How America Gets Away with Murder

Illegal Wars, Collateral Damage and Crimes Against Humanity

Michael Mandel

• Publisher: Pluto Press
• Year: 2004
• ISBN:
  9781783719136
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Processus politique

In Kosovo, America claimed its war was a 'humanitarian intervention, ' in Afghanistan, 'self-defense, ' and in Iraq, it claimed the authority of the Security Council of the United Nations. Yet each of these wars was illegal according to established rules of international law. According to these rules, illegal wars fall within the category of 'supreme international crimes'. So how come the war crimes tribunals never manage to turn their sights on America and always wind up putting America's enemies - 'the usual suspects' - on trial? This new book by renowned scholar Michael Mandel offers a critical account of America's illegal wars and a war crimes system that has granted America's leaders an unjust and dangerous impunity, effectively encouraging their illegal wars and the war crimes that always flow from them.

Part I

Illegal Wars/Collateral Damage

1

Iraq 2003

America’s war on Iraq in 2003 was its third illegal war in just under four years. Each one was a bloody horror, but the Iraq war distinguished itself both for its bloodiness and for the flagrancy of its illegality. It was virtually certified as illegal by a defeat at the Security Council so unspinnable that President Bush had to back down from his boast to make the members ‘show their cards’ by forcing a vote.¹

The illegality of the Iraq war was not due to some lawyer’s technicality. The reasons for it (explored later in this chapter) were the same as the reasons for the defeat at the Security Council: the failure of the United States to demonstrate one decent moral justification for resort to war, with all the death and destruction that were sure to follow. The United Nations weapons inspections had turned up nothing, and, despite crude attempts by the Americans and the British to discredit the inspectors before the war with phony intelligence – ‘risk assessment enhancement’ as the American comic strip Doonesbury called it² – they themselves would do no better when they scoured the country afterwards. There was admittedly no threat of Iraq attacking the United States or its allies, so there was no plausible claim of self-defense. Those few who believed that the war would be about ‘freeing’ Iraqis were rapidly disabused of this when, with the regime of Saddam Hussein overthrown, the Americans made it clear that the Iraqis would have a hard time ever freeing themselves from the American military occupation. Nor could concern for Iraqi human rights be taken seriously as a motive from a country that had punished Iraqis for twelve years with an inhuman sanctions regime.

And where was the humanity to be found in a war that had destroyed so many human lives? Iraq Body Count, an international research group dedicated to documenting scientifically the Iraqi civilian casualties, estimated the number of those killed in the war and occupation (as of August 2003) at between 6,100 and 7,800, with 20,000 wounded.³ Most of these people, about 4,100 to 5,200, had been killed during the invasion. A Los Angeles Times survey of Baghdad hospital records counted 1,700 civilians killed in the battle for Baghdad alone.⁴ The same records showed 8,000 injured. ‘Injured’ included losing both your arms and suffering deep burns to 35 per cent of your body, not to mention having your father and mother killed, like twelve-year-old Baghdadi Ali Ismail Abbas. While the war deaths of American and UK soldiers were carefully counted at 164, with 569 injured, the number of Iraqi soldiers killed and wounded would probably never be known.⁵ Estimates ranged from 2,300 to tens of thousands.⁶

The killing didn’t stop with the overthrow of the Iraqi regime. What the Americans called the ‘bitter enders’ immediately started a guerrilla war against the occupation, attacking American soldiers and many other targets daily throughout 2003. American deaths from these attacks – about 200 in the period from 1 May to 1 December – sent shock waves through the US. But about 3,000 Iraqi civilians were killed during the same period, whether as bystanders in the attacks on Americans or in the inevitable counterattacks, or in other violence related to the occupation. Jittery American soldiers shot dead five members of the same family on 13 June, then nine Iraqi police and three civilian bystanders on 12 September, and all five occupants of a farm truck carrying chickens on 11 November. The August truck bomb attacks against United Nations headquarters in Baghdad and a Shia Mosque in Najaf took the lives of over 100 Iraqis, as well as those of UN operations chief Sergio Vieira de Mello and top cleric Ayatollah Mohammed Bakr al-Hakim. When attacks against Americans reached a crescendo in November with the shooting down of four American helicopters and about 70 US combat deaths, America responded with ‘Operation Iron Hammer,’ and the bombing war had essentially re-commenced. ‘This is war,’ said a US Major-General on 19 November. ‘We’re going to use a sledgehammer to crush a walnut.’⁷ On that day and the next, the Americans killed ten Iraqi ‘insurgents,’ and another ten Iraqi civilians died in bomb blasts in three separate cities. Three were children killed in an explosion at a school, and it wasn’t known whether the bomb had been placed there or one of the children had been playing with ‘unexploded ordnance.’⁸

Compounding the violence was the fact, soon evident, that the US had done virtually no planning for actually administering Iraq after it had been conquered. A country reduced it to a fifth of its pre-1991 productive capacity by more than a decade of sanctions quickly descended into the chaos of looting, violent crime and sabotage. Not only the treasures of the Baghdad Museum, but the hospitals, schools and power plants were stripped of everything that wasn’t bolted down. The murder rate soared, and oil, water and electricity systems remained a shambles throughout 2003. Already in June, with anti-American discontent and guerrilla attacks steadily rising, US ground forces commander Lt. Gen. David McKiernan had concluded that ‘Iraq will be a combat zone for some time.’⁹

