An historical precedent maybe... Nuremberg War Crimes trials extracts

Purely for academic interest...

Below are some selected extracts from Robert Jackson's prosecution summation at the Nuremberg War Crimes trials in which (some of you may recollect, or at least have been told) the U.S. was a major player for the prosecution.

Certain parallels between Hitler's Third Reich ("that will last for a thousand years") and the neocons' New World Order are not too difficult to draw.

The more profound implications I'll leave to you all to work out for yourselves...

- Tilting at Windmills

The Nuremberg Trials: Transcript Excerpts

Summation of Robert Jackson for the Prosecution (July 26, 1946)

"What these men have overlooked is that Adolf Hitler's acts are their acts. It was these men among millions of others, and it was these men leading millions of others, who built up Adolf Hitler and vested in his psychopathic personality not only innumerable lesser decisions but the supreme issue of war or peace. They intoxicated him with power and adulation. They fed his hates and aroused his fears. They put a loaded gun in his eager hands. It was left to Hitler to pull the trigger, and when he did they all at that time approved. His guilt stands admitted, by some defendants reluctantly, by some vindictively. But his guilt is the guilt of the whole dock, and of every man in it...

...Nowhere do we find a single instance where any one of the defendants stood up against the rest and said: "This thing is wrong and I will not go along with it." Wherever they differed, their differences were as to method or disputes over jurisdiction, but always within the framework of the common plan...

...Some of the defendants also contend that in any event there was no conspiracy to commit war crimes or crimes against humanity because cabinet members never met with the military to plan these acts. But these crimes were only the inevitable and incidental results of the plan to commit the aggression for Lebensraum [trans: "living room" - taw edit] purposes...

...Could men of their practical intelligence expect to get neighboring lands free from the claims of their tenants without committing crimes against humanity? The last stand of each defendant is that even if there was a conspiracy, he was not in it. It is therefore important in examining their attempts at avoidance of responsibility to know, first of all, just what it is that a conspiracy charge comprehends and punishes. In conspiracy we do not punish one man for another man's crime. We seek to punish each for his own crime of joining a common criminal plan in which others also participated. The measure of the criminality of the plan and therefore of the guilt of each participant is, of course, the sum total of crimes committed by all in executing the plan. But the gist of the offense is participation in the formulation or execution of the plan. These are rules which every society has found necessary in order to reach men, like these defendants, who never get blood on their own hands but who lay plans that result in the shedding of blood. All over Germany today, in every zone of occupation, little men who carried out these criminal policies under orders are being convicted and punished. It would present a vast and unforgivable caricature of justice if the men who planned these policies and directed these little men should escape all penalty. These men in this dock, on the face of this record, were not strangers to this program of crime, nor was their connection with it remote or obscure. We find them in the very heart of it. The positions they held show that we have chosen defendants of self evident responsibility. They are the very top surviving authorities in their respective fields and in the Nazi State...

...Look down the rows of fallen men and picture them as the photographic and documentary evidence shows them to have been in their days of power. Is there one who did not substantially advance the conspiracy along its bloody path toward its bloody goal? Can we assume that the great effort of these men's lives was directed toward ends they never suspected?

To escape the implications of their positions and the inference of guilt from their activities, the defendants are almost unanimous in one defense. The refrain is heard time and again: These men were without authority, without knowledge, without influence without importance. Funk summed up the general self-abasement of the dock in his plaintive lament that: "I always, so to speak, came up to the door, but I was not permitted to enter."

In the testimony of each defendant, at some point there was reached the familiar blank wall: Nobody knew anything about what was going on. Time after time we have heard the chorus from the dock: "I only heard about these things here for the first time."

These men saw no evil, spoke none, and none was uttered in their presence. This claim might sound very plausible if made by one defendant. But when we put all their stories together, the impression which emerges of the Third Reich, which was to last a thousand years, is ludicrous..."


Time to Bring Criminal Charges
A post by Timothy Gatto to The Smirking Chimp blog
3rd July 2007

If I called the police and said that my neighbor was intending to attack me, and that this neighbor has all sorts of guns hidden in his house, and I had everyone in my family swear that all of this was true, that would be a terrible thing to do, especially if it weren’t true. What if I constantly called him on the telephone and insulted him and hired people to throw rocks at his house every once in a while, would make me some kind of whack job? If I wrote stories about that neighbor and had others write stories about him and printed them in the media so that everyone could see what kind of a man he was (or what kind of man I wanted them to think he was), would that be right?

