JUSTICE IN THE WAKE OF WAR: THE IMPORTANCE OF WAR CRIMES TRIALS IN THE PROSECUTION OF JUST WAR
Department of Military Science
In essence, these objections break down into arguments that war crimes trials are either philosophically flawed or impracticable. Some of these objections, like those based on cultural relativism, the supposed impossibility of imposing rule of law on warfare, or the peculiar notion of "moral luck" are, in my opinion, specious. Others, like concerns for sovereignty and the fairness of both accusations and judgments handed down by war crimes tribunals are very "touchy," but do not necessarily constitute sufficient reason for us to categorically absent ourselves from these proceedings. In this paper, I shall argue to the contrary that the meting out of punishment for war crimes, whether in international tribunals, or our own civil courts or courts martial, is in fact the natural, logical, and morally indispensable end stage of Just War. If Just War is undertaken to right wrongs done by one group of people to another if in fact the only acceptable reason for going to war is to do justice (to do justice, as Michael Walzer and others contend "even if the heavens fall") then stopping short of trying and punishing those most responsible for war crimes and crimes against humanity which either led to war or were committed in its prosecution, like declaring "checkmate" and then declining to take one's opponent's king, makes no strategic sense. What is worse, it makes no moral sense. Declining to do full justice to those who have been most grievously wronged by aggression, whether from without or within their national borders, leads to the perpetration of further moral injustice on both the victims of war crimes and on innocents among the criminals' countrymen, ethnic group, or co-religionists. In the case of the victims of war crimes, sweeping the crimes done against them under the great rug of history, whether to keep a fragile peace or in what I believe to be a foredoomed effort at reconciliation, only continues their abusive treatment as non-persons who do not even register on the radar screen of international justice. Given no legitimate stage on which to see their justified moral outrage vented on the criminals most responsible for their suffering, victims become victimizers, taking out their anger and frustration indiscriminately and disproportionately on anyone who looks, sounds or smells like their abusers, without benefit of trial. I shall argue that if we do nothing to prevent such illegal and immoral outcomes of Just War, then the natural and foreseeable consequences that follow from that decision may negate its justness as much as though it had been unjustly declared or unjustly waged. The crux of my argument is that a third pillar of Just War, which I will call justice in the wake of war, should be added to jus ad bellum and jus in bello, so that the resulting tripod may support a more stable just peace.
Scholars endeavoring to argue the inapplicability of law to warfare sooner or
later appeal to the shade of
The related notion that, because in every war there are some soldiers who do not abide by these principles, rule of law is impossible in wartime, and all other soldiers are, on account of the criminality of the few, released from their professional jus in bello obligations is likewise a thoroughgoing piece of sophistry. It is based on the proposition that if a law is broken it must be because it is impossible to obey. This is demonstrably false, for in every war, on every side, there are many more soldiers who somehow manage to serve honorably than there are perpetrators of war crimes. Moreover, soldiers can and do accomplish their missions and win wars while fighting within the limitations of the Law of Land and Aerial Warfare; as I have argued at a previous JSCOPE, not doing so in this age of "television warfare" may, in fact, prove counterproductive to the achievement of one's national war aims. From a legal standpoint, it is patently absurd to hold that laws should apply only so long as nobody breaks them. A body of law consisting only of rules no one would ever break would be superfluous at best. At worst it would be vicious in the sense of being full of vice. For even if some irrational society were to exist in which no law its people broke remained in effect, such a state of de facto lawlessness would still be immoral because of the grievous injuries and injustices it would allow to be perpetrated on innocents. And I suspect further that proponents of the impossibility of Law of War know it to be both false and wrong, but espouse this falsehood anyway because it gives them a high-sounding excuse for remaining uninvolved in situations in which ethical persons would feel compelled to take a strong moral stance. In this, they have much in common with the proponents of cultural relativism as an excuse for non-intervention, even in cases of genocide towards which no decent person should turn a blind eye.
