War Crimes: Political & Legal Issues

...But 1945 changed all this, not only because of the Yamashita case—which ended up with the hanging of a general for not having kept himself carefully informed of what his troops were doing—but also because in the Nuremberg trial itself civilian leaders and top military commanders were considered to be responsible for war crimes that were actually committed by lowerechelon officers or soldiers...

...Therefore, to use the word "aggression"—either to characterize Hanoi's or to describe Washington's policy—shows a certain degree of emotional commitment, but it becomes more an insult in political vocabulary than a term of legal and political significance...

...It was, for instance, an accepted fact that when dealing with civilians of any age and of whom one didn't know whether they were really civilians or disguised combatants, security required that one not expose oneself too much, and this might have meant indeed indiscriminate killings...

...One thing seems clear, both from Nuremberg and the Genocide Convention: for this category to be relevant, there has to be a deliberate intent to cause various kinds of harm to a group...

...We can argue, without any difficulty at all, that the kind of war which has been fought in Vietnam necessarily implies this degree of killing...

...Quite apart from the fact that one doesn't replace one's political class very easily (this is slightly marginal), such an attempt could produce a rather violent backlash...

...The second has to do with the people who ought to be deemed responsible or punished for war crimes...

...Shouldn't one go all the way up when it can so easily be established that it is all part of one big sequence of command, with the amount of freedom of interpretation left at each level not being in effect terribly significant—not really making that much of a difference...

...Remember Malraux's epigram: there are two ways of destroying a country, one is physical destruction, and the other consists in forcing it to repudiate its own (freely chosen) leaders...

...One can still ask the political question: is this the best way for a nation to come to terms with its own crimes, or the crimes committed in its name...

...Can one say that these were indeed totally unnecessary, and that therefore there is a clear guilt of whoever was in command that day...

...It was already much more difficult to apply this notion to the Japanese...

...Battlefield crimes are essentially deliberate acts, individual violations traceable to specific persons who chose to exceed those legal and moral limits that ought to be observed even in modern war...

...One can still argue about the more or the less...

...In other words, isn't it indeed unfair to limit the repression to the Calleys and the Medinas...

...These acts result not from individual outrages, but from collective decisions...

...But the Vietnam problem is quite different...

...This category is quite separate from that of battlefield crimes committed directly by the military in command and, indirectly, by the military superiors who have condoned them...

...But there is another category of acts, which are either also illegal (like massive transfers of population or free-fire zones) or in a kind of legal no-man's-land (like the bombing of military targets on such a scale that huge civilian casualties are unavoidable...

...WHAT DOES THE LAW, and particularly international law, understand under the very general and sometimes loosely used heading of "war crimes...

...This is why, insofar as the second category is concerned, when it comes to the political leadership and top military command, the best thing one can do is to retire them rather than to purge them...

...If one uses the word "genocide" loosely to mean any wholesale killing of a civilian population on a scale that exceeds war, crimes the old Hague and Geneva Conventions deal with, then, maybe, one can talk of genocide...

...THIS BEING SAID, when we are dealing with the question of what to do about war crimes in a situation like that in Vietnam, we are faced with two extremely difficult problems, even if we start from the assumption or the conviction that there should be regulations and punishment...

...It was easy to charge Nazi Germany with aggression...

...But there is something even more scapegoat-ish in assuming that the responsibility lies only with the President, the Secretary of State, and so on...

...then we didn't need a definition of aggression...

...Now having talked about complexities, dilemmas, and distinctions, I would like to end up with something which is in my opinion much simpler: the case of Lieutenant Calley...

...There are as many opinions about it as there are lawyers, political scientists, COMMENTS AND OPINIONS and politicians...

...Of course, there is the precedent of Nuremberg and Tokyo, but don't forget that these were the winners teaching a lesson to the defeated...

...Therefore, the kind of absolutist argument according to which the regulation of the means of war and of the treatment of the victims of war somehow legitimizes war is not only irrelevant but in many ways malicious in its effects, if not in its intentions...

...Let us even assume something very hard to imagine, that in a kind of national overhaul or through an impeachment resolution voted by Congress (I have read one recently being prepared by some distinguished lawyers) the Commander in Chief and the Secretary of State and the Secretary of Defense and the Special Assistant, and in fact the whole establishment are brought to court...

...We—or the State Department— can produce a marvelous brief showing that the United States went to Vietnam to fight North Vietnamese aggression...

...There are all kinds of political and ethical reasons for this...

...The other kinds of acts—which can of course be seen as decisions for injury and pain—are, however, essentially failures to observe strategic self-restraint, all-too-easy capitulations to the mad momentum of technology, or to the "psycho-logic" of counter insurgency...

...It's the following problem: can one really distinguish between what is militarily "required" by the daily military operations, and the commission of war crimes like My Lai or like the dropping of bombs from an overloaded helicopter on obviously peaceful peasants...

