Could Bush Be Prosecuted for War
A Nuremberg chief prosecutor says
there is a case for trying Bush for the 'supreme crime against
humanity, an illegal war of aggression against a sovereign nation.'
by Jan Frel
AlterNet, July 10, 2006
The extent to which American exceptionalism
is embedded in the national psyche is awesome to behold.
While the United States is a country like
any other, its citizens no more special than any others on the
planet, Americans still react with surprise at the suggestion
that their country could be held responsible for something as
heinous as a war crime.
From the massacre of more than 100,000
people in the Philippines to the first nuclear attack ever at
Hiroshima to the unprovoked invasion of Baghdad, U.S.-sponsored
violence doesn't feel as wrong and worthy of prosecution in internationally
sanctioned criminal courts as the gory, bload-soaked atrocities
of Congo, Darfur, Rwanda, and most certainly not the Nazis --
most certainly not. Howard Zinn recently described this as our
"inability to think outside the boundaries of nationalism.
We are penned in by the arrogant idea that this country is the
center of the universe, exceptionally virtuous, admirable, superior."
Most Americans firmly believe there is
nothing the United States or its political leadership could possibly
do that could equate to the crimes of Hitler's Third Reich. The
Nazis are our "gold standard of evil," as author John
Dolan once put it.
But the truth is that we can, and we have
-- most recently and significantly in Iraq. Perhaps no person
on the planet is better equipped to identify and describe our
crimes in Iraq than Benjamin Ferenccz, a former chief prosecutor
of the Nuremberg Trials who successfully convicted 22 Nazi officers
for their work in orchestrating death squads that killed more
than one million people in the famous Einsatzgruppen Case. Ferencz,
now 87, has gone on to become a founding father of the basis behind
international law regarding war crimes, and his essays and legal
work drawing from the Nuremberg trials and later the commission
that established the International Criminal Court remain a lasting
influence in that realm.
Ferencz's biggest contribution to the
war crimes field is his assertion that an unprovoked or "aggressive"
war is the highest crime against mankind. It was the decision
to invade Iraq in 2003 that made possible the horrors of Abu Ghraib,
the destruction of Fallouja and Ramadi, the tens of thousands
of Iraqi deaths, civilian massacres like Haditha, and on and on.
Ferencz believes that a "prima facie case can be made that
the United States is guilty of the supreme crime against humanity,
that being an illegal war of aggression against a sovereign nation."
Interviewed from his home in New York,
Ferencz laid out a simple summary of the case:
"The United Nations charter has
a provision which was agreed to by the United States formulated
by the United States in fact, after World War II. Its says that
from now on, no nation can use armed force without the permission
of the U.N. Security Council. They can use force in connection
with self-defense, but a country can't use force in anticipation
of self-defense. Regarding Iraq, the last Security Council resolution
essentially said, 'Look, send the weapons inspectors out to Iraq,
have them come back and tell us what they've found -- then we'll
figure out what we're going to do. The U.S. was impatient, and
decided to invade Iraq -- which was all pre-arranged of course.
So, the United States went to war, in violation of the charter."
It's that simple. Ferencz called the invasion
a "clear breach of law," and dismissed the Bush administration's
legal defense that previous U.N. Security Council resolutions
dating back to the first Gulf War justified an invasion in 2003.
Ferencz notes that the first Bush president believed that the
United States didn't have a U.N. mandate to go into Iraq and take
out Saddam Hussein; that authorization was simply to eject Hussein
from Kuwait. Ferencz asked, "So how do we get authorization
more than a decade later to finish the job? The arguments made
to defend this are not persuasive."
Writing for the United Kingdom's Guardian,
shortly before the 2003 invasion, international law expert Mark
Littman echoed Ferencz: "The threatened war against Iraq
will be a breach of the United Nations Charter and hence of international
law unless it is authorized by a new and unambiguous resolution
of the Security Council. The Charter is clear. No such war is
permitted unless it is in self-defense or authorized by the Security
Challenges to the legality of this war
can also be found at the ground level. First Lt. Ehren Watada,
the first U.S. commissioned officer to refuse to serve in Iraq,
cites the rules of the U.N. Charter as a principle reason for
Ferencz isn't using the invasion of Iraq
as a convenient prop to exercise his longstanding American hatred:
he has a decades-old paper trail of calls for every suspect of
war crimes to be brought to international justice. When the United
States captured Saddam Hussein in December 2003, Ferencz wrote
that Hussein's offenses included "the supreme international
crime of aggression, to a wide variety of crimes against humanity,
and a long list of atrocities condemned by both international
and national laws."
Ferencz isn't the first to make the suggestion
that the United States has committed state-sponsored war crimes
against another nation -- not only have leading war critics made
this argument, but so had legal experts in the British government
before the 2003 invasion. In a short essay in 2005, Ferencz lays
out the inner deliberations of British and American officials
as the preparations for the war were made:
U.K. military leaders had been calling
for clear assurances that the war was legal under international
law. They were very mindful that the treaty creating a new International
Criminal Court (ICC) in The Hague had entered into force on July
1, 2002, with full support of the British government. Gen. Sir
Mike Jackson, chief of the defense staff, was quoted as saying
"I spent a good deal of time recently in the Balkans making
sure Milosevic was put behind bars. I have no intention of ending
up in the next cell to him in The Hague."
Ferencz quotes the British deputy legal
adviser to the Foreign Ministry who, in the lead-up to the invasion,
quit abruptly and wrote in her resignation letter: "I regret
that I cannot agree that it is lawful to use force against Iraq
without a second Security Council resolution [A]n unlawful use
of force on such a scale amounts to the crime of aggression; nor
can I agree with such action in circumstances that are so detrimental
to the international order and the rule of law."
While the United Kingdom is a signatory
of the ICC, and therefore under jurisdiction of that court, the
United States is not, thanks to a Republican majority in Congress
that has "attacks on America's sovereignty" and "manipulation
by the United Nations" in its pantheon of knee-jerk neuroses.
Ferencz concedes that even though Britain and its leadership could
be prosecuted, the international legal climate isn't at a place
where justice is blind enough to try it -- or as Ferencz put it,
humanity isn't yet "civilized enough to prevent this type
of illegal behavior." And Ferencz said that while he believes
the United States is guilty of war crimes, "the international
community is not sufficiently organized to prosecute such a case.
There is no court at the moment that is competent to try that
As Ferencz said, the world is still a
long way away from establishing norms that put all nations under
the rule of law, but the battle to do so is a worthy one: "There's
no such thing as a war without atrocities, but war-making is the
biggest atrocity of all."
The suggestion that the Bush administration's
conduct in the "war on terror" amounts to a string of
war crimes and human rights abuses is gaining credence in even
the most ossified establishment circles of Washington. Justice
Anthony Kennedy's opinion in the recent Hamdan v. Rumsfeld ruling
by the Supreme Court suggests that Bush's attempt to ignore the
Geneva Conventions in his approved treatment of terror suspects
may leave him open to prosecution for war crimes. As Sidney Blumenthal
points out, the court rejected Bush's attempt to ignore Common
Article 3, which bans "cruel treatment and torture [and]
outrages upon personal dignity, in particular humiliating and
And since Congress enacted the Geneva
Conventions, making them the law of the United States, any violations
that Bush or any other American commits "are considered 'war
crimes' punishable as federal offenses," as Justice Kennedy
George W. Bush in the dock facing a charge
of war crimes? That's well beyond the scope of possibility or
Jan Frel is an AlterNet staff writer.
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