Davida Kellogg


Department of Military Science

University of Maine

Orono, Maine




            On November 13, 2001, President George W. Bush, in his capacity as Commander-in-Chief, issued an order that would allow suspected foreign terrorists to be tried by U. S. military tribunals.[1]  Although Secretary of Defense Rumsfeld has not yet had a chance to fully research the legal and practical ramifications of implementing such proceedings, the issue of military commissions is already "on trial" in the court of American public opinion. Attorney General Ashcroft is interrogated almost daily by the various media about the constitutionality of the President's order. And even my notoriously provincial hometown and campus newspapers regularly carry editorial comments on the projected effects of this order on our security and civil liberties, which, it is widely assumed, will be largely negative.[2] But even before the events of September 11, 2001 provided the impetus for President Bush's order, the apprehension of Slobodan Milosevic had already brought our role in international war crimes tribunals, into question. Arguments against our participation in such trials have been advanced to the effect that it is disingenuous to imagine that the rule of law applies in combat; that war crimes tribunals only serve to enforce "victor's justice" on those whose only "real" crime was having had the "bad moral luck" to be raised in a society that approved of atrocity, or to have served in a military that engaged in war crimes; that war crimes "show" trials cannot undo past wrongs, and laying blame does not further peace and reconciliation; that international jurisdiction over war criminals threatens national sovereignty, and that trumped-up charges and unfair trials in "kangaroo courts" might be used as a means for disgruntled weaker nations to take out their resentments on the soldiers of more powerful ones; and that, in any case, it is supremely arrogant of us to intervene in the internal affairs of another society, of whose culture and history we may have only a limited understanding.

            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[3] 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.[4]  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.


Cicero, Sherman, and the Possibility of Refining Warfare Through Rule of Law

            Scholars endeavoring to argue the inapplicability of law to warfare sooner or later appeal to the shade of Cicero. I admire Cicero, if only for his rhetorical style, and have even resorted to his (in)famous but entertaining method of argumentation when I thought it might be fun to "needle" an opponent. But his most famous dictum - "Silent enim leges inter arma"[5] - is a dangerous piece of sophistry. I say that to declare, as William Tecumseh Sherman did, that "War is cruelty and you cannot refine it," is dangerous because it covers a cynical dismissal of action that could save countless lives and prevent untold suffering. And I say that the reasoning behind this cynical attitude - that nothing need be done to mitigate the horrors of war because nothing can be done - is sophistry because it is demonstrably false. It flies in the face of centuries of experimentation and success in both the development and application of Just War Tradition going back to ancient Greece and Biblical times. Moreover, I believe that its advocates know the proposition that the cruelties of warfare are absolutely irremediable to be false. Sherman himself made just such an effort at the refinement of warfare as he claimed to be impossible when he issued the order for the evacuation of Atlanta before burning the city. His justification of his order to the Confederate commander there, Gen. Hood  — "God will judge whether it be more humane to fight with a town full of women at our back or remove them in time to places of safety among their own friends and people" — reads very like an argument for discrimination of civilians from combatants, one of the twin pillars of jus in bello. Sherman also argued that because the South had started the Civil War they had little right to complain about any hardships the Union visited on its people as a result. I shall return to the vexed problem of collective guilt later in this paper. But, my point here is that even the author of perhaps the most [mis]quoted justification for modern military realism ("War is Hell") recognized the existence of moral principles that apply in wartime.

            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,[6] 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.[7] 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.[8] 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, Cicero is worse than mistaken; he is wrong also in the moral sense of the word. Law, the purpose of which is to do justice, in part by punishing violators of others' national and natural human rights, can and does have a great deal to say on the subject of war. It's voice can be muted by vicious acts of governments, and vicious, or just plain morally lazy peoples can and do turn a deaf ear to it. But, because the consequences of making no effort to limit the depredations of warfare are so terrible, war is the one place where law must be allowed to speak the loudest.


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[9] 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,"[10] 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.[11] "The problem," as David Cooper[12] 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,[13] 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[14]  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,[15]  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.[16]  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 bello  principles of discrimination of civilians from combatants and proportionality of means are generally presented as an exhaustive listing of the component divisions of Just War theory. There is, however, a third point in the waging of war when justice should be done, and that is when a justly declared and justly fought war is over (jus post bellum). Once hostilities have ceased, those most grievously harmed have what I consider to be a natural right to some reasonable expectation that a just society (and, by extension, the civilized nations or the world, if they wish to be thought just) acknowledge the fact that atrocious crimes have been perpetrated on them and fairly judge and exact punishment from the perpetrators. Societies that are wise, as well as just, will see to it that these expectations are met.     

            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.[17] 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,[18] 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 World Trade Center, in which thousands of civilians worked, on the grounds that  it supported American economic power. 'The American People," bin Laden stated, "should remember that they pay taxes ... They are," therefore, on the grounds of the collective guilt he and other militant Islamic fanatics indiscriminately assign them, "responsible for American policy," and so, deserving of the indiscriminate terror attacks he has admitted ordering against them. In return, the hearts of many American citizens were hardened towards all people of Middle Eastern descent by bin Laden's obvious pleasure in the  death of innocents and destruction he caused and the sight of beaming Palestinian women dancing in the streets at the news of attacks on our own people, whether they feel free to publically admit it to microphone-wielding newsmen, or not. Arab-Americans do have reason to worry about the consequences to them of bin Landen's crimes. Their best hope for peaceful future in this country resides in their increasingly mistrustful neighbors seeing justice done to bin Laden and his lieutenants for the innocent victims of the 9/11 attacks though the legal process.


