Nuclear Age Peace Foundation

Tag: war crimes

  • The Criminality of Nuclear Deterrence Today: International Law as Anchoring Ground

    Ladies and gentlemen:

    I am very happy to be speaking with you this evening. I want to express my gratitude to Zeit-Fragen for publishing the German language edition of my book The Criminality of Nuclear Deterrence (Clarity Press: 2002) which comes out now on the anniversary of the end of the Second World War.  At this time 65 years ago, Japan surrendered to the United States after the atomic bombings of Hiroshima and Nagasaki and the incineration of 250,000 completely innocent human beings.

    My father was a Marine who invaded Saipan, Tinian, and Okinawa, and was preparing to invade Mainland Japan. I was brought up to believe that the bombings of Hiroshima and Nagasaki had saved my father’s life and thus made mine possible, although my father never raised me to be anti-Japanese or anti-German.  But when I came to study international relations, I realized: This simply was not true.  Indeed it was total propaganda by the United States government to justify nuclear terrorism and the mass-extermination of a quarter of a million human beings. Even Justice Pal in his dissent to the Tokyo Judgment said that the Japanese war criminals had nothing to their discredit as the bombings of Hiroshima and Nagasaki, which you can only compare to Nazi Acts.

    Today the world is at a precipice of another world war. The United States government has committed acts of aggression against Afghanistan, Iraq, Pakistan, Somalia, Yemen, and has authorized, armed, equipped, and supplied Israel to commit acts of aggression, crimes against humanity, and outright genocide against Lebanon and Palestine. Today the United States government is threatening to attack Iran under the completely bogus pretext that they might have a nuclear weapon, which the International Atomic Energy has said is simply not true. If they attack Iran with the Israelis, a British think-tank has predicted they could exterminate 2.8 million Iranians! They are fully prepared — the Americans and the Israelis — to use tactical nuclear weapons.

    Indeed today tactical nuclear weapons have been fully integrated into U.S. armed forces and tactical training and programs. I have read the manual myself.  Nukes are now treated — starting with the Bush Junior administration — as if they were just another weapon.

    We must remember when President Putin was in Iran and he said he did not believe the Iranians had a nuclear weapon, President Bush Jr. publicly got up and threatened World War III. Remember that threat! He threatened World War III! I cannot recall in my lifetime a threat of this nature. You would have to go back to Hitler and Mussolini and Tojo to find high level government officials threatening a world war.

    What did this threat mean? It was saying to Russia: “You had better stand back if we attack Iran.” It wasn`t a threat to Iran; that would not produce a world war attacking Iran, but just a slaughter.  But saying to Russia: “You had better stand back, we are prepared to risk World War III if you don’t let us get our way with Iran.” An attack on Iran would set this entire region of the world on fire, from Egypt over to India, from Uzbekistan down to Diego Garcia. And as my friend and my colleague, Hans von Sponeck pointed out yesterday with his map: We see the counter-alliance to NATO: Russia, China and the so-called Central Asia Collective Security Organization. If you read about the origins World War I or World War II an attack on Iran could clearly set off World War III – remember Bush threatened it. And it could easily become nuclear. I kid you not on the dangers we are facing us all as human beings today.

    We stand on a nuclear precipice, and any attempt to dispel this ideology of nuclearism and its myth propounding the legality and morality of nuclear weapons and nuclear deterrence must come to grips with the fact that the nuclear age was conceived in the original sins of Hiroshima and Nagasaki. These weapons have always been criminal!  Remember they were developed to deal with the Nazis, out of fear that the Nazis would get them first. And yet for some reason they used them on the Japanese to make a point, to terrorize the rest of the world.

    The atomic bombings of Hiroshima and Nagasaki constituted war crimes and crimes against humanity as defined by the Nuremberg Charter of August 8th 1945 — right after the United States bombed Hiroshima, and the day before they bombed Nagasaki — that condemned the wanton destruction of cities, towns, and villages; and applied it to the Nazi leaders, but of course never applied it to themselves. In my book The Criminality of Nuclear Deterrence there is an entire chapter on the criminality of the bombings of Hiroshima and Nagasaki and I list all the legal violations there, up to and including the United States Department of War Field Manual 27-10 (1940).  So these bombings, and also the firebombing of Tokyo, exterminating 100,000 civilians, were war crimes. Even as recognized officially by the United States government itself.

    The start of any progress towards resolving our nuclear predicament as human beings must come from the realization that nuclear weapons and nuclear deterrence have never been legitimate instruments of state policy, but have always constituted instrumentalities of internationally lawless and criminal behaviour. And those states that wield nuclear weapons, their government officials are criminals in accordance with the Nuremberg Charter, Judgment, and Principles, and the Tokyo Charter and Judgment that the Allies applied to the Nazi war criminals and the Japanese war criminals after World War II.  So I’m not talking here about applying any principle of law that the United States government and the other victors of World War II applied to their enemies to hold them accountable.

