Heuristics, Hypocrisy, and History without Lessons: Nuremberg, War Crimes, and “Shock and Awe”

John Rodden. Journal of Human Rights. Volume 7, Issue 1. January-March 2008.

The Nuremberg Trials at Sixty

On the occasion of the sixtieth anniversary of the Nuremberg Trials for Nazi war crimes, this essay explores the present-day significance of the tribunal in light of the current geopolitical situation and the policies of the Bush administration. The discussion highlights the historical, political, and moral dimensions of the ongoing controversies about “the war on terrorism” and American foreign policy since the occupation of Iraq. Just as was the case at Nuremberg, a key theme at issue in today’s debates is the hypocrisies of nations, especially their questionable moral legitimacy to impose equitable judgment on a defeated nation. My aspiration is to draw attention to the complexities involved in attempts to achieve international justice and to call for an engaged, moral response to those chauvinistic blinders that preclude fairness.

On October 1, 1946, in Courtroom 600 of the Palace of Justice, the first round of the Nuremberg Trials closed with the Waffen-SS declared a “criminal organization” and with twelve Nazi leaders sentenced to hang, seven imprisoned for terms ranging from ten years to life, and three acquitted. Among the imprisoned were Minister of Armaments Albert Speer and Deputy Führer Rudolf Hess, who had been in prison in the Tower of London since flying to England in 1941 on a self-invented peace mission.

Exactly two weeks later—from a gallows erected in a Nuremberg high school auditorium—eleven Nazi leaders were hung to death, including ex-Foreign Minister Joachim von Ribbentrop, former Field Marshall Wilhelm Keitel, and slave labor director Fritz Saukel. Just hours before his execution, former Luftwaffe chief Hermann Goering committed suicide by taking a cyanide capsule—which an American army officer had quietly slipped him. To prevent any chance of followers creating Nazi shrines, all the bodies were cremated and their ashes scattered over the Isar River.

These and the other Nazis were convicted of war crimes, including “crimes of humanity” against Jews, Gypsies, and prisoners of war, as well as using slave labor and looting conquered territories.

Not the least of the ironies before the Trials was that the leading European democracy, Britain, opposed their taking place—while the totalitarian Soviet Union pushed for them to occur. Although Winston Churchill lobbied hard to have the Nazi leaders shot without trial, Joseph Stalin’s strong preference for international trials, which President Harry Truman supported, ultimately prevailed.

Most international historians of the 1940s have concluded that the Nuremberg tribunal, which was the first international criminal trial, was a positive landmark in history. It not only brought Hitler’s henchmen to justice but also changed the course of postwar legal history.

But what has been the actual legal legacy of the Nuremberg Trials? Have we learned anything since the Nuremberg Trials, which continued beyond the verdicts on the Nazi leaders and did not conclude until 1949? As we ponder the sixtieth anniversary of the Nuremberg Trials’ occurrence, let us ask: What is the present-day significance of those historic trials? Was the criminal trial framework at Nuremberg a blueprint for how to carry out international justice today? Was it somehow flawed?

This essay reflects on these questions in light of the current geopolitical situation and the policies of the Bush administration. It places the issues in perspective and raises many related questions, focusing on what has happened since the occupation of Iraq and how the competing arguments for and against US policy under the Bush administration are presently framed. My aim thereby is to sharpen our understanding of what precisely is at issue by presenting the ongoing controversies about “the war on terrorism” from a heightened perspective, whereby the implications—politically, morally, and historically—of both our conduct and choices might be illuminated.