...But then they come back to their judges or else their defenders in the press come back to us and say, "Yes, but they interpreted orders in a certain way because they knew that this was part of the accepted policy...

...In the abstract, the counterargument, made for the last 40 years, claims that, since war itself is a crime and indeed the supreme crime, there is no point in regulating and repressing war crimes...

...Here we have to balance some very real values...

...The Nuremberg trial recognized it under the name of "crimes against humanity" within certain limits, and the Genocide Convention (though not always most clearly) defined it in various ways...

...COMMENTS AND OPINIONS This is an interesting, modern, and valid argument, but it brings one really up to the higher level of politics: what is the best way of preventing something like this...

...I think that neither the argument that the man should be set free because war is evil anyhow and he didn't do anything worse than anybody else, nor the argument that since everybody involved in the Vietnam war is criminal there is no reason to make him bear the guilt, is valid at all...

...Under the charter of the International Military Tribunal after World War II, three categories can be distinguished...

...In that sense, one can argue that this kind of a war or perhaps all modern war in its technological dimensions leads inevitably to war crimes, and that in effect one has only the choice between abstaining from war altogether (which would have some rather drastic political consequences...

...If you are dealing with a war like the Vietnamese or Algerian wars, almost by definition the attempt to control an uncertain civilian population will involve not only violations of the rules on the means of war, but, even more, violations of the provisions that are supposed to protect the civilians...

...There is no reason for the average citizen to feel responsible for the first kinds of crimes (except insofar as any man feels responsible, so to speak, for Cain...

...Because of the weapons used in modern war, if you are dealing with a largescale conventional war of the Korean kind— and the Korean war after all was smaller than World War II—there will be massive violations of all kinds of legal regulations on means...

...These are failures of policy, committed on a large scale in both World Wars...

...Now there are times when it is unwise to force a nation to wallow in shame and guilt, and preferable—as well as factually justified—to purge leaders even if some may think of these as scapegoats: I refer to liberated France...

...What lesson the defeated would have learned from it except that they should never lose a war again, I don't know...

...One can always establish that the Calleys of this world did what they should not have done, that they had—as indeed I think they had—a certain freedom to interpret orders, or to understand what was said to them...

...But, it seems to me, if one wants to apply the language, which is loose enough, of the Genocide Convention, the notion of intention becomes troublesome...

...But in the case of Vietnam, all of the elements for an objective definition of aggression— if there is such a thing—are really missing, because everything depends on the interpretation of previous agreements and of the political situation that developed in Saigon after the Geneva agreements, especially between 1954 and 1959...

...I am convinced that there is a point to be made for the regulation of the means of war and for the protection of the victims of war...

...But for the higher levels of responsibility, I think that the discussion has to be much more on broad ethical and philosophical grounds and on political means of redress, and much less around charges of criminality...

...This is not a new category...

...but to say that this was the intention of the U.S...

...On the other hand, to the extent to which one is really dealing with very troubling and burning political issues, I do not think that to discuss them from the angle of war crimes is the most useful way of dealing with them...

...Or aren't wars of that sort almost necessarily going to lead to war crimes, almost by their essence, because of the obliteration of any clear distinction between combatants and noncombatants...

...Recently, in the discussions of Vietnam (and it is Vietnam that we are here most interested in) those three categories have been somewhat lumped together...

...It would be acceptable only in an ideal world in which, since war is universally recognized as the su COMMENTS AND 'OPINIONS preme crime, there are political, judicial, and penal ways of preventing it (which is to some extent what the charter of the UN was trying to get to...

...And when one retires them, it is necessary, for the lawyers, moralists, and politicians who argue for this and who very often, alas, use very loose language, to be and to make clear that it is not only the fault of those political or army leaders, and that the public has to be made aware of its own responsibilities...

...The third category, also a direct result of World War II, is the crime of genocide...

...One could argue that battlefield crimes—although they can also be seen as a collapse of individual self-restraint— are nevertheless essentially choices for evil...

...Even if we leave aside aggression and genocide, there are still two different ways of going after war crimes...

...And many of the people who have tried to define aggression since then had in mind what the Nazis did: the deliberate, unprovoked invasion of other countries...

...Under this precedent there is indeed no legal reason to stop at those lower levels...

...The crime of aggressive war is essentially one committed by leaders who plot a war of aggression...

...BUT THERE STILL ARE QUESTIONS that are moral and political: should one pursue people who are guilty of war crimes, and how far should one go...

...Here we come back to the complicated debate between Paul Weiss and Telford Taylor...

...Out of precedents, and in particular out of the Nuremberg and Tokyo precedents, arises the question of who should be made responsible for those particular crimes...

...Whether one is dealing in this instance with localized events like My Lai, which are easily identified, or with the massive killing which is really the sum total of all of the My Lais, we are faced here much more with a political than with a legal issue...