    The use of nuclear weapons in combat is contemplated now by the United States and Israel against Iran. How many times have we heard U.S. government officials involved in the Bush Junior administration and now the Obama administration say: “All options are on the table.”  They mean it: not just the use the force but the use of nuclear weapons as well. These are prohibited by conventional and customary international law, including the Genocide Convention of 1948, designed to prevent a repetition of the Nazi Holocaust against the Jews, the Poles, the Russians, the Ukrainians. The use of nuclear weapons would also violate Resolutions of the U.N. General Assembly that repeatedly condemned their use as an international crime.  We must understand that when dealing with nuclear weapons and nuclear deterrence: They are not simply immoral, they are not simply illegal, but they are criminal across the board!

    The Swiss Foreign Ministry a commissioned a study of nuclear deterrence by three American authors, I read it, and I agree with what they said. They pointed out that the critical factor is the delegitimisation of nuclear weapons in the minds of the people. Having litigated nuclear weapons protest cases in the United States, Canada, Britain, and elsewhere since 1982, for me the critical factor in winning these cases is to explain to the common, ordinary people on juries that nuclear weapons and nuclear deterrence are criminal. Not simply illegal, not simply immoral, but criminal!

    Yet the government officials in all the nuclear weapon states, not just the United States — they are the worst of them — but also Russia, France, Britain, China, India, Pakistan, Israel, North Korea: They are the criminals! For threatening to exterminate all humanity! For threatening Nuremberg crimes against peace, crimes against humanity, war crimes and genocide. That’s what nuclear deterrence really is: threatening mass extermination.  And in the Advisory Opinion by the International Court of Justice on nuclear weapons, the World Court ruled that the threat stands or falls on the same legal grounds as the actual use.  If mass extermination of human beings is a crime, the threat to commit mass extermination is also a crime.

    It is as if the leaders of the nuclear weapon states have all taken out a gun, cocked the trigger, and held it at the heads of all humanity! In any system of criminal justice today that activity is criminal! In the United States it would be attempted murder, and you would be prosecuted for it.  Yet today U.S. government officials threaten murder to millions of people around the world. And now especially in Iran.

    According to the Nuremberg Judgment soldiers would be obliged to disobey criminal orders to launch and wage a nuclear war. And yet, how many soldiers have been educated to understand these principles? A few have educated themselves, acted on it, and have been prosecuted by the United States government.  I have helped to defend them, with a good deal of success, but not complete success. You can read about this in my latest book Protesting Power: War Resistance and Law (Rowman & Littlefield: 2008). How we defended military resisters in our all-volunteer Armed Forces who refused to fight in illegal, criminal wars waged by the United States government, going back to Gulf War I by Bush Senior, Haiti by Clinton, Gulf War II by Bush Junior.

    All government officials and military officers who might launch or wage a nuclear war would be personally responsible for the commission of crimes against peace, crimes against humanity, war crimes and genocide. And such individuals whether statesmen or high level military personnel would not be entitled to any defenses of superior orders, act of state, tu quoque, self-defense, presidential authority, etc. All those defenses were made by lawyers for the Nazi defendants at Nuremberg and they were rejected. And yet today in the United States of America starting with the Bush Junior administration and now continuing with Obama you will hear international lawyers working for the government, and many in the private sector, making Nazi arguments to justify what the United States government is doing around the world. That’s how desperate the situation is!

    The whole Bush Doctrine of preventive warfare, which is yet to be officially repealed by Obama now after 18 months, was made by the Nazi lawyers for the Nazi defendants at Nuremberg, and it was rejected. And the argument by Nuremberg was: There is no such thing as preventive self-defense or things of this nature. What is self-defense can only be determined by reference to international law. And the test is clearly: the necessity of self-defense must be instant, overwhelming, leaving no choice of means, no moment for deliberation. Certainly not Afghanistan or Iraq or Lebanon or Palestine or Iran or Somalia or Yemen or Pakistan. And yet all victims of this Nazi doctrine of preventive self-defense that is now justified by all these prostituted international lawyers on the payroll of the United States government, leaving government service, now they infiltrate into American academia where they likewise try to justify these doctrines and policies that were condemned as criminal at Nuremberg.

    Article 2, paragraph 4 of the United Nations Charter prohibits both the threat and the use of force except in cases of legitimate self-defense. And there is a standard for self-defense. Article 51 of the U.N. Charter, and as supplemented by Nuremberg, that clearly rejects the wars against Afghanistan as aggression – explained in my book in greater detail — against Iraq, against Pakistan, which by the way has nuclear arms.  The Obama administration has now escalated to a war against Pakistan, trying to set off civil war and destabilize Pakistan, just as they did in Yugoslavia, just as they did in Iraq, just as they did in Afghanistan. As we lawyers say: “The modus operandi is the same.”

