Haditha, Bush & Nuremberg's Laws
By Peter Dyer
June 6, 2006
Editor's Note: As the U.S. military completes its investigation of the alleged murder of 24 Iraqi civilians at the hands of U.S. Marines last November in Haditha, the next phase likely will be some form of court martial against Marines implicated in the case.
If that happens, President George W. Bush has made clear that he expects justice to be meted out to any Marine found guilty of a war crime against Iraqi civilians. But, as we anticipated in an earlier article, virtually no U.S. media attention has focused on the Nuremberg principles and Bush's culpability in the crime.
In this guest essay, Peter Dyer reviews the principles of international law that were set by U.S. and other allied jurists after World War II, rules against aggressive war that were meant to apply to the architects of illegal conflicts as well as to the grunts on the ground:
George W. Bush -- in his first public comment on the alleged massacre of 24 civilians by U.S. Marines in Haditha, Iraq, last November -- said: If, in fact, these allegations are true, the Marine Corps will work hard to make sure that ... those who violated the law -- if indeed they did -- will be punished.
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 Jacksons 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 Jacksons 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 Jacksons 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.
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