Disgust at a system of vast oppression is understandable and noble. A legal system enforcing criminal proceedings against ‘war criminals’ is flawed, nonetheless. The arrest of an old woman in Germany should be enough for sensible people to recognise the senselessness of the ‘war crime.’
1. Arrest of Nonagenerian
This week there was an arrest of a 91 year old woman in Germany for ‘war crimes.’ 91!! … put that in your mind. Give or take a year or two, she was born in 1924, turned 15 when WWII started after having spent her formative years being exposed to Nationalist Socialist propaganda. When the war ended she would have been about 21.
Think of all the other things in between … the social pressure, the desire to conform, the fact that she was a woman in a male-dominated world, the fact that she would have (with some justification) perceived the Bolsheviks to be a bigger threat than any right-wing dictatorship. There was less pressure on many Air Force pilots who dropped massive bombs and obliterated whole cities of Allied nations. Staiin would have terrified Soviet citizens into fighting for the USSR but the same arguments apply as for the anonymous woman.
Easy to see that history is written by the victors and the statutes of that history are similarly penned by the conquerors, too.
2. Wider Implications
But really, we could argue all day about the absurdity of such an arrest, even though we may understand why Germany wants to purge itself of its past. So let’s broaden the discussion and get to grips with the very meaning of a ‘war crime’ and explore why it is a nonsense, even for something as outrageously inhumane as the Nationalist Socialist atrocities.
3. War And Crime
First, let’s look at what (1) a ‘crime’ is and (2) a ‘war’ is, to make sense of a senseless term that has entered the legal code and the vernacular.
To do this, we travel back to the late Renaissance. In this era, the great English philosopher Thomas Hobbes evoked a ‘war of all against all’ which eventually led to the institution of the famous Leviathan. Until there was an instituted government, Hobbes reasoned, there was no such thing as crime. There was a ‘state of nature.’ Rights and infractions of rules only came into being with the guarantee of a stable situation. Law does not exist independently of a guarantee of the functioning of that law.
The ‘state of nature’ was a construct but it expressed something valuable about the essence of war. War is that condition where, as the saying goes, ‘all is fair …’
On the other hand, crime exists outside of the ‘state of nature.’ Once certain artifices – the artifices of political governance. law, administration – have been put in place there then can exist a thing called ‘crime.’
Concepts basic to the judicial, such as equality before the law and consistency in judgements, can be maintained in the absence of war. With war, by definition, there is a ‘one-off’ situation. Hence, there cannot be the consistency integral to a legal system.
4. Origins of the ‘War Crime’
So why is there such a thing as ‘war crimes?’ Why do we hear of ‘war crimes’ going back 70 years, ‘war criminals’ on trial, ‘war criminals’ wanted for trial, ‘war criminals’ who pressure groups believe should be in the dock?
Broadly speaking, the root of the idea of a ‘war crime’ go back to the Enlightenment. This period in European history reached its apotheosis when universal values, applicable to all mankind, were enshrined in documents accompanying the American and French revolutions. Specifically, however, it was WWI which spurred on the victorious governments to classify actions undertaken during war, such as the German occupation of Belgium, as ‘crimes’ that the vanquished needed to ‘pay for.’
As with the German initiation of criminal proceedings against the nonagenerian, the intent itself was not wholly suspect; the intention was to prevent countries using force unless it had been agreed upon internationally via the League of Nations.
What is it about good intentions and the road to hell? (HEALTH WARNING: cliches are abounding in this blog!) Just before WWII started, this criminalization of aggression unravelled in practice. The ideas remained nonetheless. Seemingly, there was little questioning of the misapplication of legal standards, existing in a climate of legal certainty, to what amounted to a legal vacuum, the climate of war.
5. Fundamental Problem
A major absurdity alluded to earlier when reciting the cliche that history is written by the victors is this: with ‘war crimes’ there is not even the hint of partiality, so vital to a functioning legal system. Of course, legal systems are never fully partial – but they at least are capable of arriving at partiality because there is not the antisymmetry between the powerful and weak in a stable nation as there is between the victor and vanquished in the wake of a conflict.
6. Other Forms of ‘Justice’
Don’t think for a moment I am saying that the Allies had no right to execute National Socialists. They had won the war. The rules of war still applied. As is traditional in war, ‘natural justice,’ the justice of the strong can be applied. That may include execution or long-term imprisonment. Furthermore, the Allies may have set themselves rules; if their soldiers broke them the soldiers in question could be prosecuted for infractions of these rules because militaries are entitled to have legal codes which regulate conduct crucial to the prosecuting of war. And if countries involved in a war had entered into a legal confederation or federation, there then may exist a legal basis for crimes to be prosecuted in such an arrangement, although a ‘war’ may not in fact have legally taken place in a confederation or a federation. Therefore, the same penalties could have been applied to the vanquished without corrupting legal concepts.
In sum, the problem is bringing together the word ‘war’ and the word ‘crime’ because the two are completely incompatible.
7. A Vehicle of Injustice
All in all, the idea of a ‘war crime’ begins to look more like the most prolonged and frightful oppression when you get down to it. Most, nearly all, ex-leaders in the ICC docks are Africans and Africa just happens to be the poorest continent on the planet. Many of those prosecuted seem to have made, what may be best described as, serious errors of judgement in the heat of the moment. And, given the nature of war, it is difficult to know if those prosecuting them would have not done the same in their place.
Is justice really being applied or is a myth being carefully maintained, a myth that enables the strongest in the jungle to class their enemies as being in violation of objective norms?
8. A Blind Eye
Don’t believe either that the world is being made a safer place. Many countries who enthusiastically implement the legal architecture within which ‘war crimes’ are prosecuted support the encirclement of the Gaza Strip, the largest open prison in the world. And no, Netanyahu should not be arrested for war crimes, no matter how tempting the proposition is. That is the problem with adhering to a sound understanding of law … sometimes those you dislike end up outside falling foul of the law so that the integrity of the law can be protected (although ‘a law’ really doesn’t exist in a conflict).
Moral outrage, hatred of oppression, disgust of excessive violence are all noble expressions of human empathy with the weak in the world. That is why they facilitate concepts, vital to a true understanding of law, to be abused.
Colm Gillis has written two books about political philosophy. Details of his latest book The Exceptionally Decisive Carl Schmitt can be viewed below.