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The arrest of former Bosnian Serb leader Radovan Karadzic in July 2008 for war crimes allegedly committed in the 1990s took the Western (especially United States) media by storm, a case that was upheld as a watershed moment in the struggle for global justice. Demonized by the Western media as an “architect of genocide” in the former Yugoslavia, Karadzic was quickly extradited from Serbia to the Hague to be prosecuted before the NATO-funded International Criminal Tribunal for former Yugoslavia (ICTY), a court that had already put on trial 66 Serbs for assorted war crimes. Despite a paucity of evidence showing that Karadzic was actually involved in anything resembling genocide, the media and political elites were quick to celebrate his arrest as a triumph of international legality. Whatever Karadzic’s ultimate fate before this politically-charged tribunal, the truly odd feature of this drama is that a relatively minor figure like Karadzic could be the target of so much moralizing scorn –likened by some to another Hitler – while leaders of the most powerful war machine in history, planners of an illegal, catastrophic war and occupation in Iraq lasting almost six years, are treated with the dignity and respect of statespersons instead of being held accountable for criminal behavior dwarfing anything that took place in Yugoslavia. Within American political and media culture, of course, it has long been an article of common belief that war crimes must be the work of evil others, never Americans whose taken-for-granted noble intentions serve to immunize them legal accountability.
Might it be possible that President George Bush and his co-conspirators in military aggression will some day be held to the same international standards as the designated enemies – to the very norms that U.S. leaders themselves so righteously champion when it comes to Serbs and others? Could Bush, vice-president Dick Cheney, secretary of state Condoleezza Rice, and the entire gang of neocon ideologues responsible for bringing the Iraq debacle to the world ever be judged according to the principles of Nuremberg, the Geneva Conventions, the U.N. Charter, and other canons of international law? Within prevailing American discourse, the very idea that U.S. leaders might be prosecuted for war crimes is, more than ever, beyond the scope of tolerable debate.
A recent dissenting opinion has been cast by Vincent Bugliosi, whose book Prosecuting George W. Bush for Murder lays out a compelling, relentless argument that the president must be brought to justice for taking the U.S. to war based on a series of flagrant lies that resulted in the death of several thousand American soldiers and at least a hundred thousand innocent Iraqi civilians. A criminal prosecutor best known for his success in the Charles Manson case, Bugliosi insists he will not rest until the despicable Bush is prosecuted and convicted of first-degree murder – a charge, built exclusively around U.S. deaths, he believes will be easy to prove before any fair-minded American jury. The goal is to put the president behind bars, a well-deserved lifetime purgatory.
There is no need here to recapitulate the litany of horrors the Bush administration has unleashed in Iraq; it is enough to suggest a reading of Bugliosi’s powerful moral, legal, and political indictment of Bush that spans several chapters. Bush emerges from this book as the most dishonorable of criminals among U.S. presidents — a shallow, mendacious, ruthless human being capable of unleashing barbaric actions as a matter of routine government policy, always with a smile. Bugliosi goes further: Bush stands as the main protagonist of the worst crimes ever committed in American history – not just the deaths of Americans and Iraqis but the purposeful destruction of an entire country that never posed a threat to the U.S. Fully aware of abundant military intelligence to the contrary, a cynical and power-mad Bush repeatedly told the American pubic of a “gathering threat”, of a vulnerable U.S. facing an imminent “day of horror” as Iraq gathered its arsenal of frighteningly lethal weapons, ready to unleash its “mushroom cloud” of annihilation at any moment. Bugliosi is unsparing in his criticism. The idea that “these young men [sic] from relatively poor families are fighting a war and dying for multimillionaires like Bush and . . . Cheney, and that companies have made billions . . . of dollars off their blood in contracts, is enough to make any decent human being sick to the stomach.” For Bugliosi, the sickness is compounded by the fact that the war and occupation have only harmed the interests of the American people while giving rise to a new generation of insurgents and terrorists fiercely hostile to those same interests. Several years of nightmarish violence, Bugliosi stresses, have yet to dent the hardening surface of Republican callousness.