Now suppose that I convinced the police that this man was such a menace that they actually sent in a SWAT Team and invaded his home because of the mistaken belief in the story that I told them about the weapons cache he had, and in the process of raiding his house the man thought it was a home invasion and actually fired at the SWAT Team, killed a cop, and in the confusion the man’s wife and one of his children were shot and killed. When the scene finally settled down and the police realized that I had made the entire thing up so that I could get rid of my neighbor and buy his business, what do you suppose would happen to me?

Do you believe I should be charged with murder because of the stories that I told that culminated in one cop dead and two people gunned down by the police? I believe that the District Attorney would convene a Grand Jury and charge me with murder and a laundry list of felonies and I would probably spend the rest of my days in prison. If I ever had the good fortune to get out of prison, I am sure that my neighbor would have also charged me in a Civil Court and would have taken everything that I owned, so I would most likely return to nothing. If this were to happen, most people would have no pity for me and just about everyone would have said that I got what I deserved.

Let’s take the same set of circumstances and attribute them to George W. Bush and Saddam Hussein. The armed forces invaded Iraq and found no Weapons of Mass Destruction and Iraqi soldiers and civilians died, and are still dying along with our own soldiers for something that was started on a lie. Why hasn’t Bush been charged with a crime? The facts are coming to light now are that Bush and Cheney both knew that Iraq had no weapons of mass destruction. What’s the difference between what they did, and what would have happened with me if I did that to my neighbor? You tell me. Is he exempt from the standards set by the law because he is The President of the United States? Can he lie to the American people with impunity and force a war with another country predicated on lies? Is this legal?

I have heard that we should impeach the President and the Vice President and let the World Court (or The International Court of Justice) at the The Hague, charge him under international law. I don’t believe that we should let the rest of the world do our dirty laundry. I believe that this is an American problem that should be decided by Americans. I also believe that if he broke the law, that both he and the rest of his regime that prosecuted the case for war with lies and facts that could not be substantiated should be prosecuted without delay. This nation cannot afford to have an Executive Branch that uses American foreign policy to gain an advantage monetarily for themselves and their business partners. I believe that the reason that Bush wanted to remove Saddam was to stop him from flooding the market with oil and to institute these “Oil Laws” that the United States is pressuring Iraq to accept that gives Big Oil 75% of the oil reserves in Iraq. This amounts to trillions of dollars, as most geologists now feel that Iraq has the largest oil reserves on the planet. This isn’t heavy crude such as the oil from Venezuela; this is light sweet crude that brings top dollar for its purity. This is oil that can be used for plastics, fertilizers, fuel, and also to keep the people that control it, rich for decades.

Today he commuted “Scooter” Libby’s sentence. Since “Scooter” worked with this “regime” is that legal? If Bush wouldn’t have commuted Libby’s sentence I would have been surprised. Of course he’s going to take care of his own. This investigation as far as I know is still ongoing in the case of who exactly gave up Valerie Plame’s name. Once Libby was in jail, there is no telling what kind of evidence he would have given up to be free again. I’m sure Bush took this into consideration.

Meanwhile, we still have a question that is unanswered here. If someone knowingly makes a false report to the authorities, shouldn’t that person be charged with a crime? I think so and there are others that think so... this isn’t close to being over.

Just War, the Predicates/Precedents of Nuremberg and the Iraq War

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated…

Opening address at the first Nuremberg Trial by Justice Robert H. Jackson, Representative and Chief of Counsel for the United States of America

Jim Craven/Omahkohkiaayo i’poyi

The Interrelated Predicates of Nuremberg:

In the first Nuremberg Trial, 22 war criminals went on trial of whom 12 were hanged. They were all charged with varying levels of responsibility for five interrelated, concomitant and mutually supporting crimes: a) Launching and Waging Aggressive and Illegal War; which implies–and if proved supports–a charge of: b) Conspiracy to Launch and Wage Aggressive Illegal War (since no parties go to war without planning and giving asserted reasons ); c) Crimes Against Peace (which all illegal wars launched and waged on the basis of illegal conspiracy imply and entail per se); d) Crimes Against Humanity (which charges a, b, c, imply and entail per se by virtue of the known horrors and effects of war) and e) War Crimes (no such right of “self-defense” or “necessary measures” by those guilty of charges a, b, c, d, ).

