In 2010, despite U.S. opposition, the ICC established its jurisdiction over future crimes of aggression. In what types of cases it will do so, and in particular whether it will ever go after powerful nations that have not joined the ICC, nations that hold veto power at the United Nations, remains to be seen. Numerous war crimes, apart from the overarching crime of aggression, have in recent years been committed by the United States in Iraq, Afghanistan, and elsewhere, but those crimes have not yet been prosecuted by the ICC.
In 2009, an Italian court convicted 23 Americans in absentia, most of them employees of the CIA, for their roles in kidnapping a man in Italy and shipping him to Egypt to be tortured. Under the principle of universal jurisdiction for the most terrible crimes, which is accepted in a growing number of countries around the world, a Spanish court indicted Chilean dictator Augusto Pinochet and 9-11 suspect Osama bin Laden. The same Spanish court then sought to prosecute members of the George W. Bush administration for war crimes, but Spain is being pressured by the Obama administration to drop the case. In 2010, a judge involved, Baltasar Garz????n, was removed from his position for allegedly abusing his power by investigating the executions or disappearances of more than 100,000 civilians at the hands of supporters of Gen. Francisco Franco during the 1936-39 Spanish Civil War and the early years of the Franco dictatorship.
In 2003, a lawyer in Belgium filed a complaint against Gen. Tommy R. Franks, head of U.S. Central Command, alleging war crimes in Iraq. The United States quickly threatened to move NATO headquarters out of Belgium if that nation did not rescind its law permitting trials of foreign crimes. Charges filed against U.S. officials in other European nations have thus far failed to go to trial as well. Civil suits brought in the United States by victims of torture and other war crimes have run up against claims from the Justice Department (under the direction of Presidents Bush and Obama) that any such trials would constitute a threat to national security. In September 2010, the Ninth Circuit Court of Appeals, agreeing with that claim, threw out a case that had been brought against Jeppesen Dataplan Inc., a subsidiary of Boeing, for its role in "renditioning" prisoners to countries where they were tortured.
In 2005 and 2006 while Republicans held a majority in Congress, Democratic Congress members led by John Conyers (Mich.), Barbara Lee (Calif.), and Dennis Kucinich (Ohio) pushed hard for an investigation into the lies that had launched the aggression against Iraq. But from the time the Democrats took the majority in January 2007 up to the present moment, there has been no further mention of the matter, apart from a Senate committee's release of its long-delayed report.
In Britain, in contrast, there have been endless "inquiries" beginning the moment the "weapons of mass destruction" weren't found, continuing to the present, and likely extending into the foreseeable future. These investigations have been limited and in most cases can accurately be characterized as whitewashes. They have not involved criminal prosecution. But at least they have actually taken place. And those who have spoken up a little have been lauded and encouraged to speak up a little more. This climate has produced tell-all books, a treasure trove of leaked and declassified documents, and incriminating oral testimony. It has also seen Britain pull its troops out of Iraq. In contrast, by 2010 in Washington, it was common for elected officials to praise the 2007 "surge" and swear they'd known Iraq would turn out to be a "good war" all along. Similarly, Britain and several other countries have been investigating their roles in U.S. kidnapping, imprisonment, and torture programs, but the United States has not -- President Obama having publicly instructed the Attorney General not to prosecute those most responsible, and Congress having performed an inspired imitation of a possum.
WHAT IF THE COPS OF THE WORLD BREAK THE LAW?
Political Science professor Michael Haas published a book in 2009 the title of which reveals its contents: "George W. Bush, War Criminal? The Bush Administration's Liability for 269 War Crimes." (A 2010 book by the same author includes Obama in his charges.) Number one on Haas's 2009 list is the crime of aggression against Afghanistan and Iraq. Haas includes five more crimes related to the illegality of war:
War Crime #2. Aiding Rebels in a Civil War. (Supporting the Northern Alliance in Afghanistan).
War Crime #3. Threatening Aggressive War.
War Crime #4. Planning and Preparing for a War of Aggression.
War Crime #5. Conspiracy to Wage War.
War Crime #6. Propaganda for War.
The launching of a war can also involve numerous violations of domestic law. Many such crimes relating to Iraq are detailed in "The 35 Articles of Impeachment and the Case for Prosecuting George W. Bush," which was published in 2008 and includes an introduction that I wrote and 35 articles of impeachment that Congressman Dennis Kucinich (D., Ohio) presented to Congress. Bush and Congress did not comply with the War Powers Act, which requires a specific and timely authorization of war from Congress.
