War Crimes: The Posse Gathers(1)
Diverse forces are assembling to bring Bush administration officials
to account for war crimes. Cindy Sheehan, Gold Star Mother for Peace, insists:
"We cannot have these people pardoned. They need to be tried on war crimes
and go to jail." (2) Paul Craig Roberts, Hoover Institution senior fellow
and assistant secretary of the treasury under Ronald Reagan, charges Bush with
"lies and an illegal war of aggression, with outing CIA agents, with war
crimes against Iraqi civilians, with the horrors of the Abu Ghraib and Guantanamo
torture centers" and calls for the president's impeachment. (3) Anne-Marie
Slaughter, dean of the Woodrow Wilson School at Princeton and former president
of the American Society of International Law, declares: "These policies
make a mockery of our claim to stand for the rule of law. [Americans] should
be marching on Washington to reject inhumane techniques carried out in our name."
Can such disparate forces as the peace movement, conservative advocates of
the rule of law, and human rights advocates join to halt high government officials
demonstrably engaged in criminal enterprise? Can they reach out and appeal to
the deep but vacillating commitment of the American people to the national and
international rule of law? Or will the Bush administration divide the posse
and retain for itself the mantle of defender of international law and the U.S.
War Crimes—It's Not Just Torture
As Allied armies advanced into Germany, British Prime Minister Winston Churchill
declared captured Nazi leaders outlaws subject to summary execution. But U.S.
President Harry Truman, a former small-town judge, insisted instead on formal
trials with "notification to the accused of the charge, the right to be
heard, and to call witnesses in his defense." The result was the Nuremberg
War Crimes Tribunal and the start of a revolution that, in U.S. Justice Robert
Jackson's words, replaced a "system of international lawlessness"
with one that made "statesmen responsible to law." It is this revolution
that may be catching up with the administration of George W. Bush.
During the Cold War era, Nuremberg was little more than a dimming memory. Charges
by Richard Falk, Marcus Raskin, and others that U.S. actions in Vietnam constituted
war crimes helped swell opposition to the war, but U.S. officials were never
held to account for their actions. Starting in the 1990s, however, the revolutionary
principle that government officials must be responsible to law became an integral
part of the human rights and democratization movements that swept much of the
world. Milosevic was driven out of office and turned over to an international
war crimes tribunal. Pinochet was captured in Spain and eventually sent back
to Chile to face charges as a torturer. The International Criminal Court was
established to try war crimes. Henry Kissinger wrote in alarm in 2001 that "in
less than a decade an unprecedented movement has emerged to submit international
politics to judicial procedures" and has "spread with extraordinary
Critical to this unprecedented movement has been an evolved relationship between
national and international law. In the past, international law was seen as a
potential infringement on national sovereignty. (The Bush administration is
trying to resuscitate that view—for example, in its attacks on the International
Criminal Court.) But today the two are increasingly intertwined and mutually
reinforcing, much like state and national law in the United States. Many new
democracies see institutions like the International Criminal Court as bulwarks
against the restoration of tyranny in their own countries—much as the
U.S. Constitution guarantees that its member states will be republics, not monarchies.
Toward this end, many countries have incorporated aspects of international law
into their national statutes—the U.S. War Crimes Act, for example, makes
grave breaches of the Geneva Conventions a crime under U.S. law, punishable
in some cases by death.
Several overlapping strands have coalesced into a body of law regarding war
crimes. One is the prohibition on aggressive war. As the Nuremberg Tribunal
put it, "To initiate a war of aggression" is " the supreme international
crime." A second strand is humanitarian law, which protects both combatants
and civilians from unnecessary harm during war. The devastation associated with
World War II led to the recognition of "crimes against humanity,"
which involve acts of violence against a persecuted group. War crimes were codified
in the four Geneva Conventions of 1949 and have been further developed in subsequent
protocols and agreements.
The Nuremberg Tribunal was criticized on the grounds that it represented not
impartial justice but "victor's justice," that it provided impunity
for the bombing of civilians and other heinous acts committed by the victors,
and that it prosecuted people "ex post facto" for acts that had not
been declared crimes when they were committed. These charges had considerable
justification. But today there is a body of national and international law that
clearly defines war crimes and a set of procedures for applying them comparable
to the procedures used to judge other crimes. Those are the standards by which
allegations of American war crimes must be judged.
