Making War Crimes Legal, One Day at a Time

From Laura Knight-Jadczyk's latest commentary:

War Crimes: A Question of Conscience

Yesterday's UK Daily Mail informs us that RAF doctor Malcolm Kendall-Smith has been sentenced to eight months in jail after being found guilty by a court martial of failing to comply with "lawful orders" after refusing to serve in the Iraq war.

Kendall-Smith is said to have told a pre-trial hearing last month that he refused to go to Iraq because he believed the war was illegal and he did not want to be complicit with an act of aggression contrary to international law. He reportedly said that he had "evidence that the Americans were on a par with Nazi Germany with its actions in the Persian Gulf. I have documents in my possession which support my assertions. This is on the basis that on-going acts of aggression in Iraq and systematically applied war crimes provide a moral equivalent between the US and Nazi Germany."

Kendall-Smith is absolutely correct. There is ample evidence – growing in volume and quality every day – that the U.S. and its lap-dog, Great Britain, went to war on trumped up charges, lies and with illegal intentions. There is, for example, the "Downing Street Memo," and the more recent evidence that George Bush not only knowingly used "cooked" intelligence, but that he also deliberately attempted to destroy the lives of those individuals who sought to expose this hoax. [...]

When sentencing Kendall-Smith, Judge Advocate Bayliss told him: "You have, in this court's view, sought to make a martyr of yourself. You have shown a degree of arrogance that is amazing." The news reports tell us that Judge Advocate Bayliss further said that Kendall-Smith may have acted out of his moral viewpoint but his interpretation of the presence of British forces in Iraq as illegal was incorrect. [...]

As Laura points out, here's something Bayliss should keep in mind:

From Mar. 5,1947 to Dec. 4, 1947, nine members of the Reich Ministry of Justice and seven members of the People's and Special Courts, were by the Nuremberg Tribunal with using their power as prosecutors and judges to commit war crimes and crimes against humanity. [...]

The Justice Trial is one of the most interesting of the Nuremberg trials. This trial raised the issue of what responsibility judges might have for enforcing grossly unjust - but arguably binding - laws. [...]

Ingo Muller's book, "Hitler's Justice: The Courts of the Third Reich", provides analysis of the evidence suggesting that most German judges were ultraconservative nationalists who were sympathetic to Nazi goals. In other words, the "Nazification" of German law occurred with the willful cooperation of judges. Judge Advocate Jack Bayliss might want to sit up and take notice. [...]

In order to convict, it was only necessary that the defendant consciously furthered these human rights abuses; that is, that they had been notified, at some point, that there were those who considered the acts such abuses.

For example, jurist Franz Schlegelberger served in the Ministry of Justice from 1931-1942. For the last period of his service, Schlegelberger was Director of the Ministry of Justice. He wrote legal books and was honored as a great jurist. Schlegelberger's defense was that he was bound to follow the orders of Hitler, the "Supreme Judge" of Germany, but that he did so reluctantly. Schlegelberger argued that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler. Schlegelberger argued that he had "sympathy for the Jews" and that he "resisted" certain legal measures against them. He also argued that he continued to serve as long as he did in order to prevent the appointment of a less sympathetic judge.

Sounds perfectly heartbreaking, eh? Like being stuck between a rock and a hard place?

His arguments may have saved him from death, but they didn't mitigate his responsibility. In its decision, the Justice trial tribunal pointed out that the decision of a man of his stature to remain in office lent credibilty to the Nazi regime. More than that, Schegelberger did sign his name to orders that, in the tribunal's judgment, constituted crimes. [...]

The fact is, no person who knowingly commits the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts because notice of intent to punish is being repeatedly given by the only means available in international affairs, namely, the solemn warning of the people.

This is what Malcolm Kendall-Smith has done: as a man of conscience, he has officially notified the British Court System - and the World - that, one day, in the not-too-distant future, the people of this Earth will take back control of their lives; they will reject utterly the rule of conscienceless Pathocrats, and there will be Justice for humanity.

In the words of Dave McGowan:

What the hell does it take to get a reaction out of you? Let's quickly run through a partial list of things that, thus far, have failed to inspire you to summon your inner Howard Beales: two consecutive stolen presidential elections; back-to-back wars, both of them unprovoked and brazenly illegal, with more on the horizon; the deaths of well over two thousand of your sons and daughters in Central Asia and the Middle East, and the maiming and disfiguring of thousands more; the ongoing slaughter of tens of thousands of Afghans and Iraqis; countless corporate/political scandals directly tied to the Bush mob; diligent efforts by a veritable army of 9-11 skeptics (including a growing list of people that some of you might find more credible than us wacky Internet 'conspiracy theorists') to convince you that the official story of the ‘terrorist’ attacks of September 11 is a nothing more than a fairy tale; passage of the Patriot Act, and various other attacks on your civil, privacy, and due process rights; the entirely preventable deaths of an unknown number of people in New Orleans; military occupation of southern Louisiana; sanctioning of secret military tribunals; revelations of the widespread use of, and official sanction of, various forms of torture; getting slapped in the face with the Abu Ghraib photos; indefinite, warrantless detentions without access to legal counsel; illegal domestic surveillance; open witch-hunting of ‘liberal’ members of academia (though it is perfectly acceptable for a former Phoenix Program assassin and torturer to educate your children); gross invasions of your privacy – at airports, at sporting events, when entering many public buildings, even when sitting at home on your computer; massive cuts in social spending, even while hundreds of billions of dollars are spent waging war and militarizing domestic law enforcement; massive tax cuts that primarily benefit corporate America; the steady erosion of the nation’s education and healthcare systems; trashing of the environment and environmental protections; the accumulation of an almost unfathomable level of debt; and the act of grand theft masquerading as Medicare ‘reform.'

Through all of this and more, you have sat silently by. So again I must ask: what the hell will it take? How much worse does it have to get? How much worse will you allow it to get? And if you continue to sit by and do nothing, who do you think is going to save you from the increasingly bleak future we face? Who do you think is going to stop all the madness for you?