Iraq, Nuremberg, law and legitimacy

"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.

"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04

This is a very good article for getting a picture of some of the major international-law and political issues raised by the Bush administration's foreign policy: The Sources of American Legitimacy Foreign Affairs by Robert W. Tucker and David C. Hendrickson Nov/Dec 2004.

Tucker and Hendickson describe the situation that neoconservative ideologues have built upon with an approach that has become Bush's vision and current American foreign policy:

Undoubtedly, U.S. legitimacy did undergo a dramatic transformation with the end of the Cold War. U.S. legitimacy did not collapse "along with the Berlin Wall and Lenin's statues," as [neoconservative theorist Robert] Kagan argues, but it became problematic in a way it had not been previously. Having built up a prodigious military machine in the course of its rivalry with the Soviet Union, the United States now found itself without a military equal and in a position, from a narrow military standpoint, to act without the serious prospect of external restraint.

However, they also stress that this notion that the US is the biggest and the baddest and we have to stay that way forever is actually a radically new departure for the United States:

This advantage created a potentially dangerous situation, one that, from the standpoint of traditional American political thought, required correction. Whether in international or domestic affairs, it has been almost a first law of U.S. statecraft that any situation of unbounded power heralds an incipient condition of political pathology. Since the post-Cold War world continued to hold many dangers, it was easy to make the case that the international order required a guardian, but it was equally evident that the guardian's power needed to be restrained, whether internally or externally. The end of the Cold War thus thrust the United States and the world into a Madisonian moment. "In framing a government which is to be administered by men over men," James Madison wrote in the Federalist Papers, "the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." [my emphasis]

Madison, of course, wasn't thinking of international relations so much as the internal workings of the proposed constitutional government.  But they make a valid application of the idea here.  The overwhelming dominance of the US in the world of the present, whatever it's advantages may be, is a very destabilizing force.  And the Bush administration has gotten us into a bad situation in Iraq simply relying on the fact that there was no potential countervailing power on the scene that could have challenged the US in the initial invasion.

In the case of Iraq, US dominance led to recklessness in the hands of the Bush team.  And, ironcially, it exposed the very real limits on US military power.

Tucker and Hendickson also make this important point about "pre-emptive" vs. "preventive" wars (a point I've discussed before):

It cannot be said, to be sure, that the Bush White House has been oblivious to the need for securing international legitimacy. By styling its doctrine of preventive war the "strategy of preemption," it sought to approximate its strategy to one of self-defense - for preemption, if the threat is imminent, can at least make a tolerable claim to legitimacy. This approach would have been unconvincing even if banned weapons had been found in Iraq - possessing weapons is not proof of impending attack - but it utterly collapsed when no weapons were discovered.[my emphasis]

For Americans still in the grip of war fever, or persuaded by the neocon/unilateralist idea that might makes right as long as it's the US and Republican administrationwielding the might, none of this makes a difference.  But the caution they used about desribing their approach indicates that at least some in the administration were worried about considerations like that "foreign court" over there "based in the Hague":

Advocates for war then argued that the administration had never actually said that the threat was imminent, only that it was "grave and growing." Absent a showing of imminence, however, one could not make a plausible claim for the lawfulness of the action. In truth, the Bush administration did not care a fig for whether the war was lawful. It wanted its strategy of preventive war to seem lawful, but the doctrine's implementation never depended on whether the administration's lawyers could write a coherent brief in its favor. [my emphasis]

The phrase "care a fig" is of course a euphemism for another phrase involving a different "f" word.  It's not often you see people saying something like that in a serious scholarly article.

American jingoes may be proud when they hear the Secretary-General of the United Nations say that the US war against Iraq was "illegal."  But more is at stake than country-club bluster.  One of the charges brought successfully against the defendents was the crime of "aggressive war," which means essentially the same as "preventive war."  In his presentation of the indictment on that count at Nuremberg, Sir Harley Shawcross, Britain's chief prosecutor at the Tribunal, stated:

