Alert users who use IE or AOL browsers have told me that the way our archived pages here on JWN have been redesigned, they couldn’t scroll down to the bottom of the post I put here last night. It was a long post. So with the aim that all of you could read the whole post, I’m re-posting the bottom half of that post in the ‘jump’ portion here.
Maybe it would make sense to have one Comments board, though. So if you could go back and add your comments to the board on the previous post, that should work??
Of course, if you are able to read JWN in Netscape, Firefox, etc., you’d be just fine.
Meantime, my technical person will work on correcting the underlying prob as soon as he can. If any of you has a great fix for this, could you email me? Thanks!
… The architects of Nuremberg more or less made up the other three categories in the summer of 1945. (Smith also wrote a great book about that work, too. It’s called The Road to Nuremberg.)
They invented crimes against humanity to cover actions taken against one’s own citizens that–if taken against citizens of another country–would count as war crimes. The goal there was to criminalize what the Nazis did against the Jews, Roma, etc., who were German citizens, rather than those who were citizens of countries under German military occupation.
Since 1945, the definition of “crimes against humanity” has changed quite a bit. For example, check out the definition of it provided in the Rome Statute for the International criminal Court, here. But the basic idea remains. This covers atrocities committed by governmental authorities against people who are their own citizens, not foreigners. Thus, many of the actions that Saddam and his henchmen took against Iraq’s own citizens–including the use of CW against Iraqi Kurds– would fall into this category.
Again, 18 of the 22 defendants at Nuremberg were charged on this count, and 16 were found guilty of it.
Crimes against the peace, as used at Nuremberg, harked back to earlier, Wilsonian dreams of “outlawing” war, or at least, “unjust” wars. In the end, 16 defendants at Nuremberg were charged with it, and 12 were found guilty.
Interestingly, this category of crimes was not included on the docket sheet for either the ad-hoc tribunal for former Yugoslavia (ICTY) or its sister-court for Rwanda (ICTR). But it did subsequently surface in a shadowy form in the 1998 Rome Statute, in the form of “the crime of aggression”. However, the “crime” was evidently one that the negotiators at Rome found very hard to reach agreement on. As the Statute says, “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime.” That certainly hasn’t happened yet!
But for Saddam’s trial, “crimes against the peace” seems to me to be a great description of the actions he took in starting (1) the 1980-88 war against Ira, and (2) the 1990-91 invasion of Kuwait. In the former war, an estimated million lives and hundreds of billions of dollars-worth of fixed-capital goods were destroyed. If any group in the world suffered from Saddam as much as, or perhaps even more than, his own people, it was the people of Iran.
Here’s Nuremberg’s definition of “Crimes against Peace”:
- namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
Okay, and so we come to conspiracy (I’ll write a little about genocide, later.)
The way the August 1945 Charter that established the Nuremberg court used the conspiracy issue was pretty clever. It owed a lot to Stimson’s own background as a federal prosecutor in the 1920s, when he’d broken up a sugar cartel by using charges of “conspiracy”… It was not a legal concept that was used or understood at all in such a context by the other four powers involved in running the Nuremberg court, but Stimson persuaded them it was good idea anyway.
Basically, the idea was this: People who were found guilty of one or more of the other three crimes at the court might, if they were members of a Nazi-related organization at the time of the crime, also be found guilty of having “conspired” to commit that crime. And then, any organization through which that conspiring had occurred could also be found “guilty” of involvement in the crime… (Article 9)
Then, as noted above, anyone else who was a member of that organization at that time could be subjected to administrative–or even in some cases criminal–sanctions. That was the case for the SS, for the gestapo-SD, and the “leadership circle of the Nazi Party, I think. But notably notfor the whole of the Nazi Party.
It may or may not be a good idea for some specific organs of the Baath Party in Iraq to be declared “criminal” through the upcoming proceeding. It also may not make that much difference. Who knows? You could also say that if the process of post-war rebuilding in Iraq were as well-planned and orderly as that in Germany, then criminalizing some parts of the Baath Party could be a help in the subsequent program of de-Baathifying important parts of the country’s leadership…
But it ain’t.
And so, to genocide.
Genocide, as you probably all know, is a special class of crime that consists of perpetrating certain other kinds of atrocities–indeed, the kinds that count as crimes against humanity, plus som other things–but doing so with an intent to destroy in whole or in part a national, ethnical, racial or religious group. It is that extra dose of inentionality that is important, for genocide. You have to intend not just to kill a large number of people, but to kill them in order to destroy in whole or in part one of the specified kinds of groups.
Well, Saddam’s actions against either the Iraqi Kurds or the Iraqi Shi-ites could well count as genocide.
So we could come to a charge-sheet against him and his henchfolk that would look very like that at Nuremberg–but with the addition of genocide.
I actually have found it extraordinarily hard to find any news on the plans of Junior Chalabi-man regarding the kinds of indictments they’ll bring in Baghdad. Maybe this will all be clearer within the next 24 hours… Anyway, I thought the above kind of background might be interesting and useful as we watch what lies ahead.