I regretted that Charles Purvis’s petition for a writ of certiorari in his Supreme Court appeal was not available on-line. It’s a good example of someone trying to get the U.S. government to take seriously what its prosecutor, Supreme Court Justice Robert Jackson, said at the Nuremberg trial of German “war criminals”:
And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace and to commit aggressions against the rights of their neighbors.
Fat chance, but there’s something to be said for making the effort. Anyway, here, on-line for the first time as far as I can tell, are excerpts from the Purvis writ, as presented by his attorney William Durland (and as found in Durland’s book People Pay for Peace). Afterwards I’ll share some of my thoughts:
The decision below as it applies to Petitioner, a Quaker, and war tax refuser, causes him to become a party or an accessory to a criminal act in violation of international law, the United States Constitution, the criminal statutes of the United States and his conscience.
To compel the petitioner to pay federal income tax deficiencies and additions as war taxes makes him a party of an accessory to a criminal act in violation of international law and Article Ⅵ of the United States Constitution.
International Law is Applicable to Cases Arising in U.S. Courts
There can be no doubt that international law is relevant and applicable to cases arising in United States Courts. Article Ⅵ , paragraph 2 of the United States Constitution provides that:
All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the Constitution or law of any state to the contrary notwithstanding.
When a question arises concerning whether international law is relevant to a domestic case, it is the duty of the domestic court to determine (1) whether principles of international law are implicated in the case; if so (2) which principles of international law are applicable and (3) whether application of these principles to the case at bar overrides inferior municipal law thus justifying otherwise allegedly illegal conduct.
In the Paquete Habana, 175 U.S. 677, 700 (), the Supreme Court declared that:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.
Accord, Hilton v. Guyot. See generally I Whitman International Law Section 11 (). International law is applicable to domestic courts. The question is which aspects of international law become “the supreme law” of the land. Treaties made by the President, “and with the advice and consent of the Senate” are obviously included by express provisions of Article Ⅱ, Section 2 of the United States Constitution. The term “treaty”, though not defined in the Constitution, has generally been determined to include “irrespective of their nomenclatures, such international agreements as conventions, pacts, protocols and covenants.” Introduction to U.S. Treaties and Other International Agreements, Cumulative Index, ⅹ () (Hereafter, U.S.T.).
What has been termed “customary international law” is also binding on domestic courts.
Such customary International Law as is universally recognized or has at any rate received the assent of the United States, and further all international conventions ratified by the United States, are binding upon American courts, even if in conflict with previous American statutory law…
Ⅱ Oppenheim, International Law. 101 (6th ed. ). “Offenses against the Law of Nations” have been sustained in federal courts even if there were no statutes defining the offense under Article Ⅰ, Section 8, Clause 10 of the U.S. Constitution. Therefore a substantial body of treaties, international agreements, and offenses against the Law of Nations or customary international law are binding on American courts. See Introduction to U.S.T. Cumulative Index, supra, at ⅺ.
International Law Prohibits Aggressive Policies of “Defense”
There are many bases for determining that American nuclear weapons are in violation of international law. (Petitioner will present his case against nuclear planning here rather than the Vietnam War crimes because (1) the brevity of the writ requires it; (2) the latter has terminated and (3) the former continues to be a basis for the present refusal to pay war taxes for past years. However, much of this argument also applies to the former). Perhaps the most fundamental tenet of all international norms is that a sovereign refrain from use of or threat of force in its relations with other countries. This policy has been consistently expressed in various forms as early as .
In the Convention for the Pacific Settlement of International Disputes, , 32 Stat. 1779, 1780, T.S. 392 the parties (including the United States) expressed “a strong desire to concert for the maintenance of the general peace;” to extend “the empire of law,” and to strengthen “the appreciation of international justice…” Accord, Convention for the Pacific Settlement of International Disputes, , 37 Stat. 2199, 2201, T.S. 536.
Similarly, Article Ⅰ of the Pan American Anti-war Treaty of Non-aggression and Conciliation, , 49 Stat. 3363, 3375, T.S. 906, states that the parties “solemnly declare that they condemn wars of aggression in their mutual relations or in those with other states…”
The Charter of the United Nations, , 59 Stat. 1033, T.S. 993 (hereinafter U.N. Charter) is replete with references to the duty to use peaceful means in international relations. The Preamble expresses a determination “to save succeeding generations from the scourge of war…”; “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest…” U.N. Charter, 59 Stat. 1033, 1035. Chapter Ⅰ of the U.N. Charter sets forth the purposes of the United Nations. Because these provisions provide a guiding light in the interpretation of international law, it is important to develop a firm grasp of these basic principles.
