priori, that would have been inconvenient legally–such as the “following lawful orders” defense which had previously been available to other military defendants.

I personally believe in the moral law, and think justice was done at Nuremberg. Probably, the governments and judges did about the best they could, being human.

But as the quote I gave indicates, if America ever loses a war and gets occupied the President could be tried under the same legal theory, under the legislative authority of the victor’s government.

Thank you for forcing me to think deeper about the matter. I very much look forward to your international law post, which will doubtless add to my limited knowledge of the subject.

If there is a higher moral law to which even governments must answer, then American officials should not be able to escape that justice simply by virtue of being Americans. And if there is no higher moral law, then Nuremberg used the false appearance of trials to cloak the raw exercise of power. Because how else can you justify it?

Or am I missing something?

I’ve done a lot of reading and studying on WW II, including the Nuremberg trials, and as I’m sure you know the great difficuly was that there was no existing law that allowed for the kind of trials that were held.

“We sit,” said the American judges, “as a Tribunal drawing its sole power and jurisdiction from the will and command of the four occupying powers. . . . In so far as Control Council Law No. 10 may be thought to go beyond established principles of international law, its authority, of course, rests upon the exercise of the ‘sovereign legislative power’ of the countries to which the German Reich unconditionally surrendered.”

In other words we won, and international law didn’t have much to do with it. There were a lot of Nazis who deserved punishment, but even at the time a lot of lawyers in the U.S. and elsewhere were uncomfortable with justifications that were invented.

So what you’re suggesting is that international law should either be scrapped or it should be unenforceable? That’s great when it applies to us - but what about the rest of the world. Did we have the right to try and convict the Nazi’s under international law? To try Milosevic? To try Saddam? There’s no way to convict any of these monsters under their domestic law, obviously. And if we don’t hold ourselves to the standards of international law, then won’t the rest of the world just think that “international law” is code for “do what the U.S. says to do”?

I’m just thinking out loud here.

This is known as the consent of the governed.

The US constitution calls for the US to have a legal system. We elect officials who select our judges.

We understand our rights under the legal system.

No US official should be held accountable to an international court that has no ties to the American people.