The dark heart of war crimes

When I was a kid with my eyes glued to the silver screen, I wondered why Ingrid Bergmann and Humphrey Bogart were taking their sweet time in getting out of Paris. There they were with German tanks proceeding relentlessly toward them and the noise of artillery fire in the distance. But where was the Luftwaffe? Where were the Messerschmidts? Why weren’t they dropping bombs on Paris? A thoroughgoing bombardment might have crushed the French spirit and destroyed their will to resist.

Many years later I found the answer. It was indeed true that behind the scenes some of Hitler’s advisers and generals were urging him to bomb Paris and thereby bring the war against France to a speedy conclusion. It was Hitler alone who resisted. And it was definitely NOT because he was afraid of committing a war crime.

Hitler, the would-be architect and lover of Gothic buildings, knew that in a week or two all of Paris would belong to him. Why should he want to destroy his Cathedral of Notre Dame? Why should he want to topple his Eiffel Tower?

The Fuehrer was rediscovering what the ancient Hittites of Mesopotamia knew about wars. From their peace treaties preserved for us in clay tablets, we see their elaborate provisions for memorializing a truce by the use of war reparations and oaths not to resume fighting. The purpose of war, as Quincy Wright summarized with blinding clarity, is to win the subsequent peace. Most of the wars of the past millennium were army vs. army, and not army vs. civilians. It was General Sherman and General LeMay, as I argued in a recent post, who chose the latter. They reintroduced primitive and unspeakable barbarity into modern warfare.

We can think of the Lieber Code, the Hague Conventions of 1899 and 1907, and the more recent Geneva Conventions, as laying down parameters for confining war to force vs. force and prohibiting force vs. value (value being civilians and non-military targets). The phrase “not justified by military necessity” is one way of characterizing the exclusion of “value” targets. War may still be hell but it is not pointless. (Even hell, as theologians envisage it, is not pointless).

So we come down to two competing mind-sets (as often is the case in theorizing about human action). The first is to win the war by destroying the enemy’s capacity to fight (force vs. force). The second is to win the war by destroying the enemy’s will to resist (force vs. value). The rationale of war crimes is to permit the first and prohibit the second.

And that brings us to the title of this blog, the dark heart of war crimes. Consider the case of General Curtis LeMay, who was the subject of one of my previous blogs. LeMay knew that his orders for napalming innocent women, children, and the elderly, constituted war crimes. He even boasted that if the Allies were to lose the war he would be prosecuted as a war criminal. These were macho words at the Officers’ Club after a half-dozen whiskeys. But it wasn’t braggadocio that convinced the brass back in Washington to let him go ahead with his napalming. Rather, it was a diabolic calculation. The reasoning was as follows: the one hope the Japanese can cling to in their peril is that we will obey the laws of war. But if we violate them deliberately and directly target innocent civilians, then we will destroy their will to resist.

In this way, the dark heart of war crimes is to violate them and break the enemy’s spirit. When the military command of the United States allowed LeMay to retrofit his planes with napalm bombs, pure lawless evil was unleashed on earth.

Hiroshima and Nagasaki: war crimes?

Should President Harry S Truman be regarded today as a war criminal for ordering the atomic bombing of Hiroshima and Nagasaki sixty years ago? If history indicts him for the two events, I would argue that as to Count Two, the bombing of Nagasaki, he was clearly guilty and would have deserved the death sentence. The horror of the initial bombing of Hiroshima on August 6, 1945, has in the public mind all but obscured the follow-up bombing of Nagasaki three days later.

I wrote in 1971 that the Nagasaki bombing “had no military justification and was not needed, after Hiroshima, to ‘demonstrate’ the efficacy of the new weapon.” [The Concept of Custom in International Law 117 (1971)] Although a vast amount of research and writing about the decision to drop nuclear weapons on Japan has come out since I wrote those words, I’ve seen nothing that would challenge my conclusion. Of course if readers of this blog know differently, I hope they would give us all the benefit of their comments.

