by Edward S. Herman
July-August 2004

Michael Mandel’s How America Gets Away With Murder: Illegal Wars, Collateral Damage, and Crimes Against Humanity (Pluto: June 2004) is my favorite book of  2003-June 2004 (for the record, numbers two and three are Chomsky’s Hegemony or Survival and Frank Ackerman’s and Lisa Heinzerling’s Priceless: On Knowing the Price of Everything and the Value of Nothing).  Mandel’s book is a scholarly but eminently readable and completely convincing demonstration that the U.S. wars against Yugoslavia, Afghanistan, and Iraq, and the institutional apparatus that has given them legal support, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY, Tribunal ) and the UN, have made a travesty of the law and are returning the world to the law of the jungle. The book is a perfect antidote to the “humanitarian intervention” claims of the spokespersons and apologists for a resurgent U.S. and Western imperialism. 

  Mandel is a Professor at the Osgoode Hall Law  School at York University in Toronto, Canada, with a specialty in international law and with some enlightening experience as the individual who, in May 1999, in the midst of  NATO’s 78-day bombing war against Yugoslavia,  presented a petition for the indictment of  68 NATO leaders for their war crimes to Louise Arbour, then prosecutor of  the Tribunal. His account of this experience and his analysis of Arbour’s and her successor Carla Del Ponte’s handling of this petition is crushing, and even funny, as he contrasts their finely-tuned adjustments to NATO’s needs for public relations service to its military plans with their crude and often laughable modes of  evading even an official investigation of the documented evidence of NATO crimes.

A main theme of  Mandel’s book is the huge and now underrated importance of  the “supreme crime” of aggression as a source of mass killing, a crime that was the focal point of  the Nuremberg trials and the basis of the UN Charter with its primary design to end the “scourge of war.” Mandel points out that the Nuremberg court regarded other war crimes and horrors as commonly derivatives of aggression, a crime that “contains within itself the accumulated evil of the whole.”  War has horror-enhancement built-in as mutual destruction and killings escalate and restraints give way  in the course of  the struggle. (Mandel notes that the Holocaust occurred in the midst of war, with 97 percent of the murdered  Jews living outside German territory in war-conquered land).

  The problem for the United States (and the world) has been that this country is now in the business of aggression and its commission of the “supreme crime” is standard policy, thereby bringing the “scourge of war” across the globe  in direct violation of  the UN charter. Mandel’s first three chapters, on Iraq, Afghanistan, and Kosovo, center on the fact that each was a case of  aggression by any credible definition of the word, hence a supreme crime. Thus, getting the rest of the  world to accept and even facilitate its aggressions has been a major task for U.S. leaders and their official and unofficial propagandists. Mandel’s book is an account of how the United States has gained acceptance, toleration, and even help for its aggressions.      

One way it has done this is by claiming humanitarian goals or “self-defense” that justify its bypassing the UN, violating the UN Charter, and committing the supreme crime. Mandel makes mincemeat of these claims, which is not difficult to do but which Mandel does with an effective melding of  relevant facts and an analysis of the law. He goes to pains to show that in each of these cases there was no attempt to resolve the problems by peaceful means—aggression was intended and was carried out, with pathetic intellectual and untenable legal cover. And it was swallowed by the UN and G-8, first easily (Kosovo, then Afghanistan)  but with some foot-dragging on Iraq. Mandel stresses the importance of  the U.S./NATO Kosovo war law violations as a major step on the road to a breakdown of  any international law obstruction to the supreme crime, when carried out by the United States.

Another apologetic route has been the claim that what the United States does as it kills civilians in its wars of aggression is “collateral damage,” in contrast with the intentional killing of civilians in 9/11 and other attacks by retail terrorists. Mandel shows clearly that collateral damage is not “unintentional,” as it is well understood that civilians will die in the raids even if  the exact identities and number of victims is unclear. He has an excellent analysis showing that killing innocent bystanders when targeting someone else has long been considered murder in Western law, even in the state of Texas. Mandel also shows how much the downgrading of killing labeled collateral is linked to a downgrading of the importance of the victims. He notes Brookings analyst Michael O’Hanlon’s charactererization of  1,000 civilians killed as “a mercifully low number,” “Not, ‘O my God, we killed innocent people!’”

Mandel also stresses that discussions of  collateral damage and violations of the laws of war in the U.S. assaults regularly fail to take account of the fact that these lesser crimes are being committed in the context of  the “supreme crime”—which makes them inherently indefensible as parts of  an illegal and immoral whole. It is as if a discussion of an armed robbery should debate only the modalities of the robbery, not the crime of robbery itself. Mandel points out that with the start of the Iraq invasion,  Human Rights Watch and even Amnesty International  “issued stern warnings..to all the ‘belligerents,’ reminding them of their duties under the laws and customs of war. But neither said a single word about the illegality of the war itself or the supreme criminal responsibility of the leaders of the countries that had started it.” Human Rights Watch has even swallowed the NATO propaganda distinction between deliberate and collateral killings. These were all important gifts to the aggressor’s propaganda needs.

