One of the great innovations of that charter was the charge of "Crimes Against Peace," defined as the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances."

In a famous passage from their judgment of the following year, the four judges of the tribunal (American, British, French and Russian) declared the crime of aggressive war to be "the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

The innovation of the crime of aggressive war was in fact denounced by the Nazi defendants as "ex post facto law," but Justice Robert Jackson, America's prosecutor at Nuremberg, had an answer for this: Illegal wars were nothing more than mass murder, and there was nothing ex post facto about the crime of murder. Here's what Jackson said to the tribunal in his opening statement on Nov. 21, 1945:

Any resort to war - any kind of war - is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive war illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes.

The crime of aggression is nowhere to be seen in modern international criminal codes, and leading the charge against including it has been the United States itself. It's easy to see why. The war in Iraq, for one example, constitutes the quintessential war of aggression, falling very far short, rhetoric apart, of any justification in self-defense or authorization by the Security Council of the United Nations, the only two accepted legal grounds for war in international law. The U.N. Charter is one of those "international treaties" mentioned in the London Charter of 1945. And with the best estimates of the cost in Iraqi civilian lives ranging between 25,000 (Iraq body count) and 100,000 (Johns Hopkins School of Public Health, Baltimore), all well within prewar predictions, it seems perverse to keep on insisting that this was a "humanitarian intervention," itself a dubious legal ground for war. In fact, it amounts to rather a lot of counts of murder on Jackson's definition.

To put this in some kind of perspective, in Canada the press has recently been obsessed with sex killer Karla Homolka, who participated with her husband, Paul Bernardo, in the sadistic murder of two teenage girls, and then served only 12 years in jail for it. And the British press has been desperate to understand how four Britons could have had it within them to murder 52 people on July 7. The claim that civilians aren't targeted by American weaponry ("collateral damage") is irrelevant. Not only does Jackson's definition apply to soldiers as well, but, according to most definitions of murder, it's enough that the criminal knew that his or her unlawful behavior would result in death, whether or not it was meant to. Under Texas law, for example, a person commits murder if he or she "intentionally or knowingly causes the death of an individual." It's also murder if the person "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual."

Nuremberg prosecutor Bernard Meltzer wrote soon after the Nazi trials that, "a modern war, no matter how chivalrous, involves so much misery that to punish deviations from the conventions without punishing the instigators of an aggressive war seems like a mocking exercise in gentlemanly futility."

Perhaps it is worth pondering, in the midst of the immense suffering unleashed by the Iraq war whether we are engaged in the same mocking exercise when we prosecute those far down the chain of command for violations of the Geneva Conventions and let the unleashers of illegal wars get away with murder.

Michael Mandel is a professor of law at Osgoode Hall Law School, York University.

© 2005 Knight Ridder

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