Atrocities and the laws of war

Tankwoman has raised an important moral and practical point about war atrocities in her post Define atrocity.

This is a big topic. And the Abu Ghuraib, Guantanamo, Bagram and Haditha cases have all forced the press and the public to some extent to confront the question of war crimes. Sadly, it has illustrated how ill-informed the press and the general public are about the issue.

I don't claim to be a specialist in the laws of war. But it is a subject to which I've paid attention to over a number of years. One reason is that I was very impressed years ago seeing the documentary The Memory of Justice (1976), a film about the Nuremberg war crimes trial. Unfortunately, it does not seem to have been released on either video or DVD.

But it made a strong impression on me about how important it was to have international laws and laws of war. And, as imperfect as the current state of such things are in that regard, if we expect the human race to survive our own technology, we have to stick with it.

When it comes to incidents like Haditha, for me two things are very clear. One is that, if the incident is anything like the main press accounts and what the Marine apparently think happened, people were murdered in a war crime. It deserves to be treated and punished as a war crime - including the kind of due process that the leading Nazi butchers received at Nuremberg.

The fact that Haditha-style murders are a crime is independent of the broader questions of the morality of the war, or whether the war itself was legal (it was not), or whether the war was based on good judgment, or whether the war is being managed competently. And it's not dependent on whether the enemy is observing the laws of war or not. Laws of war and rules of engagement exist for excellent reasons and they have to be enforced.

Secondly, the Iraq War is a counterinsurgency war, which even with the best leadership, creates stresses of a different kind on individual soldiers than is typically seen in conventional warfare. And the breakdown in military discipline - at the Presidential and Defense Secretary level - that allowed the laws prohibiting torture to be ignored maximized the chances for "atrocity-producing situations" to develop.


For better or worse, I still go back to the Second World War as a reference point when it comes to the issue of war crimes. The real war, not the fantasy won that hacks like Victor Davis Hanson invoke to justify whatever war they're pimping for at a given moment.

Tanker raises an excellent point about bombing. This is a particularly complicated issue for international law. At the risk of showing my actual ignorance about the details of the law on this, essentially bombing and shelling cities in the course of war have not been considered war crimes as such. The thinking is that those are legitimate targets.

However, I know that there was one case during the Balkan War in which the international tribunal on war crimes set up for that conflict ruled that bombarding a city in a particular case did constitute a war crime.

The bombing that the United States is doing in Iraq and Afghanistan are problematic in a number of ways. Legally, I just don't know how clear-cut they are. I do know that it is illegal for a country officially recognized as an occupying power to bomb the occupied country. So at least some of the bombing during the period in which the US and Britain were recognized by the UN as legally occupying powers were likely illegal, i.e., war crimes in themselves.

And I believe the US bombing policy is one of the most neglected areas of our military posture in general. Both the morality and effectiveness of bombing needs to be questioned far more carefully than it has been. And a key element of Rummy's military "transformation" goals is to increase reliance on air power. This is sure to result in far more civilian deaths in future wars.

One of the Big Lies of the Pentagon today is the pretence that improved targeting reduces civilian casualties. The actual studies of the results of bombing in more recent wars has shown that the opposite is the case. It wouldn't be much of an exaggeration to say that during the Second World War, American bombers were lucky to hit the right city, much less target individual facilities accurately. The aim is better now. But many of the industrial targets of "strategic" bombing are located in cities. The greater accuracy means that there are a lot more bombs blowing up in urban areas and killing a lot more of the residents.

The Kosovo War, which I supported, was taken by the advocates of the primacy of air power as overwhelming justification. That's one huge reason that, in a similar situation today, I personally can't see how I would support a war of that kind again.

Jeffrey Record discussed this issue in regards to the Kosovo War at some length in Operation Allied Force: Yet Another Wake-Up Call for the Army? Parameters (US Army War College) Winter 1999-2000:

The recent war against Serbia underscores a post-Cold War fact of life that is bad news for the Army: the growing relative attractiveness of air power alone as a vehicle for the very kind of value-driven US military interventions that have dominated the Pentagon's operational agenda since the Soviet Union's disappearance.

America's political leadership has become hyper-averse to incurring American casualties, even among all-volunteer professionals. This is especially true in circumstances not involving clear and present dangers to vital strategic interests. That leadership has accordingly embraced air power more and more, not as a "joint" complement to surface forces, but rather as a substitute for ground power. Thus the emerging predilection for cruise missiles over manned aircraft, and manned aircraft over anything on the ground. Thus President Bill Clinton's reassurances to the American people (and to Slobodan Milosevic) during Operation Allied Force that no US ground combat option to stop Serbia's ethnic cleansing of Kosovo was in the cards.

