Saturday, August 05, 2006
The double standard
Orde Kittrie, professor of international law at Arizona State, examines whether Israel may have committed a war crime in the Qana attack. The short version is "probably not," and the slightly longer version is that Hezbollah almost certainly did. His arguments will be familiar to anybody who has been reading posts at pro-Israel blogs in the last week.
The last bit of the column, though, reminds us of the transporting hypocrisy with which most other countries criticize Israel. It bears quotation, lest we forget:
The track record of many of Israel's most powerful accusers -- including China, Russia and the European Union -- is not nearly as good at balancing civilian risk against military goals.
China killed hundreds of peaceful Tiananmen Square protestors in 1989. It has for five decades occupied Tibet, slaughtering tens of thousands; and it vows to invade Taiwan if it declares independence. Neither the Tiananmen protesters nor Tibet nor Taiwan has ever threatened to "wipe China off the map."
Russia has fought since 1994 to suppress Chechnya's independence movement. Out of a Chechen population of one million, as many as 200,000 have been killed as Russia has leveled the capital city of Grozny. Chechen rebels pose no threat to "wipe Russia off the map." All of the leading EU countries actively participated in NATO's 78-day bombing campaign against Yugoslavia in 1999. The military goal was to stop Yugoslavia from oppressing its Kosovar minority. NATO bombs and missiles hit Yugoslav bridges, power plants and a television station, killing hundreds of civilians. Yugoslavia posed no threat to the existence of any of the EU countries that bombed it.
Compared with how China, Russia, and the EU have dealt with non-existential threats -- and despite the law-flouting behavior of Hezbollah, Iran and Syria -- Israel's responses to the threats to its existence have been remarkably restrained rather than disproportionately violent.
Now, China is run by a brutal dictatorship, however good that it has become at allowing for bread and circuses, and Russia was fighting a separatist war. Surely, Israel wants to exceed the pathetic "China standard" and the Grozny case is more complex morally. Grozny has always looked like Atlanta to me.1 The best comparison is to the Kosovo war, which the West fought from the air, Wesley Clark style, at great cost to civilians. Why? To spare our own soldiers. That reason hardly compares favorably to Israel's, which is to stop rocket attacks that target its own civilians.
Who do Israel's critics think they are kidding?
___________________________________
1. Whenever I write that I get a pile of comments from American Southerners who believe the burning of Atlanta and Sherman's march to the sea was the blackest moment in American history. Let us agree to disagree on that point. I am descended from Confederates of stature and my family has a strong southern wing, but I am an unreconstructed Unionist in retrospective attitude. Sorry.
15 Comments:
By 
Dawnfire82, at
Sat Aug 05, 02:19:00 PM:
"1. Whenever I write that I get a pile of comments from American Southerners who believe the burning of Atlanta and Sherman's march to the sea was the blackest moment in American history. Let us agree to disagree on that point. I am descended from Confederates of stature and my family has a strong southern wing, but I am an unreconstructed Unionist in retrospective attitude. Sorry."
i.e. the ends justified the means, right? That is, the razing of civilian infrastructure (with the accompanying pillaging, personal assaults, et cetera) was ok because it hastened the end of an enemy country.
You can't allow that standard to fly here at home, but condemn it elsewhere. As long as you're consistent, sure, I can agree to disagree. Just don't be hypocritical.
Not an accusation (I really don't care [i]that[/i] much) but I see an awful lot of moral indignation come from this blog about despicable tactics in politics, business, and international affairs. It's not right, nor honest, to express such indignation, but support (retrospectively, since it's been like 150 years) similar actions here just because it involved your countrymen. Please keep that in mind the next time a terrorist bombing goes off in a shopping mall, because they are probably using the same logic.
By 
, at
Sat Aug 05, 02:55:00 PM:
There are no war crimes. Just pompous people, mostly law professors, who think they should be the Gods. Gods safely removed from danger but always willing to rush in and convict. Sometimes the suceed when they confess victors to find a few people they dislike and hang them.
Of course they have a sham called a trial. There the Gods prance around redefining words until they get what they want. Sometimes they even acquit someong - it really doesn't matter you see, their purpose is to exhibit their power, and either conviction or acquital provides about the same demonstration.