At the time of the Nuremberg Trial, it was recognized that the foundation (sources, precedents and authorities) of “established” international law vis-a-vis the Nuremberg charges, was limited vis-a vis core principles and their widespread understanding, acceptance and application. This led to the charge by the defense of the Nuremberg of the charges themselves representing a case of “ex post facto” or creating and applying legal principles and even applicable international law that did not exist at the time of alleged offenses having been committed; thus, at the time, the alleged offenses were not crimes however odious. The prosecution argued that in addition to established international law “( customary use/acceptance” of certain principles and via Conventions like the Hague Convention, Geneva Conventions etc) that established that the Nazis knew what they conspired to do and did was illegal,and attempts at cover-up which revealed “mens rea” and consciousness of guilt (no need to cover-up what you believe to be clean only what you know to be dirty), there was also a body of established principles of “Just War” (JW) that the Nazis themselves had recognized in that they themselves had actually made use of some of these principles in contriving the various phony pretexts that they employed for their own violations of those same principles in the various wars they launched and conducted. This is exactly what the Bush Administration does today.

Principles of “Just War (JW):

The principles of JW were primarily established by the Roman Catholic Church via writings and pronouncements ranging from Marcus Tullius Cicero(106-43 B.C.) to Augustine (354-371 A.D. to Thomas Aquinas (1225-1274 A.D.)to Francisco de Vitoria (1480 to 1546 A.D.) to Francisco Suarez (1548 to 1617 A.D.) up to various pronouncements by Popes Pius XII, John XXIII, Paul VI and John Paul II. They have had a large impact in informing and shaping the content and evolution of international law and have been repeatedly referred to even–or perhaps especially–by nations invoking them in order to contrive pretexts for violating them as the Bush Administration has repeatedly done to attempt to justify preemption. What Nuremberg established, is that no nation can claim exemption from the vary principles it itself invokes for its own purposes; especially in the case of invoking and using as instruments of breaking international law and established principles, the very same laws and principles they are conspiring to break. It is somewhat like using free speech in the particular in order to destroy it in general or using the trappings of “democracy” de jure to destroy democracy de facto–in addition to naked hypocrisy.

From the common-sense premises of: a) “no need to construct a phony event or context to try to justify that which is clearly “legitimate, or, what you believe to be “legitimate”; and b) “no need to cover-up what is clean only dirty”; then the Nazi attack of Poland and all other attacks against other nations were illegal per se. The initial planning (Conspiracy) to set up a phony attack against a German radio station, using concentration camp inmates dressed as Polish soldiers, as a contrived pretext for a JW in self-defense, made the attack and war in reality preemptive and without the very narrow JW criteria for a “just” preemptive attack. Thus the war was aggressive, and thus the launching and waging of it illegal per se. And thus the planning for an illegal and aggressive war was “Criminal Conspiracy” per se. And thus the waging of the war and its effects constituted “Crimes Against Peace” and “Crimes Against Humanity” per se. And also thus many of the military actions and actions against civilians became “War Crimes” at various levels of culpability (a person doing or directing a home invasion for example, has no “right” of “self-defense” as if he shoots the homeowner, it is murder in the commission of a felony, whereas, if the homeowner shoots the home invader, or the one imminently directing him, it is self-defense).

The basic principles of JW can be broken down into “Jus ad bellum” (having to do with “Just” causes of going to war) and “Jus in bello” (having to do with “Just”conduct in a Just War)

Principle I:

JUST CAUSE: (AD BELLUM)

There must be a Gross Injustice and it can be on the part of one and ONLY one of the contending parties. It must be for self-defense against IMMINENT, present, credible, certain, and capable threats to life and actual survival, and/or IMMINENT intentional threats to innocent life, and/or IMMINENT intentional violations of human rights, and/or vindication of justice or avenging intentional wrong doing for purposes of deterrence of future lethal injustices and intentional wrong doing (this does not in any way sanction “Regime Change” and it cannot be selectively and opportunistically applied in certain contexts and cases and not others).