A further apologetic route is the use of  tribunals to deal with target country war crimes. Mandel has excellent chapters on the War Crimes Tribunal (4), The Trial of Milosevic (5), and  How America Gets Away With Murder (6), the last with Mandel’s description and analysis of  how the Tribunal dealt with his petition on NATO war crimes. There is no finer account of   the structured bias of  the Tribunal, its de facto control by the United States, the integration of its work to the needs of  U.S. political objectives in the area, and its judicial failings, which characterize it at every level of its operations. Mandel is no fan of Milosevic’s, but he makes it very clear that he is on trial strictly because he was the political target of  the NATO war, and the supreme criminals needed his demonization, arrest and show-trial guilt to prove the justice of their cause. The abuses of  the rule of law in his seizure and shipment to The Hague, and the judicial malpractice in his trial and his struggle in the face of  these abuses, have made him a hero by default as he has regularly made the Tribunal court look bad.

The Tribunal was obligated by its charter to investigate and prosecute all credible charges of  war crimes in Yugoslavia, which would include any by NATO forces. Thus in May 1999 Mandel presented Arbour with a compilation of evidence on NATO war crimes, with an accompanying legal analysis of why these constituted serious crimes. But Arbour and Del Ponte stalled for over a year, with Del Ponte eventually announcing that there was no basis for even opening an investigation with a crime base of only 500 dead, although Arbour’s May 1999 indictment of  Milosevic was based on a crime base of  340 victims, mostly from a war zone, following  the provision of information by one side in the war (the United States and Britain), information not verified by the Tribunal, and with only a three week lag to an indictment. Arbour had earlier stated that she would “only disregard unsubstantiated conclusions,” but this was only one of many principles set aside in the interest of service to her sponsor and funder.

Mandel traces in fine detail Arbour’s and Del Ponte’s (and before them Richard Goldstone’s) stream of actions and public relations announcements closely geared to precise NATO needs of the moment—indicting some Serbs to remove them from participation in political negotiations, but most often doing it to demonize target leaders and put some planned NATO act of violence in a more positive light. Mandel’s analysis of  Del Ponte’s rationale for not investigating  NATO’s acts, including the openly expressed belief that NATO officials only tell the truth—“I accept the assurances given by NATO leaders…”--that their press releases are reliable evidence, and that all of their killings of civilians and destruction of civilian sites  were “genuine mistakes,” is devastating and amusing. For anybody reading this account with a half-open mind it will be very clear that the Tribunal was (and remains) a political and  public relations arm of NATO, providing NATO with a convenient  judicial façade.

An important theme of  Mandel’s account of the work of the Tribunal is that, as an institution serving NATO aims, the Tribunal was an integral part of a war machine, “an instrument for the legitimation of war and the undermining of peace.” Mandel shows that the Tribunal was established and began operations in the same 1992-1993 time frame as the Clinton administration’s subversion of a series of efforts to settle the Bosnian conflict by negotiations, and he makes an excellent case that it was created in “an obvious attempt to derail the peace process.” Just prior to the Tribunal’s formation State Department official Lawrence Eagleberger publicly named the major Serb leaders as candidates for a war crimes trial, and suggested that bringing them to justice must be a high NATO priority.  A regular theme of NATO and Tribunal officials was that we must not sacrifice “justice” in the interest of  some political settlement.

Underlying this bias was  a NATO aim of weakening and destroying an independent and Serb-predominant Yugoslavia. This required warfare, and was eventually successfully achieved by warfare. But meanwhile it was necessary to cover this over with the demand for “justice,” with the Tribunal (and the propaganda army of Rieff, Ignatieff, Sontag, Hitchens et al.) serving well in providing this cover for war. Mandel points out that many thousands of the dead in Bosnia followed the decision to sacrifice peace in the alleged interest of  bringing justice. 

It goes almost without saying that the substance of Mandel’s account and analysis of the role and work of the Tribunal is not to be found even in trace elements in mainstream accounts, as the propaganda system has geared itself completely to the NATO-friendly portrayal of the Tribunal as an independent instrument of justice. This is well illustrated by Marlise Simons’ work on the Tribunal in the New York Times, strictly in the apologetic mode, as I’ve described with David Peterson in “Marlise Simons on the Yugoslavia Tribunal: A Study in Total Propaganda Service” (http://www.zmag.org/simonsyugo.htm)

The recent apology by the editors of the New York Times for their performance in the run-up to the Iraq invasion-occupation (“The Times and Iraq,” May 26, 2004) could no doubt be extended to other matters, but none would be more urgent than an apology for their coverage of the Tribunal and Balkans’ conflicts where the news-truth gap has been and remains astronomical.

