War crimes and responsibility of the Bush administration
By Rodrique Tremblay
Online Journal Guest Writer

Aug 9, 2006, 00:57

"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 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 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 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 the death 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@ He is the author of the book 'The New American Empire'. Visit his blog site at

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