    The Empire does not change from one administration to the next! In America the government is run by elites who are either liberal imperialists, conservative imperialists, or reactionary imperialists, like the Neocons. But they are all imperialists! And they believe in the god-given right to the American Empire. That’s the way America started. Remember, how did the United States of America start? White European settlers coming over to North America, exterminating millions of indigenous people, and robbing their land, and building an Empire. The process just continues today as we speak.

    The threat to use nuclear weapons, what we call “nuclear deterrence” — I would call “nuclear terrorism” — constitutes ongoing international criminal activity: planning, preparation, solicitation, and conspiracy to commit Nuremberg crimes against peace, crimes against humanity, war crimes, and genocide.  These are what we lawyers call inchoate crimes, not the substantive offences themselves, but crimes leading up to the commission of the substantive offences. They were made criminal at Nuremberg in order to establish a bright line and that we would punish even walking up to that bright line as criminal.

    In the case of nuclear weapons once a nuclear war starts I doubt very seriously we are going to be having another war crimes tribunal for anyone.  So what that means then is that it is up to us citizens of the world to stop and prevent a nuclear war, and to stop and prevent the threat, conspiracy, solicitation of the use of nuclear weapons. “Everything is on the table” — clearly a threat to use nuclear weapons, clearly a criminal threat under the World Court Advisory Opinion, against Iran.

    As I explain in more detail in my book, the design, research, testing, production, manufacture, fabrication, transportation, deployment, installation, storing, stockpile, sale, and purchase and the threat to use nuclear weapons are criminal under well-recognized principles of international law.  And I know the German government has finally asked the United States, NATO, to take its nukes out of Germany. And Mrs. Clinton has said: “We don’t support it.” Well is the German government going to cave in? Or will it use law and international law and the Nuremberg Charter, Judgment and Principles to get American criminal nukes out of Germany? I guess we will find out this Fall.

    Those government decision-makers in all nuclear weapon states with command responsibility for nuclear weapons are responsible today for personal criminal activity under the Nuremberg Principles for this practice of nuclear deterrence/nuclear terrorism, that they inflict on all states and peoples in the world today.  And in particular counter-ethnic targeting for the United States, destroying Russians just because they are Russian.

    Also counter city-targeting!  When I worked on the case of the U.K. nuclear weapons in Scotland we established that the entire purpose of the U.K. nuclear weapons force, under the control and allocated to NATO, was to destroy the city of Moscow, seven million human beings! It had no other purpose. Needless to say, once we did that we got all of our defendants off for four counts each of malicious destruction of property when they destroyed a tender servicing the U.K. Trident II nuclear weapons submarines with these weapons of mass extermination. They might have destroyed the tender, but they did not act maliciously.  They acted for the perfectly lawful reason to stop the nuclear extermination of seven million human beings.

    So, I argue in my book, the simple idea of the criminality of nuclear weapons and deterrence can be used to pierce through the ideology of nuclearism, to which so many citizens in the nuclear weapon states and around the world have succumbed — by means of propaganda techniques, propagated by the governments, going back to the bombings of Hiroshima and Nagasaki. At the time of the bombings of Hiroshima and Nagasaki the U.S. government tried to present this as positive to the American people and in particular that it was necessary to end a war to avoid an invasion of Japan, which of course was not going to happen, because the Japanese were already defeated and were trying desperately to negotiate a surrender.

    It is with this simple idea of the criminality of nuclear weapons that people can easily comprehend the illegitimacy and fundamental lawlessness of these policies that their governments pursue in their names — or allied governments as well. And to those living in the NATO states today: Their leaders are all accomplices, they go along with nuclear policies as well. They send their generals over to NATO headquarters to be integrated into NATO’s strategy.

    I remember after the Berlin Wall fell, the German Branch of International Association of Lawyers Against Nuclear Arms had a big conference in Berlin and I gave the keynote address along these lines. And they asked the German General of the Bundeswehr in charge of liaison with NATO on nuclear weapons to respond to me. And he got up and he said: “Well, we all know that Nuremberg is soft law.”

    I had two reactions to that. One: “Mister General, we hanged your predecessors at Nuremberg, under the Nuremberg laws. How can you say it is soft law?”  Not that I support the death penalty even for major war criminals like Bush Junior and Tony Blair.

    But the second reaction I had to this notion of soft law like Joe Nye’s “soft power”: “Soft law’”, I said, “you know, he got that from us.” So we Americans have convinced German generals that Nuremberg is soft law in order to pursue our nuclear policies with the cooperation of the next generation of German generals whose predecessors we hanged at Nuremberg.

    After the public speech I discussed this matter with him, and he agreed with me but he said: “Look, we have no alternative but to do what the Americans tell us to do.” And I quoted to him a passage from the Bible saying: “Yes, and the blind shall lead the blind.”  And the German General said:  “We have to trust that the Americans are doing the right thing.”  Right over the nuclear precipice! The German people have to stand up here and say: “Enough! We want your nukes out of Germany for sure and we are no longer going to cooperate with you on nuclear weapons policies.”