Bugliosi writes that continuous death and destruction have done little to disturb Bush’s own calm, relaxed, even cheerful demeanor. In fact rising to the level of a “war president” has apparently given the commander-in-chief a special raison d’etre. He absolutely knows that the carnage is worth the prize. Through years of war and occupation, as the dead bodies pile up, Bush remains the same fun-loving, backslapping guy as during his fraternity days, incapable of feeling sorrow and pain for what he had done — yet another sign of psychopathic disregard for life and moral arrogance bred of wealth and power. In Bugliosi’s words, “ . . . this small man of privilege has had a smile on his face through it all”, his behavior going “so far beyond acceptable human conduct that no moral telescope can discern its shape, form, and nature.” (pp. 71, 80) Only a “human monster” like Bush could carry on with his splendid lifestyle as thousands of innocent victims suffered the unspeakable terror of an immoral, illegal war planned and waged without regard for its predictable horrors.
The sad truth is that, despite a long record of criminal behavior, the political leaders and operatives of Empire has been forced to confront relatively little political dissent, much less moral outrage, today as in the past. The vast majority of Americans remain either fearful of voicing opposition or simply indifferent to the havoc their country routinely brings to other countries. Bugliosi readily acknowledges that most people cannot accept the idea that a U.S. president might be guilty of war crimes or be prosecuted for murder. After all, the ideological hold of bipartisan consensus means both Democrats and Republicans will go along with the criminality, in this case passing resolutions to demonize Iraq and allocating hundreds of billions of dollars to sustain the occupation. It has been a simple matter for Bush and his accomplices to escape scrutiny and investigation, whether by the media or the political system, whatever the evidence of culpability. And no legal bodies have rushed to indict Bush for crimes carried out in Iraq even as comparatively minor culprits like Saddam Hussein and Slobodan Milosevic – along with the aforementioned Karadzic – have been energetically prosecuted by U.S.-controlled tribunals. The question is: can the Iraqis, at least, hope for justice in the case of George W. Bush, or must superpower exceptionalism once again carry the day?
That Bush and his lieutenants are guilty of first-degree murder – indeed mass murder, not to mention assorted other crimes – should be easy to demonstrate beyond reasonable doubt. Using Nuremberg standards, what needs to be shown is that the U.S. planned and executed crimes against peace, instigating war against a sovereign nation that posed no obvious military threat to the invader. This is the “supreme international crime”, with the aggressor legally responsible for all crimes that follow – in this case, crimes that have left most of an entire nation in ruins. Moreover, as Bugliosi emphasizes and is hardly controversial, the invasion itself was based on a series of flagrant lies that should be simple enough to demonstrate before any independent tribunal. One flaw in Bugliosi’s argument – though not central to his indictment – is the claim that Bush’s shameless mendacity in the buildup to war was somehow unique or unprecedented. It is undeniably true that “ . . . to further his own personal agenda, Bush lied to the country, and on the very gravest of matters concerning war and peace.” (p. 107) There were no weapons of mass destruction and the consensus of American intelligence agencies was that Iraq was no menace to the U.S. or to any of its Middle East neighbors. Yet Bugliosi is out of touch with historical reality when he states (p. 109) that we have no prior record of such criminal presidential conduct in American history. As to the question “Has any American president ever engaged in such monumentally criminal and deadly activity?”, Bugliosi’s response is a definitive “no”. (p. 130)
Had Bugliosi been more attentive to the historical record, he would know of many precedents: Polk in Mexico, McKinley in the Philippines, Wilson in World War I and Central America, Truman in Korea, Johnson and Nixon in Vietnam, the elder Bush in Panama, and Clinton in the Balkans. All these presidents spun grandiose lies to manipulate public opinion in favor of imperial wars in situations where the targeted nations posed no actual threat to U.S. security. Viewed thusly, rather than signifying a departure Bush’s lies fit neatly into a longstanding pattern of American military aggression justified by false claims.
More vital than such historical concerns, however, is the matter of legal venue for prosecuting Bush. Assuming that Bush is guilty as charged, exactly where should an alleged war criminal of his stature be brought to justice? What charges should be filed, and what juridical forum offers the best hope of success? There are clearly no quick and easy answers to such questions.
