A. C. Grayling
(Walker & Co., 2006), 384 pp., $25.95.
Arguing About War
(Yale University Press, 2004), 224 pp., $25.
Here are some of the people who in recent years have been accused of war crimes: Saddam Hussein, Slobodan Milosevic, Osama bin Laden, George W. Bush, Tony Blair, Ronald Reagan, Bill Clinton, Kim Il Sung, Kurt Waldheim, Ariel Sharon, Yasir Arafat, Franklin Roosevelt, Winston Churchill, Pol Pot, Abraham Lincoln, Muammar Qaddafi, Norman Schwarzkopf, Fidel Castro, Henry V, all abortion providers, and the entire citizenries of Japan and Israel.
Henry Kissinger attracts particular attention. In 2001, Christopher Hitchens wrote a whole book, The Trial of Henry Kissinger, demanding his indictment for Nixon-era policies in Indochina and other global trouble-spots. A year later the BBC produced a documentary based on Hitchens’ book. Several websites also form part of what William Safire has called the “hate-Henry industry.” And when President Bush proposed Kissinger as the chairman of the 9/11 Commission, Molly Ivins expressed the reaction of many: “Good grief. I turn my back for ten minutes and they bring back the old war criminal.”
We’ve been here before. In 1944, while World War II was still raging, George Orwell wrote that the word “fascist” had become meaningless. “If you examine the press you will find that there is almost no set of people—certainly no political party or organized body of any kind—which has not been denounced as fascist during the past ten years.” The term, Orwell said, had been reduced to a swear word, lacking content. Just about the same thing can be said today of “war criminal.” Indeed, this little phrase seems to have replaced “fascist” as the favorite epithet hurled at the powerful by the powerless, or those out of power, or those who want power, but with one important difference. “Fascist”, except where it applied to the Axis countries and local blackshirts, was a weapon in a homegrown war of words and as such amounted to little more than a rhetorical cudgel. “War criminal” is that too, but also potentially much more, for these days accusations of war crimes can have real-world consequences; a large and growing international apparatus exists to bring war criminals to justice. Hitchens wasn’t kidding or speaking in literary metaphor when he said he wanted to see Kissinger standing in the dock as Hermann Goering once did.
It has taken a long time for the muddied legacy of the Nuremberg trials to make itself felt, but we all live now in its shadow. In 1993, the United Nations Security Council established a tribunal in The Hague to deal with war crimes in the former Yugoslavia, and a year later followed with a tribunal in Arusha for the Rwandan genocide. These were the first international criminal courts since Nuremberg, and they spurred the creation of the International Criminal Court (ICC), which began operations in 2002 and handed down its first warrants in October 2005. Hundreds of nongovernmental human rights organizations were involved in shaping the ICC, and they constitute a standing lobby for the prosecution of war criminals.
Several countries have even revived the principle of universal jurisdiction from the days of piracy on the high seas, permitting the courts of one nation to try the citizens of another for crimes that took place far away. In 1998, a Spanish judge attempted to extradite former Chilean dictator Augusto Pinochet for acts of torture committed in Chile during his rule. Belgian courts have issued charges against the first President Bush, Dick Cheney and Colin Powell for decisions taken during the Gulf War. In 2004, lawyers for the Center for Constitutional Rights, a nonprofit legal organization, shopped around before filing war crimes complaints in Germany (which, they concluded, “had an extremely good war crimes law”) against Donald Rumsfeld, George Tenet, Alberto Gonzales and eight other Americans.
Pinochet avoided extradition, the Belgian courts backed down under pressure from the United States, and the charges in Germany were dismissed. But more lawsuits, indictments and prosecutions are undoubtedly on the way, especially now that the ICC is up and running. The United States has refused to ratify the treaty establishing the court, but whether we like it or not, war crimes trials have become part of our lives; we are obliged to pay attention. So what exactly are we talking about when we talk about war crimes?
