Letter to John Conyers on Charge of Aggression

The Hon. John Conyers
2426 Rayburn House Office Building
Washington DC 20515

Thursday, June 2nd, 2005

Dear Mr. Conyers,

I understand that you are leading an investigation into the implications of the “Downing Street minutes” and that the focus of your investigation is to determine whether President Bush misled the United States Congress in a way that warrants congressional proceedings for impeachment.

I am writing to ask you to expand the scope of your inquiry to include the additional charge that Mr. Bush and other members of the United States Government have committed international aggression against Iraq. I am enclosing two articles that I have written on this subject.

“The Crime of War: from Nuremberg to Fallujah” has been accepted for publication in Peace Review and has already appeared in Z Magazine. It is a review of current international law regarding aggression, and explains precisely how the United States Government has in fact violated international law by invading and occupying Iraq.

“Reviving Legitimacy” is a commentary on the legal advice that Britain’s Attorney General, Lord Goldsmith, gave to Prime Minister Blair twelve days before the invasion, with particular emphasis on what he said about the ultimately untenable legal position of the United States Government. You can also read his advice in full at The Times web site.

I understand that there are political impediments to bringing a charge of international aggression against one’s own government. However, I would ask you to consider the following:

1) As Lord Goldsmith warned Blair in paragraph 34 of his advice, “Aggression is a crime under customary law which automatically forms part of domestic law”. Thus, the absence of a pertinent federal statute or precedent is not a formal impediment to bringing such a charge.

2) Article VI Clause 2 of the United States Constitution incorporates international treaty law as part of “the supreme Law of the Land” on a par with federal law and the Constitution itself, so that treaty violations by the U.S. Government are in fact violations of its constitutional duty on a par with violations of federal law.

3) The United States is a signatory to the Kellogg-Briand Pact, which renounces the use of “war as an instrument of national policy”, and the United Nations Charter, which reserves exclusively to the U.N. Security Council the responsibility to “decide what measures shall be taken” in response to “any threat to the peace”.

4) There is no basis in international law for the “doctrine of preemption” as President Bush has used this term. As Lord Goldsmith wrote in paragraph 3 of his advice, “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to preempt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognized in international law.”

5) The fact that the argument for such an illegal “doctrine” may be politically appealing to a panicked domestic constituency has no bearing on its legitimacy. Ultimately, in the eyes of international law, it is no more than a self-serving justification for aggression.

6) The National Defense Strategy of the United States of America (2005) has now expanded this claim of a right to use military force to almost any circumstance at the sole discretion of the President of the United States. It is very important that legitimate institutions in the United States challenge the legitimacy of this doctrine before our government commits additional acts of aggression.

7) The judges at Nuremberg called aggression “the supreme international crime”, and sentenced German leaders to death for committing it. This is a crime that must be taken seriously for the sake of our country and the world.

I believe that the legal, constitutional and political aspects of this situation can interact in ways that will eventually produce a positive outcome. The very fact that serious legal and constitutional action is brought against senior officials will be politically potent, while at the same time this changing political climate will be favorable to a positive legal and constitutional outcome. The procedures you are initiating are clearly a crucial part of this process.

I have been in touch with Ben Ferencz, who also wants to institute legal proceedings against U.S. leaders for the crime of aggression. He was the Chief Prosecutor of the Einsatzgruppen trial at Nuremberg in 1946, known as the “greatest murder trial in history”. He obtained convictions against 21 senior German officers for the murders of more than one million people. He was also one of the architects of the International Criminal Court and was honored as such at the signing of the Treaty of Rome in 1988. Ben is 85 years old now, and this is an enormous task for him to take on (not that that has ever stopped him before!), but you may want to call on his experience and expertise to assist you in this case. He has told me that he considers access to relevant U.S. documents to be crucial, so I hope that you will likewise assist him in any efforts he makes to gain access to such documents.

We are living at a crucial time for the future of our country. I applaud your willingness to stand up for the legitimate constitutional principles on which that future now depends.

Yours sincerely