Are War Crimes Inevitable?
Megan McArdle argues that war crimes are an inevitable part of war and therefore, “when you choose war, you choose war crimes–and that this is true regardless of why you are choosing the war.” Her Atlantic colleague Andrew Sullivan says this is “preposterous, uninformed, ahistorical,” noting that, “The United States has managed to go to war for two centuries without the president authorizing and monitoring the torture of prisoners. The Bush administration’s legalization of torture and withdrawal from Geneva is unique in American history.”
The United States has never fought an extended war against a non-state actor*, either. While I have believed and argued from the beginning of this conflict that we should refrain from torture for reasons practical and moral, it’s also true that there were plausible legal arguments for not extending the rights international law affords legitimate combatants to terrorists and other unprivileged belligerents.
It’s also ahistorical to argue that this is the first time the United States government has used questionable means to prosecute a war. There are several alleged war crimes against the U.S. that predate the current administration. Most notably, many have argued that the firebombing of Dresden and Tokyo and the dropping of atomic bombs at Hiroshima and Nagasaki would have been prosecuted, legitimately, as war crimes had we not been victorious; after all, terrorizing the civilian population was the primary objective of those missions.
Further, the use of techniques at least as severe as waterboarding, stress positions, and sleep deprivation has a long history. Indeed, we routinely used treatment that bad or worse against domestic criminal suspects not all that long ago. Some pretty strong interrogation techniques were taught to American intelligence officials for years. Indeed, we taught them to officers from several Latin American countries at Fort Benning’s School of the Americas, earning it some unflattering nicknames.
The thing that has changed is the cultural and media climate. We now discuss our policies much more openly, leading, quite reasonably, to more criticism. But, suffice it to say, Dick Cheney didn’t invent anything new.
UPDATE: Bernard Finel emails with an important point:
[T]here is a difference between ex post and ex ante violations. After the war, we came to believe that bombing civilians was illegitimate, but at the time it was an accepted practice of war. All the combatants did it when they had the ability to do so. Indeed, did we ever try any Germans for the “war crime” of bombing cities? As I understand it, the vast majority of the trials were precisely about the sort of thing we are talking about today — abuse and murder of prisoners. The Nazis also had the concept of “crimes against humanity” thrown at them, and there the argued was one of jus cogens.
But the point is, the accusations against the current administration are not about holding them to standards which did not exist before, nor are they about holding them to various inchoate standards of jus cogens… what we are talking about is the deliberate decision by senior administration officials to violate existing black letter U.S. and international law on the unilateral authority of the president as “commander-in-chief.”
But the administration has operated under the premise, not entirely unreasonable, that terrorists and insurgents and others not operating as members of a uniformed force are subject to different standards. I think they’re right as a matter of the letter and perhaps even the spirit of the law but that they’ve created incredibly bad policies from that starting point.
Finel agrees but retorts, “Unlawful combatants do not get the same right… but there has to be a process to designate them as such, not just a unilateral, unreviewable accusation.” On this, we’re in absolute agreement.
UPDATE: Upon reflection, this isn’t strictly true with, for example, the various Indian Wars the most obvious counter-example. But these weren’t fought in the public sphere in the way more recent wars have been and are therefore in a different category.
UPDATE: A commenter corrects my faulty memory and points out that Dresden was the Brits, not us.
Well, I think we can finally say that the US has lost whatever moral authority it ever had. At least we used to have the illusion. Now, that’s shattered and we seem to be saying that we’re pretty much like everyone else.
Amazing.
Sullivan would perhaps argue that, while we’ve tolerated various war crimes (Calley-style massacres, “accepting surrenders” with machine-gun fire, etc.), there’s a relevant difference in the President and his officers’ ordering war crimes.
However, as JJ notes, the deliberate murder of tens of thousands of noncombatant women, children, and babies via aerial bombing was a matter of high policy, and was certainly worse than torture.
Had you asked anyone — anyone other than a strategic-bombing booster — in 1938 whether what happened to Hamburg, Dresden, Tokyo, Hiroshima, and so many other cities was a war crime and unconscionably wicked, the answer would’ve been “yes, of course.”
Unfortunately, since we were the “good guys” and we were far & away the carpet-bombing champions of WW2 — take THAT, silly Luftwaffe! — we’ve convinced ourselves there was nothing wrong with any of it.
