Thursday, September 20, 2012

The Time has Come to Indict and Try George W. Bush/U.S War Criminals

by Len Hart, The Existentialist Cowboy

It has been said that George W. Bush is immune from prosecution for war crimes. I do not believe that that is the case. Treaties to which the U.S. is signatory and obliged say otherwise. I know of no act of Congress rescinding U.S. obligations to the Principles of Nuremberg.
Congressional Repeal of Treaties.—It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: “Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.”

Cornell University Law School, ANNOTATED CONSTITUTION, Article II, 303
In fact, the United State is credited with supporting, perhaps insisting upon the adoption of the Nuremberg Pinciples. The U.S. is obliged to Nuremberg and no clause exempts U.S. politicians of any office from prosecution should he/she violate those principles.

Nazi war criminals --likewise --thought they were 'immune' and said as much at Nuremberg where the principles were conceived and applied. High ranking Nazi war criminals were tried, sentenced and hanged.

That is the lesson of Nuremberg. Hitler himself would have been tried, found guilty and hanged had he not cheated the hang man. Immunity for Bush? If a real international tribunal were HONEST it could seek out bush, arrest him and try him.
"Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law."
Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
Principle II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Principle III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.
Principle IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V. Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle VI. The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
      (i) Planning, preparation, initiation or waging of a war of aggression or a war in        violation of international treaties, agreements or assurances;
      (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War Crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave-labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Principle VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

In addition, these principles have been spelled out over the years. For instance, since the rather “archaic” Nürnberg rules on participation in criminal conduct (Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, Journal of International Criminal Justice, vol. 5, 2007, p. 953), the principles on the various modes of international criminal liability have been considerably developed. The definitions of the crimes have also evolved since Nuremberg. For instance, crimes against humanity now explicitly include the element of a “widespread or systematic attack against a civilian population” (art. 7 ICC Statute). The ICC Statute also contains four new categories of punishable acts as crimes against humanity: torture (art. 7(1) (f)), sexual crimes (art. 7(1) (g), enforced disappearance of persons (art. 7(1) (i)) and the crime of apartheid (art. 7(1) (j)).
Finally, in 1948, the General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide, which confirmed that genocide is a crime under international law. Genocide was also provided for in the statutes of the ICTY, ICTR and ICC (arts. 4 ICTY Statute, 2 ICTR Statute, and 6 ICC Statute). In light of the adoption of so many treaty or quasi-treaty provisions prohibiting and punishing genocide, and of the case law on the matter, it can now safely be held that genocide is a crime proscribed by customary international law.
--Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribuanal, General Assembly Resolution 95, New York, 11 December 1946
Interestingly, the three arguments for 'conservativism' ---tradition, religion, man's depravity --are all of an authoritarian nature. All result in decrees issued from on high --a throne, a board room, a war room. Take your pick. Depravity may exist but is most often found in the eye of the beholder. Religion is 'holy' for those already committed to it either by upbringing or social pressure. The 'war room' results from all of the above. Wars against the 'infidel' remain the norm. Bush, for example, demonized 'Islam' and apparently got away with it because fundamentalist Christians are as intolerant of Islam as fundamentalist Islam is intolerant of those who love Jesus.


opit said...

fundamentalist Christians are as intolerant of Islam as fundamentalist Islam is intolerant of those who love Jesus.

They are, after all, literalists who will swallow anything. The fun part is that scripture clearly shows Jesus being harassed by such - and then murdered by proxy.

Prosecutors in Spain tried to run with the ball - twice. The International Court in the Hague will not be supported by Belgium in any such attempt. It can't. The U.S. has clearly stated it will intervene militarily to liberate Americans detained by them for torture or other matters of war crime. That would be the 2002 American Service Member Protection Act where Congress made it clear that law would be without effect or enforcement. When Congress itself foments treason the term becomes moot.
I reassembled my files on law at some time past. There may be something there you have missed - I rather doubt it - but the Clinton Administration seems to have done the greatest damage to the cause of justice. And I don't think I am much less repulsed by Bush-Cheney than you are...but they are not the only players on the stage.

Len Hart said...

Opit, you're right. The lesson of Nuremberg is that the 'lesson' of Nuremberg didn't take. PUT another way, the execution of Nazi war criminals has been made a 'sham' and, if its a sham, the executions are, in retrospect, nothing less than murder. It is bitter medicine to say that the U.S. itself has become Herman Goring's BEST defense. The U.S. has proved --beyond any doubt --Goring's most absurd and repugnant arguments. We have seen the enemy and 'he' is 'us'.

Len Hart said...

Opit, I am not overly concerned with the Military Commission Act. To wit:

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision."--'Treaties as Law of the Land', onecle

Also see: Treaty Obligations and National Law:Emerging Conflicts in International Arbitration
William W. Park* and Alexander A. Yanos*

Now --of course --out current SCOTUS may choose to simply ignore the HUGE amount of case law and precedent. But that outcome is a result of the the same mentality and constituency that support GWB's war on the word in the first place.

Len Hart said...

More about that at:

"According to rules of international law, however, neither a Constitutional mandate nor the enactment of a statute provides an excuse for a treaty violation." 9

--Treaty Obligations and National Law: Emerging Conflicts in International Arbitration William W. Park* and Alexander A. Yanos

opit said...

"our current SCOTUS may choose to simply ignore the HUGE amount of case law and precedent." That is what 'looking forward' seems to imply by default. Accountability denied is the same as lack of it.
Besides, although I may have thought the 2002 and 2006 enactments significant, I recall argument that Clinton's evasion which facilitated NATO genocide and DU use set the stage for further expansion in the evasion of prosecution - making them more refinements than basic rupture in the process of making just sounds while practicing vilest actions.

Len Hart said...

Opit, I don't recall Clinton ever facing prosecution for 'violations' though he may very well have been in violation. It may be true --as you say --that Clinton's evasion '...facilitated NATO genocide and DU use set the stage for further expansion' but that does not legitimize it nor does it make 'case law' legitimizing it any more than arned robbery is legitimized because a couple of two bit hoods got away with hitting a stop n' rob and the murder of the clerk.

opit said...

I guess it's time for another file then. Or YouTube will have a bunch - though I have had my eye on 'depeleted uranium' for a while. As far as I can tell, it is at least as abhorrent as secret Japanese 'dirty bomb' research in China during WW II...kept secret by 'security' afterwards. And I am referring to war in Kosovo re: Clinton, in which the actuality was far from the reports we would have read.

opit said...

Oops.I see DU is on the table already. I do not argue 'case law' is made when a not filed.