After World War II, the U.S. government, in cooperation with the governments of the United Kingdom, the Soviet Union, and France, established an International Military Tribunal to bring to justice the leaders of the European Axis regimes. The Tribunals Charter, published August 8, 1945, declared in Article 6: The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;
(c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
The Article concluded by declaring pointedly that leaders, organizers, instigators, and accomplices participating in the formulation of execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
Further, Section 7 states: The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment. Moreover, Section 8 states: The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility . . . . The Tribunal also prohibited tu quoque (so did you) defensesno surprise, inasmuch as this whole proceeding amounted to victors justice, and the prosecuting powers themselves scarcely wished to acknowledge that during the war they too had taken many actions that would not bear scrutiny.
At a series of trials at Nuremberg from 1945 to 1949, more than a hundred defendants were tried. At the most important trial, which placed before the bar of justice the top surviving leaders of Hitlers government, twenty-two men were indicted on one or more of the counts listed above; nineteen were convicted on one or more counts; and three were found not guilty. Of those found guilty, twelve were sentenced to death by hanging; three were sentenced to life in prison; and four were sentenced to prison for terms that varied from ten to twenty years. No appeals were permitted.
If today the U.S. government were to put itself on trial, on the same basis it employed to try the Nazis at Nuremberg, for actions taken in Afghanistan and Iraq in recent years, it might have to convict itselfif only for the sake of consistency. Justice is no respecter of person. Can anyone sincerely maintain that what was a crime for Hermann Goering and Alfred Jodl is not equally a crime for Donald Rumsfeld and Dick Cheney?
Evidently, leaders of the Bush administration have given serious consideration to the possibility that their actions might lead to an indictment for war crimes, and they have taken legal measures to minimize their exposure to such prosecution. In a January 25, 2002, memorandum obtained and publicized recently by Newsweek, Alberto R. Gonzales, counsel to the president, outlined the pros and cons of the governments decisions about the treatment of prisoners in the so-called war on terrorism. Gonzales agreed with President George W. Bush that because the war against terrorism is a new kind of war, the Geneva Convention III on the Treatment of Prisoners of War need not be heeded. As Gonzales wrote, this new paradigm renders obsolete Genevas strict limitations on questioning of enemy prisoners and renders quaint some of its provisions . . . . [It] eliminates any argument regarding the need for case-by-case determinations of POW status. An official presidential determination that the Geneva Convention does not apply to al Qaeda and the Taliban, Gonzales opined, substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441). That statute, he added pointedly, prohibits the commission of a war crime by or against a U.S. person, including U.S. officials. . . . Adhering to your determination that [the Geneva Convention] does not apply would guard effectively against misconstruction or misapplication of [the War Crimes Act]. . . and thus would serve as a solid defense to any future prosecution.
Not for nothing were administration officials worried about a potential indictment for war crimes. I am neither a lawyer nor an expert on the Geneva Conventions, but as I consider how the U.S. government planned its recent military actions in Afghanistan and Iraq and how it has conductedand continues to conductthose actions, I encounter time and again prima facie evidence that U.S. leaders and their armed forces in the field have committed crimes against peace, war crimes, and crimes against humanity as defined by the Charter of the International Military Tribunal at Nuremberg in 1945.
First, in the light of voluminous evidence now available to everybody, it seems clear that leaders and advisers of the Bush administration engaged in planning, preparation, initiation or waging of a war of aggression. After all, Iraq posed no threat to the United States. Its government had neither the means nor the intention of waging war against this country; nor did it issue any threat to harm the United States. That high officials of the U.S. government and their supporters in the news media and elsewhere openly made many false statements to justify the invasion and occupation of Iraq surely exonerates nobody; if anything, those statements cast the guilty parties in an even starker light.
Second, in the light of voluminous evidence now available to everybody, it seems clear that Bush administration leaders and military personnel acting in obedience to those leaders have committed violations of the laws or customs of war, including murder . . . of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war . . . plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. The perpetrators baseless pleas of military necessity, of course, cannot absolve them for their actual crimes as defined above.
