link to Prof. Stein's home page
link to ISS 325 War and Revolution syllabus                                                    stein@msu.edu
ISS 325 section 6
WAR AND REVOLUTION
 ISS325--WAR & REVOLUTION lecture Just War pages
    spring 2003


TABLE OF CONTENTS

*Introduction: Relationships and Processes                             2-12
States/Weak States/Sovereignty/Blood                                  13-47
Just War/War Crimes/Genocide                                          48-94
Human Aggression                                                            95-131
Conquest/Authority                                                          132-154
Ethnic Conflict/Nationalism                                               155-184
Revolution/Internal Conflict                                               185-233
War/Threat/Aggression                                                      234-246
U.N./Peacekeeping/Humanitarian Intervention                     247-259
Nuclear Weapons/Weapons of Mass Destruction                 260-268
Kagan: article and Asmus & Pollack article                          269-295



 

Michael Walzer. Just and Unjust Wars. 1977.

 "JUST WAR"
Jihad & Mujahedin
CAN WAR BE JUST? HOLY? JUSTIFIABLE?

"But the truth is that one of the things most of us want, even in war, is to act or seem to act morally."

"WAR IS ALWAYS JUDGED TWICE"
 FIRST WITH REFERENCE TO THE REASONS STATES HAVE FOR FIGHTING, [why]
 SECONDLY WITH REFERENCE TO THE MEANS THEY ADOPT. [how]
(1) A WAR IS JUST OR UNJUST
(2) THE WAR IS BEING FOUGHT JUSTLY OR UNJUSTLY. --AGGRESSION AND SELF-DEFENSE
--RULES OF ENGAGEMENT

ONE MIGHT JUSTLY WAGE AN UNJUST WAR
OR
UNJUSTLY FIGHT A JUST WAR.
 BUSH on Kuwait: "I'VE RECONCILED ALL THE MORAL ISSUES. IT'S BLACK VERSUS WHITE, GOOD VERSUS EVIL."
--"OUR CAUSE IS JUST; OUR CAUSE IS MORAL; OUR CAUSE IS RIGHT."



"JUST WAR"
 

 "THE LOGIC OF WAR" is that WAR IS HELL

 CLAUSEWITZ: "WAR IS AN ACT OF FORCE WHICH THEORETICALLY CAN HAVE NO LIMITS." MILITARY CONDUCT KNOWS NO INTRINSIC LIMITS. THE LOGIC OF WAR IS SIMPLY A STEADY THRUST TOWARD MORAL EXTREMITY.
  THE AGGRESSOR IS RESPONSIBLE FOR ALL THE CONSEQUENCES OF THE FIGHTING HE BEGINS.
BUT
WAR IS A SOCIAL CREATION.

THERE ARE LIMITED WARS,
BASED ON CERTAIN NOTIONS ABOUT
 WHO CAN FIGHT,
 WHAT TACTICS ARE ACCEPTABLE,
 WHEN BATTLE HAS TO BE BROKEN OFF, AND
 WHAT PREROGATIVES GO WITH VICTORY

Chivalry--medieval mounted knights followed customs and rules of honor, generosity and courtesy, even in battle.
 
 
 
 

CRITICAL ELEMENTS TO A JUST WAR:

ONE OUGHT NOT TO RETURN EVIL FOR EVIL [two wrongs do not make a right]
DUTY NOT TO HARM OTHERS [non-combatants]
 PRESUMPTION OF 'JUST WAR' THEORY IS AGAINST THE USE OF FORCE
STRINGENT CONDITIONS ARE SET BEFORE FORCE CAN BE USED;
ALL OF THE CONDITIONS MUST BE MET.
 Jus ad Bellum / Jus in Bello
two ways of looking at war-the reasons you fight and how you fight
jus ad bellum - defines legitimate reasons a state may engage in war - the law of war
 •UN Charter Art. 2: All members shall refrain . . . from the threat or the use of force against the territorial integrity or political independence . . .
 •Art. 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs . . .

jus in bello - how wars are fought without prejudice to how they began - International Humanitarian Law/the laws of war: customary, Hague 1899/1907, Geneva 1949/1977 [meant to allow soldiers to fight]
 •limit the suffering caused by war. The reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.
 

 conduct of the war, commanders are responsible for the battlefield.

 Rommel burned Hitler's 'Commando Order' to shoot all enemy soldiers encountered behind the lines.
 
 
 
 

   Military Fears Image May Be Damaged
 April 1, 1999
 WASHINGTON (AP) -- Military officials worry that the lofty status gained by air power in the Persian Gulf War declines with each day that ethnic atrocities continue in Kosovo despite daily NATO airstrikes.
 Air Force officers and an active fraternity of retired air commanders bitterly blame the Clinton administration for returning to the incremental use of force that failed to bring Hanoi to heel in the Vietnam War.
 ``When you fly less than 50 bombing sorties per day for seven days, you're not serious about what you're doing,'' said retired Air Force Gen. Buster Glosson, one of the key planners of the Persian Gulf War air campaign. ``At best it's sporadic bombing.''
 Officers, particularly in the Air Force, see the reputation of air power at risk in a mission laden with restrictions imposed from the White House. And they are growing increasingly concerned as television images from refugee camps provide vivid evidence that the airstrikes are not preventing the human suffering of the Kosovar Albanians.
 ``I'm worried about us being blamed once again for being over-promisers,'' said one Air Force strategic planner who spoke on condition of anonymity.
 No one in uniform will publicly criticize the commander-in-chief over the campaign against Yugoslavia. But Lt. Gen. Ron Marcotte, commander of the 8th Air Force, underscored preconditions for success from the air.
   Appearing Wednesday night on CBS's ``60 Minutes II'' program, President Clinton said he was aware of the military's concern over how air power is being applied.
 ``I understand the frustration of some of our people in the Pentagon,'' Clinton said. ``I have worked very hard with them to give them the maximum possible leeway, showing sensitivity only to targets that might have marginal benefits but cause a lot of collateral damage. I don't want a lot of innocent Serbian civilians to die because they have a man running their country that's doing something atrocious.''
  Clinton urged Americans to ``have a little resolve here'' and added, ``We cannot view this as something that will be instantaneously successful.''
  In interviews with active and retired Air Force officers, the Vietnam analogy came up again and again. Glosson couldn't mention the word, saying only that the ``gradualism'' of the campaign against Yugoslavia ``reflects an era we'd all rather forget.''
 The Air Force strategic planning officer likened the Yugoslav bombing to President Johnson's ``Rolling Thunder'' air campaign over Vietnam that was designed to force Hanoi to the negotiating table. Then as now, such a campaign puts the initiative in the hands of the enemy, he said -- a view echoed by Powell.
 Air Force Lt. Col. Peter Faber said the current thinking within the Air Force sees airstrikes as a way ``to create mental concussion and paralysis'' in an enemy with simultaneous strikes that disrupt communications, electricity, infrastructure and other links that connect citizens and military forces to leadership. But the campaign must operate intensively, around the clock. ``The paralysis school requires constant pressure.''
  [note: despite the military fears, the bombing campaign was successful.]
 
 

GEN. SHERMAN:
"WAR IS HELL. WAR IS CRUELTY AND YOU CANNOT REFINE IT. THOSE WHO BROUGHT WAR INTO OUR COUNTRY DESERVE ALL THE CURSES AND MALEDICTIONS A PEOPLE CAN POUR OUT."
 BUT, EVEN IF THE ENEMY IS TO BLAME FOR THE WAR; IT DOES NOT FREE ONE FOR RESPONSIBILITY FOR SUFFERING.
 
FIGHTING JUSTLY
(1) PROTECTION FOR NONCOMBATANTS
(2) PROPORTIONALITY
 [100,000 IRAQI DEATHS TO FREE KUWAIT]
[AFFECTS CHOICE OF WEAPONS] [SCUDS]
 SADDAM HUSSEIN: "YOURS IS A SOCIETY WHICH CANNOT ACCEPT 10,000 DEAD IN ONE BATTLE." "Mother of All Battles"
 How many dead was the American public willing to accept?
 Is it just to kill many, many Iraqis to keep our own casualties low?
 ******
Thousands of enemy dead and few or none of our own dead. Oddly this bothers many people. If hundreds or thousands of Americans die, those this make the conflict more just?
 There is no requirement for warfare to be fair, only just. But, proportionality . . . . ?
 
 
 

22 JULY 1995 REUTERS.

POPE SAYS VICTIMS OF UNJUST WARS HAVE A RIGHT TO DEFENSE
 Asked about possible NATO military Intervention, Pope John Paul II said "he was prepared to support as a last resort limited intervention to halt the war in Bosnia."
 "MILITARY INTERVENTION IS ALWAYS THE LAST RESORT. THERE IS ALWAYS THE PRINCIPLE OF 'JUST WAR', WHICH IS A DEFENSIVE ONE."
 "ALTHOUGH A DEFENSIVE WAR IS TERRIBLE, THAT'S THE WAY IT IS. IF SOMEONE ATTACKS AND TRAMPLES ON THE RIGHT TO LIFE, THE RIGHT TO EXIST, THERE IS THE RIGHT TO DEFENSE."
 Vatican Spokesman Criticizing "Pacifism at All Costs And Interventionism at All Costs," Said The Pope's Number One Priority Was to End The War.
******
THEODORE ROOSEVELT

"FEAR GOD AND TAKE YOUR OWN PART"

 1916, debate over US getting into the Great War [WWI]

 "PEACE IS NOT THE END. RIGHTEOUSNESS IS THE END. WHEN THE SAVIOUR SAW THE MONEY-CHANGERS IN THE TEMPLE HE BROKE THE PEACE BY DRIVING THEM OUT. . . . INSTEAD OF PRESERVING PEACE AT THE EXPENSE OF RIGHTEOUSNESS, THE SAVIOUR ARMED HIMSELF.