    Humankind must abolish nuclear weapons before nuclear weapons abolish humankind!  Nevertheless there are a small number of governments in the world that continue to maintain their nuclear weapons systems despite the rules of international criminal law to the contrary. I would respond in a very simple way: Since when has a small gang of criminals — the leaders of the nuclear weapons states — been able to determine what is illegal or legal for the rest of the world by means of their own criminal behaviour? What right do nuclear weapons states have to argue that by means of their own criminal behaviour — nuclear deterrence/nuclear terrorism — they have made criminal acts legitimate? No civilized state would permit a small gang of criminal conspirators to pervert its domestic legal order in this way. Indeed both the Nuremberg Tribunal and the Tokyo Tribunal made it clear that a conspiratorial band of criminal states has no right to opt-out of the international legal order by means of invoking their own criminal behaviour as the least common denominator of international deportment. It’s a basic rule of international law: Right cannot arise out of injustice! Ex iniuria ius non oritur!

    The entire human race has been victimized by an international conspiracy of ongoing criminal activity carried out by the nuclear weapons states and their leaders under this doctrine of nuclear deterrence which is really a euphemism for nuclear terrorism. And the expansion of NATO has now drawn in almost all of Europe. They have broken down – the United States and NATO – even the traditionally neutral states. Sweden today acts as if it were a de facto but not yet de jure member of NATO. Finland has basically abandoned its neutrality. Austria, with a constitutional obligation to be neutral, has basically abandoned its neutrality. Even Ireland, little bitty Ireland – I have dual nationality with Ireland.  The Americans have forced and compelled Ireland to join up to the Partnership for Peace (PFP) which is one step away from NATO membership, and have forced Ireland then under PFP to put some troops in Afghanistan to help them wage an illegal and criminal war of aggression against Afghanistan.

    The only state in Europe still holding out is Switzerland. Yes, it signed up for Partnership for Peace which it should never have done. But at least Switzerland is holding out, it has no troops in Afghanistan or Iraq. And Switzerland must continue to hold out. And that is exactly why it is been subjected to so much pressure! Including an attack on its banking and financial system to bring Switzerland into line with NATO and the United States, exactly as every other country in Europe has done and succumbed.  That is really what’s at stake here. Are you, the Swiss, going to join up – either de facto or de jure – with NATO and the Americans, so that if and when they attack Iran and perhaps set off a new world war, you and your children will get sucked into it? Switzerland avoided the last two world wars. I certainly hope Switzerland will avoid the next one by having nothing to do with the United States and NATO. And somehow working your way out of Partnership for Peace.

    This international criminal conspiracy of nuclear deterrence/nuclear terrorism, is no different from any other conspiracy by a criminal gang or band. They are the outlaws. We are the sheriffs — the citizens of the world. So it is up to us to repress and dissolve this international criminal conspiracy by whatever non-violent means are at our disposal and as soon as possible.  As I said: If we all don’t act now, Obama and his people could very well set off a Third World War over Iran, that has already been threatened publicly by Bush Junior.

    Every person around the world has a basic human right to be free from the criminal practice of nuclear deterrence/nuclear terrorism, and its specter of nuclear extinction. All human beings in our capacities as creatures of God possess the basic right under international law to engage in civil resistance for the purpose of preventing, impeding or terminating the ongoing commission of these international crimes.

    And this is not civil disobedience.  It’s civil resistance! We have disobeyed nothing! We are obeying the dictates of international law! It is the government officials in the nuclear weapons states and their allied states that are disobeying international law. They are the criminals! We are the sheriffs! And it is up to us to stop them!

    Every citizen of the world community has the right and the duty to oppose the existence of nuclear weapons systems by whatever non-violent means are at his or her disposal. Otherwise the human race will suffer the same fate as the dinosaurs. And the planet earth will become a radioactive waste-land. And it very well could happen in our life-time.

    The time for preventive action is now! And civil resistance by all of us human beings is the way to go.

    Thank you.

  • Acceptance Speech on Receiving Erasmus Prize

    Your Majesty, your Royal Highnesses, distinguished guests and friends,

    You honor me by your presence and I am deeply moved. Allow me to convey my gratitude by sharing some personal experiences which may reflect the values of Erasmus, whose name we here commemorate.

    My life was shaped in the crucible of wars. The First World War caused my family to flee to America. My destiny was shaped by the impact of the Second World War. Three goals became the focus of my life:

    • trying to bring perpetrators of war crimes to justice
    • caring for survivors
    • trying to prevent future wars

    As soon as my studies were completed, I enlisted in the United States army. In due course, I landed on the beaches of Normandy and participated in every major battle. As a war crimes investigator in the army of General Patton, I joined in the liberation of many Nazi concentration camps and witnessed indescribable horrors. After the war ended, I was discharged as a sergeant of infantry and awarded five battle stars for not being killed or wounded. Not all wounds are visible.

