the truth is that we live in a world, and an America, in which the rule of law does not prevail and might makes right. Our leaders endlessly inform us that America is a "nation of laws not men," even though they only escape punishment for their massive violations of basic human decency and the law, as McNamara suggested, because they are too powerful to be punished.

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WORLD'S MOST EVIL AND LAWLESS INSTITUTION? THE EXECUTIVE BRANCH OF THE U.S. GOVERNMENT  BY   Fred Branfman , June 26, 2013  PART 3

Executive Lawlessness: Might Makes Right

In the movie The Fog of War, McNamara  stated  that after World War II, General Curtis Lemay, who had firebombed Tokyo killing 100,000 civilians and dropped the atomic bomb, said:

"'if we'd lost the war, we'd all have been prosecuted as war criminals.' And I think he's right. He, and I'd say I, were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side had lost. But what makes it immoral if you lose and not immoral if you win?"

Good question. U.S. leaders dropped 6.7 million ton of bombs and fired an equal amount of ground artillery in Indochina, killed 1.2 million Vietnamese civilians, wounded over a million more, leveled towns and villages, created 10 million refugees, and poisoned Vietnam's forests and soil. This was precisely "the indiscriminate destruction of cities, towns, and villages," and "other inhumane acts committed against civilian populations", as so painstakingly documented in Kill Anything That Moves, for which the U.S. executed Nazi leaders at Nuremberg. Had the same judgment been rendered on Lyndon Johnson and Richard Nixon, and other top officials in their administration like Henry Kissinger and Robert McNamara, they too would have been executed - as McNamara acknowledged.

But the truth is that we live in a world, and an America, in which the rule of law does not prevail and might makes right. Our leaders endlessly inform us that America is a "nation of laws not men," even though they only escape punishment for their massive violations of basic human decency and the law, as McNamara suggested, because they are too powerful to be punished.

Even if one believes the U.S. had a right to intervene in Indochina or Iraq, no decent human being can possibly excuse its disregard for civilian life after doing so. You do not need to be a lawyer to know this was wrong. You just need a conscience.

In addition to one's own sense of right and wrong, however, there is another basis for deciding whether Americans can "trust" the Executive Branch: its willingness to observe the rule of international law. Laboriously, over more than a century, humanity has slowly evolved a body of international law that spells out what "geopolitical evil" consists of.

This body of international law is what determines whether a given nation is or is not acting lawfully. Any nation - from North Korea to Russia to the United States - can pass its own domestic laws legalizing its war-making, e.g. North Korea giving itself the right to attack South Korea, or George Bush using the "Authorization for the Use of Military Force," authorizing him only to respond appropriately to 9/11, to justify his illegal invasion of Iraq, failure to meet the legal responsibilities of an Occupying Power, and subsequent mass murder.

But domestic laws cannot be said to truly constitute the "rule of law" unless they also conform to international standards. The second of the  Nuremberg Principles  specifically states that

"the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law."

And the third and fourth principles specifically state that the fact that one is a head of state, government official, or was acting under orders "does not relieve him from responsibility under international law."

No nation on earth has  refused  to ratify  so many laws  seeking to protect civilians in times of war, and so violated even those it has signed, than the U.S. The U.S. did ratify the "Fourth Geneva Convention Relative To The Protection Of Civilian Persons In Time Of War, 1949," but has massively violated it ever since.

Those laws seeking to protect civilians in times of war that the U.S. has refused to ratify include (1) Protocol II to the Geneva Convention, passed in 1977, "relating to the Protection of Victims of Non-International Armed Conflicts"; (2) the Biological and Toxin Weapons Convention (BWC); (3) the Rome Statute Of The International Criminal Court; (4) the Convention for the Protection of All Persons from Enforced Disappearance, which prohibits the abduction and secret detention of the state; (5) the Optional Protocol To The Convention Against Torture; (6) the Mine Ban Treaty; (7) the Cluster Bomb Treaty. And though the U.S. ratified (8) the Chemical Weapons Convention, it has gutted it by demanding exceptions for itself.

The responsibility for the U.S. failure to ratify treaties protecting innocent people is shared between the Executive Branch and U.S. Senate conservatives. But there is little doubt that if a president and giant Executive Branch agencies, especially the Pentagon, lobbied for them they would probably be ratified. In almost every case, however, it is Pentagon lobbying and presidential indifference which has prevented ratification. Former Vietnam Veterans Foundation chief Bobby Muller personally lobbied then-President Bill Clinton to sign the land mine treaty, for example. Clinton responded that it was up to Muller to "get the military on board" but showed no interest himself in trying to do so.

The Fourth Geneva Convention explicitly defines "grave breaches"which are to be considered "war crimes." Those that U.S. leaders have committed on a massive scale include:

"launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects."  (Protocol 1,  Article 85).

U.S. Executive Branch leaders have tried to escape their legal responsibilities in their current war-making by claiming they do not apply to today's "War on Terror" against "non-state" actors. But this is, of course, as valid as North Korea giving itself the right to attack South Korea. As U.N. Rapporteurs on  Torture  and  Drone  strikes have stated, there is no serious doubt that U.S. leaders have massively violated both the spirit and letter of international law seeking to protect civilians in wartime.