Law must—and the international law of war crimes now does—provide
a single standard of judgment that can be applied without discrimination to
different cases. If an act is a war crime, then it is a war crime whether it
is perpetrated by Saddam Hussein or by George Bush.
American War Crimes in Iraq and Beyond
The charge that the U.S. attack on Iraq was a war crime was raised even before
the war began. More than 1,000 law professors and U.S. legal institutions organized
in opposition to the U.S. war crime of launching an "aggressive war in
violation of the UN Charter" against Iraq. Violation of international law
was also a central theme in worldwide demonstrations against the war. The attack
on the illegality of the war has been revived by the leak of the Downing Street
memo; 130 members of Congress joined Rep. John Conyers in demanding that the
Bush administration come clean about the invasion—supported by a half
million citizen signatures gathered in barely a week. "Scootergate"
is fundamentally about the cover-up of White House lies justifying the war.
Illegal detention and torture are also war crimes. Starting with the exposure
of prisoner abuse at Abu Ghraib and Guantanamo, cascading revelations have established
that these cases exemplify a pattern of abuse authorized at the highest levels
of government. Human rights groups like the Center for Constitutional Rights,
the American Civil Liberties Union, and Human Rights First sued in U.S. and
foreign courts against Defense Secretary Donald Rumsfeld and others for breaching
the U.S. Constitution and the Geneva Conventions. The Senate's 90-9 vote to
restore the military's traditional prohibition against torture and inhumane
treatment of prisoners—prompting the Bush administration to threaten a
veto—sets the stage for a major confrontation over adherence to both the
Geneva Conventions and the U.S. Constitution.
Despite massive cover-ups, the evidence is emerging: the Bush administration
planned an illegal war of aggression against Iraq, conned the American people
and their representatives into supporting it, conducted an illegal occupation
marked by massive violation of Iraqi human rights, and justified and promoted
systematic torture. Now the White House seeks opportunities for further criminal
attacks against Iran, Syria, and other countries around the world, issuing threats
to use death squads and nuclear weapons at will. These acts violate American
law, international law, and the basic values of the American people. They are
crimes against peace and crimes against humanity. They are outlawed by the Geneva
Conventions, the UN Charter, and treaties against torture and other human rights
abuses. They are war crimes, and those who ordered and condoned them are war
War Crimes and the Rule of Law
The Nuremberg principle that statesmen are "responsible to law" extended
to international relations the principle of "government under law"
already enshrined in the U.S. Constitution. Indeed, no principle of American
democracy is more fundamental or more widely accepted than the precept that
no one is above the law. But a central endeavor of the Bush administration has
been to put the government, and more particularly the president, above both
U.S. and international law.
This was made clear in President Bush's refusal to apply the Geneva Conventions
to prisoners of war captured during the Afghanistan War. Soon after, the United
States refused to adhere to UN Charter requirements regulating the use of force.
Then the Justice Department argued that courts would not have jurisdiction over
Guantanamo detainees even if they were being summarily executed. The Ninth Circuit
Court commented, "the U.S. government has never before asserted such a
grave and startling proposition," a position "so extreme that it raises
the gravest concerns under both American and international law." (6)
As Rep. Elizabeth Holtzman put it, the claim that the president is above the
law "strikes at the very heart of our democracy. It was the centerpiece
of President Richard Nixon's defense in Watergate—a defense that was rejected
by the courts and lay at the foundation of the articles of impeachment voted
against him by the House Judiciary Committee."
It is ironic that such a doctrine should emerge from a movement that calls
itself "conservatism" and purports to have limitation of government
as its fundamental principle. Indeed, it is more than ironic; it is totally
hypocritical. And this claim of unlimited presidential powers has turned many
genuine conservatives—ranging from former government and military officials
to the many corporate lawyers defending Guantanamo inmates—against the
Law entails more than an individual or social preference; it obligates individuals
and institutions to act. Describing his evolving viewpoint, Daniel Ellsberg
wrote that he saw the U.S. involvement in Vietnam "first as a problem;
then as a stalemate; then as a crime." Each of these perspectives called
for "a different mode of personal commitment: a problem, to help solve
it; a stalemate, to extricate ourselves with grace; a crime, to expose and resist
it, to try to stop it immediately, to seek moral and political change."
A focus on government-sponsored crime has the potential to open a discourse
with those across the political spectrum—from civil rights advocates to
military attorneys—who believe that government must not be exempt from
the rule of law. It draws on a democratic, constitutionalist tradition and the
powerful popular conviction that law and law enforcement are necessary and that
they must apply to all, including the government and its highest officials.