    I never speak of “winning” a war. I learned that the only victor in war is death.

    The next phase of my life was helping to bring to justice some of those responsible for the aggressions and atrocities. The famous Nuremberg trial by the international military tribunal was followed by twelve subsequent trials. I was appointed chief prosecutor in what was probably the biggest murder trial in history. Twenty-two Nazi leaders of extermination squads called Einsatzgruppen were convicted of deliberately murdering over a million innocent men, women and children. I was then 27 years old and it was my first case.

    The victims were slain because they did not share the race, faith or ideology of their executioners. I thought murdering thousands of children and all their relatives for such cruel reasons was a very terrible thing. I have never lost that feeling. Punishing criminals must not obscure the need to care for their innocent victims. In 1948, I became the director of restitution programs to recover heirless properties for the benefit of needy survivors. That led to an additional assignment as counsel in negotiating a very sensitive “reparations treaty” between West Germany, Israel and major Jewish charitable organizations. Millions of Nazi victims, regardless of persuasion, Jews and non-Jews alike, have benefited from the unprecedented indemnification laws which were negotiated in secret here in The Hague in Kasteel Oud Wassenaar in 1952.

    Appreciation belongs primarily to German chancellor, Konrad Adenauer, who, as a devout catholic, proclaimed that amends had to be made for the terrible crimes committed in the name of the German people.

    My files dealing with my war crimes and restitution have been donated to the US Holocaust Museum in Washington. My books and lectures are available free on my website and the internet under a new United Nations audio-visual program. My Erasmus prize will all go for peace purposes.

    Let me spend the few remaining minutes on what I consider the most important phase of my life and that is trying to prevent war-making itself. At Nuremberg war-making ceased to be regarded as a national right but was condemned as “the supreme international crime”. There has never been a war without atrocities. Illegal war-making is the biggest atrocity of all.

    The best way to protect the brave young people who serve in the military of all nations is to try to eliminate war. The UN charter prohibits the use of armed force except under very limited circumstances. It is high time for the powerful nations that control the Security Council to remember and respect their basic legal obligations to all nations.

    It was made crystal clear at Nuremberg, and affirmed by the UN General Assembly, that law must apply equally to everyone. It is very dangerous when any person, or any nation, takes the law into its own hands. In a world seething with incredible destructive capabilities, there is no international dispute so overwhelming that it could justify the illegal use of armed force. Law is always better than war.

    Many well-intentioned people believe that war can never be stopped since it is ordained as part of some eternal plan. From the unbelievable horrors of war that I have personally witnessed, I cannot believe the cruelties I have seen were divinely inspired. I share the view of Erasmus and religious leaders of many faiths who hold that we are all members of one human family and must learn to live in peace and dignity regardless of our race or creed. I recall the words of my supreme military commander, Dwight D. Eisenhower, when he became president of the United States: “The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”

    It is difficult and takes time to change the heart and mind of persons with deeply entrenched and cherished ideals for which they are ready to kill and die. But it can surely be done. The early United States constitution denied all women the right to vote or own property. White men felt they had a right to own black people as slaves; not long ago, it would have been unthinkable that the United States would elect a non-white president, but take note: The world has changed!

    The world has changed and is ever-changing. National laws are being changed to conform to international obligations. There has been a gradual awakening of the human conscience.

    Whether aggression is punishable by an international court will be challenged at the International Criminal Court review conference next April. I believe we owe it to the future and to the memory of all who perished in wars, to go forward from Nuremberg and not backward. Even if only a small number of wars are deterred by the threat of punishment, it will surely be worthwhile.

    The stubborn belief that the human mind is incapable of creating an improved social order is a self-defeating prophecy of doom. It ignores the potential of new technologies. Holland has become the international law capital of the world. But it is a work in progress, the values which inspired Erasmus to speak out against abuses by vested authority are still needed today. Fear and hatred that fuels violence can best be conquered by reason, tolerance, compassion and a willingness to compromise that should be taught everywhere at every level of learning, the glorification of war must be replaced by the glorification of peace.

    I have tried to carry forward the main lesson of Nuremberg that aggression is the supreme international crime. I consider myself a realistic optimist: realist because I see the problems; optimist because I see the progress. The international community is still in its formative stage and there has been more progress in the last half century than in all of human history.

    I am aware that I will not live to see the goal of abolishing all wars. But I will be content to know that perhaps I will have helped to move closer to that ideal. To young people I say: “Never give up. Try harder.” Have the courage to speak up for what you know is right. You will find contentment in the knowledge that you have done your best to make this a more humane and peaceful world.

    I thank you all for the honor and privilege of addressing you.

  • Watada Beats the Government

    When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada’s court martial, he probably didn’t realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.
    Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.