The scenarios in which there might be a “Just Cause” for a preemptory attack are extremely narrow. There must be a manifest (certain) intent and capability on the part of the enemy, with no time or alternatives in terms of possible deliberation or attempts to mitigate an imminent attack through non-military means.

In the case of U.S. forces encountering the Japanese force that attacked Pearl Harbor, who might have been able to claim being on a “military exercise” without the 14-part Purple Code intercepts as to their real intentions, under Just War (JW) criteria, the most the U.S. would have been able to do is signal Japan, give notice of intent to take out the Japanese force without proof of lack of hostile intent, and given notice of a line beyond which the U.S. was prepared to go to War. But JW would not allow a preemptive attack against Japan on the basis of the military “preparations” and militarization of Japan, or capabilities of Japan, or even “uncertainty” as to the true intentions of the attack force against Pearl Harbor vis-à-vis what they “might” do against the U.S. Even the Japanese imperialists understood this as they had planned to deliver their notice of War and supposed reasons for it prior to the commencement of the attack on Pearl Harbor but were delayed in delivering it.

One of the most patently disingenuous “post hoc” rationales for the present realities of the Iraq War is the “Roach Motel Theory” (“guests check in but do not check out). This says that the U.S. does not have the forces to fight dispersed forces of terrorism all over the world, so the present Iraq War is acting like a “Roach Motel” drawing in and concentrating forces of terrorists from many nations to be killed more “efficiently” in concentrated time and space; this is especially sick and twisted as a rationale for the Iraq War.

Principle II:

GROSS FORMAL MORAL GUILT ON ONE SIDE (AD BELLUM)

Material moral wrong is not sufficient. This means that the guilt of the enemy must not only be implicit and even material (objective but unintended effects), but it must be formal and clearly substantial or extensive and clearly intended even beyond the levels of willful blindness or depraved indifference (consequences clearly predictable by a reasonable and prudent person).

Principle III:

UNDOUBTED AND UNDOUBTABLE KNOWLEDGE OF GUILT (AD BELLUM)

The guilt of the enemy must be undoubted and not doubtable by a reasonable and prudent person free of subjectivity; this even to the point of being free of a “Gettier problem” The Gettier concept, having to do with epistemic certainty (how do we really “KNOW” anything and on what basis can we be responsibly “certain” something is true and responsibly assert and act on the basis of such something being true). In his “Is Justified True Belief Knowledge?” by Edmund L. Getter, (in “Knowledge and Belief”, A PhillipsGriffiths, ed, Oxford; Oxford U Press, 1967, pp 144-146) Gettier notes that even if something is true, and an individual believed it to be true, and sound reasons exist for that person to be justified in believing something to be true, still there may be an insufficiency of foundation for “knowing”—and thus acting on the basis of—something held to be true. This applies especially to the supposed “solid” basis or epistemological/evidentiary “foundation”, of “knowing” or believing Saddam Hussein had WMD as a pretext for a preemptive attack.

And since JW principles also include “right intention” for going to war (no ulterior motives allowed), and “mens rea” of the decision makers at the time of a decision to go to war is very muchat issue, then what intelligence the decision makers actually had available at the time of decision making to go to war is also very much at issue. That means after the overthrow of Saddam Hussein, it is immaterial what new documents they come up with documenting WMD if those documents were not available at the time of decision making to go to war. One cannot use “Divine Inspiration”as a cause for going to war and then look for “evidence” God was right in how He inspired the decision maker.

Principle IV:

WAR CAN ONLY BE CONDUCTED BY A COMPETENT, POLITICALLY LEGITIMATE AUTHORITY IN CHARGE OF THE PUBLIC ORDER BEING DISTURBED (AD BELLUM)

This is the main reason why no one nation has legal “standing” to summarily and unilaterally act in the name of or for another nation or group of people being oppressed. The U.S. has no legal standing to act outside of international and internationally recognized treaties, structures, authorities, organizations and mandates especially those it invokes for itself selectively. The U.S. may go to war because attacks against U.S. citizens and imminent threats to the U.S. and its own survival and “public order”, but may not unilaterally and preemptively act in the name of victims and “public order” in say Darfur outside of international and internationally-recognized organizations, structures and mandates. This principle also applies even in the case of “treaty obligations” if assisting another nation going to war without Just Cause and under the mandates of competent political authorities.