For Bugliosi, however, the legal modus operandi is ironclad: try Bush, as lone assassin, in a domestic court on first-degree murder charges for the deaths of American military personnel led to believe, falsely, they were risking their lives for a legitimate and righteous cause. The proceedings against Bush, according to Bugliosi, should not be overly difficult: reduced to a flimsy pretext of self-defense, the former president would almost surely be convicted by any competent district attorney working before an unbiased jury.
Since the case would revolve around the killing of American troops in Iraq – a domestic court has no jurisdiction over Iraqi deaths – the venue could be any state or federal district willing to indict Bush once he leaves office. Bugliosi recognizes that Bush’s actions deserve impeachment and removal from office, but conviction for murder is deemed preferable since the former president would be sent to prison, if found guilty, an outcome far more appropriate to the crime.
In a case of this sort the defendant need not be shown to have committed the murders himself; under the vicarious liability rule, it is enough to prove that he ordered, or in some way was complicit in, the murders – a much easier course of legal action. In sending troops to Iraq, where they were destined to face violent resistance, Bush can be said to have acted with malice aforethought. As for the military personnel themselves, their only realistic options were to fight or face court-martial and likely personal ruin, and of course few chose the latter. They were victims of a criminal agenda, that is, battlefield assignments lacking any moral, political, or legal justification.
As Bugliosi sees it, Bush alone is responsible for the murders although he does concede that others (Cheney, Rumsfeld, Rice, et. al.) could eventually also be brought to trial. In any event, once in the courtroom, Bush would probably refuse to take the stand. If he chose to do so “ . . . the cross-examination would be such that they’d have to carry the arrogant son of privilege off the stand on a stretcher.” (p. 166) For those seeking justice on behalf of the thousands of victims of an unjust war, this scenario would bring long-awaited outpourings of euphoria.
Before addressing the complex issue of judicial venue, it is necessary to confront the related, and thorny, question of victim status that Bugliosi has designated for American participants in Iraq. While Bugliosi duly mentions (though understating) Iraqi casualties, his case revolves around the several thousand U.S. deaths (murders) that must be the focus of any domestic prosecution. There is a serious question whether this legal strategem can be sustained on either legal or moral grounds. Without doubt, American killed during Bush’s imperial venture can be viewed as in some sense victims, having seemingly little choice but to follow superior orders into combat, however illegal those orders might have been.
However, insofar as the military aggression itself was undeniably criminal – and U.S. troops clearly instruments of such criminality – to what extent must American troops (whatever their fate in battle) be regarded as agencies rather than victims of criminality? Can military aggressors, especially those materially involved in an imperial agenda, truly be regarded as innocent, victimized parties?
Bugliosi, unfortunately, never addresses this crucial issue. At Nuremberg, for example, all German government and military personnel were understood to be part of a vast “criminal enterprise” although only top leaders (for various tactical reasons) were selected for prosecution. The German war machine was viewed by the Allies as a monolithic structure within which, depending on a person’s role in the institutional hierarchy, differing levels of guilt could be ascertained. At Nuremberg anyone who participated whatsoever in crimes against peace was assumed culpable, and as is well known following orders was no defense (although it could have mitigating effects for lower-ranking personnel). To have defined Wehrmacht troops involved in efforts to conquer Poland and the Soviet Union – in the destruction of such cities as Warsaw, Leningrad, and Stalingrad – as simple murder victims (notwithstanding Hitler’s egregious schemes and lies) would have been met with derisive laughter by tribunal jurists as well as political and media observers at the scene. If victim status was denied to any German, forced to deal with a far more brutal and authoritarian Nazi regime, on what grounds might it be extended to U.S. personnel in a context where the risks and sacrifices associated with dissent are comparatively mild? Further, can any previous historical cases be identified where invading and occupying forces were granted such victim status? The Japanese in China? The French in Algeria? The Soviets in Afghanistan? The Chinese in Tibet? The answer, of course, is that none can be found. The idea that Americans ought to be considered somehow exceptional in this regard – their militaristic behavior warranting not blame or guilt but special dispensation – is probably best understood as another manifestation of superpower morality.
