War crimes, international law and the elephant in the room
United States secretary of state Hillary Clinton, speaking to the US Senate Appropriations Committee last month, said Syrian President Bashar al-Assad meets the criteria of a war criminal.
Telegraph.co.uk reported on February 28 that Clinton said: “Based on definitions of war criminal and crimes against humanity, there would be an argument to be made that he would fit into that category.”
But long experience indicates such moves can complicate the resolution of violent conflicts, as it limits options for negotiated settlements and can encourage war criminals to fight to the bitter end.
This raises questions about the application of international law to heads of state and government officials. What constitutes war crimes, and how can we evaluate whether a state leader is a war criminal?
Definitions of war crimes date from the end of World War II. The charter establishing the framework for the Nuremberg war crime trials of Nazi leaders has also been incorporated into today’s International Criminal Court.
Article Six of the charter defined war crimes includes three definitions of war crimes: Crimes against peace (planning or initiated wars of aggression); violation of the laws or customs of war (such as killing or mistreating prisoners of war or the civilian population of an occupied territory); and crimes against humanity (such as murder, extermination, force deportation or enslavement of civilians).
The Assad regime has unleashed terrifying violence to suppress an uprising by the Syrian people, particularly in the city of Homs. The Ba’athist regime in Syria is guilty of torturing dissidents, imposing itself in power by force. The elder Assad, Hafez, carried out a coup d’etat in 1970, and his son, Bashar, has continued to rule a police state.
The Syrian regime has committed horrendous crimes against Palestinians. In the mid-1970s during the Lebanese civil war, the Syrian army intervened to slaughter thousands of Palestinians and Lebanese civilians to ensure the ascendancy of pro-Syrian factions in any post-civil war political arrangement in that country.
Palestinians who opposed the domination of Syria were killed, and the Syrian army actively assisted right-wing extremist Lebanese groups in besieging Palestinian refugee camps.
Until today, no one has brought the Syrian leaders to trial for their responsibility in these killings of Palestinians.
In November last year, a Malaysian tribunal basing itself on the principles of the Nuremberg trials convicted former US President George W. Bush and former British Prime Minister Tony Blair of war crimes for their attack on Iraq in March 2003.
CommonDreams.org said on March 5 that a war crimes tribunal in Kuala Lumpur convicted Bush and Blair of “crimes against peace”.
The tribunal's verdict concluded: “Weapons investigators had established that Iraq had no weapons of mass destruction. Iraq was also not posing any threat to any nation at the relevant time that was immediate that would have justified any form of pre-emptive strike.”
This tribunal received scant attention in the US media, but it appears Bush takes allegations of war crimes directed at him seriously.
CommonDreams.org said: “In February, 2011, [Bush] cancelled a trip to a charity gala in Switzerland for reasons that are disputed. Event organizers attributed the cancellation to demonstrations planned to protest the alleged torture of U.S.-held detainees during his presidency.
“Human rights groups, however, thought the cause was their announced intention to file an official criminal complaint against him with Swiss prosecutors upon his arrival (along with the call for his arrest by a right-wing member of the Swiss parliament.)
“A Bush spokesman declined comment at the time, but in a later story about Amnesty International’s call for his arrest during an upcoming visit to Africa, CBS News attributed the Switzerland cancellation to “fears that he may have faced legal action there.”
Elephant in the room
It is not just past leaders that fit the bill. By the standards elaborated by international law, the US government of President Barack Obama and Bill Clinton should indicted for war crimes.
There have been a number of revelations of US soldiers in Afghanistan, for instance, torturing, mutilating and killing Afghan civilians as part of their war in that country.
German magazine Der Spiegel released photos in March last year showing soldiers from the Fifth Stryker Brigade, Second Army infantry gloating over the bodies of Afghan men they had killed and mutilated.
The US military claims such incidents are isolated and do not represent the values that motivate the US armed forces. But the Fifth Stryker Brigade was armed, trained, psychologically tested and entrusted with carrying out orders from the highest levels of the US military and political authorities.
In 2011, during the Libyan civil war, NATO forces targeted and completely destroyed the town of Sirte, killing thousands of civilians.
AFP reported in October last year: “Fine words from NATO and Libyan new regime fighters about protecting civilians mean little to the furious residents of Sirte, whose homes are destroyed and relatives killed in the battle to capture Muammar Gaddafi's hometown.”
The article said that “many of the thousands of Sirte residents who managed to escape said the biggest danger was not Gaddafi loyalists but the bombs that drop from the sky and the ones the NTC fighters lob into their Mediterranean port city”.
John Pilger, the veteran investigative journalist, said that the residents of Sirte were considered by Western powers as "unworthy victims", unlike victims of Gaddafi's tyranny, and therefore expendable.
The destruction of Sirte is not a one-off. Wholesale destruction was wreaked on the Iraqi city of Fallujah in 2004. In response to growing armed resistance to the occupation, the US military sought to make an example of the central Iraqi city.
It unleashed a huge offensive in November 2004. All of the city's infrastructure and the civilian population were targeted by US forces.
The entire city became a killing zone, and even hospitals were attacked. US marines boasted of their technique of "dead-checking"; when entering a room of wounded people, they would determine if anyone was still living by pressing their boots on the eyes of their victims.
If the person moved, they were shot.
Of Fallujah's 300,000 people, all but 50,000 fled the carnage. The Guardian reported in November 2005: “Fallujah's compensation commissioner has reported that 36,000 of the city's 50,000 homes were destroyed.”
No one has ever faced charges for this act of collective punishment, which is defined as a war crime under international law.
In 2008, the Georgian government, armed and supported by the US, waged a short war on the breakaway republic of South Ossetia. The Russian military, with South Ossetia, quickly intervened and defeated the Georgian troops.
Then-Russian president Dmitry Medvedev issued a statement responding to the crisis. He accused the Georgian government of repeatedly violating international law, but said there was no reason why the relevant parties could not resolve this dispute on the basis of international law.
He said the “provisions of the U.N. Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the C.S.C.E. Helsinki Final Act of 1975 and other fundamental international instruments” provided a solid, relevant and just basis for resolving this dispute between all the parties involved.
Obama was awarded the Nobel Peace prize in 2009. During his acceptance speech, he elaborated his vision of a peaceful world ― the US has the right to launch "preemptive strikes" against those forces that threaten its interests.
Invoking the concept of “evil in the world", like his predecessor Bush, Obama outlined his intention to wage unilateral war against any regime or force that Washington deemed to be an "outlaw".
Obama assured his listeners the US did not intend to impose itself by force, but described the US as motivated by “enlightened self-interest" to propagate its values around the world.
His speech, while more subtle and refined than those of Bush, was no less effusive in its praise of US militarism. In this speech, to receive a peace award, Obama rejected the entire basis of the Nuremberg tribunals.
He advocated the illegal doctrine of "preemptive war", and repudiated the foundations of international law.
The biggest outlaws in the world today are the US and allied governments. We would do well to hold their government officials to account in the dock.
[This article is abridged from a longer version at Links International Journal of Socialist Renewal.]