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."[19] 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 Dec. 7, 2001, the U.S. Senate approved by an overwhelming vote of 78-21 an amendment to the 2002 defense appropriations bill that would exempt American service members from prosecution by the International Criminal Court that will be formally established by the ratification of a1998 treaty by 60 nations. So great is our concern over the possibility of wrongful prosecution of U.S. troops that the American Servicemembers Protection Act, as this amendment is called, even authorizes the use of military force to free any U.S. service members and government officials detained by that court. An idealist might argue that the best way to shield our troops from war crimes charges is to recruit and train honorable people, well grounded in principles of Just War and committed to upholding them. But, considering the unsavory reputations and hostile attitudes of some of the 48 nations (Syria, Sudan, etc.) that have so far signed the treaty, wrongful prosecution of American troops on trumped-up charges by this court is a distinct possibility. Under such circumstances, our government's reservations, though regrettable, may be justified.

            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 U.S. military tribunals should necessarily be any less fair than our federal courts (after all, we consider them fair enough for our own service men and women), the perception of military tribunals as kangaroo courts has taken hold in the public perception.[20] Under the circumstances, I must reluctantly agree with military legal expert, Phil Cave[21] that, though he expects the Supreme Court to uphold the legality of military tribunals should the issue come before it, "the cases of accused terrorists may be [better] resolved politically by the countries involved. A trial in which the military controls who is tried and the rules of evidence 'is like adding fuel to the fire of a bad perception;'" the attendant loss of political "currency" may be too great. Even before they are brought before any court, whether military or civilian, we are faced with the question, which has grown pressing in the past few weeks, of how to treat the terrorists we now have in custody at Guantanamo Bay. These captured al-Qaida fighters were certainly no innocent civilians. Neither were they legitimate soldiers, and so under the protection of the Geneva Convention. President Bush's term, "unlawful combatants" comes fairly close to an accurate description, but what does that tell us about how we are to treat them? Under Ancient Roman law, those who fought in a campaign without having legally been sworn into service could be held liable for murder. Like them, the prisoners now in custody at Guantanamo Bay were sworn into the service of no recognized country; their allegiances appear to be personal and religious rather than national. My own inclination is, following the Roman precedent, to treat them as common murderers, but I think that we would probably do best to grant them the protected status of prisoners of war for the sake of public perception, if nothing else.

            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.




[1] George W. Bush, "Detention, Treatment and Trial of Certain Non-Citizens in the War against Terrorism," 11/13/01.


[2] 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,"

Bangor Daily News, 12/11/ 01; David Murray, "The Lesson of Nuremberg," Boston Globe, 12/12/01; and others.


[3] Michael Walzer, Just and Unjust War, Harper Collins, New York, p.62.

'Nothing but aggression can justify war...'There is a single and only just

cause for commencing a war,' wrote Vitoria, 'namely a wrong received ...

Nothing else warrants the use of force in international society - above all

not any difference in religion of politics."


[4] As ethnic Albanian Kosovars did on their erstwhile Serbian neighbors.


[5] Cicero, Pro Milone, iv. xi.


[6] Davida Kellogg, "Guerrilla Warfare: When Taking Care of Your Troops Leads to War Crimes," JSCOPE 19, 1/97.


[7] 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.


[8] Mary Midgley, Can’t We Make Moral Judgments?  St. Martin’s Press, New York, 1993.


[9] Aristotle, Nichomachean Ethics, trans. Martin Oswald, 1962, Indianapolis.


[10] 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."


[11] This is in fact the position taken by Daniel Goldhagen, author of the chilling Hitler's Willing Executioners: Ordinary Germans and the Holocaust, Abacus, London, 1996.


[12]  David Cooper, "Collective Responsibility, Moral Luck, and Reconciliation," In War Crimes and Collective Wrongdoing: A Reader, Ed. Aleksander Jokic, Blackwell Pub., Malden MA, 2001.


[13] 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 atrocities in Bosnia. "Sells," writes Cooper, "concedes that the motives of many Serbs were 'deeply religious,' and stresses that the component beliefs of Christoslavism constituted a 'raging torrent' or 'lethal brew' sufficiently powerful or intoxicating to inspire many ordinary people to act as they did."


[14] 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.


[15] 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.  .


[16] 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 Lincoln when he said that God could not be on both sides of the Civil War. There is a vast and unbridgeable moral difference between an Army ethically employed in the service of a just cause and terrorists. As Eric Cantor and Frank Lautenberg wrote in a recent editorial ("Truth About Terror," Bangor Daily News, 12/11/01),  in a world where "millions of innocent lives are at risk from fanatics who see no difference between killing a child in a stroller and a soldier in a tank ...a 'good' terrorist is indeed an obscene proposition...George Washington was a [soldier in a] revolutionary [cause], but he was no terrorist. Osama bin Laden is both." One man's terrorist ought not be excused his atrocities on the grounds that he is another man's freedom fighter.


[17] 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."


[18] 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 Leadership, Kingston Ontario, 9/11/01.


[19] "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, 12/24/2001.


[20] "There is an aura about secret military trials for foeigners that the United States would not applaud if they were used against U.S. citizens." Military legal expert Kevin Barry, quoted in Deborah Funk, "Military-Tribunal Order Raises Questions of Fairness," Army Times, 12/10/01. See also Rex Babin's cartoon from the Sacramento Bee, and numerous other political cartoons and editorials.


 [21] also quoted in 20. above.