This imaginary state of grace leads us to believe that we can rationalize torture, too. When the United States does it, it’s not a war crime.
Ever heard of Henry Wirz? William Tecumsah Sherman? Philip Sheridan? William Quantrill?
Let me spare others the burden by typing up all of the right-wing talking points in one single comment:
1) The U.S. isn’t torturing anybody.
2) It’s okay to torture because the U.S. has gotten valuble information from it.
3) Stress positions and waterboarding aren’t torture anyway.
4) Only a few bad apples have been torturing.
5) Sure, we might be torturing people, but not as badly as al-Qaeda is torturing people!
6) It’s okay to torture people who aren’t in uniform, no matter how they may have found their way into U.S. custody.
7) Opposing torture is surrending to the terrorists!
8) Don’t forget: the terrorists hate us for our freedoms.
The United States has never fought an extended war against a non-state actor, either.
I’m not sure your statement is in alignment with the facts. What about the Moro rebellion from 1899 or 1902 (there can be honest disagreement as to the start) to 1913? And by the way, you would find that in the course of that war there were several incidents that would make the left’s head spin and explode.
Wow, the liberals have really come out of their spider holes on this one!
What has really changed mostly is that there are many more (and way too many total) bleeding heart liberals today. Total wimps who would surrender to the Islamic terrorists if only informed by them of the correct procedure to do so. Liberals today would rather bury their heads in the sand with their arses in the air and beg for mercy than lift one finger in “preemptive” (as they see the war in Iraq and “tortureâ€) aggression.
Today’s liberals should be ashamed to call themselves Americans. And we can be assured of one thing: if we are attacked while a democrat leads the nation, absolutely nothing at all will be done about it, except for the aforementioned begging and surrendering. Pathetic.
The fact we openly discuss these matters and apply self criticism is evidence we have not lost our moral authority. We are probably conducting this war in a more (perhaps too) moral fashion than any previous war we have fought.
While countries wage war we must also remember the war is fought by individuals and we cannot control every move they make. In the heat of battle mistakes will be made and crimes committed. We should accept that without condoning it.
Perhaps we should list the liberal talking points to add balance to a previous comment.
1) The U.S. tortures whoever it sees fit and has no problem with that.
2) It’s never okay to put anyone in discomfort to gain valuable information.
3) Discomfort can be interpreted many ways.
4) We are a sick society to even discuss this.
5) The Geneva Convention, Bill of Rights, and Emily Post’s rules of etiquette apply to everyone in the world no matter how evil or how much blood they have on their hands.
6) Supporting coercive and/or harsh interrogation methods is surrendering to the terrorists and their goals.
7) We make the terrorists hate us more by showing some backbone and no nonsense attitudes.
I’ve also heard claims that the no-fly zones that the U. S. maintained for 10 years over Iraq were war crimes.
Didn’t the UN embargoes kill 500,000 Iraqi children?
I think that different sides are talking past each other on this subject. In countries that don’t have a common law system (practically the whole world) as a general rule the law is always applicable. The question is how it applies not whether it applies. In countries with a common law system e.g. the U. S., the U. K., the law may or may not apply under specific circumstances.
I think that incidental war crimes are inevitable. I don’t think that systemic war crimes are, however. Had it been left to me I wouldn’t have used coercive interrogation techniques in any form on detainess, particularly on detainees taken in Afghanistan where bounties were paid for turning in Al Qaeda members. I also think that the U. S. should have followed the letter of the Geneva Convention and immediately given each detainee a status hearing.
However, I don’t think that the war crimes case against the Bush Administration is quite as cut and dried as the opponents of the administration believe (basically for the reasons James states in the body of the post).
Yes, quite a change, and not a trivial differemce.
And let’s not lose sight of the fact that what constituted ‘war crimes’ have tended until recent years, to be deicided by the winners of a given conflict. That, too, is a change.
Um, no.
Sorry.
First of all, I’ll repeat this one because nobody has ever given a satisfactory answer: I defy the reader to tell me in what war in this nation’s entire history the Geneva conventions were actually followed at all points by the people we were fighting against. You cannot. They never were. So spare me the morality whining.
Secondly, the non-state actors we’re up against, here by their very definition are not signitories to Geneva, and thereby have no moral right to complain they’re not being protected by it, in my view, nor do they have any moral authority at all in charging war crimes, by that same token. So spare me the morality whining.