...IT SEEMS to me that a possible—although debatable— answer to the two questions I have just raised is as follows: it might be a better part of wisdom, although legally it is not terribly clear-cut, to say that when it comes to battlefield crimes, there ought to be a criminal sanction of the guilty parties, and of those commanders of whom one can show that they gave orders that were criminal, or failed to prevent or sanction crimes of which they were not unaware...

...But if one is concerned with things like a nation's own sense of self-respect, or its sense of honor, or the kinds of values our officials always tell us we have to think about—credibility, reliability, etc.—we have to put in balance on the one hand the fact that to tolerate war crimes on a large scale, to close one's eyes, to say, "Well, after all, one can't go all the way up to the President," is not terribly honorable, and on the other hand, the fact that plunging into an orgy of guilt, into large-scale retrospective vendettas, and bringing one's whole political leadership to trial has a few drawbacks too...

...As for genocide, this category has been used profusely in the literature and by many of the opponents of the war...

...To be sure, such grand failures can be seen as encouraging, almost as authorizing smaller, localized atrocities...

...If they learned the lesson not to start a war again, it would at least be something...

...The first problem is posed in almost every modern war, and especially in wars of counterguerrilla activity, antisubversion, pacification, etc...

...On the one hand, there is a certain passion for justice that may exist in many quarters and a desire to establish examples of the most rigorous kind...

...Whether one is dealing with My Lai or with almost everyday military operations, the use and misuse of weapons, and the needless killing of civilians, for instance in so-called free-fire zones, are very much part of the war itself...

...It is based on the various limitations on the aggressive use of force which the League of Nations and the UN charters have consecrated...

...I don't want to go into that particular thicket...

...So we are faced essentially with the traditional category of war crimes...

...This is the first problem...

...they have to do, politically, with the need to preserve whatever moderation can be preserved, even in war, and, ethically, with the preservation of as many lives as possible and with the maintenance of the thin and ever-necessary margin between what may be inevitable and what is intolerable...

...we can also produce an equally magnificent brief to show that the United States has committed aggression in Vietnam...

...But there are reasons why citizens, especially in democratic countries, should feel responsible for allowing their leaders to let the imperative of victory, or the excuse of military necessity, override all other considerations...

...or committing more or less war crimes on a massive scale...

...government, or of the military commanders, would be hard to prove in any court...

...On the other hand, we have to ask ourselves whether the best way of teaching one's own nation a lesson is that particular way...

...The first and most traditional is the category properly called "war crimes...

...Then there is the question of the crime of war, of aggression...

...The fact is that there are regulations about behavior on the battlefield...

...There is no doubt that there have been war crimes in the traditional sense, and a number of books and articles list them in horrifying detail...

...What kinds of crimes have been committed in Vietnam...

...Newer indeed is the second category created by the charter, which covers the crime of war itself or the crime of aggression...

...There is a great deal to be said for the repression of war crimes by the country whose own soldiers or high officials are responsible for them...

...Again, it all depends on one's own definition...

...But one has only to look at the world as it is to find that war—declared, undeclared, international, civil, conventional, revolutionary, subliminal, what have you—is still the order of the day...

...This, in some ways, is a meaningless debate...

...But the latter, alas, existed long before COMMENTS AND OPINIONS modem war and will probably persist even if leaders made a successful effort in their policies and strategies to define and apply a modern equivalent of the Just War doctrine...

...The traditional pre-1945 way is essentially to go after the people who were directy in command—the Calleys of this world, perhaps the Medinas, but certainly not the Westmorelands...

...This argument I find totally foolish for all kinds of reasons...

...The fact is that there are provisions that make it possible (to use an understatement) not to carry out obviously illegal orders (if such were the orders he had received...

...It covers battlefield crimes committed either by using weapons that shouldn't be used or shouldn't be used in a certain way, and crimes committed against the civilian population...

...Everybody has his own version, and, in this context, not only is there no consensus, either on the Geneva agreements or on what went on afterwards, but there has been no way of establishing an international authority that could produce an authoritative determination of those facts or of the legal status of Vietnam...

...I am sorry to say that one of the best discussions I have seen was in Time magazine, of all places...

...And the fact is that there seems to have been sufficient ambiguity about the orders he got to create a zone of personal responsibility for him, which he cannot escape, whatever the larger aspects of the whole problem...

...one can make a case for "less" being better than "more," but it will be inevitably a somewhat artificial and delicate distinction...

...There is already a slightly scapegoat-ish quality in the Calley affair, to which I would like to come back in a minute...

...When they come back to us with this argument, doesn't it point to the responsibility of their superiors all the way up to the President, especially when it is well-known that the President is a man who, since he doesn't need to sleep very much, spends his nights poring over field reports and giving detailed instructions and checking the bombers and keeping himself informed...

...Moreover, on the whole, legal purges have one enormous drawback even from a moral viewpoint: they provide one with easy scapegoats...

...This angle is still useful and necessary insofar as one tries to restrict as much as possible the damage done on the battlefield itself, with all the reservations I've mentioned earlier about the difficulty of doing so in modern war...