The Haditha massacre has focused a lot of attention for the moment on the issue of war crimes and reminds the public that there are such things as laws of war. It's pretty painful to see how rudimentary the knowledge about war crimes and the laws of war are for so many people though. Do I need to add this includes many of our "press corps" and Big Pundits that are writing about this?
The current (Summer 2006) issue of The American Interest has an article called What Is a War Crime? by Barry Gewen. (The link unfortunately has only a couple of teaser paragraphs.)
The American Interest is a product of the intellectual and political ferment that is going on around the Bush Doctrine and its disastrous application in Iraq. There are some real realignments going on in terms of foreign policy. This journal represents kind of a "recovering neoconservative" viewpoint, and brings together articles from liberal internationalists, Old Right isolationists and several shades of doctrine in between.
Gewen's article is a frustrating combination of practical, realistic discussions of the laws of war and the difficulties in enforcing them, on the one hand, and whoppers that could have come from any Republican war lover trying to discredit international law, or worse. I'll look at the whoppers in some detail, in order of their degree of whopperishness.
But since that may make it sound like any of the useful things he writes are cynical fluff, I'll give this example of one of his important points. He writes:
The Abu Ghraib guard who forces a prisoner to wear a pair of panties on his head is guilty of a war crime; but the president who kills 100,000 Japanese with two atomic bombs is not.
He takes two wildly disparate examples, presumably to emphasize the paradox. But his point is right. The laws of war define specific acts that are criminal. Others that may have far broader consequences, that result in far more noncombatant deaths, are not criminal. And his statement of why is also basically correct:
The paradox offends common sense, but only if we expect the law to do more than it is equipped to do. Some issues are simply not adjudicative; courts are inadequate vehicles for dealing with decisions taken at the highest levels, even involving the most heinous of crimes ...
Analyzing the whoppers
In order of egregiousness, his erroneous assertions include:
1. The Nuremberg Trial of German war criminals relied on ex post facto law.
2. The use of the atomic bombs on Hiroshima and Nagasaki ended the Pacific war with Japan
3. The Allied bombing of German and Japanese cities was self-evidently directed at killing civilian noncombatants
4. It makes no sense to legally charge the leaders of states with war crimes
5. He makes some very inappropriate comparisons
Ex post facto law: Two of the key charges at Nuremberg, "waging aggressive war and committing crimes against humanity", Gewen argues were ex post facto laws, i.e., laws that were not in effect at the time the acts were committed.
This is just not the case. The Nuremberg Tribunal was set up in a complicated process that involved merging procedures and standards of the Continental and Anglo-Saxon legal systems. And those charges were formulated specifically for that trial. However, those categories were summary categories that brought together laws that were in force and applied to the Germans at the time the acts were committed. The defendants were tried based on laws that were in effect at the time they did the deeds for which they were charged.
Japanese surrender: Certainly the use of the atomic bombs were a major factor in Japan's decision to surrender, perhaps the decisive one. But, in fact, two sets of events took place simultaneously. Within a few days of each other, the US dropped the atomic bombs, first on Hiroshima, then on Nagasaki. Between those two events, the Soviet Union entered the war in a massive way, as they had agreed to do at the Potsdam Conference. And the Red Army advanced at a very rapid pace, all the way through the northern portion of Korea, which is how North Korea wound up with its Communist government.
And those two sets of events took place after months of exceptionally nasty fighting in the Pacific Islands, where US forces took one island after another.
All of those events went into Japan's decision to surrender. And I emphasize the point, because a large part of Gewen's discussion of the morality and legality of bombing cities relies on the assumption that the atom bombs were by themselves the reason for Japan's surrender. That may correspond with decades of American Cold War propaganda. But the assumption is pure speculation, and hardly fits with the actual events.
Without that assumption, arguments like this one become pretty much sophomoric:
After the war, Henry Stimson, the United States Secretary of War, said fighting on [by conventional means against Japan] would have resulted in a million American casualties. This figure has been generally dismissed. Truman himself estimated half a million lives. Some critics have since claimed an invasion would have cost "only" 25,000 to 50,000 American lives. No one really knows, but let us accept the low figure and imagine that Truman had acted on [Michael] Walzer's principle that "there is no right to commit crimes in order to shorten a war." Now let us imagine that postwar congressional hearings determined that Truman could have saved 25,000 American lives by using a deadly efficient new weapon, but had refused to do so out of concern for Japanese lives. He would have been impeached, and rightly so.
The way that argument is phrased, the sort of "nuclear Jesuits" (strategic theorists) like Richard Perle who would argue for the US to use nuclear weapons often and aggressively could drive a truck through the gap in reasoning. That's part of what makes me wonder if Gewen's article isn't designed more to discredit international law altogether than to explain its limitations.
I would agree with Gewen's conclusion that the bombing of Hiroshima and even Nagasaki were not war crimes under the laws of the time. I posted several times about those decisions on the occasion of the 50th anniversary. See Arguing over the A-bomb 08/04/05 and several of the following days' posts.
Bombing civilians deliberately: I have great reservations about the value of the "strategic bombing" of cities during the Second World War. Gewen mentions some of the good reasons to be skeptical of its actual benefits.
But he also takes it for granted that both Britain and the United States were deliberately intending to kill civilians. Is that true? In the case of Britain, probably not, although Britain explicitly made breaking the civilian population's will to fight on of the goals of its bombing. In the case of the US, also probably not. The official policy at any rate was to strike only targets of military value. And, yes, that was true of Dresden, Hiroshima and Nagasaki.