Nor I. But I’ll tell you this; Given we’ve now allowed ourselves to credit moral positions to those who have no moral authority, we have gotten ourselves into the situation where CHARGES of ‘war crimes’ however bogus, are inevitable. Such charges will be used by such people as they would any other weapon; against their enemy… US.
I think that incidental war crimes are inevitable. I don’t think that systemic war crimes are, however.
Where does that leave us on Dresden, Tokyo and Hiroshima, then?
If we could have some honesty in admitting our wrongness there, then we could actually begin to figure out what is, and isn’t, a war crime.
As it is, most of the definitions of “terrorism” that I’ve seen would apply neatly to those acts, except that some are clever enough to slip in “non-state actor” … on the theory, I guess, that states can’t be terrorists, or that if we act like terrorists, it’s okay.
There are probably other examples as well of expeditionary campaigns. And, hell, there were the various campaigns now known collectively as “The Indian Wars.” Those conflicts were fought almost entirely off the public radar screen, though.
Bitwise, we have this:
And what is it that follows from the fact that we’ve fought against some pretty shitty people?
That we then have license to act pretty shitty ourselves?
Point of correction – The Dresden firebombing (all the firebombing against Germany were done at night, which was the responsibility of the RAF) was strictly an RAF operation. The Germans to this day are hold Sir Arthur (Bomber) Harris, head of Bomber Command, responsible for the Dresden operation. It has been speculated that Dresden was bombed in retaliation for the Luftwaffe raid on Coventry in 1940. I don’t see how the US could be held responsible for that episode.
With more of our people alive than would ahve been otherwise, for one thing. Victors, for another.
Basic premise:
War is the absense of civility and rules. Civility and morality are only restablsihed once the war has been won. And you’d better be the winner, else your enemy imposes his version of morality. Indeed, that is the very purpose of war… to decide whose morality gets followed.
But when has morality ever been as simple as a mere rulebook?
Bithead, a good argument can be made that Hiroshima and Nagasaki left more of their people alive as well.
James, my inclusion of Sherman and Sheridan was meant to reference the Indian Wars of the nineteenth century, though Sherman earned his chops in the Civil War as well. In fact, I guess we can through in Andrew Jackson and few hundred others if we chose to.
While I’m thinking of it, did the internment of Japanese-Americans during WWII constitute a war crime?
And finally, Christopher Hitchens has a long standing brief against Henry Kissinger as a war criminal.
After the war, we came to believe that bombing civilians was illegitimate, but at the time it was an accepted practice of war.
Then it was surely wrong of us to hold the Nazis at Nuremberg accountable for “wanton destruction of cities, towns, or villages.”
Also, JJ is right and the commenter mistaken — the U.S. participated in the Dresden bombing.
James,
Are you so sure the earlier examples were “entirely of the radar screen” or could it be that there was a different public sentiment they were being assessed by. Another way of putting it is if the offense is new or is the delicate sensibilities in Berkley et al what is new.
Anderson: I could be wrong… but I believe that refers to activities related to the Holocaust and their brutal use of collective reprisals in the various insurgencies they faced.
Bernard: According to my source (Grayling, Among the Dead Cities, p. 232), the quotation is from the portion of the IMT Charter that addresses “War Crimes: namely, violations of the laws or customs of war.”
“Crimes Against Humanity,” which I believe is what you have in mind, is a separate category.
The counterargument is of course that the acts were not “wanton” but “justified by military necessity,” but that has always been a remarkably unconvincing argument. There simply was no military *necessity* that the civilians of Hamburg or Dresden be roasted to cinders.
One could argue that there was some military *advantage* to those & other area bombings, but that is not the same thing, and I don’t believe the laws of war permit the mass killings of civilians merely b/c one could get some advantage. Certainly, no one thought so when the Germans executed 10 or 100 townsfolk for every German soldier killed by a local franc-tireur.
I like how Liberals call “discomfort” of a detainee, “Torture”, diminished what John McCain and his bretheran went through, which was real torture.
Sure the Fed’s and USAF have authorized “discomfort” as a way to psychologicially get someone to break. While either keeping them awake for extended periods of time or having them interrogated by a woman (who’ll hold power over them, which to a devote Muslim like an AlQ is bad).
