NEW YORK - As the number of civilian deaths in Iraq continues to grow steadily, so do the demands for the prosecution of those who led the United States and Britain to war: President George W. Bush and Prime Minister Tony Blair. To those must be added Jose Maria Aznar, Spain’s former prime minister, although Spain had much less direct involvement in the war.
Recent dissemination of 200 additional photographs showing the torture of prisoners by U.S. military personnel in Iraq (and in Afghanistan) provides an opportunity to conduct such trials. If the tenets of the Nuremberg principles and the Geneva Conventions were applied, both Bush and Blair would most likely be convicted for their responsibility in this terrible war.
The Nuremberg principles were established after World War II to prosecute Nazi crimes. The same principles should apply to determine the criminal responsibility of those who led the Iraqi war, which resulted in the loss of hundreds of thousands lives — many of them children — and the devastation of that country’s infrastructure.
One of the most serious breaches of international law by the Bush administration was the “preventive war” doctrine allegedly justifying the Iraqi war. It is well known that this war was unleashed without the authorization of the U.N. Security Council and in violation of the U.N. Charter, which prohibits, with the exception of self-defense, armed aggression and violations of the sovereignty of any state.
“The launch of a war of aggression is a crime that no political or economic situation can justify,” said Robert Jackson, chief prosecutor at the Nuremberg Tribunal and member of the U.S. Supreme Court. Another eminent scholar, Benjamin Ferencz, also a former prosecutor of the Nuremberg trials, clearly pointed to prima facie responsibility of the U.S. government for crimes against humanity, for “conducting an illegal aggression against a sovereign nation.”
The crimes committed in the Iraq war are referred to in Principle VI of Nuremberg as “Crimes against Peace and War”, defined as (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).”
In the section devoted to the “War Crimes” Principle VI of Nuremberg includes “Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of 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.”
“Although the Nuremberg principles lack the binding force of the rules embodied in an international treaty, they are increasingly recognized as rules of customary law that are binding on nations as much as an international treaty,” says professor Alejandro M. Garro, who teaches comparative law at the University of Buenos Aires and Columbia University in New York.
In January 2003, a group of law professors warned Bush that he and senior officials of his government could be prosecuted for violating norms of international law. This group of lawyers, led by the Center for Constitutional Rights in New York (CCR), sent similar warnings to Blair and former Canadian Prime Minister Jean Chretien.
Michael Ratner, president emeritus of the CCR, says that even though the U.S. is not a party to the Rome Statute, Bush and other U.S. former officials could be equally processed under the Fourth Geneva Convention and its additional protocols, proscribing attacks against civilians who have no military value. The criminal abuse of prisoners in U.S. military prisons in Iraq, Afghanistan and Guantanamo are clear evidence of abuse, torture and even murder for which Bush and Blair should be held accountable.
Interestingly, it was Donald Rumsfeld, secretary of defense under Bush, who validated the applicability of the Geneva Conventions. On March 25, 2003, during a press conference reporting on the Iraqi war, Rumsfeld said: “This war is an act of self-defense, of course, but it is also an act of humanity. … In recent days, the world has witnessed the brutality of the Iraqis and their disregard for the laws of war. The treatment of the coalition prisoners of war is a violation of the Geneva Conventions.”
In addition, there are clear indications that before the war began, U.S. government officials had drawn up plans to privatize and sell Iraqi property. Criminal responsibility is evidenced by the fact that looting of Iraqi public and private property was allowed under the watch of coalition troops, while Iraqi institutions related to the marketing of oil were protected.
There are many political and legal issues standing in the way to investigate and criminally prosecute a former U.S. president and a British prime minister and their associates. Three countries in Latin America, Argentina, Chile and Peru tried their leaders and sentenced them to prison for crimes of much less magnitude than those committed in the Iraq war. It is time to follow their example.
Dr. Cesar Chelala is an international public health consultant and a co-winner of an Overseas Press Club of America. He frequently writes on human rights issues.