To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.
Robert H. Jackson
Chief of Counsel for the United States
Nuremberg Trials
November 21, 1945
Some definitions :
Jus ad bellum
An international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. In addition to bilateral non-aggression pacts, the twentieth century saw multilateral treaties defining entirely new restrictions against going to war. The three most notable examples are the Kellogg-Briand Pact outlawing war as an instrument of national policy, the London Charter (known also as the Nuremberg Charter) defining "crimes against peace" as one of three major categories of international crime to be
prosecuted after World War II, and the United Nations Charter, which binds nations to seek resolution of disputes by peaceful means and requires authorization by the United Nations before a nation may initiate any use of force against another, beyond repulsing an immediate armed attack against its sovereign territory.
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The UN Charter's prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war. This overriding concern is also reflected in the Nuremberg Trials' concept of a crime against peace "starting or waging a war against the territorial integrity, political independence or sovereignty of a state, or in violation of international treaties or agreements..." (crime against peace), which was held to be the crime that makes all war crimes possible.
A crime against peace, in international law, refers to the act of military invasion as a war crime, specifically referring to starting or waging war against the integrity, independence, or sovereignty of a territory or state, or else a military violation of relevant international treaties, agreements or legally binding assurances.
An important exception to the forgoing are defensive military actions taken under Article 51 of the UN Charter. Such defensive actions are subject to immediate Security Council review, but do not require UN permission to be legal within international law."Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations." (UN Charter, Article 51) The Security Council will determine if the action is legally the "right of individual or collective self-defence", or it may appoint another UN organ to do this.
The definition of crimes against peace was first incorporated into the Nuremberg Principles and later included in the United Nations Charter. This definition would play a part in defining aggression as a war crime.
May it please Your Honors, may the trial begin on this day with it's first witness.
Witness for the prosecution # 1 - Mr. Richard Pearle
"I think in this case international law stood in the way of doing the right thing."
- Richard Pearle , London, Nov. 2003
But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that "international law ... would have required us to leave Saddam Hussein alone", and this would have been morally unacceptable.
French intransigence, he added, meant there had been "no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein".
Mr Perle, who was speaking at an event organised by the Institute of Contemporary Arts in London, had argued loudly for the toppling of the Iraqi dictator since the end of the 1991 Gulf war.
Witness for the prosecution #2 - Mr.Kofi Annan
In a BBC interview, Annan said the war was "not in conformity with the Security Council, with the U.N. charter." When asked, "It was illegal?," Annan replied: "Yes, if you wish," adding: "I have indicated it is not in conformity with the U.N. Charter; from our point of view and from the Charter point of view, it was illegal."
And the U.N. Charter does lay out specific conditions for hostile action; as Article 39 states, "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security." The charter authorizes the use of force only if sanctioned by the Security Council, or if a country is attacked or threatened with imminent attack (Article 51): "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
Witness for the prosecution # 3 - Sir Tony Blair
The situation could not therefore be clearer. There is a duty on Saddam to co-operate fully. At present he is not co-operating fully. Failure to do so is a material breach of Resolution 1441.
Should Dr Blix continue to report Iraqi non-cooperation, a second Resolution should be passed confirming such a material breach. President Bush and I agreed we should seek maximum support for such a Resolution, provided, as ever, that seeking such a Resolution is a way of resolving the issue not delaying or avoiding dealing with it at all. I continue to believe the UN is the right way to proceed. There is an integrity in the process set out in 1441 and we should follow it.
- Tony Blair
Transcript of a statement given by British Prime Minister Tony Blair following his summit with President Bush in Washington, House of Commons, 2/3/2003
Submitted to the official court record, this published statement from three UNSC member nations from November 2002:
In a joint 11 November 2002 statement, Russia, China and France said, “Resolution 1441 (2002) adopted today by the Security Council excludes any automaticity in the use of force.”
