“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated…
This inquest represents the practical effort… to utilize international law to meet the greatest menace of our times – aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of that magnitude that the United Nations will lay before Your Honors…
Merely as individuals their fate is of little consequence to the world. What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making… Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive…” The above quotes are excerpts from the
introductory remarks of Justice Robert H. Jackson, Chief Prosecutor for the United States at the Trial of the Major War Criminals before the International Military Tribunal at Nuremburg, November 21, 1945.
The judges of the Tribunal agreed with Justice Jackson. When the trial ended almost a year later,
they sentenced 12 defendants to death, 7 to prison sentences ranging from 10 years to life, and acquitted 3. Among the 12 who were sentenced to death, 7 were convicted of the crime of “aggressive war”. That was considered the most serious of the crimes, about which
the Tribunal said on October 1, 1946:
The charges in the indictment that the defendants planned and waged aggressive war are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime, differing only from other crimes in that it contains within itself the accumulated evil of the whole.
I begin this post with this brief review of the Nuremburg Tribunal because at the time it was considered by many to be a watershed moment in creating a system of international law that would hold war criminals accountable for the deaths of millions and therefore help to prevent future recurrences. But now, as I explain, we are on the brink of losing our international system of law if the United States and the world allow the most powerful nation in the world to get away with committing war crimes with impunity.
The beginnings of international lawIt took two World Wars, a massive genocide perpetrated by Hitler’s Nazi Germany, and two great leaders, Franklin Delano Roosevelt and Winston Churchill, to create the conditions for proceeding to establish a world order that would build upon the concept of human dignity, worth and rights proclaimed in the U.S. Declaration of Independence.
With the growing power of Nazi Germany, its genocidal mania, and aggressive war beginning in 1938 with its
occupation of Czechoslovakia, the world faced perhaps its greatest threat ever. In that setting, the leaders of the only two democracies that posed significant barriers to Hitler’s lust for unlimited power met in August of 1941 to discuss how to meet the great threat facing them and the world.
Franklin Delano Roosevelt and Winston Churchill realized the importance of persuading the populations of their countries and other countries to enthusiastically endorse and support the effort to prevent Nazi tyranny from taking over the world. To those ends they realized that tough talk and threats were not sufficient or even desirable. Rather, they recognized the need to lay out a vision before the world that would clearly show the differences between them and their Fascist enemies. Thus, the
Atlantic Charter of August 14, 1941.
Following the final destruction of the Nazi tyranny the victorious nations of the world, led by the United States, wasted little time in beginning to make the principles proclaimed in the Atlantic Charter into reality. The creation of the United Nations was the beginning of that attempt.
The
preamble to the Charter of the United Nations, which appears in some ways to be a direct extension and expansion of the beginning portion of the U.S. Declaration of Independence, enunciated the following principles:
To save succeeding generations from the scourge of war…
To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women…
To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
To promote social progress and better standards of life…
Empire’s lawThe polar opposite of international law is “
Empire’s law”. Amy Bartholomew defines empire’s law as:
the idea that there is a nonreciprocal right of Empire to run roughshod over everyone else in the name of spreading its own values and its own conception of security globally.
Another way of saying this is simply “might makes right”, or anarchy. The preference of the United States for empire’s law over international law was made clear in a Pentagon document released in 2005 titled “
National Defense Strategy of the United States of America”. The document says that the ‘changing security environment’ following 9/11 requires ‘global freedom of action’ for the United States, aimed at securing and promoting its interests. It lists as one of the United States’ major vulnerabilities:
Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.
Doug Feith, the Undersecretary of Defense for Policy in the George W. Bush administration,
commenting on this ‘vulnerability’ at a press conference, said:
There are various actors around the world that are looking to either attack or constrain the United States, and they are going to find creative ways of doing that, that are not the obvious conventional military attacks.
