Nuremberg and Iraq
By PETER DYER
(Originally published August 7, 2003)
By now it is clear to many Americans that the “imminent threat” to the security of the United States posed by Iraq was a fabrication. Instead, those who started the war now insist that aggression was justified on strictly moral terms. We did it, the reasoning goes, to liberate the citizens of Iraq from the forces of evil because we are the only country with the unique combination of moral authority and sheer power to do the job.
This constantly repeated invocation of international moral authority invites us to remember a landmark trial which followed another war: World War II. If ever any single event represented to the international community the assumption and effective use of U.S. moral authority, it was the first Nuremberg Trial.
After Nazi Germany had been defeated, the major victorious allies (the United States, the Soviet Union, Great Britain and France) convened a trial of 21 of the most prominent Nazis in the Palace of Justice at Nuremberg, the spiritual home of Nazism. A Charter was drawn up, establishing an International Military Tribunal as the legal basis for prosecution of these men for three distinct categories of crimes: crimes against peace, war crimes and crimes against humanity.
The bench was made up of one judge from each of the four allied countries. The trial opened in October 1945 and 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. One, Herman Goring, Germany’s number two Nazi, committed suicide before his scheduled execution. Ten were hung.
The effort to try the Germans in an international forum originated in the United States. To the chief U.S. prosecutor, U.S. Supreme Court Justice Robert Jackson, was given the task of opening the prosecution.
While this 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. This was simply unprecedented.
Most often, when this trial and the series that followed are remembered, it is 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…for which there shall be individual responsibility: (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 our 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 our security nor to the security of the world. The invasion violated the U.N. Charter as well as U.N. Security Council Resolution #1441.
As a war of aggression, the invasion falls into the Nuremberg category of Crimes Against Peace. As such, there is individual responsibility for this crime. Thus, if we chose to be bound by the precedent which we ourselves set and for which we punished leaders of World War II Germany, we would arrest and prosecute those individuals responsible for the invasion of Iraq: President George W. Bush, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell and National Security Advisor Condoleeza Rice. The list, certainly, would not stop with these people.
Those who justify the invasion of Iraq, invoking the U.S. self-declared mission to rid the world of evil 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 a criminal trial, Justice Jackson’s words again: “(T)he ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let 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. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. 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.”
Post script added March 2013 on the ten year anniversary of the US invasion of Iraq: On Oct. 16 1946, 10 German war criminals were executed. This included four of five who had been sentenced to death for crimes including aggression–starting a war. The fifth, Hermann Goring, committed suicide the night before.
About the writer
Peter Dyer was born in Kansas City, Missouri. He attended school in western New Jersey and in the Berkshire foothills in northwestern Connecticut, and moved to California in 1970 to get warm and to go to college.
He and his wife Cathy, a small animal veterinarian, met in San Francisco in 1977. They moved to Davis, California in 1984 and lived there until late 1998. In January 2004, they moved to an old farm in the golden, rolling hills just outside of Winters.
The peripatetic couple then packed up again and moved to New Zealand, and now live in Wellington, the capital, a short walk from one of the world’s most beautiful harbors.
For 26 years Peter made his living as a machinist — the bulk of that working at UC Davis. He is now a freelance writer.
He has written for the Winters Express; the US web site ConsortiumNews.com; the Palmerston North (NZ) Tribune; and North & South magazine — a monthly NZ publication. He is now researching for a book on New Zealand’s leaky building problem.
When not focused on his wife, his terrier mix Coady, or his work, he plays a bit of guitar, sings and writes songs in a style of music he years ago branded “Regressive Country.” This is closely related, although not identical, to what has since become known as “Americana.”
There is yodeling. It is not for the faint of heart.
Peter has also recently developed a keen interest in photography.
Provided all goes according to plan, he will be celebrating his 60th birthday this year on Easter Sunday.