ust War’, the Predicates and Precedents of Nuremberg and the Iraq War
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-Copyright 2007 by James M. Craven/Blackfoot Name: Omahkohkiaayo i'poyi
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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...
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...We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity...
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-Opening address at the first Nuremberg Trial by Justice Robert H. Jackson, Representative and Chief of Counsel for the United States of America
“Calling a crime or body of crimes a “mistake”, is like calling rape “sex”.
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"If they [the powers that be] can get us to ask the wrong questions, they need not fear the answers"
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-THE INTERRELATED PREDICATES AND PRECEDENTS OF JUST WAR AND NUREMBERG
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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:
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a) Launching and Waging Aggressive and Illegal War; which implies--and if proved supports a charge of:
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b) Conspiracy to Launch and Wage Aggressive Illegal War (since no parties go to war without planning and giving asserted reasons );
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c) Crimes Against Peace (which all illegal wars, launched and waged on the basis of illegal conspiracy, imply and entail ,per se);
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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:
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e) War Crimes (no such right of "self-defense" or "necessary measures" by those guilty of charges a, b, c, d, ).
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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 with respect to established principles and their widespread understanding, acceptance and application. This led to the charge by the defense at Nuremberg of the charges themselves representing a case of ex post facto: creating and applying legal principles, and even applicable international law, that did not exist at the time of alleged offenses having been committed. Thus, it was argued by the Defense that, at the time, the alleged offenses were not crimes however odious; and thus further, any prosecution would be an example of ex post facto.
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The prosecution argued that in addition to established international law "(which evolves with customary use/acceptance" of certain principles; e.g. Conventions like the Hague Convention, Geneva Conventions etc) that established that the Nazis knew what they conspired to do and did was illegal, as attempts at cover-up reveal 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. They, themselves, had actually referred to and made use of some of these JW 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.
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Principles of "Just War (JW):
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The principles of JW were primarily established, and were often concomitantly violated, 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.
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What Nuremberg established, is that no nation can claim exemption from the very principles it itself benefits from and invokes for its own purposes. This is 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; it is much more and much more dangerous than mere naked hypocrisy.
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From the common-sense premises of :
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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”;
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b) “no need to cover-up what is clean only dirty”;
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Then, the Nazi attack against Poland and all other Nazi attacks against other nations were aggresson and illegal per se.
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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.
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Thus the war was aggressive, and thus the launching and waging of it illegal per se.
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Thus the planning for an illegal and aggressive war was "Criminal Conspiracy" per se.
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Thus the waging of the war and its effects constituted "Crimes Against Peace" and "Crimes Against Humanity" per se.
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Thus many of the military actions and actions against civilians became "Crimes" and some "War Crimes" at various levels of culpability: a person, for example, doing or directing a home invasion, 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.
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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)
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Principle I: JUST CAUSE: (AD BELLUM)
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There must be a Gross Injustice. 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 and intentional threats to innocent life, and/or imminent and 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" as it cannot be selectively, opportunistically, unilaterally or preemptively applied in certain contexts and cases and not others).
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The scenarios in which there might be a “Just Cause” for a peremptory attack are extremely narrow. There must be a clearly manifest and certain intent and capability on the part of the enemy, with no time or alternatives available in terms of possible deliberation or attempts to mitigate an imminent attack through non-military means.
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Take the often cited 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 neither JW nor international law at the time, would allow a preemptive attack against Japan on the basis of Japan's potentialities through military “preparations”, the militarization 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.
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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 in time and space to be killed more “efficiently”; this is especially sick and twisted as a rationale for the Iraq War.
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Principle II: GROSS FORMAL MORAL GUILT ON ONE SIDE (AD BELLUM)
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Material moral wrong is not sufficient. This means that the guilt of the enemy must not only be implicit and even material (objective but perhaps 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 and thus likely intended).
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Principle III: UNDOUBTED KNOWLEDGE OF GUILT (AD BELLUM)
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The guilt of the enemy must be undoubted and not datable by a reasonable and prudent person free of subjectivity; this is 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 thus 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 Phillips Griffiths, 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, nonetheless, 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/evidential “foundation”, of “knowing” or believing Saddam Hussein had WMD as a pretext for a preemptive attack.
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And since JW principles also include “right intention” for going to war (no ulterior motives allowed), and mens rea (state of mind and intent) of the decision makers at the time of a decision to go to war is very much at 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” or Calvinistic Preordination as "One of the Elect" as a cause for going to war and then look for “evidence” God was right in how He inspired the "Elected" decision maker.