In accord with his main theme, Mandel stresses the fact that the Tribunal charter carefully exempts the supreme crime of aggression from prosecution, leaving only the lesser crimes. These lesser crimes have been pursued with thorough-going political opportunism, exempting NATO and its Bosnian Muslim and Croatian clients from indictment for the same acts that bring Serbs into the dock, as Mandel demonstrates. Mandel argues that there was no justification for the Tribunal ignoring the NATO leaders’ commission of the “supreme crime,” as this is a key element of international law even if not part of the Tribunal’s mandate. So the ultimate irony of the Tribunal’s role is that it was an instrument  aiding in  the commission of the supreme crime, a remarkable testimonial to the U.S. ability to manipulate international institutions to service its needs.

In his last chapter (7), and one of his best, “Rounding Up the Usual Suspects While America Gets Away With Murder,” Mandel discusses the International Criminal Court (ICC) and various other developments bearing on the evolution of  international law and justice, such as the Pinochet case, the Belgian law reaching out to international criminals, the Rwanda court (ICTR), and the general problem of justice and truth in the New World Order. He shows how the ICC’s jurisdiction was structured once again to exempt the “supreme crime” from the list of crimes it would address, in accord with U.S. demands. This did not prevent Kofi Annan from claiming that under the new ICC “no state…can abuse human rights with impunity.” Thus, while the ICC has not, like the ICTY, been “handicrafted for the specific task of legitimating aggressive war…it leaves a great swath of international crime untouched, supreme crimes and crimes of the great powers.”

Mandel shows how strenuously the Clinton administration worked during the period of formation of the ICC to water down its reach. Clinton never intended to join, he merely wanted to weaken it and make sure any U.S. actions would never be interfered with. To this end, he and his agents like David Sheffer made sure that war crimes did not include nuclear weapons, cluster bombs and land mines, and they obtained the Section 98 (2) right to negotiate bilateral exemptions from ICC prosecutions. They tried hard to arrange for Security Council control of  the ICC agenda, which might have made the ICC acceptable because of the U.S. veto. Without it there was the threat of “politically motivated” prosecutions! Clinton’s actions flowed easily into the hardline Bush stance on the ICC.

 Mandel describes the great pains to which the ICC  has gone to make entry by the United States appealing, groveling almost without limit. He concludes that, “this is a court desperate for credibility, not with the world but with the world’s supreme international criminals. The Americans were very wise to stay out of this court, because this court is going to spend the rest of its life trying to convince them that they have nothing to fear from it. We can’t possibly look to a court like this for anything but the roundup of the usual suspects.”

Mandel shows that only the usual suspects are likely to be rounded up across the globe. In analysing the Pinochet case, he tears to shreds the claims of the Human Rights Watch and other humanitarian interventionists that it marks the end of the era of impunity. His careful examination of this episode shows how crudely the Blair government managed to assure that  the West’s own mass murderer would not be subjected to a trial for war crimes. The hypocrisy here of the “anti-impunity gang, fresh from their Kosovo crusade, and still howling for the arrest of Milosevic” could not be surpassed (Mandel points out that Pinochet was not released till a year  after  the end of the Kosovo war, and a year before the kidnapping of Milosevic, a spacing helpful to avoiding notice of the contrast in treatment between ally and target).

The Belgian universal anti-impunity law of 1994 saw Sharon, Blair, Bush, and U.S. general Tommy Franks threatened with prosecution, but—big surprise!—under U.S. pressure that law was emasculated and none of these villains will be brought to trial. The only people actually tried and given prison sentences under this “universal” law were four Hutus, two of them nuns. Mandel quotes both a Hutu and a Tutsi on the political nature of this proceeding, the Tutsi saying “They [the Belgians] ought to put themselves on trial.” But only the people of the South are brought to trial, not their former colonial masters, whose crime record in their former domains was and remains impressive.

As Mandel demonstrates, the performance of the International Criminal Tribunal on Rwanda fits into his overall analysis very comfortably. The United States was not interested in the mass killings in Rwanda, and in fact sided with the Tutsi invaders who subsequently devastated and killed vast numbers in the Congo as well as large numbers in Rwanda. Because of the U.S. disinterest, the ICTR was poorly funded, and because of the pro-Tutsi tilt of its principals the serious Tutsi killings of civilians were off the ICTR agenda, just as NATO crimes were off the ICTY agenda. Mandel notes that Arbour justified this ignoring of the thousands of Tutsi killings on the ground that if the ICTR pursued Tutsi killers “they would shut us down.” But Mandel points out that “These are the people, remember, who wouldn’t allow justice to be compromised by mere peace [in Bosnia and Kosovo].”

In short, it remains true today that to escape criminal proceedings for mass killing it is necessary to choose “to be with us” (Bush); whereas “they” and their allies had better watch out as the selective impunity laws and implementing institutions  will not protect them. This does not produce a system of justice—not even partial justice—as the supreme criminals can use these compromised tribunals and courts to facilitate their own larger crimes and justify the serial implementation of these major crimes from which the lesser ones flow.

Michael Mandel’s book is a best buy and must reading for those who want to understand how the United States is ignoring, using and reshaping international law to serve its imperial needs..

First published in Z Magazine

Edward S. Herman is Professor Emeritus at the Wharton School, University of Pennsylvania.

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