Do I think soldiers do bad things in war? Sure? Lawyers stay at it during war and peace.
By Unknown, at
Sat Aug 05, 03:16:00 PM:
Part of what's at issue is that some of the Europeans are now holding that killing or injuring civilians for whatever reason is always a war crime. IIRC some of our hypothetical NATO allies during the air campaign against Serbia refused to bomb Serbian dual-use buildings for just that reason.
By Steel Monkey, at
Sat Aug 05, 05:22:00 PM:
For those who believe that the term "war crime" is a meaningful one, I would be interested to know how the following actions would be categorized:
Allied bombing of German cities in World War II.
American bombing of Japanese cities with non-nuclear bombs in 1945.
American bombing of two Japanese cities with nuclear bombs in August 1945.
General Sherman's march to the sea in 1864-1865.
Personally, I would not accuse any of the people responsible for these actions of anything except bringing a war to an end and with the morally superior side winning.
That said, I think that the US and Israel should attempt to minimize civilian casualties and damage to civilian property so long as doing so does not place too many burdens on military effectiveness.
By TigerHawk, at
Sat Aug 05, 05:31:00 PM:
Well, all of those actions are clearly in violation of the Geneva Conventions of 1949, which were enacted subsequently, perhaps in reaction to those offenses. My own view is that the Geneva Conventions of 1949 may be bad policy, in the sense that by limiting war they make it too easy to fight.
By allen, at
Sat Aug 05, 09:54:00 PM:
I just returned from a trip to the beautiful city of Savannah; a city spared by Sherman because the city fathers had the good sense to call it a day.
Think there's a lesson there?
By GreenmanTim, at
Sun Aug 06, 11:55:00 AM:
I can't help thinking about your recent post about the film Breaker Morant, TH, with respect to whether there are such things as "war crimes" or in war they are all just "operational necessities."
Then I have to ask those who, like Anonymous, do not believe there are such things as war crimes to consider whether the 3rd Reich's "final solution", or the torture and murder of thousands of American POWs by the Japanese in WWII, or the systematic rape of civilians as part of ethnic cleaning, deserve a free pass as well?
Finally, is rejecting the idea that there are things we shall not abide in war consistent with defending American values, or instead the grossest of hypocracy?
By , at
Mon Aug 07, 01:02:00 AM:
greenmantim: being the anonymous you refer to, I don't think it even difficult to answer you.
First a correction. my early post was typed too fast. 'confess' should be 'convince' and 'everyong', 'everyone'
Now a very easy part. You wrote:
"Finally, is rejecting the idea that there are things we shall not abide in war consistent with defending American values, or instead the grossest of hypocracy?"
Assuming you mean 'hypocrisy' the word means roughly 'to advocate publicly what you do not believe privately'. So first you set up a false choice (soon to be explained) and then you imply I lie because your false choice proves something.
The choice is false because I never said or implied the 'rejecting...) I said, and I repeat, war crimes laws (WCL) are utter garbage which improves nothing except the ego and circumstance of those creating them.
Since I can't address everything let me consider Herman Goering. Convicted at Nuremburg, took poison thus not hanged. I take no objection whatever to that proposed hanging of Herman.
My disgust is with the trial. He was convicted because Germany lost the war. Otherwise those being hanged would have been Uncle Joe and Molotov and Winston.
In reality the victors decide. You may not think that is good and the world should be better. But that is my answer. WCLs are and always will be selectively enforced.
This is getting long. I will conclude with another post.
By , at
Mon Aug 07, 01:57:00 AM:
So leaving the false choice strawman, 'Ameican Values'. Aah yes, AV.
Well what are they? Dissent and diversity - I'll go for those. But law is closer to WCL. Let's look at the supreme law of the land. Inconveniently it gives the President command of the military and the conduct of war. Not much there about needing a WCL before hanging Herman.
And the President ceases hostilities and prepares the peace treaty. The Senate can reject the treaty and leave the formal status at war, hardly a way to limit the President. Not much there about war crimes and punishments, or lack of same.