One thing is clear: many accusations of war crimes are not about atrocities as such, but about the unintended consequences of broader policies. If the present war in Iraq is viewed as unjust, for example, it’s but a small step to the conclusion that any deaths resulting from the war are unjust as well, and are therefore crimes, particularly if the victims are civilians. For those Arabs (and others) who don’t accept Israel’s right to exist, defensive measures by Israel are inherently illegitimate, and any Palestinian blood spilled constitutes a crime. Because Hitchens opposed the Vietnam War, it was natural for him to blur the distinction between intentional and unintentional deaths. Even after acknowledging that Kissinger wanted to avoid civilian casualties during the bombing of Cambodia, he presses the attack: “This does no more in itself than demonstrate that Kissinger was aware of the possibility of civilian deaths. If he knew enough to know of their likelihood, and was director of the policy that inflicted them, and neither enforced any actual precautions nor reprimanded any violators, then the case against him is legally and morally complete.”
Not so fast. The innocent die whenever large-scale fighting erupts, no matter what precautions are taken. Modern weapons may be “smart”, but “collateral damage” remains an unavoidable part of warfare, including warfare conducted for justifiable purposes. A passage from Dostoyevsky is relevant here. In The Brothers Karamazov, the cynical Ivan says to his brother Alyosha:
Imagine that you yourself are building the edifice of human destiny with the object of making people happy in the finale, of giving them peace and rest at last, but for that you must inevitably and unavoidably torture just one tiny creature . . . and raise your edifice on the foundation of her unrequited tears—would you agree to be the architect on such conditions?
“No, I would not agree”, the saintly Alyosha softly replies. But politicians are not Alyoshas. When they decide to go to war, they know, if they are honest with themselves, that some number of innocent men, women and children are going to be shot, bombed, incinerated, asphyxiated, crippled, mutilated and driven mad—and the result won’t be an edifice of eternal peace. If the unintended deaths of innocents are a war crime, then war itself is a war crime.
But what if the deaths are intentional? What if civilians are deliberately targeted in war? Surely here is a line that should never be crossed. Yet it has been crossed—even by the good guys—and conceivably it could be crossed again. In Among the Dead Cities the British philosopher A. C. Grayling asks whether the Allied bombing of German and Japanese cities during World War II should, in retrospect, be considered a crime. Certainly millions of Germans and Japanese think so. Grayling looks closely at the background and history of the attacks, at the experiences of the bombers and the bombed, at the arguments for and against, at the damages and the consequences. His is an informed, clarifying discussion of an ugly page in British and American history.
Grayling describes a steady escalation in hostilities, an escalation that was at the same time a descent into savagery culminating in the atomic bombing of Hiroshima and Nagasaki. When the war began in Europe in 1939, the British government issued strict orders to the RAF to avoid civilian targets. Franklin Roosevelt urged a similar policy for all potential combatants, and at first bombing by both sides was restrained. But in May 1940 the German Luftwaffe devastated Rotterdam, and in August began its assault on London. The British retaliated against Berlin, though they still tried to limit themselves to military targets. That changed after Coventry was bombed in November in what Grayling calls “the largest and most intense air raid of the war to that point.” He describes the psychological impact on the British as enormous, and notes that from that moment onward, the RAF began targeting German civilians. Area bombing, as it was euphemistically labelled, did not become practical until 1942, but in March of that year the RAF destroyed Lubeck, then Cologne in May, Hamburg in July 1943 (where a horrendous firestorm took at least 45,000 lives) and then, in February 1945, Dresden.
The last heavy bombing of Germany occurred in March and April 1945, but in Japan the American raids were just getting started. More than 85,000 died in the March bombing of Tokyo, which was followed by crippling attacks on 66 other relatively defenseless Japanese cities. In August, the two atomic bombs killed about 100,000 people between them. Altogether, Grayling estimates, about 800,000 German and Japanese civilians died from Allied bombs.
Grayling maintains that these deaths are in fact crimes (though moral, not legal ones, since there was then no law as such to be violated). At the risk of oversimplifying a complex argument, one can break down Grayling’s indictment into two components: one practical, the other ethical.
His practical argument is that area bombing was meant to disrupt the German war effort and weaken morale, but achieved neither of these goals. “Almost every authority on the subject”, Grayling writes, “agrees that it was . . . a failure in military terms.” German armaments production actually increased during the years of the bombing: Aircraft construction tripled between 1941 and 1944, and the figures for rifles, grenades and artillery are similar. Nor did German morale collapse. Joseph Goebbels was applauded as he walked through Berlin at the height of the RAF attacks. “The Berliners were angered by the bombing, and welcomed the speeches in which he spoke of revenge”, Grayling says. He concludes that the RAF would have been better advised, morally and strategically, to concentrate on military and industrial targets, not civilians.