Not only have I not seen any legal argument that tries to justify the Nagasaki bombing, but there is also a dearth of historical explanation why it occurred at all. I have my own theory. By 1945 the United States had produced three nuclear weapons: two uranium and one plutonium bomb. The first uranium bomb was secretly dispatched to the Pacific theatre before the second one was tested on July 16, 1945, at Alamogordo Range 230 miles south of Los Alamos, New Mexico. Three weeks later the remaining uraniuim bomb was detonated over Hiroshima. My theory, terrible as it sounds, is that (a) we dropped the plutonium bomb on Nagasaki to see if it would work—if it hadn’t exploded, nothing would have been said; (b) by dropping a second bomb so quickly after the first one we would show the Japanese that we would be merciless until they surrendered unconditionally; and (c) the second bomb would lead the world to think that we had many others where that one came from.

As to the legality of the bombing of Hiroshima, there are endless arguments, justifications, excuses, condemnations, and plain misstatements. The most prominent justification is the argument of military necessity: dropping the bomb shortened the war and saved many lives. The best contrary argument, in my opinion, is that the peace terms informally (but very seriously) offered by Japan in June 1945 did not materially differ from the peace terms we actually accepted from Japan in August right after we dropped the bombs.

Our Next Military Attack?

Our government is presently immobilized, like Buridan’s ass, between North Korea’s nuclear development program and Iran’s. Yesterday Iran removed United Nations seals on uranium processing equipment at its Isfahan nuclear site, making the plant fully operational. At the same time across the world in Beijing a deadlock was reported in the six-power nuclear disarmament talks. North Korea intends to go ahead with its “civilian” nuclear program even though other nations believe that it has already produced enough fissionable material for several nuclear bombs.

There is no greater threat to our national security than nuclear weapons in the hands of North Korea or Iran. It’s coming to a head now because of the perceived failure of our invasion of Iraq in March, 2003. I submit there were two primary reasons behind our decision to invade. First, Saddam Hussein had the financial resources in a brief period of time to purchase and assemble nuclear weapons. Although we knew when we invaded that Saddam did not possess WMDs, once he smuggled them in our ability to invade would have become impossible. Second, a quick and successful removal of Saddam’s government would have sent the most powerful of messages to the other “rogue” nations: don’t even think of going nuclear. It was a logical game plan deeply rooted in our national security.

The “failure” that I mentioned above occurred after the invasion was successfully completed. We had absolutely no idea how to go about pacifying Iraq. Our idiotic blunders of occupation were painfully evident as they were being committed, and I lack the incentive to try to recount them here. Suffice it to say that all the world know how we have snatched defeat from the jaws of victory in Iraq.

North Korea and Iran must figure that the United States is a paper tiger. They will keep pushing on their nuclear development programs until we reach the breaking point.

You should know that I’m a real hawk when it comes to nuclear proliferation. Back in 1981 I was practically the only international lawyer in the United States to support Israel’s bombing of the Iraqi nuclear reactor in Osiraq. Maybe I’m overly sensitive about this issue, but I predict that, with practically no notice, the United States will bomb and destroy either the Iranian or North Korean nuclear installations.

History’s Two Worst War Criminals

Many of our younger international scholars are rightfully insisting that nations own up to their past atrocities. They are pressing Japan to fully disclose the enslavement of Korean “comfort women” who were forced to accompany the rampaging Japanese armies in China during the second world war. The scholars are demanding that Serbia, Croatia, and Bosnia give a full accounting of the war crimes they committed in former Yugoslavia in the last decade of the twentieth century. They are calling upon Turkey for full accountability of the Armenian massacres of 1915.

But our credibility becomes eroded if we conceal our own past. We should be calling upon our own government to acknowledge the war crimes that have sullied American history. To some extent lawyers are doing this with respect to our pre-Union war crimes against Native Americans. Yet nothing can be as dramatic as the personification of war criminality. I suggest we should begin calling specific attention to the two persons whom I will nominate below as the worst war criminals in human history. I omit Stalin and Hitler because the genocides they unleashed should not be labeled as war crimes even though the number of victims was in the millions. (Stalin’s genocide took place in the 1930s, and Hitler’s holocaust actually ran counter to the German war effort.)