The essay thus aims to present both sides without coming down on either one, given the complexity of the issues, the dangers of historical analogies, and the fact that these complex questions are still fully in process and unresolved. We need more mutual understanding and less hard position taking these days, with the arguments on both sides presented via a contextualized perspective that includes critical self-reflection, that is, reflection by us Americans and the US government on the limitations and possible hypocrisy of our own perspective. My main theme is the hypocrisies of nations, especially their presumptive right and compromised status when it comes to judging defeated rivals, and my ultimate aspiration is to stimulate consideration of international justice and to call for an engaged, moral response to those chauvinistic blinders that preclude fairness. Among my immediate questions are the following:

  • To what extent can the Nuremberg Trials actually be regarded as a suitable model for international justice in the present day?
  • Have the Trials represented a form of “victors’ justice”?
  • How can one reconcile judicial impartiality with the fact that such trials take place in a context of international power relations, which lends itself naturally to the ideas of “victors” and “vanquished”?
  • How are the Nuremberg Trials regarded today, especially with respect to their moral basis?

The essay then considers the actions and statements of the Bush administration, drawing a clear link to the preceding material on Nuremberg and tentatively suggesting moral criteria against which these actions and statements could be judged. The section titled “‘International’ (In)Justice?” moves on to look at Iraq. It points out that the debates on Iraq have lacked “a case for or against war in Iraq based on Saddam’s violation of human rights,” and it contends that the Left (and noninterventionist Right) must reconcile supporting on the one hand a universal concept of human rights, applicable internationally, and on the other hand criticizing interventions that purport to enforce this concept. The final section returns briefly to Nuremberg in light of the foregoing reflections.

“Victors”‘ Justice?

The Nuremberg Charter of August 1945 inspired human rights law in the postwar era. The Nuremberg Trials also served as the basis for the rules and principles drafted in the 1949 Geneva Conventions on wartime conduct, which stipulate that countries must punish those who commit human rights violations, regardless of whether they claim to have “followed orders.” (The Geneva Conventions—unlike the Nuremberg and Tokyo Charters and the International Criminal Court [ICC] Statute—are neutral on superior orders. The International Committee of the Red Cross (ICRC) draft had an appropriate provision in its early drafts, but it was rejected at the Diplomatic Conference.) More recently, the Nuremberg investigations also became the model for the Security Council’s decision in 1993 to set up a war crimes tribunal to deal with atrocities committed in Bosnia and Rwanda.

More than a decade later, the tribunal’s investigations still proceed, with research on crimes in the former Yugoslavia receiving most attention. Indictments have been handed down against more than fifty men (and one woman), most of them Bosnian Serb leaders, along with a handful of Bosnian Croats and Muslims.

But observers doubt that those accused will ever be brought to justice: indeed the top Serb leader Slobodan Milosevic recently “escaped” justice by dying before his trial had concluded. (Milosevic’s trial had already dragged on for almost six years; by contrast, the main Nuremberg tribunal handed down verdicts on a dozen men within ten months.) Unlike Germany six decades ago, Bosnia is not governed by foreign occupying powers who can impose their will on affairs in the region. This fact touches on one of the main criticisms of the Nuremberg Trials: It produced “victors’ justice,” which is regarded by the losers as none at all.

The term “victors’ justice” implies a division of the populace in the aftermath of war crimes. In clear cases of human rights abuses, the emerging “victors” are sometimes the former “victims.” Consider South Africa, where the victors (the black-led African National Congress) installed the Truth and Reconciliation Commission to process the injustices that black South Africans suffered under apartheid. Or Nicaragua, where the Sandinistas, rooted in the rural proletariat, punished members of the Somoza regime and the Contras for oppression of Nicaragua’s rural poor.

Many of today’s wars are different. The victims are too weak to push out their oppressors—either through elections or armed conflict—so a third party, often the United Nations, the United States, or another rich country, needs to step in. Such a dynamic leaves three groups in the wake of war crimes—the victors, the victims, and the accused.

Victors’ justice is a simpler game when the victors are also the victims, but it grows complicated when the third-party victors were never themselves oppressed and may have even committed their own war crimes. Clearly, inquiry into the plight of the victims would seem the appropriate focus of any war crimes investigation.