 RIGHTEOUSNESS IS THE END . . . AND SOMETIMES IT IS NOT PEACE, BUT WAR WHICH IS THE PROPER MEANS TO ACHIEVE THE END.

 PEACE DOES NOT NECESSARILY BRING RIGHTEOUSNESS.
 
 
 
 
 
 

'JUST WAR' THEORY
[McKenna]
CATHOLIC OR SCHOLASTIC POSITION
 [similar to the Protestant-humanist position, but treats war as the lesser of two goods rather than the lesser of two evils.]

SERMON ON THE MOUNT: CONDEMNS ALL RESORT TO FORCE--TURN THE OTHER CHEEK, IT IS ADDRESSED TO INDIVIDUALS IN THEIR INDIVIDUAL CAPACITY.

BOTH DEFENSIVE AND OFFENSIVE WAR CAN BE MORALLY JUSTIFIED. i.e., WAR CAN BE MORALLY GOOD.
 STATE HAS THE MORAL OBLIGATION TO SEEK THE COMMON EARTHLY WELFARE OF ITS CITIZENS. THERE IS A RIGHT OF SELF-DEFENSE:
 OFFENSIVE JUST WAR: [humanitarian intervention] punish sinners; deter evil - Iraq? "Axis of Evil"
 •"peoples war" against Fascism
 •"wars of national liberation" and "national self-determination" v. colonialism
 •"holy war" and "jihad"
 "THE INJUSTICE THUS INFLICTED WOULD CALL NOT ONLY FOR REPARATION BUT--IN THE INTERESTS OF SOCIAL ORDER--FOR PUNISHMENT."
 [actions of the passengers on #93 over Pennsylvania attacking the hijackers. They were not defending themselves but other members of their society.]

BUT, VIEWS WAR AS TERRIBLE AND TRIES TO MAKE THE USE OF FORCE A DIFFICULT MATTER TO JUSTIFY.
 
 
 
 

McKenna, continued:
Hugo Grotius, 17th century Dutch philosopher and father of International Law:
JUST WAR

(1) A JUST CAUSE, SUCH AS SELF-DEFENSE

(2) RIGHT AUTHORITY -- WAR DECLARED [sanctioned, authorized] BY A LEGITIMATE AND COMPETENT PUBLIC AUTHORITY

(3) RESPONSIBLE AGENTS HAVE A RIGHT INTENTION AND THERE MUST BE PUBLIC ANNOUNCEMENT OF THAT INTENTION

(4) SERIOUSNESS OF INJURY IS PROPORTIONATE TO WAR'S DAMAGES

(5) WAR & FORCE ONLY AS A LAST RESORT, when peaceful means have failed

(6) THE END/GOAL SOUGHT MUST BE PEACE

(7) REASONABLE HOPE OF SUCCESS IN WAR
  ***
JUSTIFICATION OF WAR
additional conditions:
Need to argue and prove, rather than merely assert, the justness of a cause:

(1) WAR MUST BE FOUGHT BY MORAL MEANS

(2) INJURY WAR SEEKS TO PREVENT MUST BE REAL AND CERTAIN
 (3) BY GOING TO WAR ONE MUST PRESERVE VALUES THAT OTHERWISE COULD NOT BE PRESERVED
 
 
 
 

"PRESIDENT SIGNS IRAQ RESOLUTION"

"Either the Iraqi regime will give up its weapons of mass destruction, or, FOR THE SAKE OF PEACE, the United States will lead a global coalition to disarm that regime."

Office of the Press Secretary October 16, 2002

Clausewitz: "No one starts a war-or, rather, no one in his senses ought to do so-without first being clear in his mind what he intends to achieve by that war and how he intends to achieve it."
IMPROVISED WAR ETIQUETTE
By George F. Will Thursday, August 29, 2002
"Polish regular officers fired on our territory. Since 5:45 a.m. we have been returning the fire."
-- Adolf Hitler, Sept. 1, 1939
It was a particularly contemptible case of vice paying homage to virtue when Hitler spoke those words -- "returning fire," indeed -- in the first hours of the Second World War. But the virtue -- having a casus belli before going to war -- is so universally acknowledged that even Hitler paid homage to it. Immediately before Hitler attacked Poland, the SS staged a provocation -- a "Polish" attack on a German radio station near Poland's border, a sham that included corpses of German "victims" -- actually, concentration camp inmates shot by the SS.
This is pertinent to America's debate about preemptive war against Iraq, not because the administration's aims are disreputable or its contemplated justifications are meretricious, but because the administration is conscientiously groping for a way to do something morally defensible and to do it in a way consistent with norms of international and constitutional practice. Without guidance from any precedent in this republic's history, the administration is improvising diplomatic and constitutional etiquette for launching preventive war without what has normally been recognized as a casus belli.
 
 

 WHY WE MUST ACT
by Vladimir Putin; Prime Minister of Russia. MOSCOW November 14, 1999 The New York Times
 When President Clinton and I met in Oslo earlier this month, we discussed the situation in Chechnya. Accounts of that conversation in the American media, understandably, emphasized the president's warnings about the impact of Russia's military operations. Because we value our relations with the United States and care about Americans' perception of us, I want to explain our actions in clear terms.
 To do so, I ask you to put aside for a moment the dramatic news reports from the Caucasus and imagine something more placid: ordinary New Yorkers or Washingtonians, asleep in their homes. Then, in a flash, hundreds perish in explosions at the Watergate, or at an apartment complex on Manhattan's West Side. Thousands are injured, some horribly disfigured. Panic engulfs a neighborhood, then a nation.
 Russians do not have to imagine such a calamity. More than 300 of our citizens in Moscow and elsewhere suffered that fate earlier this year when bombs detonated by terrorists demolished five apartment blocks.
 Consider another unthinkable scenario. A long simmering dispute between one of your states and your federal government causes political unrest in that state. Armed militias arise, similar to those found in your states of Montana and Idaho. Eventually, they are assisted by foreign adventurers with their own agenda who use that troubled region as a base to launch violent raids against a neighboring state. Lives and property are destroyed -- as a means of expanding the chaos.
 Russians do not need to view the latest James Bond movie to see that macabre story unfold. Rather, we saw it in all-too-real life as guerrillas based in Chechnya mounted bloody raids on neighboring Dagestan. They forcibly occupied several communities, terrorizing the inhabitants. The stated goal was to establish an "Islamic republic," an idea thoroughly alien to the vast majority of local citizens.
 No government can stand idly by when terrorism strikes. It is the solemn duty of all governments to protect their citizens from danger. Americans obviously understand this concept. When two United States embassies in Africa were blown up, American warplanes were soon dispatched to bomb suspected terrorist facilities in Sudan and Afghanistan.
 Terrorism today knows no boundaries. Its purveyors collaborate with each other over vast distances. We know that a great deal of the violence emanating from Chechnya is financed from abroad.
  We also know that most Chechens -- whatever their feelings about Russia -- are neither fanatics nor willing hosts to the extremists who seek to transform Chechnya into a killing field.
 Reluctantly, we have intervened. Our immediate aim is to rid Chechnya of those who threaten the safety of Chechens and Russians. We also seek to restore civil society to the Chechen people, who have been victims of deprivation, living in the grip of armed criminal gangs for years.
 American officials tell us that ordinary citizens are suffering, that our military tactics may increase that suffering. The very opposite is true. OUR COMMANDERS HAVE CLEAR INSTRUCTIONS TO AVOID CASUALTIES AMONG THE GENERAL POPULATION. We have nothing to gain by doing otherwise. The Chechen citizens, after all, are our citizens too. Our land and air forces strive to target only opposing armed forces. The whole reason we chose accurately targeted strikes on specifically identified terrorist bases was to avoid direct attacks on Chechen communities.
 Exactly the same tactics were deployed during Operation Desert Storm, in the bombing of the former Yugoslavia and in the various Unites States attempts to strike back at the world's most wanted terrorist -- Osama bin Laden. YET IN THE MIDST OF WAR, EVEN THE MOST CAREFULLY PLANNED MILITARY OPERATIONS OCCASIONALLY CAUSE CIVILIAN CASUALTIES, AND WE DEEPLY REGRET THAT.
 
