Now that President
Bush has resolved publicly that those who committed war crimes will be
punished, the subject of U.S. war crimes may begin to move closer to its
deserved prominent place in the American public discourse. If this
happens, more Americans are likely to realize that the man who spoke of
punishing war criminals has himself violated the law and should be
accordingly punished.
In fact, according to
the Nuremberg Charter, a document which the U.S. had a major role in
drafting, those who initiate a war of aggression quite literally bear
individual criminal responsibility, not only for waging unprovoked war,
but for the war crimes which inevitably flow from aggression.
In 1946, the chief
American prosecutor of the first Nuremberg trial, U.S. Supreme Court
Justice Robert Jackson, took this principle seriously enough to help
secure the conviction of 17 of the most prominent surviving German
leaders for initiating a war of aggression. Eleven were sentenced to
death. Three received life sentences and three received lesser
sentences.
Reading the transcript
of the first Nuremberg trial, we see that all who committed war crimes,
from the foot soldiers to the highest leaders, were to be held
responsible for their crimes. We also see, however, that the leaders who
initiated the aggression were assigned primary criminal responsibility
by the prosecutors and by the Tribunal, since none of the subsequent
crimes would have been committed had the aggression not occurred. This
principle was absolutely central to the Nuremberg Charter and Trials.
Moreover, we see that
the intent of the authors of the Charter was not to limit the principles
involved in this body of law to prosecution of Germans in 1946 but
rather to set a precedent for all times and for all countries, including
the United States.
Article 6 of the
Charter states: “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; ...Leaders, organizers, instigators and
accomplices participating in the formulation or 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.”
And from Article 7:
“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.”
On Aug. 12, 1945,
three months before the trial began, Justice Jackson made the intent of
the American prosecution and of the law clear in a statement on the War
Trials Agreement:
“If we can cultivate
in the world the idea that aggressive war-making is the way to the
prisoner's dock rather than the way to honors, we will have accomplished
something toward making the peace more secure. ...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.”
Bearing in mind the
relationship of the Marines now awaiting trial for the Haditha massacre
to their Commander-in-Chief and his subordinates, Justice Jackson’s
words in his Nov. 21, 1945, opening statement concerning the German
leaders then on trial go to the heart of the matter:
“These defendants were
men of a station and rank which does not soil its own hands with blood.
They were men who knew how to use lesser folk as tools. We want to reach
the planners and designers, the inciters and leaders without whose evil
architecture the world would not have been for so long scourged with the
violence and lawlessness, and wracked with the agonies and convulsions,
of this terrible war. ...We have here the surviving top politicians,
militarists, financiers, diplomats, administrators, and propagandists,
of the Nazi movement. Who was responsible for these crimes if they were
not?”
If we bear in mind
that the U.S. aggression in Iraq was a violation not only of the
Nuremberg Charter but of the U.N. Charter (Article 2, Sec. 4 and
Articles 39 and 51) and if we remember the several shifting
justifications for the aggression presented by the Bush administration,
Justice Jackson’s later words that day resonate today for us and for
President Bush:
“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. ... 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.”
And speaking to the
concept of individual responsibility for war criminals at the highest
levels, then and in the future, Justice Jackson said:
“The ultimate step in
avoiding periodic wars, which are inevitable in a system of
international lawlessness, is to make statesmen responsible to law. And
let me make clear that while this law is first applied against German
aggressors, the law includes, and if it is to serve a useful purpose it
must condemn aggression by any other nations, including those which sit
here now in judgment. We are able to do away with domestic tyranny and
violence and aggression by those in power against the rights of their
own people only when we make all men answerable to the law. This trial
represents mankind's desperate effort to apply the discipline of the law
to statesmen who have used their powers of state to attack the
foundations of the world's peace and to commit aggressions against the
rights of their neighbors.”
In his closing
statement for the American prosecution, July 26, 1946, Justice Jackson
hammered again at the relationship between the criminals at the bottom
and the criminals at the top:
“The gist of the
offense is participation in the formulation or execution of the plan.
These are rules which every society has found necessary in order to
reach men, like these defendants, who never get blood on their own hands
but who lay plans that result in the shedding of blood. All over Germany
today, in every zone of occupation, little men who carried out these
criminal policies under orders are being convicted and punished. It
would present a vast and unforgivable caricature of justice if the men
who planned these policies and directed these little men should escape
all penalty.”
On Oct. 1, 1946,
judgment was delivered by the Nuremberg Tribunal. From the judgment:
“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. ...Crimes
against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced.”
The simple truth is
that had President Bush not ordered an illegal war of aggression, the 24
civilians in Haditha, along with countless thousands of other Iraqis and
Americans, would be alive today.
Justice Jackson’s last
sentence in his closing statement, July 26, 1946, concerns the German
leaders on trial at the time, but speaks to contemporary American
leaders as well: “If you were to say of these men that they are not
guilty, it would be as true to say that there has been no war, there are
no slain, there has been no crime.”
Peter Dyer is a machinist who moved with his wife from California to
New Zealand in 2004.