Bush administration malfeasance can be described as a problem of democracy,
of human rights, of usurpation, of the rule of law, of constitutionalism, or
of war crimes. These terms all point to the same fundamental problem: those
in charge of the political and military apparatus of the U.S. government are
using it to further a criminal enterprise in violation of national and international
Each step of this criminal behavior has been contested by different constituencies
and on somewhat differing grounds. If those constituencies could unite around
a common frame, they could halt the entire Bush enterprise. The role of the
Bush administration in promoting war crimes in Iraq and beyond can provide that
unifying frame. Resistance to such government criminality can unify diverse
constituencies who believe in rule of law.
Accusations of American war crimes have long been a staple of left-wing groups
like ANSWER and the International Action Center . But many mainstream peace
activists have been wary. As one well-known leader put it earlier this year:
"War-crimes talk pushes people away. People don't want to hear it. Polls
indicate that the population says under some circumstances torture is OK, and
that what's being done is not torture. People blame bad apples. They want to
prosecute the bad apples so they can have a cleaner war. Besides, they say,
we're dealing with horrible people who cut off people's heads. What is our end
goal? If our objective is to stop the occupation, then war crimes is not the
These are legitimate concerns. However, they imply not that the issue of war
crimes shouldn't be raised but rather that it should be raised wisely with due
respect for the feelings of the American people. War crimes accusations should
not be presented as anti-American but rather as an appeal to the American people
to share the right and obligation of all people to hold their governments accountable.
By rejecting the Bush administration's attempt to blame torture and other abuses
on "bad apples" at the bottom, accountability can be placed squarely
on those at the top. The crimes of U.S. opponents can be acknowledged without
justifying those perpetrated in Washington. Illegal detention, prisoner abuse,
and torture can be presented as part of a larger pattern of war crimes. As Justice
Jackson noted at Nuremberg, a war of aggression differs from other war crimes
only in that "it contains within itself the accumulated evil of the whole."
If the peace movement can connect with the American public's belief in the rule
of law, the days of George Bush's criminal enterprise will be numbered.
The war crimes frame also provides the peace movement a way to reach out to
Americans on the basis of moral and religious convictions. Religious opponents
of the war, such as the ecumenical Fellowship of Reconciliation and the Catholic
St. Patrick's Four, have frequently stressed international law as a basis for
their actions. The faith-based group Reclaiming the Prophetic Voice calls it
a way to reach out to "the people in the pews."
Some sectors of the human rights movement have been outspoken opponents of
the Iraq War from before its start. The Center for Constitutional Rights, for
example, organized lawyers nationwide to declare it illegal under national and
international law. But other human rights advocates have tried to separate torture
and prisoner abuse as a "human rights issue" from the broader questions
of war and occupation, leading some to portray their objective as "a clean
war." Human rights advocates need to recognize that the use and legitimation
of torture by the Bush administration is just an extreme manifestation of a
broader illegal enterprise.
Both the peace and the human rights movements need to pay more attention to
current and planned future war crimes. Last year's attacks on Fallujah were
condemned as war crimes around the world, but there was not much response in
the United States. The withholding of food and water to civilian populations
in recent attacks on Tal Afar are clear violations of international law that
would have provided a clear opportunity to raise the question of war crimes
as they occurred. (8) Plans to turn targeting of U.S. air strikes
over to the Iraqi military, recently revealed by Seymour Hersh in the New Yorker,
could be challenged as likely to greatly increase civilian casualties. (9)
U.S. plans to use nuclear weapons against Iran, openly discussed by Vice President
Cheney, surely constitute a war crime. These ongoing daily events provide a
target both for action and for public education.
The Bush administration's crimes of aggression, occupation, and torture are
all part of one sordid story. That story can best be told when these actions
are called by their proper name—war crimes.
Checks and Balances
There are four obvious objectives for a movement against U.S. war crimes:
Halt the crimes. This requires withdrawing U.S. forces from
Iraq, closing the U.S. prison at Guantanamo Bay, releasing or immediately
putting on trial all captives, and shutting down U.S.-controlled death squads
all over the world.