Witness for the prosecution # 4 - Sir Jeremy Greenstock
We heard loud and clear during the negotiations the concerns about "automaticity" and "hidden triggers" -- the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response... There is no "automaticity" in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. We would expect the Security Council then to meet its responsibilities.
Sir Jeremy Greenstock’s
ambassador for the United Kingdom
1441 co-sponsor
8 November 2002
UNSC
Witness for the prosecution # 5 - Mr John Negroponte
“[T]his resolution contains no "hidden triggers" and no "automaticity" with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12.
John Negroponte,
ambassador for the United States ,
8 November 2002
UNSC
May the following news article be submitted into the court's official record.
The US and British governments will begin work today on a new United Nations resolution that will set an ultimatum for Iraq to cooperate fully by next month or face war.
The US president, George Bush, confirmed yesterday that the US would prefer a second resolution. "We don't need a second resolution. It's clear this guy [Saddam Hussein] couldn't even care less about the first resolution. He's in total defiance with 1441. But we're working with our friends and allies to see if we can get a second resolution."
A security council official said the resolution was unlikely to be tabled until after Mr Blix has reported on February 28.
The US and Britain have narrowed down half a dozen variations to an agreement that the draft resolution should take the form of an ultimatum to Iraq. They are considering a list of tests, such as destruction of the Samoud missiles and unrestricted interviews with Iraqi scientists. It is expected to be short and use some of the language of resolution 1441, passed unanimously in November.
Failure to comply by a fixed date would see the UN declare the inspections process "no longer meaningful", a UN official said. UK ministers and officials hope that President Saddam may yet back down.
Tony Blair seemed confident at his monthly press conference yesterday that the security council would provide the vital diplomatic cover for war, that the process still had weeks to run, and that sceptical voters would be won over in the end.
http://www.guardian.co.uk/Iraq/Story/0,2763,898549,00.html
May the court also enter this official British government document into the official record :
27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has conduced that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.
35. In short, there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the Government or UK military personnel. Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground. We cannot be certain that they would not succeed.
British Attorney General's Advice to Blair
on Legality of Iraq War
March 7, 2003
http://
As well as this one :
Downing Street Memo
SECRET AND STRICTLY PERSONAL - UK EYES ONLY
DAVID MANNING
From: Matthew Rycroft
Date: 23 July 2002
S 195 /02
cc: Defence Secretary, Foreign Secretary, Attorney-General, Sir Richard Wilson, John Scarlett, Francis Richards, CDS, C, Jonathan Powell, Sally Morgan, Alastair Campbell
Copy addressees and you met the Prime Minister on 23 July to discuss Iraq.
This record is extremely sensitive. No further copies should be made. It should be shown only to those with a genuine need to know its contents.
C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.
The Defence Secretary said that the US had already begun "spikes of activity" to put pressure on the regime. No decisions had been taken, but he thought the most likely timing in US minds for military action to begin was January, with the timeline beginning 30 days before the US Congressional elections.
It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the UN weapons inspectors. This would also help with the legal justification for the use of force.
The Foreign Secretary would send the Prime Minister the background on the UN inspectors, and discreetly work up the ultimatum to Saddam.
Witness for the prosecution # 6 - Mr Alan Greenspan.
"Whatever their publicized angst over Saddam Hussein's 'weapons of mass destruction,' American and British authorities were also concerned about violence in the area that harbors a resource indispensable for the functioning of the world economy. I am saddened that it is politically inconvenient to acknowledge what everyone knows: the Iraq war is largely about oil."
"I thought the issue of weapons of mass destruction as the excuse was utterly beside the point,
-former Federal Reserve Chairman Alan Greenspan
September 17, 2007
Greenspan said that he made his economic argument to White House officials and that one lower-level official, whom he declined to identify, told him, "Well, unfortunately, we can't talk about oil."
It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are...” If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.
Robert H. Jackson
Chief of Counsel for the United States
Nuremberg Trials
Closing statement
July 26, 1946
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