Here are my two nominees about whom too much attention cannot possibly be paid:

GENERAL WILLIAM TECUMSEH SHERMAN. During the Civil War, General Grant insisted that the defeat of Confederate armies was the first and foremost objective of Union strategy. Disobeying this policy, General Sherman set forth on a march to Savannah and the sea on November 15, 1864. He led his Union troops away from every Confederate army camp or stronghold. Instead, his army proceeded through the soft belly of the South, burning and destroying the civilians, their homes, their property, their farms, their food, their entire countryside. They murdered the children and the elderly, raped the women and then shot them, and stole every valuable they could get their hands on. Today General Sherman is featured in high-school history texts for saying “War is hell.” But nevertheless there is some controversy about him. There are parents who object to the use of the word “hell” in textbooks that their teen-age children are required to read.

GENERAL CURTIS LE MAY. In air campaigns against Japan in 1944 and 1945, General Curtis LeMay of the U.S. Army Air Corps also defied the established wartime policy of the United States. That policy called for precision daylight bombing of military targets. Instead, LeMay retrofitted his planes with napalm cannisters (jellied gasoline), and dropped them at night over the northern suburbs of Tokyo, which were then the most densely populated areas in the world. Of course there were no men of fighting age present; there were only women, children, and the elderly packed in their wooden homes. On one evening, March 9, 1945, LeMay’s pilots were particuarly lucky: there was a brisk wind that carried the flaming napalm across wide distances. The heat that was generated was so great that the few people who could get out of their homes in time and jump into the nearest river or lake were boiled to death. General LeMay had successfully presided over the murder of 100,000 innocent people. He also had a quip to give to posterity: “There are no innocent civilians, so it doesn't bother me so much to be killing innocent bystanders."

When I participated on a war crimes panel at West Point some years ago, I brought up LeMay’s name as an arch war criminal. Despite my saying this in a room packed with cadets and high brass, no forcible action was taken against me. Perhaps the reason for the restraint was that the West Pointers were prepared for remarks such as mine. All eyes turned to one of the observers in the first row, an Army officer who was also a professor at West point. After standing up and establishing his credentials as a major student of aerial warfare, he sharply disputed my assertion that LeMay dropped bombs on non-military targets. He said that the women in the targeted area were active participants in furthering the Japanese war effort: they were darning socks and mending army uniforms.

Cuba, the Guantanamo Treaty, and the International Court of Justice

I only recently noticed this op-ed by Cuba expert Wayne Smith, a former head of the U.S. Interests section in Havana, noting that Cuba could easily claim the use of Guantanamo Bay as a detention center violates the Agreement between the United States and Cuba for the Lease of Lands for Coaling Stations, the treaty which is the basis for U.S. control of Gitmo. As Article II of that agreement makes clear,

The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.

Presumably, the U.S. argument would be that detention center is "necessary to fit the premises for use as a ... naval station..." but it doesn't seem all that strong.

Now Cuba has a pretty good legal argument in search of forum. It might try suing the U.S. in federal courts, but would face innumerable obstacles, not the least of which is that the Agreement may or may not be a treaty, and even if it is a treaty, it may be a political question, and even if it is not a political question, the U.S. government would probably have sovereign immunity from such a suit.

As the op-ed suggests, Cuba might also try the ICJ, but neither Cuba nor the U.S. recognizes the compulsory jurisdiction of the ICJ. Cuba might nonetheless seek a General Assembly resolution pursuant to Article 96 of the U.N. Charter seeking an advisory opinion from the ICJ on whether the U.S. is in violation of the lease. Although merely advisory, such an opinion would embarrass the U.S. further and give Cuba a chance to further needle the U.S. The ICJ has shown itself to be willing to issue controversial advisory opinions (see the Israeli wall decision from last year) so this could actually happen. And the new U.S. Ambassador to the UN might have something useful to do after all....

Don’t evade ‘em, invade ‘em!

I didn’t intend to sound disparaging about humanitarian intervention, but when the above title occurred to me I just couldn’t resist using it. Come to think of it, Howard Cosell would have been pleased; the title “tells it like it is.”

