Aug 9, 2006
"A highwayman is as much a robber when he
plunders in a gang as when single; and a nation that makes an unjust war is
only a great gang." --Benjamin
Franklin (1706-1790), Father of the American Constitution
"Never think that war, no matter how necessary,
nor how justified, is not a crime."
--Ernest Hemingway (1899-1961)
"It is my conviction that killing under the
cloak of war is nothing but an act of murder." --Albert Einstein (1879-1955)
Can a democracy turn fascist and militaristic? It sure can,
and that is the most severe threat a democracy can ever face.
The 20th Century example was Germany in the 1930's. The Nazi
Party was elected in November 1932, with only 33.1 percent of the votes, but
when its leader Adolf Hitler was appointed chancellor on January 30, 1933, it
immediately began subverting the German Weimar
Constitution by concentrating political power in its own hands, while
increasing military expenditures. The Nazi government then suspended a number
of constitutional protections of civil liberties under the pretext of external
and internal threats to its security. The following steps taken by Nazi Germany
were to initiate a series of illegal wars of aggression against other
countries. This culminated with World War II in which more than 50 million
After the war, principles of international law were
established in order to prevent future mischievous politicians from embarking
upon wars of aggression.
In the first instance, the U.S. participated in establishing
the Nuremberg standard of international
criminal justice, which states that it is a war crime to launch a war of
aggression. This was the charge that the chief U.S. prosecutor, Justice Robert
H. Jackson (1892-1954), brought against German Nazi leaders at the Nuremberg
trials. As Justice Jackson put it: "We must make clear to the Germans
that the wrong for which their fallen leaders are on trial is not that they
lost the war, but that they started it."
The Nuremberg Charter
is the most damning statute for leaders who engage in wars of aggression and
mass murders, because it establishes the principle that leaders who initiate
such wars and commit such crimes bear an individual criminal responsibility,
not only for launching wars of aggression, but for the war crimes and murders
which inevitably flow from their unprovoked aggression. This is well spelled
out by the Nuremberg War Crime Tribunal: "To initiate a
war of aggression . . . is not only an international crime, it is the supreme
international crime, differing only from other war crimes in that it contains
within itself the accumulated evil of the whole." Moreover, "Individuals
have international duties which transcend the national obligations of obedience
. . . therefore [individual citizens] have the duty to violate domestic
laws to prevent crimes against peace and humanity from occurring."
Let us recall that in early October 1945, at Nuremberg, 24
Nazi officials were indicted. Of those, 21 eventually were tried. They were
charged not only with the systematic murder of millions of people, but also
with planning and carrying out an illegal war in Europe. Twelve Nazi officials
were sentenced to be hanged, three sentenced to life in prison, four were given
prison sentences of 10-20 years, and the rest were acquitted. The Chancellor of
Nazi Germany, Adolf Hitler
(1889-1945), had previously committed suicide, on April 30, 1945, and was not,
therefore, indicted and judged. It is clear, however, that he would have been,
had he lived. Therefore, it is not true that only lower ranked officials can be
held accountable and accused of war crimes or crimes against humanity, while
those who give the orders remain in the shadows. It is not true that the
sadists, perverts and psychopaths in authority, even when they have been voted
into power, are completely exempt from the law and from the rules of human
decency. -Therefore, the precedent does exist and is very clear.
Secondly, the United Nations Charter
of 1945 solemnly outlawed wars of aggression. Indeed, the U. N. Charter admits
only two circumstances in which one country is allowed to use military force
- when a
country must defend itself against an attack from another country;
the Security Council authorizes the use of military force against a
country that is in violation of the principles of the U. N. Charter.
Neither circumstance existed when George W. Bush decided on
his own to attack Iraq on March 20, 2003. Therefore, the Iraq War represents an
illegal war of aggression and those who took that course of action risk being
held accountable one day for any crime committed during this illegal endeavor.
It can, indeed, be argued that President George W. Bush assumed the war
criminal's mantle when he illegally invaded Iraq under false pretenses. In
fact, if a war is illegal, then all the killings occurring during that war are
There are now 3,000
civilian deaths per month in Iraq. On October 8, 2004, George W. Bush said
that he accepts responsibility before history; "But history will look
back, and I'm fully prepared to accept any mistakes that history judges to my
administration, because the president makes the decisions, the president has to
take the responsibility." The real question is not whether history
will judge him; it surely will, and most likely, very severely. It is rather
whether he would accept or not to face an impartial international tribunal for
his actions and decisions that have resulted in hundreds of thousands of
unwarranted deaths. I doubt it.
On June 29, 2006, the U.S.
Supreme Court ruled (in a 5-3 decision) that President Bush's effort
to railroad Guantanamo Bay detainees in kangaroo courts "violates both
U.S. law and the Geneva Conventions."
Better late than never, but it took a long time for the U.S.
constitutional checks and balances provisions to stop this illegal behavior on
the part of the executive branch. The Legal Times quotes David Remes, a
partner in the law firm of Covington & Burling, as saying: "At the
broadest level, the Court has rejected the basic legal theory of the Bush
administration since 9/11 -- that the president has the inherent power to do
whatever he wants in the name of fighting terrorism without accountability to
Congress or the courts." Perhaps the U.S. court's ruling has more
far-reaching implications. Indeed, in finding that George W. Bush was violating
the law by not following the Geneva Conventions, the ruling may have created a prima
facie case for charges to be filed against him, later on, for war crimes.
President George W. Bush, as did many politicians before
him, must think that he is exempt from the law, as long as he remains protected
by his office (the U.S. Constitution grants the president immunity while in
office) and as long as he has brute military force on his side. So did Adolf
Hitler, . . . for a long while. George W. Bush joked mockingly about
international law on December 11, 2003, when he said to an European
reporter "International law? I better call my lawyer; he didn't
bring that up to me."