So WCL is by treaty. Good enough, treaties are law. But most of the conventions lack an enforcement mechanism. They are a pledge of intentions. And the US has rejected the key conventions needed to toughen them. This causes great gnashing of teeth among those who want them toughened. Legal theories are devised to argue we are bound anyway by some other inference. I disagree. In practice the US uses our UCMJ and soldiers are not handed to International Courts. Under some treaties they are handed to foreign courts for crimes not related to war.
So the WCL treaties are too weak to mean anything victors do not agree to. In contrast the Constitution does allow hanging Nazi for heinous acts. It comes with the war powers of the President.
Answering your middle paragraph "Then I have to ask...'. No, I don't advocate the free pass at all. I just reject 'war crimes'. It implies law with a big L is involved. Acts can be horrible, hideous. And those who committed them can be shot, hung, shot and hung, or imprisioned, without involving formal legal proceedings at all.
If it were worth the bother I would contine on about why WCL must lead to collective guilt which I don't regard as an Ameican Value. And why I believe WCL provides some protection for leaders (Goering, Tojo for example) while removing protection from the soldiers at the bottom. I don't think law which will aid superiors while punishing his subordinates is what American Values is about either.
I use anonymous merely for convenience. The less busy work the better.
By GreenmanTim, at
Tue Aug 08, 01:15:00 AM:
Thanks, Anonymous, for taking the time to explain your position on international conventions, presidential powers, and the validity of war crimes laws. Thanks also for allowing me the same courtesy of a spelling correction made in haste -"hypocrisy"- that you took for yourself in your own reply.
I am well aware that in reality the victors decide and war crimes law is therefore selectively enforced. That seems a poor reason to reject out of hand the value of having a legal framework -our own or one agreed to along with others in the international community - to hold those who commit utterly depraved and heinous acts in wartime to account. You state that such individuals can be shot, or hanged or otherwise disposed of without resorting to formal legal proceedings, let alone the conventions of war crimes law with a big "L". Who, then, acts as judge and jury? Can I hold the rope? We've a long and shameful history in America of vigilantism and lynching. I cannot believe that is what you are advocating.
So how, exactly, does all that occur for what, by reasonable contemporary American standards, are called war crimes without a formal legal framework? I fail to see how that is possible, nor where in the war powers granted to the Executive under the Constitution you find the authority to summarily hang war criminals without legal proceedings. Rather, it is widely acknowledged that the framers were concerned about granting too much power to the President as the Commander in Chief, particularly if he commanded in person, lest he make bad use of it.
I share the anger and frustration of many Americans that we are fighting an asymetrical war against an enemy that has no such compunction about committing war crimes. I now understand that you do not believe those who commit such acts deserve a free pass. I still do not understand how it is possible to hold people to account without the rule of law and still hold true to our values.
By , at
Tue Aug 08, 08:27:00 PM:
GreenManTim: I'll gladly respond.
There was no discourtesy or hypocracy or hypocrisy in my dealing
with a simple misspelling. I merely said what I thought the word
was and improvised a definition to assure the reader of what I
was answering.
When I first read hypocracy (or was it hypocrasy, don't remember
now) I actually thought of the physicians oath. That made no
sense and the h wasn't capitalized.
My next thought was 'gee who were the other Hypocrates?' The
Greco-Romano world had several philosophers with that name. That
passed with the instant and I looked up the spelling of
hypocrisy. I wasn't sure either.
I can't figure out why you think I am being hypocritical. What
have I said that disagrees with my private beliefs or practices?
Answering the rest will take more time than I have right now.
The grandchildren and I are ready for the first Herman-Bon-Fire
Festival west of the Ardennes. And several little Hermans are
awaiting their fate.
Late tonight I'll respond to the remainder of your last.
By , at
Wed Aug 09, 01:05:00 AM:
reenManTim:
After having written what follows I am astonished at how lengthy even a partial answer is. This covers one of your paragraphs in detail. You will have to refer to your text. Otherwise it would be even longer.
1) What seems a poor reason to you seems a good one to me.
