It is a wafer thin barrier between humanity and its most basic and feral instincts. Someone cut you off in traffic? You may experience that primal urge to accelerate your Smart Car into the side of that Hummer H2 in a rage blind act of retaliation. But you don’t. It could be because of the state trooper you notice at the side of the road, the thought of a substantial hike in your insurance rate or some other mitigating reason. Rarely is it because the simple weight ration between the offending behemoth and your egalitarian chariot would result in near instantaneous squishiness.
And so it is laws and covenants which keep us from behaving in a totally self interested manner. Failing the existence of credible laws we would be seeking only to give succor to our individual basic instincts. With proper societal pressures in place we defer this urge and cooperate. It is in times of stress and extreme conditions that the barriers stretch and “crimes” occur. We all have heard the phrase “crime of passion” in which one individual responds to their instinctive reflex and acts in a criminal manner. It is hard to conceive of a world in which laws are an unnecessary legacy. Even today, laws exist which are holdover from times in which they were used to control or oppress a population. Iran still stones “adulterers”, India prosecutes homosexuals, China imprisons dissidents and counties in the United States forbid the sale of alcohol on Sunday.
We are thus enfolded by laws, rules and regulations. Many of which we are blissfully unaware.
“Excuse me guvnor, you aware that your article of clothing is in violation of article three section one paragraph A, prohibiting disrespectful display of her Royal Majesty?”
Right, off to jail then.
But there are crimes for which we are keenly aware. These tend to be very big events. They are murder, assault, rape and the like. These crimes, which when committed by a civilian, are terrible; and yet when committed by the soldiery of a nation are completely detestable. Why is that? At one point in our existence it was considered a spoil of war for attacking bands to take whatever they wanted. Vikings were renowned for their warlike deeds of rape and pillage. Soldiers appropriated property, enslaved populaces and generally did as they pleased. These violations enter into the realm of war crimes. There is a good BBC News Article on the topic.
With the handover and arrest, I can not call it a capture, of Radovan Karadzic by Bosnian Serb authorities, the topic of war crimes is resurrected again. He was one of three active architects responsible for the hell that Yugoslavia devolved into in the 1990s. Like most international issues, it is complex and not easily understood. A group of passionate advocates on the left routinely call for the indictment and prosecution of the current President and administration of the United States of America under the aegis of war crimes. They are misled in their accusations and have been (as Marx noted so correctly) useful idiots.
In 1863, with the issuance of the Lieber Code by Union forces of the United States, the first written protection of innocents and civilians in conflict was defined. It was not until 1899 that the world began serious discussions on the behavior of armed forces in times of war. Previously the only international rule was an unstated acknowledgement to chivalric code, in which innocents should not be harmed. The operative word here is “should”. The Napoleonic conflict and countless wars in the 19th century reminded the world of the ability of humanity to inflict suffering upon one another. In World War I, the widespread use of chemical weapons, aerial bombardment and other modern inventions earned the conflict the moniker “the war to end all wars”. Sadly, this was only wishful thinking.
Nevertheless, the world forged ahead. It worked hard, especially after World War II to refine and strengthen the laws of conflict. The UN was established in the wake of the fading League of Nations. And yet acceptable conduct from belligerents has been elusive. The United Kingdom waged a brutal conflict on the northern edge of the emerald isle for decades. In Cambodia, Pol Pot slaughtered millions. In Rwanda civilians were incited to take up arms against their own brethren in an orgy of violent tribalism. And still the world trudged onwards, working to establish clear codes of conduct and behavior for governments when diplomacy turned from the point of a pen to the end of a sword.
This was not an easy path to navigate. Even as late as 1996, the International Court of Justice had difficulty forming an opinion on the use of nuclear weapons. I think it is safe to say that the use of such devices is generally considered bad. And to use them in an unprovoked manner, would be the definition of a criminal act. Action in response to such an attack, however, is not so clear.
E. By seven votes to seven, by the President's casting vote,
It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;
However, in view of the current state of International Law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;
IN FAVOUR: PRESIDENT Bedjaoui, JUDGE Renjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;
AGAINST: VICE-PRESIDENT Schwebel; JUDGES: Oda. Guillaume, Shahabuddeen, Weeramantry, Koroma Higgins.
F. Unanimously,
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
Reference - International law links
Where are we now?
The United States, for reasons of its own, is not one of the one hundred and seven signatories to the Rome Statute, convening the International Criminal Court. They, along with eighty-nine other nations, have not endorsed the court’s broad powers. If acceptance by 54% of the world’s nations (only by count not population as Russia, India and China also remain unsigned) is endorsement, then it is a slim one indeed. Almost all of these agreements, treaties, resolutions and other high-minded documents are exclusively applicable to nation states. To date, there is very little governing the behavior of non-state actors (i.e. Al-Qaeda, etc.). Their actions tend to fall into garden variety criminal acts and thus not subject to the same rules of behavior as nations.
How do we, as a nation, respond? My JAG officer would chide me and remind me that it doesn’t matter whether they are playing fair, we have rules to follow. I was amazed at this friend of mine’s workload in the 5th Fleet Area of Operational Responsibility. He was a Navy Commander and served as the combatant commander’s (COCOM) JAG. Eighteen hour days were short ones and routinely he spent nights at the command center preparing analysis, briefs and responding to crises.
On his door was a poster, it showed a carrier battle group deploying towards the horizon. Below it was the phrase “don’t go to war without your lawyer”. It reminded us all that we act as a nation. And as a nation we have a set of laws to uphold and abide. After all, it is to the Constitution to which the military swears its allegiance – not the government.
I just wonder what poster our opponents have on their wall.
