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nuremberg
It Is Time for a National Reckoning About the Iraq War
Twenty years ago, the U.S. destroyed Iraq with an invasion that also constituted an attack on the very concept of the international rule of law.
Mar 20, 2023
The attack against Iraq by the United States and its coalition in 2003 was a blatant and reprehensible act of aggression for which there has yet to be any meaningful accountability. At least hundreds of thousands and possibly more than one million Iraqis lost their lives through this illegal undertaking. Millions more were displaced. The self-determination of the people of Iraq and their ability to choose their own destiny and place in the world was irreparably shattered.
Numerous cultural and political elites in the United States gleefully supported the war as a courageous or even joyous act. It was the opposite. The Iraq War constituted an attack on the very concept of the international rule of law. In addition to the injuries inflicted upon Iraqis, two decades have now passed since the invasion without any examination of how U.S. conduct has contributed to current international anarchy and aggravated great power violence and confrontation.
There has never been a reckoning for the Iraq War
The planners and executors of the Iraq War have never faced a formal judicial reckoning. The Iraq Inquiry undertaken by the United Kingdom, which released a report in 2016 (the “Chilcot Report”) did not opine on the lawfulness of the war. Nevertheless, several submissions made to the Iraq Inquiry by international lawyers underscored the illegality of the invasion. Professor Nicholas Grief and others from Kent Law School concluded that without a second Security Council resolution authorizing the invasion of Iraq, "the invasion of Iraq constituted an act of aggression, contrary to Article 2(4) of the UN Charter."
A formal process of national atonement should be initiated in the United States in order to create cultural reflection, political change, and judicial accountability for the heinous crimes committed against Iraq and the Iraqi people.
Elizabeth Wilmshurst, who was Deputy Legal Adviser to the UK Foreign and Commonwealth Office and who resigned immediately prior to the invasion, told the Iraq Inquiry that, "I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post . . . Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom's reputation as a State committed to the rule of law in international relations and to the United Nations." These opinions affirm the conclusion that UN Secretary-General Kofi Annan himself reached in 2004 when he stated unequivocally: "I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal."
At the Nuremberg Trials in 1946, Robert Jackson, a U.S. Supreme Court Justice who was named Chief Prosecutor against defeated Nazi leaders, promised the world that, "To pass these defendants a poisoned chalice is to put it to our own lips as well." He argued, "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."
The Nuremberg Tribunal agreed with Jackson. In convicting high-ranking Nazi leaders for their grave international crimes, the Tribunal held, "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 war crimes in that it contains within itself the accumulated evil of the whole."
The United States must engage in a process of national atonement
A formal process of national atonement should be initiated in the United States in order to create cultural reflection, political change, and judicial accountability for the heinous crimes committed against Iraq and the Iraqi people. Such a process of national atonement should, among other things and at the very minimum, ensure that:
- U.S. international relations are conducted in conformity with international law, including the principles of equal rights and self-determination for all peoples and the general prohibition of aggression;
- U.S. leaders are themselves held accountable by a U.S. court or other neutral legal tribunal for grave international legal violations, including the crime of torture and the crime of aggression; and
- Reparations are made to Iraq consistent with principles of international State responsibility for the aggression against Iraq.
This process of national atonement should further prompt the United States to work for a genuine international legal order in which all countries cooperate to maintain a just peace and the international rule of law.
This is now an urgent and possible existential matter given the planetary threats at hand, including imminent climate collapse, the sixth mass extinction taking place, and the threat of great power violence between nuclear-armed States.Keep ReadingShow Less
Putin’s George W. Bush Problem: or Bush's Putin Problem?
Perhaps these “birds of a feather” ought to be “tried together?
Jan 14, 2023
V. Putin’s war of aggression against Ukraine is a war crime. Although the “NATO expansion” is an apparent effort to encircle Russia on its western border with new NATO members, despite the promise of the Bush I administration not to do so, may be considered on the issue of appropriate punishment, it is no defense to the crime. In fact, aggressive war, or a war of invasion, is the “ultimate war crime” according to the Nuremberg Tribunal and the US Prosecutor Justice Jackson.
Recent precedent supports that Putin is subject to prosecution for the invasion of Ukraine. In particular, the Kuala Lumpur War Crimes Tribunal and Commission were established under the Laws of Malaysia; they had a pre-existing Statute and Rules of Procedure. They also paid for a qualified Team of Malaysian Barristers to defend the Defendants. They put on as vigorous a Defense as could have been made.
Despite that excellent defense, the accused--George W. Bush and Tony Blair--were convicted of war crimes based on overwhelming evidence of their guilt. In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (the Kuala Lumpur War Crimes Tribunal, or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict (2011) that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, among others as a result of their roles in the Iraq invasion.