    The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.
    The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: “A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …”
    Lt. Watada said at a June 6, 2006 press conference in Tacoma, Washington, “The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war.” He stated, “An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.”
    Citing “deception and manipulation … and willful misconduct by the highest levels of my chain of command,” Lt. Watada declared there is “no greater betrayal to the American people” than the Iraq war.
    The “turning point” for Lt. Watada came when he “saw the pain and suffering of so many soldiers and their families, and innocent Iraqis.” He said, “I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable.” Lt. Watada felt he “had the obligation to step up and do whatever it takes,” even if that means facing court martial and imprisonment.
    Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial.
    This is what I would have said had I been allowed to testify at Lt. Watada’s court martial:
    The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
    A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
    Bush’s war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein’s military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the “no-fly-zones.”
    Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
    Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.
    The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.
    Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial – for the commission of war crimes.
    Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
    The dropping of 2,000-pound bombs in residential areas of Baghdad during “Shock and Awe” were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a “weapons-free” zone, with orders to shoot anything that moved, was a crime against humanity.
    Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: “No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
    Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge’s grant of a mistrial precludes retrial on the same criminal charges.

     

    Marjorie Cohn, MWC News Magazine senior editor, is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published this spring by PoliPointPress.

  • Preventable Genocide: Who Speaks for Humanity

    It’s wonderful to be in Santa Barbara and to see such a good crowd – especially given the fact that it is beautiful Saturday morning in sunny California and genocide is the subject of our discussion. It is clear that I have strayed from my California roots and been on the East Coast too long, as I am reminded of a cartoon that appeared in the New Yorker magazine, with the text, “Would you like to grab a drink after the Genocide panel?” How indeed, do we incorporate something like genocide into our “normal” lives?

    In the aftermath of the Second World War, Raphael Lemkin coined the word ‘genocide’. Lemkin, a lawyer and Holocaust survivor wanted to find a way to describe the policies that were intended to exterminate Jews throughout Europe in order to prevent such a thing from happening again. Based on his efforts, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations in 1948 and went into force three years later. The Convention defined genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” and it made genocide a punishable crime under international law.

    Institutionalization of Hope

    The United Nations was itself created from the ashes of World War II and the atrocities of the Holocaust in order to prevent the extraordinary human suffering witnessed at that time. From the beginning, the United Nations has spoken to the ideals of people around the world for a better and more secure future – it was what former President Clinton recently called the “institutionalization of hope,” based on three ideals: the maintenance of international peace and security, the promotion of economic development, and the protection of human rights. As envisioned from the beginning of the Organization, governments could take action under the United Nations Charter to prevent genocide. The United Nations second Secretary-General Dag Hammarskjold said the United Nations’spare job was not to take us to Heaven but to keep us from Hell. Genocide is the ultimate Hell.

    But we have not always lived up to the promise, sometimes succumbing to divisive international politics; the lack of collective political will to confront evil; and a callous tendency to preference sovereign rights of nations over the rights of vulnerable individuals in those nations. While the United Nations helped ultimately bring peace to Cambodia in the 1990s, it did so only after more than a million people died at the hands of the pathological Khmer Rouge regime. Alongside all countries of the world and all other international institutions, the United Nations failed to stop the mass murder of 800,000 in Rwanda in 1994. And again it failed, we all failed, to protect civilians from ethnic cleansing in Bosnia in the mid-90s.

    In short, history demonstrates that the United Nations faces a fundamental dilemma: on the one hand it represents both the highest ideals of humanity and the “institutionalization of hope,” but at the same time, its high ambitions have often contrasted sharply with the realities of what national governments have been able to agree on and deliver.

    While the United Nations may be imperfect, it is also indispensable. As the only universal body representing and bringing together every country and region of the world, the United Nations enjoys a unique legitimacy.

    So the United Nations is being asked to do more and more things: a quadrupling of United Nations peacekeeping forces in the last decade, so that at this moment, with over 93,000 sets of “boots on the ground” in 18 hot-spots in every corner of the globe, the United Nations is second only to the US in terms of the number of troops deployed around the world. The United Nations has also been relied on for providing humanitarian assistance in complex emergencies, such as in Southeast Asia after the tsunami and in Darfur, so that now there are more humanitarian missions run by the United Nations than ever before, serving the needs of over 40 million people around the world each year in almost 40 countries. The United Nations has also become the pre-eminent provider of organizing and monitoring national elections. The United Nations Millennium Development Goals are a blueprint that have been agreed to by all the world’s countries to meet the needs of the poor, including halving extreme poverty and curbing the spread of HIV/AIDS.

    Responsibility to Protect

    But what about preventing genocide?

    Is the United Nations’role limited to providing the normative and legal framework for combating genocide embodied in the Convention? Or can the United Nations become the pre-eminent service provider in this area, as it has in peackekeeping, humanitarian, elections, and providing a framework for development? The United Nations is not a world government, and it does not have its own military to send in to prevent or stop genocide. Ultimately, the decision to intervene and deliver troops and equipment is up to the governments of the countries that make up the United Nations, and more specifically, the Security Council.
    But the United Nations’s role is extremely important in getting governments to make that calculation. The Secretary-General has a moral voice to draw attention to humanitarian crises and he has done that tirelessly on Darfur.

