War Crimes (Follow-Up)
Posted on April 23rd, 2008
by Daniel Larison |
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Megan McArdle responds to my earlier post, and clarifies her point enough that I see that we aren’t very far apart on this question. I mistook Ms. McArdle’s description of what can happen in war, which she correctly says is often far removed from the original causes of the war, for an argument that war crimes are somehow an unavoidable consequence of going to war. The misinterpretation was mine, and I regret berating her over that, since I have evidently read too much into her remark about Dresden. However, in the post just before it in which she is responding to Sullivan’s critique, she makes another statement that strikes me as odd:
I said that what the Bush administration has done was not the result of choosing what Glenn Greenwald called an “aggressive” war in Iraq. (To be distinguished, presumably, from the peaceful, passive sorts of wars that other countries have.)
In fact, except for this parenthetical remark, I generally agree with Ms. McArdle in this post as well, but the remark seems unnecessary. There are aggressors in war, and in the case of Iraq I hope we could agree that our government was that aggressor. Since aggressive war is itself a crime and a violation of international law, it is reasonable to expect that governments that wage aggressive war will be more likely to ignore legal conventions against other kinds of crimes committed during war. No one would deny that governments defending against invasion can commit atrocities, but because as the state of the war has been created by the aggressor there is some sense in which all atrocities that take place during the war can be traced back to the aggressor and the aggressor is responsible for them to one degree or another. Obviously, no state wages “peaceful” or “passive” wars, but not all states wage wars of aggression and I would wager that there is a connection between launching wars of aggression and the frequency of war crimes and other violations of international law. As the example of Dresden reminds us, though, a state that is responding to another state’s aggression can commit war crimes, which I suppose brings us back to Ms. McArdle’s more recent post.
I don’t think that the misinterpretation was yours – it seems to me to have been a case where, at best, McArdle posted too quickly and wrote things (”when you choose war, you choose war crimes”, and so on) that gave the clear impression that she was claiming that war crimes are an inevitable part of war when all she really meant to say was that they are very often a part of it, or that their frequency is unrelated to the reasons for which the war was undertaken. As to that latter point, the claim you make at the end – that “there is a connection between launching wars of aggression and the frequency of war crimes and other violations of international law” – is exactly what she wants to deny in any case. It’s one thing to point out that war crimes are not the sole province of the Bush administration, but it’s quite another to insist that the aggression that characterized our entry into the Iraq war has had nothing to do with the criminal ways in which it has been carried out.
Another point that needs to be raised in regards to the Iraq war is that the very rationale for the war – that we had to take extraordinary measures because “9/11 changed everything”, and the Cheny 1% Doctrine of Pre-Emptive War – that a state which bears even a 1% chance of a serious WMD threat to us should be treated as a 100% threat – of course led to this rationale being applied to the operations of that war, especially the use of torture. The rationale for torture is essentially the same – if we have even the slightest reason to think that someone has knowledge of attacks upon us, or our soldiers, we should treat it as a 100% certainty, and use whatever means are necessary to get that information, such as torture. This is the same principle you have stated – that the moral ability to wage a criminal war carries with it an increased ability to commit further war crime – but fills in the detail that is virtually unique to this government.
The legal basis for this war was that the US has the right to invade a country it deems even a potential threat somewhere down the line – 5, 10, 20 years perhaps. I’m not sure anyone else in history has been creative enough to offer this rationale. Once made, however, the same principle can be applied to a whole host of issue in the ensuing war, and in other areas of government as welll. This is why it is such a dangerous doctrine, and should be legally challenged at a war crimes trial – the only way to truly confront these issues and decide their legal basis in international law.
Of course, the real question is what institution has the balls to actually confront this issue and put the President and members of his administration on trial. Avoiding that, unfortunately, gives de facto approval to the rationale and all that follows from it, which includes the rationale for torture and other war crimes.
Exactly right. That’s very much related to the point that I was trying to make.
[...] UPDATE: This, from a frequent commenter at Eunomia, puts things quite well, too: … the very rationale for the war – that we had to take extraordinary measures because “9/11 changed everythingâ€, and the Cheny 1% Doctrine of Pre-Emptive War – that a state which bears even a 1% chance of a serious WMD threat to us should be treated as a 100% threat – of course led to this rationale being applied to the operations of that war, especially the use of torture. The rationale for torture is essentially the same – if we have even the slightest reason to think that someone has knowledge of attacks upon us, or our soldiers, we should treat it as a 100% certainty, and use whatever means are necessary to get that information, such as torture. This is the same principle you have stated – that the moral ability to wage a criminal war carries with it an increased ability to commit further war crime – but fills in the detail that is virtually unique to this government. [...]