The international legality of humanitarian intervention is on my mind these days because I’m trying to scribble out a Foreword to the third edition of Fernando Teson’s book of that title (the “humanitarian” title, that is, not the “invade ‘em” title).

A warm and enthusiastic Fernando Teson burst upon my scene at Northwestern Law School in 1982. He had served four years in the Argentine diplomatic corps and also had been an associate professor of international law at the University of Buenos Aires. We had agreed by letter that I would supervise his S.J.D. dissertation. So naturally one of the first things we discussed is what he should write about. He said that, given his experience in diplomacy, he might like to write a book on the privileges and immunities of diplomats. I said something like, “Gee, that’s great! The public is just clamoring to find out a lot more about the privileges and immunities of diplomats.” “So what would you suggest?” he said, deftly kicking the ball back to my side of the field. “Let me think about it for a day or so,” I replied.

I was stalling. I knew of the perfect topic for Fernando, but it was something that I had vague plans to write up myself. Nevertheless, when we had our next meeting, I said, “How about humanitarian intervention?” Perhaps as I said it I harbored the faint hope that he would turn it down. To the contrary, the idea for him was love at first sight.

His dissertation was so good that when it was published by Transnational Publishers, Inc., it came to define the field of humanitarian intervention in international law. Early evidence of this was the fact that the establishment folks in and around the American Society of International Law seemed to have taken a vow of silence about Fernando’s book. As late as 1991, a published symposium on Right versus Might in international law, featuring such luminaries as Louis Henkin, Stanley Hoffman, Jeane J. Kirkpatrick, and David J. Scheffer, examined the idea of humanitarian intervention from many angles but never once referred to Fernando’s work, not even in the “suggested readings” in the back of their book. Why indeed should they let an outsider like Fernando Teson “intervene” into the scholarly world over which they reigned supreme?

Without them, or maybe despite them, the book has thrived and taken on a life of its own in both political and legal global studies. During the two years he worked on his project at Northwestern, Fernando and I were in complete accord that if the morality of humanitarian intervention weren't right, then its legality one way or the other would be of distinctly secondary interest.

Fernando’s conviction that humanitarian intervention is morally privileged if not required has coalesced over the years since 1982 into three postulates that I can pre-quote from his third edition:

(1) Governments are, internationally and domestically, mere agents
of the people. Consequently, their international rights derive from
the rights and interests of the individuals who inhabit and constitute
the state.

(2) Tyrannical governments forfeit the protection afforded them by
international law.

(3) The fact that all persons have rights entails the following
consequences for foreign policy . Governments have:

(a) The obligation to respect human rights at home and abroad;

(b) The obligation to promote respect for human rights globally;

(c) The prima facie obligation to rescue victims of tyranny or
anarchy, if they can do so at a reasonable cost to themselves.
This obligation analytically entails the permission to rescue
those victims—the right of humanitarian intervention.

If any of you who are reading this blog are teachers of international law, allow me to suggest that early in the course you distribute the above three revolutionary postulates to your students or display them in Power Point. Let your class unpack them, deconstruct them, examine them from every angle.

Agree with him or not, Fernando Teson has staked out a position that can no longer be ignored by anyone—not even by the self-anointed guardians of public international law.

A Partial Defense of Hamdan and Judge Roberts

I also want to welcome Professor D'Amato to Opinio Juris. And, in the typical Opinio Juris fashion, I want to welcome him by immediately taking exception to some of the arguments he put forward in his inaugural post.

I agree that Judge Roberts should be held responsible for the D.C. Circuit's decision in Hamdan as much as if he had written the opinion for the Court. I simply don't find that decision as troubling as Professor D'Amato seems to.

First, I guess I don't find the D.C. Circuit's distinction between procedural fairness and jurisdiction that problematic. To be sure, Prof. D'Amato throws up some good examples of why one might want to include a substantive fairness analysis in a court's inquiry into jurisdiction. But I presume Prof. D'Amato does not want to completely blend the two inquiries together either. After all, there is a useful conceptual distinction here that is not purely law school gamesmanship.