 

CRIMES AGAINST HUMANITY
• 1948 GA adopted the Convention on the Prevention and Punishment of the CRIME OF GENOCIDE.
I. ... genocide, whether committed in time of peace or in time of war, is a crime under international law ...
II. ...GENOCIDE means any of the following acts committed with INTENT TO DESTROY, IN WHOLE OR IN PART, A NATIONAL, ETHNICAL, RACIAL OR RELIGIOUS GROUP, as such: a. killing; b. serious bodily or mental harm;
c. inflicting conditions of life calculated to bring about its physical destruction;
d. measures intended to prevent births; e. forcibly transferring children.
INTERNATIONAL HUMANITARIAN LAW: The Law of War
 Article 6 of the Charter of the International Military Tribunal [1945] in Nuremberg for trials of major war criminals. a) CRIMES AGAINST PEACE: namely,
 •b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour . . . of [civilians in occupied territory, prisoners of war or persons on the seas], killing of hostages, plunder of public or private property, wanton destruction . . . or devastation not justified by military necessity;
 •c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal WHETHER OR NOT IN VIOLATION OF THE DOMESTIC LAW OF THE COUNTRY WHERE PERPETRATED.
 •GENEVA CONVENTIONS: Common Article 3
 In the case of armed conflict not of an international character. . . each Party to the conflict shall be bound to apply, as a minimum:
 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat . . . shall in all circumstances be treated humanely. To this end, the following acts are and shall remain prohibited at any time and in any place:
 (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
 

RWANDA GENOCIDE 1994
 

 In November 1994, the UN Security Council established the INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

to prosecute Rwandan officials for the 1994 genocide of Tutsis.
 Prosecutors of the tribunal can charge people for violations of the 1948 Genocide Convention
 along with internationally accepted crimes against humanity, which for the first time includes rape.
 The tribunal is based in Arusha, Tanzania. Eight people have been convicted of Genocide as of Dec. 2001, one acquitted.
•Tribunal considered very inefficient, 9 cases in 7 years. 2002 new prosecutor-Carla del Ponte serves both tribunals.

 first judgment Sept. 2, 1998 -- Jean-Paul Akayesu was found guilty of nine counts of genocide and crimes against humanity. Akayesu is a former mayor of a small town in central Rwanda. He was sentenced to three life terms plus 80 years. He is appealing his sentence.
 Sept. 4, 1998, Jean Kambanda, former prime minister of Rwanda, pled guilty and was sentenced to life imprisonment for six counts of genocide and crimes against humanity.
 December 14, 1998, Omar Serushago, a former Rwanda Hutu militia leader pled guilty to four counts of genocide. He was sentenced to 15 years.
 37 other officials still await trial before the U.N. tribunal.

 At another level, the RWANDAN NATIONAL JUDICIAL SYSTEM is prosecuting Rwandan citizens alleged to have participated in the genocide.
 As of June 2001, 6,000 people have been tried in the courts
 and 116 sentenced to death.
 However, 8 years after genocide about 115,000 suspects are crowding Rwanda's inadequate prisons waiting for trial. 100 year backlog.
 June 2002 Rwanda introduced the GACACA system-grass, small lawn-- where elders meet, i.e., grassroots justice. 11,000 courts with 260,000 local elected judges will try to greatly speed up justice. Cases held in area where crime committed. Expected to take 5 years.
 Goal of national reconciliation and mental healing of survivors.
 maximum sentence of life for murder.

 



 
THE INDICTMENT OF SLOBODAN MILOSEVIC
 

By Michael P. Scharf June 1999
 The International Criminal Tribunal for the Former Yugoslavia, which on May 24, 1999 indicted Slobodan Milosevic along with four top aides, was established by the United Nations Security Council in May 1993. Milosevic extradited June 2001; trial began Feb. 12, 2002 http://www.un.org/icty/glance/procfact-e.htm
•39 indicted being detained. 38 indicted still at large. 19 guilty verdicts; 2 acquittals.
•One Serbian, General Krstic, was convicted of Genocide for Srebrenica.
•one verdict established that the systematic use of rape could be prosecuted as a war crime.
•2002--Biljana Plavsic, xPres of Bosnian Serb republic pleads guilty to Crimes against Humanity

•Statute: jurisdiction to prosecute individuals who, in the territory of the former Yugoslavia, commit grave breaches of the Geneva Conventions (Article 2), violations of the laws or customs of war (Article 3), genocide (Article 4), and crimes against humanity (Article 5).
•The most serious penalty the Tribunal may impose is life imprisonment. Longest sentence so far is 45 years.

•indictment, charges Slobodan Milosevic (President of the Federal Republic of Yugoslavia), Milan Milutinovic (President of Serbia), Dragoljub Ojdanic (Chief of Staff of the Yugoslav army), Nikola Sainovic (Deputy Prime Minister), and Vlajko Stojiljkovic (Minister of Internal Affairs) with:
•responsibility for deporting 740,000 Kosovo Albanians and for the murder of 340 others.
•four count indictment: (1) Deportation (a crime against humanity); (2) Murder (a crime against humanity); (3) Murder (a violation of the customs of war); and (4) Persecution (a crime against humanity).

•THE CHARGES ARE BASED ON TWO THEORIES OF LIABILITY.
 •The first is command responsibility: the responsibility of a superior for actions committed by his subordinates. As the civilian commander of the Yugoslav military and police forces, Milosevic holds an affirmative legal obligation to prevent his forces from committing, encouraging, or enabling others to commit atrocities in Kosovo.
 •The second is personal responsibility for committing, planning, instigating, ordering or aiding and abetting war crimes and crimes against humanity.
 For centuries INTERNATIONAL LAW applied only to:
STATES [international actors] and

INTERNATIONAL ORGANIZATIONS [non-state actors[.

 States are composed of and led by persons.
 RECENT INTERNATIONAL LAW applies to INDIVIDUALS.
 Pinochet, Milosevic, International Criminal Court, Sharon
•1998 Pinochet detained in UK and held for trial on violations of Torture Convention.
•1999 Milosevic indicted by xYugoslav war crimes tribunal for murder and crimes against humanity, 2001 arrested, 2002 trial
•2000 Senegalese court indicts exiled former dictator of Chad, Hissene Habre, on torture charges. Places him under house arrest.
 •Senegalese application of legal precedents established in the Pinochet case-including:
 •no immunity for former heads of state for certain crimes
 •"universal jurisdiction" for courts of any state
•2001 Sharon indicted in Belgium court for Lebanon early 1980. June 2002 appeals court ruled that the trial was "inadmissible" under Belgian law, that a case could not proceed against a person who was not in Belgium.
 •Belgian Justice Ministry believed a continuation of the case against Mr Sharon was impossible after the International Court of Justice upheld the diplomatic immunity of former Congolese Foreign Minister for allegedly inciting the killing of hundreds of members of his country's Tutsi minority in 1998
•Kissinger threatened over 1973 coup in Chile.
•al Qaeda is a non-state actor
July 1998 - Rome Statute of the International Criminal Court:
 Article 5 Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
 (a) The crime of genocide;
 (b) Crimes against humanity;
 (c) War crimes;
 (d) The crime of aggression.
 Article 6 Genocide
 For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
 Article 7 Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder; (b) Extermination; (c) Enslavement;
(d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
 Article 8 War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property: [note: there are 26 defined acts.]
(i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
 (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949,
 

 
INTERNATIONAL CRIMINAL COURT
 UN Conference in Rome, 17 July 1998,
Rome Statute of the International Criminal Court. 139 signatories, 82 ratifications, got the 60 ratifications needed to come into force on 1 Jul 2002. Ratified by many EU members: Austria, Benelux, Canada, Scandinavia, France, Germany, Italy, Spain, South Africa, Venezuela, Argentina.]
 USA [Clinton] last minute signatory 12/31/00 but indicated would not submit to Senate due to flaws; on 5/6/02 Bush administration indicated that did not intend to ratify Rome Statute and thus "has no legal obligations arising from its signature."

 Roots in early 19th century. 1872 ICRC proposal permanent court for crimes in Franco-Prussian War. Treaty of Versailles proposed ad hoc court to try Kaiser and other German war criminals. Attempts in UN since Nuremberg and Tokyo, dormant but revived by crimes in Yugoslavia and Rwanda
 Since 1994, GA resolutions, PREPCOM--preparatory committee to draft a convention, NGO advocacy--International Law Commission et al., funding for LDCs to participate, "silence of the south was deafening" [south feared that veto will keep P5 issues out of ICC and that only southern crimes will be prosecuted.]

 Substantive issues
 Jurisdiction of the court: CORE CRIMES--genocide, war crimes, crimes against humanity or acts of aggression, drug trafficking, torture, targeting UN personnel, terrorism, hijacking, attacks on planes, ships, oil platforms.
 Limited jurisdiction, more would sign, too expansive some of most powerful won't support.
 RESULT: jurisdiction over genocide, war crimes and crimes against humanity. Could not agree on definitions of aggression or terror. Could not agree on other crimes.
 Relationship/independence from SC:
 SC chap VII may refer a situation to ICC for investigation making ICC part of ch. VII enforcement. Since SC authority extends to non-parties of ICC this extends ICC's jurisdiction.
  The Security Council may request that the Court defer an investigation or prosecution for a renewable period of 12 months when it is exercising its Chapter VII peace-making or enforcement powers. This deferral is to ensure that the Security Council's peace-making efforts will not be hindered by the Court's investigation or prosecution.
 
 

the USA and the ICC
 

•Clinton signs Rome Statute at last minute, 12/31/00, but expresses "concerns about significant flaws in the Treaty." Concern that ICC will "not only exercise authority over personnel of states that have ratified the Treaty, but also claim jurisdiction over personnel of states that have not." The US is concerned about the "likelihood of politicized prosecutions."
•Court jurisdiction over U.S. personnel should come only with U.S. ratification of the Treaty. U.S. should have the chance to observe and assess the functioning of the Court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, successor, submit the Treaty to the Senate for advice and consent.

•Bush administration on May 6, 2002 send Letter to UN Secretary General Kofi Annan.
• This is to inform you . . . that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature

 •US vetoes extension of PK mission in B-H June 2002. Concern that US PK personnel could be subjected to "unwarranted, politically motivated prosecutions" by ICC.
•US wanted a resolution permanently barring ICC from action against PK personnel from states not party to Rome Statute w.o. SC consent.
•Big open SC debate, 39 states participated, most critical of US. SC passes Res 1422 providing a twelve-month delay.
1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;
2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary;
3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations;

•ARTICLE 98/2 AGREEMENTS:  Romania, Aug. 1, signs an agreement not to extradite US troops.
•American officials decided to make use of a provision within the treaty known as Article 98, which lets nations negotiate immunity for their forces on a bilateral basis.  Seeks agreements with all allies, threatens to withhold military assistance.
•CONGRESS passes legislation granting the White House permission to use all means, including military force, to free Americans held under the court's authority. [attack the Hague]
•Bush administration warns Europe we will change our role in NATO if there are not agreements.
•EU compromise: Sept 2002-agrees that members can sign agreements, set guidelines. Cases must be dealt with by US courts, agreements aren't reciprocal.

