[Newspoetry] Expand the War on War Crimes

[Donald L Emerick]

Delaney: [START] Here is what Phyllis Bennis of the Institute for Policy Studies, in an extensive and exhaustive paper called "Understanding the U.S.-Iraq Crisis," says about the legality of what has become the present war:  "(a) Without UN authority, and (b) since there is no legitimate claim of self-defense, (absent both a,b then absent c) any U.S. strike on Iraq would violate international law. (absent c = d) It would constitute the crime of aggression, one of the most serious war crimes.  (e1) Anyone with command responsibility for such an illegal war  (e2) could be held accountable in a (e2a) U.S. or (e2c) international court." And, in another section: "(e = f) Under international law, political and military leaders are accountable for their commands, and (g) individual soldiers may also be charged with war crimes if they carry out such illegal orders." [END]

In order to clarify the seeming differences in what I said and what Bennis said, I have inserted parenthetic lettering labels, above.

First, as a matter of my reading of law, (a) and (b) seem like the kind of question that is factual.  There is considerable reason, as I said, to believe that Bush believes in the truth of the facts (a) and (b), and that his belief is the result of consultations with top legal minds in international affairs.  Indeed, in various related press briefings, from various offices in DC, I have seen the Administration repeatedly assert belief in the correctness of their interpretation of these facts as reasonable.  I think they strain the case for such facts, but I have seen how deferential Courts, especially US courts (e2a) are toward this Administration, and toward issues of "our" Governmental powers as set against states, citizens or the world at large in its many and various guises.

I agree that if (c) is found, then d is true.  I agree with the combination of (e1) and (e2), especially in light of the relatively weak and passive liability assertion (ie, "could be held accountable").  Indeed, if "command responsibility for ... an illegal war" is also treated as a factual characterization, I wholly agree that the accountability of e2 follows, as a matter of law -- but note that we'd have to have the predicate factual findings of "illegal war" and of "command responsibility" relative to the conduct of that illegality.  As a matter of legal precedent cases, command responsibility would probably not extend too deeply into the organization: a handful of top officials at the top of the civilian-controlled military pyramid, including the President and other primary figures of the commander-in-chief's retinue (Bush, Cheney, Rumsfeld, Wolfowitz).  This might not include any members of the military high command, itself.  Command liability does not include willing collaborators and other conspirators.  For instance, Scum-bag Ari Fleisher is not a person who has command responsibility but, if Vonnegut in Mother Night rightly portrays mouth-piece liability for Goebbels types, then he might have other kind of criminal liability, if there was an illegal war.

The reason why top military commanders might not have "command liability" relates to the issue of who has effective control in theory and in fact over the decision.  However, such military officers might have accessory liability, even if they do not have command liability.  It would depend on how the accessory crimes are defined: for instance, materially aiding, willfully pursuing and knowingly furthering illegal acts that constitute a war crime.

Individual soldier liability, for carrying out acts in furtherance of this kind of war crime, does not exist.  That is, I agree with (f), entirely, but (g) does not automatically follow from (f), because they must have the kind of knowledge (requisite to wrongful intent) that they are, in fact, "carrying out [an] illegal order."  That is, if they can be charged with knowing the nature of the thing is wrongful (illegal), and if that factual finding could be sustained beyond the shadow of a reasonable doubt, then the soldiers could be convicted, under their derivative liability, that comes from being an accessory, instrumental to the crime's, in fact, occurrence (or, in other circumstances, to its concealment, after occurrence).

And, I simply can not see any fair-minded jury in the world that will convict ordinary troopers for following what appear to be duly constituted orders from apparently lawful authorities, unless the nature of the wrongdoing that is ordered is somehow, itself, quite the type of thing, independently, as any ordinary person would know is wrong, such as bayoneting babies or unarmed persons.  In my personal opinion, dropping bombs on places where civilians also reside, possibly as hostages, would also be a war crime -- but, I have to recognize that my own moral sentiment is a rather distinct minority opinion, and that it is unlikely to be sustained in law, at this present time, if ever.  In speaking of my opinion, I say what the law ought to be, but is not.

In summary, then, I think Bennis's position assumes too many facts that, while plausibly present in the evidence, as conjecture, are not sustainably present as what the law would recognize, in an ultimate finding of liability.  And, if (e2a) courts, as opposed to those of (e2b), are the ultimate judges, I am almost absolutely certain that I am right.  Moreover, it is important to note that the US rejects any international court of war crimes -- and oddly, inconsistently, asserts at the same time a private nation-based right to try war crimes against humanity.  Just who the heck do these Bush people think that they are!   Moreover, House Republican leadership (including DeLay among others) have "unofficially" (ie, not yet as a matter of (national) law) written to the President that if the international courts were to seize any American and to haul them before a war crimes tribunal, that they would authorize/ratify the President's use of US military forces to extricate said US persons from the clutches of such international courts of justice.  So, would it be a war crime to free -- by force of this kind of jail-break -- those accused of war crimes from standing trial as war criminals?  Talk about a willful defiance of the rule of law!  Who decides such questions?!

Despite all of my ersatz writings here, I hope you accept as genuine the sentiment that I express: our troops are there, to be supported by us, in various ways.  Whatever disagreements we have with the Administration do not extend to the troops, even if they gleefully carry their orders, as long as the nature of the illegality that is in question is merely malum prohibitum (wrongful because forbidden) and not malum per se (wrongful in its very nature).  I will also say, in a turning the other cheek fashion, that I also support Iraqi troops, to the same extent and in the same ways, that I support American troops.  Who is to say, says Talmud, whose blood is redder?

thanks for listening,
although I know that my writing here is choppy, terse and omissive,
perhaps too hastily and carelessly written to be clear and convincing,
Donald L Emerick

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