Wednesday, November 23, 2005

The many revelations by former administration and government insiders, coupled with the Downing Street Memo, the Lewis Libby indictment, and numerous other sources since the invasion of Iraq almost three years ago leave little doubt that the Bush administration deceived Americans and the world before invading a country that threatened no one.

Many Americans now believe that Bush's real reasons for war were the removal of Saddam Hussein and control of Iraq and its oil, and not alleged Iraqi weapons of mass destruction or ties between Saddam and al-Qaida.

But there is another tragedy in all of this, the consequences of which we have not really begun to ponder. If the war was not for self-defense, or defense of others through treaty obligations, then United States has violated the very legal precedents that it was so central in establishing at Nuremberg after World War II.

In 1945, the United States was the driving force in the Allied decision-making process that established the terms of the International Military Tribunal at Nuremberg and subsequent post-war trials of Nazi officials. The point person for this drive was Robert H. Jackson, a U.S. Supreme Court associate justice whom President Truman appointed to be the chief American prosecutor. Jackson was mainly responsible for preparing the specific charges against those Germans about to be prosecuted at Nuremberg. At the core of the American approach was the first count in the indictment, a common plan or conspiracy to commit the crimes contained in the other three counts: crimes against the peace, war crimes, and crimes against humanity.

Jackson and the American team focused on the conspiracy count in combination with the second count, crimes against the peace.

During a preparatory conference of American, French, British, and Soviet jurists in London in June, 1945, Jackson explained the significance of crimes against the peace in relation to war crimes and crimes against humanity as follows: Our view is that this isn't merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace. ... The other atrocities were all preparatory to it or done in execution of it. The American strategy was to bring to trial not only those directly involved in the planning and execution of horrible crimes against civilians and soldiers alike, but also those who made those crimes possible under the cover of war. Jackson's logic rested on the premise that Nazi war crimes and crimes against humanity were made possible by the Nazi regime's initial crimes against the peace.

At Nuremberg, the prosecution defined crimes against the peace as the planning, preparation, initiation, and waging of wars of aggression, or a war in violation of existing treaties, agreements, and assurances. In other words, to be legal a war must be waged only in self-defense or in the defense of others, as greed to by international treaty. If it is true that the Bush administration did invade Iraq without any credible threat to the security of the United States or any other country, that this was neither a case of self-defense, nor one of defending another country in accordance with international treaty obligations, then the United States violated the very international treaties to which it is signatory, treaties that prohibit wars of aggression that are, by definition, crimes against the peace.

Some allege that the highest civilian and military officials in the administration, military commanders in the field, and guards and interrogators at U.S. detention facilities have committed war crimes and crimes against humanity in Iraq and elsewhere. If we use Justice Jackson's logic, this is a natural consequence of the Bush administration's initial crimes against the peace. Jackson's combination of the conspiracy count with that of crimes against the peace is, therefore, particularly instructive today, as we confront issues like torture, chemical weapons use, and the targeting of innocent civilians in Iraq within the context of those compelling revelations about administration decision-making that led to war in the first place.

In this war, as in others, the decision to go to war in the first place is critical because perpetrating war crimes and crimes against humanity as policy in wartime is usually a consequence of the nature of that initial decision. Often, that decision is a crime against the peace according to legal precedents and definitions established by the U.S. and its Allies at Nuremberg. It is no less true for the United States in Iraq than it was for the Axis in World War II. One wonders how Justice Jackson and the American prosecution team at Nuremberg would assess the legal basis of the Bush administration's decision to wage war against Iraq, and the consequent manner in which it has waged that war.

Frank Nicosia is a professor of history at St. Michael's College in Colchester.