Article 98 Cooperation with respect to waiver of immunity and consent to surrender
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
 
 

THE LAW OF WAR Jus in Bello

 DICHOTOMY: For thousands of years war was often barbarous, cruel, vicious and sadistic.
 The Old Testament records Nebuchanezzar II's cruelty to Egypt, Syria, Palestine, and Jerusalem.
 HOWEVER, in many parts of Africa, Asia, Europe and the Middle East
There Were Rules of War and Norms of Humane Conduct.

 ALTHO MODERN INTERNATIONAL HUMANITARIAN LAW DEVELOPS IN EUROPE, IT HAS ROOTS THAT GO BACK INTO ANTIQUITY AND THAT COME FROM THE FOUR CORNERS OF THE EARTH.
  Animal Combat as Observed by Naturalists Indicates Rules of Combat for Individuals of the Same Species. Often Do Not Kill the Antagonist.
  STONE AGE HAS NOT ENDED IN NEW GUINEA, AMAZON, . . .
 We can observe the behavior of the dawn of human societies by observing existing stone age tribes. Plus we can examine the archeological record.
 •LAW OF THE JUNGLE OFTEN prevailed-strong would carry out massacres and atrocities on the defeated.
 •code of honor forbade warriors to surrender-win or die, with no mercy.
  BUT, ESPECIALLY AMONG SEDENTARY PEOPLES, EFFORTS TO REDUCE HORRORS. [Sedentary societies will be neighbors for generations]
 --THEY NEED WAYS TO RESTORE NORMAL RELATIONS [peace].
 Afghanistan 2001 - Afghans allowing Afghans to surrender and go home.
 
 
 

 PAPUA NEW GUINEA, tribes are constantly at war, BUT
 an adversary is always warned in advance
 fighting does not begin until both armies are ready
 Arrowheads are not barbed to avoid causing too much injury
 If a man is killed or wounded, battle stops for 15 days
  QUINCY WRIGHT reports war practices of primitive peoples included rules:
 distinguishing types of enemies
 formalities for declaring, beginning and ending war
 limits of time, place, methods, numbers in conduct of war
  DAVID AND GOLIATH - SINGLE COMBAT - reduces casualties, rules to ensure equal chances.
  RULES OF CHIVALRY regarding treachery, weapons, surrender, mercy, ransom.
  SLAVERY - is an evil institution, but better than massacre.
 Captured enemies spared to be workers.
  2,000 BCE Sumerians provided for arbitration, diplomatic immunity, declarations of war, peace treaties.
 Code of Hammurabi, King of Babylon, begins "I establish these laws to prevent the strong from oppressing the weak." It allows ransom of POWs.
 Egyptian culture commanded giving food to enemies and freeing prisoners.
 Hittites differentiated between enemy cities that capitulated and those that resisted; they also declared war and signed treaties.
 Persia's ruler, Cyrus, was noted for treating wounded soldiers the same as his own.
  OLD TESTAMENT is both cruel and humane.
 passages where the Lord orders bloodshed and forbids dealing with enemies.
 other passages are more humane.
 "Law of the Talon" limits violence to a PROPORTIONATE EYE OR TOOTH.
 Enemies could surrender
 mercy given to wounded, women, children and old
 INDIA's rulers and its ancient texts lay down principles for warriors:
 not kill enemies who are disabled or surrender
 send the wounded home after they heal;
 respect for religious orders that aid wounded soldiers;
 limits on combat--prohibiting barbed or poisoned weapons or flaming arrows;
 not attack an enemy who is not ready for combat or severely wounded or fleeing.
 it was forbidden to declare that no quarter would be given.
 GREEK practice [Homer's Iliad] provides for truces and respect for enemy dead, but otherwise is fairly severe.
 sacking of Troy was horrific
 defeated enemies could be killed or enslaved as the victor chose.
 ROME ruled by force.
 vanquished were at the mercy of the conqueror.
 CARTHAGE, nothing and no one was spared.
 SPARTUCUS slave revolt--defeated were displayed and crucified

 after Rome became Christian, in 390 AD, Emperor ordered the throats of 7,000 people cut in Thessalonika, without distinction for age or sex, after rioting in which only a few Romans died.
  ROMAN AND GREEK [Stoic] PHILOSOPHERS did give us the concept of Just War [justa causa; bellum justum et pium] that war should have a just and pious cause or be for defense or to redress a wrong. HOWEVER, as with later generations of European conquerors who sought to justify their conquests and the crushing of others, the Romans found just cause with exceptional hypocrisy.
 
 

SUN TZU, in THE ART OF WAR, required a commander to show humanity, courage and dignity.
 respect prisoners of war
 win with the least harm to the enemy military and civilians
 avoid needless violence
 not to totally annihilate the enemy.
 PRE-COLONIAL AFRICA is incredibly diverse, but we find:
 rules governing the start of hostilities
 drums, horns or other warnings to the enemy
 enemy had to be aware of the reasons for an attack
  declaration of war had to be delivered.
 truces for harvest and sowing time.

 rules of honor governed the behavior of WARRIORS
 considered a noble class
  fallen enemy could not be killed
 disarmed enemy could not be struck
 the BANTU had a traditional rule: "you hit but you do not kill" meant to prevent superfluous injury.
  'ASSIMILATION' of captured enemy into your tribe was more humane than either killing or slavery.
 respect for old people, women and children extended to all non-combatants.
 HOWEVER, war rules were mostly for fighting betw adversaries of the SAME ETHNIC GROUP,
 a sense of solidarity and common rules pervaded
 
 

ISLAM finds its rules of war in the KORAN and in the words and practice of the Prophet MOHAMMAD
 The Prophet led Muslim Armies in battle between 610 and 632
  Pre-Islamic seventh century:
 little notion of the state
 widespread anarchy

 ISLAM introduces a community in which all believers have a place, a new monotheistic religion, and a new legal order.
 faithful are to respect limits of justice and equity and to avoid tyranny and oppression.
  THERE ARE NO EXCEPTIONS ABOUT THE CODE OF BEHAVIOR.
  Fundamental concern with the dignity and integrity of the human person;
 formal prohibitions on mutilation, torture or other degrading treatment.
 The Prophet, whose uncle had been mutilated, commanded "never mutilate even a dog."
  Other writings and principles:
 "FIGHT THOSE WHO FIGHT YOU." [i.e., distinguish non-combatants.]
 "Fight in the cause of God those who fight you, but if they cease, God is Oft-forgiving, Most Merciful."
 "fight in the name of God, kill not children, do not betray, mutilate or commit perfidy."
  Islam's rules were laid down 1,300 years ago. However, all Islamic states have had little difficulty reconciling Islamic rules and law with the behaviors required in the Geneva and Hague Laws, which are seen as consistent with the Islamic concept of Humanitarian Law.
 [BNS-post9/11 cautionary note: Islam shares these humane statements with all other religions; and also shares with other religions a few inhumane statements. Religious texts--Bibles, Testaments, Koran, Holy Scripture, etc.--will have diverse and contradictory statements; mostly compassionate but occasionally vicious. Extremists draw on absolute statements that do not represent the mainstream of a religion. In 1995, when Christian Serbs massacred 6,000 Muslims at Srebrenica no one blamed Christianity or quoted out of context bloody, brutal parts of the Bible.]
 
 

IN THE MID-19TH CENTURY, WAR CHANGED!!!

 From medieval times war had been fought between the military classes of different states.
 enemy came from the same class
 Shared ideas of chivalry, honor and mutual respect
  In mid-1800s however:
 1. ENORMOUS INCREASE IN SIZE OF LAND ARMIES
 2. MAJOR TECHNOLOGICAL ADVANCE IN WEAPONS
 3. FAILURE OF OLDER TACTICS of mass infantry formations to hold their own against artillery
 --Gettysburg 1862: Pickett's Charge decimated southern infantry.
•12 - 14,000 troops charged 6,000 Union troops over 1 mile of open ground.
•Preceded by massive artillery barrage but then decimated by Union artillery and massed infantry.
•Some Southern units had 70% casualties, overall c.5,000 dead, wounded, captured.

 4. INADEQUACY OF MILITARY MEDICAL SERVICES AND SKILLS to deal with huge numbers wounded by destructive weapons.
 
 

 A Nation Learning to Kill, and Learning to Like It
Book review of Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society .nyt 10/13/95
 author is Lt. Colonel and Psychology Professor at West Point
A powerful natural disinclination, even among soldiers, to the taking of human life.
TABOO against intraspecies destruction. This taboo is weakening.
 "We are reaching that stage of desensitization at which the infliction of pain and suffering has become a source of entertainment: vicarious pleasure rather than revulsion."

 Studies of previous wars indicate that 85% of ordinary soldiers did their best not to kill--fire in air, work on supplies, run away.
 "At the decisive moment, each man became, in his heart, a conscientious objector who could not bring himself to kill the man standing before him."
After Gettysburg--90% of 25,574 muskets found on the field were loaded. [95% of soldiers effort went to loading, 5% to fire] "Most soldiers were not trying to kill the enemy."
past wars had high casualties because of long duration of battles.
Recent wars kill at a distance with cannon and bombs.

