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Will We Finally Apply Nuremberg’s Lessons?


NOVANEWS

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By Benjamin B. Ferencz

published: September 2010

source: A New Introduction to Nuremberg and Vietnam: An American Tragedy by Telford Taylor

publisher: Foundations of the Laws of War series, The Lawbook Exchange

When this book was published in 1970, Telford Taylor had concluded that U.S. involvement in the war in Vietnam was an American tragedy: “Somehow we failed ourselves to learn the lessons we undertook to teach at Nuremberg.”[1] What were those lessons? How acceptable were they? Which laws of war could realistically be enforced on a raging battlefield against an implacable foe? Forty years later, it is worth re-examining how it came about that this powerful and humanitarian country could have come to be seen by many as a giant “prone to shatter what we try to save.”[2] What was the sequel to Nuremberg that prompted Taylor’s study and what lessons does it hold for the present and the future?

I. The Lessons of Nuremberg

The primary lesson of Nuremberg was that individuals, regardless of rank or station, could be held criminally responsible by an international tribunal. Medieval notions of sovereignty had become obsolete in the modern world. No nation or person could be above the law. Law must apply equally to everyone. As Justice Robert H. Jackson, the leading architect of the trials and Chief Prosecutor for the United States put it in his opening statement in the 1946 trial against Goring and cohorts before the International Military Tribunal (IMT) at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”[3] Taylor would put it more succinctly with his stark reminder that law is not a one-way street.

The reach of judicial enforcement by the IMT, and later the Tokyo Tribunal, was strictly limited. Three basic types of crimes, which had been long condemned by international custom or treaty, came within the jurisdiction of the court: aggression, war crimes and crimes against humanity. The idea that aggression should be punished as an international offense was not invented at Nuremberg. It was the culmination of many years of deliberation by distinguished jurists. The Charter for the IMT, adopted in London by the four occupation powers in August, 1945 denounced the planning or waging of wars of aggression as “Crimes Against Peace.” In his Opening Address for the United States, Justice Jackson made clear “that while this law is first applied against German aggressors . . . it must condemn aggression by any other nations, including those who sit here now in judgment.”[4] The time had come to hold leaders accountable for offenses of such magnitude that they threatened the survival of civilization.

The eminently fair IMT held that aggression was “the supreme international crime” since it encompassed all the other crimes. “The law is not static,” said the court, “but by continued adaptation follows the needs of a changing world.”[5] Taylor, in a speech in Paris in 1947, noted: “Judicial recognition of the long-established and universal conviction that aggressive war is a crime is a milestone in the development of international law and a new foundation stone of civilization.” He recognized that a permanent institution to punish aggression would be a “turning point in the history of international law.”[6] When Justice Jackson returned to his duties on the U.S. Supreme Court, Taylor, in October, 1946, was appointed Chief of Counsel for twelve subsequent trials designed to present a panorama of how the Nazis had gained and retained power. Taylor’s goal was to establish an incontestable record of criminality while reaffirming existing international precepts and moral standards.

The condemnation of war crimes and crimes against humanity had ancient roots. Codes and conventions of the Hague, Geneva and elsewhere sought to humanize man’s most inhumane activity. The list of war crimes was rather comprehensive and encompassed such obvious inhumanities as “wanton destruction of cities, towns or villages,” and “the murder or ill-treatment of prisoners of war.”[7]

Specifying rules is one thing; enforcing them on the field of battle is another. Invariably, peace-seeking accords contained vague clauses allowing restraints to be ignored when required by “military necessity,” “national honor” or “vital interests.” The wording of humanitarian texts reflected necessary compromises. Those called idealists believed that armed force could, and must, be restrained. So-called realists believed that wars were inevitable and controlling warfare by rules of law was both an unattainable and undesirable dream.