It’s as if the Liberals are afraid of having prisoners ‘break’ and spill their guts.
Congress has never made Laws for detainees in the 7yrs since 9-11, why not if it was that important to them? Even if it failed and never got to the floor, their intentions would be made clear for everyone to see.
True.
This might not be popular, but I’d estimate the same was true of Dresden. The fact is, those civilians were in large part feeding the German war machine, by populating it’s industry. How many lives do you suppose got saved on BOTH sides, because the war was shortened?
I don’t have a problem with the bombings of Tokyo & Hiroshima, horrible as they were. It was in both countries best interest to bring the war to an end as quickly as possible.
In the case of Dresden, a lot of historians agree that Dresden had little value to the German war effort, and that the fire bombing was done to impress the advancing Soviets by showing them what kind of damage we could do.
I don’t have a problem with the bombings of Tokyo & Hiroshima, horrible as they were. It was in both countries best interest to bring the war to an end as quickly as possible.
That’s a powerful point, and perhaps there is some higher law at work here. Japan’s leaders were utterly contemptuous of the lives of their own people; it appears that the one-two of the atomic bombings pushed Hirohito into daring to play the emperor card (which could well have been fatal or humiliating to him).
Otherwise, we might’ve had to invade, or more sensibly, blockade. Blockade would’ve killed perhaps as many as died in the atomic attacks, targeting the weak, the young, the sick, and the old, plus extending for months the suffering and death of POW’s and civilians under Japanese control.
Still, how’s that line from Orwell’s essay go? Killing your opponents is okay when you can get good results thereby?
What if we’d captured a thousand Japanese schoolchildren and bayoneted them to death, capturing the (Nanking-like) massacre on film, and then shared the pix with the Japanese public in order to show them the fate awaiting the rest of their children?
Suppose that had broken the people’s will, led them to rebel, and ended the war?
Would that have worked under the “in both countries’ best interest” scheme?
If not, then I don’t see how burning them and thousands more up is any better.
If so, then … well, anybody but Bithead going to endorse the “if so”?
I don’t see a blockade as something that was a political possibility at the time. Killing is what war is all about, thats why it should always be the last, last resort.
Course the tough typing, lapel pin patriots might see it differently.
You credit yourself far too much.
No, I wonsider it a last resort as well. The difference is our respective reactions to that boundry being crossed.
For the answer to THAT, we need look no further than Iraq, where behading of a few civilians gave Americans, in the words of Adml Nagumo, a ‘terrible resolve’. It would have strengthened Japan’s will to fight.
Yes. And so are crimes against humanity, take abortion as the fact and crime against humanity that it is, how many human beings have to be put to death before someone our some civilization steps up to put an end to it, man it just blows my mind to see liberals whine about killing, detaining, and interrogating, our enemies who brought war to us their fate upon their own heads, with the blood of millions of innocent children on their hands. Liberals never think about what they support or what their responsible for before they open their murderously hypocritical mouths, cold hearted genocidal bastards.
I don’t see a blockade as something that was a political possibility at the time.
It’s a counterfactual, so we could argue all day, but in August 1945, Americans were pretty g.d. tired of their boys coming home in boxes, esp. from the Pacific.
Truman could’ve gone on the radio and said, “Japan is whipped. Their navy is gone, they’re trapped on their island. Their final hope is to kill as many Americans as possible in an invasion that would dwarf our brave assaults on Iwo Jima and Okinawa.
“But there is no need for a single American boy to fall on a Japanese beach. Our navy is the greatest in the world, and is more than sufficient to fence in the Japanese on their island and starve them into submission. We have already won this war; all that remains is for the Japanese to admit it. If good sense won’t convince them, maybe hunger will. Meanwhile, our army will begin to demobilize — the boys are coming home.”
I have a hard time seeing that as a political non-starter. The morality of blockade is a separate issue, as I’ve noted above. God only knows how many more POW’s and Chinese the Japanese would have killed.
Was that a conversational cliff that just went by?
So, the ‘containment’ argument again.
Trust me when I tell you that even among the Democrats of the day, Truman would have been hounded from office for taking so weak a stance.
And think about this from a historcal perspective…. and one that was recent history to them. One of the reasons we had a WII in Europe was because we never realy crippled their will to fight, though we did manage to cripple them economically. Thus did Hitler rise.