 "If one does not have to look into the eyes when killing, it is much easier to deny the humanity of the victim."
•Executions by a bullet in the back of the head.
•Kidnappers more likely to kill victims they keep blindfolded.
•Covering the face of the victim "serves to protect the mental health of the executioners."

 Willingness to kill becomes greater:
 --advanced training techniques turn killing into a conditioned reflex
 --use a human figure pop-up target rather than a circle
 --demonize the enemy thru political or racial propaganda
 --group pressure is intense
 --leader who orders the killing is respected or feared.

 Firing rates in Vietnam increased to 90% from the 15-20% of WWII.
  BUT
•Devastating results for the Vietnam veterans--burden of guilt.
=======================================
OBEDIENCE TO AUTHORITY.
Stanley Milgram
 WHY ARE PEOPLE WILLING TO INFLICT PAIN OR DEATH ON OTHER HUMAN BEINGS?
 How is it that a person who is decent, within the course of a few months finds himself killing other men with no limitations of conscience?

 LET US REVIEW THE PROCESS.

1. MUST BE MOVED FROM A POSITION OUTSIDE THE SYSTEM OF MILITARY AUTHORITY TO A POINT WITHIN IT.
• Induction notice
• oath of allegiance
• military training area is spatially segregated
• absence of competing authorities.
• rewards and punishments based on obedience
 2. BASIC TRAINING. MILITARY SKILLS, AND TO BREAK DOWN ANY RESIDUES OF INDIVIDUALITY AND SELFHOOD.
•the aim is discipline, submersion of the individual to an organization mode.
•aim of the military training is to eliminate any traces of ego, and to assure, through extended exposure, AN INTERNALIZED ACCEPTANCE OF MILITARY AUTHORITY.
 

3. AUTHORITY DEFINES THE MEANING OF THE SOLDIER'S ACTION IN A WAY THAT LINKS IT TO VALUED IDEALS AND THE LARGER PURPOSES OF SOCIETY.
ENEMIES OF HIS NATION
his own country is endangered.
 
 
 

OBEDIENCE p.2
 

 THE SITUATION IS DEFINED IN A WAY THAT MAKES CRUEL AND INHUMANE ACTION SEEM JUSTIFIED.
 The enemy is subhuman and thus not worthy of sympathy.

 IN WAR, DISORGANIZATION IN THE RANKS IS A DANGER TO THE UNIT. THUS, DISCIPLINE BECOMES AN ELEMENT OF SURVIVAL.

 ROUTINE PERFORMANCE OF DUTIES
THROUGH THE SOLDIER'S ACTIONS
MEN, WOMEN AND CHILDREN SUFFER ANGUISH AND DEATH,
BUT HE DOES NOT SEE THESE EVENTS AS PERSONALLY RELEVANT.
HE IS CARRYING OUT THE MISSION ASSIGNED TO HIM.

THERE IS A POWERFUL, INTERNALIZED BASIS FOR OBEDIENCE.
 THE SOLDIER DOES NOT WISH TO APPEAR A COWARD, DISLOYAL, OR UN-AMERICAN. [or Un-Serb, un-Hutu, etc.]
 THE SITUATION HAS BEEN SO DEFINED THAT HE CAN SEE HIMSELF AS PATRIOTIC, COURAGEOUS AND MANLY ONLY THROUGH COMPLIANCE.
 

 HE HAS BEEN TOLD HE KILLS OTHERS IN A JUST CAUSE.

The soldier is locked into a structure of authority, and those who charge that he is doing the devil's work threaten the very psychological adjustments that make life tolerable. Simply getting through the day and staying alive is chore enough; there is no time to worry about morality.
 
 

 
EICHMANN'S 'DEFENSE NOTES' COME TO LIGHT
 By ROGER COHEN August 13, 1999
 BERLIN -- "Obeying an order was the most important thing to me. It could be that is in the nature of the German."
 So, early on in memoirs published Thursday by the German daily Die Welt, does Adolf Eichmann seek to explain his central role in the killing of 6 million European Jews by the Nazis.
 The statement, part of an attempt by Eichmann to portray himself as a man driven by a visceral sense of duty, rather than hatred, to organize the mass murder of Jews, appears on page 6 of 127 pages of handwritten reflections.
 In the outline of his life published Thursday, Eichmann wrote: "From my childhood, obedience was something I could not get out of my system. When I entered the armed services at the age of 27, I found being obedient not a bit more difficult than it had been during my life to that point. It was unthinkable that I would not follow orders."
 He continued: "Now that I look back, I realize that a life predicated on being obedient and taking orders is a very comfortable life indeed. Living in such a way reduces to a minimum one's own need to think."
 The remarks appear likely to prove sensitive here because the question of the responsibility for the Holocaust of Germans who, at a far lower level than Eichmann, merely "obeyed orders," remains controversial.
  Moreover, the appropriate relationship between order and freedom, and between initiative and obedience, remains an open question in a highly regulated German society still marked at times by the rigid mentality of the "Beamte," or functionary, for whom duty has greater value than enterprise.

 Rising through the ranks of the SS, he was entrusted in early 1942 with carrying out the "final solution," a goal of annihilation he pursued with unrelenting bureaucratic zeal.
 After the war, he escaped to Argentina in 1946, before being brought to Israel in 1960. At his trial the next year, he showed the same determination to portray himself as no more than an obedient servant of orders from on high as he does in the pages published by Die Welt.
 "These pages are genuine, but they amount to a legal defense more than a memoir," said Irmtrud Wojak, a prominent historian of the Nazi years. "And in them he defends himself, as he always did, as an innocent because he did no more than obey orders."
  So deep was the instinct for obedience in him, he wrote, that when the Nazis were defeated in 1945, he was in a panic at the prospect of living an existence not dictated by orders. "I found myself completely incapable of living as my own person and fell into a deep depression."
 As late as 1944, he played a leading, and open, role in the killing of Hungarian Jews, and in August of that year he reported that 4 million Jews had died in the death camps and another 2 million at the hands of the Nazis' mobile extermination units in Eastern Europe. At no point did he show the least compunction over the planning, organization and execution of what became known as the Holocaust.
 Defiant to the last, Eichmann writes on the last page of this shorter memoir: "I am certain, however, that those responsible for the murder of millions of Germans will never be brought to justice."
 ========================================CHILD SOLDIERS
nyt 11/9/94 Bill Keller, "As Civil Wars Rage, Children Are Prized For Cannon Fodder."
 "In the rebel camps where Alberto Matevui spent five years of his childhood, he says the commanders called upon the young boys to perform the executions.
 "The victim might be an uncooperative hostage, or an adult guerrilla who had disobeyed an order, or a child soldier who had tried to escape.
 "The commander would summon the camp as for a school assembly and select one of the new boys to do the killing. If he did it well, he might be rewarded with the right to carry a pistol and to order the other children around."
 Sudan, Liberia, Angola, Afghanistan, Rwanda, Cambodia, Middle East. Many are recruited or press-ganged; others starving.
 "Children, it turns out, make good killers. They learn fast, they work cheap, and their sense of right and wrong has not outgrown their yearning to be accepted by whatever liberation group or guerrilla army has become their surrogate family."
 Samir Basta, UNICEF Geneva:
"They want to belong and be praised, and their only peer approval may come from being even more brave or barbarous than the adults."
"Guns are toys. You give somebody a machine gun, and, my God, what a toy!"
In Middle East--Lebanon, Iran; and former Soviet and former Yugoslavia--"the parents themselves are proud that their kids go to war and become martyrs."
"In the former Yugoslavia, we saw young people volunteering and wearing these Rambo-like uniforms. They feel brave, they feel manly, they feel that their families expect it of them."
8 years-old made to kill own mother and father and cut off their heads. Girls kidnaped for sexual amusement, cook, clean.
THERAPISTS feel best therapy is to reunite families. Scant evidence of emotional damage.
'NO TRIALS' FOR LEONE CHILD SOLDIERS 27 December, 2000
 The United Nations Security Council has recommended that child soldiers in Sierra Leone not be prosecuted for war crimes, but should face a truth and reconciliation commission instead.
 Child soldiers are believed to have committed some of the worst crimes in Sierra Leone's civil war, including the deliberate mutilation of civilians.
 Many children have been forced by the Revolutionary United Front (RUF) to serve as fighters. The UN estimates that there are 5,400 child soldiers in Sierra Leone. In October, Mr Annan proposed setting up a court to try those "most responsible" for war crimes in the country's nine-year-long civil war.
 The Security Council responded in a letter to the secretary-general that prosecutors should focus on those "who bear the greatest responsibility" for atrocities.
 The Security Council wording makes it "highly unlikely [a tribunal] would hit those under 18", an unnamed US official told the news agency Reuters.
 
 

 THE REGULATION OF WARFARE HAS A TRIPLE BASE:

Henry Dunant, Francis Lieber, and Frederic de Martens.

1. HENRY DUNANT, Swiss, witnessed the horrors of Battle of Solferino 1859
 38,000 killed/wounded in 15 hours.
 Huge numbers died after the battle from wounds,
 no medical care, no water, heat.
 1862 pamphlet "A Memory of Solferino" led to
 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field
 and to founding of the International Red Cross Movement.
 2. FRANCIS LIEBER in 1863 wrote for President Lincoln
"ARMY ORDER NO. 100" Instructions for the Government of the United States Armies in the Field.
 many field officers with limited field experience.
 Reduced the customary law of land warfare into military instructions.
 REVIEWED AND ACCEPTED BY A COMMITTEE OF GENERALS.
 Army Order No. 100 is the first official codification of the customary law of war by any army.

