Advice Goddess Blog
« Previous | Home | Next »

The War Crimes President
Can George Bush be tried for war crimes after he leaves office? Benjamin Ferenccz, the chief prosecutor of the Nuremburg Trials, says there's a case for trying Bush for the "supreme crime against humanity, an illegal war of aggression against a sovereign nation." Jan Frel writes for Alternet:

Writing for the United Kingdom's Guardian, shortly before the 2003 invasion, international law expert Mark Littman echoed Ferencz: "The threatened war against Iraq will be a breach of the United Nations Charter and hence of international law unless it is authorized by a new and unambiguous resolution of the Security Council. The Charter is clear. No such war is permitted unless it is in self-defense or authorized by the Security Council."

Challenges to the legality of this war can also be found at the ground level. First Lt. Ehren Watada, the first U.S. commissioned officer to refuse to serve in Iraq, cites the rules of the U.N. Charter as a principle reason for his dissent.

Ferencz isn't using the invasion of Iraq as a convenient prop to exercise his longstanding American hatred: he has a decades-old paper trail of calls for every suspect of war crimes to be brought to international justice. When the United States captured Saddam Hussein in December 2003, Ferencz wrote that Hussein's offenses included "the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws."

Ferencz isn't the first to make the suggestion that the United States has committed state-sponsored war crimes against another nation -- not only have leading war critics made this argument, but so had legal experts in the British government before the 2003 invasion. In a short essay in 2005, Ferencz lays out the inner deliberations of British and American officials as the preparations for the war were made:

U.K. military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court (ICC) in The Hague had entered into force on July 1, 2002, with full support of the British government. Gen. Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in The Hague."

Ferencz quotes the British deputy legal adviser to the Foreign Ministry who, in the lead-up to the invasion, quit abruptly and wrote in her resignation letter: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution … [A]n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."

While the United Kingdom is a signatory of the ICC, and therefore under jurisdiction of that court, the United States is not, thanks to a Republican majority in Congress that has "attacks on America's sovereignty" and "manipulation by the United Nations" in its pantheon of knee-jerk neuroses. Ferencz concedes that even though Britain and its leadership could be prosecuted, the international legal climate isn't at a place where justice is blind enough to try it -- or as Ferencz put it, humanity isn't yet "civilized enough to prevent this type of illegal behavior." And Ferencz said that while he believes the United States is guilty of war crimes, "the international community is not sufficiently organized to prosecute such a case. … There is no court at the moment that is competent to try that crime."

As Ferencz said, the world is still a long way away from establishing norms that put all nations under the rule of law, but the battle to do so is a worthy one: "There's no such thing as a war without atrocities, but war-making is the biggest atrocity of all."

The suggestion that the Bush administration's conduct in the "war on terror" amounts to a string of war crimes and human rights abuses is gaining credence in even the most ossified establishment circles of Washington. Justice Anthony Kennedy's opinion in the recent Hamdan v. Rumsfeld ruling by the Supreme Court suggests that Bush's attempt to ignore the Geneva Conventions in his approved treatment of terror suspects may leave him open to prosecution for war crimes. As Sidney Blumenthal points out, the court rejected Bush's attempt to ignore Common Article 3, which bans "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment."

And since Congress enacted the Geneva Conventions, making them the law of the United States, any violations that Bush or any other American commits "are considered 'war crimes' punishable as federal offenses," as Justice Kennedy wrote.

Posted by aalkon at July 10, 2006 11:09 AM

Trackback Pings

TrackBack URL for this entry:


Whether or not he can be tried for war crimes, he almost certainly won't be.

People said similar things about Clinton RE: Kosovo, Bush I - Panama, etc. Nothing ever comes of it.

Posted by: LYT at July 10, 2006 12:14 PM

> war against Iraq will be a
> breach of the United Nations
> Charter and hence of
> international law

Dear friends, that's a punch line! "International law" is a phrase that makes people moist and runny because it speaks to their Disneyland hopes about how the globe should work. But most nations are run by the meanest sumbitch in the valley, or the idiot nephew of the guy who used to own the plantation. The aggregate of their opinion and decency is not too impressive. People forget that the United States is the biggest island of sanity on a crazy, lawless planet. I'm sorry you have problems with this nation; I do too. But let's not forget how good we have it here, and that we stay despite having choices. Our love for our Constitution is bounded because it's practical. Our adoration for international law is boundless because it's a fantasy.

All I know about Ferencz comes from watching him on C-Span for an hour last year. He made his name (quite honorably) at Nuremberg. So of course he's going to be a supporter of international law... Terry Bradshaw believes in the National Football League, too. In his television appearance, Ferencz said that law was the highest value. This is a fine thing for a lawyer to believe, but the rest of us don't have to agree. And most people don't.

> "[W]ar-making is the biggest
> atrocity of all."

That is not true.

Posted by: Crid at July 10, 2006 1:48 PM

I'm still amazed that intelligent and supposedly compassionate people will continue to excuse a murderous (plastic shredder), WMD using (Kurds), war instigating (Kuwait) dictator simply because he owns a "sovereign" country. They continue to praise an organization (UN) that passed nineteen resolutions slapping the wrists of said despot while doing their utmost to avoid doing anything and putting the most tyrannical nations on the human rights councils.


Posted by: Oligonicella at July 10, 2006 4:33 PM

Ahh - it must be "criminal mastermind day". Today, Mr. Bush is a brilliant man. Tomorrow, he'll be the dopey puppet of a special interest.

Anyway: if you have to try someone, go after your Senator and Congressmen, because those louts are still shirking their plain duty and letting the President use the War Powers Act so they won't have to grow a spine.

Posted by: Radwaste at July 10, 2006 5:46 PM

I'm still amazed that intelligent and supposedly compassionate people will continue to excuse a murderous....

You've got it wrong. We "intelligent and [..] compassionate" opponents of the war don't excuse Saddam's past actions. Not at all. We say, however, that they were not the business of the USA or the UK to punish, since Saddam represented no credible threat to either nation.
Very nasty things are being perpetrated in Zimbabwe right now, not to mention Darfur. Should the USA be forming a sham "coalition" and marching into those nations too? If not, why not?

Posted by: Stu "El Inglés" Harris at July 11, 2006 7:05 AM

Stu has it exactly right. No civilized person can be a fan of Saddam -- or excuse the horrible things he did. But, either we are the world's policeman or we aren't the world's policeman. And if we are the world's policeman, we can't just police the world's gas station...there are other neighborhoods much more in need.

Posted by: Amy Alkon at July 11, 2006 8:16 AM

Frogwash. Did you ever praise our bloody little incursion into Somalia a few years ago? If the United States did start losing soliders in any of those hotspots, you'd be screaming like a banshee that we had no interests in play.

But of course we do have interests and responsibilities in Iraq. From about 15 different perspectives, the global future goes better without that guy in control of that nation.

Posted by: Crid at July 11, 2006 9:53 AM

you'd be screaming like a banshee...

No, I don't go in for that stuff. My position is that the USA and the UK have no right to invade either Iraq, Somalia, Zimbabwe, Sudan or any country that poses no credible threat to them. "Having interests" is a laughably poor excuse for such cowboy behaviour. If anybody's going to act as the world's policeman, let it be the UN, after sufficient debate.

Posted by: Stu "El Inglés" Harris at July 11, 2006 11:30 AM

> the UN, after sufficient debate.

Goddammit! Stu!


> the UN, after sufficient debate.


Stu, what could that possibly mean?

Posted by: Crid at July 11, 2006 5:29 PM

Leave a comment