Capital Crimes, Death by Hanging, and International Law

When I was born in 1954, Ribbentrop, Keitel, Frank, Jodl and other Nazi leaders had climbed the gallows just eight years before. The International Military Tribunal in Nuremburg had sentenced them to hang for war crimes and crimes against humanity. Hitler, Goebbels, Himmler and Goering committed suicide. The allies executed the rest.

As I grew up, in school and elsewhere, people talked about Nuremburg a lot: why the trials were held, what they meant, why the outcome was justified. In international law and politics, they signified the beginning of a new era in history, where aggressive war was a crime and genocide would get you the noose. Never again could the leaders of one country attack another unprovoked, or kill civilians en masse, and think they might be spared execution should they lose the war or be captured.

Idealist though I was, I wasn't impressed. Victors get to do what they want with those they have defeated, and a show trial is a show trial. What do such trials show? That you won the war and that you can dispose of your opponents as you like. The Romans routinely executed leaders of the armies and tribes they conquered. They didn't bother with a trial. Yet the victors claimed that the International Military Tribunal after World War II made a great contribution to international law.

Perhaps it did. Cynicism takes you so far, then it eats at you! Still, I think you should call something what it is. Don't call it something that it's not. If you plan to execute your defeated opponents, just do it and don't dress it up with a lot of legal language that's going to make you look like a hypocrite later.

Let me add another note, so you don't misunderstand what I say here. I oppose capital punishment - no matter who administers it, who the criminal is, or how enormous the crime. Law, international and otherwise, can operate perfectly well without it.

Let's give the victors in World War II the benefit of the doubt here, and ask what grounds the International Military Tribunal gave for its action. Its proceedings brought the phrases war crimes and crimes against humanity into common usage. The tribunal's judges held that unprovoked, aggressive war was a capital crime. So was genocide or other disproportionate, wanton killing of civilians. Note the discriminating qualifications in these two definitions. The prosecutors and judges had to define war crimes and crimes against humanity carefully, so as not to include the victors' wanton acts, past and future.

The qualifications didn't work so well. Sixty-five years have passed since the Nuremburg trials opened. The history of warfare among nations during that time indicates the Nuremburg principles don't influence nations' behavior that much. Still, Nuremburg's prohibition against unprovoked, aggressive war became part of the United Nations charter, the cornerstone of post-World War II international law. Might makes right neither guides nor justifies the acts nations undertake in their conflicts with one another.

The country that insisted the prohibition against aggressive war become the central principle of international law, the United States, violated that principle when it launched its attack against Iraq in 2003. The United States killed fewer non-combatants than Germany, and the war it started involved fewer countries, but the act was the same. We even had the disconcerting idea to call it a war of choice, as if that euphemism would make it okay!

So what are we to think now? Either the Nuremburg trial was a show trial, designed to throw the gloss of legality over proceedings that actually exhibited the victors' raw desire to dispose of their defeated foes as they liked. Or Nuremburg actually established the prohibition against aggressive warfare that underpins international law now. You can't become a member of the United Nations without signing on to the prohibition.

Interestingly, the Nuremburg trial could serve both purposes. It served up legal justification for execution of Nazi leaders, and key principles for the new international system taking shape after the war. However we choose to characterize the trial, we violated the prohibition against aggressive war when we invaded Iraq. Once you apply a principle to others, you have to apply it to yourself. After you hang the people who launched the Nazi attack on Poland in 1939, you have to apply the same standards of judgment to the people who launched the United States' attack on Iraq in 2003.

Yet we've omitted a controlling element: the United States didn't lose its war against Iraq. Therefore George W. Bush is not in the dock - no judge sentences him to hang. Instead, Hussein went to the gallows for the aggressive wars he started, and for the wanton murder of civilians he undertook. I wonder what Hussein would have done if Iraq had won the war? Would he have hanged Bush? We don't have to guess too long about the answer to that one. He would not have bothered with the legalities, either.