Would Japan have been convinced to have sworn off warfare as they did, absent the two bombs? I don’t think so, and neither did Truman. Come to think on it, neither did MacArthur. Thus has Japan been a good neighbor for many decades.
Oops… correction:
And think about this from a historcal perspective…. and one that was recent history to them. One of the reasons we had a WII in Europe was because we never realy crippled their will to fight, in WWI though we did manage to cripple them economically…
Sorry for the error.
Are you seriously suggesting that Bush exhausted all options short of war with Iraq, and entered into it reluctant, only after all else had failed?
The Bush admin’s stance regarding war with Iraq is and has always been bogus in so many ways that one hardly knows where to start.
GHW Bush may have had his shortcomings, but he handled Saddam/Kuwait brilliantly. He gathered overwhelming diplomatic support and military power. He quickly removed Saddam’s forces from Kuwait and ended his ability to threaten his neighbors. Saddam’s WMD were destroyed. All with a minimum of US casualties and in a manner that greatly enhanced our stature around the world.
Pres. Bush wisely decided not to attempt to reshape Iraq’s political landscape, fearing that the cure might be worse than the disease. (Cheney was very vocal in his support of this decision, BTW). The situation in Iraq was far from good, but it was, from the standpoint of regional stability in the middle east and American national security, under control.
Tell me Bit, what is your reaction to the “boundary being crossed”? If America’s vital security interests are at stake in Iraq, if indeed our very future could be on the line there at Bush has said, why are we dinking around? If war cannot be avoided, and we reluctantly take that awful step, we should go in so strong that the only thing the other guy is thinking about is which direction he should run in.
“Hitting an ant with a sledge hammer” is a phrase I have heard American generals use. Damn straight.
We went in unprepared, with insufficient resources to secure the country once Saddam’s forces had been defeated. Bush was warned about this from many quarters, but heard only what he wanted to hear. By his own standard, Bush’s incompetence has jeopardized our national security.
I’m not suggesting it. I’m stating it flatly.
Well, Bush, and Clinton, and his Father, and Reagan, too.
The left likes to snicker at the picture of Rumsfeld shaking hands with Saddam. What do you suppose was HAPPENING, there, anyway, but trying other, more peaceful methods, than war?
Had it occurred to you we did just that, which is why Saddam was eating Spam in a hole in the ground, and why we’ve not been attacked again. No, I suppsoe not.
At the time of the handshake, we saw Saddam as a useful tool to wield against Iran. We were arming him. It had nothing to do with attempting to avoid war with Iraq, something that was not even in the wind at the time. Your point is nonsensical.
Sure we went in with enough force to defeat Saddam’s rather pitiful military. Did we go in with enough force to secure the country? No. Was securing the country a necessary step on the road to converting it into a democracy, which is supposedly a main reason we went? Yes. Ergo, we went in with insufficient force. Don’t spend too much energy crowing about Saddam’s spider hole. He is dead, yet Bush tells us Iraq is a grave threat to our security. Mission accomplished? I think not.
So we have not suffered another terrorist attack on US soil because we showed our steel in Iraq? Is this really your point? You keep telling us that Iran is suicidal, and that they will happily sacrifice 100 of their own to kill one of ours.
If this is the case, WTF do they care about our displays of military power in Iraq? If they are indeed suicidal, they really do not give a crap. In fact, our power and willingness to use it will actually aid them in making their dreams of suicide a reality…
Actually, it did, if you consider that even to do what you say was going on, would ahve required our establishing a peaceful working relationship with him.
Wait… if they were so pitiful, why would we need them as regards Iraq? Being so bad, they’d not have helped us much. Clearly, somehting a bit deeper going on there.
Hindsight, but I may as well ask; What kind of levels would have been reqired, and where would those levels of manpower have come from?
.
Right enough.. but they haven’t got the manpower. Which of course is why they want nukes. Guess that idea hadn’t occurred to you.
I assume you meant Iran, not Iraq above…
Iraq’s military was pitiful, in 2003, as opposed to our forces. In the 80’s as opposed to Iran’s forces, they certainly had the ability to do great harm to Iran, which in fact, they did. Different decades, different contexts. Put you thinking cap on.
Are you saying we never had the resources to secure Iraq?
And they’ve never been much better. So the question again, why would Rummy need Saddam, other than to establish a relationship, so as to keep a claming hand in the region?