Laws do not interpret themselves. In a great democracy like the United States it should be expected that there will be various and strongly held points of view on such vital questions as war and peace. The law does not grow in a political vacuum. It is within the framework of such well-intentioned differences of conviction that past military interventions and current practices must be reviewed and evaluated.

II. How Acceptable Were The Nuremberg Lessons?

The IMT Charter and Judgment were affirmed by the United Nations and praised by legal experts from many lands. Allied courts condemned military leaders of Germany and Japan, handing down capital sentences for the crimes of aggression, war crimes and crimes against humanity. It was hoped that the lessons of Nuremberg would lead to a more humane world. Nuremberg was never intended to be merely a mask to hide the face of vengeful victors.

Even though there was nothing novel in prohibiting atrocities in warfare, the promise and the practice did not coincide. The Cold War was only one of the factors that restrained progress. No community can enforce norms which large segments of the population are unwilling to accept. Historically, warfare has always been extolled as the most glorious arena for demonstrating courage, love of country and other virtues. No one should disparage the sacrifice of brave young people who jeopardize themselves in battle for the defense or honor of their homeland. It must not be forgotten, however, that long before Nuremberg it was established that principles of humanity had to be respected, the right to injure your enemy is not unlimited and no soldier must obey illegal orders.

In 1950, the U.S. had intervened in the civil war in Korea. The Soviet Union decried American military aid to the South as the commission of aggression. In turn, the U.S. accused the Soviets of aggression by assisting the North Korean communists who had penetrated the South. A misconceived and fruitless armed intervention by the U.S. cost countless lives. Power politics did not restore peace or democracy to the area as was promised. Korea is still divided.

Accusations of aggression were hurled when Soviet troops invaded Hungary, French and British troops invaded Suez and American-trained troops invaded Cuba. Cambodia complained of aggression in 1964, Pakistan and India accused each other of that crime in 1965 and the U.S. was accused of it in the Dominican Republic and Nicaragua. All sides have leveled similar charges during recurring Middle-East conflicts. The banner of Nuremberg was waived in the air but its influence on the ground was practically invisible. The lack of any impartial judicial entity to determine whether crimes were committed remained a glaring deficiency in the international legal order.

General Taylor was highly respectful of the U.S. military but troubled by the path his country was taking in Vietnam. Strikingly, his book opened with a salutation to the American flag and particularly to “the Liberty and Justice for Which it Stands.”[8] When Taylor wrote this volume, the U.S. was already deeply mired in the war. The legality of the Vietnam War was challenged after the U.S. bombed North Vietnam in an effort to block elections that the U.S. feared the communists would win. Many loyal Americans denounced the bombings and subsequent invasion as the crime of aggression. At the UN, progress toward creation of an intentional criminal court was stymied. Academics were sharply divided about the legality of U.S. intervention whether it was legitimate collective self-defense or the crime of aggression. UN Committees dallied for years trying to improve on the Nuremberg definition of aggression that had been good enough for Jackson, the IMT, General Taylor, the UN General Assembly and a long list of international legal experts. A consensus definition had been reached in 1974 after decades of negotiation. Still, the Pentagon opposed the idea of any outside organization to oversee their dangerous endeavors. Making the fallacious argument that aggression had never been adequately defined seemed a persuasive ploy to derail further action toward creating a new international criminal court. Instead of deterring aggression, potential war-makers, knowing there was no international court to try them, had nothing to fear and could continue their aggressions with impunity.

Around Mach, 1968, it became public knowledge via television and radio that the U.S. army had destroyed whole villages whose inhabitants were thought to favor the communist Vietcong enemy. Taylor, mindful of General McArthur’s admonition regarding the sacred duty of the soldier to protect the weak and the unarmed shone his spotlight on the highly publicized war crimes committed in Son My, more commonly known worldwide as the Mylai Massacre. American soldiers had deliberately machine-gunned helpless Vietnamese civilians, including women and children, seeking shelter in a ditch. No court had yet tried anyone for that atrocity. In the end, only one person, Lt. William Calley, was prosecuted in a U.S. military court. Lt. Calley was convicted and, though originally sentenced to life in prison, served only three and one-half years under house arrest for war crimes which had brought worldwide disgrace upon his country.