Noteworthy in the case of both Bosnia and Rwanda is the physical distance of the war crimes tribunals from the actual victims. The Hague lies over a thousand miles from Bosnia, and those who suffered persecution or wished to testify about the death of family members under Milosevic can hardly afford to travel such a distance. And the UN chose Arusha, Tanzania, a two-day trip from Rwanda, to prosecute those “accused” of masterminding that genocide. So, the victors, in both cases the UN (although the UN stepped in late in Rwanda, where the real victors were the Tutsi members of the Rwandan Patriotic Front that drove out the genocidaires while the international response stuttered), busily try the accused, while the victims remain implicitly excluded and effectively voiceless except when transported to the tribunals by the victors.

And the victors, in some cases, share war crime guilt with the accused—a situation that always prevailed, of course, at Nuremberg. For example, it cannot be overlooked that UN soldiers have been accused of rape and other war crimes in Central Africa—there have been several accusations against UN peacekeepers in eastern Congo—and that many civilians died at the hands of UN and US missiles in Bosnia.

In a notable exception, Rwanda has experimented with its own local attempt by the victims themselves to directly try the accused via a series of traditional village courts known as the gacaca system. This victim-centric model has satisfied many ordinary Rwandans and healed many wounds, but the most serious war criminals are still tried by the UN victors in an arbitrary city in another country. It is understandable, then, that the victims might feel frustrated by a form of justice driven by outside victors.

The Jewish diaspora after World War II would have made victim-driven justice difficult in Nuremberg. And yet, even the accused felt shortchanged by a victor-driven model. So whereas the Nuremberg tribunal was regarded as a triumph of justice in the Allied countries and most elsewhere in the world, many older Germans still regard the Nuremberg Trials as “victors’ justice.” They note that the Nuremberg Charter had restricted prosecution of war criminals to those of “the European Axis countries.” Moreover, defense evidence about the Russians’ secret alliance with Hitler—the Nazi-Soviet Pact of 1939-1941—was not admitted in the trial. Admission of such evidence would have probably weakened the charges against the Nazis and turned the trial against the accusers—or against at least one of the prosecuting Allied nations, the USSR.

Nor are the Germans alone in their reservations about the conduct of the Nuremberg Trials. In The Anatomy of the Nuremberg Trials (1992), chief prosecutor Telford Taylor looked back with regret on the Nuremberg tribunal. While he regarded the Trials as “absolutely necessary,” he bemoaned their “half-truths, if there are such things.” However imperfect the standard of justice achieved at Nuremberg, the search for and prosecution of Nazi war criminals continues even today. Simon Wiesenthal, the recently deceased Austrian Nazi hunter whose Jewish Documentation Center in Vienna still tracks down Nazi war criminals, always believed that some of the most ruthless Nazi criminals (e.g., the notorious Alois Brunner, deputy to Adolf Eichmann) are still alive and living in an Arab country, most probably Syria. However unlikely, Brunner (1912-) would be almost 96 today and would be the last living member of Eichmann’s staff; he is alleged to be jointly responsible for the deaths of 125,000 Jews deported from France, Hungary, and Greece. Similarly, many masterminds and perpetrators of Rwanda’s genocide remain hidden throughout the forests of eastern Congo. And the perpetrators of terror in Darfur, Sudan, are so numerous and ill-defined that they cannot be easily found and tried.

As the history of pursuing Nazi war crimes evinces, decades of patient and painstaking effort are often necessary in order even to locate and to bring war criminals to court. Some major Nazi criminals have indeed been discovered in recent years. For instance, in November 1999, Erich Priebke, who had been charged with involvement in a massacre of 335 men in Rome in 1944, was convicted and jailed in Italy after having been extradited from Argentina to Rome.

Doubtless Wiesenthal’s efforts at justice—like those who are investigating war crimes in Bosnia, Rwanda, and Iraq—were also imperfect. But in the twenty-first century, as in 1946, such war crimes tribunals are a response to the cry for justice.

Yet that cry is usually muted—or even silenced. By their selective attention to human rights abuses, such tribunals testify that the “civilized” world ignores crimes against humanity when it chooses.