In early 2003 a global anti-war movement the likes of which had never before been seen demonstrated in its millions to show that the world did not believe the revolving justifications the Americans kept serving up for the war. A poll released by the American Pew Research Center on the day before the war showed opposition in every country surveyed except for the United States, including America’s main ally Britain, where opposition ran at 51 to 39 per cent. Opposition was massive not only in opposing countries like France (75 percent opposed to the war, to 20 percent in favour), Germany (69 to 27 percent) and Russia (87 to 10 percent) but also in ‘Coalition of the Willing’ countries Italy (81 to 17 percent), Spain (81 to 13 percent), Poland (73 to 21 percent) and Turkey (86 to 12 percent).¹⁰ The world was convinced that this was not a war fought because of some new realities of terrorism, weapons of mass destruction, much less for ‘freedom,’ but rather for the old familiar reasons of empire: private wealth and public strategic power. Iraq had the second-largest oil reserves in the world, a source of both, and it was clear that the Americans wanted to be the ones in charge, not only of Iraq, but of the whole, increasingly unstable region.¹¹ ‘[W]hy does the administration seem unconcerned about an exit strategy from Iraq once Saddam is toppled? Because we won’t be leaving. Having conquered Iraq, the United States will create permanent military bases in that country from which to dominate the Middle East.’¹² The ancient coinage of empire, ‘credibility,’ was at stake: ‘Every ten years or so, the United States needs to pick up some small crappy little country and throw it against the wall, just to show the world we mean business.’¹³

The world’s representatives at the United Nations and on the Security Council, prodded by opinion on the world’s streets, scrutinized America’s trumped-up claims that some legitimate collective interest or human good was at stake and rejected them. Despite the enormous pressure it could wield as the richest and most powerful country in the world, the United States was able to muster only four votes for war out of the 15 on the Security Council, the body entrusted by the 191 members of the United Nations (including the US) with the duty to decide matters of war and peace.

In technical terms this was a war of ‘aggression’ – the legal word for a war that does not fall within the narrow confines of the right of self-defense and has not been authorized by the Security Council as absolutely necessary in the collective interest of international peace and security. What does it mean for a country to wage a war of aggression? If we judge it by the standards laid down by the Nuremberg Tribunal that judged the Nazis after World War II, it is the supreme international crime. The first count against the Nazis in the Nuremberg Charter was the ‘crime against peace … namely planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties’ – international treaties just like the Charter of the United Nations. The judges of the Tribunal came from the four victorious powers America, Russia, Britain and France. In one of the best-known passages from the judgment of the Tribunal they declared:

War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, 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.¹⁴

So according to this foundation judgment of all international criminal law, the Americans, and that means their leaders – Messrs. Bush, Rumsfeld and Powell, General Franks, Ms. Rice, etc., and their associates Messrs. Blair, Hoon, Straw, et al. – are guilty of having committed the supreme international crime in Iraq, the one that contains within itself the accumulated evil of the whole. But even more than this: these leaders are also guilty for every act of violence with which this war was pursued. In the words of the American Chief Prosecutor at the Tribunal, the much-venerated American Supreme Court Justice Robert H. Jackson:

Any resort to war – any kind of war – is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive war illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes.¹⁵

In other words, President Bush and his colleagues are legally guilty of the murder of many thousands of people, not to mention the grievous assault of many tens of thousands more and so on down the list of the most serious crimes in the criminal codes of every country of the world. It’s the kind of thing that, when done on a fraction of the scale in the Bush family’s Texas, gets you a one-way ticket to the lethal injection chamber. And it doesn’t matter that the war was authorized by the American Congress, even if that made it legal according to American law, because the fact that a war is legal according to the law of the country that launches it is irrelevant to international law. The Nazi war was legal according to Nazi law. International law is about international norms and international treaties, like the Charter of the United Nations (to which, all appearances to the contrary, the Americans are still parties) that made the war unquestionably illegal. According to Principle II of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgement of the Tribunal: ‘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 that act from responsibility under international law.’¹⁶ Principle III adds: ‘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.’

But the President isn’t headed for Death Row, he’s not even going to court. Because, for all we hear about war crimes and international criminal courts, there isn’t one that has any jurisdiction over these supreme criminals for their supreme crimes. There is a brand new International Criminal Court at The Hague that is supposed to try people for war crimes, but, in order not to offend the Americans – who aren’t even parties to the Court – it doesn’t have jurisdiction over the supreme crime of starting an illegal war in the first place, only the lesser ones, crimes against the so-called ‘laws and customs of war.’ It’s as if there were no law against murder, only murdering without reasonable regard for the safety of bystanders. Think of it as a ‘loophole.’ One Nuremberg prosecutor wrote at the time that, since the laws and customs of war are typically violated by both sides, they are ‘at best a fragile barrier between the violence of war and its victims … [A] modern war, no matter how chivalrous, involves so much misery that to punish deviations from the conventions without punishing the...