By the time the U.S. left Vietnam in 1975, it had lost over 58,000 men and women. Millions of Vietnamese were killed in a war that had never been declared by Congress. North Vietnam had not attacked the United States and the Security Council had not authorized the use of armed force in what was a civil war between rival political factions. Cambodia, a country with which we were not at war, was bombed by U.S. planes in an effort to interdict supplies going to North Vietnamese troops fighting in the South. Under the belief that they were waging a necessary war against the spread of evil communism, a mortal threat to democracy, U.S. troops brazenly committed war crimes. Many very respected law professors, led by Richard Falk of Princeton, challenged the legality of U.S. intrusion into the Vietnam War.[9]

The legal journals and texts were filled with divided opinions. On the field of battle, the voice of the law became an unheeded whisper. Pentagon leaders repeatedly called for more troops to assure victory. The best and the brightest advised President Lyndon Johnson to carry on the fight to which administrations, dating to Truman’s, had given steadily escalating support. No American liked to criticize patriotic young American boys who were risking their lives under unbearable conditions. Thomas Paine, who inspired the American Revolution, had written that a true patriot is one who dares to criticize his country when it has gone astray. All who dared to protest against the Vietnam War were not unpatriotic radicals. Most just wanted to bring our boys back alive. How many young people fled the country to avoid being drafted and how many committed suicide, or turned to drugs in their despair, can never be known. Public outcry, and particularly the protesting voices of young people, brought the Vietnam War to an inconclusive end. Taylor, who visited North Vietnam before the war ended, viewed it as a military and moral debacle. The full extent of American misjudgments on Vietnam was to be authoritatively revealed 20 years later.

U.S. Secretary of Defense Robert M. McNamara resigned in 1966 when he became convinced that the war in Vietnam could not be won. Nearly thirty years later, he published his views , wherein he tabulated some of the major causes for “our disaster in Vietnam.”[10] According to the man who was in the best position to know, we misjudged our adversaries and exaggerated the dangers to the U.S. We underestimated the political forces within the country and the appeal of nationalism. We were ignorant of the people and their leaders and failed to recognize our limitations in dealing with unconventional adversaries. We failed to adequately inform the American public. We had no right to try to shape other nations in our image. We failed to recognize that military action should be supported by the international community. We did not know how to change course. All of the listed failures led the repentant former Secretary of Defense to conclude that it would be in the U.S. interest to create a world “in which relations among nations would be based on the rule of law . . .” It was an echo of President Eisenhower’s advice in 1958: “The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”[11]

In a December 12, 2000 Op-Ed article in the New York Times, Robert McNamara and I urged President Bill Clinton to sign the Rome Treaty for an International Criminal Court, which, despite U.S. opposition, had been adopted overwhelmingly in 1998. The legal effect of a signature to a treaty without ratification, would only signify general support. Clinton had repeatedly spoken out in favor of the proposed International Criminal Court but he was wary of the opposition dominated by the powerful conservative Chairman of the Foreign Relations Committee, Senator Jesse Helms.

On December 31, 2000, among his last official acts, President Clinton directed that his signature be affixed to the ICC treaty at the UN. The next morning, the press reported that Helms was livid. McNamara, of course, was happy. No one anticipated that the next administration would take the unprecedented step of repudiating a signature of the preceding President. During his last years, a repentant McNamara vigorously campaigned for world peace, nuclear disarmament and the creation of a permanent international criminal court that would clarify and enforce the laws of war. He died on July 6, 2009, at the age of 93.

