9 April 2026
The impotence of both constitutional law and international law
What happens when the leader of the most powerful military nation in the world threatens to commit genocide?
Like this:
Well, it seems, from the perspectives of constitutional law and international law, that nothing happens.
Things could happen, of course.
There are two constitutional mechanism within the United States constitution for removing Donald Trump from office. Neither has been used or seem likely to be used.
There are sorts of sanctions that the international community could place on Trump. None have been used or seem likely to be used.
And so, as I set out in Prospect today (click kere):
we have a situation where perhaps the most serious threat imaginable is made and there is nothing which will be done or can be done.
One can legitimately ask what the purpose is of either constitutional law or international law if not to deal with situations like this.
Law is intended to deal with big things as well as little things.
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Some things are significant when they happen.
And some things are significant when they do not happen.
And what is perhaps far more significant than the unpleasant and extreme post of Trump is that nothing happened, at least in respect of constitutional law or international law.
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It is wrong and tragic that no one has taken action against Donald Trump or other members of his administration for multiple war crimes and crimes against humanity. As well as his threat of genocide, we should not forget that the bombing of Iran is itself a war crime — aggression against a state that was not attacking the US. And it was preceded by other crimes, such as the trans-border kidnapping of Nicolas Maduro and the murder of sailors on civilian boats which were alleged without evidence to be transporting drugs.
The one sliver of hope is to say that nothing has happened *yet*. In 2028, Trump may lose his majority and become more vulnerable to domestic opposition, potentially including criminal prosecution. In 2030, if he hasn’t overthrown America’s democracy by then, he loses office, at which point many foreign entities may be emboldened to act, not least the ICC whose staff he has sanctioned. (Which may itself count as obstruction of justice and a crime for which the ICC could indict and try him.)
Even if Trump himself — aging, obese, and clearly in cognitive decline — does not survive to see justice, many of his fellow perpetrators are younger and in better health. The likes of Pete Hegseth will have to spend decades worrying that international or domestic law will catch up with them. The rest of us will be cheering on the prosecutors.
The wheels of justice grind slowly — but still they grind. Let us not give up hope yet.
The next presidential election is in 2028 not 2030 so Trump will leave office in January 2029 (assuming he does leave)
Sarah Johnson, with respect, but in correction: you write of conceivable proceedings against the Mr Trump at the ICC. However, the USA is not among the 125 states which have agreed to be bound by the ICC. So the ICC would seem to lack jurisdiction over past or present USA decision-makers, such as Mr Trump. (Admittedly, the USA has, simply in virtue of belonging to the United Nations, admitted the jurisdiction of a court perhaps sometimes confused with the ICC, namely the ICJ. But that is a separate matter.)
@Andrew, sorry yes, mental glitch there. @Toomas, the ICC can prosecute Americans for crimes committed on the territory of states who did sign up for it. For example, in Trump’s first administration, he sanctioned ICC personnel because they were investigating war crimes by US soldiers in Afghanistan. Iran is not a member of the ICC but plenty of Trump’s other victims are, so there is still hope for future prosecutions.