Article Ⅰ provides that:
The Purposes of the United Nations are:
- To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
- To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
- [E]ncouraging respect for human rights and for fundamental freedoms for all…
U.N. Charter at 1037 (emphasis added).
In Article 2, the members agree to “fulfill in good faith the obligations assumed by them” in the Charter; to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” to “refrain in their international relations from the threat or use of force…” or to act “in any other manner inconsistent with the purposes of the United Nations.” U.N. Charter at 1037.
International Law Prohibits Specific Planning for and Acts of Aggression
The Hague Convention Respecting the Laws and Customs of War on Land, , 36 Stat. 2277, T.S. 403 (hereinafter, Hague Conventions), was “inspired by the desire to diminish the evils of war…” 36 Stat. at 2279. The Convention declares that where no specific international regulation addresses a specific course of conduct, that the parties follow “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” 36 Stat. at 2280. Article 22 of the Convention provides that “[t]he right of belligerents to adopt means of injuring the enemy are not unlimited.” 36 Stat. at 2301. Most importantly, Article 23 provides:
In addition… it is especially forbidden:
- To employ poison or poisoned weapons;
- To kill or wound treacherously…
- To employ arms, projectiles, or material calculated to cause unnecessary suffering…
36 Stat. at 2301–02.
Article 24 prohibits the bombardment of villages, towns, or cities which are undefended. 36 Stat. at 2302, while Article 27 declares that in sieges or bombardments all necessary steps must be taken to spare buildings dedicated to religion, the arts, science, or caring for the sick and wounded. 36 Stat. at 2303.
The Charter of the International Military Tribunal , 59 Stat. 1544, E.A.S. 472 (“London Agreement enunciating the Nuremberg Principles”) (Hereinafter, Nuremberg Charter) outlined violations of international law for which even individual citizens of belligerent nations could be held responsible. Article 6 provides that:
The following acts, or any of them are crimes… for which there shall be individual responsibility:
- Crimes Against Peace: namely, planning, preparation… of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan… for the accomplishment of any of the foregoing.
- War Crimes: namely, violations of the laws and customs of war. Such violations shall include but not be limited to, murder, ill-treatment… of civilian populations… plunder of public or private property, wanton destruction of cities, towns or villages…
- Crimes Against Humanity: namely, murder, extermination… and other inhuman acts committed against any civilian population before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crimes… whether or not in violation of the domestic law of the country where perpetrated.
Article 7 went on to provide that the “fact that the Defendant acted pursuant to order of his [sic.] Government or of a superior shall not free him from responsibility.” Charter at 1548.
In the United States delegation to the United Nations introduced a Resolution before the General Assembly affirming “the Principles of International Law recognized by the Charter of the Nuremberg Tribunal.” G.A. Res. 95(1), U.N. Doc. A/64/Add. 1, at 188 (). The Resolution was unanimously adopted by the General Assembly on . In the Nuremberg Principles were restated by the International Law Commission. Finally, the United Nations Security Council, by Resolution, condemned acts of “reprisals as incompatible with the Purposes and Principles of the United Nations.” G.A. Res. 188, Session ⅩⅨ, 4/1/1964.
U.S. Policies and Development of Nuclear Weapons are Inconsistent with International Law
There can be no doubt that the actual aggressive use of atomic weapons results in almost total destruction of everything within several miles of the site of the explosion. See United States Department of Defense, The Effects of Nuclear Weapons (). The residual effects caused by radiation and radio-active fall-out create long-term illness and death in a matter analogous to poisoning. See United States Atomic Energy Commission, The Effects of Nuclear Weapons (), p. 473.
