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Washington Post Warns That Prosecuting Crime of Aggression Might Deter It
By David Swanson
When my friend Jodie Evans recently tried to make a citizen's arrest of Karl Rove, he declared the Downing Street Minutes to be "a complete fabrication." Of course, this "complete fabrication" was actually the minutes of an official meeting held by then British Prime Minister Tony Blair. Blair and Bush were asked about the document at a White House press conference in June 2005 and did not deny its authenticity. But that document is one of the lesser pieces of evidence that we were lied into the Iraq War. I have laid out the overwhelming case in my book, "Daybreak."
The worst damage done by our continuing to imagine that there's some sort of debate over whether the war was really based on lies, is that we haven't been able to focus on something more important. Whether the war was based on lies (as of course it was) or on gospel truth or on the mistakes of a bunch of morons, has absolutely no bearing on the indisputable fact that the war was a criminal act of aggression. Of course, lying to Congress or defrauding Congress is a felony, but it is one of the lesser crimes committed during this particular spree. Attacking another country, whether or not it has weapons of any kind, is the most serious crime on the books. If, as all serious studies suggest, over a million people have been killed by the invasion and occupation of Iraq, then there have been over a million murders. Whether anyone ever lied about anything has no bearing on that fact. The same goes, on a smaller scale thus far, for the U.S. invasion and occupation of Afghanistan.
Following World War II, the victors prosecuted the vanquished for the crime of aggression. The International Military Tribunal at Nuremberg concluded that aggressive war 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." The Chief Prosecutor at Nuremberg was U.S. Supreme Court Justice Robert H. Jackson who made many statements stressing universality and opposing justice only for the currently vanquished nations. Jackson said:
"The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, 'under ... the law.' And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment."
Slowly, over the decades since Nuremberg, first with U.S. assistance and later despite U.S. resistance, progress has been made toward establishing international enforcement of the ban on aggressive war to which the world's nations agreed in the United Nations Charter in 1945. The Rome Statute of the International Criminal Court (ICC), adopted in 1998, places the crime of aggressive war under the court's jurisdiction. However, the ICC is not to try anyone for the crime until the nations that are parties to the court agree on a definition and details. Those nations, which do not include the United States, will likely iron out those details this year. Whether the court will then find the independence and integrity to prosecute the world's most powerful empire will remain to be seen.
The Washington Post, which famously dismissed the Downing Street Minutes in 2005 as "old news" but now prints not one word opposing Rove's "complete fabrication" comment, on Friday published a column by a former Bush-Cheney administration official arguing that the ICC should never prosecute wars of aggression. Doing so, he warns, might make it harder to commit such crimes in the future.
Think I'm kidding?
Go read "International Criminal Court doesn't need power over 'aggression'" by Stephen G. Rademaker. He was an assistant secretary of state from 2002 to 2006 and now works for a lobbying company that has represented weapons companies and foreign nations in Washington, D.C., including the nation of Serbia. Rademaker begins his free advertisement for international criminality thus:
"The International Criminal Court's member countries will gather in May in Kampala, Uganda, where they will spend most of their conference considering whether to expand the court's jurisdiction to include the 'crime of aggression.' This is a bad idea on many levels."
Those quotation marks around "crime of aggression" have arisen in the United States since the days of Nazi prosecutions, of course, as Robert Jackson's rhetoric has faded from memory. Skipping down a little, Rademaker writes:
"Proponents say that previous efforts to prevent war, such as the Kellogg-Briand Pact of 1928 and the U.N. Charter of 1945, failed because they were toothless. Empower this court to prosecute national leaders who order acts of aggression, they contend, and aggression finally will be deterred."