III. Where Do We Stand?

Korea in 1950, and Vietnam in 1965 were illustrative of failed military interventions which ignored the lessons of Nuremberg. As part of a political and religious regional power struggle, Iraq, with U.S. military support, fought a brutal war of aggression against Iran between 1980 and 1988. His opponents at home were being ruthlessly suppressed or murdered. Economic sanctions did not stop Saddam but increased the suffering of his people. The UN was divided along political lines. What was denounced as terrorism by some, was hailed as heroism by others. Resolutions condemned the taking of hostages and illegal seizures of aircraft taking place with growing frequency. Diplomatic efforts to halt the crimes went nowhere. In critical respects, it remained an ungoverned world.

Another notable tragedy came with the Gulf War, which started on August 2, 1990 when the armed forces of Iraq launched a massive surprise attack against Kuwait, its peaceful neighbor. Iraq’s dictator proudly declared that he was responding to disagreements about oil production and Kuwait’s refusal to relinquish Iraqi territory acquired as a result of financial support to Iran in that country’s aforementioned conflict with Iraq. The White House, with important oil interests in the area, lost no time in denouncing the annexation as a blatant case of naked aggression. In an unusual display of unity, the UN Security Council unleashed a barrage of resolutions blasting Iraq’s aggression. U.S. Ambassador Pickering announced that, at the request of Saudi Arabia, the U.S., aided by several other nations, was sending military forces into the region. Saddam remained defiant.

On November 29, 1990, UN Resolution 678 authorized member states to use “all necessary means” to expel Iraq and restore peace and security in the area. Iraq was given an ultimatum to get out of Kuwait by January 15. Hussein continued to thumb his nose at the world community. The very next day, January 16, 1991, thousands of coalition planes and missiles struck military targets in Iraq. It was a display of military fire power and prowess never before witnessed in human history. After 100 hours of being battered, the Iraqi army was in complete rout. President George H. W. Bush, called all fighting to a halt. No action was taken to arrest leaders responsible for the aggression and related crimes. Saddam, protesting that he was struggling for right and justice, vowed to fight on.

After his forced retreat from Kuwait, the dictator promptly vented his wrath against minority rebels within his own country. Saddam’s forces massacred tens of thousands of Shiites and Kurds over the next months with the resulting chaos displacing several million civilians. The United States and its allies, who had publicly warned Iraq that it might face war crimes trials, seemed to have forgotten its promise and the mandates of Nuremberg. President Bush had lost his appetite for more war. In the grim equation of power politics, a known tyrant may have been regarded as less dangerous than an unknown successor. In any event, the new crimes against humanity committed by Saddam Hussein against his own citizens were described by Washington as Iraq’s internal affair. Those who had the capacity to enforce international law in 1991 did not chose to uphold the Nuremberg principles and mandates. It was sadly ironic that a great military victory won by brave young people fighting in the deserts of a distant land would be followed by a great human rights disaster and a lack of legal courage back home to vindicate the violated human rights. The world would come to regret the failure to bring Saddam to trial for his crimes in 1991. No study of the ensuing period can fail to note the impact on American policy by an event that came to be known as “9/11.” On the eleventh day of September, in the year 2001 nineteen men hijacked four airplanes. The hijackers crashed two into New York’s World Trade Center (one into each 110-story Twin Tower), the third plane into the Pentagon and the fourth, before reaching its intended target, crashed in a croft in rural Pennsylvania killing all on board. The lives of nearly 3,000 innocent civilians were lost in a matter of moments, incinerated in the crashes and conflagrations and, in the case of the Towers, unfathomably pulverized by the collapses. It was the culmination of a series of earlier attacks on U.S. installations in East Africa and the Middle East over a period of years. The world was shocked by the brazen 9/11 assault, apparently planned by Al-Qaeda, a militant, fundamentalist Muslim group led by Osama Bin Laden, the scion of a Saudi billionaire. For years, Bin Laden had fomented hatred for the U.S. and its allies and recruited radically disaffected men from all corners of the Muslim world for a jihad against the repugnant United States. Immediately, the focus turned to the territory of Afghanistan, where Bin Laden and Al-Qaeda were believed to enjoy safe haven courtesy of the Taliban regime, the de facto government of the country. On October 7, 2001, U.S. Ambassador to the UN John Negroponte wrote to the President of the Security Council to invoke Article 51 of the UN Charter and state that “the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defense . . .” Analogies were made between the Taliban’s Afghanistan and a neutral state that unlawfully enables a belligerent to mount cross-border military operations. The subsequent U.S. and NATO military actions initiated in Afghanistan were rather widely considered within the rights of the U.S. and its allies although, of course, the legality of this campaign has not been endorsed by all and the current state of the military operations have taken on a complex and troubled character during the ongoing occupation.

