The case for war crimes indictments against the Bush regime

by Jack Rabbit

This post is being written for those who, like Muddleoftheroad, believe it would either be unjustified or unwise to bring war crimes charges against Mr. Bush and other members of his administration arising out of the invasion of Iraq. There are those of us who contend that it would be both justified and wise.

Iraq posed no immanent threat to the United States or anyone else. The best available intelligence showed that Iraq’s military capabilities were much reduced from what they were at the end of the Gulf War in 1991. Any claims to the contrary are bogus. The United States charged that Iraq aided al-Qaida, the terrorist organization responsible for the attacks against the US on September 11, 2001. However, no evidence was presented to support such a claim. Indeed, al-Qaida terrorizes the world in order to promote an Islamic fundamentalist agenda. It has no use for secular Arab governments, such as Saddam’s Iraq. Meanwhile, Saddam had no use for threats to his secular regime posed by supporters of Islamic fundamentalist organizations in his Iraq. He brutally suppressed such opposition. The charges of cooperation between Saddam’s Ba’athist government and al-Qaida are absurd. The repetition of the charges by members of the Bush Administration can only be characterized as deliberate lies.

There is the legal argument. Why should we have a body of international laws and conventions if they can be cast aside for the convenience of a tyrant? Laws are made to be applied equally. International law tell strong nations and weak alike when war is justified and what acts of war are legal. Mr. Bush is no less subject to international humanitarian law than is Saddam.

The Charter of the United Nations recognizes two justifications for war. The first of these is self-defense. A nation may take up arms if it is under attack or under the immanent threat of an attack. This rules out any “pre-emptive” attack taken under the so-called Bush Doctrine outlined in the National Security Strategy of the United States (see Part V). The term pre-emptive in that doctrine is misused; the proper term for the kind of strike that Mr. Bush asserts is preventative . A preventative strike is one undertaken to prevent a potential threat from materializing. Clearly, such a threat is not immanent and is illegal under existing international law. Were Mr. Bush to undertake military action with no better justification than is laid down in the National Security Strategy, it would be a war crime on its face.

The second reason the United Nations Charter recognizes for taking up arms is to enforce UN resolutions and to respond to exiting threats to peace (see the United Nations Charter, Chapter 7). If the UN Security Council determines that force is necessary to maintain the peace, then a military force may be assembled under the auspices of the United Nations (Article 42). This was done to repel Saddam’s invasion of Kuwait in 1991.

In the run up to the invasion, the United States and Britain asserted that Iraq still possessed weapons of mass destruction in violation of UN resolutions passed in the wake of the Gulf War of 1991. The US demanded that the UN take action to bring Iraq into compliance. In response to these demands, the Security Council passed Reolution 1441. This directed Iraq to accept the return of weapons inspectors in order to ascertain the extent of compliance or noncompliance or face “serious consequences”. That phrase is not an open invitation to war. When the UN wants to use military power to enforce the peace, the phrase used is “any means necessary.” Consequently, a second resolution was sought by the US and Britain. However, in light of the lack of discovery of any WMDs by weapons inspectors and their reports of adequate, albeit not perfect, cooperation from the Iraqi regime, most members of the council expressed the feeling that force was not justified and that the inspections process should be given more time. The United States and Britain, having insufficient support for a second resolution to authorized force, abandoned the diplomatic effort and arrogated for themselves the right to go to war.

In the run up to the war, Mr. Bush and his lieutenants asserted that it was up to Saddam to prove that he had no banned weapons. Of course, this is intellectually dishonest. Saddam could no more prove that he wasn’t hiding banned weapons than Mr. Bush can prove that he has stopped drinking. It burden of proof is on those who assert that Saddam possessed such weapons to show that he did. Before the fighting started, they found nothing of significance. The existence of al-Samoud 2 missiles, some of which under non-combat conditions flew a few miles further than allowed under the 1991 resolutions, was not something a reasonable person could spin into a causus bellum. The weapons inspectors found no evidence of nuclear, chemical or biological weapons in Iraq. Indeed, at the time the fighting started, any assertion about Saddam’s nuclear program being a threat had all but been dismissed by the chairman of the International Atomic Energy Administration, Dr. Mohammed El-Baradei. Scott Ritter, the former Chief Weapons Inspector, stated repeatedly that almost all of Iraq’s WMD capability had been destroyed before weapons inspectors left Iraq in 1998. In 1995, General Hussein Kamel defected from Iraq and gave UN weapons inspectors information concerning the weapons program. He told them that he had ordered the destruction of Iraq’s chemical weapons shortly after the end of the 1991 war.

During the invasion, no banned weapons were used. This in spite of the fact that not only was Saddam’s regime at stake, but so was Iraq’s national sovereignty. The question of one’s national sovereignty would have provoked leaders with more scruples than Saddam about using biochemical weapons into using them, especially if faced with a superior military force amassed at one’s border under the direction of a national leader with no patience for diplomacy. Since the war ended, no weapons have been found. General Amir al-Saadi, Saddam’s key science advisor, voluntarily surrendered to the invading forces and has stated that there are no banned weapons to be found.

None of this proves that Saddam had no weapons of mass destruction. As noted before, it is intellectually impossible to prove such a negative assertion. However, it suggests very strongly that he had none. Surely, there is no reason to believe that he did. One question that can now be raised is what exactly, if anything, was presented to Mr. Bush and members of his administration that would have caused them to believe that Saddam possessed banned weapons. Indeed, one may suggest that they really had no reason to think so.