But circumstances may change, and the law, after having been
kept in check and derided, ultimately succeeds. Especially after he leaves
office, George W. Bush could be held criminally responsible for
American-initiated war crimes in
Iraq, either through an indictment in American courts (which is most
unlikely), or through an indictment in some other country's courts which have
jurisdiction to try any person who is suspected of having planned, directed or
committed crimes against humanity under international customary law, as well as
for planning and carrying out crimes against the peace. This is not an
hypothetical situation since it is reported that Attorney General Alberto Gonzales
is quietly working with senior White House officials and friendly members of
Congress to pass new laws to exempt members of the administration from future
prosecution. For Americans, it should give food for thought to consider
that their leaders, if they were defeated militarily, could be open to
prosecution for war crimes.
For the time being, some temporary legal tricks have been
used to protect American soldiers in Iraq from either Iraqi law or
international law. A blanket immunity from prosecution to "coalition
forces" on Iraqi soil was granted by former U.S. administrator in
Iraq Paul Bremer. Because of Bremer's Order 17,
indeed, Americans in Iraq are subject only to U.S. military law. In other
words, soldiers are in a position to judge other soldiers, in case of war
crimes or crimes against humanity. Moreover, even though the invasion of Iraq
was an illegal act in itself, the United Nations granted, after the fact, a
U.S.-led coalition's mandate for Iraq, in June 2004, with its Resolution 1546.
This resolution authorized the U.S.-led coalition to provide security and to
support the country's transitional government. And, importantly, it contains an
annex that extends Bremer's directive regarding immunity from Iraqi
law for foreign personnel in Iraq. It is far from certain that this U.N.
granting of immunity is not a breach of international law and could not itself
be declared null in a court of law, since the U.S., as a veto-wielding member
of the Security Council, was in conflict of interest in obtaining it.
It is this blanket immunity that the Iraqi government is
presently attempting to have lifted or declared null and void, after some
sordid crimes and massacres were perpetrated by American soldiers against the
Iraqi civilian population. Indeed, one of the most gruesome American atrocities
in Iraq was connected with the planned rape and premeditated murder of a young
Iraqi girl by a group of five U.S. soldiers, on March 12, 2006, near
Mahmudiyah, Iraq. The hooligans were led by a Steven D. Green, stationed in Iraq
with the 101st
Airborne Division and who has since been 'honorably' discharged from the military.
Before leaving the scene of their crime, the American soldiers fatally shot in cold blood
the four other members of the family, including a 5-year-old girl, and
attempted to set the young girl's body on fire to cover their crime.
But thanks to the above mentioned immunity clause, those involved cannot be
tried in an Iraqi
court of law. An army is truly the last refuge of the sadist.
Iraqi Justice Minister Hashim Abdul-Rahman al-Shebli has
denounced this war crime as "monstrous and inhuman" and called on the
U.N. Security Council "to stop these violations of human rights."
However, the Bush administration is in a position to veto to any U.N.
resolution that would lift American immunity in Iraq. Iraq remains a conquered
territory. The term "liberated country" is, therefore, a gross
Nevertheless, as mentioned before, when soldiers commit war
crimes in an illegal war, those who launched such an illegal
"preventive" war may be held personally responsible for the crimes
that ensue. Had they not ordered an illegal war of aggression, the military
crimes and massacres that followed would not have occurred. The precedent has
been solidly established by the Nuremberg Trials. The judges at Nuremberg laid
down the ground rules of international law that describe an unprovoked, violent
invasion of a defenseless country as "a crime against humanity, the
paramount war crime."
More recently, the trial at The Hague of former Serbian
President Slobodan Milosevic
for crimes against humanity, and the creation of the International
Criminal Court in 2002, have raised hopes that it would become easier
to bring tyrants before a court of justice. Efforts to bring other known war
criminals, however, have proved much more difficult, as the attempts at war
crimes prosecutions of Chile's Augusto Pinochet and Israel's Ariel Sharon have
demonstrated. There are insurmountable obstacles to bringing to justice former
political leaders who have engaged in war crimes, but who receive the
protection of their country against the reach of international justice.
In the case of the March 2003 Iraq War, launched by the
neocon Bush administration, it can be said that the very concept of
"preventive war," used to justify this first war of aggression in the
21st Century, has already been judged and condemned by the Nuremberg Tribunal.
The conclusion of this court was that leaders who engage in so-called
"preventive wars" must be held individually accountable for their
crimes. In particular, the International Military Tribunal at Nuremberg
rejected the German leaders' argument that they had been compelled to attack
Norway and Denmark in self-defense 'to prevent' a future Allied invasion. The
Tribunal concluded that these attacks violated customary law limits on
self-defense and instead constituted wars of aggression whose prohibition was
demanded by the conscience of the world.
Moreover, the 1996 U.S. War Crimes
Act (U.S. Code Section 2441) also bans any American, including government
officials, from committing war crimes, and punishments for violators include
penalty. What's more, this American law has no statute of limitations.
In conclusion, it would seem reasonable to think that the blame
for any war crime committed in Iraq by the occupying forces lies squarely on
President George W. Bush's shoulders and on those of his principal acolytes.
Therefore, it is fair to conclude that the legal history of this war has not
yet completely unfolded.
Rodrigue Tremblay is
professor emeritus of economics at the University of Montreal and can be
reached at rodrigue.tremblay@
yahoo.com. He is the author of the book 'The
New American Empire'. Visit his blog site at www.thenewamericanempire.com/blog.
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