Tag Archives: international law

Commentary

The answer to terrorism is law

The Anglo-American legal tradition is in serious trouble if not a single major U.S. politician is willing to suggest that the most effective way to combat international terrorism is through law and the courts.

Terrorism is a crime under the United States code, defined at 18 U.S.C. §§ 2331 and 2332b . It sits just a few subchapters away from piracy, another international crime which is also adjudicated, relatively successfully, by the U.S. legal system. It is probably tough to remember, but the mastermind of the 1993 World Trade Center attack, Ramzi Yousef, was tried in a civilian court. He is currently serving a life sentence in Florence, Colorado, at a federal Supermax prison.

It would reflect a great deal of strength for a politician to argue that law will dispose of terrorism. First, most of us already know that courts can successfully handle heinous international crimes. At Nuremberg, judges were able to weigh evidence and convict individuals who committed some of the most deeply offensive crimes in history. This work continues in the Hague today with the International Criminal Court. Most international scholars agree that such efforts are largely positive in helping to close the chapter on war and to move a society forward in a more positive, legally-minded direction. If a court was capable of adjudicating the Holocaust, it is surely capable of dealing with international terrorism.

There is strength in affirming fundamental values on which a civilized society is based. We cannot have a world in which some crimes go before a civilian judge, and some crimes are subject to summary execution by the President through a drone strike. In all matters of justice, separate-but-equal is a fatally flawed directive. Historically, the Anglo-American tradition has sought to limit executive power and preserve the ability of a neutral judge to adjudicate disputes — values that have been deeply weakened by 15 years of unending war and which now must be reclaimed or forever lost.

There is strength in admitting that the military approach to terrorism has not only failed, it has made the problem significantly worse. Using a bomb to solve terrorism creates a hydra where chopping off one head only produces three more. Kill Baghdadi and someone else will take his throne, or perhaps three more. Is this not what created ISIS? Is it really so difficult to see how the use of the military in the Middle East has opened the gates of Hell? Is no one really going to question the insanity of the U.S. simultaneously bombing ISIS (fighting Assad) and Assad (fighting ISIS)?

There is strength in dealing with the eventual even-handedness of justice. It is an unfortunate truth that Western countries have also, too, committed crimes since 9/11. Those crimes will require an accounting before a judge, at least some day. And in particular, there will never be peace in the Middle East without an answer for the Iraq War, which will be recognized one day by all peoples as one of the gravest international crimes since World War II. This was a war that was built on lies and sold to a fearful public like the vilest of snake oils. And its bitterness remains. The Iraq War destroyed a country, killed millions of innocent parents and their children, and is the caustic source of the violence that now roils the Middle East and strikes into Paris.  Justice requires an answer for the Iraq War —  a good and healthy thing as such justice will act as a lesson to the future that the human species will never survive if it relies on war, particularly at a time when so much destruction can be committed by so few in number.

Now, the specter of fascism creeps in this petty pace as politicians in Europe and the U.S. create false enemies and denounce refugees, threaten more war, and pander to the ugliest motivations of each of their respective nations. There is strength in rejecting this fascism.

The world should put together its finest legal minds from all countries — from the U.S., from Latin America, from Europe, from Africa, from Asia, and yes, from the Middle East. Let these minds define the problem, propose a legal solution, and then either work with the International Criminal Court in the Hague, or set up a special tribunal to adjudicate the issue of terrorism. Let that court issue warrants, and make sure that the world will cooperate with that court to arrest those who are wanted. Give the accused a lawyer, have a trial, and issue a sentence. Put the guilty in jail. And acquit those for whom there is not enough evidence, and let them go.

And after the world has set up that process, the world should do the same thing for those on all sides who are committing crimes. All people should take a look at the log in each of their own eyes, particularly after analyzing the speck in that of the other. The people of every nation must look into their hearts and their minds to figure out why governments, everywhere, are getting away with murder. The world needs to put a stop to that, as well.

I know very little about very little. But there is one thing I know to be true, like the light of a thousand suns. The answer to terrorism is law.

Commentary

What is the Crime of Aggression?

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The theory against the defendants in the Saleh v. Bush lawsuit — which include George W. Bush, Richard Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and Paul Wolfowitz — is that these individuals committed the “crime of aggression.”

What is the crime of aggression?

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The crime of aggression was the chief crime prosecuted against Nazi war criminals at the Nuremberg Trials held at the end of World War II. While Nuremberg is remembered as the tribunal which prosecuted the Nazis for war crimes and crimes against humanity, the International Military Tribunal also held that the Nazis broke the law by planning and waging wars in violation of international treaty.

Under the rule of Nuremberg, waging a war of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” (Emphasis added.)

