War crimes, international law and the elephant in the room

By Rupen Savoulian

March 9, 2012 – Antipodean Athiest, submitted to Links International Journal of Socialist Renewal by the author – US secretary of state Hillary Clinton, speaking to the US Senate Appropriations Committee in February 2012, stated that Syrian President Bashar al-Assad meets the criteria of a war criminal. The Telegraph newspaper in Britain reported as follows:

Based on definitions of war criminal and crimes against humanity, there would be an argument to be made that he would fit into that category,” she said in Washington.

But I also think that from long experience that can complicate a resolution of a difficult, complex situation because it limits options to persuade leaders perhaps to step down from power.

This raises a number of interesting questions regarding the application of international law to heads of state and corresponding government officials. What constitutes war crimes, and how can we evaluate whether or not a state leader is a war criminal?

Nuremberg and war crimes

Definitions of war crimes date from the end of World War II. The charter that established the framework for the Nuremberg war crime trials of Nazi leaders has also been incorporated into today’s International Criminal Court. The charter of the International Military Tribunal defined war crimes defined the following as war crimes in Article 6:

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal 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, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The following quote from Article 6 is particularly relevant:

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The Nuremberg principles are a set of guidelines, established by the International Law Commission of the United Nations, to undergird the legal principles of the Nuremberg trials. These principles clearly state that any person charged with a war crime has the right to a fair trial, but if a person committed such a crime while performing their duties as head of state or a government official, such a position does not relieve them of their responsibility under international law.

The Assad regime

The Assad regime has unleashed terrifying violence to suppress an uprising by the Syrian people, particularly in the city of Homs. The Ba’athist regime in Syria is guilty of torturing dissidents, imposing itself in power by force. The elder Assad, Hafez, carried out a coup d’etat in 1970, and his son, Bashar, has continued to rule a police state.

Syrian Baathism, which started out back in the 1940s as an ideology that articulated Arab nationalism and semi-socialist independence for all the Arab states, has deteriorated into a tyranny that has no problems making accommodations with US, British, French, Russian imperialist powers.

In June 2005, at the 10th regional Ba’ath Party conference, the party adopted a new economic approach it calls a "social market economy", trying to balance the public system while introducing more privatisation in all areas of the economy. As one expert put it, opening up to private corporations “is destroying the daily life of the Syrian people”. While Ba’athism supports state ownership of the major branches of the economy, it is opposed to the confiscation of private property, and has actively cultivated the growth of private business in the countries it ruled (in Iraq until the March 2003 US invasion, and Syria until today).

The Ba’athist party, advocating Arab nationalism, was established by Michel Aflaq. Born in Damascus, Aflaq was a sociologist and philosopher who elaborated a vision of pan-Arab nationalism, intending to revive the Arab nationality through a renaissance of Arab culture and education. Ba’athism is officially secular, but has accommodated the Islamic beliefs of the Arab people.

An Arab-centric ideology, Ba’athism rejects communism as atheistic and inapplicable to the conditions of the Arab world. Aflaq himself was a Christian, but supported Islam and viewed the teachings of the Prophet Muhammad as fully compatible with an Arab socialist outlook. The Syrian Ba’athist party has been in power since 1963. The faction led by Hafez al-Assad took power in 1970 and ruled until his death in office in 2000. The son, Bashar, has continued his father’s legacy.

The Syrian regime has committed horrendous crimes – against the Palestinians. In the mid-1970s during the Lebanese civil war, the Syrian army intervened to slaughter thousands of Palestinians and Lebanese civilians to ensure the ascendancy of pro-Syrian factions in any post-civil war political arrangement in that country. Palestinians who opposed the domination of Syria were killed, and the Syrian army actively assisted right-wing extremist Lebanese groups in besieging Palestinian refugee camps. Until today, no one has brought the Syrian leaders to trial for their responsibility in these killings of Palestinians.

US war crimes hypocrisy

In November 2011, a Malaysian tribunal basing itself on the principles of the Nuremberg trials convicted former US President George W. Bush and former British Prime Minister Tony Blair of war crimes for their attack on Iraq in March 2003. As the Common Dreams web site reported:

Last November, for instance, a War Crimes Tribunal in Kuala Lumpur, Malaysia convicted both Bush and former United Kingdom Prime Minister Tony Blair of “crimes against peace.”  The verdict concluded that “Weapons investigators had established that Iraq had no weapons of mass destruction. Iraq was also not posing any threat to any nation at the relevant time that was immediate that would have justified any form of pre-emptive strike.”

