When I asked this week “When did it become appropriate to hold a vote about whether or not we should commit the “supreme international crime”? I received a comment that
The people who have received your message are probably already convinced of the illegality (or at least immorality) of a US attack on Syria, but efforts to persuade those not yet convinced would be aided by being able to refer to some internationally recognized legal document in which wars of aggression are so characterized and the characterization is explained (because all other war crimes flow from wars of aggression).
Not enough people know the disparity between internationally recognized legal principles and the term “international norms” made up by John Kerry to justify a military strike on a country which has not attacked the U.S. So, let’s break it down.
The phrase “supreme international crime” comes from a quote from U.S. Supreme Court Justice Robert H. Jackson, chief prosecutor at the Nuremberg War Crimes Tribunal. Richard Falk, speaking 60 years later at the World Tribunal on Iraq, gave the history of what the United States had agreed to and enforced as the victor:
The criminal trial of German and Japanese leaders after World War II, the Nuremberg Judgment issued in 1945 was a milestone in this process. The Judgment declared: “To initiate a war of aggression… 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,” and although Nuremberg was flawed by being an example of “victors’ justice,” the American prosecutor, Justice Robert Jackson, made what has been described as the Nuremberg Promise in his closing statement: “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
The internationally recognized document that defines war crimes is the Nuremberg Principles. Aggressive war is listed first in the crimes against peace:
“The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i)
Richard Falk brings the sharp difference up to 2013, when he wrote on September 6 against a U.S. military strike on Syria:
There are four important independent reasons for Congress to withhold authorization in this instance:
–a use of force that can neither be justified as self-defense, nor is authorized by the UN, is contrary to the UN Charter, which is an obligatory treaty, as well as being the most serious type of violation of international law in a post-Nuremburg world; the Nuremberg precedent with regard to crimes against peace (as the ‘crime of crimes’) should be respected, especially by the United States, which continues to serve for better and worse, as the main normative architect of world order;
–the Kosovo precedent of ‘illegal, but legitimate’ is not applicable as a military attack is not likely to achieve either its political goals of ending the civil war and of causing the collapse of the Assad regime, nor its moral goals of stopping the slaughter and displacement of the Syrian people, and the devastation of their cities and country;
–even if the political and moral goals could be achieved, Congress, as well as the president, lacks the authority to authorized foreign policy uses of force that are incompatible with the UN Charter and international law;
–Congress should defer to domestic and world public opinion that clearly is opposed to a proposed military attack in the absence of an exceptional demonstration can be made as to the positive political and moral benefits of such an attack; for reasons mentioned, no such demonstration can be made in this instance; even the European Union has withheld support for a military attack on Syria at the September meeting of the G-20 in St. Petersburg; only France among America’s traditional allies supported Obama’s insistence on reliance on a punitive military strike, supposedly for the sake of enforcing international law, bizarre reasoning because the rationale reduces to the following proposition: in view of the political realities, it is necessary to violate international law so as to be able to enforce it.
As we know, what is “legal” is not necessarily moral, and vice versa. In this case, the U.S. has no international law to rely on, thus resorts, as Kerry does, to the relative term “international norms,” i.e. whatever those running the Untied States prefer at any particular moment to embrace.
Most importantly, in the face of illegitimate — and illegal — unjust, immoral plans by the U.S. government to attack Syria, it is up to us to create political conditions where they cannot. I agree with Mario Venegas, the human rights leader and survivor of the U.S./CIA sponsored coup against the government of Chile 40 years ago, who said Wednesday, that “we are the force that can stop this war.”