3. FREDERIC de MARTENS, Russian professor and jurist.
 Tsars Alexander II and Nicholas II were involved.
 1874 Conference in Brussels convened by Alexander failed.
 1899 First Hague Peace Conference convened by Nicholas.
 1907 second Hague Peace Conference convened by Nicolas and the USA.
  De Martens was a major figure at both conferences and wrote the "de Martens Preamble" to Hague Convention IV of 1907.
 The de Martens preamble is the classic attempt to accommodate military requirements to the principle of humanity in war: "desire to diminish the evils of war, so far as military requirements permit."
 MARTENS CLAUSE Protocol I of 1977
 "in cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience."
 
 

UN CHARTER - prohibits the use of force except for legitimate defense or collective measures undertaken by the UN. But wars/armed conflict continues.

 INTERNATIONAL HUMANITARIAN LAW [applicable in armed conflicts] also called: THE LAW OF WAR or THE LAW OF ARMED CONFLICTS
  International Humanitarian law is the principles and rules which limit the use of violence in times of armed conflict
--to protect persons who are not, or are no longer, directly engaged in hostilities--wounded, shipwrecked, POWs, & CIVILIANS
--to limit the effects of violence in fighting to the attainment of the objectives of the conflict

 Human Rights legal protections: developed after WWII.
Universal Declaration of HR 1948.
European Convention on HR 1950.
International Covenant on Civil and Political Rights 1966.--everyone is entitled to the enjoyment of human rights whether in time of peace or war. [in war or emergency; certain rights may be restricted.]

ICRC - INTERNATIONAL HUMANITARIAN LAW AND WAR VICTIMS

 "GENEVA LAW" deals with the FATE OF PERSONS WHO HAVE CEASED TO FIGHT or have fallen into the power of the adversary-generally, hors de combat: wounded, sick, POWs, and civilians.
 They do not set limits to the way military operations may be fought.
  Concurrently with the development of "Geneva law" states have set limits to the conduct of military operations.

 "HAGUE LAW" various Hague Conventions of 1907, is to LIMIT WARFARE TO ATTACKS AGAINST OBJECTIVES WHICH ARE RELEVANT TO THE OUTCOME OF MILITARY OPERATIONS. Thus, the civilian population must be immune from military attacks.

 1864: The first treaty on the protection of military victims of warfare. Geneva
 1899: international protection was extended to wounded, sick and shipwrecked members of armed forces at sea. The Hague
 1907: Hague Conventions on conduct of warfare.
 1929, prisoners of war were also placed under Geneva protection.
1949: four Geneva Conventions,
a legacy of World War II, are still in force today, dealing with the protection of persons who are not, or are no longer, taking part in hostilities:

First Convention: on the care of the wounded and sick members of armed forces in the field
Second Convention: on the care of the wounded, sick and shipwrecked members of armed forces at sea
Third Convention: on the treatment of prisoners of war
Fourth Convention: on the protection of civilian persons in time of war.
  The new Geneva Conventions of 1949 did not develop the rules of "Hague law," failed to cover fundamental issues of international humanitarian law:

1) the protection of the civilian population against direct effects of hostilities

2) new technologies had produced new weapons, i.e. a new potential for destruction.
3) Decolonization had more than tripled the number of States and led to new types of conflict (wars of national liberation),

4) ever-increasing number of civil wars with frequent recourse to guerrilla warfare; protection of victims of non-international armed conflict.

PROTOCOL I [1977]
 the evolution that has taken place since the beginning of this century in military technique and, in particular, extraordinary developments in aerial warfare has made it necessary to develop and make more specific the existing law of armed conflicts. This is the subject of Part IV of the FIRST PROTOCOL additional to the Conventions.
 1. Fundamental principle and basic rules
 The fundamental principle on which the law of armed conflicts is based is expressed as follows: In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. Two basic rules follow from this principle. The first prohibits the use of weapons, projectiles and material and methods of warfare of a nature to cause unnecessary injury. The second, in order to ensure respect and protection for the civilian population and civilian property, obliges the Parties to the conflict to distinguish at all times between the civilian population and combatants, as well as between civilian property and military objectives and to direct their operations only against military objectives.
 
 

1977: Two Protocols Additional to the Geneva Conventions.

A. International Armed Conflicts
 International armed conflicts are conflicts between States and are covered by the four 1949 Geneva Conventions and Protocol I.
B. Non-international Armed Conflicts (or civil wars).

  Under Protocol I "wars of national liberation" must also be treated as conflicts of an international character. Fighting against a colonial power, in the exercise of its right of self- determination.

The majority of armed conflicts are conflicts of a non-international character.
•Humanitarian law governing non-international armed conflicts is much simpler. One main source, namely
 •ARTICLE 3 COMMON TO THE FOUR GENEVA CONVENTIONS OF 1949, enjoins the parties to an internal conflict to respect some basic principles of humanitarian behaviour.

•Common Article 3 is binding not only on governments but also on insurgents, without, however, conferring any special status upon them.

•Additional Protocol II supplements Article 3 common to the Geneva Conventions with a number of more specific provisions on Humane Treatment
 •the following acts. . . prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) collective punishments; (c) taking of hostages; (d) acts of terrorism; (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault; (f) slavery and the slave trade in all their forms; (g) pillage; (h) threats to commit any or the foregoing acts.
 •welfare of children-education, family, military service; judicial rules

•Protocol II has a narrower scope of application than common Article 3. It applies only if the insurgent party controls part of the national territory.
ICRC: Summary:
Basic rules of international humanitarian law in armed conflicts
 1. Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.

2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.

3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red cross or the red crescent is the sign of such protection and must be respected.

4. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.

5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.

7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.
 

CIVILIAN DEATHS IN THE NATO AIR CAMPAIGN in Kosovo 1999

International Humanitarian Law and Accountability
HUMAN RIGHTS WATCH 2/7/00
In its investigation Human Rights Watch has found no evidence of war crimes. The investigation did conclude that NATO violated international humanitarian law. With respect to NATO violations of international humanitarian law, Human Rights Watch was concerned about a number of cases in which NATO forces:
· conducted air attacks using cluster bombs near populated areas;
· attacked targets of questionable military legitimacy, including Serb Radio and Television, heating plants, and bridges;
· did not take adequate precautions in warning civilians of attacks;
· took insufficient precautions identifying the presence of civilians when attacking convoys and mobile targets; and
· caused excessive civilian casualties by not taking sufficient measures to verify that military targets did not have concentrations of civilians (such as at Korisa).
 The Standards Applied
The conduct of warfare is restricted by international humanitarian law-the laws of war. International humanitarian law applies expressly and uniquely to armed conflict situations, with distinct provisions to regulate international and non-international (internal) armed conflicts. In evaluating NATO's use of military force in the Federal Republic of Yugoslavia, the laws of war provide the most relevant standards. With the initiation of the NATO bombing on March 24, 1999, the conflict in Kosovo and all of the Federal Republic of Yugoslavia became an international armed conflict to which the full body of international humanitarian law applied.
Protocol I additional to the Geneva Conventions of 1949 provides the basis for the evaluation here of NATO's bombing. This Protocol has been ratified by most NATO members, and the U.S. government has declared that it accepts all of the relevant standards. The basic principle of Protocol I, and of the laws of war generally, is that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. This turns in large part on the requirement that attackers must distinguish between civilians and combatants and between military objectives and civilian objects. They must take all feasible precautions to avoid or minimize harm to civilians, and to this end may not attack civilians exclusively, or combatants and civilians indiscriminately.
Damage to civilian objects and civilian casualties that are incidental to lawful attacks on military objectives are known in military terminology as "collateral damage." The legality of an attack turns upon various factors. Firstly, the attackers must do everything feasible to verify that they are aiming at something specific-they cannot lash out blindly. Secondly, the attackers must establish that the objective to be attacked is a legitimate military objective. And thirdly, the attackers must establish whether an attack would endanger civilians and civilian objects, and must weigh this risk against the military advantage to be gained. Attacks which may be expected to cause incidental loss of life or injuries to civilians, or to cause damage to civilian objectives are indiscriminate if this harm to civilians is "excessive in relation to the concrete and direct military advantage anticipated" (Protocol I, article 57 (2)). The International Committee of the Red Cross (ICRC), the principal authority on the interpretation of international humanitarian law, has cautioned that the argument of proportionality can never justify very high civilian casualties and damage whatever the military advantage envisioned
 
 

International Committee of the Red Cross
"LAW OF WAR: PREPARED FOR ACTION,"
A Guide for Professional Soldiers. 1995

WE ALL KNOW THE RULES

CLEAN CONDUCT - A USEFUL OBLIGATION

LEGAL ADVANCES

HUMANITY IN COMBAT
 "The law of war does not ask the military commander to implement impossible
rules. But it does ask him to carry out his mission by weighing the military
and humanitarian factors."

NEVER TOO SOON
 "Experience shows that it is generally too late to begin spreading
awareness of the law of war - what we call dissemination - once a war breaks
out, since people's concerns have by then turned to basic survival needs, and
fear and impassioned sentiments may overwhelm any argument in favour of
humanitarian conduct."