By any moral reasoning one can marshal,
Aristotle and "Moral Luck," Cultural Relativism, the Insanity Defense, and Other Non-Exculpatory Excuses
While I am on the subject of sophistry, just what is the military ethicist to make of the current vogue for arguments that invoke the hard "moral luck" of those who take part in wartime atrocities to absolve them of their guilt and obviate the need for war crimes trials to punish them for it? Aristotle makes distinction between three kinds of bad actors those who do evil out of moral weakness, those who do evil out of wickedness (vice), and those who do evil out of sheer brutishness. The morally weak presumably have good moral principles but lack the backbone to act on them under pressure. The wicked, too, know good moral principles from bad ones, but perversely prefer to act on the bad. It seems to me that war criminals may be either or both of these moral "types." Though I vacillate in my opinion as to which is worse, both presumably know their actions to be evil, and so both are culpable for them. But, as I understand them, proponents of the "bad moral luck" defense would have us believe that those who commit war crimes are mostly brutes with bad moral principles, or no moral principles at all. They have these bad moral principles (or lack of principles), this argument continues, by virtue of having had the "bad moral luck" to have grown up in the poisonously anti-social atmosphere of a Nazi Germany (or Milosevic's Serbia, or apartheid-era South Africa, or a Palestinian village on the west bank of the Jordan, or a white supremacist enclave in Idaho), circumstances in which they had little or no choice. The fault (pace Shakespeare) is in their social environments, not in themselves, that they are perpetrators of atrocities. Finally, in a peculiarly 20th century American liberal take on the nature vs. nurture debate I call the "Officer Krupke defense," the supposedly irresistible influence of their perverse environment is invoked as an exculpatory excuse for their actions.
One can, however, recognize the corrupting influence of an evil society on character without necessarily accepting it as sufficient reason to excuse an individual's evil actions. "The problem," as David Cooper points out, "is that if the ideology were that powerful, nearly everyone would have gone along with its dictates." This proposition, like the one that warfare is unrefinable cruelty, is demonstrably untrue, for individual members of even the worst of the above-mentioned evil societies, Nazi Germany, contrived to do good in the face of socially condoned state-sponsored evil, proving that it was indeed possible both to acquire good moral principles and act on them to some extent. I would say further that, to turn Kant's dictum on its head, the fact that one can do something anything however limited in scope, to ameliorate such extreme cruelty of war as genocide implies that one ought to do whatever one can speak out against, resist, or at the very least refrain from participation in, atrocity. Even where hatred is preached from the pulpit, any literate religious believer who owns a Bible (or Torah, or Koran, etc.) has access to better moral counsel, and ignores it by his own choice. He cannot, therefore, excuse his evildoing on the grounds of brutishness, since sound moral principles were available to him to act upon. Really, unless one had been raised in a barn by wolves, a claim to innocence of war crimes by virtue of socially-acquired brutishness reduces to nothing more extenuating than the old "but everybody else was doing it" defense, cynically and, therefore, knowingly presented as moral philosophy. There may be in the minds of some moral philosophers some question as to the responsibility of brutes who, like Holocaust deniers, or Mirjana Markovic, Slobodan Milosevic's wife and fellow architect of ethnic cleansing, appear utterly delusional about the reality and the effects of their cruelties to others. Such evildoers might make a claim of sorts to innocence of their crimes by virtue of insanity. I concede that there is such a thing as the truly but criminally insane. And although they may not be held responsible for the evil that they do, their victims are no less harmed for that, and society is fully justified in taking reasonable measures to protect itself from their criminal actions. Although they may not be held fully liable for punishment for the suffering they inflict, it nevertheless would be unjust to leave them at large to act on the evil counsel of the voices in their heads unconstrained. The moral essence of the insanity defense is that the criminal's mental derangement was so extreme as to render him incapable of understanding the evil nature of his crimes, but Markovic's preternaturally creepy insistence in the face of established facts that no ethnic cleansing was being carried out in the Former Yugoslav Republic, seemed rather to be a self-delusion constructed in order to silence her moral qualms. The willfully (self-delusional) brutish know the crimes they wish to commit to be evil, but convince themselves, or allow themselves to be convinced, of the outrageous fiction that they are not, in order to facilitate the commission of their crimes; as such they are not the brutes they claim to be, but preferentially wicked, and so responsible for the harm they do.