The indiscriminate and “wanton destruction of cities” which results from the use of nuclear weapons is prima facie proof of war crimes, as defined by Principle VI of the Nuremberg Charter, and of crimes against humanity, as defined by Principle VI(c) of the Charter. Likewise, the poisonous effects of nuclear radiation and fall-out are prima facie violations of the United States’ obligations under Article 23(a) of the Hague Conventions prohibiting the use of “poison or poisonous arms.” Additionally, Article 23(a) of the Hague Conventions of and , which prohibits the use of “arms, projectiles, or material of a nature of cause superfluous injury”, and the Declaration of St. Petersburg of , which declares that “the only legitimate object… [of] war is to weaken the military forces of the enemy”, indicate a customary rule of international law prohibiting weapons of indiscriminate destruction such as nuclear weapons.
Moreover, the aggressive use of atomic weapons would directly contradict the express purposes of using best efforts to avoid a nuclear war and negotiate an end to the nuclear arms race. See discussion, infra.. And since the radiation-related after effects of nuclear explosions cannot be controlled, the harm to persons and property in neutral countries would constitute an act of aggression against third states. G.A. Res. 3314, Session ⅩⅩⅨ, 12/14/74.
The real question is whether current policies and weapons are in violation of international law. To answer this question one must look to the history and facts of nuclear weapons development.
On the basis that the “planning” or “preparation” for wars of aggression violates Article 6(a) of the Nuremberg Charter, that “use of threat of force” is in violation of several treaties including the U.N. Charter; that the U.N. Charter condemns “situations which might lead to a breach of the peace,” U.N. Charter Art. 1, 59 Stat. at 1037, and imposes a duty upon members “to practice tolerance and live together in peace,” U.N. Charter, Preamble, at 1035; that the United States has declared an intention “[t]o prevent the use of atomic energy for destructive purposes” and to eliminate nuclear weapons from national arsenals, e.g. Declaration on Atomic Energy, 60 Stat. at 1480. Nuclear Non-proliferation Treaty, 21 U.S.T. at 484–85; and that the United States has promised to work for international peace and security “with the least diversion for armaments of the world’s human and economic resources” 21 U.S.T. at 486; U.N. Charter Art. 26, 59 Stat. at 1041, the possession of nuclear weapons for future “first strike” use is violative of international law. The “official” nuclear policy of this country is one of deterrence or second-strike capability. This concept is aptly explained by Robert Aldridge who for sixteen years worked in Lockheed Corporation’s engineering department, designing every submarine-launched ballistic missile bought by the Navy. Aldridge explains:
Deterrence is the strategic policy under which most of us believe the Pentagon is still operating. It is presented as a defensive measure, of sorts, because it is based on a second-strike response — massive and unacceptable retaliation — which theoretically deters the Soviet Union from attacking us.
Aldridge, The Counterforce Syndrome () (hereinafter Counterforce)
Aldridge goes on to note that to be an effective deterrent, United States retaliatory forces would have to survive the worst conceivable attack and still wreck havoc in the Soviet Union. To this end, land-based ballistic missiles are stored in underground silos. The fact is that since the late 1960s both the Soviet Union and the United States have possessed this deterrent capability. Counterforce at 2. To maintain this “balance” super-powers agreed in S.A.L.T. Ⅰ (Strategic Arms Limitation Treaty) to refrain from developing elaborate anti-ballistic missiles (ABMs).
There came a time, however, when actual U.S. policy shifted from deterrence to what Aldridge terms “counterforce”. In9 , Aldridge resigned after helping design three generations of Polaris missiles, the multiple individually-targeted reentry vehicles (MIRVs) for Poseidon, and the beginnings of the Trident missile. The cause of Aldridge’s resignation was his sense of a shift in nuclear policies:
At the onset of the Trident program, I discovered the Pentagon’s interest in acquiring a precise “counterforce” weapon capable of destroying “hardened” military emplacements such as missile silos. This was a profound shift from a policy of retaliating only when fired upon, because it does not make sense to attack empty silos (which is all that would be left following an enemy first-strike attack on the United States).
Counterforce at ⅶ.
The S.A.L.T. Ⅰ agreement froze the number of strategic arms, but did not freeze quality improvements — the area of primary U.S. emphasis. Counterforce at 60. The sheer explosive power of these weapons is unimaginable. According to Senator George McGovern, the U.S. presently possesses 8,500 warheads, a combined explosive power of over three billion tons of TNT, which calculates to about 1,500 pounds of explosive for every man, woman and child on the planet. McGovern, “End of the World”, Playboy 124, 126 () (hereinafter, McGovern). But the magnitude of explosive is not as important as the accuracy of the explosion. Moreover, S.A.L.T. Ⅰ did not limit the numbers of strategic warheads (as opposed to strategic missiles) and thus since S.A.L.T. Ⅰ the U.S. has increased its nuclear warhead stockpile from 4,600 to 9,000 while the Soviet Union has increased theirs from 2,000 to 4,000. “The SALT Trap”. The Progressive, p. 9, ().
