It seems strange for European leaders to be celebrating the capture of a war criminal, Radovan Karadzic, so soon after they were shaking hands with another, who so far has not had to go through the trouble of growing out his hair and selling new-age medicine.
"This is a historic moment," German Chancellor Andrea Merkel said of the arrest of the Serbian, whose body count is thought to be upwards of 10,000. "The victims must know: massive human rights violations will not go unpunished."
Two weeks earlier she had "a very interesting exchange of view" with George Bush, whose body count is thought to be upwards of half a million and counting. There was no mention of reassurances for his victims.
The Karadzic seizure "underscored Serbia’s European calling," Merkel said, just a fortnight after she had a greater criminal by the right hand and let him get away.
But wait a minute, you say. Karadzic killed systematically. He targeted innocent people. He killed people because of their ethnicity. Shouldn’t this be factored into our judgment of him? Maybe. Or maybe killing civilians is killing civilians. Maybe the fact that you don’t do body counts, that you slaughtered so many people so indiscriminately that there is no way to precisely tabulate the number, should be weighed as well.
Whether having people lined up before shooting them should carry a different moral valence from dropping bombs on them is a consideration that might be brought up at the International Criminal Court of the United Nations.
There is no reason the International Criminal Court should not adjudicate prima facie cases of aggressive wars. It was wars of aggression, after all, that Nuremberg’s International Military Tribunal found "evil." A war of aggression, it said, is "not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." It was Supreme Court Justice Robert Jackson, chief U.S. prosecutor at Nuremberg, who coined the phrase supreme international crime.
The first four of the seven Nuremberg Principles, adopted in 1950, are a seminal attempt to hold individuals accountable for their actions within the larger system of the nation-state: Principle 1 holds that the individual is responsible for his war crimes; Principle 2 says you’re not off the hook just because what you did was okay by the laws of your country; Principle 3 posits that acting as head of state is no defense, and Principle 4 says that following orders is not a defense either.
So what’s an international crime? The Principles lay out three kinds: crimes against peace (such as "planning, preparation, initiation or waging of a war of aggression"), war crimes ("murder," "ill-treatment of prisoners of war," "plunder of public or private property," "wanton destruction of cities, towns, or villages"), and crimes against humanity ("murder…and other inhumane acts done against any civilian population.")
If we are to mean anything at all as a nation, we must hold the Iraq War up to the light of these principles. We must let an international court decide which of these crimes were committed by whom, and we must hold accountable the individuals responsible for this war.
The Nuremberg trials were open to two main critiques from contemporary observers: they smacked of victor’s justice, because the Allies were not tried for their war crimes, and they were based on ex post facto laws (devised after the crimes were committed). Both points have their validity. And yet putting Bush and company on trial is immune from both charges, because the Principles have been in place for 60 years now, and it is not a question of hauling the vanquished before the victorious. This is the perfect opportunity to establish that no nation is above international law.
Here at home, people are finally starting to talk about impeachment, now that the Administration is in its gloaming. But impeaching Bush is like discharging Timothy McVeigh from the military or kicking Jeffrey Dahmer out of the Boy Scouts. It’s something we should probably do while we’re waiting for the guy to be arrested.
Writing in The New York Times Book Review of March 28, 1971, Times reporter Neil Sheehan argued that the U.S. presidents, generals and advisers who had launched the war of aggression in Southeast Asia should be put on trial. "The cleansing of the nation’s conscience and the future conduct of the most powerful country in the world towards the weaker peoples of the globe demand a national inquiry into the war crimes question," he wrote. "History shows that men who decide for war, as the Japanese militarists did, cannot demand mercy for themselves. The resort to force is the ultimate act."
What defense would we hear from lawyers for the Bush Administration and his henchmen (or puppeteers, let the evidence determine)? That the Iraq War was self-defense? One argument for putting Bush and Cheney in the dock of an international court is that judges there might not swallow that line as easily as did the U.S. press and public.
BRENDAN COONEY is an anthropologist living in New York City. He can be reached at: firstname.lastname@example.org