Shock, Awe, and the Bush Doctrine

But is “imperfect” and “incomplete” justice merely another form of injustice?

Indeed we Americans, and especially the Bush administration, need to be putting that question to ourselves. In the aftermath of the attacks by al-Qaeda on New York City and Washington, the Bush administration released its National Security Strategy in 2002, which pledged to ensure worldwide security by vowing never to allow any other nation to approach American military strength, let alone pose a military threat as great as did the former USSR during the Cold War.

The so-called Bush Doctrine calls for launching a preemptive war if US security is deemed to be threatened. The National Security Strategy also grants that a nuclear first strike is a legitimate strategic option, even against a nonnuclear enemy. Cultures are free to thrive in diverse ways, with the stipulation that they do not violate Washington’s conceptions of liberty, democracy, and human dignity. The latter concept is specified as resting on economic freedom, that is, “respect for personal property” and the renunciation of any “militant vision of class.” According to numerous critics, America’s casual indifference to world opinion, international forums, and established standards of conduct for nations at war represents a dangerous threat to the international consensus forged after World War II to deter and to punish crimes against humanity. On this view, the Bush administration exhibits wholesale disregard for any limits on American sovereignty, engaging in “shock and awe” to intimidate militant Islam and to reinforce its message via massive “collateral damage.”

As early as September 25, 2001, the Office of Legal Counsel drafted a memo to the president, arguing that his war-making power was unlimited and that this plenary power was not subject to review by either the Supreme Court or Congress. In a series of now-famous “torture memos,” the Justice Department dismissed international and domestic laws prohibiting “cruel, inhumane, and degrading” treatment of prisoners, arguing that the Geneva Convention, for example, was “quaint” and “obsolete.” Proscriptions against “outrages upon personal dignity” and “inhumane treatment” were described as already covered by extant agreements and thus unnecessary. Torture was defined extremely narrowly, requiring pain and suffering to rise to the level of organ failure or death before war crimes statutes were enforced.

The Department of Defense has lent its institutional authority to the torture mix by authorizing more coercive interrogation methods at Guantanamo Bay. Former Defense Secretary Donald Rumsfeld went so far in 2002 as to argue that the Geneva Conventions did not apply to the Taliban because they were a “failed state.” Vice President Dick Cheney has further narrowed torture statutes, arguing that cruel, inhumane, and degrading treatment does not constitute torture. He has called for the CIA and other governmental agencies to be exempt from any treaty or federal directives regarding prisoners.

Moreover, after Time Magazine revealed in 2006 the harsh methods used at Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called “twentieth hijacker,” the Pentagon replied with a memo describing “valuable intelligence information” that he had revealed. But will this information help prevent any terrorist attacks? Should one be able to interrogate someone like Qatani by making him urinate on himself or threatening him with dogs to find out whether he ever met Osama bin Laden?

These are hard questions that turn on claims that the “war on terror” is categorically different from past wars. Methods like these were banned in US criminal investigations years ago because, in the language of the Supreme Court, they “shock the conscience.”

And yet, given the US commitment under the torture convention to “undertake to prevent” “cruel, inhumane, or degrading” treatment (sometimes referred to as CID), the question arises: Why are we using it abroad in cases that have nothing to do with ticking time bombs? Why does the president still insist that we are following our legal obligations and that we are treating detainees humanely?

“International” (In)Justice?

Such developments suggest that post-World War II efforts at international justice are unraveling. After all, anything is possible when backed by enormous and willing military power. Nothing is off-limits when emerging from a deep-seated faith in providential authority.

Quite problematic is even the definition of the term “international justice,” especially when the United States won’t sign onto international agreements or else wants exemptions granted for US troops in any theater of operation. Indeed the world’s lone superpower, carrying out its will on its own terms, renders the whole notion of international justice vexed and enigmatic. On the one hand, the United States has the crimes of Abu Ghraib and Guantanamo on its conscience; on the other, John Bolton, the former US ambassador to the UN, objects (quite justifiably) that nations represented on the UN human rights committee have included Libya, Sudan, and Saddam’s Iraq.

