If he launches an attack on Iraq without the approval of the United Nations Security Council, George W. Bush will be guilty of crimes on par with those committed by the infamous Nazi leaders who were tried at Nuremburg in 1948, after World War II.
The law is clear. At Nuremburg, American, British, French and Soviet jurists used international conventions, legal precedent and a global moral consensus to establish a code of conduct deemed the standard for all nations.
Key was the "crimes against humanity" prohibition stemming from the conscious slaughter of six million Jews, leftists, gypsies and others by the Nazi fanatics.
But also crucial was the ban on unprovoked attack by one nation against another. The explosive fuse that set off World War II was the September 1,1939 Nazi attack on Poland, which was unprovoked by any stretch of the military imagination. By all accounts it was an act of aggression and conquest, which led ultimately to as many as 50 million deaths over the next six years.
Article VI of the Nuremburg Charter defines "Crimes Against Peace" as "planning, preparation, initiation or waging of war of aggression, or a war in violation of international treaties . . . or participation in a common plan or conspiracy . . . to wage an aggressive war.
A week before the unprovoked Nazi assault on Poland, Hitler promised his generals he would provide "a propagandistic reason for starting the war". He then justified a "preemptive" strike based on lies about a non-existent Polish Army attack against Germany.
The Nazi attack date had been set for more than a year. "The victor will not be asked afterwards whether he told the truth or not," Hitler told his generals. "In starting and waging a war it is not right that matters, but victory."
After Hitler's deceptions were revealed at Nuremburg, the surviving Nazis based their defense on the claim of "preventative war," claiming a need to protect Germany from a pending Polish attack. They were the last, until Bush, to use that rationale.
It didn't work. For this attack, ranking Nazi commandants, starting with Hermann Goering, Hitler's Number Two, were convicted and sentenced to death. That charge and that alone was deemed sufficient to warrant hanging.
Unless Saddam Hussein launches an attack on the United States very soon, any American attack on Iraq without UN approval would be on a legal par with the Nazi attack on Poland.
A key US argument, that Iraq was somehow linked to the September 11 terror attacks, has been definitively dismissed. In the eighteen months since, all credible evidence points to intense hostility rather than cooperation between Al Qaida and Saddam Hussein. Colin Powell, arguing in front of the UN, failed to prove any cooperative connection.
Iraq has been ordered to disarm by the United Nations, whose legal legitimacy was essential to the 1991 campaign that drove Saddam Hussein out of Kuwait.
Thus far, there is no United Nations consensus that the Iraqis have definitively failed to comply with the terms of that defeat to an extent that would justify a renewed military attack, one that would inevitably involve civilian casualties.
With no claim to having been attacked, George W. Bush has instead argued that his war on Iraq would be "preemptive," meant to prevent Saddam from launching a future war. But Iraq has not attacked anyone in more than 12 years and two-thirds of the country is under a no-fly zone. Thus Bush is merely resurrecting the preventative war doctrine invoked by the Nazis before their Nuremburg hanging.
In 1953 President Dwight Eisenhower, the former Supreme Allied Commander, dismissed the idea of a preventative war against the Soviet Union. "All of us have heard this term 'preventive war' since the earliest days of Hitler," he said. "I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing."
George W. Bush has now added to the list of pre-war demands a "regime change" by which Saddam Hussein would give up power. Bush then proposes rebuilding Iraq along democratic lines.
But Nazi functionaries at Nuremburg also received stiff sentences for approving essentially the same totalitarian statutes that now appear in the Homeland Security, Patriot I and Patriot II Acts authorizing secret arrest, detention and "disappearances" of American citizens without legal recourse or public notification. At Nuremburg, such laws were recognized as a form of state terror.
The embrace of such laws in America casts serious doubt on the Bush Administration's real willingness to install democracy anywhere else.
When the Nazis attacked Poland in 1939, no one envisioned that just eight years later Germany would be leveled and its all-powerful reichmarshalls would be tried and sentenced under international law.
Such a vision seems less far fetched today. America's current military might has prompted the Bush Administration to frame its proposed war in terms of a "crusade" against "evil." But military action against Iraq is guaranteed to inflame the passions of 1.2 billion Muslims. The proposed war is explicitly opposed by the Pope. International support is extremely limited. The US itself is deeply divided, with its economy in serious trouble.
The diplomatic campaign for this attack has been handled with all the wisdom and foresight of madmen lighting matches in a room full of gasoline. There is no reason to expect a military campaign would be handled any better.
It is clear from the precedents at Nuremburg that any American attack on Iraq without United Nations approval would be illegal under international law. It is also clear that the inevitable civilian casualties resulting from such an attack would qualify as crimes against humanity.
And sooner or later, the American perpetrators of such an attack and related crimes might well find themselves standing trial before some sort of Nuremburg-style international tribunal.
Given such circumstances, the guilt of George W. Bush will not be in doubt. But the guilt of subordinates giving supporting orders, and of soldiers and functionaries carrying them out, will also be a given.
The Nuremburg court, including its American judges, repeatedly ruled that those who "only followed orders" in committing atrocities were guilty of crimes against humanity.
Those willing Americans executioners who "only follow orders" in perpetrating this illegal attack on Iraq should understand that they stand to be found just as guilty as the ones giving those orders.
And that one way or another, sooner or later, that guilt will demand payment.