No, Condoleezza Rice is not a war criminal

Reader responses to my column about this year's commencement follies ranged widely, as always. But there were nonetheless certain patterns. The most common one was this: indifference about Brandeis dumping Ayaan Hirsi Ali, irritation at protesters for persuading Christine Lagarde to back out of speaking at Smith, and lots of support for those who got Condoleezza Rice to cancel her appearance at the Rutgers graduation ceremony.

Why were many readers cheered by the outcome in Condi's case but not the others?

Because she's a "war criminal."

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To which my response is: No, she isn't.

I say this to the legion of critics who have made the charge via social media, but also to my friend Andrew Sullivan, who in recent years has taken to referring to officials of the George W. Bush administration (especially Dick Cheney and Donald Rumsfeld) as war criminals, for launching an "illegal" war in Iraq and for approving the torture of terrorism suspects.

I loathe the idea of defending these policies or people. I thought the Iraq War was an outrage. I oppose torture. I think 9/11 tripped a switch in Cheney's mind, turning a once sober policy analyst into a paranoid lunatic. I think Rumsfeld was an awful secretary of Defense who did an atrocious job of running the occupation of Iraq through a combination of miscalculation and a stubborn refusal to adjust course in light of mounting evidence of his errors.

But none of this means that Cheney, Rumsfeld, or Rice are criminals — unless you use the term in a purely figurative sense, for the sake of amplification and emphasis, to mean that they were really bad at their jobs. If that's what their critics mean, then I'm happy to play along: Rumsfeld was a criminally awful secretary of Defense.

Ah, that felt good.

But of course that's not all their critics mean.

They mean that leading members of the Bush administration are war criminals in the precise legal sense that they violated the imposing body of rules and regulations that have grown out of the post–World War II Nuremberg Trials and Geneva Conventions. These rules are known as "international law."

There's a reason I placed the term in quote marks — because I think it's inaccurate to describe these rules and regulations as laws. They are, strictly speaking, bilateral and multilateral treaties between and among governments.

Laws, by contrast, are written, enacted, and executed by governments, and they apply exclusively to those residing within territorially defined political communities (be they city-states, nations, or empires). Citizens of liberal democracies hold, moreover, that laws gain legitimacy — and become binding — only with the consent of the governed. And that standard is (tacitly) met only when the laws have been crafted by the people's democratically elected representatives.

"International law" fulfills none of these requirements.

Someday, perhaps, the world will have a single government, one to which the planet's citizens have consented. That world state would be empowered to enact a body of binding international law and to punish transgressions of it.

But until that day, which is nowhere in sight, "international law" will remain a fiction — one concocted by politically unaccountable lawyers and bureaucrats, and enforced (or more accurately, imposed) arbitrarily and capriciously by ragtag coalitions of governments, egged on by equally unaccountable activists, and motivated mainly (as governments almost always are) by national self-interest.

The incoherence of appealing to a legal standard when none exists was made with particular force by the fearless Hannah Arendt, about what should have been the easiest case of all: the Nuremberg Trials themselves.

In the epilogue to Eichmann in Jerusalem, Arendt raised pointed questions about whether the Allies' attempt to prosecute leading Nazis could be described as just. In the case of war crimes charges, the Allies faced an insurmountable tu quoque (or hypocrisy) problem, since the Allies and Nazi Germany were guilty of numerous identical or analogous acts of immorality, and in some cases the Allies' actions were far more egregious. Both sides massacred civilians; both sides indiscriminately bombed cities (with the Allies' incendiary bombs killing tens of thousands of civilians); and, of course, only the Allies used atomic weapons, which killed somewhere between 150,000 and a quarter million Japanese.

As for the charge of "crimes against humanity," which was used to punish the leading masterminds and executors of the Holocaust, there was the problem of ex post facto justice. Since there was no legal stricture against such inhuman acts in force when the Final Solution was devised and put in place, its perpetrators were being tried for violating a law that was retroactively decreed by the Allies.

The result was a textbook example of the victors imposing their will on the vanquished.

To which many will no doubt respond: And it's a good thing, too! The Nazi bastards deserved everything they got!

My reply: Maybe so!

But we should be clear about what the punishment exacted at Nuremberg amounted to, legally speaking. It was might makes right, pure and simple, and not an instance of pristine legal impartiality.

And no, that doesn't make me a moral relativist.

I'm quite comfortable judging Nazism to be purely, unequivocally evil. I'm similarly confident in describing the Iraq War as horribly misguided and foolish, and perhaps even as crossing the line into evil in some respects — though (it should go without saying) on a vastly smaller scale than the evils perpetrated by the Nazis. (For one thing, members of the Bush administration, unlike the Nazis, clearly meant well, for both the United States and the Iraqi people, even if they executed their good intentions ineptly.)

But these are moral and political judgments, not legal ones. Violations of law belong in a separate category. They call for punishment, and the laws must be legitimate and binding in order for that punishment to be considered just. The world is nowhere close to having such a body of international law, and so no one is entitled to describe Condi Rice and her colleagues as war criminals.