The practical argument is hardly open and shut, however. The bombing did divert German resources from the war effort (even if not to the extent that the British had hoped), and while it did not decrease German war production, it probably suppressed it. A strong Germany was prevented from becoming an even stronger Germany. As for morale, Grayling suggests that, toward the close of the war when the Germans’ world was crashing down around them, the bombing had at least some effect on their declining spirits and may, to that degree, have hastened the war’s end. And this is not to mention the impact of the bombing on British morale, which was lifted considerably by the raids despite terrible losses to the RAF. Russians were also heartened by the destruction of German cities. So, too, according to the historian Istvan Deak, were the populations of the occupied countries. These were not insignificant benefits.
Still, such facts and figures don’t matter so much as what the Allied leaders thought at the time, and it is clear that they genuinely believed the raids were weakening Germany, shortening the war and saving British and American lives. Bombing civilians made strategic sense to them. Churchill said as much. Indeed, how else could the British have asked their pilots (highly trained technicians who were a valuable military asset) to take such huge risks, to make such tremendous sacrifices? As Grayling tells us, Sir Arthur Harris, the commander of the RAF’s bombing operations, cared deeply about the welfare of his men and knew that each day he was sending some of them off to die.
In the end, it is not after-the-fact statistics on war production that determine the question of war crimes, but straightforward moral considerations. Is it ever legitimate to target innocent civilians?
Grayling seems to answer “no”—seems to, that is, because by insisting that the Allied attacks had little or no effect and by claiming that precision bombing against military targets would have accomplished what area bombing sought to accomplish, he never has to tell us what his position would be if he really believed killing German civilians could have shortened the war. Instead, he allows a whiff of ethical dogmatism to seep into his argument, as when he declares that “the conductors of area bombing knew . . . that the very act of targeting civilians was wrong.” In a similar vein he writes:
It can certainly be granted that the overwhelming aim was to defeat the Axis powers, and it is surely right that it would have been an act of immorality not to strive fully and effectively to achieve that goal. But it is wrong to use this to justify indiscriminate bombing of towns and cities, for the familiar reason that ends do not automatically justify means.
Not automatically, perhaps, but when the end sought is the total and utter defeat of Nazi Germany, an extraordinary range of means can indeed be justified.
Universality and Proportionality
Grayling is murkiest in his ethical discussion; at times he seems to be saying that the reason it is wrong to bomb civilians is that it is wrong. A writer who offers a richer, more intricate treatment is Michael Walzer. His Just and Unjust Wars is rightly considered a modern classic, necessary for anyone seeking to develop an informed opinion not only about war crimes but about the “practical morality” of warfare itself. Walzer has also recently published Arguing About War, a fine collection of essays that supplements his earlier book.
Walzer is more nuanced than Grayling. His view is that it was legitimate for Britain to bomb German cities during the war’s first years, when it was fighting the Nazi threat alone and faced the very real possibility of defeat. “Here”, he says, “was a supreme emergency”, and supreme emergencies can trump morality as we normally understand it. But the Allied raids reached their height after the emergency had passed, and these, he writes, were “certainly not defensible. . . . The triumph of Nazism was no longer an imminent danger.” Walzer evokes the principle of universal human rights. Outside of extreme situations, all people are equal, he insists, and equally deserving of protection. It is not enough to say the bombing saved Allied lives. “The deliberate slaughter of innocent men and women cannot be justified simply because it saves the lives of other men and women.” Fine Jeffersonian sentiments, these, caring and humane. Yet how realistic are they?
Walzer’s notion of universal rights leads him to argue that soldiers should risk their own lives to safeguard the lives of enemy civilians, because “a moral person will accept risk, will even accept death, rather than kill the innocent.” But soldiers can’t always know who the innocent are. As the unidentified car comes barreling down a Baghdad street toward an American checkpoint, the sentry has a split second to decide whether the driver innocently missed the warning signs or is a suicide bomber. He is unlikely to “accept death.” He is going to fire (and if he doesn’t and the bomb goes off, his surviving comrades are going to fire that much sooner the next time).