A reasonable person might conclude that the invasion of Iraq was instigated using false charges of connections with terrorists who attacked the US on September 11, 2001 and false charges that Iraq was in violation of UN resolutions. The United States and Britain went to war without a UN Security Council resolution authorizing the action and certainly cannot claim that Iraq posed an immanent threat. The invasion of Iraq by the United States and Britain was unjustified and illegal.

Therefore, there exists a case against Mr. Bush and members of his administration and Mr. Blair and members of his ministry for war crimes arising out of the invasion of Iraq. This can no longer be denied.

Would it be wise to refer such a case to an international tribunal?

The Bush administration has been resistant any international agreements that restricts the ability of the United States to act unilaterally as it sees fit under any given set of circumstances, regardless of propriety and consequence to other nations. It is this very attitude, along with the ability to impose his will unilaterally, that make Mr. Bush the most dangerous man in the world today. That in itself should bring about a desire to do something about his unbridled power.

Mr. Bush and his administration have been particularly hostile to the concept of international law. In their view, the United States is the most powerful nation in the world and that is sufficient justification for any act Mr. Bush takes in the name of the American people. If an American does it, it is not a war crime. This is pure arrogance. It is the reasoning of a tyrant, no of a leader of a free, democratic nation. Of course, Mr. Bush is a tyrant and seized power not through democratic processes but through fraud and manipulation.

Nevertheless, least the arm of international law become too long, Congress passed and Mr. Bush signed the American Servicemembers’ Protection Act of 2001, which provides the President of the United States the authority to use force to free any American detained for trial before the International Criminal Court. Such a threat should not be taken lightly.

In light of the US threat to use force against the institutions of international justice, it seems problematic that an actual arrest and trial of a suspected high-ranking war criminal will take place. However, war crimes indictments may become useful as diplomatic weapons against rogue superpowers. Beyond the shores of the United States, Mr. Bush is the most hated and feared man in the world today. War crimes indictments against him and other members of his administration would formally brand them as international pariahs. It would become difficult if not impossible for these rogues to conduct foreign policy in any normal manner. They would find themselves unwelcome in any country with anything resembling popular government.

The step of handing down war crimes indictments should not be taking in isolation. This move should be accompanied by boycotts of American products and divestment in American corporations, especially those that seek to profit from the invasion and occupation of Iraq. Longshoremen in foreign ports should refuse to unload American cargo. Of course, it is also very important that those political leaders who brought their nations into Mr. Bush’s unseemly coalition of the willing be defeated at the polls.

Many Americans who would like to see Mr. Bush defeated in the 2004 election believe that such a strategy would play into Mr. Bush’s hands. They argue that Americans would rally behind Mr. Bush and that he will be re-elected easily.

However, Americans are rallying behind Mr. Bush now. He is receiving popular accolades from the American public for acts that defied international humanitarian law. We may well ask ourselves: How did this happen in a democracy?

The answer may well be a very uncomfortable truth that we Americans should come to face: America is no longer a democracy. A democracy is a state where:

• citizenship is universal;
• all citizens have an equal opportunity to participate in and influence public affairs; and
• a set of guaranteed civil liberties is in place to assure that there is full and open discourse on public affairs.

A free press and media is a civil liberty that helps to assure full and open public discourse. Unfortunately, the press is not free and does not fulfill that purpose. This is not to say that the government is censoring the news. It isn’t. However, the media, through which 85% of Americans get their news and information, is controlled by fewer and fewer hands, each pair too much like the next. These are the hands of the rich and powerful who, rather than disseminating news needed by a public to make informed decisions, disseminates only that information that perpetuates their power. They decide what voices shall be heard and under what circumstances. They decide what opinions shall be aired and by whom. In this way, our right to a free press is denied and citizens are unable to fully and openly discuss public affairs.

The absence of a free press is not the only subversion of democracy perpetrated by the rich and powerful on the rest of us. Through our system of campaign financing, those at the upper rungs of the social ladder decide which candidates will be heard and which shall not. This gives some citizens far more influence over public affairs than others, while they also chose who will participate in public affairs beyond the level of simply casting a ballot.

Well, one may say, at least citizenship is universal. However, legislation being drafted by the Justice Department will soon fix that should it become law. The Domestic Security Enhancement Act of 2003 will give the executive branch the power to strip one of his American citizenship and the rights that the Declaration of Independence calls inalienable. This act will legalize the very kind of arbitrary government power for which our forefathers died in the American Revolution, the Civil War and the Civil Rights Movement. Should this abominable act become law, any pretense the United States still has to being a democratic state ends.

It is naïve in such an environment to believe that free and fair elections in 2004 will rid us of the plague that Mr. Bush has wrought on us. We have already seen how Mr. Bush and his associates handle elections. First, a number of inconvenient voters are disenfranchised; if Plan A doesn’t work, Plan B is to make sure some votes are not counted. However, it is unlikely that in 2004 Mr. Bush and those running his campaign will have to resort to such tactics. Mainstream news outlets, especially television, present him as a latter-day Churchill with little or no dissenting view. Campaign contributions will assure that he and the Republicans will get their message out while the Democrats will make do with what they have. If that isn’t enough, maybe by that time a few voters leaning the wrong way can be stripped of their right to vote.

Half-measures have never worked against a tyrant of the magnitude of George W. Bush. Appeasement failed against Hitler. Give Bush a pass today and he will seek to take more tomorrow. He is a threat to what is left of American democracy, he is a threat to world peace, he is a threat to the sovereignty of other nations. He must be stopped. To do so will take the efforts of people of good will everywhere.

The gauntlet must be thrown down. Bush and his minions must be told that they are subject to the same rules as everybody else.

War crimes indictments against this tyrant are justified legally, morally and practically.

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