Yet Bugliosi’s preoccupation with American deaths probably has less to do with a moral double-standard than with simple legal calculation – that is, a straightforward tactical concern for how best to make Bush accountable for his crimes. If the president is responsible for U.S. military casualties in Iraq, then he can be prosecuted for murder within any jurisdiction where victims were recruited into the armed services. As mentioned, Bugliosi believes the case against Bush, once it goes to trial, to be a slam-dunk, especially given the probability that co-conspirators like Rumsfeld and Rice will scurry to testify against their former boss in order to save their own hides. A domestic jurisdiction, he believes, offers the best hope of putting Bush in prison, of punishing the man crucially responsible for launching what many consider the worst calamity in U.S. foreign-policy history.
Granting the premise of Bush’s culpability – and momentarily leaving aside the question of a strict focus on American deaths – a domestic legal strategy appears doomed from many angles. Although Bugliosi stresses that his agenda in writing the book is not “political”, the reality is that everything about the prosecution of a former president for acts of murder carried out as wartime commander-in-chief is destined to be political from beginning to end. As Bugliosi acknowledges, American political culture has long indulged the criminal behavior of U.S. leaders, especially where such behavior is directed against groups or nations viewed as evil threats (in this case both Arabs and Muslims).
Put starkly, could a gathering of legal professionals (district attorney, assistants, judge) be found anywhere in the U.S. to take on such a case? Could a jury be found that might be prepared to find its former president guilty of murder beyond reasonable doubt?
Given the access of governing elites to vast legal and political (not to mention media) resources, could such a prosecution survive what is certain to be an endless series of technical, legal, and ideological roadblocks sure to decisively prejudice both methods and outcome? From the perspective of this reviewer, such questions contain built-in answers: for a conservative, ultrapatriotic America still in the grips of a war against terrorism – and for a country long hardened to costly and bloody foreign interventions – the prospects of convicting and punishing a former president for murder of his own troops in Iraq would seem virtually nil, even should a workable venue be found. Despite his indisputable legal expertise, therefore, Bugliosi reveals a certain naivete: decidedly political conditions can be expected to work powerfully against the guilty verdict he appears so confident of winning.
Bugliosi’s choice of domestic jurisdiction poses further questions. The first is that, following the Nuremberg principles, a focus on crimes against the invading and occupying Americans – the very agency of death and destruction in Iraq – has no basis in law or morality. Although thousands have tragically died owing to Bush’s military venture, U.S. troops (along with private contractors) always had some element of choice in whether to participate, in whether to follow unlawful orders – a point that seems more telling in the case of an all-volunteer military. The second problem goes to the very nature of Bugliosi’s proposed legal case: in limiting charges to the murder of American troops, a domestic venue inevitably excludes far more egregious crimes Bush and his co-conspirators have committed, including the war of aggression and its horrid aftermath. Excluded from legal purview would be assorted war crimes like those leveled against Milosevic and Karadzic: wanton attacks on civilian populations, mistreatment of prisoners, use of torture, basic violations of the U.N. Charter. These and other crimes can be prosecuted on the basis of abundant evidence already gathered from many sources. Their effective legal pursuit, however, would require the kind of international jurisdiction begun at Nuremberg and continued through later proceedings inspired by that historic tribunal. One commonly-accepted Nuremberg principle is that no political or military figure (whatever their power or status) can be regarded as immune from prosecution for war crimes.
Aside from a brief and dismissive reference to the International Criminal Court (ICC), established on the Rome Statutes in 1998, Bugliosi never discusses the likelihood of charging Bush before a venue outside the U.S. In other words, the possibility of charging George W. Bush for serious war crimes he has committed in Iraq is completely ruled out. Sadly, for prospects of global justice, the U.S. has indeed rejected the ICC, insisting that Americans stationed anywhere in the world should be exempt from laws and rules applicable to personnel from other nations. The U.S. has always preferred to set up its own ad hoc, politically-controlled tribunals that serve its own geopolitical agendas. Regarding the ICC, Bugliosi is correct to point out that its jurisdiction does not extend to nations not party to the ICC treaty and that, in any case, it is a court of last resort after domestic courts (where a defendant lives) fail to take up a case. While the ICC can achieve jurisdiction over citizens of any nation, this requires approval of the U.N. Security Council where the U.S. can easily veto any charge brought before it. Bugliosi’s further and more pertinent argument – that prosecuting the Bush administration for war crimes is off the table – cannot, however, be sustained. According to Bugliosi, “War crimes are considered to be large-scale atrocities and crimes against humanity committed during wartime and thus far have been limited to genocide . . .mass torture, and rape.” He adds that such atrocities are not relevant to the Iraq situation, while instances of torture (at Abu Ghraib and elsewhere) cannot easily be traced back to Bush himself. (pp. 269-71.)
