Friends of Padre Steve’s World,
Last night I got a form of the crud going around, I did not sleep well, and woke up coughing, a bit of a sore throat, a terrible sinus headache and wondered if I was getting the Flu. So I called in to work, took some maximum strength Theraflu, went back to bed and didn’t wake up until almost 3:00 PM when a friend sent me a text. That stuff knocked me out for almost seven hours. My sinuses were clear, I was no longer coughing and the headache was gone. After I got up, had some coffee, soup, and Earl Grey Tea, and re-watched the biographical documentary of Benjamin Ferencz, who at the age of 27 served as the chief prosecutor at theNuremberg Einsatzgruppen Trials in 1947, on Netflix.
The title is Prosecuting Evil: the Extraordinary World Of Ben Ferencz. It is well worth the time to watch. Ferencz is now 98 years old and has been a driving force in the prosecution of war crimes. Probably more than any other American took to heart the message of Justice Robert Jackson:
“If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
Ferencz, took, and still takes that seriously. He fought long and hard for the establishment of the International Criminal Court and delivered the closing argument in its first prosecution of a war criminal, Thomas Lubanga Dyilo, for his use of child soldiers in the Democratic Republic Of the Congo, the Trial ended in 2006, with Dyilo’s conviction.
Ferencz was brought into the Nuremberg process because of his experience investigating Concentration Camps during and shortly after the war while still in the Army, by Colonel, Later General Telford Taylor, who was appointed to direct the 12 trials that followed the trial of the Major War Criminals. Ferencz discovered the evidence of the crimes of the Einsatzgruppen while doing investigations for Taylor, and he volunteered to take the lead in prosecuting the highest ranking of those killers. Taylor said:
“The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street.”
Ferencz understood that, and ever since Nuremberg has been a consistent force in the conscience of the nation and international law. I had read about him many times, as well as the Einsatzgruppen Trials. As I watched the documentary about him, which included many interviews with him, I was amazed by how much he was like my history professor at California State University, Northridge, Dr. Helmut Haeussler in the pursuit of truth and justice, who served as an interpreter at Nuremberg and introduced me to victims of the Holocaust, people who survived Auschwitz.
Since that time, as a historian I have been devoted to telling the truth about the Holocaust and bearing witness, even as I confront Holocaust deniers, anti-semites, and Neo-Nazis.
Ferencz made history, and by his continued witness, and at the age of 98 still makes history and inspires men like me to want to make a difference after I retire from the Navy by bearing witness when all of the survivors are gone. Benjamin Ferencz never retired in his quest for justice. He noted:
“Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race.”
I agree with him and no matter how long I live I will travel, research, write, and testify on behalf of the victims of the Holocaust and other genocides so that they won’t happen again.
Ferencz spoke out against the Invasion of Iraq in 2003, about American War Crimes in Vietnam, and in what we call The War on Terror. To be sure he labels those who attacked us in 2001 as War Criminals based on the Nuremberg statutes, but he has also been critical of the United States.
Ferencz said: “A true patriot will support his country when it is right but will have the courage to speak out when it’s wrong and try to set it right.”
I want to devote the remaining part of my life to making sure that the truth is told and such events of mass murder never happen again. I will do my best to live according to the ethos of Ben Ferencz as well as that of Robert Jackson.
Part of that requires being honest about current conflicts in which the United States finds itself in today. Which brings me to the assassination of the Iranian Revolutionary Guards Al Quds Force, General Qassem Suleimani, a man who is as much of a war criminal as has been seen in decades, within his own country and throughout the region by sponsoring terrorist organizations, sowing civil wars that have cost hundreds of thousands of lives and disrupted millions of others.
I shed no tears for Suleimani, but the case the administration used to kill him goes against the international law that the United States helped establish at Nuremberg and which cumulated in the Rome Accords and the Establishment of the International Criminal Court which the United States, though a signatory, has yet to ratify.
Specifically, it is the claim of preemptive action, preemptive killing, preemptive war. It was one of the defenses of the Nazi War Criminals, as well as the Japanese War Criminals. The United States claimed that rationale to kill Suleimani, on the scantiest evidence, none of which was produced. That is an unwise strategy, for it invites such actions against Americans, especially military, and diplomatic personnel, as well as political leaders.
My argument does not let Iran off the hook; however, to paraphrase Ferencz, is that we have to move away from war, and move towards using established international law against men like Suleimani, and nations like Iran. Of course opponents of the United States could easily make the same argument against us. But to quote Taylor, “the laws of war are not a one way street.”
My purpose tonight is not to excuse or defend Suleimani or Iran, it is to to say that unless the United States stands for law and justice, other nations, or non-state actors can and will use the same rational in order to assassinate Americans. The President’s actions have not made the United States any safer, instead it has made us even more of a target. I don’t want American leaders, even President Trump, assassinated by agents of foreign powers, or even Americans seeking extra judicial justice. Such organizations or people may think that such action is justified, but without a basis in law they are not, they just continue the cycle of violence, war, and injustice.
4 responses to ““The laws of war are not a one-way street.” Benjamin Ferencz, Telford Taylor, and the Primacy of Law over Acts of War”
Until tomorrow Padre.
We’ll see what tomorrow brings.
The UN Charter allows a nation to act in order to avert an imminent attack or to defend itself against an attack that is clearly intended.
So the principle of preemptive defence is legal under international law, not a War Crime.
The problems with the killing of General Suleimani are in every other aspect of the action.
It is against the UN Charter to take action in another sovereign state without that state’s permission; we didn’t even **inform** Iraq that we intended to kill General Suleimani in Iraq, much less secure permission.
There is no substantiation to support our claim to act in legitimate defence of our nation from an imminent attack, voiding the right to self-defence.
It is contrary to US Law to assassinate a foreign government official, under the terms of the Executive Order issued under Ronald Reagan. We are presently enamoured of the power of Executive Orders, and one really cannot have it both ways.
And a last comment…
There are different War Crimes, just as there are different civil crimes. US soldiers committed war crimes in WWII—enemy soldiers attempting to surrender were killed; wounded enemy soldiers were killed; women were raped; people, villages, and even towns were pillaged and robbed. Enemy commanders were specifically targeted and killed by missions intended solely for that end.
Those acts just don’t really compare to a state-run **system** for exterminating entire classes of human beings—Jews, Slavs, Gypsies, and those deemed less-than-human.
Finally, the **present** state of relations between Iran and the United States is one entirely of our own making. The idea that the United States not only can, but **should** determine what type and composition of government rules another People’s country is a dangerous arrogation, and one doomed to failure.
Republicans have become enamoured of “Regime Change” without regard to its consequences—or even to its utter lack of success as a basis for action or policy. To attempt to force regime change on a nation merely because a particular administration prefers a different oppressive fascist regime in the region is the height of folly.
We ought to spend more effort, treasure, and blood supporting actual allies and friendly nations, and less trying to create Soviet-style satellite nations.
It depends. If there is no immediate threat you can be guilt of waging aggressive war, as were the German and Japanese War criminals at Nuremberg and Tokyo. Self defense is one thing, preemptive war is hard to justify under the UN Charter and the Nuremberg Codes. None of our leaders supplied any evidence of an imminent attack. Had they had it it would have been appropriate to strike the forces identified as the attacking force, missile batteries, ships, submarines, ground units, or Air Force units. But to say a guy is a bad man and has committed war crimes, murder, and other atrocities does not give one authority to use extrajudicial means to execute him.