In the Saleh v. Bush complaint, the plaintiff Sundus Shaker Saleh alleges that the defendants in this case planned and waged a war in violation of international law and thus committed the crime of aggression as defined by Nuremberg. Ms. Saleh alleges that the defendants began planning a war against Iraq as early as 1998 through the non-profit known as “The Project for the New American Century.” Ms. Saleh alleges that once in power, the defendants used 9/11 as an excuse to scare and mislead the American public into supporting a war against Iraq. Finally, the plaintiff alleges that the war was executed without proper legal authorization, constituting another act of aggression against the people of Iraq.

Ms. Saleh has filed suit against members of the Bush Administration under the Alien Tort Statute, which permits a non-US citizen to file suit for any tort “committed in violation of the law of nations or a treaty of the United States.” Thus, Ms. Saleh argues that she has the right to bring the Bush Administration to court as they violated the rule of Nuremberg, international law and international treaty in planning and waging the Iraq War.

Witness Iraq

Can the Bush Administration be taken to court for the Iraq War?

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The Bush Administration and its principals — including George W. Bush, Richard B. Cheney, Donald M. Rumsfeld, Condoleezza Rice, and Paul D. Wolfowitz — may have violated international law by initiating the Iraq War.

Accordingly, Iraqis who suffered harm during the Iraq War may have causes of action under international law not only against those directly responsible for any harms they have suffered, but also directly against Bush Administration officials.

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First, the Bush Administration may have violated international law by conspiring and waging a war of aggression. A war of aggression is the “supreme international crime,” and was the chief cause of action against Nazi leaders in Nuremberg. The Nuremberg justices wrote:

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. 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.

Was the war against Iraq, similarly, a war of aggression? Witness Iraq says yes.

As early as 1997, members of the Bush Administration were calling for the military overthrow of Saddam Hussein through a non-profit called The Project for the New American Century.

Their efforts included a letter to President Clinton signed by Donald M. Rumsfeld and Paul D. Wolfowitz arguing that the United States implement “a strategy for removing Saddam’s regime from power. This will require a full complement of diplomatic, political and military efforts.”

From 1997 to 2000, The Project for the New American Century issued reports with such titles as, “A Way To Oust Saddam,” and “How To Attack Iraq.”

When George W. Bush became President, he appointed Richard B. Cheney as Vice President, Donald M. Rumsfeld as Secretary of Defense and Paul D. Wolfowitz as Deputy Secretary of Defense — all three of whom were founding members of The Project for the New American Century.

According to British journalist John Kampfner, the day of the 9/11 attacks, Wolfowitz and Rumsfeld openly pushed for war against Iraq – despite the fact that the 9/11 hijackers were Saudi Arabian and had been based out of Afghanistan.

Rumsfeld asked, “Why shouldn’t we go against Iraq, not just al-Qaeda?” with Wolfowitz adding that Iraq was a “brittle, oppressive regime that might break easily—it was doable.”

Kampfner writes, “from that moment on, he and Wolfowitz used every available opportunity to press the case.”

According to Kampfner, “Undeterred Rumsfeld and Wolfowitz held secret meetings about opening up a second front—against Saddam. Powell was excluded.”

The Bush Administration adopted the plan to invade Iraq at least by September 12, 2002 – a little more than a year after the first anniversary of 9/11. In a speech to the United Nations General Assembly, President Bush outlined the threat of terrorism, remarking:

In cells and camps, terrorists are plotting further destruction, and building new bases for their war against civilization. And our greatest fear is that terrorists will find a shortcut to their mad ambitions when an outlaw regime supplies them with the technologies to kill on a massive scale.

In one place — in one regime — we find all these dangers, in their most lethal and aggressive forms, exactly the kind of aggressive threat the United Nations was born to confront.

The regime at issue: Iraq.

Under international law, a country may only go to war (1) in self-defense or (2) if approved by the United Nations Security Council. The United Nations did not authorize the Iraq War, which means the central question of any claim of aggressive war would be whether the war in Iraq was initiated in self-defense.

At Witness Iraq, we believe that the overwhelming amount of evidence that has come to light since the invasion confirms that the Iraq War was a premeditated “war of choice” (to use President Barack Obama’s phrase) that likely violated international law and amounted to a war of aggression.

This was the conclusion reached by former United Nations Security General Kofi Annan, who in 2004 unequivocally called the Iraq War “illegal.”

Second, it may be the case that the Bush Administration violated international law by authorizing and engaging in torture. Torture includes, but is not limited to, the use of water-boarding and other “enhanced interrogation techniques.” Because there has been no formal investigation into Bush-era abuses, there is no way to know if the use of torture was widespread.

Third, it may be the case that the Bush Administration violated international law by using depleted uranium, the use of which may have violated international treaties.

Fourth, it may be the case that the Bush Administration violated international law by destroying the cultural heritage of Iraq. Both international treaty as well as the Nuremberg Trials provide the legal basis for a cause of action if it can be shown that cultural artifacts and centers were targeted for destruction during war.

Fifth, it may be the case that the Bush Administration violated international law through unlawful deportation or transfers of Iraqi civilians, which is a “grave breach” under the Geneva Conventions (see Articles 49 and 147 of the Fourth Geneva Convention).