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Principle IV: WAR CAN ONLY BE CONDUCTED BY A COMPETENT, POLITICALLY LEGITIMATE AUTHORITY IN CHARGE OF THE PUBLIC ORDER BEING DISTURBED (AD BELLUM)
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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 as a last resort because of 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.
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The reasons for this principle should be obvious: nations could, as they routinely do in the present, 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 public order they are purporting to restore even worse. This, in fact has been the record of preemptive U.S. covert and overt operations all over the world: a long chain of "Blowbacks" (operations producing the exact and very costly opposites of intended effects) from which the world and the U.S. have never escaped or recovered.
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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)
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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. No nation gets to contrive reasons let alone switch from contrived reason to contrived reason as each previous reason gets exposed as bogus (e.g. from WMD to 9-11 to "Regime Change" to "war abroad to protect the homeland from war here" ). 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.
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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 still 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 geostrategic locations and resources.
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Principle VI: WAR SHOULD ONLY BE DECLARED WHEN EVERY MEANS TO PREVENT IT HAVE BEEN EXPLORED, TRIED AND HAVE FAILED. (AD BELLUM)
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There are so many insider accounts from the Bush and other administrations in U.S. history that document thoroughly intention to go to war (Gulf of Tonkin in Vietnam and WMD in Iraq) supported by intention to contrive phony intelligence and rationales for going to war. 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 , as in the case of the Iraq War, used, circumvented, corrupted, cherry-picked and even used as instruments for creating conditions to go to war rather than conditions to mitigate it.
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Indeed the clear body of instruments of Imperial Social Systems Engineering that the U.S. and other nations have developed, is about generating conditions, exacerbating contradictions and even providing supposed JW rationales for going to war. Imperial Social Systems Engineering is about "engineering" what is commonly known as "manufactured consent" or "perception management" in the interests of imperial control and hegemony; it is not about mitigating war as an instrument for handling intern-nation disputes.
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Principle VII: JUSTICE MUST FAVOR THE SIDE OF THE OFFENDED NATION BUT NO NATION HAS ABSOLUTE JUSTICE ON ITS SIDE (AD BELLUM)
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All nations must understand that it is the governments of nations that declare and go to war; it is the citizens 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 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 in 1953? The same question applies with respect to Saddam Hussein once a darling of the U.S. imperial establishment as was Osama Bin Laden and the Taliban who were armed and supported by the U.S., to draw the Soviets into Afghanistan to "give them their own Vietnam" (see Interview with Brezinski).
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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)
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This means that before a nation goes to war, it must plan and assess carefully. It must consider ALL 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?
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Principle IX: THERE MUST BE A GROUNDED AND REASONABLE PROSPECT OR HOPE FOR SUCCESS (AD BELLUM)
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A nation may have all the elements for the prosecution of a Just War on their side but have no realistic hope of 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 unfavorable outcome. This means that the so-called "Samson Option" of Israel, to light-off their 200 or so nuclear weapons and take down the whole "temple" (planet earth) if they deem their own national survival to be threatened, is, in addition to being patently illegal and a violation of JW, also just plain monstrous and highly narcissistic and chauvinistic.
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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)
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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). This JW principle and mandate is to ensure that the net result will not likely be greater harm than any good coming from purported evils to be stopped or purported good to be established via a war that meets all other tests of JW.
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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. (Jus in Bello)
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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 critical chlorine to clean water to prevent cholera and typhus as a result of 70 % of Iraqi water treatment plants knowingly and calculatingly bombed), the likes of the bombings of Dresden, Hiroshima, Nagasaki etc. This means that the deaths of over 500,000 Iraqi children from embargos are not, as Madeline Albright characterized them, "acceptable costs" or "acceptable collateral damage" from the points of view of Just War, International Law and the presedents of Nuremberg.
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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 on the basis of whether or not they have given intentional, material and direct support to combatants.
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CONCLUSION:
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The reasons for acceptance and authority of international law and the principles of “Just War” are the same as those for any law. 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 weapons and 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/limit some of their supposed “rights” and capabilities in the particular, in the interests of the preservation of the whole that the individual parties gain benefit from being a part of. This also applies in that all individuals, groups or nations must respect for others, the very same rights and protections that they assert for and benefit from themselves. That is why in the U.S. for example, like in most societies, municipal laws are trumped by country laws that are trumped by state laws that are trumped by federal laws: so that potentially destructive contradictions and interactions on the micro level do not spill over to compromise the survival and stability of the macro.
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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---imperial and otherwise.