2) I didn't reject the legal framework 'out of hand'. The basis for rejection was given in my immortal or immoral prose. (My personal attitude is that the US government rules me. I don't like that very much and see nothing practical to do about it. If they let an international body also rule over me I would regard it as another unhappy situation and dislike that even more.)
3)The victor acts as judge and jury in the de facto sense. The victor may also choose to put a patina on the process by forming a court, ala Nurnemburg. Sometimes victors are quite fair.
4)Yes you may 'hold the rope' if the victor so decides. Remember the hangee also 'holds the rope', be careful what you ask for.
5)You can't believe that is what I am advocating? Why not? You can believe the Nazis you never encountered were evil, you can believe people were lynched, so why could you not believe this?
But it is not what I was or am advocating. The victors are not lynchers nor are they vigilantes. They are obeying their own government's instructions. 'lynching' and 'vigilantism(sp?)' are emotional words associate with government orders carried out by a regular military.
Perhaps you visualize some sort of Rape Of Nanking scenario. If memory serves, the army defending Nanking did something odd which infuriated the attacking Japanese far beyond their normally nasty attitude. When the city fell the Japanese command said 'boys take a few days off, do as you like'. Our UCMJ totally prohibits such a relaxation of command. The order would be illegal and anyone receiving would still be bound by the UCMJ.
Is the President subject to the UCMJ? I believe he is or should be for acts as CIC. But only if first removed from office. Violating the UCMJ seems possible grounds for impeachment. While still in office couldn't the CIC simply disband his own courts-martial?
By GreenmanTim, at
Wed Aug 09, 11:22:00 AM:
Anonymous - I really appreciate your sticking with this exchange, as challenging as it may be for two folks such as we who don't know each other and coming at this question from very different perspectives and life experiences to have a dialogue - deep in the comments section of an older post, no less - on such a charged and complicated topic.
In that spirit, I will strive to tone down my use of emotionally charged language and be very clear about the assumptions I am making about your argument and this issue, and which ones I am not.
Regarding hypocisy: Your further comments suggest to me that you, at least, are quite consistant in your view of values (personal or American) and the validity of war crimes law. I see no evidence of personal hypocrisy in what you have written, but I remain troubled by what I believe are some of its implications. This is not surprising given how different you and I appear to be in our views of the role of law in war and as applied internationally to atrocities committed in wartime.
I wonder if you would agree that at this point in our exchange, we have established that there are acts committed in wartime that are heinous and hideous and which may and perhaps even should be addressed "by the victors", but we differ on the procedures for doing so. I appear to be more comfortable with a transparent, legal process for hearing testimony and passing judgement on war criminals than you, and you appear to be more comfortable with the UCMJ, backed by the US Constitution, as a legal authority in such cases than an international tribunal or set of shared legal standards for addressing war crimes. You also state that the victor can and perhaps ought to set the standard, rather than an international body of law, for what constitutes war crimes and the procedures for addressing them. Do I have it right thus far, or have I missed something in your argument?
My initial reaction to what you have written was concern that there needed to be a process, established under law, to address war crimes and that perhaps you felt this was not necessary and the victor could do as he pleased to pass judgement on the vanquished. I think the question at issue may now be whether something beyond what is established under US law (UCMJ or other binding legislation)can and should be applied, but before I try and address that question, let me tackle another.
In response to my admittedly snarky use of the rhetorical "I cannot believe that this is what you are advocating", you asked why I could not believe that you would advocate something today when I believe things about atrocities I never experienced or that happened before I was born. This is a really interesting question, and one that I believe supports my belief that there needs to be a transparent legal procedure for addressing war crimes.
In my opinion, war crimes trials, however they are legally constituted, can have two meaningful products: judgement for criminal offenders and the opportunity to bear witness. Whether Hermann Goering cheated the gallows or got what was coming to him is less historically signifcant than the written record of testimony by those who were victimized by Nazi atrocities that the Nuremberg trials produced. It would be too easy to dismiss, as some regretably do, that the holocaust ever happened without a legal way to process such testimony and hear the voices of those who were victimized in the legal record. A critical review of the historic record can and should inform what we believe about what we have not personally experienced, and evidence that is not anecdotal but has been reviewed at trial often stands up to closer scrutiny. If the victor summarily hangs those deemed by him to be war criminals, it may well punish offenders (and perhaps a few innocents) but it does not provide the value of bearing historic witness to atrocities or informing subsequent generations as does a legally constituted trial.