Additionally, S.A.L.T. Ⅰ placed no restrictions on production of two weapon systems which have critically affected the arms race: MIRVs and the cruise missile. MIRVing missiles means two to fourteen additional independently targeted warheads to a single missile, giving it the kill potential of many missiles. The cruise missile is a mobile weapon which flies at altitudes below the detective capabilities of radar and which can strike within thirty feet of a target over 2,000 miles distant, according to the Progressive Magazine.
The dangers in such policies are legion. For one thing, these developments make it virtually impossible to verify compliance with an arms limitation agreement. Although satellites can count missiles, submarines or airplanes, they cannot determine how many warheads are on a given missile. McGovern at 196.
The United States has retrofitted accuracy improvement systems and MIRVs to both land and submarine launched missiles. In the U.S. retrofitted 550 Minutemen Ⅲ missiles with the NS-20 guidance system which doubled the accuracy of the 1650 MIRV warheads. This gave each warhead an even chance of landing within 600 feet of any Soviet silo with a blast nine times greater than the Hiroshima bomb. McGovern at 196. Each of the 1,650 Minuteman warheads now has over an 80% chance of destroying any Soviet silo at which it is aimed.
Other weapons systems currently in development pose an even greater threat of the risk of outbreak of nuclear war. Lockheed began work in on a maneuvering re-entry vehicle (MARV) which permits in-flight alterations in navigation increasing ever-more the accuracy of the hit. In , concept studies were initiated for the Mark 500 MARV for possible use on Trident missiles.
In the ABM Treaty was modified to allow only 100 defensive interceptors for each country, thus making nonsense of the Pentagon rationale that in-flight maneuverability is essential to evade enemy defense systems.
In the Missile X program was initiated. The actual implementation of the program began in . Under this system five to twenty-five mile trenches will be dug in the Western U.S. Each trench will conceal a missile which can be moved back and forth at random, the assumption being that the Soviets would exhaust their ICBMs trying to “find” the missile. The problem is that the Pentagon scenario omits to consider the fact “that a 20-megaton burst, such as that produced by a Soviet SS-9 ICBM, would leave a 75-foot high layer of dirt on the lid if it struck as far as half a mile away. Missile-X would probably be entombed unless it were planned as a first-strike weapon.” Counterforce at 27. Moreover, the trench system once again creates insurmountable verification problems since “there would be no way the Soviets would be certain that there was only one missile in any given trench.” Counterforce at 27.
The Trident submarine launched missile system is a floating vessel of destruction. The 560 foot long Trident carries twenty-four submarine launched ballistic missiles (SLCMs) each with a range of 4,000 nautical miles and each equipped with eight 100-kiloton warheads. The proposed modifications of the Trident submarine, or Trident-2, carries twenty-four Trident-2 missiles, each with a range of 6,000 nautical miles, and each capable of “delivering seventeen super-accurate MARV warheads to within as few feet as many targets. Counterforce at 25, 26. As Aldridge describes it:
One Trident submarine will be able to destroy 408 cities or military targets with a blast five times that which was unleashed over Hiroshima. A fleet of thirty Trident submarines would be able to deliver an unbelievable 12,240 nuclear warheads against an enemy’s territory — or 30 times the number originally thought sufficient for strategic deterrence. Clearly, if Trident attains the accuracies the Navy seeks, it will constitute the ultimate first-strike weapon. Counterstrike at 26.
Once each nation possesses weapons capable of a first-strike, then the risks of a nuclear war escalate in a geometric progression. The dilemma is that (1) since each is capable of a first-strike which would presumably cripple the other’s ability to retaliate, (2) since only 100 ABMs are allowed per side, and (3) since cruise missiles and other systems can penetrate enemy territory undetected by radar, then each side will be vulnerable to a crippling first-strike attack thus tempting each side to devastate the “enemy” before the “enemy” devastates them. This scenario of mutual nuclear insecurity is only years ahead. Although the United States is ahead of the Soviets in developing a first-strike capability, Counterforce at 59, it is only a matter of time before the Soviets possess an effective first-strike capability. Perhaps, in anticipation of that day, President Carter announced a U.S. first nuclear strike doctrine in his address to the General Assembly of the U.N. from the rostrum of the General Assembly on .