Among the most obvious and important violations of international law to which U.S. leaders are a signatory include:

(1) Failing to meet their responsibilities for "Protection Of Civilian Persons In Time Of War,"  including  Article 25  of the 1907 Hague Convention which states that "attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited."

In Vietnam alone U.S. leaders dropped 6.7 million tons of bombs and used an equal amount of ground artillery. As Oliver Stone and Peter Kuznick report,

"Unexploded ordnance blanketed the countryside. Nineteen million gallons of herbicide poisoned the environment. In the South, the U.S. had destroyed 9,000 of 15,000 hamlets. In the north it rained destruction on all six industrial cities leveling 28 of 30 provincial towns and 96 of 116 district towns ... Nearly 4 million of their citizens had been killed. The landscape had been shattered. The beautiful triple-canopy forests are largely gone. In 2009 land mines and unexploded bombs still contaminated over a third of the land in six central Vietnamese provinces. Over 16 million acres remained to be cleared. Beyond the terrible toll of the war itself, 42,000 more Vietnamese were killed by leftover explosives."  (15)

(2) Failing to meet their responsibilities as an Occupying Power in Iraq as required by the Hague Convention  Article 43  which states that

"the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to ensure ... public order and safety."

As discussed, U.S. Executive leaders failed to provide public order and safety; the U.S. military was revealed in the Wikileaks cables to be turning over captives to be tortured by the Iraqi police; and, of course, the U.S. was itself murdering, maiming, torturing and incarcerating the innocent. (16)

(3) Engaging in the "Crimes Against Peace"  defined  at Nuremberg to include "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances," and defined by U.S. Chief Supreme Court Justice Robert Jackson as

"the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

There is no doubt that the U.S. invasion of Iraq was such a "crimeagainst the peace." U.N. Secretary General Kofi Annan unambiguously stated, as r eported  in a BBC article entitled "Iraq War Illegal, Says Annan":

"I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."

Benjamin Ferencz,  a U.S. Nuremberg prosecutor who convicted 22 Nazis, has  stated  that a:

"prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation."

He also noted that the British deputy legal adviser to the Foreign Ministry had stated that:

"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."

Only in America could leaders convince their citizens they are not launching an aggressive war when they unilaterally attack foreign nations thousands of miles away which pose no serious threat to them.

Footnotes

(1) Robert McNamara, "The Post-Cold War World; Implications for Military Expenditures In Developing Countries," in Proceedings of the World Bank Annual Conference on Development Economics, 1991 (Washington D.C.: International Bank of Reconstruction and Development, 1991)

(2) See "Dollars and Deaths," Congressional Record, May 14, 1975, p. 14262

(3) Kindle loc., 7078ff.

(4) "The Study Mission Report for the Subcommittee to Investigate Problems Connected With Refugees and Escapees," January 27, 1975, p. 31

(5) Vietnam in Military Statistics, p. 278

(6) The Deaths of Others, Kindle loc. 3653

(7) The Deaths of Others, Kindle loc. 3311

(8) The Deaths of Others, kindle loc. 5988

(9) The two times Congress has limited Executive war-making were its vote to halt bombing over Cambodia in August 1973, and when it cut military aid to Thieu from $1.2 billion to $700 million in the fall of 1974.

(10) "United States Security Agreements and Commitments Abroad, Kingdom of Laos,"Hearings Before the Subcommittee on United States Security Agreements and Commitments Abroad of the Committee on Foreign Relations, United States Senate, Ninety-First Congress, First Session, Part 2,  October 20 , 21, 22, and 28, 1969, p. 514

(11) "United States Security Agreements and Commitments Abroad, Kingdom of Laos," ibid.p. 547

(12) Sao Doumma's wedding photo appears on the cover of Voices From the Plain of Jars, recently republished, which is the only book of the Indochina war written by the peasants who suffered most and were heard from least.

(13) "United States Security Agreements and Commitments Abroad, Kingdom of Laos," ibid., p. 484

(14) " Refugee and Civilian War Casualty Problems in Indochina" . Staff report of the Subcommittee on Refugees and Escapees, Senate Judiciary Committee, September 28, 1970

(15) The Untold History of the United States, p. 387, 395

(16) In The Death Of Others, John Tirman makes a convincing case that the 110,000 Iraqi dead estimated by the Iraq Body Count organization is far too law since they were limited to the relatively few deaths reported in English language newspapers, and located in Baghdad is far too low. He notes it depends upon English language newspapers, that most murders occur outside Baghdad in areas where few journalists visit, media coverage of Iraq plummeted post-invasion, and people often do not report deaths, particularly to the Iraqi authorities they mistrust. He also makes a strong case for believing the Johns Hopkins University estimates published in the Lancet scientific journal of more than 600,000 Iraqi dead. (Kindle loc. 5797 ff.)

--  Fred   Branfman 's writing has been published in the New York Times, the Washington Post, the New Republic, and other publications.

"It was by staying sane that you carried on the human heritage" (Winston Smith, 1984) 
Fred   Branfman
www.trulyalive.org

Authors Bio:
Fred Branfman's writing has been published in the New York Times, the Washington Post, Harper's, and many other publications. He is the author of Voices From the Plain of Jars