War crimes are international crimes for which there is individual responsibility. In 1950 the Nuremberg Military Tribunal stated: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”65
War crimes fall within the international law principle of universal jurisdiction on the grounds that certain crimes are so universally reviled that any state may prosecute the perpetrators. According to Amnesty International, “at least 120 states have enacted legislation which would appear to permit their courts to exercise universal jurisdiction over conduct amounting to some or all war crimes in certain circumstances.”66 Many states, including the UK and Australia, have ratified the Rome Statute of the International Criminal Court, which provides for prosecution of genocide, war crimes and crimes against humanity.67 Although the US has expressly rejected the International Criminal Court, Congress in 1996 enacted the War Crimes Act, under which civilian courts have authority to try either service members or civilians for war crimes and grave breaches of the Geneva Conventions.68
President Bush has declared that Iraqis will be prosecuted to the full extent of the law if they:
take innocent life, if they destroy infrastructure, they will be held accountable as war criminals… War crimes will be prosecuted. War criminals will be punished. And it will be no defense to say I was just following orders.69
The same logic applies equally to illegal orders by President Bush and allied leaders, and to illegal acts carried out by Anglo-American forces in furtherance of such orders.
CESR is cooperating with a wide range of legal organizations around the world to compile evidence, prepare legal strategies, and eventually prosecute all parties that commit war crimes in Iraq. In the US, the Center for Constitutional Rights, along with over 100 concerned organizations and international lawyers, have placed President Bush and Secretary of Defense Rumsfeld on public notice that they will “ensure the accountability of those persons who may be found responsible for the commission of crimes against humanity and war crimes.”70 In a similar initiative, Public Interest Lawyers, Matrix Chambers, and the Campaign for Nuclear Disarmament have concluded that senior members of the UK government can and must be held individually responsible for violating the laws of war.71
65 The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Part 22 at 447 (1950).
66 Amnesty International, Universal Jurisdiction: The duty of states to enact and enforce legislation, Chapter 4, Part A.
67 Rome Statute of the International Criminal Court of July 17, 1998, entry into force July 1, 2002. UN Doc. A/CONF.183/9*.
68 18 USC. section 2441.
69 Schweid, Barry., “War planning includes targeting Saddam Hussein; Top prospects uncertain,” Associated Press, (Feb. 26, 2003) and Walt, Vivienne, “U.S. officials expect to find evidence of war crimes,” USA Today, (March 18, 2003).
70 Center for Constitutional Rights et al., “Open Letter to President George W. Bush and Secretary of Defense Donald H. Rumsfeld Regarding Consequences of Future Use of Force Against Iraq,” (January 24, 2002).
71 R. Singh, A. Macdonald, Matrix Chambers, Public Interest Lawyers on behalf of Peacerights, “Opinion on the legality of the use of force against Iraq,” para. 2, p. 3 (September 10, 2002); Singh, R., Kilroy, C., Matrix Chambers, Public Interest Lawyers on behalf of the Campaign on Nuclear Disarmament, “Further Opinion in the Matter of the Potential Use of Armed Force by the UK against Iraq,” para. 25, 28, p. 13-14 (January 23, 2003).