Nor, though this procedure and this Indictment of individuals may be novel, is there anything new in the principles which by this prosecution we seek to enforce. Ineffective though, alas, the sanctions proved and showed to be, the nations of the world had, as it will be my purpose in addressing the Tribunal to show, sought to make aggressive war an international crime, and although previous tradition has sought to punish states rather than individuals, it is both logical and right that, if the act of waging war is itself an offense against international law, those individuals who shared personal responsibility for bringing such wars about should answer personally for the course into which they led their states. Again, individual warcrimes have long been recognized by international law as triable by the courts of those states whose nationals have been outraged, at least so long as a state of war persists. It would be illogical in the extreme if those who, although they may not with their own hands have committed individual crimes, were responsible for systematic breaches of the laws of war affecting the nationals of many states should escape for that reason. So also in regard to Crimes against Humanity. The rights of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the recognized law of nations. Here too, the Charter merely develops a pre-existing principle. If murder, rapine, and robbery are indictable under the ordinary municipal laws of our countries, shall those who differ from the common criminal only by the extent and systematic nature of their offenses escape accusation? [my emphasis]

Shawcross repeated a similar point later in the presentation:

To say that those who aid and abet, who counsel and procure a crime are themselves criminals, is a commonplace in our own municipal law. Nor is the principle of individual international responsibility for offenses against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes, as distinct from the crime of war, is based upon the principle of individual responsibility. The future of international law, and indeed, of the world itself, depends on its application in a much wider sphere, in particular, in that of safeguarding the peace of the world. There must be acknowledged not only, as in the Charter of the United Nations,  fundamental human rights, but also, as in the Charter of this Tribunal, fundamental human duties, and of these none is more vital, none is more fundamental, than the duty not to vex the peace of nations in violation of the clearest legal prohibitions and undertakings.  [my emphasis]

The opening statement by Justice Robert Jackson, the chief US prosecutor at Nuremberg, also addressed the crime of aggressive (preventive) war:

Any resort to war-to any kindof a war-is a resort to means that areinherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.

... The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives. [my emphasis]

Those who carelessly present the war in Iraq as though it were similar to the American cause in the Second World War should really stop to think about whether they are honoring the American tradition defended in that war, or spitting on it.

Jackson continued:

Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods - persuasion, propaganda, economic competition, diplomacy - were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbors in order to effectuate a foreign policy which they knew could not be accomplished by measures short of war.

Telford Taylor, who served as a prosecutor under Jackson at Nuremberg, wrote in Nuremberg and Vietnam (1970):

The reason ... that the Nuremberg trials took place, was that legally trained men in the seats of power in Washington concluded that German aggressioncould be judicially proved, that the future peace of the world would be promoted by an international determination that aggressive warfare is a crime under international law, and that those responsible may be punished.  Chief among the architects of Nuremberg was Henry L. Stimson, who had been Secretary of War under President William Howard Taft, Secretary of State under Herbert Hooover, and was again Secretary of War under Franklin D. Roosevelt; others closely involved included Attorney General Francis Biddle, Judge Samuel Rosenman of the White Hosue staff and, after Roosevelt's death, Justice Robert H. Jackson, who took leave from the Supreme Court of the United States to take charge of American interests in the war crimes field and serve as chief prosecutor.

George W. Bush, Dick Cheney, Don Rumsfeld, John Ashcroft, Colin Powell and Condoleeza Rice are very different kinds of people, as we have seen these last four years.

After describing the Bush Doctrine and phony WMD claims used to justify the Iraq War, Tucker and Hendickson describe how serious the problem that US indifference to international law and prevailing standards of conduct have been.  It all may look legitimate to the Dick Cheneys and Zell Millers of the world.  But they aren't the whole world, and not the whole of America:

But to understand is not to forgive. It is evident that the United States has reached a kind of tipping point, where world public opinion defines Washington as much, if not more, by the ease with which it justifies illegal actions as by its commitment to legality. The United States has assumed many of the very features of the "rogue nations" against which it has rhetorically-and sometimes literally-done battle over the years. The legitimacy of U.S. power has, at a minimum, been eroded significantly, and at certain moments - for instance, in the general revulsion to reports of widespread torture in Iraq - it seems to have vanished entirely. [my emphasis]

The question is not, then, whether the United States should accord a veto to the Security Council in cases of national or collective defense, but whether it should do so when the use of force would otherwise be illegal.

Reached the "tipping point," and gone over the edge.  Yes, the Bush team has created a very different kind of reality for the United States in the world.

Tags: bush doctrine, nuremberg trial, telford taylor, war crimes