Feith went on to characterize those ‘creative ways’ of constraining the United States as including diplomatic and technological means, which he characterized as ‘kinds of asymmetrical warfare’. When pressed to further characterize these ‘creative ways’ of ‘asymmetrical warfare’, Feith explained them as
arguments that some people make to try to, in effect criminalize foreign policy and bring prosecutions where there is no proper basis for jurisdiction under international law as a way of trying to pressure American officials.
Bartholomew sums up Feith’s statements on the subject:
How interesting and perverse that the Bush administration – the pinnacle of the American Empire – should view international law and international institutions as ‘strategies of the weak’ about which they should be concerned.
A brief (and incomplete) review of Bush administration war crimes and contempt for international lawGeorge Bush has repeatedly condoned the abuse and torture of our prisoners of war, in violation of the
Geneva Convention of 1949 and The
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. He never withdrew from these conventions – he merely claimed that they didn’t apply to what he did, which is clearly not true.
His preemptive invasion of Iraq was clearly a violation of international law, and constitutes the crime of “aggressive war”, as the United Nations Charter prohibits the initiation or the continuation of war except under two circumstances: self-defense and when authorized by the UN Security Council to “take such action … as may be necessary to maintain or restore international peace and security”.
Of the many institutions and traditions that George W. Bush attempted to destroy during his eight years in office, the International Criminal Court (ICC) tops the list. So vehement was his hostility to the ICC that it was almost as if he thought he might one day come under its jurisdiction himself. Though the Bush administration provided many excuses for its hostility to the ICC, the underlying issue appears to be that it cannot tolerate the possibility that an American could ever be tried before the Court. For example, Bush claimed that the Court’s jurisdiction cannot extend to Americans because that will undermine “the independence and flexibility that America needs to defend our national interests around the world”.
Philippe Sands, in his book “
Lawless World – The Whistle-Blowing Account of How Bush and Blair Are Taking the Law into Their Own Hands”, poses the following pertinent rhetorical question in response to that excuse:
The flexibility to do what? The flexibility to commit war crimes? The flexibility to provide assistance to others in perpetrating crimes against humanity? The flexibility to turn a blind eye when your allies commit genocide?
Consequently, though
President Clinton signed the ICC Statute, George Bush announced in 2002 that it was
unsigning the statute. And he went well beyond non-participation, to active sabotage. For example, the
American Service members’ Protection Act authorizes the American President to “use all means necessary and appropriate” to release any American national who is “being detained or imprisoned by, on behalf of, or at the request of the ICC”; it prohibits all American cooperation with the ICC; it prohibits participation of American troops in UN peacekeeping operations unless they are granted complete immunity from the ICC; and it prohibits the U.S. from providing military assistance to any country that is a party to the ICC (with some exceptions).
The meaning of Bush administration actions with respect to international (and U.S.) lawAmy Bartholomew makes the point that what the Bush administration did with respect to international law is
far worse than merely ignoring it and breaking it with impunity:
I am calling empire’s law those attempts by the US to undermine the… post World War II development of human rights and international law that foreshadowed a future order of democratic cosmopolitan law. Empire’s law aims to derail that project and seeks to do so unilaterally, brutally, and by the projection of military as well as economic, cultural, political and even legal power across the globe. The proliferation of war crimes committed by the United States and the legal and ideological work it does to (redefine) those actions as not illegal is part of this threatening process. This is crucial, I think: To recognize that the crimes we are witnessing are not just egregious violations of the law, but rather are part of a broader strategy to
reconstitute (i.e. redefine) the law itself.
In its report entitled “
Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power”, Amnesty International said of US Attorney General Alberto Gonzalez… that he may have been involved in “a conspiracy to immunize US agents from criminal liability for torture and war crimes under US law”. And this, it should be noted, is part of the process of reconstituting the law:
redefining torture and the rules against it, not just violating those rules.
Mike Davis
points out one of the greatest barriers to reinstating international law in place of the Empire’s law preferred by the United States:
Let’s face it, a tolerance for atrocity is now enshrined at every level of American culture. And because we are unmoved by the war crimes of the past, we are passive in the face of the monstrous acts being committed in our names today. Where are the congressional investigations, the public outcries, and the campus protests in the wake of the revelations about the torture regimes at Abu Ghraib, Bagram Air Base in Afghanistan, and Guantanamo?
