Moral Issues in War: A Systematic Analysis
In the last chapter I argued that if the Just War Tradition and the laws that formalize parts of it are going to ameliorate the tragedy of war, there will have to be an increased emphasis on promulgating the prescriptions and prohibitions contained in these laws.
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In this section, I will argue that the rules, as written, afford so many opportunities for mitigation and extenuation after crimes are committed that they can make the distribution of fair and equitable punishment for transgressions seem capricious.
Additionally, even if all soldiers obeyed all the rules of war as they are presently recognized in international law, either because they identified with them (the internal point of view) or because of the fear of sanctions (the external point of view), there would still be serious difficulties with what the rules prescribe and permit. A brief sampling of actual cases from the last century points to the inefficacy of sanctions for war crimes and highlights the extent of the problems with enforcement.
In 1901, following the Philippine War, Lieutenant Preston Brown was found guilty of willfully murdering an unarmed prisoner of war. His sentence was forfeiture of one-half month’s pay per month for nine months. Brigadier General Jacob Smith was tried in 1902 and found guilty of ordering his subordinates to “take no prisoners” and to kill all persons over ten years old in an attack on the Island of Samar. His punishment was an official admonition. During the same year, Major Edward Glenn was convicted of having tortured a POW and was fined fifty dollars.
At the close of World War I, the Allies were unsuccessful in their attempts to bring to trial 896 Germans who were alleged to be war criminals. German officials insisted that Germany conduct its own trials, but ended up prosecuting only twelve of the 896. Of these, six were convicted. Major Benno Crusius was found guilty of ordering the murder of wounded POWS and was sentenced to imprisonment for two years. The stiffest penalties were given to two German submarine officers who sank a British troop ship and ordered their crew to the surface to machine-gun the helpless survivors. They were sentenced to four years each but was soon allowed to escape.
The high-water mark for accountability for war crimes came following World War II. The International Military Tribunals established by the Allied Powers at Nuremberg and in the Far East were the first (and last) international courts formed to try war criminals. But seemingly, the Nuremberg and associated trials conducted in the aftermath of World War II were an anomaly, brought on perhaps by the stark-naked predation and undisguised evil of the Nazi regime.
Read: The Responsibility for War Crimes: Who Is To Blame?
After this flood of prosecutions, the enthusiasm for trying war criminals dried up. This has given rise to charges of “victor’s justice” and ex post facto laws in referring to the post-World War II trials.
During the Korean War General, Douglas MacArthur established a war crimes commission that conducted extensive investigations and compiled detailed evidence on war crimes committed by North Korean and Chinese soldiers. An interim report issued by the Korea War Crimes Division of the Judge Advocate General’s office in June 1953 listed numerous cases that were ready for referral to an international tribunal.
Records of atrocities some involving the torture and subsequent murder of thousands of prisoners-included pictures, statements by witnesses, and signed confessions. Nevertheless, no trials were ever held.
Only a few members of the U.N. forces were tried for war crimes. In one case, U. S. v. Kinder, a soldier was tried and convicted of executing a Korean prisoner despite his claim that he was directly ordered to do so by his commanding officer. He was sentenced to life, but the convening officer reduced this to two years.
During the Vietnam War, the attempted cover-up of the illegal. Immoral, unnecessary, cowardly, counterproductive, and profoundly stupid atrocities of My Lai, and the farcical, token admonishments meted out to the guilty parties by the U.S. Army, are often cited as evidence for the sterility of the laws of war. Lieutenant William Calley, a platoon leader at My Lai, was tried and convicted of the premeditated murder of numerous Vietnamese civilians.
He served a total of five years on house arrest where he was allowed various amenities, including frequent unsupervised visits with his girlfriend. Of the other two dozen individuals charged in the incident, five were tried and acquitted and charges were dropped on the remainder (although some had their awards for valor rescinded and/or received administrative reprimands).
In a more recent case, members of the Iraqi army, while occupying cities in Kuwait, pillaged, raped, tortured, and murdered Innocent noncombatant Kuwaiti citizens. Additionally, before- drawing from Kuwaiti territory, Iraqi soldiers opened oil wells along and ignited hundreds of oil wells inland in a gesture of malicious the coast to foul Saudi Arabian water-treatment facilities destruction aimed at polluting the atmosphere, contaminating the soil, and destroying the oil.
It is almost certain that these intentional, vengeful attacks against both Kuwaiti oil and regional ecosystems were personally ordered by Saddam Hussein, and it is likely that he personally approved at least some of the atrocities carried out against the citizens of Kuwait as well-certainly he knew of them, and his inaction constituted tacit approval. Nevertheless, there was no international initiative to hold Saddam Hussein or any members of his armed forces culpable for these crimes.
In this section, we will explore (1) why the United States has not been more vigorous in its enforcement of the jus in Bello rules, and (2) those factors in the way the laws are formulated that impede consistent enforcement. I believe that these issues must be addressed in some satisfactory way if the Just War Tradition and the laws of war are going to be a viable force in future conflicts.
We will approach these problems from two related perspectives. The first concerns how the military virtue of following orders or obedience can interfere with determining the culpability for war crimes after they are committed; this will be the topic of Chapter 8.
The second perspective concerns certain caveats built into the laws of war-military necessity and reprisals-that permit overriding the humanitarian principles of jus in Bello for the sake of military objectives. These will be the subjects of Chapters 9 and 10. In Chapter 11 we will shift our focus somewhat and explore how our previous discussions of the Just War Tradition help us to understand special problems associated with the use of nuclear, biological, and chemical weapons.