"War criminal" is a loaded phrase. To most people it likely conjures up images of the ovens at Auschwitz, the hideous experiments of Josef Mengele, or Hermann Göring sitting in the dock in Nuremberg, arrogantly dismissing his captors' right to pass judgment on him. It is a serious accusation and one which, precisely because of its association with Nazi barbarism, people are reluctant to level. The atrocities committed by the Nazis were so egregious as to make accusations of war crimes seem as sensationalist as comparisons to Nazism are often felt to be. But Nuremberg, important as it was as a precedent, was but one of many tribunals convened to try war crimes. There were many that were less sensational and many of the men convicted in these tribunals were far less monstrous than Göring. Some could even be seen as humane and decent people whose crimes were more the results of moral myopia and personal weakness than of nefarious intent. When we consider the question of our own leaders' criminality it is to the cases of these men rather than to those of the blustering Göring or the odious Rudolf Höß that we should look in order to determine what sorts of standards we should apply.
Perhaps the most instructive cases in this regard are those of Tōgō Shigenori and Shigemitsu Mamoru. Tōgō served as Japan's foreign minister at the time of the attack on Pearl Harbor and later at the end of the war. Shigemitsu served at the same post during the war and immediately after it. Both were convicted of class A war crimes at the Tokyo Tribunal.
Tōgō was not a militarist nor a fanatic nationalist. His wife was German and he himself was of Korean descent. He was born with the name Park and his ancestors were among the highly skilled potters that were abducted from the peninsula and taken to Japan during the invasion of the continent by the sixteenth-century warlord Hideyoshi.
Tōgō did not come to power as part of a criminal conspiracy that overthrew an older order. He was appointed to his post by entirely constitutional means and he performed his duties conscientiously. As tensions increased with the United States during 1941, Tōgō was among the internationalists within the ruling elite that strove to avoid hostilities. His efforts were unsuccessful and he stayed at his job after the outbreak of war. However, he didn't stay long. Because of his anger over the ill-treatment of foreign nations in Japanese occupied territory he resigned from the cabinet in protest in 1942. Later in the war, after the fall of the Tōjō and Koiso cabinets, he was once again induced to join the government, this time as the foreign minister in the cabinet of Prime Minister Suzuki Kantaro. When he did so, it was on condition that Suzuki would look to end the war as soon as possible. After the atomic attacks on Hiroshima and Nagasaki and the Soviet invasion of Manchuria, it was Tōgō who led the peace faction within the cabinet, urging the acceptance of the Potsdam Proclamation, eventually prevailing over the military fanatics who urged that the country continue the fight until the nation was completely annihilated. When the United States rejected Japan's offer of surrender with a single condition, Tōgō's underlings, with his connivance, deliberately mistranslated the American reply in order to make it appear that the Americans had accepted Japan's condition so a surrender could be achieved. Before the war broke out Tōgō made great efforts to avoid it. When his country was faced with utter destruction at the hands of its fanatic military, he took the initiative in moving toward surrender. In a very real way, he was a man of peace.
This is not to say that Tōgō was a saint, nor that he was without blame for the disaster of the war. He was neither. As the war clouds gathered and Japan prepared for its aggression, he did his part in preparing his country for war even as he sought to avoid that outcome. He allowed Prime Minister Tōjō to misrepresent a draft proposal for settling differences in the Pacific as an "ultimatum" even though he knew it was headed "tentative and without commitment". He removed language about respecting international law from the Imperial Rescript declaring war, presumably because he knew his country's actions were a violation of that law. He acquiesced in a plan whereby the military would commence hostilities before any formal declaration of war was presented to the countries being attacked. At the end of the war, before the bombings and the Soviet invasion, he flat-out rejected the advice of Satō Naotake, Japanese ambassador to Moscow, who recommended accepting unconditional surrender. In short, he allowed himself to be compromised by his fellows and got swept up in the flow of events. For these actions he was found guilty of plotting aggressive war and sentenced to twenty years in prison. He died behind bars.
Shigemitsu, perhaps best remembered as the man in the top hat in the famous pictures of the surrender ceremony on the USS Missouri, was also found guilty of crimes against peace. In addition, he was convicted on another count, count 55, which charged that he
deliberately and recklessly disregarded [his] legal duty to take adequate steps to secure the observance and prevent breaches [of international law], and thereby violated the laws of war.
In this charge the tribunal found that Shigemitsu bore cabinet responsibility for Japan's mistreatment of prisoners. As foreign minister, he had received numerous complaints from Allied nations about the treatment of its prisoners at the hands of the Japanese military. Though he relayed these complaints to the military, it was found that he did nothing EFFECTIVE to remedy the situation. He too was sentenced to prison, though, his responsibility for crimes against peace being judged less than that of Tōgō, he received a sentence of only seven years, was later paroled, and even served as Japan's foreign minister again.
What these cases show is that the standards that were set at the Nuremberg and Tokyo trials could be quite stringent. Complicity in crimes against peace was judged rather harshly. Responsibility for the mistreatment of prisoners was assigned not just to those who directly abused them, or even those who were responsible for the directives and orders that led to such abuse, but even those who, through nonfeasance, allowed such abuse to take place.
When one considers the actions of our leaders during the Bush administration in light the standards under which Tōgō and Shigemitsu were convicted, "war criminal" no longer seems such a hyperbolic charge. Bush, Cheney, Rumsfeld, Rice and even, I'm sorry to say, Powell are all almost certainly indictable for crimes against peace under the standards set at Tokyo. Depending on how aggressive the prosecutor is (and what evidence later comes to light) congressional leaders, including Democrats may be as well.
As for torture and prisoner abuse, it is evident that all of the above would also be indictable.
The upshot of all of this is that many of the people in positions of responsibility during the Bush administration are effectively unindicted war criminals. They are war criminals not in some hysteric rhetorical sense, but because of the standards set down in Nuremberg and Tokyo, standards that were influenced by prominent American jurists such as Associate Justice to the Supreme Court and chief Nuremberg Prosecutor Robert Jackson.
The eight years of misrule under the Bush Administration has left a stain on America's national honor. Whether that stain proves to be indelible or not will, in large part, depend on whether we as a nation possess the moral courage to judge ourselves by the same standards we applied against our conquered enemies.