There are a lot of reasons that criminalizing urban bombing in international law is problematic. It's an established principle of the laws of war that deliberately killing civilians is a crime. But it is considered legitimate to target military industries and even industries that are critical for the civilian economy even if their direct military relevance is tiny. At least since the days of General Sherman in the American Civil War, it's been understood that striking at the enemy's economy is a necessary part of modern war.

It's highly questionable whether the deliberate targeting of water and sewage treatment plants in the Gulf War under Old Man Bush meets the test of legality. But so far as I'm aware, no established international tribunal ever held it to be a crime. And the fact is, as important as those facilities are to civilians, they are also critical for industry generally and so could arguably be a legitimate military target. In all the dotcom hoopla of the 1990s, one rarely if ever heard about the fact that the ability of Silicon Valley to grow was absolutely dependent on the physical capacities of San Jose's sewage treatment facilities. But that was the case.

One further complication of criminalizing bombing gets back to the Cold War and the MAD (mutually assured destruction) nuclear strategy of the US and the USSR which, whatever its drawbacks, did avoid a global nuclear war. MAD assumed that each side would target the others' cities in what was known as a "counter-population" strategy. The alternative strategy would have been a "counter-force" strategy, meaning that only the missile launching facilities of the other side would be targeted.

MAD is the right acronym for this, because it's very much part of the world of the "nuclear Jesuits", to use the late John Kenneth Galbraith's phrase. But the counter-population strategy was considered a more stabilizing strategy, because each side knew that if it launched a first strike, it's own entire economy and probably the entire population would be destroyed.

A counter-force strategy would have been more destabilizing, because if one side thought it could eliminate the other's weapons in a first strike, it would be more tempted to do so.

Back when Reagan was pushing his Star Wars initiative, the historic boondoggle that is with us still, he made a moral argument for it, saying that a missile shield would mean that we wouldn't have to rely on the immoral counter-population strategy. Yet in the mad but practical world of MAD, having one side think it was invulnerable to effective counter-attack from the other side would be more likely to create conditions for a nuclear war than the counter-population strategy in which both sides knew that a nuclear attack on the other would also be a suicide attack for their whole country.

And as Andrew Bacevich describes in his The New American Militarism (2005), today's preventive war doctrine comes directly from the idea of those of the nuclear Jesuits who indeed wanted to position the US to make a first strike and take out the Soviet Union, whose nuclear capability and malign intentions they wildly inflated, just as they did with Iraq's non-existent WMDs. And just as they are doing with Iran right now.

Again, my main points are: war crimes are war crimes and should be treated as such; the Iraq War presents our soldiers with conditions that are very likely to produce war crimes; the laws against murder like that which apparently occurred at Haditha are much more clear than the laws on aerial warfare; and, while it's not impossible to have better laws on bombing cities there are a lot of complications in developing them, even if the current US administration were interested in doing so.

Of course, according to Ethics 101, law is not the same as morality and ethics. But the laws of war do incorporate a great deal of the common ethical heritage of the world. If the laws had been followed in the torture rooms of the Bush Gulag and in Haditha, the US as a whole and the US military in particular would be a whole lot better off today.

In an otherwise excellent article, Losing the Moral Compass: Torture and Guerre Revolutionnaire in the Algerian War Parameters (US Army War College) Summer 2006, Lou Dimarco states:

As the US government debates the merits of harsh interrogation techniques today, it should be careful to not limit the debate to a technical discussion of legal matters. The key questions that should drive American policy are those of operational and strategic effectiveness. Harsh interrogation can provide some valuable tactical and operational intelligence. However, the advantages that such intelligence provides may be totally negated by a plethora of strategic dangers arising from the methods used to gain it. These dangers include effects on military and political cohesion; national and international legitimacy; and, most important, decisive negative effects on the hearts and minds of the population.

I don't want to give a wrong impression of Dimarco's article, which makes unmistakably clear that he is opposed to the use of torture and does a great job of showing its corrosive effects on the French Army in Algeria and its counterproductive nature in that conflict.

But the Bush administration, and a significant portion of our officer corps, it would appear, need much more "technical discussion of legal matters", not least by being held "technically" responsible for violations of the laws of war and rules of engagement. The laws of war are not "technical" in the colloquial sense of frivolous bureacratic rules. My concern with the way Dimarco expresses himself there is that it is urgent, seriously urgent, that the civilian administration and the US officer corps start to respect and enforce the law against torture, murder and other illegal treatment of prisoners.

No matter how important other considerations are in terms of practical effect, no matter how inadequate the laws of war may be in terms of things like aerial warfare, the laws of war that we have need to be enforced. And that issue is separate from the larger issues about the overall legality of the Iraq War and the competency of its conduct.

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