Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » August 2005 » Bush, Cheney, Rumsfeld, Wolfowitz, Feith, et al.: war criminals

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08/30/2005: Bush, Cheney, Rumsfeld, Wolfowitz, Feith, et al.: war criminals

I've several times in this pulpit voiced my opinion that the waging of the war in Iraq constitutes the crime of waging aggressive war, in violation of the precedents set by the International Military Tribunal convened in 1945. Just in case y'all don't want to take my word for it, here's a data point in support of the proposition that I haven't completely flipped my wig: Michael Mandel, an expert in (among other subjects) the law of war and international criminal law at Osgoode Hall Law School, York University, Toronto, is of the same opinion:

This month marks the 60th anniversary of the London Charter of the International Military Tribunal, the basic legal document for the trial of the major Nazi war criminals that commenced in November 1945.

One of the great innovations of that charter was the charge of "Crimes Against Peace," defined as the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances."

In a famous passage from their judgment of the following year, the four judges of the tribunal (American, British, French and Russian) declared the crime of aggressive war to be "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

The innovation of the crime of aggressive war was in fact denounced by the Nazi defendants as "ex post facto law," but Justice Robert Jackson, America's prosecutor at Nuremberg, had an answer for this: Illegal wars were nothing more than mass murder, and there was nothing ex post facto about the crime of murder. Here's what Jackson said to the tribunal in his opening statement on Nov. 21, 1945:

Any resort to war any kind of war is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive war illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes.

The crime of aggression is nowhere to be seen in modern international criminal codes, and leading the charge against including it has been the United States itself. It's easy to see why. The war in Iraq, for one example, constitutes the quintessential war of aggression, falling very far short, rhetoric apart, of any justification in self-defense or authorization by the Security Council of the United Nations, the only two accepted legal grounds for war in international law. The U.N. Charter is one of those "international treaties" mentioned in the London Charter of 1945.

And with the best estimates of the cost in Iraqi civilian lives ranging between 25,000 (Iraq body count) and 100,000 (Johns Hopkins School of Public Health, Baltimore), all well within prewar predictions, it seems perverse to keep on insisting that this was a "humanitarian intervention," itself a dubious legal ground for war. In fact, it amounts to rather a lot of counts of murder on Jackson's definition.
So when are we going to do the right thing, impeach Bush, Cheney, Rumsfeld and their co-conspirators, and deliver them in handcuffs to The Hague to stand trial for their crimes?

Never, alas, because there's no justice in the world. Fortunately for my sanity, I spent enough time working in the "justice" system to learn that....

Hat tip to Brian Leiter, who referred to a Osgoode Hall news release about Professor Mandel's column; a few seconds with Google unearthed a direct reference to it.

Len on 08.30.05 @ 12:40 PM CST

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