The Bergdahl Exchange -- a Wider Legal View

A number of plainly sensible arguments have already been raised in opposition to President Obama's exchange of an American military prisoner for assorted Taliban terrorists. Wherever these arguments have centered on the expected creation of additional and possibly new risks to Americans, they have been compelling, even unassailable. Now, however, it should also be pointed out that there are certain vital and sometimes intersecting issues of U.S. law and international law involved in this matter. These specifically jurisprudential issues warrant immediate and informed clarification.

First, however, a non-legal reaction. It goes without saying that any reassurances offered by the government in Qatar are silly and humiliating at best. For any American president to take seriously that Qatar or any other Arab government would meaningfully supervise the behavior of Islamist terrorists -- and to do so as a  transparently servile subcontractor for Washington  -- is to embrace a blatantly surreal geopolitics.  

Now, back to law. A core element of all civilized legal systems is the rule of Nullum crimen sine poena, "No crime without a punishment." This ancient principle, strongly reaffirmed at the post-World War II Nuremberg Trials, is indisputably part of all international law. It applies very conspicuously in the current controversy over the Bergdahl-Taliban exchange.

Terrorism is an amply-codified crime under international law, one that has been suitably "incorporated" into U.S. law. However inadvertent, President Obama's exchange of terrorists for an American soldier constitutes an American act of complicity with terrorism. This criminal complicity places our country in violation of both international law, and the municipal law of the United States. It is entirely undiminished by any internal concerns for Sgt. Bergdahl's "due process" under pertinent U.S. codes of military justice.

In part, at least, any such violation is two-fold, because all international law has been declared part of U.S. law (the "supreme law of the land") by Article 6 of the U.S. Constitution (as treaty law), and by a number of landmark Supreme Court decisions (as customary law), especially, the Paquete-Habana, 1900.

In June 2003, the Shurat HaDin  Law Center in Israel, in astute anticipation of terrorist releases, condemned Israel's planned freeing of 100 Palestinian terrorist prisoners. Later, almost five times that number were actually set loose by then Prime Minister Ariel Sharon. In her letter of criticism to the prime minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner had written presciently that releasing terrorists would promptly reignite Arab terrorism against Israeli civilians.

Darshan-Leitner was correct. Soon thereafter, two newly-released Fatah-linked terrorists proceeded to launch suicide bomb attacks in Israel. In one of these grotesque attacks, a café popular with mothers and their young children was blown to bits. The café had been represented by the perpetrator Arab terrorists as a "military target."

There is more. Later, several of these terrorists were released to United States authority for training in nearby Jordan, to become a "more professional" part of Fatah's "internal security forces." This bizarre program, paid for handsomely by the American taxpayer, had been meticulously coordinated by U.S. General Keith Dayton.

In candor, these jurisprudential issues are not all that complicated. Every state has a "peremptory" obligation under international law to prosecute and punish terrorists. This incontrovertible obligation derives in part from "No crime without a punishment." It is codified directly in many authoritative sources, and is also deducible from the universally binding Nuremberg Principles (1950).

According to Principle 1: "Any person who commits an act which constitutes a crime under international law is responsible therefore, and liable to punishment."

Terrorism is clearly one of the most serious crimes under international law. The precise component offenses that comprise this conglomerate crime can be found, among other places, at The European Convention on the Suppression of Terrorism (1977). Notwithstanding Washington's solemn assurances to the contrary, all of the released Taliban terrorists were also guilty of related crimes of war and crimes against humanity. These Nuremberg-category crimes are so egregious that the perpetrators are known in law as Hostes humani generis, "Common enemies of humankind."

Without any reasonable doubt, this designation requires all states to cooperate in terrorist prosecutions, and also in the corollary removal of terrorists from any future field of battle.

International law presumes solidarity between states in the fight against all crime, including the crime of terrorism. This binding presumption is mentioned as early as the seventeenth century, in Hugo Grotius' The Law of War and Peace (1625). Although the United States has absolutely clear jurisdiction to punish any crimes committed on its territory, it also has the right in matters of Nuremberg-category violation to act under much broader legal principles of "universal jurisdiction."

The case for such expressions of universal jurisdiction, which derives at its core from an irreducible expectation of interstate solidarity, is found at the four Geneva Conventions of August 12, 1949. Specifically, these Conventions impose upon the High Contracting Parties a fixed obligation to punish "Grave Breaches.”

No government ever has the legal right to free terrorists as a quid pro quo for hostage release. More precisely, terrorism is a criminally sanctionable violation of international law, one that is never subject to manipulation by individual countries. Significantly, although thus far ignored altogether in the United States, it is clear from the Constitution that the president's power to pardon can never encompass violations of international law. 

This authority is always limited to "Offenses against the United States."

In originally capturing and punishing Taliban terrorists, Washington, however unwittingly, acted  on behalf of all states. Because some of the terrorists had committed crimes against these other states, President Obama cannot now correctly pardon these offenses. Although Mr. Obama's terrorist exchange does not, strictly speaking, represent a "pardon," it will have exactly the same practical and jurisprudential impact.

No state possesses the authority to pardon violations of international law, especially the uniquely cruel and Nuremberg-category violations generated by Taliban terrorism. No matter what might be construed as permissible under the president's Article II Constitutional authority as commander-in-chief, any such exchange of terrorists is legally impermissible. The fundamental principle is also well-established in law that, by virtue of any such releases, the releasing state itself will assume responsibility for past criminal acts, and for future ones.

This basic principle is called a "denial of justice."

Is President Barack Obama even aware of this principle?

Under international law, President Obama's exchange of terrorists for an American prisoner of war -- an exchange effectively analogous to a mass pardoning of criminals -- will implicate the United States for a "denial of justice." Over time, this could have profound human and jurisprudential consequences. While it is arguable that punishment, which is central to justice, does not always prevent future crimes, this particular freeing of terrorists will almost certainly embolden and strengthen the very criminal forces against which we have been fighting so long in Afghanistan.

Whether Sgt. Bergdahl was himself in dereliction of duty is a relatively minor matter, one that has become an immobilizing distraction to what is much more important.

On its face, President Barack Obama's ill-considered exchange will undermine America's legal obligation to prevent historically-violent terrorist criminals from committing new acts of mass murder. In his own defense, the president has argued passionately for America's core obligation to keep faith with its soldiers, but this obligation must always be balanced against the even greater right of ordinary citizens to be safe from terror. In essence, any presumed "contract" between a democratic state and its soldiers must always be superseded by an even more primary agreement between that state and its civilian population.

To assert otherwise, as does President Barack Obama, is to forget why we have deployed armies and soldiers in the first place.

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is author of many books and articles dealing with international criminal law.  Dr. Beres was born in Zürich, Switzerland, on August 31, 1945.

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