While this tribunal received scant attention in the US press, it appears that the chief defendant, George W. Bush, is aware of the guilt on his conscience. The article continues:

Yet while official America may not take the idea of Americans being charged with war crimes seriously, it’s not absolutely clear that George W. Bush counts himself among that consensus.  In February, 2011, he cancelled a trip to a charity gala in Switzerland for reasons that are disputed.  Event organizers attributed the cancellation to demonstrations planned to protest the alleged torture of U.S.-held detainees during his presidency.  Human rights groups, however, thought the cause was their announced intention to file an official criminal complaint against him with Swiss prosecutors upon his arrival (along with the call for his arrest by a right-wing member of the Swiss parliament.)  A Bush spokesman declined comment at the time, but in a later story about Amnesty International’s call for his arrest during an upcoming visit to Africa, CBS News attributed the Switzerland cancellation to “fears that he may have faced legal action there.”

The elephant in the room

By the standards elaborated by international law, the US government of Barack  Obama and Bill Clinton must be indicted for war crimes. The US Socialist Worker reported in March 2011 that US soldiers in Afghanistan, for instance, are torturing, mutilating and killing Afghan civilians as part of their war in that country. The soldiers from the 5th Stryker Brigade, 2nd Army infantry were photographed gloating over the bodies of their victims. While the US military claimed that such incidents are isolated and do not represent the values that motivate the US armed forces, the 5th Stryker Brigade was armed, trained, undergone psychological testing and entrusted with carrying out orders from the highest levels of the US military and political authorities.

In 2011, during the Libyan civil war, NATO forces targeted and completely destroyed the town of Sirte, killing thousands of civilians. The Deccan Chronicle reported that residents fleeing Sirte were furious with NATO, and demanding to know why their home town was being targeted in such a systematic fashion. The article elaborated:

But many among the thousands of Sirte residents who managed to escape said the biggest danger was not Gaddafi loyalists but the bombs that drop from the sky and the ones the NTC fighters lob into their Mediterranean port city.

John Pilger, the veteran investigative journalist, said that the residents of Sirte are regarded as "unworthy victims", and therefore expendable. This bombing alone constitutes a war crime for which the responsible parties – Obama, Clinton and NATO commanders – should be indicted on charges under international law. The NATO bombing of Sirte can be compared to the German bombing of the Spanish town of Guernica during the Spanish civil war. The bombing of Guernica was intended as a demonstration of German imperial might. Today’s imperial powers demonstrated their terrible ferocity in Sirte.

There was a town in Iraq called Fallujah. As the US occupation of Iraq continued and the insurgency gained in strength, the US government decided to make an example of that city, and unleashed a massive offensive in November 2004. All infrastructure in that city, and the civilian population, were targeted by US forces. The entire city became a killing zone, and even the hospitals in the town were attacked. US marines boasted of their technique of "dead-checking"; when entering a room of wounded people, they would determine if anyone was still living by pressing their boots on the eyes of their victims. If the person moved, they were immediately shot.

The attack on Fallujah, while carried out under the Bush-Cheney administration, had the full support of the US Democratic Party, the party of Obama and Clinton. No one has ever been brought up on charges for that massacre. This was an act of collective punishment, an act of retribution because the people of Fallujah resisted the depredations of US imperial forces. Collective punishment is actually defined as a war crime under international law.

Two approaches

Back in 2008, the Georgian government, armed and supported by the United States, waged a short war on the breakaway republic of South Ossetia. The Russian military, having supported South Ossetia, quickly intervened and defeated the Georgian troops. Then Russian President, Dmitry Medvedev, issued a statement responding to the crisis. While pointing out that the Georgian government had repeatedly violated international law in contravention to the United Nations, Medvedev explained there was no reason why all the relevant parties could not resolve this dispute on the basis of international law. He explained that the current “provisions of the U.N. Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the C.S.C.E. Helsinki Final Act of 1975 and other fundamental international instruments” provide a solid, relevant and just basis for resolving this dispute between all the parties involved. Medvedev demonstrated to the international community that, even in a time of military conflict, he is willing to respect and implement international law.

President Obama was awarded the Nobel Peace prize back in 2009. During his acceptance speech, he elaborated his vision of a peaceful world – the US has the right to launch "preemptive strikes" against those forces that threaten its interests. Invoking the concept of 'evil in the world", just like his predecessor George W Bush, Obama outlined his intention to wage unilateral war against any regime or force that Washington deems to be an "outlaw". Obama assured his listeners that the United States did not intend to impose itself by force – heavens no – but because the US is motivated by 'enlightened self-interest" to propagate its values around the world. His speech, while more subtle and refined than the speeches of his predecessor, was no less effusive in its praise of US militarism. In one speech, Obama rejected the entire basis of the Nuremberg tribunals, advocating the illegal doctrine of "preemptive war", and repudiated the foundations of international law since the Nuremberg and Tokyo war crimes trials.

The outlaw in the world today is the Obama administration. We would do well to hold their government officials to account in the dock.