There are other means to provide such witness, rare as they may be, and I have had passing experience with one of these in southern Africa. I lived and worked there in the waning days of apartheid, particularly in Namibia during its first year of Independence and later while the Truth and Reconciliation Commission was in session in South Africa. The things that were done by the apartheid regime were often heinous in the extreme. In Namibia the guerrilla war that raged in the north and across the border in Angola produced many examples of what most would agree were war crimes, perpetrated on both sides of the conflict. I knew a person who had been disfigured by being held against the tailpine of a South African military vehicle until his face blistered, and a woman who had been so savagely tortured by Koevoet, the South African police unit that functioned as a death squad in northern Namibia that her spine was shattered. I also knew someone who was detained by the Namibian independence movement, SWAPO, as a suspected spy and by his own account tortured in a pit underground for over a year.
There were no war crimes tribunals in Namibia or in South Africa after independant rule. Namibia opted for a free pass for all and a formal policy of national reconciliation that leaves many old injuries unaired and unhealed but keeps the lid on what the government feared would tear the country apart. South Africa followed a different path, stressing the need to bear witness and hear perpetrators describe what they did in contrition with the possibility of pardon. I still marvel at what South Africa achieved with this commission, and wonder if it ever could be replicated elsewhere without the circumstances, and especially the inspired leadership that enabled it to take place in that country.
Ironically, both the Namibian experience and the South African one were choices made by the victors in a country were former combatants had to live alongside eachother as fellow countrymen, so war crimes tribunals might well have been counterproductive. In Namibia's case, there is increasing frustration expressed by those who feel their grievances have neither been heard or addressed.
So, I am willing to concede that a one size fits all approach to hearing testimony and judging war crimes may not be appropriate in every case. I still hold that a transparent legal process is required, especially if the benefits of bearing witness are to result.
Thanks,
By , at
Thu Aug 10, 06:34:00 AM:
GreenManTim: Things I never got to.
You ask where in the Constitution the President gets the power to hang war criminals? (for convenience I accept the terminology of war criminal) My answer: the war powers not withheld from him. You believe the hanging must be authorized explicitly. I believe he can do what is not forbidden. This certainly could be fixed through amendment.
Perhaps statute would suffice. It would certainly be challenged* - challenged as to whether Congress can limit what the CIC orders the military to do during hostilities. The present court would probably say yes 5/4; another might say no. The maps of that neck of the legal forest aren't real precise. As I understand it even the Secretary Of Defense or Joint Chiefs do not command. Authority goes from the President to the theater commander. But I may be wrong about that.
Whatever the precise chain of command I don't want the Senate and/or House Armed Forces Committee in it. There is absolutely no knowing what they might order on a given day - probably bourbon.
The recent case of the prisoners at Guantanomo flirted with defining Presidental authority. One part hinged on the scope of the war conventions. I thought both parts of the decision were mistakes with the conventions part the bigger mistake. It just seems unreasonable to conclude the conventions had intended to cover the new problems this war (or is it a war) presents. But the majority decided that they applied because they preferred that they applied.
As to American Values - whose exactly. Sharpton's - he believes I should be beggared because men owned slaves 160 years ago. Maybe those of John Kerry - what are they today? Those of the retirees next door who want smoking banned in this entire housing tract. Those of the faithful awaiting the return of Elvis?
The phenomena of 'witnessing', gathering every possible recollection and record about unpleasant recent events and then endlessly repeating them, is itself a recent construct. It seems to have began with taking a census of Revolutionary War veterans and recording their oral histories. The purpose was more about pensions than history. Similar acts in both North and South followed the Civil War.
The idea that just being heard helps heal victims correlates with the advent of Psychiatry. It fits right in with psychoanalysis aa a cure for anything from unhappy childhoods to the death of a dear cat. Psychoanalysis and witnessing as a therapy must support each other - if one fails why would the other work?