George W. Bush, the former US President, and seven key members of his administration were found guilty of war crimes: Bush, Dick Cheney, Donald Rumsfeld, and their legal advisers Alberto Gonzales, David Addington, William Haynes, Jay Bybee, and John Yoo were tried in absentia in Malaysia.
In addition to the crime of aggressive war, the trial held in Kuala Lumpur heard harrowing witness accounts from victims of torture who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan following the illegal invasions and wars of aggression.
At the end of the week-long hearing, the five-panel tribunal unanimously delivered guilty verdicts against Bush, Cheney, Rumsfeld, and their key legal advisors, who were all convicted as war criminals.
Full transcripts of the charges, witness statements, and other relevant material have been sent to the Chief Prosecutor of the International Criminal Court, as well as the United Nations and the Security Council, apparently in support of “official criminal prosecution” by that body.
Mr. Putin ought to be concerned that this precedent, along with the Nuremberg Tribunal’s rulings, indicates a serious judgment by informed members of the international community that wars of aggression, and the other crimes that unavoidably follow such invasions, will be met with condemnation and legal action. The people of the world will demand and expect accountability, as no person is above the law.
Although, as of yet, Mr. Bush and his fellow defendants have not been brought before any “official” bar of justice, their status as War criminals will follow them and dog their days should they leave the “protection” of nations arguably complicit in their crimes. They travel internationally at risk of arrest by nations committed to the rule of law. They are branded with the “mark of Cain” indelibly and arguably even more odiously.
Of course, the condemnation of Mr. Putin’s like crime by US and Allied Officials would carry more moral force should Mr. Bush et al. be charged officially by those nations in which they have sought refuge—all such nations bear a duty to do so under the law of nations. Mr. Putin should not take solace in the lack of their prosecution. The unequal application of the law, especially the law of war, has long been one of its major defects. Both "victor's justice" (no consequential prosecution of a prevailing power) and superpower impunity (no documentable legal consequences for superpower war crimes or crimes against humanity) are at issue now as in the past.
However, the Israeli example of hunting down War Criminals from the Nazi regime despite their evasion of the official Nuremberg Tribunal is but one example of what the future may hold for such criminals. Lead amongst these was Simon Wiesenthal, ironically born in Ukraine. The great mass of humanity yearns for justice, despite being burdened with “leaders” whose arrogance erroneously enables them to conclude they are immune from justice. In this regard, universal jurisdiction over war crimes has the potential to ensnare war criminals and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules apparently out of fear of arrest in some nations that prefer the rule of law to war and justice for all to justice for some.
Perhaps, if brought to trial, Mr. Putin will call Mr. Bush as a witness for his defense. If Mr. Bush eludes accountability, Mr. Putin may argue, then I cannot be held accountable for the invasion of Ukraine without violating the principle of “equal justice under law.” On its face, this claim has some force, especially against US efforts, if any, to prosecute Mr. Putin, as it is foundational in US law that the law applies equally to all.
If Mr. Putin is guilty, then so is Mr. Bush. Selective prosecution in War Crimes cases makes a mockery of the rule of law and supports the claim that Nuremberg and all such efforts are mere “victors justice” that ignores the war crimes of victors while punishing losers, an extreme example of “might makes right.” Surely, it falls short of Abe Lincoln’s aspirational aphorism: “right makes might.”
Or perhaps, the prosecution would call Mr. Bush as an “expert” witness on what it takes to plan and commit a war of aggression, an illegal invasion, to lay a foundation for the tribunal to evaluate Mr. Putin’s plans and acts. This could be problematic, as Mr. Bush could elect to “plead the fifth,” taking the position that his testimony could open him to criminal prosecution for the same crime as Mr. Putin—a criminal war of aggression. And were Mr. Bush to testify his own words could convict him, thus taking the fifth is valid.
Regardless of the legal morass, the foregoing creates, humanity clearly owes a debt to the Kuala Lumpur War Crimes Tribunal. It provides a compelling precedent for the assertion that the law of the international community repudiates “victors’ justice” and that wars of aggression are crimes.
Even Mr. Bush appears to support that view. The 43rd president was making a presentation to an audience at his presidential library in Dallas on Wednesday, May 18, 2022 when he condemned “the decision of one man to launch a wholly unjustified and brutal invasion of Iraq – I mean Ukraine.” With such a declaration against his interest, Mr. Bush ratified the legitimacy of the Tribunal’s indictment and judgment of conviction.
The law of humanity is bending the moral arc of the universe towards justice, no matter how obstructionists like Mr. Putin, and Mr. Bush, try to stop it. On second thought, perhaps these “birds of a feather” ought to be “tried together?” Were it so, right could make might, and the rule of law could be promoted to its rightful place in a world free of war criminals.
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