After taking action in Afghanistan, Washington soon turned its attention to an old nemesis. The Bush Administration began to voice unfounded suspicions that Al-Qaeda was allied with Saddam Hussein – a most unlikely partnership – and that the attackers had hideouts in Iraq, Iran, Pakistan and elsewhere throughout the Muslim world. The U.S. argued that Saddam Hussein’s support for terrorists threatened the security of the United States. Furthermore, said President Bush, Saddam was hiding weapons of mass destruction and had nuclear capabilities that could not be tolerated. The American public rallied behind their Commander-in-Chief.

On March 19, 2003, American forces, supported by the British and a few small contingents from other nations, again attacked Iraq, hoping to repeat their smashing victory of 1991. This time the U.S. acted without UN authorization, unlike how it had proceeded in the Gulf War. It would appear later that the unmistakable impetus for going to war against Iraq the second time was a pretext to finally overthrow the hated Saddam Hussein. The Security Council did not authorize the 2003 hostilities and, in fact, called for no military action absent verification of the U.S.’s allegations. Neither Nuremberg nor the UN Charter permitted the use of armed force to bring about a regime change. Since UN permission to use armed force was lacking, it appeared to many that the U.S. had launched an illegal war, had committed aggression. Lawyers have been arguing ever since whether the unauthorized assault on Iraq in 2003 constituted the crime of aggression or whether it was a necessary pre-emptive first strike which might be characterized as permissible self-defense. The disclosure by the London Times in May, 2005 of the detailed secret Downing Street memo strongly suggested that the Bush administration had embarked upon a deliberate deception to gain public support for its long-planned military action. Nuremberg precedents had been noted but no one expected the public to discover the hidden truth and there was still no international court with authority to resolve the issue. In a democratic society, even a well-intentioned failure to inform the public undermines the foundations of democracy. Deliberately deceiving the public also undermines the foundations of law.

When Saddam was finally captured in December, 2003, hiding in a hole in the country he had dominated for decades as among the world’s most powerful and merciless dictators, the U.S. set up an interim provisional puppet regime in Iraq. After much debate, it was decided to put the tyrant on trial before a newly created Iraq High Tribunal composed only of local judges applying Iraq law which, unlike the nascent ICC in The Hague, allowed the death penalty. The trial against Saddam and associates opened in Baghdad in October, 2005 and ended in July, 2006. Saddam was sentenced to death in November and, after review, was executed on December 30, 2006. Two of his henchmen suffered the same fate. It was noteworthy that the defendants had only been charged with crimes against humanity in the killing of a relatively small number of Kurds. Although proof was readily available that the tyrant was also responsible for what the Nuremberg Tribunal called “the supreme international crime,” the question arose why Hussein had not also been charged with the crime of aggression for his manifestly illegal invasions of Iran in 1980 and Kuwait in 1990. A straightforward answer came from Professor William Schabas, a preeminent expert on international criminal law, who wrote: “Any prosecution of Saddam Hussein for aggression would invite analogies with the aggression committed by the U.S. and Britain in early 2003, in Iraq.”[12]

IV. Where Are We Going?

The General Assembly of the United Nations passed resolutions recommending the creation of a permanent international criminal court. America became the leader in that endeavor but its enthusiasm fluctuated, depending on the political parties in power.