The difficulties with these arguments are far-reaching. Bugliosi is simply wrong about international-law precedent: war-crimes charges of various sorts have been brought against many defendants throughout the postwar years, going back to Nuremberg itself. Charges have never been limited to genocide. At Nuremberg, for example, leading Nazis were put on trial for carrying out aggressive warfare – labeled crimes against peace – later codified in the U.N. Charter and other treaties. The Germans were also charged with killing, destroying, and plundering not justified by “military necessity”, along with warfare and atrocities against civilians – violations subsequently laid out in the Geneva Conventions. At Nuremberg not only government and military elites but also industrialists and propagandists were put on trial and convicted, some receiving death sentences. There is absolutely no reason – leaving aside the bias of superpower morality – that such charges, beginning with crimes against peace, could not be leveled against members of the Bush administration for their criminal actions linked to war and occupation in Iraq, assuming a proper venue is found. In recent years the ICTY at the Hague has put on trial dozens of Serbs (and a few others) for myriad war crimes extending far beyond accusations of genocide. Charges have included “grave breaches of the Geneva Conventions” to include willful killing, torture, and inhumane treatment of prisoners and others, the wanton destruction of civilian population centers, willful damage to local institutions, and the unlawful confinement of persons during armed conflict. With the indictments of Milosevic, Karadzic, and others, the ICTY made clear that persons could be held responsible not only for crimes on the basis of “direct responsibility” but also “command responsibility” as well as “complicity-based responsibility”. In other words, a defendant can be prosecuted for aiding and abetting criminal acts – not just the more transparent planning, instigation, ordering, and implementing of such acts. Similar charges, again far short of genocide and mass torture, have been filed at other venues, including the Iraq Tribunal that tried and convicted Saddam Hussein along with several co-conspirators in Baghdad.
Bugliosi’s preoccupation with presidential criminality raises yet another issue: why hold Bush exclusively accountable for crimes involving dozens – more likely hundreds – of co-conspirators? We know that leading officials of the White House, Pentagon, State Department, intelligence agencies, and think tanks like the American Enterprise Institute contributed substantially to an unlawful war and occupation. Military commanders in the field were similarly instrumental to the U.S. imperial venture, including not only top officials like Generals Ricardo Sanchez and David Petraeus but those officers who planned the assault on Fallouja and who presided over prisoner abuses at Abu Ghraib and other locales. We know that presidential decisions required networks of leaders and operatives without which even the most limited objectives were bound to fail. In the case of Iraq, thousands of Americans have participated, directly or indirectly, in crimes against peace, wanton attacks on civilians, murder, torture, and assorted crimes linked to the unlawful occupation itself. Why limit criminal indictments to Bush alone when the trail of culpability is so lengthy? If we address only the question of torture, for example, guilt extends from prison guards who actually carried out the abuse (many of whom have been tried, convicted, and punished) to their commanding officers and finally to higher-ups in Washington (including Alberto Gonzales and John Yoo) who contrived bogus legal pretexts for practices framed as “extraordinary rendition”. Bugliosi argues that Bush himself could probably not be prosecuted for torture since the evidence he authorized torture is not sufficient. (pp. 269-70) If so, this would actually weaken Bugliosi’s singular case against Bush insofar as a long chain of command (even without Bush) can readily be established.