Or consider an officer who is about to take his men into battle. He believes in universal rights and so, using Walzer’s words, he tells them: “If saving civilian lives means risking soldiers’ lives, the risk must be accepted.” One may reasonably wonder if such an officer will ever return from his mission, or instead be fragged by his own men at the first opportunity.
It’s not only those in the field who may find Walzer’s admonitions irrelevant to their actual situations. Hiroshima and Nagasaki present the starkest examples of innocent civilians being deliberately sacrificed to the demands of war. Both Grayling and Walzer, needless to say, oppose these uses of nuclear weapons: Grayling because he believes the Americans should have offered the Japanese a demonstration; Walzer because he feels the insistence on unconditional surrender was too punitive and, ultimately, counterproductive. There has been an enormous amount of scholarship devoted to these and other matters surrounding Truman’s decision to annihilate Hiroshima. Suffice it to say that many experts maintain that Truman’s choices came down to the bomb or a blood-drenched invasion of Japan. (It might be added that Grayling’s and Walzer’s arguments look like red herrings: They would no doubt have opposed using the bomb even if their conditions had been met.)
After the war, Henry Stimson, the United States Secretary of War, said fighting on would have resulted in a million American casualties. This figure has been generally dismissed. Truman himself estimated half a million lives. Some critics have since claimed an invasion would have cost “only” 25,000 to 50,000 American lives. No one really knows, but let us accept the low figure and imagine that Truman had acted on Walzer’s principle that “there is no right to commit crimes in order to shorten a war.” Now let us imagine that postwar congressional hearings determined that Truman could have saved 25,000 American lives by using a deadly efficient new weapon, but had refused to do so out of concern for Japanese lives. He would have been impeached, and rightly so.
In truth, there are no conclusive answers to questions like these. How many Japanese deaths would be morally acceptable to save how many American lives? Calculation is not only impossible but pointless in these circumstances. Reasonable people will inevitably differ. This issue of proportionality always arises in debates over war crimes. Grayling claims it is central to his argument but then, with his absolutist inclinations, he goes on to say that “massive bombing of civilian targets by any standard is disproportionate.” The more subtle Walzer understands the problem. In Arguing About War, he writes: “We want political and military leaders to worry about costs and benefits. But they have to worry; they can’t calculate, for the values at stake are not commensurate.” Speaking of the first President Bush’s decision to fight for Kuwait, he asks: “How do we measure the value of a country’s independence against the value of the lives that might be lost in defending it?” (We can be sure there are strategists in the bowels of the Pentagon and State Department struggling at this very moment to calculate how many civilian lives would be lost if the United States or Israel bombed Iran’s known uranium-enrichment facilities, and whether the benefits would outweigh the costs.)
Yet the rising demand that political leaders be tried as war criminals because of their policy decisions is a demand for courts to assess proportionality, to measure ends and means, to define when force is “excessive”, and to calculate the incalculable. How could any court reasonably be asked to do such a thing? Yet this impossible task is one legacy of Nuremberg, and before attempting to say what, finally, we are talking about when we talk about war crimes, we should look more closely at it.
The Legacy of Nuremberg
In popular memory, the Nuremberg trials are a triumph of justice, and not only in popular memory: Grayling says he relies on “Nuremberg Principles”; Walzer calls trials like those at Nuremberg “defensible and necessary”; in making his case against Kissinger, Hitchens reminds his readers of “the Nuremberg precedent.” But celebrating the precedents and principles of Nuremberg requires more than remembering. It requires some forgetting, too.
One fact that must be neglected is how problematic the trials were at the time. Many responsible, thoughtful people opposed the whole idea as “victors’ justice”—that is, not justice at all but a mockery of it. George Kennan proposed summary executions of the German leaders. Secretary of State Cordell Hull said, “I would shoot them before dawn.” The most notable opponent, until he was pressured by President Roosevelt into going along, was Winston Churchill. He thought the fifty or one hundred top Nazis should be “shot to death within six hours” of capture, and “without reference to higher authority.” The trials themselves did little to allay the doubts of the skeptics. Harlan Stone, the Chief Justice of the United States Supreme Court, called the trials a “high-grade lynching party . . . too sanctimonious a fraud to meet my old-fashioned ideas.”