Bush did not even comply with the terms of the vague authorization that Congress did issue. Instead he submitted a report full of lies about weapons and ties to 9-11. Bush and his subordinates lied repeatedly to Congress, which is a felony under two different statutes. Thus, not only is war a crime, but war lies are a crime too.
I don't mean to pick on Bush. As Noam Chomsky remarked in about 1990, "If the Nuremberg laws were applied, then every post-war American president would have been hanged." Chomsky pointed out that General Tomoyuki Yamashita was hanged for having been the top commander of Japanese troops who committed atrocities in the Philippines late in the war when he had no contact with them. By that standard, Chomsky said, you'd have to hang every U.S. president.
But, Chomsky argued, you'd have to do the same even if the standards were lower. Truman dropped atomic bombs on civilians. Truman "proceeded to organize a major counter-insurgency campaign in Greece which killed off about one hundred and sixty thousand people, sixty thousand refugees, another sixty thousand or so people tortured, political system dismantled, right-wing regime. American corporations came in and took it over." Eisenhower overthrew the governments of Iran and Guatemala and invaded Lebanon. Kennedy invaded Cuba and Vietnam. Johnson slaughtered civilians in Indochina and invaded the Dominican Republic. Nixon invaded Cambodia and Laos. Ford and Carter supported the Indonesian invasion of East Timor. Reagan funded war crimes in Central America and supported the Israeli invasion of Lebanon. These were the examples Chomsky offered off the top of his head. There are many more.
PRESIDENTS DON'T GET TO DECLARE WAR
Of course, Chomsky blames presidents for wars of aggression because they launched them. Constitutionally, however, the launching of a war is the responsibility of Congress. Applying the standard of Nuremberg, or of the Kellogg-Briand Pact -- ratified overwhelmingly by the Senate -- to Congress itself would require a lot more rope or, if we outgrow the death penalty, a lot of prison cells.
Until President William McKinley created the first presidential press secretary and courted the press, Congress looked like the center of power in Washington. In 1900 McKinley created something else: the power of presidents to send military forces to fight against foreign governments without congressional approval. McKinley sent 5,000 troops from the Philippines to China to fight against the Boxer Rebellion. And he got away with it, meaning that future presidents could probably do the same.
Since World War II, presidents have acquired tremendous powers to operate in secrecy and outside the oversight of Congress. Truman added to the presidential toolbox the CIA, the National Security Advisor, the Strategic Air Command, and the nuclear arsenal. Kennedy used new structures called the Special Group Counter-Insurgency, the 303 Committee, and the Country Team to consolidate power in the White House, and the Green Berets to allow the president to direct covert military operations. Presidents began asking Congress to declare a state of national emergency as an end run around the requirement of a declaration of war. President Clinton used NATO as a vehicle for going to war despite congressional opposition.
In 2009, an Italian court convicted 23 Americans in absentia, most of them employees of the CIA, for their roles in kidnapping a man in Italy and shipping him to Egypt to be tortured. Under the principle of universal jurisdiction for the most terrible crimes, which is accepted in a growing number of countries around the world, a Spanish court indicted Chilean dictator Augusto Pinochet and 9-11 suspect Osama bin Laden. The same Spanish court then sought to prosecute members of the George W. Bush administration for war crimes, but Spain is being pressured by the Obama administration to drop the case. In 2010, a judge involved, Baltasar Garz????n, was removed from his position for allegedly abusing his power by investigating the executions or disappearances of more than 100,000 civilians at the hands of supporters of Gen. Francisco Franco during the 1936-39 Spanish Civil War and the early years of the Franco dictatorship.
In 2003, a lawyer in Belgium filed a complaint against Gen. Tommy R. Franks, head of U.S. Central Command, alleging war crimes in Iraq. The United States quickly threatened to move NATO headquarters out of Belgium if that nation did not rescind its law permitting trials of foreign crimes. Charges filed against U.S. officials in other European nations have thus far failed to go to trial as well. Civil suits brought in the United States by victims of torture and other war crimes have run up against claims from the Justice Department (under the direction of Presidents Bush and Obama) that any such trials would constitute a threat to national security. In September 2010, the Ninth Circuit Court of Appeals, agreeing with that claim, threw out a case that had been brought against Jeppesen Dataplan Inc., a subsidiary of Boeing, for its role in "renditioning" prisoners to countries where they were tortured.