Strong evidence of White House-endorsed torture in Iraq, however, reveals that Bugliosi is simply wrong to think that Bush could not be prosecuted for violations of international law — whether in Iraq, Afghanistan, Guantanamo, or other sites. In their desperate search to broaden executive power and expand their capacity to wage a global war on terrorism, Bush, Cheney, and others sought out legal opinions allowing them to circumvent laws against torture. There were ongoing and systematic attempts to undermine widely-held legal norms, affirmed as far back as the Hague Conventions of 1899 and 1907, prohibiting torture and general mistreatment of prisoners. Retired Army General Antonio Taguba, who in 2004 investigated torture at Abu Ghraib, said “the commander-in-chief and those under him authorized a systematic regime of torture . . . A government policy was promulgated to the field whereby the Geneva Conventions and the UCMJ were disregarded . . . There is no longer any doubt as to whether the current administration has committed was crimes.” So hundreds of cases of torture and related abuses documented at Abu Ghraib, Afghanistan, and Guantanamo were found to be the product of routine policies set at the very summit of the U.S. government, in flagrant violation of international law. For those crimes American personnel throughout the chain of command, extending to President Bush and his cohorts, should face indictments. To believe, however, that criminal prosecution and conviction might occur in any domestic court, surrounded by a political and media culture fully embracing superpower morality and U.S. exceptionalism, is to embrace legal (and political) fantasy. Justice for Iraqi victims can only be secured at an international venue.
With impeachment and domestic prosecution both ruled out and ICC jurisdiction essentially nullified, what then are the prospects for bringing leading members of the Bush administration to justice for their criminality in Iraq? A special tribunal of the kind established at Nuremberg, Tokyo, the Hague, Rwanda, and Baghdad is improbable given the extreme difficulty of locating any supporting institution or country. Such courts have always been tools of the leading and victorious powers, while U.S. outlawry in Iraq was in fact supported by such G-8 nations as Britain, Germany, Japan, and Italy from the outset. An independent truth commission set up to investigate and publicize government crimes, like those in South Africa and Argentina, could set in motion a much-needed process of national contrition and redemption, but such a body would have no legal capacity to prosecute, convict, and punish offenders. A truth commission for the U.S., moreover, seems highly unlikely: nothing of the sort has been established to deal with such historical transgressions as slavery, extermination of Native Americans, or the legacies of death and destruction left in the Philippines, Central America, Indochina, and elsewhere. Yet another possibility – already constituted – is an autonomous “tribunal” formed by progressive global citizens moved by moral conscience, along lines of the Bertrand Russell Tribunal for Vietnam in 1967. In 2003 a wide coalition of activists from around the world created the World Tribunal on Iraq (WTI) to investigate war crimes, concluding on the basis of extensive testimony and research that, for example, the U.S. invasion and occupation of Iraq was undeniably illegal and illegitimate. The WTI “jury”, of course, is entirely and unapologetically partisan but its findings have resulted from impressive expertise in the areas of global politics and international law. The WTI has no mandate from any government or world body and possesses no legal standing to prosecute defendants.
Could Bush and his subordinates therefore have a clear path to immunity from prosecution for the gravest war crimes? Could these arrogant warmongers ultimately be held accountable to the same rule of law they so self-righteously demand of everyone else in the world? Recent developments actually provide some cause for optimism, though even the best remaining options will be flawed. In 1984 the U.N. Convention against Torture, signed by the U.S., requires states to prosecute or extradict anyone directly or indirectly involved in torture, with even heads of state potentially liable. For many years it was commonly believed that political leaders and their lieutenants were immune from criminal prosecution, however unlawful their behavior. They were above the norms of international law. While specific tribunals were created to prosecute the Nazis – and more recently such leaders and Milosevic and Hussein — hundreds of others could presumably remain free of the threat of legal action. The jurisdictional terrain changed somewhat in October 1998, when former Chilean dictator Augusto Pinochet was arrested in England on a Spanish warrant claiming he murdered and tortured Spanish citizens in Chile (among the reported 3000 he killed during his reign from 1973 to 1990). The Pinochet case set off historically decisive legal battles in London, culminating in a landmark decision in March 1999, with the House of Lords ruling (6-1) that no former head of state was entitled to immunity. Relying on key principles of the Torture Convention, the London decision provided what had seemed to be missing: worldwide universal jurisdiction for war crimes and crimes against humanity. While Pinochet himself was eventually allowed to return to Chile on medical grounds, he was legally hounded until his death in 2006. The larger point, however, concerns the precedent set in London: no political leader is immune from prosecution for war crimes. Although Bugliosi never so much as discusses this precedent, there is no compelling reason to exempt George Bush or any other suspected war criminal from norms of worldwide universal jurisdiction. This case affirmed the notion (obviously troublesome for U.S. elites) that international law is not meant to protect or serve the interests of sovereign power but rather to provide justice for victims of criminal behavior.