…I hereby declare on behalf of the United States that we will not use nuclear weapons except in self-defense; that is, in circumstances of an actual nuclear or conventional attack on the United States, our territories or armed forces, or such an attack on our allies.
New York Times, Transcript of President Carter’s Address to United Nations General Assembly, p. A12.
The doctrine is extremely far-reaching:
- It announces that the U.S. “will” use nuclear weapons (he did not say, for example, “might” or “reserves the right” or similar words);
- Nuclear weapons would be used also in case of attack by “conventional” weapons;
- They would be used also in case of attack by conventional weapons on U.S. forces stationed, flying over, or on the high seas, anywhere in the world — for example, in situations similar to the Pueblo incident.
- Mr. Carter did not use the language of Article 51 of the U.N. Charter, which allows individual or collective self-defense only “if an armed attack occurs”; the formulation “in circumstances of an actual attack” is not used in any pertinent international instrument. Implicit in the phrase is that the U.S. might use nuclear weapons also if no armed attack “has occurred”, so that it could conceivably cover also preventive use of nuclear weapons.
- Since the doctrine announces first use of nuclear weapons regardless of the results (perhaps a U.S. Air Force plane was shot at, but not hit?) and, in any case, severity, duration, and character of the “actual attack”, is not discussed, the doctrine violates the general principle of proportionality.
- The doctrine does not explicitly state that the nuclear weapons would be used exclusively against the attacking state. Is that omission deliberate? In other words, is it a revival of Secretary of State Dulles’ doctrine of “massive retaliation of our own choosing”, that is, against a nation which did not attack but which the U.S. would unilaterally hold responsible for the attack?
- The doctrine does not say that the attack, to which the U.S. would reply with nuclear weapons, was illegal (If a U.S. bomber or a bomber of any U.S. ally would penetrate the territory of another state, the latter would act legally in shooting it down).
- The doctrine does not refer to the obligation to seek peaceful settlement before taking such enormous steps, which would be in contravention of Article 33 of the U.N. Charter.
- This coupled with the authority of the President under the War Powers Act, who is therein allowed to engage in hostilities without declaration of war for a period of 60 to 90 days, violates the Hague Convention No. 3 of .
The American nuclear firepower outlined above provides ample basis for concluding that such systems are violations of international law. (This analysis was formulated by Prof. John H.E. Fried, Former Special Legal Assistant, U.S. War Crimes Tribunal, Nuremberg). Dr. Fried, in a recent paper presented to the Ⅺth Congress, International Association of Democratic Jurists in Malta, concluded that a first nuclear strike is forbidden by existing international law because nuclear war (1) has no rational war aim — its aim is destruction, (2) would prevent obedience to fundamental rules concerning the conduct of hostilities, (3) would prevent the carrying out of post battle obligations of belligerents, (4) would make it impossible to respect the rights of neutral states. The danger of accidental unintended nuclear war is paramount, causing the dictates of public conscience to prohibit a first nuclear strike before it takes place. (See also Art. 18, 1, Geneva Convention for the Protection of Civilians in Time of War ().)
International Law Imposes a Duty Upon Individual Citizens to Disassociate Themselves from Violations of Such Law
Since the Nuremberg principles have become a part of international law, the notion of individual responsibility for war crimes has achieved wide acknowledgment. (See below). Under the Nuremberg Charter, it is no defense to claim one was merely following orders. Nuremberg Charter, supra, Art. 7. Individual responsibility attaches if “a moral choice was possible”. Ex Parte Quirin 317 U.S. 1 (1942).
Professor Falk has found that case law developing during the War Crimes Trials after World War Ⅱ “established that the zone of individual responsibility for crimes against peace extended well beyond principal policy-making and state leaders.” Falk, “The Nuremberg Defense in the Pentagon Papers Case”, Crimes of War (Falk, Kolko and Liften, eds., ) 231. See, e.g. “The Ministries Case,” Ⅻ–ⅩⅣ, Trials of War Criminals (). In the Flick Case, which involved prosecutions of German industrialists, the War Crimes Tribunal stated:
[I]t is urged that individuals holding no public offices and not representing the state, do not, and should not come within the class of persons criminally responsible for a breach of international law. It is asserted that international law is a matter wholly outside the work, interest, and knowledge of private individuals. The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law… The application of international law to individuals is no novelty.
