Brian Cloughley: America And War Crimes

The US has bribed and bullied over thirty countries to help it cripple and if possible destroy the ICC, but the great majority of nations (including many of the bullied ones) consider it a major advance in international cooperation.

We all know what a war crime is, because we are human beings who can tell right from wrong. We have a common sense idea of what constitutes a legitimate act of war and what does not. But as any lawyer will tell you, such things have nothing to do with common sense. The crux of the matter is a commonly-agreed international code of justice, but applicable law is imprecise on the subject because it was cobbled together in the aftermath of the First World War and used selectively at the end of the Second.

The 'Commission of Fifteen' on war crimes, appointed by America, Britain, France and Italy, reported on March 29, 1919, basing its findings on analysis of wartime atrocities. It produced a list of 32 infractions of what we now call human rights. Unfortunately it was inevitable that zeal for prosecuting those responsible for even the most terrible crimes would dwindle. "The public appetite for the chase was waning," says the erudite Margaret MacMillan in her majestic and elegantly-written 'Peacemakers' (John Murray) about the Paris peace conference of 1919. The Allies, she notes, "gave up the idea of trying Germans themselves", so "sent a list of names [of alleged war criminals] to the German government, which set up a special court. Out of the hundreds named, twelve were tried. Most were set free at once. A couple of submarine officers who had sunk lifeboats full of wounded received sentences of four years each; they escaped within a few weeks and were never found."

This is what happens when responsibility for administering justice concerning individuals alleged to have committed war crimes devolves upon the nation of which these individuals are citizens. Their guilt may or may not be proven, but so far as the imbecile forces of tribalism are concerned it is verging on the unthinkable that members of their nation could have innocent blood on their hands. Common sense is irrelevant, and it is law, and only law, international and enforceable by global consent, that will ensure justice for war criminals and their victims.

"Laws, like the spider's web, catch the fly and let the hawk go free," says a Spanish proverb, but this need not necessarily be so. So far as criminal activity is concerned, be that in war or peace, it is imperative to identify vicious predators and have them answerable to the world through transparent and impartial processes of law. But we can't expect justice from tribunals composed of tribal hawks.

Article 147 of the Fourth Geneva Convention tells us what War Crimes are made of, and it would be reasonable to accept the list - were it not that lawyers can drive tanks through the phrase 'wilfully cause great suffering or serious injury to body or health'. How wilful is wilful, and how great is great? Other crimes involve 'extensive destruction... of property, not justified by military necessity and carried out unlawfully and wantonly'.

To a normal human being this is simple: if you do that, you are a war criminal. But to those with neither conscience nor common decency the words 'extensive ', 'justified' and 'necessity' are only words. They are as sounding brass or a tinkling cymbal and signify nothing. Give us the legal definition of ' extensive' they demand, as the dying shrieks of shredded civilians rend the air. The ripped-off head of a girl being despairingly and hysterically embraced in all its eye-glazed bloodiness by her mother means nothing to perky pilots or the fixated zealots in Washington who sent them out to kill. Apparently it is administratively impossible and patriotically unthinkable that an American could be held accountable for the particularly hideous death of a girl whose mother' s life will for ever be an agonised hell.

On March 26 and 29 there were enormous explosions in market places in Baghdad, killing over 60 civilians. Washington and London claimed, possibly seriously, that they were caused by Iraqi military action. According to CNN, the Washington Post and the Boston Globe, there was to be an inquiry into the deaths: " [US Central Command spokesman] Brooks said the Baghdad market incident will be investigated". Good.

It was reassuring to know that there would be thorough investigation of an alleged war crime. There might have been mistaken targeting of the two markets, in which case we would have to say: "Very sorry about that, dead and maimed civilians, but this is war". In no way is that a war crime. It is gross incompetence and appalling professional negligence, but not a crime. So if this was the case, why not let us know about it?

If a genuine inquiry was held - which I doubt - its results have not been made known to anyone. The US Congress, the national legislative body one would think might be able to hold the administration to account for its activities, should have demanded to see it, but is morally spineless and declines to carry out its responsibilities. It would be considered un-American, unpatriotic and treasonable to pursue the matter, which causes the Bush administration to laugh all the way to the patriot vote bank.

There is one institution that might keep nations honest, and that is the International Criminal Court (ICC), in whose terms of reference there is a sensible, up-to-date definition of war crimes. But there lies the difficulty, because its definition does not suit Washington. Indeed it is hated and feared by Washington.

The US has bribed and bullied over thirty countries to help it cripple and if possible destroy the ICC, but the great majority of nations (including many of the bullied ones) consider it a major advance in international cooperation. In humanitarian terms it is a practical step forward for global maturity and decency. The only circumstances in which the Court would have a case referred to it would be if individuals alleged to have committed war crimes had not been subject to their own national judicial process. What could be fairer than that?

But it isn't a matter of being fair. It is a matter of America being above the law. No American citizen is ever going to be charged with committing a war crime. The US will ride roughshod over international law and treat with disdain and contempt those nations trying to construct a system of egalitarian international justice. Bush is determined to destroy internationalism. That's the way it goes, and there is nothing we can do about it. Little wonder that terrorists thrive.

- Brian Cloughley is a former military officer who writes on international affairs. His website is http://www.briancloughley.com

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