It's official, Eric Grumbles Before the Grave is my new favorite site to troll for argument-picking. Yesterday Eric took a fine sentiment like
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Dean [Esmay] gives some good advice on how to make comparisons of things you find abhorrent, including this pearl:

Here's a suggestion for serious-minded critics: why not stop with the invidious comparisons entirely, and start actually criticizing administration policies.
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but ruined it with,
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Oh, and whether you think so, or not, once you have called the President a war criminal, you have closed off the possibility of a rational discussion of our current policies.
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Now, now, let's not mask a desire to cast a side an ugly debate as an appeal to rationality. I suppose lefty blogs don't always feel like reiterating or explaining themselves every time they make a charge against Bush, so I figured I'd take a stab at examining whether "the President of the United States is a war criminal." Shall we see if this administration's policies fit the description?

First of all, what is a war criminal? International law is a complex creature; but the definition at the time Bush was inaugurated was that war criminals were those who violated the norms of civilian and prisoner-of-war handling. The Nuremberg Principles (more about them later), under which we prosecuted German officials after WWII, say

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Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
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There's some density to that definition, which we will be exploring today. "Violations of the laws or customs of war" is a good place to start, isn't it? What exactly does that mean? International law is a little different than other kinds of laws. Whereas national laws are enforced by national (or local) authorities, international law is a lot like a playground without any adult supervision–there's no real international government. (Think of the United Nations as an unsupervised class project in democracy with the biggest bullies at the head; it's an informative exercise, but the bullies will still beat you up after class.)

There are two kinds of international law: explicit and implicit. Explicit laws are established by treaties, implicit laws are norms which are so pervasive that even countries which are not signatories must abide by those laws. Let's use the Law of the Sea as an example: it used to be a general agreement among countries that their borders extended five miles into the sea on all coasts–an implicit understanding, a norm to which all countries basically adhered–this is what the Nuremberg principles call "custom." In 1982, almost all countries with coastlines signed a treaty called, simply, The Law of The Sea, which extended the borders out to fifteen miles. This extension needed to be explicit. All the same, any potential non-signatory country would have a hard time making any other claims.

States which do challenge those norms are called "revisionist states," because their actions are literally attempting to rewrite international law. When I was in school, there were two prominent examples of revisionist states: Iraq, and the United States. I don't have time to recap the story of the three Gulf Wars, but I've talked about it extensively here; the parallels of Iraq's invasion of Kuwait and America's invasion of Iraq bear the mark of the revisionist state.

It's well known that Saddam (not unlike Bin Laden in this respect) idolized Salah-ud-Din and wished to be a strong Arab ruler as of old. And so, he never repudiated the right to territory by conquest, the repudiation of which happens to be a cornerstone of the UN and the international system after WWII. The United States, by the same token, invaded Iraq without the support of the UN, ostensibly to enforce a UN treaty which the UN inspectors had determined Iraq hadn't broken.

Condoleeza Rice warned us that we could not afford for the "smoking gun" to be a nuclear bomb. Funnily enough, the smoking gun turned out to be a British aide's notes for a defence meeting. The Bush doctrine (whatever form it may take today to fit available justifications for the war) is clearly an attempt to rewrite the acceptable standards for the legal destruction of another state. One of the things about the unsupervised schoolyard is that an unchallenged bully gets to rewrite the rules.

Let's get back to Nuremberg. Godwin's Law holds fast and true for the debate about Gitmo and Abu Ghraib, and with good reason. In the right-wing blogosphere, wrists presumably ravaged by carpal tunnel are being further sprained patting ourselves on the back for being better than Hitler and Stalin. But speaking of the Nazis, by what right did we claim the authority to prosecute them at Nuremberg?
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Principle VI. The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
<br>(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War Crimes: [</i>quoted above</i>]

(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
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Consider the following: we could have executed the Nazis we later tried at Nuremberg as soon as they were captured; instead, we kept them alive and treated them according to the Geneva convention even though we had proof their side had violated international law. To show how 'civilized' countries exercised justice, there was an unprecedented trial.

While some of us are so pleased with ourselves for being better than the Nazis, the real question is, how much better? According to the standards to which we held others, we only violated the first two classes of crimes–and two out of three ain't bad, to quote the Bard (Meat Loaf). Will a country that wants 99.44% pure soap settle for a 33% better score than Hitler on the Nuremberg test? That's not a fair number, because the last category is certainly more awful than the other two put together, but you get my point. In a certain sense, we need to assess how much of our moral authority we gave up at Nuremberg–are we accountable to the same standards?