If a man does evil both knowingly and willingly, he is preferentially wicked, and so both responsible and culpable for the harm his acting on his evil preferences causes. If he would prefer not to do evil but does so anyway out of weakness of character, I maintain that he is still answerable for the harm his spinelessness allows to be perpetrated on innocents. While we may appreciate his pragmatic reasons for going along with state-sponsored evil in order to get along, and even sympathize with his fear, which may be mortal, he nevertheless makes a choice in favor of evil in declining to act on his better moral principles. Here is where his "bad moral luck" would be invoked as exculpatory, since it is through no fault of his own that he was placed in more difficult moral circumstances than other men. This argument holds water only if all moral agents were guaranteed a reasonable expectation of equality of circumstances. Only in the magical thinking of Marxist "philosophers" has such an expectation ever been considered realizable. In the real world, moral luck good, bad or indifferent is immaterial. Responsibility for ones' moral choices, like the law of our land, applies equally to all regardless of and not on some sliding scale according to ones' circumstances. Paul Christopher writes that Hugo Grotius, the father of international Law of War, "argues that to participate in a crime a person must not only have knowledge of it but also have the opportunity to prevent it;" he does not stipulate that that opportunity must be an easy one to take. The fact that others may have been faced with fewer, or easier, decisions in no way excuses the execrable behavior of war criminals. Neither does the fact that one is raised in a racist society that charges its military with ethnic cleansing excuse individual soldiers for personally carrying out its bloody-minded intentions. All professional soldiers must understand that life in general, and war in particular, are not "fair," and that this basic ground truth neither alters nor lessens their obligation to discharge their wartime duties according to the principles of Just War; whining about the moral fortunes of war will not change that, and is unseemly in a soldier.
Responsibility for War Crimes, Liability for Punishment, Collective Guilt, and the Necessity of Doing Justice in the Wake of War
If the morally weak, the preferentially wicked, the cynically self-styled brute, and even the self-delusioned brute are responsible for the harm their planning, directing, carrying out, advocating, or tolerating of war crimes cause other people, then it follows by moral reasoning that they may be held criminally liable for punishment for the infliction of that harm. Ideally, all of them ought to be punished to the extent that they have taken part in the perpetration of crimes against humanity. In actuality, time and funds for the investigation and trial of war criminals are limited, but I would contend that those most responsible among them the Hitlers, the Goerings, the Pol Pots, the Milosevics, the Karadzics, and other architects of genocide at the very least, must be punished. My reasons have to do with the relationship of Just War and Law of War to the doing of justice.
There are three points in the course of war when justice should be done. The first is in the declaring of war. Jus ad bellum criteria have gone through a long evolution from Biblical times to the present, but, in the rather strict modern construction, Just War may be undertaken primarily, if not solely, as a means of redressing wrongs inflicted on innocents, or to force an aggressor to cease and desist from inflicting wrong, especially when negotiation and other means short of war have failed. Because the material and human costs of warfare are so high, it should be undertaken only to right, or put an end to, the most grievous of wrongs. By extension of the individual's natural right to self-protection, those thus wronged are justified in taking up arms in their own defense, if they are able. Friends, allies and others, are, by further extension, similarly justified in coming to their aid, and, in the case of genocide, may arguably even have a positive duty to do so.
The second point in warfare at which justice ought to be done is in the conduct
of war itself. Together with jus ad bellum considerations, the jus in
To shrink from condemning and punishing atrocity is, however tacitly, to condone evil. And to allow evil to be done is itself an evil deed. It is to add insult to injury by trivializing, sometimes to the point of utterly denying, the injury suffered by the victims of war crimes. It is to side with criminals against their victims, judging the wronged unworthy of justice while holding those who wronged them above it. On the most fundamental of moral principles, it is unjust. And for a society (or nations) to work such an injustice in the name of its citizens is to wrong the righteous among them as well. The proper venue for doing this kind of justice in the wake of war is in properly constituted and conducted war crimes tribunals.
It has been argued that the cause of peace and reconciliation is not served by the laying of blame and the meting out of punishment in war crimes tribunals. Considering the inhumane deeds and irreparable harm done by war criminals, it is the height of presumption to imagine that their victims should ever forgive them. And it is cruelty heaped upon cruelty for a society (or the society of civilized nations) to pressure the victims of war crimes or their survivors, however subtlely, into public displays of reconciliation with the perpetrators of crimes against them, for which they may never be emotionally ready. In any case, it is not the purpose of Just War to force reconciliation of the victims of war crimes with their abusers, and the establishment of lasting peace is better served by the doing of justice in the wake of war. The doing of that particular form of justice by recognizing and publicly placing blame on those most clearly responsible for atrocities and exacting fair retribution is the purpose of war crimes tribunals. That there be some formal avenue for doing this sort of justice, and that it be done in such a way that the victims accept as just, is absolutely necessary in order to prevent the wholesale assigning of collective guilt to, and the taking of indiscriminate and disproportional revenge on, the possibly innocent families, associates, and countrymen by the victims, which can only guarantee further warfare and the perpetration of further war crimes.