In rejecting immunity for retired heads of state, the London judgment, as Philippe Sands writes in Lawless World, “provides decisive and strong support for an emerging new international legal order, which reflects human-rights concerns and interests of victims over other interests.” When weighed against the geopolitical ambitions of the Bush administration, the hundreds of thousands of Iraqi victims (or thousands, in the case of torture) surely deserve their day in court. After 1999 all heads of state (and subordinates) realized they could be held legally accountable for criminal actions they initiated or enabled while in power, and might well be subject to indictment when traveling abroad. In the wake of the Pinochet case, some former leaders – following the example of Henry Kissinger – might be forced to curtail or abandon foreign travel. As Sands writes: “What Henry Kissinger really objects to – although he cannot quite bring himself to say it in so many words – is the loss of sovereign and executive power, and its subjection to the limits of the rule of law by an independent judiciary.” Insofar as the supranational concept of justice can achieve widespread legitimacy, American leaders could find the “rule of law” they rhetorically uphold to be a double-edged sword. Efforts by the Bush administration to subvert the ICC and other independent jurisprudence might eventually backfire. While this stratagem for bringing the Bush clique to justice is hardly ironclad, its chances are far superior to those obtaining at any domestic venue.
The idea of supranational legality carries forward some of the best principles of Nuremberg – principles historically devalued by having been subordinated to Western-power interests. Nuremberg, after all, was supposed to be a triumph of higher morality over sheer military force, a great leap forward in the pursuit of global justice. Opening the tribunal, chief prosecutor Robert Jackson (an American) said “the privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” To this Jackson prophetically added: “And let me make clear that while the law if first applied against German aggressors, the law includes, and if it is to serve a useful purpose, it must condemn aggression by any other nation, including those which sit here now in judgment.” At Nuremberg the victorious Allies condemned an entire Nazi system comprised, for the most part, of apparently “normal” people just following orders, conforming to institutional expectations, just doing their job. Indeed most of the defendants had been far removed from their crimes, none ever having killed human beings themselves. The Allies, of course, took a harsh view of German criminality, moving to prosecute, convict, and in some cases sentence to death Nazis who had participated in the machine of death. As mentioned, while most of the top German leaders could not be tried, the tribunal settled (with a few exceptions) on lesser figures in the hierarchy as a matter of expediency. And most were found guilty, to varying degrees, of contributing to the “supreme crime” of military aggression. Thus Joachim von Ribbentrop, who served as Hitler’s foreign minister, was convicted on every count and sentenced to hang.
Optimists believed that Nuremberg would set a far-reaching precedent, codifying an authoritative body of international law while also deterring future crimes of aggression as well as various battlefield atrocities. Unfortunately, such optimism did not bear fruit as principles of universality never saw the light of day, always trumped by superpower interests. The U.S. in particular has consistently set and followed its own global rules throughout the postwar era, routinely violating treaties, intervening militarily as it chose, attacking civilian targets, deploying and using inhumane weapons, and carrying out banned practices like torture and unlawful incarceration. U.S. leaders have consistently behaved as outlaws, always with impunity and never fearful of legal consequences – confirming prosecutor Jackson’s worst fears. And the Washington military behemoth operates according to institutional and ideological premises similar to those of the Nazis: mass obedience to a barbaric enterprise managed by “normal” people pursuing what they believe to be noble aims, the invasion and occupation of Iraq being just the most recent instance of outrageous criminality. By Nuremberg standards, not only should Bush, Cheney, Rice, and Rumsfeld be tried as war criminals, so too should perhaps hundreds of their government and military underlings. Such mass murderers ought to be stripped of immunity as a modest step toward global justice. The domestic prosecution of George Bush (and co-conspirators?) for murder, a seductive idea with its narrow legal and moral limits, can never advance this objective.
CARL BOGGS is the author of The Hollywood War Machine (Paradigm) just and Imperial Delusions: American Militarism and Endless War, which appeared last year. He can be reached at: firstname.lastname@example.org