Quoted in Ⅱ The Law of War: A Documentary History 1283 (L. Friedman ed. ) (hereinafter Friedman).
Furthermore, the Tokyo War Crimes Trial Decision, reprinted in Friedman at 1029, suggests that anyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of the crimes. (emphasis added).
Under these considerations an individual American citizen is in violation of international law if he or she consents to cooperate with any government which produces, possesses or uses nuclear weapons. (Part of the material included here is from Graber, “The International Law Defense”, Pacificus Papers, Vol. 2, No. 5, Colorado Springs, Center on Law and Pacifism, ).
The Applicability of International Law to Taxpayers is Proven
The payment of war taxes to the United States for the years would have constituted complicity in the commission of crimes against peace, crimes against humanity, war crimes in Vietnam and in nuclear planning. A moral choice to refuse to be in complicity with the commission of such crimes was available to the Petitioner and he exercised that choice and refused to pay a war tax. On the point of the nature and extent of individual responsibility, the Nuremberg Judgment states: “The very essence of the charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” F.R.D. 69, 110 ().
Fundamental fairness requires that the Petitioner be permitted to rely on any argument arising from his accountability under international law. That such a policy extends to the Nuremberg Principles is confirmed by the former Assistant General Counsel for International Affairs of the Department of Defense, who acknowledged that “from an international criminal law point of view… the Nuremberg norms are part of our municipal law and may be enforced by our courts.” Quoted in Falk, A Global Approach to National Policy, 112 (). However, Petitioner has not been given an opportunity to present evidence concerning the questions of fact contained in this Writ before any court.
Individual liability is determined on the basis of knowledge of war crimes coupled with inaction. See “The Tokyo War Crimes Trial Decision,” Ⅱ The Law of War: A Documentary History, 1029 (Friedmann ed. ). It follows, then, that anyone with knowledge of war crimes and the opportunity to do something about it is potentially criminally liable unless that person takes steps to prevent further commission of the crimes. Even if these principles do not impose an affirmative duty to act, the imposition of criminal liability on persons having knowledge of war crimes must create a right in persons to act in a prudent manner in an effort to halt what they reasonably believe to be international crimes.
In a due process sense, it is enough that the Petitioner reasonably believed that the domestic law was superseded by international law. Because domestic law must be construed in conformity with international law whenever such a construction is possible, Borchard, “The Relation Between International Law and Municipal Law,” 27 Va. L. Rev., 137 (), it violates due process to subject the Petitioner to possible criminal liability for tax deficiency in the face of the contradictory claims on his behavior posed by the domestic and international law. Due process does not permit the imposition of criminal liability for tax deficiency (which is possible under the Internal Revenue Code) for an act intended to terminate complicity in war crimes and its preparation when the act was justified under relevant principles of international law.
In , at Nuremberg, Germany, the United States participated in the prosecutions of persons under principles of international law imposing criminal liability for deference to municipal law when they knew, or should have known that their government was committing violations of international law. It violates the most basic principles of fundamental fairness and due process for the United States, while continuing to participate in the punishment of persons convicted of violating the Nuremberg Principles, to refuse to acknowledge the right of taxpayer to refuse war taxes in violation of municipal law established by the Nuremberg Military Tribunal [sic].
Arguments Invoked Against the Applicability of International Law are Invalid
Usual rebuttals to the international law argument are stated as follows: (1) “International law does not apply to American courts unless it concerns a treaty not superseded by a statute.”
