Book Review: Michael Mandel on How America Gets Away with Murder
Edward S. Herman
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
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
The problem for the
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
Another apologetic route has been the claim that what the
Mandel also stresses that discussions of collateral damage and violations of the laws of war in the
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
The Tribunal was obligated by its charter to investigate and prosecute all credible charges of war crimes in
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
Underlying this bias was a NATO aim of weakening and destroying an independent and Serb-predominant
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 “The New York Times on the Yugoslavia Tribunal: A Study in Total Propaganda Service” (http://www.coldtype.net/Assets.04/Essays.04/YugoTrib.pdf)
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
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
Mandel shows how strenuously the
Mandel describes the great pains to which the ICC has gone to make entry by the
Mandel shows that only the usual suspects are likely to be rounded up across the globe. In analyzing 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
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.