Moreover, I think the D.C. Circuit's invocation of the jurisdiction-not-procedural-fairness distinction here is defensible on more than merely conceptual grounds. After all, as the next two sentences of the court's discussion of this section points out:
Hamdan’s claim therefore falls outside the recognized exception to the Councilman doctrine. Accordingly, comity would dictate that we defer to the ongoing military proceedings. If Hamdan were convicted, and if Common Article 3 covered him, he could contest his conviction in federal court after he exhausted his military remedies.

The Councilman doctrine (420 U.S. 738), as I understand it, permits a federal court to take jurisdiction over a military court-martial proceeding, but instructs federal courts to refrain from doing so unless the petitioner can show harm other than the fact that his case will be tried in a military justice system. In essence, it is a comity doctrine and the DC Circuit applied it quite reasonably in this case. If Hamdan is convicted by the military commissions, the federal courts still have jurisdiction to review the conviction, but only after Hamdan has exhausted all his military justice remedies. But the bottom line: there is a procedural safeguard built in to this analysis resting on existing Supreme Court doctrine that allows Hamdan to challenge both the jurisdiction of the military commissions but also their substantive procedural fairness in federal court.

This leads me to my second point of disagreement with Prof. D'Amato. I defer to his description and analysis of Tadic and its importance to the development of international criminal law and procedure. But I can't fault Judge Roberts, the D.C. Circuit panel, or Hamdan's lawyers for not using this decision in their arguments and analysis. No doubt Tadic has some similar implications, but Tadic did not involve a challenge under Common Article 3 and therefore is not really strong precedent for Hamdan here. It certainly would be difficult for a court to ignore existing Supreme Court doctrine about the scope of a federal court's jurisdiction over the military justice system by citing an international tribunal decision interpreting a different set of international treaties and legal rules.

Hamdan is one of the most interesting decisions Judge Roberts has ruled on but this decision will almost certainly be ignored at his confirmation hearings for at least two reasons. First, on a political level, attacking Roberts for allowing a military commission trial to go forward for Osama Bin Laden's driver is just a non-starter, even if Hamdan has a good case on the merits. Second, as a legal matter, I think the decision was a good one, and certainly a defensible one.

Mr. Roberts (the nominee, not the movie)

As the law school world peruses the briefs and opinions of Supreme Court nominee John Roberts, one of his important cases that just about everyone omits is Hamdan v. Rumsfeld (D.C.Cir. July 14,2005). The reason for ignoring it is, presumably, that it was a 3-0 decision in which Judge Roberts remained silent.

I suggest that his silence speaks rather loudly against him. It would have cost him nothing to append a brief concurring opinion. His decision not to do so tells us that he is happy with the court’s opinion in every respect.

Hamden was just the right case for a concurrence. I will put aside, with reluctance, the many fascinating issues in the case such as the President’s authority to constitute military commissions, the question whether we are “at war” with Al Quaeda (Mr. Hamden admitted he was Osama bin Laden’s personal driver in Afghanistan between 1996 and 2001), whether Hamden is entitled to prisoner-of-war treatment, and whether the 1949 Geneva Conventions are self-executing under United States law.

But tucked away toward the end of the court’s opinion is an argument that a supposedly bright jurist like Judge Roberts should have picked up on:

Suppose we are mistaken about Common Article 3. Suppose
it does cover Hamdan. Even then we would abstain from
testing the military commission against the requirement in
Common Article 3(1)(d) that sentences must be pronounced
"by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples." Unlike his arguments that the military
commission lacked jurisdiction, his argument here is that
the commission's procedures--particularly its alleged failure
to require his presence at all stages of the proceedings--fall
short of what Common Article 3 requires. The issue thus
raised is not whether the commission may try him, but rather
how the commission may try him. That is by no stretch a
jurisdictional argument. No one would say that a criminal
defendant's contention that a district court will not allow
him to confront the witnesses against him raises a jurisdictional
objection.