As presented aforesaid, this is not so and moreover in the instant case insofar as the Nuremberg Charter is concerned it has been made part of domestic law by its incorporation in 59 U.S. Stat. 1544. (2) “The provisions of the Nuremberg Charter are strictly limited. Crimes Against Peace only apply to ‘major’ war criminals, and War Crimes and Crimes Against Humanity are limited to wartime.” In respect to Crimes Against Peace, Petitioner argues that 18 U.S.C. 960 makes any person within the United States criminally liable. In respect to War Crimes and Crimes Against Humanity, The Report of the International Law Commission () at Principle Ⅵ, paragraph 122 states that “The Tribunal did not, however, exclude the possibility that crimes against humanity might be considered before a war.” Finally, as to all three classes of Nuremberg crimes, the limitation placed upon the jurisdiction of the then court by itself were self-imposed flowing from its discretionary power due to a desire to strictly construe the charges because of the initial use of the Charter, the ex post facto charge against its use, giving the benefit of the doubt to defendants for that reason. The literal words of the Charter do not make such discretion mandatory upon future judges or interpretors as this Court.
International law is progressive. See 2 Mueller, International Criminal Law, () at 263. No such conditions apply 35 years later and individuals such as business men and women, ordinary soldiers or members of war organizations would have been of a sufficient status then and now to be considered an accessory. See Ⅱ Whitman, Digest of International Law 885–87, . The last paragraph of Article 6 of the Nuremberg Charter concerns complicity and states that “…accomplices participating in the formulation… of a common plan to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” See also Mueller at 269. (3) The argument is tirelessly repeated that International Law prohibits only the use and not the possession of nuclear arms. But the aforesaid chronology of applicable international law provisions vitiates that myth. “First Strike” planning puts the lie to that rebuttal forever. If the law must wait on “use” in this type of case there will be no law or people left to adjudicate. (4) Finally, these arguments are usually rebutted, if all else fails, on the basis that they are political in nature and non-justiciable. This rebuttal is spurious on its face for this Petitioner’s plea is a plea much more than political. It is a plea for humanity and against the super-powers of the U.S. and U.S.S.R., lest we find our planet destroyed for want of “legal standing”.
Thus the involvement of the United States in Vietnam war crimes and the formulation of current plans for nuclear war violate international and constitutional law, and will make Petitioner an accessory to both and criminally liable if he is forced to pay war taxes for said plans and preparations. Thus Purvis concludes his argument on international law.
Durland noted that Purvis also made an argument that a domestic statute that said “Whoever within the United States knowingly begins or furnishes the money for any military enterprise to be carried on from thence against a territory or dominion of any foreign state or people with whom the United States is at peace shall be imprisoned,” also applied to his case.
The law of war is so adorable.
I can’t help but shake my head, sigh, and give a bittersweet smile at the well-intentioned ridiculousness of it all. I almost sympathize with the White House torture lawyers who looked at international law and found it “obsolete and quaint.” Apparently the cutting edge international law thinkers a century ago seriously contemplated a scene in which officers would lead their troops to battle with something like, “Okay everybody, to the trenches… but don’t forget that it’s forbidden by law to kill or wound treacherously!”
And after the 20th century played itself out anyway, we’re apparently still supposed to take the Hague Convention seriously.
But there is still something satisfying in trying to hold the U.S. government to the principles it so pompously crafted as it was collecting scalps after World War Ⅱ — watching those principles dissolve in a reductio ad absurdum where the absurd part is expecting Uncle Sam to agree that what’s good for his own goose is what was good for der Adler.
Durland complains that “The Supreme Court refused to hear Purvis and probably will continue to refuse to recognize the law because the court acts solely out of power when confronted with morality.” While his conclusion may be valid, I think there may be more to it than this.
Durland’s “writ” is strangely writ. It is hard for me to imagine Durland expecting the Supreme Court justices to be impressed by his citations of a Playboy interview with George McGovern or a Progressive magazine estimate of the size of the U.S. nuclear arsenal. Much of the discussion of arms technology and arms control difficulties seems not to have much to do with the legal argument and would be more at home in a for-the-choir think tank article. There’s precious little citation of legal precedents but plenty of quotation of books and essays and law review articles and appeals to “the most basic principles of fundamental fairness” and the like.
Perhaps it wasn’t really intended for the audience to which it was ostensibly delivered, but then why go through such fuss? It seems to me if you’re going to bother to try to take a legal argument up the court system, you ought to try to craft it in a form that will be persuasive to judges. As it is, because Purvis lost his case and was unable to get the courts to take his argument seriously, the legal legacy of Purvis v. Commissioner is as a precedent for the idea that
…the act of paying taxes does not amount to complicity in any war crime committed by the Government. [The Eleventh Circuit Court of Appeals citing Purvis in its ruling against war tax resisters Robert and Linda Randall in ]