Non-Intuitive War Crimes

 

An essential component of Protestant theology is sola scriptura that only the Bible has authority. For this to work, it is necessary to not only accept a Protestant reading of the Bible but also that only the Protestant reading of the Bible makes sense. In essence, a Protestant needs to be perfectly confident that he can drop a suitably translated Bible next to a native Pacific islander and they would be able to reconstruct Protestant theology for themselves. The moment we no longer assume that this is likely, sola scriptura collapses and we are left having to choose which pair of exegetical glasses we are going to use to read the text with. Protestantism may be one possible framework along with a Catholic or a Jewish reading but that will no longer be sola scriptura. 

I see a similar problem with the notion of international war crimes trials. There is a basic problem with charging someone from another country with a war crime mainly that it violates one of the most basic principles of law, ex post facto. For something to be a crime, there has to be a clear law with set penalties that were being violated at the time the crime was committed. Without this, governments can arrest anyone for what they did last week even if it was perfectly legal then.  

The Nazi defendants at Nuremberg were some of the evilest people in all of history and they certainly deserved death. That being said, the Nuremberg trial itself was illegal. The actions of the Nuremberg defendants, including mass murder, were all perfectly legal under German law. By contrast, the crimes, the tribunal, and the very process of the trial were all made up on the fly for the sole purpose of prosecuting the defendants. Considering this, an essential justification of the Nuremberg trial was that the crimes committed were so egregious as to make it obvious to the defendants that what they were doing was a crime. 

Considering this, a war crime cannot just be something that is a war crime. In order to be a war crime, it needs to be obvious that the action is a war crime. The moment we fail to meet that high standard then we lose the moral high ground and are stuck in the morally dubious position of trying to punish people for failing to live up to our morality. 

A war crime can never be obvious because the very act of fighting in a war already violates the most basic of moral taboos, murder. One thinks of the scene in All Quiet on the Western Front where Paul stabs a French soldier that was in a shell crater with him. Paul, stuck in the crater, is forced to listen to the man die. The power of the scene relies on Paul, stuck in the muddy crater and cut off from the fighting around him, coming to the awareness that, because of his actions, a human being is dying next to him and that he will never be able to wash this guilt from himself. Sending people to war means telling young men to murder other young men who simply happen to be wearing the wrong-colored uniform. If they agree to commit cold-blooded murder, they will be hailed as heroes but if they refuse they will be imprisoned or executed for dereliction of duty.   

If this was our standard for a war crime, war crimes would be obvious and just about every soldier and politician throughout human history would be guilty of committing them. Imagine if Amnesty International were to be contacted for help by a soldier in prison for refusing to fire on uniformed enemy soldiers who refused to surrender. The moment Amnesty took such a case would be the end of war crimes theory as no country could ever accept that their soldiers have a moral right to refuse to fight.  

For a war crime charge not to collapse into reductio ad absurdum, we need to assume that there really is such a thing as legitimate war, where you murder perfectly decent people who have not harmed anybody, and that this can be distinguished from illegitimate warfare which is a crime. I do not want this to sink into moral relativism. Clearly, there can be distinctions made between legitimate and illegitimate warfare. Part of being a citizen is agreeing to murder people in legitimate wars and the government has the right to punish people who wish to renege on this agreement. The problem is whether we can assume that these distinctions between legitimate and illegitimate will be obvious to all reasonable people.

Imagine that I was drafted into a war. I agree to murder someone in an enemy uniform who was not in the act of trying to murder anyone from my side. Perhaps, they were on the toilet and I took them out with a sniper rifle. My commanding officer next tells me to start shelling a kindergarten classroom that enemy soldiers are using for cover. Have I just been ordered to commit a war crime and should I risk going to jail rather than do such a deed? What if the kindergartners are singing a song about how they pledge to kill people in my country? Why is it worse to kill those kids than the soldier who was not threatening my side?

I like to think of myself as an educated person. That being said, I am not any kind of lawyer or war crimes expert. Presumably, my officers will have manuals written by legal professionals employed by my government explaining how the orders they are giving me are not war crimes and, as such, I will face prosecution for failing to carry them out. What grounds would I have to argue against that? At least I know enough history and political theory to give some decent speeches before my military tribunal when I am tried for dereliction of duty. What is an eighteen-year-old fresh out of high school supposed to do besides listen to his government’s lawyers and hope that his side does not lose the war?

There are many areas of law that are allowed to be complicated. For example, I cannot assume that I have correctly filed my taxes simply by relying on my moral intuitions. On the contrary, I need to rely on professionals. Similarly, the precise parameters of the right to kill in self-defense are not intuitive. As a rule of thumb, if you have time to worry that the law might not recognize your right to self-defense in a particular situation that is a sign that you should not kill your attacker. By contrast, for war crimes to be a meaningful charge, it needs to be intuitively obvious. Soldiers cannot be expected to go to war advised by foreign legal experts whether something is really a war crime. The moment a war crime becomes something that you even need an expert for and cannot simply rely on what your "parents might say” then the entire legal edifice of war crimes collapses into the personal morality of foreign lawyers to be used against you if your side loses the war.