A former Nuremberg prosecutor wrote a recent letter to the New York Times saying  “the hopes of the Nuremberg trials 70 years ago are being tarnished by being ignored.” His point was that war crimes trials should be held so that ISIS members could be brought to justice. The trials would most likely be held at the International Criminal Court at the Hague. But that court has only limited jurisdiction, since both the U.S. and Israel have refused to join. Consequently the former Nuremberg prosecutor urges that the U.S. adopt new laws that “hold perpetrators of large-scale atrocities accountable.”

The problem with prosecuting perpetrators of war crimes is that the individuals found tried and guilty are invariably on the losing side. It’s the victors who determine who the war criminals are. The legal definition of war crimes under the Geneva Conventions includes unprovoked aggression, attacking civilians, and subjecting prisoners to humiliating treatment, unlawful confinement, and torture. But in recent years Americans have too often carried out these acts.

All of them were committed by the United States during its wars in Indochina, Iraq and Afghanistan. The process of “extraordinary rendition” and the torture of terrorism suspects became routine during the administration of George W. Bush, despite the fact that the United States had signed the international agreement outlawing torture. Israel is equally culpable under international law for its continued occupation of the West Bank, its attacks on Gaza and 8-year blockade, and for seizing Palestinian-owned land for settlements in the  occupied territory.

In the real world, however, when it comes to punishing unlawful, or even villainous behavior, it is political expediency that determines what is a war crime and who is guilty of them. The American officials from Vice-President Dick Cheney on down who authorized the systematic use of torture will never be brought to account and neither will the CIA agents and contractors who carried out their orders, because the Obama administration considers it politically unwise to raise the issue. It’s a safe bet that the leaders of U.S. allies such as SaudI Arabia and Israel will not face war crimes trials. It’s not surprising that the first real war crimes trials were held after World War II. The Nazis are among history’s most notorious lawbreakers, not only for invading countries all across Europe but for committing genocide in their systematic attempt to exterminate the Jewish population of Europe along with Gypsies and Slavs. Japanese leaders were tried for a variety of crimes, including the abuse of prisoners and the use of captive for medical experiments. After World War II at least a dozen Nazi officials were tried at Nuremberg and sentenced to death. At least 39 Japanese wartime leaders were tried by the Allies in Tokyo and found guilty. All spent time in prison and seven were found guilty of war crimes and in due course hanged. But what, if not war crimes,would we call the Allied firebombing of Hamburg and Berlin, which literally incinerated thousands of ordinary German civilians, and the levelling of the city of Dresden, a cultural landmark that had no war industries?

A few years ago Robert McNamara, the secretary of defense under President Kennedy, said in a filmed interview that had the United States lost World War II American officials would undoubtedly have been accused of war crimes for having  firebombed into ashes every major Japanese city and killing thousands of Japanese civilians. Many people think Harry Truman could legitimately have been accused of war crimes for dropping atom bombs on two cities that had no strategic importance, and for doing it when Japan was on the verge of surrendering.

Since 1945 war has become even crueller, with the victims predominantly civilians. The International Criminal Court at The Hague held trials of individuals accused of war crimes during the Balkan war in the early 1990s, and several Serbs and Croats served prison terms as a result. Individuals considered responsible for the genocide in Rwanda, and atrocities elsewhere in Africa have also been tried and sentenced to prison.

The U.S. war in Indochina filled every definition of a crime. But since the victor determines who is a war criminal, no one has ever been punished. Our forces invaded Vietnam and Cambodia, neither of which posed a threat to our national security, and killed an estimated 2 million members of a largely peasant population. We poisoned their forests and crops with agent Orange, which resulted in thousands of cases of birth defects, and the cluster bombs used by U.S. forces caused agonizing wounds.

War crimes continue to be committed. In retaliation for Iraq’s invasion of Kuwait in 1991, the U.S. air force under George H.W. Bush  dropped more bomb tonnage on Iraq than was used in the ten years of war in Indochina, according to then-Defense Secretary Cheney. The sanctions imposed on Iraq by the Clinton administration were responsible for the deaths of 500,000 Iraqi children, according to the British medical journal, the Lancet. Operation Shock and Awe in 2003 that ousted Saddam Hussein killed untold numbers of Iraqi civilians as well as more than four thousand American soldiers, and left behind a society fractured by sectarian violence. Yet the perpetrators of that war are not likely to be charged with war crimes.

The truth is, the object of a war is to win it, by any means necessary, and those means are almost always ugly. Looting, rape, torture, and the killing of civilians have been integral parts of every war. American forces are now fighting in Afghanistan, Iraq, Syria, Niger, Cameroon, and aiding Saudi Arabia and the Gulf emirates in the bombing of Yemen. It’s a safe bet bet that in such dangerous territory,war crimes are being committed by both sides. There are no limits on brutality when soldiers are fighting for their lives against an enemy they’ve been trained to regard as less than human.


Rachelle Marshall is a former editor and writer and a member of Mill Valley Seniors for Peace, a Jewish Voice for Peace, and Women’s International League for Peace and Freedom.