One sometimes hears the argument that the Saddam Hussein trial is unfair because Bush is not also being tried for war crimes. The argument has two steps: (1) Bush is a war criminal, or at least should be indicted and tried for war crimes; and (2) Saddam’s trial cannot be fair unless Bush is also tried.
There is something like a system of international criminal law, most clearly embodied in the Rome Statute for the International Criminal Court, which, however, does not apply to the United States because the U.S. is not a signatory. International criminal law has also been applied against leaders and officials of the successor states of Yugoslavia, against some of the people responsible for the genocide in Rwanda, and in a handful of other cases, but at the instigation of the UN security council, of which the U.S. is a veto wielding member. Many people also think that international criminal law is binding by force of custom. I will assume that this is true for the sake of argument, though I have doubts about whether the scope of customary international criminal law, so understood, would cover much of significance.
Let me put aside complicated jurisdictional issues (does any particular court have jurisdiction over Bush?), second order substantive issues (is Bush protected by immunity doctrines?), and similar complications, and focus on the substantive law. I focus on international law, not America’s domestic war crimes statute.
Aggressive war. The invasion of Iraq was probably a violation of international law because it was not authorized by the United Nations (though some disagree with this) and it was not in self-defense. The problem is that although Nuremberg defendants were convicted of aggressive war, no one since then has, and even the states that agreed to join the ICC put off defining this crime though it is formally included in the Rome Statute. So it seems unlikely that Bush could be convicted of a crime of aggressive war. If he could, we would also have to conduct trials of Clinton and the leaders of all the other NATO countries for the illegal bombing of Serbia in 1999. It is unlikely that such an expansive definition of international crime would be acceptable to states.
Use of excessive force. The U.S. military may have used excessive force during the invasion of Iraq, including the use of high-explosive bombs in crowded urban areas and high-altitude bombing, for example. Although approval of weapons and tactics that cause excessive civilian casualties may have occurred at high levels, it is hard to believe that Bush himself paid attention to the choice of weapons. It is also hard to believe that states would accept restrictions on the use of weapons and tactics such as these, unless it can be proved that there were alternative, less destructive means for achieving the military objective.
Torture in Iraq. Torturing prisoners and civilians in occupied territory is a war crime, and also a violation of international criminal law (even if there is no war going on). As far as I know, there is no evidence that Bush ordered, approved, knew of, or should have known of the torture that occurred at Abu Ghraib. For this reason, a theory of command responsibility would fail.
Torture/detention elsewhere. Bush knows and approves of the policy of detaining suspected members of al Qaeda, and possibly of the policy of torturing them (if such a policy exists). The debates about whether these activities are war crimes have been rehearsed elsewhere. The Bush administration argues, not crazily, that al Qaeda suspects are not entitled to many of the protections of the Geneva Conventions because they are unlawful combatants. Still, there is a reasonable argument that ordering subordinates to use torture is an international crime, whether or not the victims enjoy the protections of the Geneva Conventions. However, many states do use torture, and it is hard to reconcile this widespread use of torture with the standard understanding of international law, according to which a legal norm can exist only if states act consistently with it. Scholars say that some norms such as the norm against torture cannot be derogated from, and there is some legal support for this view, but it is hard to know what to make of legal norms that many states ignore even as they say that they cannot ignore them.
Complicity in Saddam Hussein’s crimes. You can’t hang this one on Bush, but it has been said about previous American presidents going back at least to Reagan, who may have provided Saddam with various kinds of assistance during the Iran-Iraq war and Saddam’s campaigns against his own subjects. If this behavior is criminal, then surely all of the leaders of all the major countries over the last fifty years are criminals, as most major countries have given aid to leaders of countries which commit international crimes against their own citizens, or who have authorized or tolerated war crimes in wars.
So is Bush a war criminal? Perhaps. But we are all legal realists now, so we need to ask whether it matters if Bush is a war criminal. Probably not, because no court is likely to try him. Other states have no interest in pressing the question because they would not want to acknowledge that their own leaders could be tried and convicted on similar theories, nor would they want to risk losing American aid or cooperation.
There is also the question whether a conclusion that Bush is a war criminal is a useful one or, in other words, whether calling someone a war criminal, under the expansive definition urged by scholars and the countries that have signed onto the ICC, is a meaningful moral judgment. It would require the conclusion that many recent American presidents – including Truman, Kennedy, Reagan, and Clinton – were war criminals (or arguably so, in some cases indictable but not necessarily convictable), as well as most of the leaders of western nations that have recently employed military force or violent covert operations – and this includes France, Britain, Germany, and Israel, to say nothing of Russia and China. The claim that modern statecraft is criminal is not useful. If the category is to be applied to leaders, one needs a definition of war crime that permits an overall assessment of the good as well as the bad that the leaders accomplished. But this is politics or political morality, not law.
Which brings us back to Saddam. One might think that in a world in which war criminals lead the major states, it is not fair to try just one of them (Saddam) but not all the others. This shows why the application of legal categories from criminal law to the conduct of international relations is a hazardous business. One can think that Bush or Blair or Reagan or Clinton or Mitterrand or Gorbachev is or was a good or not-bad leader, despite having committed war crimes, while thinking that Saddam is an evil man; further, one might think that a trial might be a useful way of showing why Saddam is evil or of accomplishing other worthwhile political objectives, without also thinking that leaders like Bush, Blair, Reagan, Mitterrand, and Gorbachev should also be, or should also have been, tried.
All of this should recall the arguments surrounding the Nuremberg and Tokyo trials – where it was argued that states that annihilated hundreds of thousands of civilians with fire bombs and atomic bombs and (in the case of the Soviet Union) engaged in aggressive warfare, massacred thousands of POWs, and brutalized whole populations, had no business accusing the defendants of engaging in criminal behavior. The critics of the Saddam trial would, I assume, agree with this argument about Nuremberg, and think that that trial was indefensible as well. The better conclusion is that application of legal categories to these questions of practical international relations and international political morality, without some sense of the larger context, is not helpful.