I say that with some reluctance, because I don't trust the judgment of anyone who doesn't have the most serious reservations about the Second World War bombing, especially the atomic bombings. But Gewen's treats what is in reality a highly controversial (and ideologically very tangled) argument, that the US and Britain aimed deliberately to kill civilians, as a straightforward fact.
Again, given the incredibly deadly toll of the bombings, I almost want to hold my nose in saying that. Even with conventional bombing, on one night in Berlin some 30,000 people were killed. But to see how ideological messy this can get - Holocaust deniers make a big cause of criticizing the Allied bombing and would welcome Gewen's assumption about deliberately targeting civilians - see my post The bombing of Dresden 02/07/05, also a 50th anniversary post.
Charging leaders with war crimes: This can be a complicated thing, as the current trial of Saddam Hussein shows. Like everything else this administration does, the trial shows their incompetence. But Nuremberg and the Tokyo war crimes trials show that it can be done successfully and fairly. So to make his argument, he has todismiss Nuremberg, which he does by claiming it was a unique event, which can't serve as a precedent. The Tokyo war crimes trial he simply ignores. Nor does he mention Israel's trial of Adolf Eichmann.
Questionable comparisons: I quoted the comparison above where he uses forcing a prisoner to wear panties on his head and a Presidential decision to bomb a city to make a point. As I said, the point he was making was valid. But even that comparison was forced. It's hard to imagine that if the only abuses at Abu Ghuraib had been insulting headwear that even the most scrupulous enforcement would have put on a war crimes trial over it.
This one is worse. He quotes Michael Walzer as saying that even in war "a moral person will accept risk, will even accept death, rather than kill the innocent". Then he pulls a switch-to-down-home mode trick:
Or consider an officier who is about to take his men into battle. He believes in universal rights and so, using Walzer's words, he tells them: "If saving civilian lives means risking soldiers' lives, the risk must be accepted." One may reasonably wonder if such an officer will ever return from his mission, or instead be fragged by his own men at the first opportunity.
This doesn't even rise to the level of sophomoric. No, an officer "about to take his men into battle" probably isn't going to talk like a moral philosopher giving a lecture. But an officer who leads soldiers into the kind of insurgency situation every day that is currently occurring in Iraq might well say something like, "We're here to fight the enemy. And if I hear anyone even hinting they might try something like those shooting in Haditha, I'm going to kick your ass myself".
And apart from the debater's phrases, officers are responsible for maintaining discipline in their unit. If Gewen doesn't like that idea, he will presumably not try to serve as an officer unless he were willing to do his duty in that regard.
The difficulties of prosecuting war crimes
The weight of Gewen's argument falls heavily against the idea of attempting to prosecute war crimes at all, especially when the defendents are governmental officials. He concludes by imagining Winston Churchill watching Saddam Hussein's trial and "growling": "They should have shot the bloody bastard straight away when they found him in that rathole". You could yuk it up with the white guys at the country club bar with a line like that. But it essentially discards the notion of legal accountability for the most serious war crimes and crimes of humanity.
Yet for all that, his article does make some valid points. Prosecuting seniordecision-makers for war crimes is difficult. The trial of Slobodan Milosevic provided numerous examples of that. Anyone who has tired to follow the still-emerging decision-making process on going to war with Iraq can imagine some of the problems in the case where George W. Bush or Donald Rumsfeld were charged with planning and waging an "aggressive war", one of the main charges at Nuremberg. (Preventive war counts as "aggressive war" in the Nuremberg sense.)
Suppose the prosecution contended that Bush new the uranium-from-Niger claim was phony. All those political excuses he and his advisors were so careful to provide him could also function for legal defense. "My client was deceived by the CIA," his defense attorney could argue. "The intelligence analysts at the defense department gave him wrong information. How was he supposed to know the British claims on that were as bogus as the Americans'?"
Despite the real problems in Gewen's discussion of bombing, he does succeed in making an important point that some of the acts that are the most highly destructive to civilian noncombatants may be legal, where more limited but clearly definable acts of harm may be war crimes.
And the one part of his argument that clearly seems to support international laws like the Geneva Conventions and their enforcement is in his discussion of the treatment of prisoners. He writes:
The responsibilities of a law-abiding bomber pilot and law-abiding prison guard are different, for jurisdiction alters everything. Those under the sovereignty of a foreign government can legitimately claim rights not available to innocents on a batdefield. This is the oldest doctrine of war crimes conventions, and it is still me one with die greatest force. The mistreatment of captured combatants and occupied noncombatants has been recognized as a war crime for as long as the concept has existed, going back to Sun Tzu in the 6th century B.C.E. One reason is simple pragmatism: If a country abuses POWs under its control, it invites the same treatment for its own soldiers. But a larger principle is at stake as well. It is widely, if implicitly, understood that moral constraints must limit the exercise of absolute power, that violence committed mindlessly, gratuitously, hysterically, sadistically, must in all cases be rejected and condemned - or else the only morality is brute force and the only ethic is that might makes right.
This is why so many Americaas felt a sense of shame at the revelations from Abu Ghraib and the possible revelations to come from Guantanamo (and additional pain because so many other Americans felt no shame at all). And this is why the poster child for American war crimes - until the Iraq war - had been Lt. William Calley, the officer most responsible for the deaths of four hundred villagers at My Lai [during the Vietnam War]. It was not their deaths as such rfiar constituted Calley's crime - unknown numbers of women and children had been killed by American troops during the war - but the fact that they were killed while in his custody and, thus, under his protection. (my emphasis)
Gewen's article touches on some of the particular issues raised by war crimes. Unfortunately, it seems that the American public will have reason to get more familiar with the whole concept over the next few years.