The Sickening scent of idealism and the Nuremberg Principles

Last week, Barack Obama walked a step farther than any president before him. He declassified a number of documents pertaining to the illegal, immoral, unjust, and horrific regime of systematic torture that occurred at Guantanamo Bay during the previous administration. In doing so, he began the slow process of healing the deep scars left by the war criminals previous to his administration. Yet, it can often be said that to go halfway is almost worse than not going anywhere at all, and this is quite possibly one of those situations.

As he declassified the documents and issued orders to shut down the prison in Cuba, Mr. Obama also promised that legal action would not be taken against those who perpetrated the torture. To understand why this is wrong, we need to look back to 1946, to a series of principles laid down during the Nuremberg Trials. In particular, Principles I-IV and VIb

I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law.

VIb: War Crimes: 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...

It is these principles that make Obama's actions unacceptable. He will tell us that we don't need to waste time exploring the past. What we would do, were we to follow these principles and try the bastards, is not to waste time, but to prove to the world that such awful behavior will never be tolerated.

Principle I states that anyone who commits a war crime must be punished. Those who engaged in torture/interrogation techniques, extraordinary rendition, secret military trials, the violation of habeus corpus laws, and a host of other crimes violated international law in doing so. As stated in II, the fact that internal law doesn't force their punishment is irrelevant, as they are guilty of their crimes under international law.

Principles III and IV are perhaps the most important with regards to this issue. If an act is committed at the bottom level, it is capable of being punished at the top level, even if they were a head of state. The trials of Pinochet in Spain and Britain proved that much; leadership in government does not vindicate you. Principle IV, the one instrumental in the execution of countless Nazi leaders in 1946, says that the excuse "I was only following orders" is meaningless, and you are still liable under international law.

When Obama says that "those who were forced to do so regardless of their better judgment will not be prosecuted", he spits in the face of these principles, he makes a mockery of international law. If you refuse to punish the crimes that were committed, you set a dangerous precedent. The war crimes tribunals of Nuremberg and Tokyo were so successful because they ensured that an example was made of those who committed their crimes. Under Obama's vision, it is only a matter of time before another Cheney or another Wolfowitz or another Tenet comes along and realizes they can get away with torture, with murder, with war crimes, with indiscriminate slaughter of civilians in Iraq and Afghanistan, with conspiracy and Crimes Against Peace. I do not want to see that happen.

What I want to see happen is something entirely different. I want to turn on the TV one morning to behold the sight of George W. Bush, Richard Cheney, Paul Wolfowitz, George Tenet and Donald Rumsfeld in irons, being led away to The Hague in Holland, to be tried for their crimes and the crimes their administration committed. I want to see those who tortured people who were often in the wrong place at the wrong time - like Maher Arar - and those complicit in their torture properly punished. I want to see justice, not idealism.