The United States has become widely unpopular around the world because of the war in Iraq, carried out in apparent violation of international law. But in the US there has been little public debate over the morality and legality of the war. The mainstream critics of the war at home complain not about the illegitimacy of the war, but mainly about the fact that the US seems to be losing and not winning it. Even those outraged about the war are often less than clear about the nature of its illegality.
Yet there should be no confusion over this. What constitutes an illegitimate war was largely defined by the United States itself in its application of international law to the Nazis put on trial at Nuremberg after World War II.
When most people are asked about the Nuremberg Tribunal and its indictments against Nazis, they usually recall the phrases 'war crimes' and 'crimes against humanity.' And these are indeed two of the three types of crimes set out by the Tribunal. But what most people forget is that the first set of crimes actually listed are 'crimes against peace.' The idea that there can be crimes against peace has been largely forgotten, yet it is more crucial than ever -- in light of the Iraq war and the 'war against terror' -- that such crimes be recognized and prosecuted.
According to the Nuremberg Tribunal "crimes against peace" include the following: "1. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assuurance; 2. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (1)."
Thus 'Crimes against peace,' as well as 'war crimes' and 'crimes against humanity,' are part of the principles of international law recognized in the Charter of the Nuremberg Tribunal, officially adopted by the International Law Commission of the United Nations in 1950.
As part of the treaty obligations of the United States, according to Article VI of the Constitution, these principles have the force of law in the US. To violate these principles is to violate the law -- an impeacheable offense for the president and vice-president, and arguably the most serious of all, in the case of Iraq involving the deaths of hundreds of thousands of people.
Nazi Germany launched wars of aggression against Poland, the Soviet Union, and a number of other sovereign states, and for this and other crimes the major Nazi leaders tried at Nuremberg were convicted, eleven of them receiving the death sentence.
In 2003 the United States appears to have done exactly what Nazi Germany did. It launched a war of aggression -- what is now euphemistically called a war of choice -- against Iraq. The US acted unilaterally, without specific UN authorization to invade Iraq. Kofi Annan, former General Secretary of the UN, has called the US invasion of Iraq 'illegal.'
The Bush administration started out claiming the war was justified by the imminent threat posed by Sadaam Hussein's possession of weapons of mass destruction, including nuclear weapons.
But the possession of such weapons is not in itself a cause for invasion; if it were, the US itself would be liable to invasion by other countries. In fact, subsequent events have shown that Sadaam Hussein did not possess such weapons, and that the administration had no evidence he did.
The Bush administration further claimed that some kind of link existed between Sadaam Hussein and various terrorist organizations, including Al Qaida, through which alleged weapons of mass destruction could be obtained by terrorists and used against the United States.
But even if Sadaam Hussein or any head of state had such weapons and gave them to terrorists, that would not constitute an act of war. Article 51 of the UN Charter allows member states an inherent right of self-defense only if 'an armed attack occurs' against one member state by another. Iraq did not attack the US.
The Bush administration's final claim is that the Iraq war is part of a larger 'war on terror.' It described the attacks of 11 September 2001 as 'another Pearl Harbor,' justifying in self-defense a global 'war on terror.'
But 9/11, unlike Pearl Harbor, was not an armed attack by a foreign power, and conspicuously not an act of war. The analogy is false.
A terrorist attack is a domestic, not an international affair, insofar as it cannot be shown to be carried out by one state against another. Article 2 of the UN Charter states that 'nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.'
9/11 was not an act of war but of criminal mass murder, equivalent to the Oklahoma City bombing. Osama Bin Laden should be compared not to Tojo or Hitler but to Timothy McVeigh. The perpetrators of 9/11 should have been investigated and prosecuted under established domestic and international criminal law.
Instead the Bush administration with Congressional approval launched a phony, unnecessary, and illegal 'war on terror,' using it as an excuse to brush aside international law abroad and the Constitution at home.
Through the Patriot Act, the Homeland Security Act, the recent Military Commissions Act, and other acts, our government has established new extra-legal procedures and courts, in violation of international law, where torture is allowed and human rights are ignored.
Even worse, Bush administration officials have attempted, unconstitutionally, to apply these procedures to American citizens -- including Jose Padilla and Yaser Hamdi -- and though temporarily rebuffed by the courts, the administration continues to claim this authority. If they succeed, habeas corpus, perhaps our most fundamental liberty, will be suspended and tyranny will replace the rule of law.
All of these evils flow from the trumped up war on terror, touted as the ultimate justification for wars of aggression abroad and the eclipse of liberties at home -- a state of affairs all too reminiscent of the fascist regimes of the 1930s. They too made excuses and cited spurious provocations.
It seems evident, therefore, that major administration officials, and perhaps even those in Congress who voted in support of the Iraq war and for war appropriations, are liable to indictment for 'crimes against peace.'
Administration officials in particular may also be liable for indictment for 'war crimes' and for 'crimes against humanity.' The use of torture and the holding of individuals as 'enemy combatants' appear to be 'war crimes' in violation of the Geneva Conventions, as does the plunder of property in Iraq, including corporate takeovers of Iraqi resources, including preferential accerss to oil, and the looting of its museums. The tacit US support for ethnic cleansing in various parts of Iraq may also constitute a 'crime against humanity.'
If the president and vice-president are liable for indictment for crimes against peace, war crimes, and crimes against humanity -- all violations of international law -- this would appear to place them in blatant violation of US law, and open them to impeachment under the constitution for 'high crimes and misdemeanors.'
Impeachment is a proper constitutional remedy for abuse of power. If President Clinton could be impeached for perjury over a personal matter, how much more compelling is impeachment in the event of crimes against peace, war crimes, and crimes against humanity?
Until the United States applies to itself the same standards it has applied to others, particularly at Nuremberg, it will remain a pariah state in the world. And until such time, the US will continue to suffer from the moral confusion of living with criminal actions it refuses to recognize.