Despite Trump’s legal ignorance, Kim Jong Un responsible for Otto Warmbier’s death

The fact U.S. President Donald Trump insisted that Kim Jung Un sincerely did not know about the torture and murder of Otto Warmbier is largely beside the point. Whether or not the North Korean leader knew anything of Mr. Warmbier’s brutal treatment, he remains fully responsible for the crime under pertinent law. The reason is a core legal principle known as respondeat superior or “Let the master answer.”

As seen in post-World War II judgments at the Nuremberg and Tokyo trials, any commanding “master” — especially the recognized head of a sovereign state — must, generally, be held responsible for the behavior of his chain-of-command subordinates.{mosads}

If Trump is correct about Kim’s unawareness of what went on in his political prisons, the North Korean leader remains responsible nonetheless. He surely “ought to have known.” It follows that the U.S. president has been unmindful of a basic or “peremptory” legal precept — significantly, one that is also a part of U.S. law under assorted expectations of the U.S. Constitution’s Article 6 “Supremacy Clause” and various corollary U.S. Supreme Court decisions. This lack of understanding is apparently also shared by the U.S. National Security Advisor John Bolton, a former UN Ambassador and a lawyer by profession, who ought to understand all this far better than his businessman president.

The principle of individual leader culpability under international law can be traced not only to the Leipzig Trials immediately following World War I, but all the way back to ancient Rome. 

It’s a principle of law that is never made subject to modification or “derogation” — just like the reciprocal international law doctrine concerning any defense based on “superior orders.” The authoritative rejection of superior orders as a valid legal defense became starkly prominent in the 1946 post-war judgment of the Nuremberg Tribunal and was reaffirmed during the 1970-71 U.S. military court martial prosecutions pertaining to the My Lai massacre of Vietnamese civilians. It even led American Army general and former Nuremberg prosecutor Telford Taylor to compare the U.S. My Lai killings to Nazi war crimes in a serious jurisprudential book titled “Nuremberg and Vietnam: An American Tragedy.”

Today, respondeat superior is properly held to be an integral part of customary international law and is thus a part of U.S. domestic law.

Whether examined in an expressly military context or in a civilian leadership context such as the North Korean authority of Kim Jung Un, we are speaking always of “command responsibility.” The overriding legal doctrine here is the “Yamashita Standard,” drawn from the post-War trial of Japanese General Tomoyuki Yamashita by a US military commission in Manila on Oct.8 – Dec. 7, 1945.

General Yamashita, though allegedly unaware of the multiple and savage crimes that had been committed by troops under his command, was executed on Feb. 23, 1946 because “he ought to have known” of these crimes.

Today, even if President Trump is correct about Kim’s lack of knowledge regarding Warmbier, it’s immaterial in determining Kim’s responsibility in law.

Kim still bears “vicarious liability” or “command responsibility.” Especially after Yamashita, if Kim hadn’t known what went on in the Warmbier matter, he assuredly “ought to have known.”

This means that Trump’s defense of Kim is not merely disingenuous, it is entirely beside the point. Kim is legally responsible for Otto Warmbier’s torture and death. 

Louis René Beres, Ph.D. Princeton, is emeritus professor of international law at Purdue University. He is the author of 12 books and several hundred articles dealing with nuclear strategy and nuclear war. His newest book is “Surviving Amid Chaos: Israel’s Nuclear Strategy” (Rowman & Littlefield, 2016; 2nd ed. 2018)