Rescinding the Geneva Conventions

The following is the third in a series of transcriptions taken from a talk given by Noam Chomsky entitled "The Imperial Presidency". The entire talk is available for purchase from the G7 Welcoming Committee website.

Going back to Gonzales, the President’s council then, he transmitted to the President the conclusion of the Justice Department that the President has the authority to rescind the Geneva Conventions. It’s the supreme law of the land, under the US constitution, and the foundation of modern international humanitarian law.

Gonzales advised the President that this would be a good idea, in his words, “it substantially reduces the threat of domestic criminal prosecution of administration officials under the war crimes act of 1996, which carries the death penalty for grave breaches of the Geneva Conventions, so you’d better rescind them quickly.” Well, we can see, right on today’s front pages, why the Justice department was right to be concerned that the President and his advisors might be subject to the death penalty under the laws passed by the Republican Congress in 1996, and of course, under the principles of Nuremberg, if anyone took them seriously.

Two weeks ago, on the front page of the New York Times, prominently displayed, was a picture of Fallujah general hospital, the accompanying story said, “patients and hospital employees were rushed out of rooms by armed soldiers and ordered to sit, or lie on the floor, while troops tied their hands behind their backs.” And that’s what the picture shows, armed soldiers standing over people patients and doctors lying on the floor with their hands tied behind their backs. That’s described in the front page stories as “an important achievement” quote New York Times, “It shut down a propaganda weapon for the militants, Fallujah general hospital had been producing a stream of reports of civilian causalities, and these “inflated figures”, inflated because our leader so declares, “were inflaming opinion throughout the country and the region, driving up the political costs of the conflict”. Incidentally, the word “conflict” has become a common euphemism for US aggression, as when we read on the same front pages that “the US must now rebuild what the conflict just destroyed.” A conflict has no agents, it’s like a hurricane, it happens, then we have to come in and rebuild it.

Well let’s go back to the picture and the story about the closing of the propaganda weapon, the main hospital. There are some relevant documents, including the Geneva conventions, so here’s a principle of the Geneva conventions, “fixed establishments and mobile medical units of the medical service may in no circumstances be attacked and shall at all times be respected and protected by parties to the conflict” So page one of the worlds leading newspaper is cheerfully depicting war crimes for which the political leadership could be sentenced to death, under US law. No wonder that the attorney general warned the president, as his council, that he should use the constitutional authority that the Justice Department concocted to rescind the supreme law of the land, adopting the concept of Presidential sovereignty devised by Hitler’s primary legal advisor.

Well the world’s greatest newspaper also tells us that “the US military achieved almost all of their objectives in Fallujah, well ahead of schedule, leaving much of the city in smoking ruins.” But it was not a complete success. Why? There was little evidence of “dead pack rats and their warrens or the streets” These are their words, not mine. They did find a body of a dead woman, although it’s not known whether she was an Iraqi or a foreigner, that’s the only question that’s raised, and apparently, the only one that comes to mind. This is all on the front page of the world’s greatest newspaper. The front page account also quotes a marine commander who says “it oughta go down in the history books” and perhaps is should, if so, we know very well on what page of history it will go down, and who will be right beside it, along with those who praise it, and even those who tolerate it.

One might at least mention the counterparts that immediately come to mind, for example the Russian destruction of Grozny ten years ago, that’s a city of about the same size, or Srebrenica, which is almost universally described as genocide in the west, in that case, as we know in detail from an extensive Dutch government report, and other sources, this Muslim enclave in Serb territory was very lightly protected, was being used as a base in attacks against Serb villages, and when the anticipated reaction took place it was horrendous, the Serbs drove out all but the military aged men, then moved in to kill them. That’s familiar, that’s Fallujah basically, but there are some differences. Women and children were not bombed out of Srebrenica, as in the Fallujah case, but they were trucked out, and there will be no extensive efforts, we can be sure of that, to exhume the last possible corpses of the “pack rats and their warrens” in Fallujah. There are other differences which are arguably unfair to the Serbs.

Well, it could be argued that all of this is irrelevant. The Nuremberg tribunal, spelling out the UN charter, declared that, and I’m quoting, “initiating a war of aggression is the supreme international crime, differing only from other international war crimes in that it contains within itself the accumulated evil of the whole,” hence the “war crimes” in Fallujah, Abu Ghraib, and so on. Those judged to have played any role in the “supreme crime”, for example the German foreign minister, were sentenced to death by hanging, and the Tokyo tribunal was more severe. There’s an important book on this topic, if you haven’t read it you should, but the Canadian international lawyer Michael Mandel, who reviews in unfortunately convincing detail, how the "powerful have become self- immunized from international law". In fact the Nuremberg tribunal itself established this principle of self-immunity. To bring the Nazi criminals to justice it was necessary to devise definitions of “war-crime” and “crime against humanity” that hadn’t existed precisely in international law. How this was done is explained candidly by Telford Taylor, who was the chief counselor for the prosecution at Nuremberg, and a distinguished author and historian, so I’ll quote him. “Since both sides in World War II had played the terrible game of urban destruction, the Allies far more successfully, there was no basis for criminal charges against Germans or Japanese, and in fact, no such charges were brought. Arial bombardment had been used to extensively and ruthlessly on the Allied side, as well as the Axis side, that neither at Nuremberg, nor at Tokyo, was the issue made a part of the trials.” So in other words, it goes on like this, the “operative definition of crime is a crime that you committed and we did not” and to underscore that fact, Nazi war criminals were absolved if the defense could show that their US counterparts committed the same “crimes”.

Taylor concludes from this that “to punish the foe, especially the vanquished foe, for conduct in which the enforcer nation has engaged would be so grossly inequitable as to discredit the laws themselves.” Which is correct, but the operative definition also discredits the laws themselves, along with all subsequent tribunals which follow the same principle. Taylor provides this background as part of his explanation why US bombing in Vietnam was not a war-crime, and his argument is plausible, further discrediting the laws themselves. Some of the subsequent tribunals are discredited in perhaps even more extreme ways, such as the Yugoslavia vs. NATO case, which is now being adjudicated by the International Court of Justice, World Court. The US was excused, correctly, on the basis of the argument that it is not subject to the jurisdiction of the court in this case, and the reason is when the United States signed the Genocide Convention, which is at issue here, the US finally did sign it after 40 years, it signed it with a reservation saying that it is inapplicable to the US, and the rules of the world court say they can only deal with something if both sides are subjected to it’s jurisdiction.

There was an outraged comment, on the efforts of the Justice Department lawyers to demonstrate that the President has the right to authorize torture, by the dean of Yale Law School, Harold Koh, and he said that “the notion that the President has the constitutional power to commit torture is like admitting that he has the constitutional power to commit genocide,” well, the President's legal advisors, like the new Attorney General, should have little difficulty arguing that the President indeed does have that power, if the Second Superpower, that’s us, permits him to exercise it.