The reasons for this principle should be obvious. Nations could (as they do now) pick and choose which “horrors” they wish to stop and which “public orders” they wish to “restore” and in the course of things, not only generate new horrors and disturb new “public orders”, but as in the case of Iraq, make the horrors they are purporting to stop and the lack of public order they are purporting to restore even worse.

Principle V:

RIGHT INTENTIONS FREE OF REVENGE, BLOODLUST, And HIDDEN GEOSTRATEGIC AGENDA AND STRICTLY CONFINED TO THE GOALS CONNECTED WITH THE “JUST CAUSES” FOR WAR. (AD BELLUM)

This means that the intentions and reasons for war are advanced and vetted at the time of commencing war and decision makers do not get to make it up as they go along or selectively contrive new rationales as old ones are exposed as unfounded or worse. How to know real intentions? Consistency is one way, classified memos, like those in the book “The Price of Loyalty: The Education of Paul O’Neill” by Ron Suskind is another way.

If a nation is purporting to go to war to save victims of oppression in Iraq, and even convinces the UN to go along and authorize it, then it begs the question why it is not seeking the same in other places where even worse oppression is going on. Having oil on your soil is not sufficient reason why the forms of oppression and disturbances of “public order” you face are more critical than the same conditions faced by countries that have no geo-strategic locations and resources.

Principle VI:

WAR SHOULD ONLY BE DECLARED WHEN EVERY MEANS TO PREVENT IT HAVE BEEN EXPLORED, TRIED AND HAVE FAILED. (AD BELLUM)

There are so many insider accounts from the Bush and other administrations in U.S. history that document thoroughly an intention to go to war (Gulf of Tonkin in Vietnam and WMD in Iraq), intention to contrive phony intelligence and rationales for going to war, and that not only were the means and institutions like the UN and its Charters designed to prevent war not recognized, explored and attempted, they were in fact cynically used, circumvented, corrupted, cherry-picked and even used as instruments for creating conditions to go to war rather than conditions to mitigate it.

Indeed there is a clear body of evidence of instruments of Imperial Social Systems Engineering that the U.S. and other nations have developed that are about generating conditions, exacerbating contradictions and supposed JW rationales for going to war and/or imperial control and hegemony rather than mitigating war as an instrument for handling intern-nation disputes.

Principle VII:

JUSTICE MUST FAVOR THE SIDE OF THE OFFENDED NATION BUT NO NATION HAS ABSOLUTE JUSTICE ON ITS SIDE (AD BELLUM)

All nations must understand that it is the governments of nations that declare and go to war; it is the citizens and innocents who suffer. Further, when considering say historical reasons for why a given nation has a “Just Cause” for War if disputes cannot be resolved through non-violent means, it is important to understand that historical time frames and other parameters and angles of analysis are easily contrived and framed for propaganda and other purposes. For those, for example who decry the alleged crimes of a Khomeini: Would there have been a Khomeini without a Shah?; and would there have been a Shah without the violent overthrow of the democratically elected Mossadegh regime by the U.S. CIA?

Principle VIII:

THE INTENDED AND LIKELY “BENEFITS” OF WAR IN TERMS OF WRONGS THAT ARE STOPPED AND “PUBLIC ORDER” RESTORED MUST LIKELY OUTWEIGH THE LIKELY COSTS OF THE WAR IN TERMS OF SUFFERING AND DESTRUCTION. (AD BELLUM)

This means that before a nation goes to war, it must plan and assess carefully, given ALL the information and expertise available, with no cherry-picking and contrived “intelligence” or “framing” allowed by the doctrine of “Right Intention”, the likely costs and benefits (before, during and after the formal cessation of war including reconstruction) on ALL potential parties including those nations in no way parties to the war. What have the true costs of the Iraq War and other imperial adventures really been on the purported victims being “saved” and also on developing nations (e.g. high gas prices, refugee flows, spin-off terrorism etc) that have had no part to the war but have only been victims of it?