And yet again on the other hand, critics of the Bush Administration ask whether we are a nation of laws and not men; a nation in which one man can decide what laws will be enforced and exempt his own side from them, as well as from adherence to principles based on strong international consensus, even those such as Nuremberg or the Geneva Conventions. On this view, US administrations have agreed to principles that now, when perceived as inexpedient or irrelevant to a world of terrorism, can be shoved aside without recourse to definitive legal decisions or enactments. The Bush Realpolitik dismisses as a foolish faith such international principles of rightness, which of course we generally followed when convenient (and even inconvenient) until today.

But—yet again—it must be admitted that, sadly and indeed outrageously, it is too often the case that many left-wing intellectuals, academics, and policymakers—especially some who are prominently cited and quoted as the leading formulators of criteria for human rights—trumpet human rights abuses when they are perpetrated by right-wing authoritarian regimes and ignore or minimize similar abuses when they are committed by numerous other left-wing regimes (such as Cuba and Nicaragua). These same intellectuals dispute whether or not the United States and its allies should have invaded Iraq and put an end to Saddam Hussein’s autocratic rule. Almost every argument was advanced by the Bush administration in favor of its case and by the Left against it. Fair enough. What was peculiarly absent in most of the debates in 2002-2003, however, was a case for or against war in Iraq based on Saddam’s violation of human rights. The Right seemed to consider such a case unpersuasive or simply beside the point; the Left implicitly, if not explicitly, soft-pedaled its criticism of Saddam on human rights in order to make its case against the Bush administration more effective. Both sides had, therefore, a mutual vested interest in maintaining silence on human rights desecrations in Iraq. A focus on the victims, rather than on the potential political gains and losses of the eventual victor, might have clarified both sides’ viewpoints.

Let me dwell a moment further on the Left intelligentsia. For the most vocal critics of the war on terrorism generally and the Iraq occupation in particular have been liberal and radical intellectuals, and one can think of a whole range of positions that intellectuals on the Left have taken towards military interventions to support human rights. For example:

  • The view that these are justifiable if the body carrying them out has sufficient legitimacy to do so (e.g., the United Nations, the International Criminal Court), but that national governments do not possess such legitimacy;
  • The view that such actions are inherently unacceptable in a world structured by power relations based on imperialism and are inevitably used by the powerful as a cloak for their interests;
  • The view that such actions are in principle a good thing but impossible to carry out successfully because the rich countries will either not provide sufficient resources or do not have the information necessary to judge the consequences of their actions;
  • The view that intervention by imperialist countries is unacceptable but that international intervention either by socialist states or popular movements could be a basis for enforcing human rights;
  • The view that any top-down initiatives to protect rights are worthless and that only the self-determined actions of the oppressed can enforce such rights;
  • The view that in the last resort, if no one else will defend human rights, the world should support action by the United States or other countries who are prepared to act.

Ultimately, what is needed is a critical evaluation of all these different positions, along with the more limited range of positions of the Right, which has usually tended to support the Bush administration’s positions on most intervention questions.

Discriminations and Dilemmas

Let us direct the question even more insistently toward ourselves again: Is “imperfect” and “incomplete” justice merely another form of injustice? Yes, but I would argue that it is, finally, a different—and lesser—form. “Victors’ justice,” clearly a pejorative, suggests that the whole enterprise is counterfeit if it lacks absolute moral equivalence. So the British planners of the bombing of Dresden should have been tried in Nuremberg?

But such a position strikes me as wholly unrealistic. And moreover, it is a position that undercuts a key distinction on which our entire social order rests, namely that democratic governments are superior, and that judgments rendered by democratic governments have greater legitimacy because the process by which those judgments were made both adhered to a set of democratic norms established by history and are, at least in a theoretical sense and often in a factual sense, expressions of the will of the people. Of course, at least by implication, this has been part of the argument of the Bush administration used to justify US policy since 9/11.