More correctly asked, are YOU saying we had more in reserve to call up? And how many of these by your lights would have gotten the job done to your satisfaction?
The left is at the moment complaining we’re over-committed. Would not that added manpower, assuming we had it, have raised the same complaint, louder?
Oh… forgot…
But, apparently, were still insufficient to win the war. And so again, I ask; why would Saddam in the poket have been a requirement for the US?
Haven’t the manpower to do what? You speak in sentences that are semantic zeros. Iran is a nation of roughly 70 million people. Counting regular forces, Islamic guards and reserves, they have about 900,000 trained troops. Sounds like a fair amount of manpower to me.
While I think Iran’s government is dangerous, misguided and despotic, I do not think the people of Iran are our enemies. In fact, I think that they ought to be, if not our friends, at least folks we can work and deal with.
Please show me something in recent history besides statements by politicians which shows Iran to be “suicidal”. Something concrete, not hyperbole.
Is Iran a nation we need to keep on eye on? Of course. Should we keep our powder dry? Of course. There is an old saying, “speak softly and carry a big stick”. Sounds smart to me. Bush bit off more than he could chew in Iraq. His eagerness to mix it up with Iran, a more formidable adversary, is a clear indicator of his failure as President.
Please show me where I said it was a requirement.
Saddam was a proxy to be used against Iran. Not necessary, but useful. Next door to Iran. Hostile to Iran. Possessing enough power to do serious harm to Iran. In other words, useful. Come on now, this is not all that complicated.
We made a deal with the devil to gain a temporary advantage against Iran. Your boy Rumsfeld was very excited by this deal The problem with dealing with the devil is that you can end up paying for a very, very long time.
If you’re really having that much trouble with the flowing context of a conversation I doubt you can be helped. Come on now, this is not all that complicated.
They were an ally in the region.
Yep. That IS the price of peaceful engagement, I’m afraid, when those you’re trying to engage are less than optimal. But so often now the left has complained when we’ve not done exactly what we tried with Saddam, incuding, ironically, in Iraq… when we had in fact engaged them for what, 20 years? The point of this subthread is to answer your question about how we didn’t give Iraq every chance to avoid war. THe bottom line is, we did. They were given every chance to avoid war, and decided aginst that path, your claims to the contrary not withstanding.
They continue to pursue nukes, and yet by what has been discussed as regards their rocketry, they don’t ahve the means to get the things far enough away to prevent harm to ther own people, or to themseles. I’d say that to be one indication of heir being suicidal, wouldn’t you?
I would call it correct identification of the problem and the solution. It’s a trick that for all his peaceful negotiation, or perhaps because of it, Carter never managed…
The rest of your post is good, but I’m not sure what supports that last statement. Perhaps you mean that the Indian Wars weren’t debated on blogs, but they were certainly well-covered by the press and many of the tactics America engaged in were either lauded or denounced.
Lets say for the sake of argument that they are after nukes. Intel says otherwise, but let forget that for now. We pursued nukes, and we got them. Are we suicidal? As for them “not having the means to get them away” Dude, is this really what goes on in your head? Please tell me you are kidding…
Given the fact that we have unchallenged military superiority, and a demonstrated willingness to use it, I would say that pursuit of nuclear weapons by Iran is a reasonable policy from their point of view. Simply possessing a single nuke, regardless of delivery systems on call, would be a powerful deterrent. You don’t see Bush doing spit about N Korea do you? Wonder why…
To say that we were ever “peacefully engaged” with Iraq is a joke. We are peacefully engaged with Sweden. Iraq was a country we used to an end. Saddam was obviously a butcher. You don’t practice peaceful engagement with people like that. We are paying a very high price now for doing something that seemed expedient at the time
You don’t see Bush doing spit about N Korea do you? Wonder why…
Actually, it’s been this way long before they had nukes. N. Korea can obliterate Seoul with their massive conventional artillery. Now they can use conventional weapons and nukes thanks to the fantastic foresight of the Bush administration.
Wait now, this is really good. So the Iranians are going to get nuclear weapons, but they don’t have much in the way of delivery systems. So they are going to do what, detonate them within their own country? Because they are, you know, suicidal.
Really bit, you give new meaning to the expression, “prattle” Are you taking drugs or something?