President Obama and Sergeant Robert Bales

Law tends to complexity when confronted with reality, and international law concerning war crimes is no exception.

President Barack Obama is Commander in Chief of the armed forces of the United States of America. Sergeant Robert Bales is a member of the U.S. Army who reportedly shot and killed sixteen civilians, including women and children, on March 11, 2012, in the Panjwai district, Kandahar province, Afghanistan.

Rather than being tried in Afghanistan for his criminal behavior Sergeant Bales has been returned to the United States, under arrest, to be tried. This recalls to us of the imperialist right to extraterritoriality, long viewed as an insulting injustice by Asian nations.

It is possible, and often happens, that a soldier commits a war crime against the commands of his superiors. His superiors are not generally held responsible. However, I would argue that the U.S. (& allies) war against Afghanistan is a war of aggression. To quote the lead American prosecutor, Robert H. Jackson, during the Nuremberg Tribunal of German/Nazi leaders after World War II:

"To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

To initiate a war is a crime against peace. The initiators are Class A war criminals, to distinguish them from lesser war criminals, like those who follow orders to drop bombs on civilians. Was a crime agaisnt peace committed by President George W. Bush and continued under the Obama administration?

One loophole in the crime against peace idea is the word aggression. Who gets to decide who is the aggressor? If a soldier of country A throws a stone over the border with country B and hits a soldier, does country A then have the right to invade country B and execute people as war criminals? Another way of obtaining the same end, denial, can be based on the clear statements of international law that each nation has a right to self-defense.

Sometimes nations go to war by more or less mutual consent, as the great European powers did at the beginning of World War I. Sometimes the aggressor and defender nation roles are clear, at least to neutral parties. Yet often both sides, or even an obvious aggressor, claims that they are engaging in self-defense, which is not a crime against peace or war crime.

The American government, like most governments, characterizes all of its wars as wars of self-defense.

Recall that the armed forces of Afghanistan did not attack the U.S. No Afghans participated in the attack on the World Trade Center. While the pursuit of the criminals behind that crime was certainly justifiable, a massive war of aggression against Afghanistan was unnecessary and, for that matter, mostly ineffective.

There is another argument claiming that President Barack Obama is not responsible for crimes against peace and the specific war crimes committed by U.S. soldiers and mercenaries in Afghanistan. His defenders say that the current President inherited the war from President Bush. But Adolf Hitler died, and so the National Socialist Party leaders hung by the Nuremberg Tribunal merely inherited his war. What really is the difference, except that Germany lost World War II?

Focus back on Sergeant Bales: was he insane at the time of the shootings, and therefore not to be held responsible? That idea, too, presents difficulties. Just as all murderers would like to be freed on the basis of a plea of self-defense, failing that they would all like to escape punishment by reason of momentary insanity.

We may agree that murder and war are insane, but turning that idea into the operational result that war criminals and murderers should never be punished leaves us with no method to deter future wars and murders.

I believe the only U.S. citizen ever convicted of war crimes was William Calley, convicted for his role in the My Lai Massacre during the Vietnam War. While officially Calley's actions were against orders, in reality he was carrying out a policy decided at much higher levels. He took the fall both for his men and for his superiors. Lyndon Johnson was his commander in Chief, though Johnson might have claimed he inherited the war from John Kennedy.

Robert Bales should never have been in Afghanistan. But he was there, he committed his crimes there, and he should be turned over to the government of Afghanistan for punishment. If they decide he was or is insane, fine by me. Afghanistan would be wise to then call an international tribunal, like the one at Nuremberg, to look at the scope of the matter.

The United States could then extradite Presidents Bush and Obama, their top advisers, their top military commanders, and the members of Congress who voted to permit the war of aggression against Afghanistan to be tried by the international tribunal.

Oops, I forgot: in reality we have the Gruel of International Law. The strong convict the weak, not the other way around.