Bring war criminals to justice. Impunity breeds crime. The
mechanisms for investigation, prosecution, and trial of criminals must be
applied to anyone—from the president on down—who is responsible
for war crimes. Every agency charged with investigating governmental crimes
must end its paralysis and perform its duties. Those responsibilities should
include congressional committee hearings on war crimes, a Sept. 11-style investigative
commission, appointment of a special prosecutor, and an in-depth congressional
investigation into whether impeachable offences have been committed.
Draw the lessons. Unchecked presidential authority and flouting
of international law led the United States to a national catastrophe in Vietnam
, but the obvious lessons were deliberately obscured or denied. We are paying
the price today. Only an extensive and extended public confrontation with
the implications of U.S. war crimes can lay the basis for averting similar
catastrophes in the future.
Establish barriers to future war crimes. The Bush administration's
war crimes were made possible by the dismantling of legal and constitutional
barriers to government secrecy, deceit, manipulation, and lawlessness. Their
perpetuation has been enhanced by the dismantling of legal restrictions on
presidential authority and the seduction or intimidation of those whose duty
it is to enforce such restrictions. The U.S. democratic heritage and recent
experiences of many countries in eliminating dictatorships point to specific
institutional arrangements—from independent prosecutors to battlefield
legal supervision and from freedom-of-information laws to international courts
empowered to hear war crimes charges—that can be effective in preventing
war crimes in the future.
A national repudiation of war crimes and an end to impunity for those who order
them could open a new chapter in America 's relations with the rest of the world.
It might help the United States re-engage with Iraq and the rest of the Middle
East on an entirely new basis—one cleansed of the legacy of Fallujah and
Abu Ghraib. It would evidence America's good faith if Washington utilized international
law to address such genuine problems as terrorism and weapons of mass destruction.
Ending impunity for those responsible for U.S. war crimes would help restore
the role of international law in constraining self-aggrandizement by any nation.
After being convicted for pouring his own blood on a Lansing, NY military recruitment
center, war protestor Peter DeMott declared the real crime to be that "our
government conspired against the American people and lied us into an illegal
and immoral war. The task is now upon us all to better understand the criminality
of our government's aggression and, as citizens, to act accordingly to demand
that our government adheres to international law." (10)
As Cindy Sheehan put it to more than 100,000 war protesters assembled in Washington,
DC, "We'll be the checks and balances on this out-of-control criminal government."
1. Jeremy Brecher and Brendan Smith, with Jill Cutler, are
the co-editors of In the Name of Democracy: American War Crimes in Iraq and
Beyond (New York: Metropolitan/Holt, 2005) <www.americanempireproject.com>
and co-founders of War Crimes Watch.
2. Mike Ferner, "What One Mom Has to Say to George Bush,"
August 9, 2005, available at <http://vitw.org/archives/974>.
3. Paul Craig Roberts, "Impeach Bush Now," available
September 3, 2005.
4. Quoted in Robert Kuttner, "Will Bush Wriggle Out of
This One?" Boston Globe, September 10, 2005.
5. Henry Kissinger, "The Pitfalls of Universal Jurisdiction:
Risking Judicial Tyranny," Foreign Affairs, July-August 2001.
6. See Gherebi v. Bush, Ninth Circuit, December 18, 2003.
7. Quoted in Norman Solomon, "Cindy Sheehan's Message
Repudiates George Bush—and Howard Dean," Common Dreams, August 13,
8. The UN's Special Rapporteur on the Right to Food recently
described the withholding of food and water by U.S. forces in Iraq as "a
clear violation of international law." Eulalia Iglesias, "UN Food
Expert Condemns U.S. Tactics in Iraq," Inter Press Service, 11/30/05.
9. Seymour M. Hersh, "Up in the Air: Where Is the Iraq
War Headed Next?" New Yorker, December 5, 2005.
10. Press release, September 26, 2005.
11. "Thousands in Wash Protest War, Econ Globalization,"
Reuters, September 24, 2005.
Jeremy Brecher and Brendan Smith,
with Jill Cutler, are the co-editors of In the
Name of Democracy: American War Crimes in Iraq and Beyond (New York: Metropolitan/Holt,
and co-founders of War Crimes Watch. They are frequent contributors
to Foreign Policy In Focus (www.fpif.org).
For More Information
How the World Can Help Americans Halt Bush Administration War Crimes
By Jeremy Brecher and Brendan Smith (June 2005)
An "Affirmative Measure" to Help Prevent the Commission of War Crimes
by the Bush Administration
By Jeremy Brecher (December 28, 2004)