The principles of Nuremberg have remained controversial with the scholars who have enjoyed the benefit of hindsight. One of the most judicious is the political scientist Judith Shklar. In her 1964 book, Legalism: Law, Morals, and Political Trials, she balances on a knife-edge. Shklar recognizes that a significant advantage of war crimes trials like Nuremberg is their capacity to bring a close to a potentially never-ending cycle of violence and revenge. She also praises Nuremberg for adhering to the forms of legality: The defendants had representation, evidence was heard, and in two instances those charged were found not guilty. Most important, she says, the trials educated future German leaders about the Nazis’ crimes against humanity.
But these pluses have to be weighed against the minuses, and here Shklar’s judgment is harsh. Two of the charges against the accused-waging aggressive war and committing crimes against humanity-had been created ex post facto, with no foundation in traditional law. “If the principle of legality, the existence of prior law, alone can justify a criminal trial”, Shklar writes, then Nuremberg “was simply unjust.” Moreover, the trials blatantly engaged in victors’ justice. The Soviets had committed crimes perhaps as terrible as the Nazis, yet sat in judgment against them. And nothing was said in the trials of the bombings of Rotterdam, Coventry and London because the Allies knew that the raids they had conducted against German cities had been far worse. Shklar cites Goebbels’ cruel dictum that “trials should not begin with the idea of law, but with the idea that this man must go.” For all of its devotion to legalistic forms, Nuremberg was, in the end, a political trial with a foregone conclusion, a proceeding Goebbels himself would have well understood. (The historian Jöörg Friedrich has observed that the German public regarded Nuremberg “as the Allies’ way of eliminating an enemy, just as trials had been used in the Third Reich.”)
The sophisticated Shklar is not necessarily opposed to political trials. Under certain conditions they are necessary, but, she says, they are not replicable because each one depends upon its particular historical context. Nuremberg was effective because it was conducted publicly, soon after the end of the war, and in Germany. It was for the most part legally sound as a process, and took place in a cultural context in which a significant part of its German audience could be expected to understand and internalize the moral dimension of the proceedings. Since such conditions were unlikely to obtain in most other cases, Nuremberg, she presciently wrote, “was not, and could not be, a precedent.”
Nuremberg’s ambiguous legacy is approached from another direction by Gary J. Bass in his invaluable book Stay the Hand of Vengeance (2000). Bass shows us a different kind of selective memory. His subject is the history of war crimes trials, and his survey demonstrates that, over the last two centuries, Nuremberg has been the great exception: Most such proceedings—from attempts to try the Bonapartists after 1815, the Germans and Turks after World War I, the Japanese after World War II, and possibly down to the present tribunals in The Hague and Arusha—have ended in fiasco. “Although most people have a sense that prosecuting war criminals is a morally good thing to do”, Bass says, “there is no reliable proof that so doing will always have good results.” A heedless reliance on the forms of legality, he points out, can actually encourage violence from those with different notions of justice. He rightly warns that “thinking about war crimes tribunals only in terms of Nuremberg analogies is as reckless as thinking of crises and wars only in terms of Vietnam or Munich analogies.”
If Western policymakers had bothered to learn from history instead of relying mindlessly on the Nuremberg precedent, or they had bothered to read Shklar’s and Bass’ books, they might not have rushed to try Slobodan Milosevic in The Hague or Saddam Hussein in Baghdad—proceedings that have verged on becoming farces or, worse, that have more in common with the unsuccessful efforts to prosecute the Germans after World War I than with the successful efforts after World War II. Milosevic had been on trial since 2001, and only his death this March brought an end to a process lumbering toward interminability. (A joke already making the rounds before his death was that the plan was to keep him in the dock until he died of natural causes.) The Hussein case, with its propagandistic courtroom theatrics, its countless delays and disruptions, its attendant intimidations and assassinations, and its standing invitation to martyrdom and sectarian animosity, may already have turned into a dangerous debacle.
