Email to Jewish friend on war crimes

My email below is to a Jewish friend who forwarded a circular email calling for signatories to a petition to pursue Hamas figures for war crimes:

Dear …

I’m impressed that you are so concerned about pursuing violations of international law. I fully share your concerns, though I guess I missed your interest in these matters when vast war crimes have been committed according to leading legal figures – recently by our own high officials and US leaders in Iraq, for example (see Australian academic experts such as Hilary Charlesworth).

Then, I’m sure you were equally concerned about the immense crimes of the Indonesian military and politicians in East Timor that amounted to a near-genocide – with our decisive, material and other aid. Or perhaps you missed that one next door. Nevertheless, I’m entirely with you on this one: by all means, we should apply international law and pursue war criminals whoever they may be, including Hamas. …

So, now according to this principle that you evidently share with me, I wonder whether you care to think seriously about whether Israeli government officials might be also prima facie subject to serious war crime accusations arising from the Gaza events? You will be aware that this issue is being raised all around the world by foremost legal experts and even explicitly being discussed in papers such as the recent issue of the Wall Street Journal – not exactly an anti-Israel publication.

Above all, as Jews, perhaps we might be particularly sensitive to the lessons to be learned from the Nuremberg trials in 1945 that were famously expressed by Justice Jackson. You might imagine that Jews would take the lessons of Nuremberg seriously, so I offer the following comments and would be interested to hear how you and other Jewish friends feel about the profound legal and moral lesson of Nuremberg:

U.S. Justice Robert Jackson, the chief of counsel for the prosecution at the Nuremberg Tribunal, addressed the Tribunal on the principle of universality, which is the foundation of any moral code that can be taken seriously. It‚s the principle that we apply to ourselves the same standards that we apply to others, if not more stringent ones.

Justice Jackson admonished the Tribunal that this elementary principle must be its guide, or else its proceedings would be nothing but legal farce, an act of vengeance, victor‚s justice. To quote Jackson’s memorable words:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own
lips as well.

The judgments of Nuremberg are incorporated into contemporary international laws as founding principles, and although the Tribunal was seriously and admittedly flawed, it‚s regularly invoked as the precedent and the standard for subsequent tribunals up to today, which are presented as high-minded efforts to approach the standards of Nuremberg, invariably falling short.

One fundamental reason for their failure and their profoundly immoral character is that the principle of universality is universal in only one crucial respect: It’s universally rejected, with scarcely any departure. Worse, the rejection is scarcely if ever even noticed, and so deeply ingrained that we are now immune to fundamental moral and legal principles. The poisoned chalice has never approached the lips of the powerful.

I didn’t give a citation for the foregoing paragraphs on Jackson and Nuremberg in my original email, but they are from an article by Noam Chomsky.

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