REFLEX ACTION
"Forming professional soldiers requires a professional approach. . . . One must assume that the mental and physical stress of battle more or less reduces the individual's capacity for reflection and reaction.
 "Soldiers must respond instinctively to a given situation. . . . do not need an instruction booklet on use of their weapons; they need developed reflexes. . . . In tactical exercises they must be put face to face with an 'enemy' who surrenders, with 'wounded' to be evacuated, with 'civilians' . . . They should be trained to respond correctly by reflex . . . achieved only through intensive training and the constant repetition of these tactical exercises."

1967 report: "Alleged Atrocities by U.S. Military Forces in South Vietnam"
The report found that many military lecturers on the Geneva Conventions were poorly informed and that the troops considered such instructions to be of little relevance.
"In many cases," the report said of the troops, "they felt they were at liberty to substitute their own judgment for the clear provisions of the Convention. . . . It was found in this investigation that it was primarily the young and inexperienced troops who stated they would maltreat or kill prisoners, despite having just received instructions" on international law.
WAR CRIMES
 MY LAI MASSACRE
 MARCH 16, 1968
 400-500 CIVILIANS MURDERED
 BY AMERICAN TROOPS

150 Soldiers of Charlie Company, 11th Brigade, Americal Division.

COVER-UP - reported a battle & killing 128 Viet Cong.
IN FACT - there was no enemy & no battle; systematic murder of women, children and old men
•a soldier from a different company, hearing the stories, wrote to his congressman and 30 other officials and in 1969 the story broke.

Charges brought against 14 officers including Lt. Calley, Capt. Medina, Major Gen. Koster & Col. Henderson. Charged with dereliction of duty and cover-up. Only 2 trials:
•only Calley convicted of anything - premeditated murder. Sentenced to life at hard labor, reduced to 20 years, then to 10 years. In the end, Calley served only 35 months - 4 in prison and 31 under HOUSE ARREST.
 •Henderson tried and found not guilty of cover-up

•Varnado Simpson from the film lives in a dark, barred, and locked home haunted by the massacre.

•NOT EVERYONE DID IT. MANY REFUSED TO SHOOT.
 •Of 150 soldiers, only 20-30 did any killing.

•THE MASSACRE WOULD HAVE BEEN EVEN WORSE EXCEPT AN AMERICAN HELICOPTER PILOT LANDED BETW TROOPS AND FLEEING CIVILIANS & THREATENED TO FIRE ON HIS OWN TROOPS UNLESS THEY STOPPED.
•1998 PILOT & TWO GUNNERS RECEIVED MEDALS FROM PENTAGON.

MASSACRE = KILLING A NUMBER OF USUALLY HELPLESS OR UNRESISTING HUMAN BEINGS UNDER CIRCUMSTANCES OF ATROCITY OR CRUELTY

Peers Panel Report concluded: troops "were not adequately trained in the provisions of the Geneva Convention, nor were they aware of their responsibilities for reporting of war crimes."
 
 
 

NO GUN RI Massacre
July 1950
G.I.'S TELL OF A U.S. MASSACRE IN KOREAN WAR
By THE ASSOCIATED PRESS September 30, 1999
For almost 50 years, South Korean villagers have insisted that early in the Korean War, American soldiers machine-gunned hundreds of helpless civilians under a railroad bridge near a hamlet some 100 miles southeast of Seoul.
Now, after The Associated Press spent months tracing veterans in some 130 interviews by telephone and in person, a dozen former G.I.'s have spoken out. Although none gave a complete, detailed account of the events under the bridge near No Gun Ri in late July 1950, their memories support the villagers' accounts.
These American veterans say that in the first desperate weeks of the Korean War, AMERICAN SOLDIERS KILLED SIMPLY HUNDREDS OF REFUGEES, MANY OF THEM WOMEN AND CHILDREN, WHO WERE TRAPPED BENEATH THE BRIDGE.
Some veterans recalled that American soldiers, in only their third day at the front, feared North Korean infiltrators who their commanders had said were among the fleeing South Korean peasants.
American commanders had ordered units retreating through South Korea to shoot civilians as a defense against disguised enemy soldiers, according to once-classified documents found by the A.P. in months of researching military archives.
No Gun Ri would be one of only two known cases of killings of noncombatants by American ground troops this century. At My Lai in Vietnam in 1968, more than 500 Vietnamese may have died. *** The war began on June 25, 1950, when the Communist North invaded and sent the South Korean Army and a small American force reeling southward toward the tip of the Korean peninsula.
American units were rushed in from Japan. They included the poorly equipped, ill-trained First Cavalry Division, which went in with little understanding of Korea. Teen-age riflemen and young officers with no combat experience were thrust overnight into war, told to expect guerrilla fighting and to be wary of the tens of thousands of South Korean civilians pouring south.
***Word was circulating among American soldiers that North Korean soldiers disguised in white peasant garb might try to penetrate American lines with refugee groups. . . . the refugees who approached the battalion's lines on July 26 were South Koreans rousted from two nearby villages by American soldiers, who warned them the North Koreans were coming.
That morning, the Eighth Army had radioed orders throughout the Korean front that began, "No -- repeat no -- refugees will be permitted to cross battle lines at any time,"
Two days earlier, First Cavalry Division had issued a more explicit order: "No refugees to cross the front line. Fire everyone trying to cross lines. Use discretion in case of women and children."
In the neighboring 25th Infantry Division, the commander, Maj. Gen. William B. Kean, told his troops that since South Koreans were to have been evacuated from the battle zone, "all civilians seen in this area are to be considered as enemy and action taken accordingly." His staff members relayed this as "considered as unfriendly and shot."
"We didn't know if they were North or South Koreans," Hesselman recalled. "We were there only a couple of days and we didn't know them from a load of coal."
 Not everyone fired, veterans said.
 "Some of us did and some of us didn't," said Flint, of Clio, Mich., the soldier who had been briefly caught in the culvert with the refugees. "It was civilians just trying to hide." Kerns, a machine gunner, said he fired over the refugees' heads. "I would not fire into a bunch of women."
 

Dept of Defense: 1980 Pamphlet "PRISONER OF WAR"

"Your Rights & Obligations Under the Geneva Convention"
 "Throughout most of history, members of a military force captured by an enemy had no rights at all. Completely at the mercy of captors, prisoners of war were killed, tortured, enslaved, held for ransom, and otherwise mistreated. Even after it became the custom to keep prisoners alive, the lack of any accepted standard of treatment led to continued abuses."

 US does extensive training on 1949 Geneva Convention Relative to the Treatment of Prisoners of War.
 1) in order to treat prisoners properly: "Fear of mistreatment is the single greatest deterrent to surrender. Atrocities embitter and strengthen the will of the enemy, resulting in prolonged resistence. Decent treatment of prisoners encourages others to surrender."
 2) if you become a POW you should know your rights and duties.
 Four 1949 Geneva Conventions.
 sick and wounded on land
 . . . on sea
 POWs
 protection of civilians during war [new]

 The basic rules, once armed conflict breaks out, the Conventions are applicable in all circumstances. Prohibited at all times and in all places:
 torture, execution w.o. trial, cruel and degrading treatment.
 reprisals on protected persons.
 no one may renounce the protections of the Conv.
 resort at all times to a Protecting Power--neutral state safeguarding their interests, and to ICRC.

  "The United States requires its military forces to obey the Geneva Conventions. This has been our policy even when the enemy has blatantly violated the Conventions and refused POW status to captured Americans. Even in these circumstances, we have found that it has been better for the United States to continue to apply the Geneva Conventions rather than descend to the enemy's level."
"Full compliance with the POW Convention is not always easy, especially in the heat of battle. Nevertheless, your country expects it of you. Our national reputation and your own well-being are at stake."
 
 
 
 

THE WAR CONVENTION
- the rules of war.
•A bank robber shoots a bank guard who is drawing his gun; the robber also shoots a customer.
•A country commits open aggression on its neighbor. In a conventional firefight an invading soldier shoots another soldier who is defending his invaded homeland.
 •As long as you fight according to the rules of war, you won't be condemned. [Rommel, R.E. Lee]

THE WAR CONVENTION:
CERTAIN CLASSES OF PEOPLE ARE OUTSIDE THE PERMISSIBLE RANGE OF WARFARE. KILLING THEM IS NOT A LEGITIMATE ACT
--THOSE NOT ENGAGED IN THE BUSINESS OF WAR
--CIVILIANS, NON-COMBATANTS
--SURRENDER: Wounded [Hors De Combat] or Captured Soldiers; POWs

TARGETS:
SOLDIERS IN COMBAT
SOLDIERS RESTING
CIVILIANS: ??INNOCENT
-CIVILIAN WORKERS
--DISTINCTION BETW
•THOSE WHO WORK FOR THE WAR EFFORT [TANK FACTORY] &
•THOSE WHO MAKE WHAT IS NEEDED TO LIVE [FOOD FACTORY]
 
 
 

United States Department of the Navy
THE LAW OF NAVAL TARGETING
Principles of Lawful Targeting
 The law of naval targeting is premised upon three fundamental principles of armed conflict:
 1. the right of belligerents to adopt means of injuring the enemy is not unlimited.
 2. it is prohibited to launch attacks against the civilian population as such.
 3. distinctions must be made between combatants and noncombatants, to the effect that noncombatants be spared as much as possible.

 Military Objective. Only combatants and military objectives may be attacked. Military objectives are those objects which, by their nature, location, purpose, or use, effectively contribute to the enemy's war-fighting or war-sustaining capability and whose total or partial destruction, capture or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack.

 Civilian objects may not be made the object of attack.

 "It is not unlawful to cause incidental injury or death to civilians, or collateral damage to civilian objects, during an attack upon a legitimate military target." Injury or damage should not "be excessive in light of the military advantage anticipated by the attack."