    And in September 2005 at the United Nations, the largest gathering of heads of state ever assembled took another huge step. They approved, by consensus, the principle of the “Responsibility to Protect” – the idea that every government has a responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, but when they are unable or unwilling to do so, the community of nations is be prepared to take collective action. In terms of international norms and law, this was a fundamental shift. Governments have always been able to hide behind sovereignty, by saying that they have a right to determine what goes on behind their own borders. Now, governments as large as China and as small as Burundi have acknowledged that they have a responsibility to their civilians and that failure to do so means that the international community has the responsibility and can take action, either through diplomatic, humanitarian, or other means, including military means (under Chapter VII) of the United Nations Charter.

    Such a historic agreement is possible only through the United Nations. Those who criticize the United Nations, arguing instead for coalitions of the willing or alliances of democracies to replace it, have failed to realize that an agreement on how to address genocide by angels alone, leaves most of humanity at the mercy of those less angelically inclined. But through the United Nations we now have an agreed principle for protecting all of the world’s people.

    However, despite its adoption last year, the Responsibility to Protect has not yet been operationalized. Turning it from a principle into an actionable norm is essential. Civil society and NGOs can help by influencing policy makers in governments and insisting that they put into action the Responsibility to Protect.
    Three different types of United Nations institutions can play on enhanced role in the fight against genocide:

    First, the Special Advisor on the Prevention of Genocide

    In 2004, the Secretary-General appointed Mr. Juan Méndez, Special Advisor on the Prevention of Genocide based on the lessons learned from past instances of collective failure to address gross human rights violations. The Special Advisor acts as an early warning mechanism to bring attention to situations that could result in genocide and advises the Secretary-General and the Security Council. This is the first time the United Nations has had a position that is devoted exclusively to preventing genocide and mass abuses of human rights, and he has been active on Darfur, traveling to the region and reporting back on how to prevent the situation from deteriorating further.

    Second, the new Human Rights Council

    Another recent development that can significantly bolster human rights at the United Nations is the establishment of the Human Rights Council to replace the Commission on Human Rights. The world needs an intergovernmental body which effectively deals with human rights. The Human Rights Council is a crucial opportunity and holds great promise despite some early stumbles that make it appear to be replicating some of the failures of the Commission. It meets year around and has a new feature – the universal peer review that ensures that all members, including the most powerful countries, who sit in judgment of human rights situations around the world, have their own human rights records scrutinized. The Council is an important development but it has to be supported and made to work.
    Third, the International Criminal Court , war crimes tribunals, and “hybrid” courts

    Within the last 10 years, we have seen ICC investigations on Sudan and Uganda have dramatically changed the political equation there. remarkable progress in international justice – the establishment of the International Criminal Court, the tribunals for Rwanda and Yugoslavia, which have tried the first genocide cases against top officials, and the hybrid national/international courts in Sierra Leone and Cambodia. But questions have been raised about whether pursuing justice may undermine peace. In cases like Uganda, where the suffering has gone on for two decades, some say that we should not disrupt such hard won peace talks by trying the perpetrators. But peace without justice for the victims is not sustainable or wise.

    Darfur as a test case

    So we have witnessed progress in key areas. But can we prevent genocide?

    The singular biggest test we face is that in Darfur, Sudan.

    The situation on the ground is stark. Since the conflict began in 2003, more than 200,000 people have been killed from fighting, famine, or disease, and over 2.5 million people have been displaced from their homes. As a reminder, just 6 days ago large scale militia attacks in West Darfur on 8 settlements caused scores of civilian deaths, including 27 children under the age of 12.

    With the signing of the Darfur Peace Agreement in May we had a framework for ending the violence and a road map for moving to stability, but not all parties have accepted the Agreement. The Security Council adopted a resolution to send in United Nations peacekeeping troops. This has been rejected by the Sudanese government. We therefore need smart pressure and a global diplomatic campaign. In the meantime, the African Union has done a tremendous job, but it needs to be strengthened. The UN has committed to providing support for the AU mission in Sudan, and we are looking at bolstering that support, but again, contributions depend on Member States.

    Now we have to alter the calculation of potential perpetrators of abuses, and equally importantly, make it much more difficult for governments which decide not to act to prevent genocide.

    The Responsibility to Protect must be put into practice. The role of the Special Advisor on the Prevention of Genocide could be strengthened. The Human Rights Council, should adopt a country-specific resolution on Darfur as recommended by the Secretary-General that urges the government of Sudan to allow United Nations peacekeepers into Darfur.