In 2005 and 2006 while Republicans held a majority in Congress, Democratic Congress members led by John Conyers (Mich.), Barbara Lee (Calif.), and Dennis Kucinich (Ohio) pushed hard for an investigation into the lies that had launched the aggression against Iraq. But from the time the Democrats took the majority in January 2007 up to the present moment, there has been no further mention of the matter, apart from a Senate committee's release of its long-delayed report.
WHAT IF THE COPS OF THE WORLD BREAK THE LAW?
Political Science professor Michael Haas published a book in 2009 the title of which reveals its contents: "George W. Bush, War Criminal? The Bush Administration's Liability for 269 War Crimes." (A 2010 book by the same author includes Obama in his charges.) Number one on Haas's 2009 list is the crime of aggression against Afghanistan and Iraq. Haas includes five more crimes related to the illegality of war:
War Crime #2. Aiding Rebels in a Civil War. (Supporting the Northern Alliance in Afghanistan).
War Crime #3. Threatening Aggressive War.
War Crime #4. Planning and Preparing for a War of Aggression.
War Crime #5. Conspiracy to Wage War.
War Crime #6. Propaganda for War.
The launching of a war can also involve numerous violations of domestic law. Many such crimes relating to Iraq are detailed in "The 35 Articles of Impeachment and the Case for Prosecuting George W. Bush," which was published in 2008 and includes an introduction that I wrote and 35 articles of impeachment that Congressman Dennis Kucinich (D., Ohio) presented to Congress. Bush and Congress did not comply with the War Powers Act, which requires a specific and timely authorization of war from Congress.
Bush did not even comply with the terms of the vague authorization that Congress did issue. Instead he submitted a report full of lies about weapons and ties to 9-11. Bush and his subordinates lied repeatedly to Congress, which is a felony under two different statutes. Thus, not only is war a crime, but war lies are a crime too.
I don't mean to pick on Bush. As Noam Chomsky remarked in about 1990, "If the Nuremberg laws were applied, then every post-war American president would have been hanged." Chomsky pointed out that General Tomoyuki Yamashita was hanged for having been the top commander of Japanese troops who committed atrocities in the Philippines late in the war when he had no contact with them. By that standard, Chomsky said, you'd have to hang every U.S. president.
But, Chomsky argued, you'd have to do the same even if the standards were lower. Truman dropped atomic bombs on civilians. Truman "proceeded to organize a major counter-insurgency campaign in Greece which killed off about one hundred and sixty thousand people, sixty thousand refugees, another sixty thousand or so people tortured, political system dismantled, right-wing regime. American corporations came in and took it over." Eisenhower overthrew the governments of Iran and Guatemala and invaded Lebanon. Kennedy invaded Cuba and Vietnam. Johnson slaughtered civilians in Indochina and invaded the Dominican Republic. Nixon invaded Cambodia and Laos. Ford and Carter supported the Indonesian invasion of East Timor. Reagan funded war crimes in Central America and supported the Israeli invasion of Lebanon. These were the examples Chomsky offered off the top of his head. There are many more.
PRESIDENTS DON'T GET TO DECLARE WAR
Of course, Chomsky blames presidents for wars of aggression because they launched them. Constitutionally, however, the launching of a war is the responsibility of Congress. Applying the standard of Nuremberg, or of the Kellogg-Briand Pact -- ratified overwhelmingly by the Senate -- to Congress itself would require a lot more rope or, if we outgrow the death penalty, a lot of prison cells.
Until President William McKinley created the first presidential press secretary and courted the press, Congress looked like the center of power in Washington. In 1900 McKinley created something else: the power of presidents to send military forces to fight against foreign governments without congressional approval. McKinley sent 5,000 troops from the Philippines to China to fight against the Boxer Rebellion. And he got away with it, meaning that future presidents could probably do the same.
Since World War II, presidents have acquired tremendous powers to operate in secrecy and outside the oversight of Congress. Truman added to the presidential toolbox the CIA, the National Security Advisor, the Strategic Air Command, and the nuclear arsenal. Kennedy used new structures called the Special Group Counter-Insurgency, the 303 Committee, and the Country Team to consolidate power in the White House, and the Green Berets to allow the president to direct covert military operations. Presidents began asking Congress to declare a state of national emergency as an end run around the requirement of a declaration of war. President Clinton used NATO as a vehicle for going to war despite congressional opposition.
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