Has anyone made that promise? I haven't seen it. But we prosecute petty crimes by little people without demanding proof that all such future crimes will be deterred. We take the serious possibility that some of them might be deterred as sufficient grounds to prosecute. And if certain individuals declared that they would not be parties to our body of domestic law, they would not gain immunity. On the contrary, they would be carefully watched and aggressively prosecuted. If, on the international level, the ICC had existed at the time of Nazi Germany, and that nation had chosen not to support the court, the court could still have prosecuted Germans. In fact, we invented a court out of nothing purely for the purpose of prosecuting Germans. Yet Rademaker's concern is that the world's leading criminal aggressors might be prosecuted in the future despite choosing not to support the ICC:
"The ICC would be empowered to prosecute the leaders of any country that commits aggression on the territory of a member. In the future, then, although Russia is not a member, its leaders could be prosecuted for acts of aggression against a member, such as Georgia. Likewise, the leaders of Israel (another non-member) could be prosecuted for future operations on the territory of members such as Jordan. For the United States, a non-member, there would be implications any time the use of force was contemplated on the territory of a member. To put this in perspective, consider some of the countries where we have used force in the past two decades: Panama, Bosnia, Serbia, Afghanistan. All are ICC members today."
And Iraq joined in 2005 and then unjoined under U.S. pressure, pressure that will not always remain, pressure to prevent prosecution of a crime for which there is likely to be no statute of limitations. Rademaker is apparently concerned that the United States would have to cease invading countries. He is remarkably honest about the status quo he hopes to preserve:
"Washington is confident that it did not commit aggression in those countries. But Washington has always been the sole judge of whether a particular use of force was justified under international law. If the ICC acquires jurisdiction to prosecute aggression, the court would be responsible for deciding whether it agrees, say, that a Manuel Noriega or Slobodan Milosevic provoked U.S. action against him."
Actually, this would only be the case if, bizarrely, the national parties to the ICC decide to add a loophole for cases of "provocation." The U.N. Charter does not. The ICC would not have to judge whether irrelevant U.S. excuses justified U.S. crimes. The ICC would simply have to prosecute the crimes.
"Should it disagree with the U.S. judgment, the court would be empowered to prosecute the 'perpetrators.' Certainly these would include the president, the secretary of defense and other top officials such as the chairman of the Joint Chiefs of Staff. Members of Congress who voted to authorize or fund the operation also would be potential defendants."
This is supposed to sound very different in American ears from how it would sound if written about top Nazi officials. Justice Jackson's wise point a half century back was that it shouldn't. It should sound like a resounding warning to members of Congress faced yet again in the coming weeks with the demand to further fund two wars of aggression and various aggressive strikes by unmanned drones. It should even sound like a warning, a moral if not a legal one, to those of us who vote for those congress members and fail to pressure them to obey the law.
"The Obama administration took office eager to ease U.S. hostility toward the ICC. But the potential effects of this proposal have prompted the administration to argue against it. At a minimum, U.S. officials have said, a U.N. Security Council finding that aggression occurred should be required before the ICC could act."
At a minimum? The United States has veto power in the U.N. Security Council and has never been shy about using it. Obama (and Rademaker) are asking for the power to veto the prosecution of U.S. officials. If that's a minimum request, I'd hate to imagine what the maximum would have been.
"With such pleas apparently falling on deaf ears, the administration reportedly is debating whether to seek some sort of compromise in Kampala. It would be a mistake, however, for Washington to bargain on the margins of the conference. While empowering the ICC to prosecute aggression would be bad for the United States, it would be worse for the court itself."
Ahhh. Yes, of course. Our concern is for the well being of the court, not our own immunity. We wish the court well and want to look out for it. We'd be willing even to "liberate" it, perhaps, if needed.
"The ICC is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression. If Russia were to attack Georgia again, would the ICC really indict Vladimir Putin and Dmitry Medvedev? Or would it concoct a reason to look the other way? Which would be worse for the court's credibility and prospects for long-term success?"
The answer to that one is easy. If the court is to gain credibility and succeed, it must be authorized to prosecute the most serious international crimes, and it must do so. And those steps must be taken in that order. If there were no possibility of the second step following the first, then nothing of what Rademaker has written above about dangers to U.S. officials would make any sense. But because there is a possibility of the second step following the first, Rademaker's warmhearted concern for the court expressed here is a steaming pile of yellowcake.