    Achieving a lasting peace in Darfur also means bringing those responsible to justice. The Security Council has referred Darfur to the International Criminal Court. The case against the perpetrators is being built as we speak. Action by the International Criminal Court must be supported and seen through.

    Conclusion

    In order to prevent genocide, war crimes and crimes against humanity, we still face tremendous challenges. But nothing is inevitable. Genocide is indeed preventable. 60 years ago, we didn’t even have a name for this evil. Now, we not only can name it, we have legal mechanisms obligating all to act to stop it, and increasing experience at trying to stop it. We now have the knowledge, we have the United Nations institution to help organize our response, and the political, economic, and military tools to prevent it. The question is, “Will we use them?”

    Let us work together to do so. Santa Barbara may feel as far from Darfur as a place can be – indeed it is. And yet, you all turned up today to engage on this most difficult of subjects. A crucial first step. Now organize, let your representatives know how you feel. The United States as a country must show leadership. Support United Nations efforts. Place pressure on all national governments to fulfill their obligations. Support the NGOs whose dedicated staff are risking their lives on the front lines.

    Today’s topic was “Who speaks for humanity?” One of my favorite saying is by Pastor Martin Niemöller, a German citizen of conscience who reflected on his experience with genocide in his own country 60 years ago:

    First they came for the Communists, and I didn’t speak up, because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up, because I wasn’t a Jew. Then they came for the Catholics, and I didn’t speak up, because I was a Protestant. Then they came for me, and by that time there was no one left to speak up for me.

    So to the question posed today, “Who speaks for Humanity?”, the answer is clear – we do. We must.

    Robert Orr is Assistant Secretary-General for Policy Planning in the Executive Office of the Secretary-General of the United Nations. The speech was given at a United Nations Day event held in Santa Barbara, California on November 4, 2006.

  • Bush Seeks Immunity for Violating War Crimes Act

    Thirty-two years ago, President Gerald Ford created a political firestorm by pardoning former President Richard Nixon of all crimes he may have committed in Watergate — and lost his election as a result. Now, President Bush, to avoid a similar public outcry, is quietly trying to pardon himself of any crimes connected with the torture and mistreatment of U.S. detainees.

    The ”pardon” is buried in Bush’s proposed legislation to create a new kind of military tribunal for cases involving top al-Qaida operatives. The ”pardon” provision has nothing to do with the tribunals. Instead, it guts the War Crimes Act of 1996, a federal law that makes it a crime, in some cases punishable by death, to mistreat detainees in violation of the Geneva Conventions and makes the new, weaker terms of the War Crimes Act retroactive to 9/11.

    Press accounts of the provision have described it as providing immunity for CIA interrogators. But its terms cover the president and other top officials because the act applies to any U.S. national.

    Avoiding prosecution under the War Crimes Act has been an obsession of this administration since shortly after 9/11. In a January 2002 memorandum to the president, then-White House Counsel Alberto Gonzales pointed out the problem of prosecution for detainee mistreatment under the War Crimes Act. He notes that given the vague language of the statute, no one could predict what future ”prosecutors and independent counsels” might do if they decided to bring charges under the act. As an author of the 1978 special prosecutor statute, I know that independent counsels (who used to be called ”special prosecutors” prior to the statute’s reauthorization in 1994) aren’t for low-level government officials such as CIA interrogators, but for the president and his Cabinet. It is clear that Gonzales was concerned about top administration officials.

    Gonzales also understood that the specter of prosecution could hang over top administration officials involved in detainee mistreatment throughout their lives. Because there is no statute of limitations in cases where death resulted from the mistreatment, prosecutors far into the future, not appointed by Bush or beholden to him, would be making the decisions whether to prosecute.

    To ”reduce the threat of domestic criminal prosecution under the War Crimes Act,” Gonzales recommended that Bush not apply the Geneva Conventions to al-Qaida and the Taliban. Since the War Crimes Act carried out the Geneva Conventions, Gonzales reasoned that if the Conventions didn’t apply, neither did the War Crimes Act. Bush implemented the recommendation on Feb. 7, 2002.

    When the Supreme Court recently decided that the Conventions did apply to al-Qaida and Taliban detainees, the possibility of criminal liability for high-level administration officials reared its ugly head again.

    What to do? The administration has apparently decided to secure immunity from prosecution through legislation. Under cover of the controversy involving the military tribunals and whether they could use hearsay or coerced evidence, the administration is trying to pardon itself, hoping that no one will notice. The urgent timetable has to do more than anything with the possibility that the next Congress may be controlled by Democrats, who will not permit such a provision to be adopted.

    Creating immunity retroactively for violating the law sets a terrible precedent. The president takes an oath of office to uphold the Constitution; that document requires him to obey the laws, not violate them. A president who knowingly and deliberately violates U.S. criminal laws should not be able to use stealth tactics to immunize himself from liability, and Congress should not go along.

    Elizabeth Holtzman, a former New York congresswoman, is co-author with Cynthia L. Cooper of The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens.