Introduction: Is "War Crimes" An Oxymoron?

Introduction: "War Crimes": An Oxymoron?

Mastery of war has ben described as the skillful use of "force and fraud." In other words, war is a nightmarish condition in which the ordinary valences are reversed. Civil society exists in large part to protect its members from force and fraud. We enact constitutions and laws to protect ourselves against governmental force, and so guarantee ourselves the due process of laws. We enact strict laws governing contract, commercial representation and reputation, attempting to ensure that when anyone makes a statement in a context that can injure another, fear of law will make them hew to the truth.

When we go to war, we throw out this rulebook and, for the duration, inhabit a world in which the values to which we pay lip service, fairness, equality, honesty, have no role. Terror, intimidation, destruction not just of military force but of the means of production, civilian morale and the civilians themselves; ambush, surprise, napalm, carpet bombing and firestorms have all been significant elements of twentieth century "total" and "local" wars.

Robert J. Lifton, in The Nazi Doctors (a book from which I cited extensively in An Auschwitz Alphabet), noted that many Germans who were peaceful, kind and good citizens before 1933, participated in genocide in 1933-1945--and then became quiet, good citizens again afterwards. He postulated that a psychological break occurred; another personality emerged from the recesses of the soul when summoned by the Nazi leadership, and then disappeared again when things returned to "normal" after the war. Although Nazi Germany may be an extreme example, the citizens of any country at war must endure a similar phenomenon. In another essay, I repeated the story from historian Stephen Ambrose's Band of Brothers of the American paratroopers commanded to find and assassinate a Nazi in occupied Germany and who, with complete obedience, went and murdered an unarmed man. Ambrose, unlike most war historians, follows the careers of all his subjects, members of an airborne platoon, after the war, and they almost all led comfortable, secure and successful middleclass lives afterwards.

It is an interesting side street--but a diversion from the present topic--to examine why so many who fought in Vietnam did not settle down afterwards. It is possible that the re-incorporation of World War II veterans into daily life was sealed by complete social acceptance of what they had done, while Vietnam vets found a country that was deeply divided and where even their supporters seemed eager to forget about them.

In any event, the valences reverse themselves in war; when peace returns, those who can return to the law office and the farm and lead quiet lives no doubt tell themselves, "I did what I had to," and leave it at that. A man cannot be blamed for doing what he had to. Either it was a just war (the distinction between just and unjust wars is deeply rooted in the human psyche), or perhaps our hypothetical soldier can even tell himself that he is a just man who was hurled against his will into nightmarish or hypocritical conditions, as in Vietnam, but did the best he could and is not to blame. Actually, this is the same rationale that many members of the Wehrmacht, the traditional German army, used. This rationale, as we will see, had its echo at Nuremburg, where there was something of a reluctance to convict ordinary soldiers for doing their jobs, and where most of the focus was on the "politicals", including those who had been inserted into the military chain of command but had not risen from the ranks.

If "war crimes" exist, it can only be because that "I did what I had to" is not a valid excuse. "I did what I had to" can only lack validity if one of two things is true: You didn't really have to do whatever you did to achieve your goal, or, conversely, the goal was illegitimate so your otherwise necessary action becomes illegal because in pursuit of a wrongful goal. Here are two illustrations.

Someone threatens you with a rolled up newspaper and you shoot them with a gun, then announce, "I did what I had to." You used excessive force, so in fact you did more than you had to to defend yourself.
Someone threatens you with a gun and you shoot them. However, you were house-breaking and your victim was the homeowner. Therefore, a justification that might have been a valid defense if the encounter had occurred in the street, is not acceptable; your defense of yourself was illegitimate because you were in pursuit of an illegal goal, burglary.

In either event, we reject the "I did what I had to" based on an unspoken premise: there are laws that govern war. If war involved a complete suspension of law, as it appears to at first blush, then "I did what I had to" would merely be a moral statement (as it probably often is.) In other words, a person against whom the law has no complaint may still feel that he has excuses to make to society's legally unenforceable rules of moral behavior, or to his own, or to his Maker, if he believes in one. But, if the "I did what I had to" is uttered in response to a governmental inquiry or obligation, or in the pursuit of the rights of a putative victim, it is because war does not, after all, successfully suspend some law, somewhere.

But what law is that? The possibilities are very limited. An individual, or in fact the government under which he lives, could be charged with violating:

The laws of that same government--in which case the question validly arises whether the laws were in effect at the time they were breached, or were they validly suspended by the government in question? Whatever laws against murder had previously existed, no-one questions that genocide was an act of perfect legality within Germany when it occurred; and today there is still not universal agreement that a government does not have the right to murder its own citizens.
An international treaty signed by that government--in which case, the question arises whether that government legally repudiated the treaty prior to the commission of the alleged war crime.
A tenet of international law, whether created by treaty or "international common law", to which the accused government never agreed-- raising the question of the legitimacy of subjecting a sovereign government to international laws to which it never consented.
An ex-post-facto law, of the type that would be illegitimate within most democracies, typically formulated by the victors in a conflict to punish the vanquished.

Even assuming that there is a valid substantive source of an international law of war crimes, procedurally speaking, who has jurisdiction to try the case? Can an international tribunal try a government for violating its own laws? Or for breaching an international law to which that government never agreed, or to which it withdrew its agreement? On the other hand, does it make any sense to speak of an "international law of war crimes" if there is no tribunal of universal jurisdiction? What kind of law can exist if there is no court in which cases can be tried?

These problems are the reason that most international law experts sound modest or even cynical when asked whether there is an effective international law of war crimes. Yet most people assume, without much thought, that such a thing exists. After all, we all know that the Nazis were prosecuted at Nuremburg, and most people think that this was a very good thing. Again, most of us have read that Serbian war criminals are under indictment and will be prosecuted by the UN if caught, and probably most would applaud that initiative.

But do we in fact have a law of war crimes? If we don't, what are these tribunals and indictments, from Nuremburg to Bosnia, about? Are they for show? Do they have any validity? Under what laws do they operate? Do they follow a fair process? In short, do they come anywhere near the standards we would demand for laws and tribunals governed by the U.S. bill of rights, with its guarantees of due process and prohibition of ex post facto laws?

The following essays examine the law of war crimes, from Nuremburg to the present, and attempt to answer these questions.