Is there any chance that US war criminals will be prosecuted? We have the machinery to do so, but the machinery has grown rusty with disuse. There have been no prosecutions under the federal War Crimes Act which criminalizes “grave breaches” of the Geneva Conventions. Instead, the Bush Administration engineered amendments to the War Crimes Act which narrowed the list of crimes which could be prosecuted. Bush lawyers like Alberto Gonzales, John Yoo, and Jay Bybee argued in a series of now infamous legal memos that what the unsophisticated might naively mistake for torture (waterboarding, prolonged exposure of detainees to stress positions, sleep deprivation, etc.) was not torture. The Bush Gang were covering their asses as reflected in a Washington Post headline: “War Crimes Act Changes Would Reduce Threat of Prosecution.” Psychological barriers add to the difficulty of trying US war criminals. For many Americans, seeing their leaders in the dock would be an insufferable blow to national pride. Only one thing could make such an affront more intolerable, and that’s if those sitting in judgment are “ferreigners.” How else explain the American Servicemembers’ Protection Act which wags dubbed the “Hague Invasion Act.” The Act empowers the president to use “all means necessary and appropriate” to liberate Americans (civilian leaders as well as military personnel despite the Act’s misleading name) who may in the future be held for prosecution by the International Criminal Court in The Hague. The US Marines can take some nice selfies in front of windmills and canals as they storm into Holland. US hostility to the ICC was apparent even before the Act’s passage. President Bill Clinton signed the Rome Statute, the treaty which created the International Criminal Court, but did not submit it to the Senate for ratification. One of George W. Bush’s first acts as president was to “unsign” the Rome Statute, leading baffled law professors to splutter: “Can he do that?” Not that it mattered. The Rome Statute would never have passed in the Senate. Happily, Kissinger’s and Nixon’s victims—and Bush’s and Obama’s—were foreigners. Otherwise, killing them might have been serious. As every American knows, the United States acts only for good. We do not commit war crimes. This mindset has to change. The Nixons, the Kissingers, the Cheneys, the Bushes and Clintons and Obamas rely on it to keep themselves out of the slammer. To hear them tell it, their only concern is protecting Americans’ lives. Antiwar activists can and must convince Americans that these butchers protect no one but the powerful.
Charles Pierson, Why US War Criminals Walk Free