Why the fixation with the legality of Trump’s attack on Venezuela? You only get war when normal politics don’t work.
This fixation with legal vs illegal wars of “illegal war” is a product of the Marxist-Leninist DNA of the 1947 Nuremberg Trials. Criminalizing war itself—specifically “Crimes Against Peace”—was heavily influenced by Soviet legal theory. The intellectual architect of “Crimes Against Peace” was a Soviet jurist named Aron Trainin. In the 1930s and 40s, he argued that “aggressive war” should be a crime for which individual leaders could be prosecuted. Trainin’s logic was indeed rooted in Leninism. He viewed fascism as the final, most aggressive stage of “imperialist capitalism.” Therefore, to the Soviets, “aggressive war” was inherently a crime of imperialist exploitation.
When the Allies met in London in 1945 to write the Charter for the Nuremberg Tribunal, the Soviet delegation (influenced by Trainin) wanted “Crimes Against Peace” to be defined specifically as aggression committed by the Axis powers. They viewed it as a political crime specific to that ideology.
The American chief prosecutor, Justice Robert H. Jackson, refused the Soviet definition. He argued that if they were to make aggressive war a crime, it had to be a crime based on conduct, not ideology. He famously stated that the law must apply to the condemners just as it does to the condemned.
Hilarious.
The Soviets wanted a law that said “Fascist war is illegal.” The Americans insisted on a law that said “Aggressive war is illegal, no matter who does it.”
The American view won out in the final text. The “illegal war” concept was universalized. This is why today, critics can use the Nuremberg precedent to call American actions illegal. If the pure Leninist view had prevailed, “illegal war” might strictly legally apply only to “fascist” regimes, and the US would theoretically be immune by definition.
When people today call the strikes on Venezuela “illegal,” they are usually citing two things, one of which comes directly from that Nuremberg compromise:
International Law (The Nuremberg/UN Legacy): Because of the precedent set at Nuremberg (and codified in the UN Charter), explicitly “aggressive” war—war not in self-defense and not authorized by the UN—is a crime. Critics argue the Venezuela hit was a “war of choice” or regime change, fitting the Nuremberg definition of aggression rather than self-defense.
Domestic Law (The Constitution): This is separate from Nuremberg. The argument here is that the President cannot initiate a new war without Congressional approval (the War Powers Clause). Since Congress did not vote for war with Venezuela, the military action is constitutionally “illegal” regardless of international law.
If the world stuck to the purely “Clausewitzian” view (war is just politics by other means) that existed before 1945, the strike might be called “unwise” or “imperial,” but never “illegal.” That word is the specific legacy of 1945.
To call the 1947 Nuremberg Trials “universally applied law” is historically laughable. It was a courtroom designed by the victors to hang the losers, and they carefully rigged the rules to ensure their own conduct wouldn’t be on the docket.
You don’t have to look far for proof. The “Tu Quoque” defense (“you did it too”) was officially banned by the Tribunal, but in the backrooms, it was the only thing that mattered.
Here are the three smoking guns that prove my point about “Victor’s Justice”:
1. The Submarine Defense (The Nimitz Affidavit)
This is the most blatant example. Admiral Karl Dönitz, head of the German U-boat fleet, was charged with “unrestricted submarine warfare” (sinking merchant ships without warning).
The Defense: Dönitz’s lawyer pulled a brilliant move. He got an affidavit from US Admiral Chester Nimitz, the commander of the US Pacific Fleet.
The Admission: Nimitz bluntly admitted that the US Navy had done the exact same thing to the Japanese in the Pacific from day one of the war.
The Verdict: The Tribunal was cornered. They couldn’t hang Dönitz for a tactic the American hero Nimitz was openly admitting to. Dönitz was convicted on other counts, but he was specifically not sentenced for the submarine warfare charge. If the US did it, it wasn’t a crime.
2. The Katyn Massacre Embarrassment
The Soviets tried to use Nuremberg to whitewash their own crimes. They insisted on indicting the Nazis for the murder of 22,000 Polish officers in the Katyn Forest.
The Reality: Everyone knew the Soviet NKVD had actually committed the massacre in 1940.
The Outcome: When the evidence started looking shaky (pointing back to Soviet guilt), the Tribunal didn’t investigate the Soviets; they just quietly dropped the charge against the Germans and pretended it never happened. It was too awkward to prosecute a crime that the prosecutor sitting at the table had actually committed.
3. The “Strategic Bombing” Silence
Notice what wasn’t on the charge sheet? Aerial bombing of civilians.
The Germans leveled Warsaw and Coventry.
The Allies leveled Dresden, Hamburg, and Tokyo.
Because the Allies had engaged in massive city-busting campaigns, “bombing civilians” was quietly left off the list of war crimes. If they had charged Göring for the Blitz, they would have had to charge “Bomber” Harris and Curtis LeMay for Dresden and Tokyo.
When Justice Jackson said, “The law must apply to the condemners,” he wasn’t describing the reality of 1945—he was lying. Or, at best, he was making a promise the US had no intention of keeping at that moment.
But that lie became the trap. By writing that high-minded ideal into the history books to justify hanging Nazis, he created the very weapon that critics are using against the US regarding Venezuela today. He codified a standard that the US ignored in 1945 because they were the victors, but which now haunts them when they want to act unilaterally.
Nuremberg wasn’t justice; it was a precedent. And precedents have a nasty habit of outliving the power that set them.
