August 7, 2006
War Crimes and
Responsibility of the Bush Administration
"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 people died.
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 against another:
• when a country must
defend itself against an attack from another country;
• when 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
murders.
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 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 oppose its 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 misnomer.
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 Chili'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 the death penalty.
What's more, this American law has no statute of limitations in time.
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 atwww.thenewamericanempire.com/blog.
Author's Website: www.thenewamericanempire.com/
______________________________________________
Posted on August 7, 2006, at 6:30
a.m.
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