Principle IX:

THERE MUST BE A GROUNDED AND REASONABLE PROSPECT OR HOPE FOR SUCCESS (AD BELLUM)

A nation may have all the elements for the prosecution of a Just War on their side but have no realistic hope for prevailing. This is the case with many Indigenous Nations today. JW Doctrine says that given the likely horrors of any war, and especially the effects on innocents, having “just causes” and even an imperative from the prospect of national survival to go to war, that is still not sufficient. Each nation must consider if it is not only trying to delay the inevitable (this also applies to the issue of continuation of a JW as well as launching and prosecuting one) in facing overwhelming force with the result of only more death and destruction on innocents with no prospects of a JW having anything but an inexorable and unfavorable outcome.

Principle X:

THE LIKELY EFFECTS OF THE METHODS AND INSTRUMENTS OF WAR AS MEASURED IN LIKELY DEATH AND SUFFERING MUST NOT BE GREATER THAN THE WRONGS BEING STOPPED AND/OR GOOD BEING ESTABLISHED. (AD BELLUM AND IN BELLO)

This principle again establishes a burden to make a good-faith attempt to realistically assess and forecast and weigh the likely effects—“positive and negative”—on all potential parties (including global spillover effects) and to ensure that the net result will not likely be greater harm than good vis-à-vis purported evils to be stopped and goods to be established via a war that meets all other tests of JW.

Principle XI:

CIVILIANS AND NON-COMBATANTS (Those not intentionally,directly and materially engaged in support of combatants) MUST BE DIFFERENTIATED FROM COMBATANTS AND NO INTENTIONAL FORCE IS TO BE DIRECTED AGAINST THEM. (IN BELLO)

This principle recognizes that although so-called “collateral damage” is inevitable in war, it must be totally accidental, not predictable by an average and reasonable person, and all attempts to mitigate it must be pursued and built into military operations, tactics, weapons uses and strategy. This principle prohibits embargos of materials for primary use by civilians (even in some potential dual use cases like chlorine to clean water to prevent cholera and typhus as a result of 70% of Iraqi water treatment plants is knowingly and calculatingly bombed), the likes of the bombings of Dresden, Hiroshima, Nagasaki etc. This also precluded Madelaine Albrights statement that the deaths of some 500,000 Iraqi children from the embagos are “an acceptible cost” of overthrowing Saddam Hussein.

Civilians and non-combatants are defined and differentiated from combatants not in terms of whether or not they have tied yellow ribbons, screamed “Banzai” or have attended Nuremberg rallies, but whether or not they have given intentional, material and direct support to combatants.

Conclusion:

The reasons for acceptance and authority of international law and the principles of “Just War” are the same as those for local laws. Where there are contradictions, there are contending interests and parties. Where there are contradictions, contending interests and parties and where those contending parties are unevenly endowed with capabilities that, when used in the particular, can damage or destroy the whole, then each of the parties enjoying the benefits of the whole, must abridge some of their supposed “rights”, “sovereignties” and capabilities, and/or respect the very same rights of others that they assert for themselves, in the interests of the preservation of the whole that the individual parties gain benefits from being a part of. That is why in the U.S. for example, like most societies, municipal laws are trumped by county laws that are trumped by state laws that are trumped by federal laws: so that potentially destructive interactions on the micro levels do not spill over to compromise the macro within which they exist and upon which they are dependent just as the U.S. is dependent upon–and benefits from–a stable global economy and society. Pay all true costs of all benefits received, receive all true benefits of all costs paid.

So it is with international law especially in the age of very sophisticated weapons of mass destruction and other capabilities that may be used as weapons of mass destruction given the possible global spillover effects as we are presently witnessing. The alternative is something like “Mad Max Beyond the Thunder dome—where even in “Barter town” they had laws and institutions like “Break a deal, face the wheel”—in which the literal survival of the whole planet is threatened by the unchecked lawlessness, ambitions, ruthlessness, destructive capabilities and hubris of predatory and ruthless terrorists—imperialist nations and otherwise.

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