Why was Strauss-Kahn Arrested but W. & Cheney went Free?

What is it about the United States that makes for harsh prosecutions over sex crimes but lets leaders off the hook when it comes to war crimes? New York police rushed to arrest Dominique Strauss-Kahn , the head of the international Monetary Fund, on Saturday on learning of charges against him by a hotel maid of sexual assault. This quick action against a wealthy and powerful individual, seeking justice for a person at the bottom rung of the American social hierarchy, is praiseworthy. It affirms the principle that no one is above the law.

But the widows and orphans of Iraq cannot hope that the New York police would similarly frog-march George W. Bush off his first-class flight and arrest him for crimes against humanity.

Glenn Greenwald argues that the lessons of the Nuremberg trials have been forgotten and that Bush and other members of his administration should be tried for war crimes. His piece builds on earlier journalism on this subject, such as that of Jan Frel. Not only should Bush and his cronies be tried for launching an aggressive war, but many jurists want them tried for crimes against humanity such as torture, in which they have admitted engaging.

The US and other United Nations members are signatories to the United Nations Charter, which as a treaty has the force of law. Chapter 7 of the UN charter forbids war except under two conditions: 1) Self-defense or, 2) a United Nations Security Council resolution authorizing war against a regime that is posing a threat to international order.

Chaper 7, article 51 says,

“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, until the Security Council has taken measures necessary to maintain international peace and security.”

Chapter 7, Article 42, says, after describing in article 41 economic boycotts and other non-military measures against rogue states:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Bush had neither pretext for an Iraq War but prosecuted that war nevertheless. I.e., his war was neither self-defense nor did it have a UNSC resolution behind it affirming that invading Iraq was necessary to preserving international order. Bush’s was a lawless war of naked aggression that has left hundreds of thousands dead.

Like Frel, Greenwald quotes Benjamin Ferencz, a nonagenarian former Nuremberg prosecutor, who repeats and underlines the point that aggressive warfare is the chief human rights crime, since all other crimes committed in the course of the war issue from this decision.

I’ve been surprised to discover that many of my readers do not appear to understand that the US has treaty obligations under the UN charter, and do not know that the charter only allows war under these two conditions. The US invoked the UN framework in Korea, in the Gulf War, and in Libya, and it offers our best hope for moving beyond an international jungle where the strong fall upon the weak at will. President Eisenhower explicitly rejected the 1956 war of Britain, France and Israel on Egypt on the grounds that it was a war of aggression that violated the stipulations of Chapter 7 of the UN Charter.

I agree entirely with Greenwald that it is dangerous to let members of the Bush administration off the hook for their war crimes (which go beyond the initial transgression of launching a war of aggression with no UNSC sanction). There is no difference in principle between what Bush and Cheney did and what Slobodan Milosevic did, except that we live in a hypocritical world of victor’s justice. To shield the rich and powerful makes a mockery of Chapter 7.

But I would argue that it is precisely the contrast between an action like the UNSC-sanctioned intervention in Libya and Bush-Cheney’s cowboy invasion and occupation of Iraq that helps underline how criminal the latter enterprise was.

The body that could most easily gather evidence against Bush, Cheney and others in that administration and begin the process of subpoenas is the two houses of the US Congress. But the Democratic-dominated Senate has openly eschewed prosecution. And the Republican-controlled House of Representatives would resist such a move on partisan grounds. The documentary evidence for criminal activity would surely not be so hard for our national legislature to get hold of, if the will existed to do the right thing. President Eisenhower did not hesitate to defend the UN Charter even against close allies. His like, unfortunately, would be hard to find in American politics today.