The U.S. had been in the forefront when the Security Council created ad hoc tribunals in 1993 and 1994 to try those who committed Crimes Against Humanity and atrocities in the former Yugoslavia and Rwanda. The jurisdiction of those temporary courts was strictly limited and posed no threat to the U.S. since Americans were not involved in those conflicts and the crime of aggression was not relevant. Nevertheless, a powerful political minority, strongly supported by Pentagon officials, remained adamantly opposed to any foreign criminal tribunal that might try to assert jurisdiction over any American nationals.

On May 6, 2002, encouraged by a strong, ultra-right-wing constituency, President Bush’s UN Ambassador Bolton (a Helms protégé) repudiated President Clinton’s signature on the ungratified Rome Statute. It was an unnecessary and unprecedented rebuke that emphasized the sharp political differences that divided the nation. The Republican Congress passed laws which had patriotic titles and were clearly designed to undermine the ICC. The world community was shocked and frightened by what many viewed as American unilateralism and its defiant rejection of Nuremberg and international law.

Meanwhile, battles against Al-Qaeda and insurgents continued on throughout Iraq and spread to neighboring Afghanistan and Pakistan. During the Cold War, the U.S. had armed militant Taliban fundamentalists in Afghanistan when they were trying to drive Soviet invaders out of their country. When American soldiers entered their country in search of Bin Laden, many of the Taliban turned their guns on the U.S. troops. Suicide-bombers defiantly matched their power against modern weaponry. Casualties mounted with no end in sight. On March 15, 2008, a defiant Bush declared “This is a fight America can and must win.” The U.S. government failed to recognize that you cannot kill an ideology with a gun. The U.S. fell into disrepute all over the world. “Guantanamo” and “Abu Ghraib” became synonymous with the United States’ programmatic use of torture. The media displayed graphic images of torture and mistreatment of prisoners in violation of the Nuremberg edicts. The conservative government failed to hold accountable those leaders who violated standards designed to protect military personnel of all lands. The army was not willing to indict itself. Soldiers refused to deploy to Iraq. Many calls were heard and books were written arguing for the indictment of President Bush and his cabinet. In June, 2008, Congressman Kucinich moved to impeach President Bush for a long list of constitutional violations and offenses connected with the conflicts in which the U.S. remained embroiled. The Republicans in power took no effective action. Many lawyers, scholars and journalists made the case against the Bush Administration. Professor Michael Haas’s 2009 title stands out for its painstaking enumeration of 269 war crimes allegedly committed by the Bush administration.[13] The crime of aggression was also left in limbo. Nations that had the power to wage war successfully refused to give up that power despite the law. And nations that lacked such power were unable to do anything about it. The misleading debate about the absence of a definition continued unabated. Failure to reach agreement about aggression had nearly torpedoed the 1998 Rome Conference.

In the end, aggression was listed as one of the four core crimes, but the ICC was prohibited from exercising its jurisdiction until a near-consensus could be reached on an amendment settling the definition question and assuring the Security Council that its rights would be respected. These pending issues have remained unresolved and will be taken up at a Review Conference to take place in 2010. If no agreement is reached, political leaders who do not see clearly enough may continue to grant immunity to aggressors despite the Nuremberg Charter and Judgments. It remains to be seen whether leading diplomats will recognize that deterring illegal wars, even to a limited extent, is worthwhile.

The world remains a very dangerous place. New weapons of devastating power threaten human survival directly, and, through their destabilizing effects on societies, indirectly. Many young people in many lands are ready to kill and be killed for the particular cause of their ideology or nation. Despite such obstacles, the spirit of Nuremberg lives on. It is increasingly recognized that international disputes can and must be settled without the use of armed might.