The subject of collective guilt makes me queasy. I see it as a doomsday machine that could bring about the end of the Just War tradition, and, with it, all efforts to mitigate the worst cruelties of warfare. For, collective guilt, in diametric opposition to Just War, is based on the presumption of universal guilt. The proponents of collective guilt do not burden their fighters with demands that they make vital moral decisions on the battlefield. Some Viet Nam veterans I have spoken with, and also some cadets I have instructed in Law of War, have argued that the loosening of legal and moral restrictions on the treatment of nominal civilians, who act as soldiers but claim civilian immunity, may offer the only practicable way of countering guerrilla warfare.6 For their part, guerrillas claim (falsely, I think) that such dishonorable tactics represent their only means of standing up to more powerful nations. But, to the extent that nominal civilians increasingly play some part in modern warfare, their specially protected status is increasingly eroded. In the absence of the protections civilian status provides non-combatants, all enemy civilians young "men" well below draft age, women, babies, medical personnel, clergy, the elderly, and hospital patients may be indiscriminately targeted;" the wounded may be bayoneted on the battlefield rather than taken prisoner; POWs may be tortured and murdered since their captors will no longer be under any legal or moral obligation to treat them humanely; indiscriminate revenge-taking of the universally guilty upon the universally guilty will provide, not the stabilizing influence of jus post bellum, but a neverending casus belli. And inch by inch, we shall all march backwards into Hobbe's nightmare "natural" state of "combat of all against all," where life will indeed be "nasty, brutish, and short."
Just War theorists are driven by the desperate need to prevent such horror. But
apologists for the Sept. 11 attacks and other acts of terrorism, have no such
compunctions about assigning collective guilt, and have enthusiastically
embraced it. Osama bin Laden, in a recent tape, claimed legitimacy for his
deliberate targeting of the
Law, Justice, and War Crimes Tribunals
As I have already said, the proper venue for working justice in the wake of war (jus post bellum) is the war crimes tribunal. As a means of doing justice this is an imperfect instrument, as are all instruments for the realizing of ideals. Complaints have been raised that international tribunals convened, constituted, and conducted by the winning side render only "victor's justice" on the vanquished, ignoring similar crimes perpetrated by victorious soldiers. It is worth noting, however, that the term was coined by Herman Goering as an argument for his release. But it is neither an excuse for the perpetration of atrocity nor is it exculpatory. The fatal weakness of the "Flying Fat Man's" complaint against victor's justice is that, whether or not Allied soldiers who may have committed war crimes ever came to trial or were punished, his crimes were no less atrocious or deserving of punishment for that; in logical terms, Goering's crimes and theirs are independently culpable on their own (de)merits. Even if it could be proved that the vanquished were prosecuted and punished preferentially, it would not follow that any war criminal should be allowed to go free on that account, but only that the tribunals ought to "clean up their act" vis-a-vis the winning side.
More substantive objections have been raised to the effect that international jurisdiction over war crimes tribunals
threatens national sovereignty, and specifically, that American troops could be
brought up on trumped-up charges leveled against them by jealous or disgruntled
nations, and forced to face prosecution in "kangaroo courts."
It may be argued from an ethical point of view that human rights must take
precedence over considerations of national sovereignty, and that, therefore,
American intervention in the form of participation in international war crimes
tribunals is morally-justified, and possibly morally mandated. Nevertheless, on
Ironically, similar concerns have been raised about President Bush's order
allowing for trial of suspected foreign terrorists by military tribunals for
acts of war, especially when the accused are not soldiers in the service of an
aggressor nation, making it impossible for us to make a formal declaration of
war under current international law. Such courts have much to recommend them
they are mobile and may be conducted on the spot abroad where critical
witnesses may be, and they are more efficient in the process of evidence
gathering and better able to ensure the security of any classified information
presented than are open federal courts. Although there is no reason why
International Law of War has barely begun to deal with the question of where to try cases in which the aggressor is a diffuse political or religious entity rather than a nation. But there are precedents on which to draw, and the task is no more impossible than the development of Law of War to this point has been. Whatever it is decided a properly convened, constituted, and conducted court in which to try such cases should be, the high purpose of jus post bellum must be well and truly served by them, and must be seen to be well served by them. Rendering such justice must remain the exclusive prerogative of courts of law, and must on no account ever be permitted to be taken out into the streets.
