The Saleh v. Bush case, a four year lawsuit involving claims that senior Bush-era officials (including former President Bush, Vice President Richard Cheney, and other officials) committed the Nuremberg-era crime of aggression when they invaded Iraq, ended on February 10, 2017. In a 25 page opinion, the Ninth Circuit held that Bush-era officials were immune from further proceedings, even when the allegations of crimes involved the "supreme" international crime -- the crime of aggression.
Despite allegations that members of the Bush Administration lied to the public, to Congress, and to the international community, and initial evidence supporting the notion that former Secretary of Defense Donald Rumsfeld and Undersecretary of Defense Paul Wolfowitz were committed to a military overthrow of Iraq as early as 1997, the Ninth Circuit held that former Administration officials were immune from civil proceedings under a 1988 law called the "Westfall Act." The Westfall Act provides an immunity to civil lawsuits to former government officials if they were acting under the scope of their authority.
In ruling that the domestic Westfall Act provided a blanket immunity even for the crime of aggression, the Ninth Circuit effectively overruled the precedent set at the Nuremberg Tribunal, which had clearly stated that as a matter of international law, leaders of countries could not rely on domestic immunities to shield themselves from charges of aggression. Yet the Ninth Circuit held that domestic law, and specifically the Westfall Act, superseded any international treaties or rules of international law that had been had laid down at Nuremberg. Consequently, the judges ruled that Nuremberg's commands with respect to the crime of aggression would not find life under US law.
Since the Nuremberg trials took place in 1946, there has been rigorous scholastic debate regarding the "victor's justice" nature of the tribunal. The architects of the Nuremberg Tribunal were emphatic that the project to try Nazi war criminals would be a meaningful and lasting contribution to international law -- one so powerful, that even the US would be bound to the precedent.
One of Prosecutor Jackson's most famous quotes from the Nuremberg trials is his reference to Macbeth, and specifically, his comment that the judgment at Nuremberg would be a "poisoned chalice" from which the victors of the war would also drink ("this even-handed justice Commends the ingredients of our poisoned chalice To our own lips"; Macbeth, Act 1, Scene 7).
His point was that far from being victor's justice, Nuremberg would herald a new era where leaders from all countries would be subject to law.
The conclusion to be drawn from the Saleh case, however, is entirely the opposite. The lesson of Nuremberg is not the "poisoned chalice;" instead, the lesson is Macbeth's soliloquy at the play, as his forces have been defeated and after he learns of the death of his wife, Lady Macbeth. He says:
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
(Macbeth, Act V, Scene 5)
This is the real lesson of Nuremberg -- a trial full of sound and fury of the crimes of the Germans, but ultimately, signifying nothing.
The reason for this conclusion is simple: the victors of that war are not willing to examine their own conduct under the lens of the very laws used to convict the Germans of their own aggressive actions. The high-minded rhetoric of that famous prosecution has shown its true colors: given a test before U.S. judges to determine its true nature, the precedent at Nuremberg collapses. Domestic immunity can, in fact, belay an international law, even for legal obligations that are considered absolutely binding by international law and non-derogable (so called jus cogens norms).
Since the September 11, 2001 terrorist attacks in New York, courts in the United States have looked the other way as the U.S. executive branch continues to expand its power. No matter the allegations -- torture, indefinite detention, summary execution, and the supreme crime of aggression -- and no matter which political party, U.S. judges have given significant deference to Presidential claims of power.
Today's U.S. executive branch, with its vast powers of surveillance and military might, is perhaps the most powerful executive office in history, wielding more power than any Roman emperor or English king. Only the rule of law will prevent the executive from subsuming democratic norms and installing the political architecture of naked dictatorship.
"And all our yesterdays have lighted fools the way to dusty death." Macbeth, Act V, Scene 5.
Just Atonement is a non-partisan non-profit human rights law firm that provides analysis and commentary on legal precedents that address the scope of executive power. This analysis and commentary should not be construed as advocacy for or against any particular candidate for political office.