This is just the sort of ersatz law-school reasoning that should be suppressed whenever it rears its ugly head. “The issue thus raised is not whether but how.” Indeed! Just who is the court kidding here? (Themselves, is probably the right answer.)

One simply cannot separate entirely the question of procedural fairness from jurisdiction. Suppose the military commission was well known for reaching its decisions in less than one minute per defendant. Suppose further that its members prided themselves on never reading any briefs. Suppose the commission barred oral argument. Indeed, let’s go to the extreme: suppose the only issue the commission debates is whether the defendant had an Arabic-sounding name. If he did, then he was guilty. Could our court of appeals, in of all things a habeas corpus proceeding whose pedigree extends back to the Magna Carta, say without tongue-in-cheek that even this extreme level of procedural unfairness would be irrelevant to the question of jurisdiction?

If Judge Roberts, or his two colleagues, or the lawyers defending Hamdan, had had any knowedge of international law, they surely would have known of the Hague Tribunal’s milestone decision in the Tadic case [Dusko Tadic, IT-94-1]. Tadic had raised some strong arguments to the effect that the International Criminal Tribunal for Former Yugoslavia was not a legally constituted tribunal and hence lacked jurisdiction over him or any other accused person. The Tribunal answered these arguments as best it could. Then the President of the Tribunal, Antonio Cassesse, memorably added that the test of the legality of the Tribunal’s jurisdiction will ultimately be the fairness of its procedures.

Welcome to Professor Anthony D'Amato

We are very fortunate (and a little daunted) to have Professor Anthony D’Amato of Northwestern University School of Law guest blogging with us for the next two weeks.

For most of our readers, Tony won’t need any introduction. Besides his extensive list of publications (over 20 books and 110 articles) on international criminal law, human rights, foreign relations law and a host of other international legal topics, Tony was the first American lawyer to argue (and win) a case before the European Court of Human Rights, was lead counsel for the first defendant charged with genocide before the ICTY, and has litigated a number of human rights cases around the world. And, to my knowledge, he is the only international law professor to show up in a graphic story (“comic strip” would not be an apt description).

We are looking forward to our discussion over the next two weeks. Welcome to Opinio Juris!

One More Reason to Dump the United Nations Commission on Human Rights

The United Nations Human Rights Commission is an easy target for UN critics, but this doesn't mean that they don't deserve the disdain and contempt that is usually heaped on them. Case in point: eight UN human rights experts have issued a statement condemning the current US-Russia sponsored "Road Map" talks between Israel and Palestine because the negotiations currently do not fully adhere to the ICJ's advisory opinion last summer condemning Israel's wall of separation as a violation of international law.

Now I may not be overly impressed with diplomacy, but I'm far less impressed with idiotic legalistic interventions into a delicate and complex territorial negotiation currently taking place between Israel and Palestine. The last thing these negotiations need is a statement of eight "special rapporteurs" claiming that ongoing negotiations may come into conflict with an advisory opinion issued by the ICJ.

As I've suggested before in the context of demands by these same rapporteurs to visit Guantanamo, these special rapporteurs are given fairly broad mandates to opine on anything they want, whether or not the full UN Commission has approved their statements. And, as this rather silly and potentially stupid, intervention suggests, the special rapporteurs may need to be reformed as aggressively as the Commission itself... preferably, out of existence entirely.

Iraq and the International Criminal Court: Decision Time

This report suggests that the international and domestic human rights groups have turned up the pressure on Iraq's new government to join the ICC. Indeed, this report indicates that the Iraqis drafting their permanent constitution are considering an "international law" supremacy clause that would subordinate domestic Iraqi laws, including constitutional laws, to international treaties, thereby giving institutions like the ICC potentially broad authority if Iraq signs up.

Now the Iraqi constitutional process has lots of different problems, and the role of the ICC and other international organizations is probably not on the top of the list. But it is far from trivial if Iraq signs the ICC treaty, since it will be exposing both U.S. and its own military forces (currently engaged in a desparate anti-insurgent struggle) to oversight by the ICC. This may or may not be a good thing depending on one's faith in the judgment of the ICC, but it is certainly a rather large and dangerous step for Iraq's interim government.