Sure, bombing is bombing. It would have brought no comfort to a resident of ravaged Hiroshima in 1947 to learn that his radioactivity was the will of the American people. Nevertheless, world affairs grant little opportunity to traffic in moral absolutes, and Harry Truman’s counterargument about the number of American soldiers he feared he’d lose in a ground invasion of Japan is awfully hard to dismiss.

Back to the present. There will always be questions raised about why genocide occurs in places such as the Democratic Republic of Congo and the western Sudanese region of Darfur, and why leaders in places such as the former USSR (or for that matter, the United States) are never tried for war crimes. Those questions reflect legitimate concerns. But the phrase “victors’ justice” can be used to stop whatever piddling progress that the world, in its lumbering, petulant way, ever makes. The fact is that the Taliban and Saddam committed “evil” acts, and their peoples—and the world—are better off with the ouster of those two leaders from power.

On the other hand, Slobodan Milosevic’s death in 2006 precludes a certain kind of justice; but great strides were made during his war crimes trial toward a standard of international justice. Many midlevel Belgrade bureaucrats testified against him before the Yugoslav War Crimes Tribunal, and the International Criminal Court is now pursuing similar inquiries with regard to the Congo, Darfur, and other places. (The International Criminal Court was set up in 2002 to try genocide, crimes against humanity, and war crimes. A hundred countries have ratified it, but not the United States, which objects that the court’s jurisdiction is too far-reaching.)

Still the question remains: Does our “imperfect” and “incomplete” justice taint us irredeemably, even if our actions do not descend to the political equivalence of our enemies?

I would argue not. The law is imperfect by definition. In 1946, for all the complaints at the time of “victors’ justice,” the Nuremberg trials were astonishingly fair to the accused, with three being acquitted. Today, we are struggling to understand just how implacable is the “terrorist” foe we are facing; that is, what measures are necessary in order to avoid, if at all possible, some incident of massive destruction of civilian population by a nuclear bomb.

And yet, canonical pronouncements of American freedom and justice surely assume universal application as their necessary precondition. Indeed, can justice prevail by unilateral superpower edict? Can American, Euro-American, or Western notions of justice delimit the boundaries of what constitutes a just political community for the entire world?

That these superpowers agreed to try Saddam Hussein in Iraq, the land of his victims, is certainly a step in the right direction, even if the victims might like to see the American wardens of the Abu Ghraib and Guantanamo prisons tried in the same court.

And indeed, what about the Guantanamo Bay prison in Cuba, whose controversial military tribunals for trying alleged terrorists have occasioned extended (and largely unfavorable) comparison with Nuremberg? Numerous observers have argued that, whatever the limitations or hypocrisies of the Nuremberg Trials—i.e., however unprincipled Nuremberg’s landmark “principles”—the Guantanamo tribunal represents a standard of far more “imperfect” (in)justice. In fact, no less significant a participant-witness to those historic trials of 1945-1946 than former Nuremberg prosecutor Henry King, Jr., declared in June 2007 that US policy at Guantanamo “violates the Nuremberg principles … as well as the spirit of the Geneva Conventions of 1949.” According to King, the US war crimes tribunals at Guantanamo have betrayed the standards of legal and judicial fairness that made the Nuremberg proceedings a judicial landmark.

King, 88, who served under Robert Jackson, the US Supreme Court Justice who became the chief prosecutor at the Nuremberg Trials, bemoaned that Jackson would have “turned over in his grave if he knew what was going on at Guantanamo.” King added: “The concept of a fair trial is part of our tradition, our heritage. That’s what made Nuremberg so immortal—fairness, a presumption of innocence, adequate defense counsel, opportunities to see the documents that [defendants] are being tried with. To torture people and then bring hearsay evidence into court is allowed? Some evidence is available to the prosecution and not to the defendants? This is a type of justice that Jackson didn’t dream of.” King, who teaches law at Case Western Reserve University in Ohio, concluded: “Guantanamo turned its back on Nuremberg”.