 "It is a fundamental tenet of the law of armed conflict that the right of nations engaged in armed conflict to choose methods or means of warfare is not unlimited."
[DOD policy is all new weapons must be reviewed for consistency with IHL.]
 unnecessary suffering or superfluous injury are prohibited. Degree of pain, injury or certainty of death "is needlessly or clearly disproportionate to the military advantage to be gained by their use."
 Poisoned projectiles, dum-dum bullets, glass or clear plastic shards--"little
military advantage to be gained by ensuring the death of wounded personnel" or "unnecessarily inhibiting] the treatment of wounds."

 indiscriminate effect: weapons that are incapable of being controlled so as to be directed against a military target are forbidden as being indiscriminate in their effect.
 

USEFULNESS AND PROPORTIONALITY

Sidgwick utilitarian view of war convention.
Utility and proportionality.
 IN BATTLE SOLDIERS [OFFICERS] MUST APPLY CRITERIA OF USEFULNESS AND PROPORTIONALITY

UTILITY: It is not permissible to do any mischief which does not tend materially to the end of victory

utility is MILITARY NECESSITY - what is necessary to win.
 PROPORTIONALITY: it is not permissible to do any mischief of which the conduciveness to the end is slight in comparison with the amount of mischief
 Proportionality is not to do excessive harm.

U.S. Army's Handbook of Military Law:
JUSTIFICATIONS that nothing else but what he did would have contributed significantly to victory are "generally rejected." "Acts forbidden by the customary and conventional laws of war, inasmuch as these laws have been developed and framed with consideration for the concept of military necessity."
 Armies are entitled to try to win their wars but they are not entitled to do anything that is or seems to them necessary to win. They are subject to a set of restrictions based on the agreements of states.
 
 

CRITERIA TO DETERMINE EXCESSIVENESS:
 -MILITARY NECESSITY [VICTORY]
-PROPORTIONALITY
 NECESSITY:
SOLDIERS ARE ENTITLED TO TRY TO WIN; THEY CAN DO THEIR UTMOST SO LONG AS WHAT THEY DO IS ACTUALLY RELATED TO WINNING
--VICTORY IS MORALLY CRITICAL

--"we don't call war hell because it is fought without restraint. It is more nearly right to say that, when certain restraints are passed, the hellishness of war drives us to break every remaining restraint in order to win. Here is the ultimate tyranny: those who resist aggression are forced to imitate, and perhaps even to exceed, the brutality of the aggressor."

--??CAN SOLDIERS DO ANYTHING TO IMPROVE THE ODDS OR MUST THEY ACCEPT INCREASED RISK TO PROTECT THE INNOCENT?
•US BOMBING IN GULF WAR ACCEPTED INCREASED RISK
•NATO bombing of Kosovo reduced risks by flying high, but this also reduced effectiveness

Can individuals in domestic society strike or kill innocent people, even in the supreme emergency of self-defense; can they only attack their attackers??
 
 

 PRINCIPLE OF DOUBLE EFFECT
 

IT IS PERMITTED TO PERFORM AN ACT LIKELY TO HAVE EVIL CONSEQUENCES [THE KILLING OF NONCOMBATANTS] IF:
 1- the act is good in itself, a legitimate act of war
 2- the direct effect is morally acceptable, killing the enemy, destroying supplies.

3- the intent of the actor is good, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends

4- THE GOOD EFFECT IS SUFFICIENTLY GOOD TO COMPENSATE FOR ALLOWING THE EVIL EFFECT - PROPORTIONALITY
 

# 3 IS CRUCIAL - KILLING OF SOLDIERS AND NEARBY CIVILIANS IS DEFENSIBLE AS LONG AS THE SINGLE INTENTION IS THE FIRST [SOLDIERS] NOT THE SECOND [CIVILIANS].

--importance of taking aim and restricting targets.
 

Walzer - simply not to intend the death of civilians is too easy - there should be a positive intention to save civilian lives; even if some risks need to be taken. But there is a limit to the risks that we require. "The limits of risk are fixed, then, roughly at that point where any further risk-taking would almost certainly doom the military venture or make it so costly that it could not be repeated."
 
 
 
 
 

 PRINCIPLE OF DOUBLE EFFECT [cont.]

YOU CAN BOMB A STRATEGIC FORTRESSES THAT ALSO SHELTERS CIVILIANS; OR
BOMB A MUNITIONS PLANT IN A POPULATED AREA

BUT CANNOT USE INACCURATE SATURATION BOMBING OF AN AREA TO HIT A MILITARY TARGET AMIDST CIVILIANS.

CANNOT BOMB CITIES TO UNDERMINE THE ENEMY'S CIVILIAN MORALE.

CAN USE ATOMIC BOMBS ON A FLEET AT SEA, OR

SMALL A-BOMBS ON TROOPS CONCENTRATIONS. BUT

 HIROSHIMA KILLED 80,000 CIVILIANS. SEE #3 above, mass killing of civilians would not be justified by shortening the war.

 NOTE: Standards change and evolve over time. Firebombing of Dresden, Atomic Bombs, etc. were acceptable in their day.

Did NATO commit war crimes in the bombing of Serbia 1999?
•Chinese embassy
•Bridges and Power Grid
•Cluster Bombs
•Railroads
 GEN. BRADLEY AND THE BOMBING OF St. LO

JULY 1944 --PLAN FOR BREAKOUT FROM THE D-DAY INVASION BEACHES

CARPET BOMBING AREA 3 ½ BY 1 ½ MILES NEAR TOWN OF St. LO.

TO "EITHER DESTROY OR STUN THE ENEMY IN THE CARPET" AND PERMIT A QUICK ADVANCE.

Did not warn French civilians in area--"the success hung upon surprise; it was essential we have surprise even if it meant the slaughter of innocents as well."

CIVILIANS FOREWARNED BY PROXIMITY OF FIGHTING

 Death of many civilians a small price to pay for a breakout that could speed the end of the war

The civilians were not Bradley's target, their deaths were not intentional.
But, also, he did not intend not to kill them.
 KOREAN WAR: ACCOUNT DESCRIBES BRIDGE BLAST Oct. 14, 1999 AP
 In a now-declassified narrative sent to an Army historian on Aug. 24, 1953, Maj. Gen. Hobart R. Gay described how, as 1st Cavalry Division commander in 1950, he ordered the destruction of a bridge over South Korea's Naktong River at the cost of many refugee lives.
 ---
  "By nightfall of the 2d of August all troops were across the Naktong except the rear guard of the 1st Battalion of the 8th Cavalry. Orders were to blow both the railroad and the footbridge at Waegwan. The Division Commander gave orders that no one could order the bridge blown but he himself. At dusk thousands upon thousands of refugees were on the west side of the Naktong and as the rear guard of the 8th Cavalry would start across the bridge, they would follow them. The Division Commander ordered the rear guard to go back to the west side and hold back the refugees and when all was set they would run across the bridge to the east side so it could be blown. This scene was repeated several times, but each time the refugees were on the heels of the rear guard. Finally it was nearly dark. THERE WAS NOTHING ELSE TO BE DONE. THE DIVISION COMMANDER GAVE THE ORDER TO BLOW THE BRIDGE. IT WAS A TOUGH DECISION BECAUSE UP IN THE AIR WITH THE BRIDGE WENT HUNDREDS OF REFUGEES."
 
 

US DOD "Conduct of the Persian Gulf War" rpt to Congress. 4/92

"MILITARY NECESSITY" "consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war. . . . It admits of all direct destruction of life or limb of armed enemies."

SURRENDER: soldiers must make their intent to surrender clear and unequivocal, and do so rapidly. . . . a soldier who fights until the very last possible moment assumes certain risks. His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier's last-minute effort at surrender.

RETREAT: attacks on retreating enemy forces have been common throughout history.
The 1st Marine Division . . . in the famous 1950 march out of the Chosin Reservoir, outnumbered by a 4:1 margin, turned its 'retreat' into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it.
Decisive 1914 Battle of the Marne, outside Paris, was won by forces that had retreated over 100 miles in almost 2 weeks.
 
 
 
 

DEFENSE OF WAR CRIMES:
1- HEAT OF BATTLE
2- SUPERIOR ORDERS
 a- CLAIM OF IGNORANCE
 b- CLAIM OF DURESS
 COMMAND RESPONSIBILITY:
MY LAI WAS IN A FREE-FIRE ZONE, ROUTINELY SHELLED & BOMBED.
--BRUTAL AND BRUTALIZING WAR, BRUTALLY FOUGHT
--SOLDIERS RECEIVED ONLY FORMAL & PERFUNCTORY TRAINING IN RULES OF WAR

Jan 2000 International Criminal Tribunal for the former Yugoslavia (ICTY) reduced the sentence of Dusko Tadic from 25 years to 20 years, the Appeals Chamber states that the main reason for the revision of the sentence is that:
  "Although the criminal conduct underlying the charges of which the Appellant now stands convicted was incontestably heinous, his level in the command structure, when compared to that of his superiors, or the very architects of the strategy of ethnic cleansing, was low."
 the Bosnian Serb was at a low level of command when he took part in the murder and torture of Bosnian Muslims at the Omarska detention camp in 1992. Tadic was indicted for his part in a two-day attack on Kozarac in which 800 civilians were killed by Bosnian Serbs. But it was his role in the torture and killing at "White House" in the Omarska detention camp that confirmed his notoriety.
 

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link to Prof. Stein's home page
link to ISS 325 War and Revolution syllabus                                                    stein@msu.edu