“The supreme international crime”

Excerpt from the Judgment of the Nuremberg Tribunal relating to “Count Two”, the Crime of Aggression, as brought against Goering, Ribbentrop, and 14 other defendants:
The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

Nicholas J. S. Davies, a Contributing Writer over at Online Journal posted a generally well-argued piece there on December 31, in which he reviewed the history in international jurisprudence of the crime of initiating an aggressive war, and concluded that the US and British governments were guilty of such a crime in initiating the war against Iraq.
(Indeed, though Davies doesn’t go specifically into this, the precedent of Nuremberg would also indicate that the relevant officers in these governments who made the decision to go to war, and those who prepared and planned for it, should be held personally responsible for the catastrophic consequences of those decisions.)
Davies starts off by explaining that, “war crimes fall into two classes: 1) war crimes relevant to battlefield conduct; and 2) waging a war of aggression.” Strictly speaking, I think he has the nomenclature a little fuzzy there. “War crimes” as a term nowadays nearly always refers to crimes that are “grave breaches” of either the Geneva or Hague Conventions– i.e., jus in bello crimes, or “crimes that are committed within the context of a broader war.”
The big jus ad bellum crime, by contrast, is the crime of waging an unjustified war in the first place— regardless of whether or not specific and smaller-order “war crimes” are committed within it. From that point of view, the portion of the Nuremberg judgment cited above is extremely important: the “crime of aggression” as it is sometimes called, or alternatively, a “crime against the peace”, truly is,

the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

As I noted in this June 2004 JWN post,

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 [for the International criminal Court, in the form of “the crime of aggression”. However, [this] “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!

So it is clear that no-one is about to be able to haul Bush, Blair, and their co-conspirators into any law-court and indict them for their launching of the war against Iraq.
But one’s judgment on the legality of the original decision to launch the war is nonetheless important for how it colors one’s views on what is happening and what needs to happen in Iraq today.
Firstly, though I have argued several times elsewhere that “foreign military occupation” is essentially a value-free technical term that simply describes what happens when, during a war, an army comes to be in control of territory that does not belong to it’s country– still, one’s judgment regarding the legality of an occupation most certainly can be colored by one’s judgment of the legitimacy of the military operation that brought it about. If a patently unjustifiable war is launched, then the occupation of foreign terrain that is run, as a result, by the war’s initiator should certainly itself be viewed as a thoroughly illegitimate occupation, in itself.
And so, secondly, what should be “done” about this occupation?
Davies reaches the following conclusion:

as the aggressors in this conflict, the United States and the United Kingdom are ultimately responsible for “the accumulated evil of the whole.”
Legitimacy is not something that can be conjured out of illegality by finding the right political or military strategy. International law actually requires us to end our offensive military operations, and to submit the crisis we have created to the U.N. Security Council without prejudice, not to win approval of a new American plan for Iraq, but so that we can withdraw our forces, Iraq can regain true sovereignty and the U.N. can offer its assistance as needed or requested by the Iraqis. The legitimate ongoing role of the United States in this process would be the payment of reparations to enable the Iraqi people to recover from the war and to rebuild their country.

I completely agree.
(Big thanks to Christiane for pointing me to Davies’s article.)
… Though in general, Davies’s piece is well argued, and I am really delighted that he has laid out the case so clearly there, he does, I think, fudge one other important definitional matter in addition to the issue of whether the “crime of aggression” can be subsumed under the title “war crime”. This is where he seems to fail to understand the very important distinction between “preemptive” and “preventive” war.
He writes:

There is actually an internationally accepted standard in international law for “preventive” or “preemptive” military action, known as the Caroline case.

That case happened during an obscure, British-US battle conducted on the Niagara River in 1837; it involved the burning of a boat called the Caroline… Davies writes that the two sides resolved the dispute over the legality of the boat’s burning by jointly agreeing to,

the principle that “Respect for the inviolable character of the territory of independent nations is the most essential foundation of civilization,” and that this can only be legally overridden by “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” and “the act . . . must be limited by that necessity, and kept clearly within it.”
This became the accepted international standard for “preemptive” military action, and was cited as such by the judges at Nuremberg using [U.S. Secretary of State Daniel] Webster’s precise wording.

The first half of that principle is very important, and certainly also bears remembering well today. But the “Caroline standard” for justifiable pre-emption laid out in the second half is crucial. It is very clear and very tight: there must be a demonstrably imminent threat to the security of Nation A, stemming from the territory of Nation B, if A is to be able to claim that its “pre-emptive” initiation of war against B was justified.
That’s the meaning of the word “pre-empt”: you’re about to strike me, but I “pre-empt that strike” by striking you first. There has to be a threat that is demonstrably there and demonstrably immediate that is what actually is pre-empted.
If you’re not about to strike me but I strike you anyway, I am merely an aggressive bully.
In the case of the USUK war against Iraq, there was no such demonstrably imminent threat to the security of either the US or the UK. By no stretching of the criteria of the “Caroline standard” can that be said to have been the case.
What Bush– for his part; I can’t speak about Blair– was doing in March 2003 was something significantly different: he was launching a “preventive war”, not a “pre-emptive war”, and it’s important to keep that distinction clear.
The claimed justification for a “preventive war” is that just possibly, sometime in the future, Nation B might have both the ability and the intention to launch a strike against Nation A. So Nation A claims the right to get in there first– ways first!– and Nation B from ever being able to do that. None of that wussing around with waiting around until, literally, as per the caroline standard, there is “no moment for deliberation”.
Indeed, a “preventive” war– whether initiated by Hitler and his henchmen in the 1930s or 1940s, or by George Bush in 2003– requires a tremendous amount of deliberation, just as it requires a tremendous amount of preparing, planning, maneuvering slyly toward, and just plain “spinning” along the way.
Although I am deeply opposed to the initiation and waging of all wars, I think it’s really important to keep in mind the important distinction between preemptive war and preventive war. It was that distinction that, crucially, Bush’s ‘National Security Strategy’ document of September 2002 sought to elide.
As here, in the text:

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

Actually, the argumentation leading up to that conclusion forms the crux of that whole very dangerous document, and is worth reading carefully:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat — most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terrorism and, potentially, the use of weapons of mass destruction — weapons that can be easily concealed and delivered covertly and without warning.
The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.
The United States will not use force in all cases to preempt emerging threats, nor should nations use preemption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world’s most destructive technologies, the United States cannot remain idle while dangers gather.

Just look at that second sentence there: “Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat…” No, Mr. Bush, they didn’t “often” do that, they always did it, at least from Daniel Webster on.
But you see how he tried to say, kinda, well it wasn’t exactly such a strict standard as all that, ya know… so if we just tweak it a little bit further, no big deal, eh?
A weaseling argument if ever I saw one!
I’ll just close where I started:

War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is … the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.