As might be predicted 'witnessing' was discovered to improve nonvictims too. Each year eldery Jews visit our local schools and tell eight-year-olds about the suffering. Not one's to miss a trick, Lebanese Muslims will most assuredly be there next year recounting the horrors of August 2006. Each may picket the other's 'witnessing'. When does witnessing become activism?
So much for American Values and witnessing. They exist but does that show WCLs improve anything? Or that more will? Your point seems reflexive. AV and witnessing show WCLs have merit; and WCLs show witnessing and AV have merit.
It all comes down to believing government can be improved. It probably can but bet the other way. To me the rule of law is a clever magic apparatus useful to government. Every government is bad for the governed - the badness always unevenly distributed. It seems OK to the government employees who get to kick everyone else around. Even lawyers in private practice, hailed as champions of liberty, are part of the government, sort of the shadow. A shadow does not exist without the object and lawyers vanish without the courts and laws of government. So why would I welcome still another government layer added to the ones I have. Neither do I wish the that plague on soldiers.
That is what International Law (big I and L) does, it builds another government layer; WCL is a bureau within it.
*Notice when the President defends an inherent power in the courts he acknowledges the court can decide. So a true believer President must ignore the court and see what results. Nixon and others raised 'executive privliege' as an argument. That was a blunder. If you believe in 'executive privliege' you must tell the judge "pound sand. I don't have to argue the point in this court or any other".
There are worse things than being impeached or even removed for your honest beliefs.
By GreenmanTim, at
Thu Aug 10, 02:16:00 PM:
Anonymous - A couple of responses:
I'd take bearing witness back before those Revolutionary War pensioners to the Society of Friends. Quakers bearing witness, often at great personal cost, dates back to George Fox and religious dissenters of the 17th century. That's a fairly long track record, if not a mainstream one. Certainly longer than our Constitution or American style democracy.
Whether the advantages of bearing witness and one of the primary legal vehicles for enabling this are reflexive or not is of less concern to me than whether that is a desireable outcome of a response to crimes in war. If so, then ensure there is a credible mechanism for doing so. As I have indicated previously in this exchange, there may be other transparent and accountible ways to achieve this besides war crimes tribunals where circumstances permit.
Maintaining American Values - a very loaded and ambiguous term that gets thrown around as justification for lots of things our government does. I cannot think of an institution or belief system that is completely static. Even the most fundamentalist interpretations of law and religious orthodoxies exist in a changing world and have to maneuver in response to that context. Even the Amish negotiate with modernity.
Since 1948 and the Geneva convention, this nation is on record as valuing certain principles and definitions of appropriate conduct in war and recognizing the existance of war crimes. In another time and place, other standards applied that standing US and international laws now reject. If we are now at a place in this country where the realities of asymetrical war and the tactics of a foe that is not organized as a nation-state prompt a reevaluation of those values, then I believe there must be the most rigorous of debates, both with regards to the values and attitudes of the governed and the constitutional constraints placed on the executive. No fudging on torture, summary execution, secret prisons, taking the gloves off. If you make the argument that existing conditions require different values and permitted acts in wartime, then this stuff has to be explicit, not "as of right" because it is not expressly prohibited in a document over 200 years old. Come right out and say we need a law permitting the use of "waterboarding", "sexual humiliation", punitive attacks on civilians in areas that harbor enemy combatants, or whatever other policy you think is required. Unless you do so, it makes our soldiers more vulnerable to charges of war crimes than otherwise. Clear policy, clear standing in law, better rules of engagement, clearer expectations.
But I believe the President and Attorney General cannot justify claiming that right as Executive priviledge or as somehow permitted through clever parsing of existing law. The Framers of the Constitution did not trust the Executive to the degree that is fashionable in some quarters today. Change the law - if you have the politcal stomach for it - or live within it. And as you so rightly note - "remember the hangee also holds the rope so be careful what you wish for."
So where does this leave us? I'm happy to continue but I'm not sure how much further you and I can take this before we start circling around the same arguments. I have greatly enjoyed the exchange, however. Cheers,