New international courts designed to protect humanitarian values have come into existence in recent years. There has been an awakening of the human conscience. Telford Taylor was a man of remarkable talents and integrity. His books dared to challenge authority wherever governments, including his own, trampled on the rights of their citizens. At Nuremberg, he was my inspiring Chief. Our friendship was sealed when we both parachuted out of a disabled military plane over the ruins of Berlin. Later, we practiced law together in New York City. We had both seen and experienced the evils and inhumanities of war and embraced the self-evident conclusion that the best way to serve humanity is to eliminate warmaking itself. Law is always better than war.

To be sure, changing cherished norms depends on a process of comprehensive re-education that requires time and determination, tolerance and compromise. Beyond the wildest dreams of earlier generations, new techniques of communication can be used to intensify and accelerate the effort by alerting the world to the growing hazards and the compelling need to uphold a rule of law. Nuremberg’s greatest achievement was the condemnation of aggressive war as an international crime. The failure to implement that hope has been Nuremberg’s greatest disappointment. Telford Taylor’s warning about Vietnam merits repeating.

The events of current history reinforce the conviction that change, such as replacing the prevailing war ethic with a new peace ethic, is possible and is necessary. The emancipation from slavery in America, the elimination of colonialism, eliminating de jure discrimination against minorities and women and a host of human rights protections are illustrations that slow change is possible. The most noteworthy example is the election of an African American, Barack Obama, as President of the U.S. Obama’s campaign of change culminated in his resounding victory. Obama, a former law professor, began to dismantle the restraints against the International Criminal Court that his predecessor had imposed. Placing in stark relief President George W. Bush’s foreign affairs and the policies that his successor merely had the opportunity to espouse upon taking office, the Nobel Committee awarded President Obama its Peace Price in October, 2009. The next month, the U.S. Ambassador-at-Large for War Crimes Issues observed the ICC’s Eighth Session of the Assembly of States Parties. The U.S. had not attended any prior Assembly. There is cause for hope.

1. Infra at 207.

2. Id.

3. Justice Robert H. Jackson, Opening Statement Before the International Military Tribunal at Nuremberg (Nov. 21, 1945), in The Trial of Major German War Criminals by the International Military Tribunal Sitting at Nuremburg, Germany (London : H.M. Stationery Office, 1946), 5.

4. Id. at 154.

5. As reproduced in Benjamin Ferencz, An International Criminal Court (Dobbs Ferry, NY: Oceana, 1980), vol. I, 477.

6. Telford Taylor, The Meaning of the Nuremberg Trials, Speech in Paris (April 25, 1947) (transcript on file with the Author). I remain grateful to Drexel Sprecher for having provided me with the text.

7. See, e.g., Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Art. 6(b).

8. Infra at 5.

9. See, e.g., Falk, International Law and the United States Role in the Viet Nam War, 75 Yale L. J. 1128 (1965-66).

10. Robert S. McNamara with Brian VanDeMark, In Retrospect: The Tragedy and Lessons of Vietnam (New York: Times Books, 1995), 321-2.

11. President Calls Law Key to World Peace, N.Y. Times, May 1, 1958, at 14; see also 38 Dep’t. State Bull. 831 (1958).

12. William Schabas, “Shouldn’t Saddam Hussein Be Prosecuted for the Crime of Aggression?” in Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, ed. Michael P. Scharf and Gregory S. McNeal (Durham, N.C.: Carolina Academic Press, 2006), 225.

13. Michael Haas, George W. Bush, War Criminal?: The Bush Administration’s Liability for 269 War Crimes, (Westport, Conn.: Praeger, 2009) (foreword by Benjamin Ferencz).

BENJAMIN B. FERENCZ, J.D. Harvard 1943, was Chief Prosecutor in the Nuremberg war crimes trial against SS Murder Squads (Einsatzgruppen). Along with Antonio Cassese, he is a 2009 Erasmus Prize Laureate. His many books, articles and lectures on aggression and world peace are available without cost on his website: WWW.BENFERENCZ.ORG

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