George W. Bush, "Detention, Treatment and Trial of Certain Non-Citizens in
the War against Terrorism,"
 Hendrik Hertzberg, "The Wrong Man," The New Yorker, 12.10.01, p. 45; Gwynne Dyer, "Bin Laden's Best Bet to be Arrested by the Right People,"
News, 12/11/ 01; David Murray, "The Lesson of Nuremberg," Boston
 Michael Walzer, Just and Unjust War, Harper Collins,
'Nothing but aggression can justify war...'There is a single and only just
for commencing a war,' wrote
Nothing else warrants the use of force in international society - above all
not any difference in religion of politics."
 As ethnic Albanian Kosovars did on their erstwhile Serbian neighbors.
 Cicero, Pro Milone, iv. xi.
 Davida Kellogg, "Guerrilla Warfare: When Taking Care of Your Troops Leads to War Crimes," JSCOPE 19, 1/97.
 Anyone unconvinced of this need only try a little moral experiment and see how far he gets convincing the next judge to whose traffic court he is summoned that he was not required to obey the speed limit by virtue of the fact that the car ahead of him had been speeding.
 Mary Midgley, Cant We Make Moral Judgments?
 Aristotle, Nichomachean Ethics, trans. Martin
 From the quintessentially cynical song in Leonard Bernstein's West Side Story: "Dear kindly Sgt. Krupke/ ya' gotta understand/ it's just our bringin 'upke/ that gets us out of hand./ Our mothers all are junkies/ our fathers all are drunks./ Golly Moses, naturally we're punks." What makes this song work is that both the gang member characters who sing this song and the audience they sing it to know perfectly well that "deep down inside [they're] no good."
 This is in fact the position taken by Daniel
Goldhagen, author of the chilling Hitler's Willing Executioners: Ordinary
Germans and the Holocaust, Abacus,
Cooper, "Collective Responsibility, Moral Luck, and Reconciliation,"
In War Crimes and Collective Wrongdoing: A Reader, Ed. Aleksander Jokic,
 Cooper (Ibid.) gives the example quoted from
Michael Sells, (The Bridge Betrayed: Religion and Genocide in Bosnia , UC
Press, Berkeley) of the influence of Christoslavism on recent Serbian
 Hugo Grotius, The Law of War and Peace, Bk II, chapt. 21., II, 4, p. 524. Quoted in Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 2nd ed., p.146., 1999.
 One of the most commonly raised objections to war crimes tribunals is, in fact, that they cannot bring everyone who has been in some way responsible for atrocity to justice. The argument runs that, because some will be punished, while others who have done similar evil, or worse, will go free, it is "unfair" to punish any. But since their individual culpability for atrocities has rendered all liable, I see no reason why the inability to punish every war criminals should negate the justice of punishing individuals, so long as their punishments are commensurate with their proven responsibility for their alleged crimes. .
 There is some debate as to whether, if just war may
be undertaken only in retribution for wrongs done by an aggressor, those
opposing the aggressors have a "natural moral right: to victory." The
con side of this debate is constructed largely on the self-servingly
twisted Just War terminology certain aggressors employ as a smoke screen for
their activities. The passionate insistence of overwrought Palestinian
apologists that America's having pursued a mid-East foreign policy sympathetic
to Israel was an act of "aggression" deserving of the Sept. 11
attacks on civilian targets by hijacked civilian aircraft, or Serbian
government propaganda that equated unintended collateral damage of American
bombings with its own policy of internally directed aggression on ethnic
minorities, are cases in point. The former example also raises the question of
the legality of intervention by one nation in the internally directed
aggression of another. But, I think that when one has cut through the
deliberately twisted rhetoric and complicating legal arguments that emphasize
form over substance, something very like a moral right to victory emerges from
the principles of just cause. It is the sentiment expressed by
 The aging Pol Pot's disingenuous proposal that the surviving victims and families of those who died in his killing fields should let bygones be bygones was as insulting as it was absurd, and Prince Norodom Sihanouk's recent signing into law of his decision to allow the trial of Pol Pot's murderous Khmer Rouge in U.N.-assisted genocide tribunal is, as an 8/11/01 news article ("Cambodia's King Signs Law to Try Khmer Rouge," Bangor Daily News) stated, "a big step towards obtaining justice for victims."
 Davida Kellogg, "On the
Importance of Having an Honorable Enemy Moral Asymmetry in Modern Warfare and
the End of the Just War Tradition," 4th Canadian Conference on Ethical
 "Those would be great places to be tried in if
you were in the American military and you had been fighting some tinhorm
dictator who got ahold of you and decided to put you on trial." Sen. Jon Kyl, quoted in Rick Maze, "Senate Aims to Keep Soldiers
Out of War-Crimes Court, Army Times,
 "There is an aura about secret military trials
for foeigners that the