Elaboration on the War Crimes Bit

My main interest in this thread is the proposition that the term “war crimes” has a relatively clear legal meaning, and that there’s considerable treaty law, case law, and learned scholarly opinion constituting this meaning. If we want to use the term “war crime” in light of this meaning, we have to acknowledge that the term has its limits, and that many of the horrible things done in war fall outside of the legal meaning of the term “war crime.”

If this creates skepticism about the utility of the term “war crime” as a political tool, that’s fine; while it’s not quite true to say that jus in bello restrictions have been generated by and for rich white men, it’s not entirely incorrect, either. The entire enterprise of international law suffers from the same problem. Of course, we can also continue to use the term “war crime” in the pejorative, distinct from any legal meaning. We would use this in the same sense that we call mountaintop removal “criminal”, even though we know that there is no specific legal sanction preventing Don Blankenship from doing whatever he wants in West Virginia.

However, we should also be aware of the fact that we give up something when we dismiss the legal meaning of the term “war crime.” The “war is hell” argument is fine and well, but in practice it leads to Ralph Peters-style behavior in actual war; since war is hell anyway, let’s kill ’em all and let God sort ’em out. Jus in bello restrictions create a distinction between the “horrible” things that happen in war and the “illegal” things that happen, and create a means for addressing that distinction. If we discard this distinction, then it becomes more difficult to apply specific criticism to such behavior as murdering prisoners or terror bombing civilian neighborhoods. For my own part I think that this is quite valuable, and I think that the approach of making certain actions illegal (whether or not they often face actual prosecution) has helped restructure how many military organizations think about using force. This includes the US military; as international law regarding targeting practice has evolved, so have US targeting policies. Sometimes this is because of a genuine fear of prosecution (domestic or international) but more often it is out of concern that the term “war crime” will be applied in its legally determinate sense to US activity. It’s also worth repeating at this point that jus in bello restrictions hold regardless of whether the war itself has been undertaken legally, and that this also is intended to have a deterrent effect; if soldiers knew that they could be prosecuted for jus ad bellum violations even if they hold to jus in bello, then they’ll be less likely to observe the latter.

As a final note in support of the legally meaningful use of the term “war crime,” I would add that the Goldstone Report relied on this conception in order to harshly criticize Israeli tactics during Operation Cast Lead. Specifically, Goldstone argued that the IDF had intentionally targeted civilians on several occasions, and had violated the proportionality requirement of the doctrine of double effect by attacking target with little military value in ways that made high civilian casualties very likely. The Goldstone Report also determined that Hamas rocket activity targeting Israeli civilians constituted a war crime. To my mind, the ability to use the term “war crime” in this sense, rather than in its much more nebulous “this is something horrible that happened” is quite valuable, and ought to be supported. While it’s true enough that neither Israelis nor Palestinians are likely to receive direct legal sanction, that’s only part of question; credible war crimes allegations serve to embarrass powerful actors, and help provide the foundation for creative critiques of foreign policy behavior.