To find out, we should apply the war crimes test to, say, "ill treatment of prisoners of war," for example. The Nazi soldiers we captured were interned under the Geneva Conventions, where the following things are prohibited:
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Article 3.1 Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
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Article 12 Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.

Article 13 Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Article 17: … No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Article 25 Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health.

The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.

The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out. All precautions must be taken against the danger of fire.

Article 26 The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners.
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So it seems like we have a few systemic violations here, from what I understand of the prisoner accounts. I'd list some of them here, but quite frankly Dadahead beat me to this topic and I'll save individual examples for my next post.

Now we come to a question I have previously discussed here… you know what? I'm just going to quote myself:

…I recently came across a Newsweek article which details the legal squabbles within the white House about the treatment of prisoners and the awareness that our maltreatment of prisoners violates the U.S. War Crimes Act, which forbids U.S. citizens from committing "grave breaches" of the Geneva Convention. Alberto Gonzales (whom you may recognize from a previous post) warned the White House in January 2002 that they ought to be careful not to be prosecuted under this law, which was passed in 1996.
(from Defining Down Human Rights, or the Future of the Geneva Convention, June 2004)

If you're keeping score, Nazis deserved Geneva protections, but Arabs don't, even if they're citizens of signatory countries. The brilliant stroke of our anti-Geneva policy was to make Iraqis and Afghans stateless, not that it made a difference, but it provides justification for saying that Geneva is outdated. Revisionism strikes again.

In terms of how it applies to our President, let's get back to basics. The controversy over our treatment of prisoners at disparate facilities in different hemispheres shows this is a policy problem, and cannot be written off as a series of isolated incidents. The decision was made that these detainees, as we call them so gingerly, are not subject to the Geneva Convention. This led directly to all of the abuses involved, not the other way around. If you don't believe me, take a look at those principles and think of your favorite inappropriate torture example to see if it would have come up had the troops been informed to respect something they should all know by heart.

Also, let's clean up some odds and ends. The Nuremberg principles qualify "wanton destruction of cities, towns, or villages, or devastation not justified by military necessity" as a war crime.

In fact, it's this part of the international norm that the U.S. drew upon when touting Saddam's WMDs. The reason WMDs are considered so heinous is because they indiscriminately harm civilians and military personnel, not because they're effective at killing enemy troops, which is perfectly legal No, the problem is, we didn't give shit about WMDs when Saddam used 'em then, and we don't give a shit about using 'em in Iraq right the fuck now. Ok, most of the radioactive waste we've strewn about the southern part of Iraq has already been causing horrible birth defects and chronic illnesses since Bush I and Gulf War II; now it's all over Iraq, only this time, it's concentrated in the cities and is piling up in the centers of the insurgency. If this were the comics, this would result in the breeding a group of mutant superbabies to rise against us, but in reality, it's just another little "fuck-you" courtesy of Uncle Sam that no one will do anything about. War crime? I believe so. We were the only side of the conflict to actually use WMDs, which we also kind of fired at our own troops. The irony is just killing us. Literally.

I will mention, in passing, the part of the Nuremberg definition which goes "plunder of public or private property," if only to pause to consider whether Iraqis will ever see oil profits again, even though they are sitting on the world's second largest reserve. Iraq actually had the educated middle class of Egypt without the overpopulation combined with the potential oil wealth of a Saudi Arabia, but Saddam spent as much of it on himself as possible. Partly through his own recklessness but also becuase the Iranians attacked first, he got caught up in a pointless, brutal and expensive war for 8 years, which left him in unmeneageable debt to states like Saudi Arabia and UAE, with a large chunk from Kuwait. Otherwise, Iraq would have been a serious player in the Middle East. Sometimes I wonder if we invaded because we figured we couldn't afford another Arab oil power in the region.

So, is Bush a war criminal? Technically speaking, it hinges on whether or not you think he's really the one in charge.
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Update: Further research has yielded an excellent article about the applicability of the Geneva Convention vs. the the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, as well as this analysis of the legal issues involved in Bush's decisionmaking. Human rights abuses are human rights abuses whether they happen under ther protection of Geneva or not; the fact that the US government has determined citizens of signatory countries can be denied their Geneva rights contravenes the convention all the same.