Michael Ratner, the lead lawyer in the Guantanamo cases that went
to the US Supreme Court and the
Rumsfeld case in Germany
comments on the extreme disinterest in this situation by the U.S. national news media. He notes that even after winning the Supreme Court cases:
I have seen very little coverage of people who had been released from Guantanamo. Similarly, I don’t understand why the media didn’t cover the German case we brought. I was willing to give the New York Times an exclusive and they wouldn’t cover it.
Combating a tolerance for atrocityAs long as there remains such a high tolerance for atrocity in the United States, there will never be much demand to hold war criminals responsible for their crimes, and we can therefore expect to continue with our current system and attitude that the United States is not and should not be subject to international law – no matter who is president. As a remedy for that, Mike Davis suggests that the American people are in dire need of remedial education on the subject, and suggests that holding criminals legally accountable for their actions may be key:
If covering up, then lying about and denying American war crimes or, when necessary, shifting the responsibility for them far down the chain of command, has proved a thoroughly bipartisan business going back for several decades, if we are suffering a systematically produced ‘aura of mendacity’, as surely we are… it is surely the time to force the lid off the box. Investigation and publicity through litigation against political and military leaders is one of the means to do this.
Bartholomew further explains the value of litigation against the major perpetrators of war crimes:
It may have the distinct advantage of gathering support, through investigation and publicity, and through the constitution (i.e. defining) of the leading figures in the American empire literally as criminal in their actions, and thus may speak, thorough the legitimacy that law and legal institutions still have to offer, to wider segments of the population. It may have a special potential, in other words, to delegitimate empire – particularly one that claims to be ‘benevolent’ (Don’t they all?) – and thus contribute to a sense of the political responsibility that its citizens bear for its crimes.
Preserving the rule of lawWhen the victorious Allies at the conclusion of World War II conducted the Nuremburg Tribunal with the purpose of holding the leading Nazis accountable for their war crimes and crimes against humanity, one of the main criticisms was that the Tribunal was a fraud because the Allies would be unwilling to hold themselves subject to the same standards if the tables were reversed.
When President Roosevelt
conceived of the United Nations Organization, and upon his death President Truman worked to bring it to fruition, those actions represented good faith efforts to prove that the United States was sincerely enthusiastic about international law, and in the interest of world peace and harmony was willing to work hard to make it a reality.
We’ve come a long way since then, hitting the depths of depravation under the administration of George W. Bush and Dick Cheney. Amy Bartholomew describes the crisis that we now face:
The power of American Empire seems committed to fight every attempt to develop (international law)… going so far as to associate it with ‘asymmetrical warfare’ by the weak against the strong… Prior to extending the global field of law is the need to defend what has been in place but which is currently under egregious attack – the Geneva Conventions etc. which, as Karen Parker has put it, face likely “death… if other States do not rally.” It is the defense and the extension of (international law) that the American Empire currently seeks to undermine.
Empire’s law seeks exceptions, evasions and legal arrangements that accommodate its needs and desires while marginalizing others – treating them as if they were mere objects… That the American Empire seeks to reconstitute and redefine the law virtually by unilateral fiat, with enormous pressure placed on its ‘coalition’… attacks the internal legitimacy of law… It is, therefore, inadequate… to assume that the Bush Administration’s position in relation to law is one merely of acting lawlessly. Its implications are much more threatening than this. Its violations of international humanitarian law are being underwritten by policy and legal arguments that justify this impunity.
It is great, of course, that we now have a new presidential administration that is without question much more inclined to submit to international law than the recently departed one. Nevertheless, so many of the attitudes of Empire’s law remain ingrained in the American consciousness, and they are likely to continue to do so unless those who perpetrated war crimes and crimes against humanity are held legally accountable for their crimes. Unless and until that happens I expect that international law – the last best hope for world peace and prosperity – will die.
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