Opponents of the Bush administration’s antiterrorist program such as King also note that, in June 2006, the US Supreme Court concurred with them, striking down the original Guantanamo standards as illegal. (The US Military Commissions Act, which was passed in December 2006, revamped procedures for trying detainees at Guantanamo.) Furthermore, contend Bush administration critics, former Guantanamo prisoner David Hicks did not warrant trial as a war criminal. After sitting in prison at Guantanamo Bay for more than five years, Hicks pleaded guilty in March 2007 to a charge of providing material support for terrorism and was sent home to Australia to serve out the nine-month remainder of his sentence. (The new military commission system dismissed two other cases, ruling that the detainees were not actually within the commission’s proper jurisdiction.)

Because the current polemics regarding proper antiterrorist tactics are so fierce, and also because the two main camps—the US government’s defenders and its liberal-Left critics—are so far apart on the main issues, the politicized arguments that have prevailed since September 2001 have not appreciably advanced the legal and judicial debates begun at Nuremberg. For instance, whereas Bush administration officials (along with a silent majority of Americans) insist that US antiterrorist conduct in the “war on terror” cannot remotely be classified as “war crimes,” let alone equated with the horrors of the Third Reich (“our gold standard of evil,” as John Dolan once phrased it), many outspoken adversaries of the Bush administration vehemently disagree. As in the case of the administration’s Guantanamo Bay critics, a few of them have strong credibility owing to their historic roles at the Nuremberg Tribunal.

For example, Benjamin Ferencz, 87, a former prosecutor at Nuremberg who convicted twenty-two Nazi officers for organizing death squads that murdered more than one million people, has argued that unprovoked or “aggressive” war is the worst crime against humankind. Ferencz and numerous other critics object that Bush’s decision to invade Iraq in 2003 enabled all that has followed to occur: the outrages of Abu Ghraib, the levelling of Fallouja and Ramadi, the untold thousands of Iraqi deaths, and all the rest. According to Ferencz, “a prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation”.

Some legal experts in the British government concur. Among them are such distinguished observers as Sir Mike Jackson, chief of the UK defense staff, who opposed the 2003 invasion and compared the US-led coalition leaders to Milosevic and his circle. Frank Nicosia, a British historian, adds:

Perhaps the cornerstone “principle” of the Nuremberg Tribunal was the insistence that a “legal” war could only be waged in self-defense or in the defense of others, as established by an international treaty. On this view, the Bush administration invaded Iraq without any credible threat to the security of the U.S. or any other country, thus rendering the U.S. in violation of the very international treaties to which it is a signatory, treaties that prohibit wars of aggression that are, by definition, crimes against the peace.

Nicosia elaborates the rationale for the case against the Bush administration that taking the crucial initial step to make war was the fatal one:

In this war, as in others, the decision to go to war in the first place is critical because perpetrating war crimes and crimes against humanity as policy in wartime usually a consequence of the nature of that initial decision. Often, that decision is a crime against the peace according to legal precedents and definitions established by the U.S. and its allies at Nuremberg. It is no less true for the United States in Iraq than it was for the Axis in World War II. One wonders how Justice Jackson and the American prosecution team at Nuremberg would assess the legal basis of the Bush administration’s decision to wage war against Iraq, and the consequent manner in which it has waged that war.

So if the US-led invasion of Iraq was not for self-defense, or in the defense of others through treaty obligations, has the United States violated the very legal precedents that it helped establish at Nuremberg?

The Bush administration and its adversaries will doubtless remain divided on the answer. And so the heated debates will continue. Today, more than sixty years since the Nuremberg Trials took place, we are still no closer to resolving the perennially vexing moral dilemmas at the heart of warfare, law, and justice.