But if Nuremberg is an unreliable precedent, and if courts cannot be reasonably expected to judge atrocities when they turn on questions of policy, does anything remain of the notion of war crimes? Does legal, or even moral, judgment have any bearing, or is raw power the only morality in time of war? The answer depends on making a distinction that writers like Grayling are loath to make—between civilians unfortunate enough to find themselves subject to the anarchy of conflict, and those under the protection of a genuine legal authority. Here, again, is Orwell, this time from 1941, in the middle of the Blitz:
As I write, highly civilized human beings are flying overhead, trying to kill me. They do not feel any enmity against me as an individual, nor I against them. They are only doing their duty, as the saying goes. Most of them, I have no doubt, are kind-hearted law-abiding men who would never dream of committing murder in private life. On the other hand, if one of them succeeds in blowing me to pieces with a well-placed bomb, he will never sleep any the worse for it.
Orwell understands that civilians have little choice but to accept the realities of conflict and do their best to survive. He does not indignantly or sentimentally demand his rights; he has no rights, and he knows it.
Orwell’s situation would change, however, if he had been captured as a prisoner of war or if Britain had been conquered by the Nazis. The responsibilities of a law-abiding bomber pilot and law-abiding prison guard are different, for jurisdiction alters everything. Those under the sovereignty of a foreign government can legitimately claim rights not available to innocents on a battlefield. This is the oldest doctrine of war crimes conventions, and it is still the one with the greatest force. The mistreatment of captured combatants and occupied noncombatants has been recognized as a war crime for as long as the concept has existed, going back to Sun Tzu in the 6th century B.C.E. One reason is simple pragmatism: If a country abuses POWs under its control, it invites the same treatment for its own soldiers. But a larger principle is at stake as well. It is widely, if implicitly, understood that moral constraints must limit the exercise of absolute power, that violence committed mindlessly, gratuitously, hysterically, sadistically, must in all cases be rejected and condemned—or else the only morality is brute force and the only ethic is that might makes right.
This is why so many Americans felt a sense of shame at the revelations from Abu Ghraib and the possible revelations to come from Guantàànamo (and additional pain because so many other Americans felt no shame at all). And this is why the poster child for American war crimes—until the Iraq war—had been Lt. William Calley, the officer most responsible for the deaths of four hundred villagers at My Lai. It was not their deaths as such that constituted Calley’s crime—unknown numbers of women and children had been killed by American troops during the war—but the fact that they were killed while in his custody and, thus, under his protection.
Similarly, if one seeks a poster child for contemporary war crimes, one need look no further than the tribunal for the former Yugoslavia—though not to Slobodan Milosevic. The far less famous yet deservedly more notorious Dusko Tadic, the first defendant to be convicted at The Hague, well deserves that title. Bass calls Tadic —only a savage pawn in the Bosnian Serb forces—, but his deeds belie that description. Tadic, a Serbian cafe owner in northeastern Bosnia, visited the Omarska concentration camp almost daily simply to beat, torture and kill Bosnian Muslims held there. In one incident he forced a prisoner to bite off the testicle of another. In 1997, the Hague tribunal found Tadic guilty of 11 of the 31 charges against him, and sentenced him to twenty years.
Far from being a “pawn”, Tadic chose to be a sadist and a killer. His trial was a clear exercise of justice because his crimes were universally definable and legally containable. Questions of proportionality did not blur the issue. The matter is different when political leaders formulating strategy are placed on trial, even if their strategy results in hundreds or thousands of deaths. In almost every case, when politicians make judgments that result in innocents being killed, they do so for the sake of some higher goal, and any judgment about their decisions is necessarily political and subjective.
The cumulative conclusion to this analysis seems a peculiar one. The Abu Ghraib guard who forces a prisoner to wear a pair of panties on his head is guilty of a war crime; but the president who kills 100,000 Japanese with two atomic bombs is not. The paradox offends common sense, but only if we expect the law to do more than it is equipped to do. Some issues are simply not adjudicative; courts are inadequate vehicles for dealing with decisions taken at the highest levels, even involving the most heinous of crimes; and much stands to be lost from the increasing inclination to place all political judgment into a legal or pseudo-legal straitjacket. Churchill understood this, and it’s easy to picture him looking down on Saddam Hussein’s trial while chomping on an eternally lit cigar and growling: “They should have shot the bloody bastard straight away when they found him in that rathole.”