War Crimes Trials and Errors

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Years ago, a news story reported thefts of inmates’ personal property at a state penitentiary. The prisoners held an impromptu meeting in the cafeteria, at which one of the convicts declared: “men, we have a thief among us!” I recalled this story as I watched the television agents of disinformation and sophistry chortle over the capture of Saddam Hussein, and then announce that Hussein would be prosecuted for “war crimes” or “crimes against humanity!”

Satire has never been more fully expressed than in the institution of “war crimes trials.” Such extravaganzas seek to bestow legitimacy upon the act of punishing the losing side in wartime for having done the very acts engaged in by the victors. Such charades remind me of the posturings in the Godfather movies, with organized crime leaders embracing and sanctimoniously pledging their mutual honor, while their operatives are out on the street killing one another.

After cutting through self-serving legal definitions and distinctions that obscure the fact that all wars are crimes against humanity, the essence of a war crime comes down to this: the winners get to beat up and/or kill the losers. For all the gilt-edged window-dressing and black-robed magistrates with which “war crimes trials” are conducted, their underlying logic is no different than when our ancient ancestors placed the severed heads of vanquished leaders on pikes and rode through the streets to cheering throngs.

We delude ourselves that we are too “civilized” to engage in the barbarities of “victors’ justice.” Like members of a lynch mob who, after the fact, are embarrassed to admit to themselves that they were capable of having their fears mobilized into angry and murderous expressions, we must rationalize our support for wars. The fear and hatred of a foe that was skillfully nurtured by statist propaganda is not easily dissipated once reason and intelligence returns to our minds. We need to convince ourselves that there was some noble purpose, some abiding principle that drove our fury. If there is to be a “war on terror” with which to frighten men and women into submitting to state authority, there must be horrible terrorist acts to be punished. What better mechanism for the completion of this cycle of self-deception than a “war crimes” trial?

You can see how such trials are crucial to the state’s efforts to rationalize its viciousness to an otherwise decent public. Lopping off the heads of the conquered will no longer be acceptable to men and women of enhanced sensibilities. In a legalistic age, the appearance of due process must be adhered to, even if the guilt of the accused is a foregone conclusion. The proposition was never better stated than by Lewis Carroll’s Queen of Hearts who intoned: “sentence first, verdict afterwards.”

Before joining with the Bush administration and its media flunkies for another round of boob-hustling, bear in mind the wholly one-sided nature of “war crimes” prosecutions. Had there ever been a sincere effort to punish those who intentionally inflicted needless death and suffering upon civilian populations, Winston Churchill and Harry Truman would have ended their careers on the hangman’s scaffold (as would Roosevelt, had he survived the war). It has been estimated that British and American terror bombings of German cities — directed not at military installations, but civilian targets — killed over half a million people. The fire bombings of Dresden — a city with no more military significance than Beverly Hills — led to the deaths of anywhere from 30,000 to 100,000 or more persons. The attack on Hamburg killed some 40,000; Wurzburg added another 6,000 dead; while the massive raid on Cologne (Kln) added more victims.

The British openly defended such attacks as a way of terrorizing the German people into demanding a surrender. The head of the RAF Bomber Command, Arthur “Bomber” Harris, confessed to even more brutal purposes in declaring that bombing raids on German cities occurred simply because the allies had run out of other targets to bomb! Harris’ statement that “bombing anything in Germany is better than bombing nothing” summarizes the purpose of such raids. (I am amused by Anglophiles who hold up the British as an example of a “civilizing” influence in the world!)

Nor can we overlook what may be the most grievous war crime and act of state terrorism: the American nuclear bombings of Hiroshima and Nagasaki. Some 105,000 were estimated to have been killed outright by these bombs — including American prisoners of war being held in a nearby prison camp — with many more than that number who subsequently died from radiation burns and secondary diseases. That many Americans continue to assuage themselves with the lie that these bombings brought about an end of the war — the Japanese had been trying to surrender before the attacks — reflects the same need of people to distance themselves from the wrongs of their government as is found in the oft-cited statements of Germans who “didn’t know” of the vile practices being engaged in by their Nazi leaders.

If the prosecution of government leaders for the fomenting of war was a truly principled undertaking, the United States could have added more war-crimes defendants to the docks as a result of the Vietnam War. Presidents Johnson and Nixon, and such administration officials as Robert McNamara and Henry Kissinger, would have had much to answer for when it comes to the intentional infliction of death and suffering upon humanity.

And now we come to the Bush administration’s efforts to sanitize its wrongs by prosecuting Saddam Hussein. Was Hussein a butcherous tyrant? Of course he was. His record for viciousness was a matter of record even during the administrations of Ronald Reagan and George H.W. Bush, when the United States cozied up to this thug and authorized the sale of deadly weapons — including chemical and biological agents — to his regime. The Washington Post reported that Iraq was using chemical weapons on an “almost daily” basis when Donald Rumsfeld was meeting with Hussein in December, 1983. During the prolonged debate over whether Hussein had weapons of mass destruction, I kept expecting George Bush to announce: “we have the evidence; we have the original invoices!” Photos of Rumsfeld shaking hands with Hussein, in 1983, reflect the Janus-faced nature of enemies and allies in our world.

If Hussein is to be prosecuted for employing chemical or biological weapons against his foes, will Bush I and Rumsfeld be indicted as co-defendants? Mr. Reagan is apparently in no condition to stand trial, but ought not these other men who aided and abetted Hussein’s efforts by helping the United States supply him with his weapons? If not, will they be permitted to testify as character witnesses on behalf of Hussein?

And what about the current President Bush? Will he be made to answer for his crimes of making unprovoked attacks upon Afghanistan and Iraq? Will his administration’s cascades of lies and forged documents be introduced into evidence to support the charge that Mr. Bush, like “Bomber” Harris before him, was intent on bombing any plausible target? And should Mr. Bush plead his “war on terror” as a defense, will he be compelled to confront the fact that the United States has been, for decades now, a leading practitioner of state terror against other nations? Even the Bush administration’s prolonged, heavy bombing of Baghdad was an admission of this fact: aptly named “Shock and Awe,” this deadly campaign was designed to do to Iraqis what the allied bombing of Germany had sought, namely, to terrorize people, and for what purpose? If, as the neocons and Bush-leaguers had maintained, the Iraq people lived under the tyranny of Saddam Hussein — which, indeed, they had — and eagerly awaited our rescue efforts, then to what end should the Iraqis experience “shock and awe” over their alleged “liberators?”

Rather than continuing our participation in these periodic self-righteous, farcical “trials” for “war-crimes” or “crimes against humanity,” let us acknowledge that all political systems war against humanity, for they seek to compel people to be what they do not choose to be and to act as they do not choose to act. Every state is a “terrorist state,” for each, in varying degrees, threatens people with the infliction of violence or death for failure to abide by its demands.

It is time that we gave up our illusions about “good” guys and “bad” guys in our world, and recognize that political thinking and the systems it spawns will always be destructive of human well-being. The earlier photo of Donald Rumsfeld shaking hands with Saddam Hussein is but one exhibit tending to show the symbiotic relationship that unites all statists in a conspiracy against the human race. Such evidence ought to be carefully considered by a jury of humanity itself in a trial of more encompassing dimensions, namely, mankind versus the state.

Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law.

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