can bush, rumsfeld be tried for war crimes?

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    This article appears in the March 28, 2003 issue of Executive Intelligence Review.
    Can Bush, Rumsfeld Be Tried for War Crimes?
    by Edward Spannaus

    What the United States did, on the evening of March 19, in launching a imperial, "preventive" war on Iraq, is unquestionably in violation of the Charter of the United Nations and other agreements by which the United States of America, as a signatory, is bound. Indeed, UN Secretary General Kofi Annan repeatedly stated in the days leading up to the U.S. attack, that a unilateral attack by the United States on Iraq would be a violation of the UN Charter.

    Were the unlawful actions of the United States to stand as a precedent, the United Nations, which America was instrumental in initiating and founding at the end of the Second World War as a means for preventing war, would lie in shambles, and relations among nations would be reduced to a Hobbesian "war of each against all" in which raw power, not morality or legality, would be the only currency. With the UN unable to protect smaller nations from the U.S. superpower, countries are less likely to bring disputes to the UN Security Council; and, drawing the obvious lesson in the contrasting U.S. treatment of Iraq and North Korea, they will see the acquisition of nuclear weapons as to only means of deterring the United States and getting respect.

    The Bush Administration is obviously well aware that this war has no basis in legality. The legal justifications being cynically offered by the Administration are so transparently fraudulent, and rejected by most of the world, that its spokesmen can only be hoping that most citizens will not get behind the headlines and the sound-bites; above all, that they will not act as real citizens, taking personal responsibility for the fate and future of the nation.

    The White House Legal Brief
    At the March 13 White House press briefing, for example, spokesman Ari Fleischer was asked about the legality of the war, and responded by reading a prepared legal opinion, apparently coming from the State Department Legal Adviser.

    Fleischer first read: "The United Nations Security Council Resolution 678 authorized use of all necessary means to uphold United Nations Security Council Resolution 660 and subsequent resolutions and to restore international peace and security in the area. That was the basis for the use of force against Iraq during the Gulf War." (In fact, Resolution 678 authorized the use of force only for the purpose of expelling the Iraqi military from Kuwait, fully accomplished in 1991.)

    "Thereafter," Fleisher continued, "the United Nations Security Council Resolution 687 declared a cease-fire, but imposed several conditions, including extensive WMD-related conditions. Those conditions provided the conditions essential to the restoration of peace and security in the area. A material breach of those conditions removes the basis for the cease-fire and provides the legal grounds for the use of force."

    (But, what Fleischer failed to say, was that the implementation of Resolution 687's disarmament provisions is left solely to the Security Council, which was "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.")

    The UN Charter
    This is, in fact, consistent with the provisions of the Charter of the United Nations, signed in 1945. Article 2 of the Charter made it clear that a major purpose of the creation of the United Nations was that member-states were to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state," except under certainly narrowly defined circumstances.

    At all times, member-states are to seek a solution to their disputes through the UN Security Council (Security Council Art. 33), and it is left to the Security Council to make the determination with respect to a threat to the peace, a breach of the peace, or an act of aggression, and to determine what measures are to be taken to maintain or restore international peace and security (Art. 39).

    It is only the Security Council that can decide upon the use of force: "Plans for the application of force shall be made by the Security Council with the assistance of the Military Staff Committee..." (Art. 46).

    The Security Council may designate all or some member-states to use force to carry out its decisions, but only the Security Council is empowered to make such a determination: "The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine..." (Art. 48).

    The exception to this, is if a member-state is attacked by another state: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security" (Art. 51). This is generally understood to include the case in which an attack were imminent, so imminent that the member-state did not have time to take the matter to the Security Council. But that is obviously not the case with respect to the United States and Iraq; no one, even the most rabid chicken-hawk, seriously argues that Iraq is an imminent threat to the security of the United States. Indeed, with the exception of Israel, those countries which are actually within striking range of Saddam Hussein oppose the U.S. attack, and the idea that the weakened and destroyed nation of Iraq poses a threat to U.S. national security, is nonsensical—and is seen as such by the overwhelming majority of the world's nations.

    Resolution 1441 and the Security Council
    But, what about Resolution 1441, unanimously adopted last November, which is constantly cited by President Bush and members of his Cabinet as giving to the United States the authority to attack Iraq? Did not Resolution 1441 threaten Iraq with "serious consequences" if Iraq remained in "material breach" of its obligations to disarm? The answer is that yes, it did; but again, the determination of both matters was explicitly left to the Security Council to "consider," not to one or two of its members.

    It is patently clear that the Security Council does not believe that a material breach has occurred which justifies the immediate use of force. After promising to seek a vote in the Security Council, in which all members would have to "stand up and show where they stand," Bush was forced to abandon the quest for a vote, when it became clear that a majority of Council members were opposed to the U.S.-British-Spanish resolution. And the official summary of the statements by the 15 member-countries in the debate on March 19, shows that no other countries, beside the United States, Britain and Spain, supported the use of force against Iraq—not even Bulgaria, which had been counted as the fourth vote in favor of the U.S.-U.K. resolution. There were always five countries known to oppose the United States, and there were six deemed "undecided." All of those six ultimately opposed ending the inspections and resorting to force at this time.

    Thus, when the United States attacked Iraq, it was not simply "by-passing" the Security Council; it was flagrantly violating the Security Council's intention and will.

    Nuremberg Tribunal Precedent
    The Administration's desperation to provide a legalistic justification for the war, is undoubtedly related to the fact that many statesmen and commentators have challenged it on this point—but it may also have to do with the fact that a number of commentaries and articles have appeared warning that President Bush and Defense Secretary Rumsfeld could eventually find themselves charged with war crimes before the newly inaugurated International Criminal Court (ICC).

    While EIR regards the the ICC as an abomination (see EIR, July 27, 2002), it is nonetheless the case that the United States is bound by other treaties and conventions it has sponsored and signed, which could put Bush and others of the war party in legal jeopardy. For example, as we have shown (EIR, Oct. 18, 2002), launching aggressive war is a violation of the Charter of the Nuremberg Tribunal, to which the United States is bound as a signatory, and whose principles were formally adopted by the UN General Assembly in 1950.

    The four-power agreement creating the International Military Tribunal for Germany, included in its list of offenses for which there is individual responsibility: "a) Crimes against peace—namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing."

    The indictment in the trial of the major war criminals at Nuremberg contained four counts: 1) Conspiracy; 2) Crimes against peace; 3) War crimes; and 4) Crimes against humanity.

    Count Two of the Indictment stated: "All the defendants, with diverse other persons, during a period of years preceding 8 May 1945 participated in planning, preparation, initiation, and waging wars of aggression which were also wars in violation of international treaties, agreements and assurances." Twelve defendants were convicted on Count Two, in combination with other counts; seven were sentenced to death by hanging, and the others to imprisonment.

    What Is Aggressive War?
    In 1974, the UN General Assembly adopted a "Definition of Aggression," which stated: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." It further stated that among the acts which qualify as an act of aggression, are: "The invasion or attack by the armed forces of a State of the territory of another state, or any military occupation; ... Bombardment by the armed forces of a State against the territory of another State."

    The Chief Delegate of the United States, Warren R. Austin, told the UN General Assembly on Oct. 30, 1946, that the United States was bound by the principles of law declared in the Nuremberg Charter, as well as by the UN Charter, saying that the Charter "makes planning or waging a war of aggression a crime against humanity for which individuals as well as nations can be brought before the bar of international justice, tried, and punished."
 
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