Iraq & the Nuremberg Precedent

By Peter Dyer
March 16, 2006

Editor's Note: As the United States approaches the third anniversary of the Iraq invasion, much of the commentary is focusing on the Bush administration's "incompetence" in prosecuting the war -- the failure to commit enough troops, the decision to disband the old Iraqi army without adequate plans for training a new one, the highhandedness of the U.S. occupation.

But what about the legal and moral questions arising from the unprovoked invasion of Iraq? Should George W. Bush and his top aides be held accountable for violating the laws against aggressive war that the United States and other Western nations promulgated in punishing senior Nazis after World War II? Do the Nuremberg precedents that prohibit one nation from invading another apply to Bush and American officials -- or are they somehow immune? Put bluntly, should Bush and his inner circle face a war-crimes tribunal for the tens of thousands of deaths in Iraq?

Despite the present-day conventional wisdom in Washington that these are frivolous questions, they actually go to the heart of the American commitment to the rule of law and the concept that the law applies to everyone. In this guest essay, Peter Dyer looks at this larger issue:

Just over six decades ago, the first Nuremberg Trial began. On Nov. 21, 1945, U.S. Supreme Court Justice Robert Jackson opened the prosecution of 21 Germans for initiating a war of aggression and for the crimes which flowed from this act. Now is a good time to reconsider some of the history and issues involved in this momentous trial in the light of the invasion and occupation of Iraq.

After Nazi Germany had been defeated, the major victorious allies (the United States, the Soviet Union, Great Britain and France) drew up a Charter establishing an International Military Tribunal as the legal basis for prosecution for three distinct categories of crimes: crimes against peace, war crimes and crimes against humanity.

The trial lasted for over a year, culminating in verdicts of guilty of one, some, or all of these crimes for 18 of the defendants. Eleven were sentenced to death.

While the Nuremberg trial is, these days, seldom invoked or discussed, it was, and still is, in the words of Tribunal President Sir Geoffrey Lawrence, “unique in the history of the jurisprudence of the world.” Among the most groundbreaking aspects were the drive to formally criminalize the three categories of crimes, and to establish responsibility by individuals for these crimes.

These days, the Nuremberg Trial is chiefly remembered for the prosecution and punishment of individuals for genocide. Equally important at the time, however, was the focus on wars of aggression. Thus, the first sentence of Justice Jackson’s opening statement: “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility.”

Crimes against peace and the responsibility for them were defined in Article 6, the heart of the Charter of the IMT: “The tribunal…shall have the power to try and punish persons who…whether as individuals or as members of organizations, committed any of the following crimes...(a) Crimes Against Peace, namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances…”

The desire was not only to punish individuals for crimes but to set an international moral and legal precedent for the future. Indeed, before the end of 1946, the United Nations General Assembly unanimously adopted Resolution 95 (1), affirming “the principles of International Law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.” And, of course, the United  Nations Charter forbids armed aggression and violations of the sovereignty of any state by any other state, except in immediate self defense (Article 2, Sec. 4 and Articles 39 and 51).

Invoking the precedent set by the United States and its allies at the Nuremberg trial in 1946, there can be no doubt that the U.S.-led invasion of Iraq in 2003 was a war of aggression. There was no imminent threat to U.S. security nor to the security of the world. The invasion violated the U.N. Charter as well as U.N. Security Council Resolution #1441.

The Nuremberg precedent calls for no less than the arrest and prosecution of those individuals responsible for the invasion of Iraq, beginning with President George W. Bush, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Condoleeza Rice, former Secretary of State Colin Powell and former Deputy Secretary of Defense Paul Wolfowitz.

Those who still justify the invasion of Iraq would do well to remember the words of Justice Jackson: “Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling these grievances or for altering these conditions.”

And, for those who have difficulty visualizing American leaders as defendants in such a trial, Justice Jackson’s words again: “...(L)et me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment...This trial represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace and to commit aggression against the rights of their neighbors.”

Peter Dyer is a machinist who moved with his wife from California to
New Zealand in 2004.