The latest outrage, reported in the Washington Post on May 20, 2004, involved the killing by U.S. forces of more than forty civilians, most of them women and children, in the village of Makr al-Deeb in western Iraq. A U.S. military official in Baghdad said that our sense is that this was a legitimate military target. We suspect that this was a smuggler or foreign-fighter route. Its our estimation right now that the [Iraqi] personnel involved in this matter were part of the foreign-fighter safe house. So, on the basis of suspicion of trafficking in unauthorized migrants, U.S. military forces, without warning, used aerial bombardments and strafing with high-powered guns to obliterate an entire village. An Iraqi witness at the scene told the Associated Press Television Network: The planes came in and shot the whole family. They kept shooting [from approximately 2:45 a.m.] until the morning, until they destroyed all the houses. They didnt leave anything. In a May 21 follow-up report, Associated Press writer Scheherezade Faramarzi quoted a survivor of the attack, Madhi Nawaf, who said: One of [the dead] was my daughter. I found her a few steps from the house, her 2-year-old son Raad in her arms. Her 1-year-old son, Raed, was lying nearby, missing his head.
U.S. forces claim that they were fired upon first, but Iraqis on the scene maintain that the Americans attacked people who had gathered in the village the previous evening for a wedding celebration and that no shooting had taken place prior to the U.S. attack. Regardless of whether U.S. intelligence about a foreign-fighter safe house happened to be accurate or not, however, the killing of the villages noncombatant inhabitants willy-nilly, firing from aircraft at a distance too great to discriminate among persons in targeting and also using bombs that cannot discriminate in any event, looks very much like a war crime. Another survivor of the attack, Sheik Dahan Haraj, denied the U.S. claims and asked the obvious question: If the American soldiers suspected that foreign fighters were in the village, why not seal off the area and make sure they were indeed foreign fighters?
In any event, the U.S. action was in this case, as it has been in countless others, wholly out of proportion to the underlying justification. This sort of attack has been going on in Afghanistan for almost three years and in Iraq ever since the U.S. invasion began in March 2003. Anybody can easily fill a cabinet with such news reports filed by journalists from many different countries. As Human Rights Watch concluded in a report last October, U.S. actions reveal a pattern of over-aggressive tactics, excessive shooting in residential areas and hasty reliance on lethal force.
Although the U.S. commanders exhibit insouciance about civilian casualties among the Afghan and Iraqi populationsin the immortal words of General Tommy Franks, We dont do body countsresponsible estimates of the number of civilians killed in the recent U.S. military actions range from 1,000 to 5,000 in Afghanistan and from 9,000 to 11,000 (in some estimates as many as 35,000 or more) in Iraq. In addition, thousands of noncombatants have been wounded seriously or have suffered the wanton destruction of their homes and other property. Still, every day, the grisly toll continues to mount. Thus, crimes against humanity, including murder . . . and other inhumane acts committed against any civilian population seem sufficiently obvious to justify a prosecution under the terms of the Nuremberg Tribunal.
Anyone can guess, of course, how the perpetrators of these crimes might seek to excuse their actionsworse yet, to take public credit for them and to seek reelection to public office on the basis of having taken them proudly and enthusiastically while swathed magnificently in the Stars and Stripes (exception being made for the now-globally-publicized abuse of prisoners, of course, those actions having been officially designated as un-American). But just recall how far the Nazis got at Nuremberg when they invoked the same sorts of excuses. Did not Goering plead, for example, that operation of the concentration camps was necessary to preserve order? Did he not say, It was a question of removing danger?
No surprise, of course, if accused criminals offer excuses for their crimesalthough Hitlers minister of munitions Albert Speer was remarkably contrite at Nuremberg, saying it is my unquestionable duty to assume my share of responsibility for the disaster of the German people. Especially rare is admission of guilt by government officials: rulers and state functionaries habitually consider themselves above the laws that apply to other people. In Shakespeares Richard III, even bloodstained Gloucester had an excuse, but Lady Anne, the slain kings widow, amidst the aftermath of the mayhem, was not buying it: Fouler than heart can think thee, thou canst make no excuse, but to hang thyself. As Lady Anne said to Gloucester, so others now might say to the leaders of the U.S. government:
For thou hast made the happy earth thy hell,
Filld it with cursing cries and deep exclaims.
If thou delight to view thy heinous deeds,
Behold this pattern of thy butcheries.
We need not prejudge, of course. Let all the accused have their day in court. Consistency requires nothing less.
Robert Higgs is Senior Fellow in Political Economy at The Independent Institute and Editor at Large of the Institutes quarterly journal The Independent Review. He received his Ph.D. in economics from Johns Hopkins University, and he has taught at the University of Washington, Lafayette College, Seattle University, and the University of Economics, Prague. He has been a visiting scholar at Oxford University and Stanford University, and a fellow for the Hoover Institution and the National Science Foundation. He is the author of many books, including Depression, War, and Cold War.
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