As ISIS and its affiliates continue to wreak havoc in various parts of the world there have been calls for war crimes trials for its leaders, trials similar to those held in Nuremberg and Tokyo after World War II. Dozens of German and Japanese wartime leaders were convicted and punished for crimes for crimes such as genocide and aggression. Six Japanese leaders and 15 Germans, including Herman Goering and Josef Goebbels, were either executed or committed suicide.
A former Nuremberg prosecutor wrote a recent letter to the New York Times saying “the hopes of the Nuremberg trials 70 years ago are being tarnished by being ignored.” In the late 1990s after the Balkan wars, several Serb leaders including Slobodan Milosevic were tried for war crimes before the International Criminal Court in The Hague and sentenced to prison. But that court has only limited jurisdiction, since both the U.S. and Israel have refused to join. Consequently the former Nuremberg prosecutor urges that the U.S. adopt new laws that “hold perpetrators of large-scale atrocities accountable.”
The problem with prosecuting perpetrators of war crimes is that the individuals found tried and guilty are invariably on the losing side. It’s the victors who determine who the war criminals are. The legal definition of war crimes under the Geneva Conventions includes unprovoked aggression, attacking civilians, and subjecting prisoners to humiliating treatment, unlawful confinement, and torture.
All of these acts were committed by the United States during its wars in Indochina, Iraq and Afghanistan. The process of “extraordinary rendition” and the torture of terrorism suspects became routine during the administration of George W. Bush, despite the fact that the United States had signed the international agreement outlawing torture. Israel is equally culpable under international law for its continued occupation, its 8-year blockade of Gaza, and for establishing settlements in occupied territory.
In the real world, however, when it comes to punishing villainous behavior, it is political expediency that determines what is a war crime and who is guilty of them. The government officials from Vice-President Dick Cheney on down who authorized the systematic use of torture will never be brought to account and neither will the CIA agents and contractors who carried out their orders, because the Obama administration considers it politically unwise to raise the issue.
Surely the Nazis are among history’s most notorious lawbreakers, not only for invading other countries but for committing genocide in their systematic attempt to exterminate the Jewish populations of Europe along with Gypsies and Slavs. But what, if not war crimes, would we call the Allied firebombing of Hamburg and Berlin, which literally incinerated thousands of ordinary German civilians, and the levelling of the city of Dresden, a cultural landmark that had no war industries?
A few years ago Robert McNamara, the secretary of defense under President Kennedy, said in a filmed interview that had the United States lost World War II American officials would undoubtedly have been accused of war crimes for having firebombed into ashes every major Japanese city and killing thousands of Japanese civilians. Many people think Harry Truman could legitimately have been accused of war crimes for dropping atom bombs on two cities that had no strategic importance, and for doing it when Japan was on the verge of surrendering.
Since 1945 war has become even crueler, with the victims predominantly civilians. The International Criminal Court at The Hague held trials of individuals accused of war crimes during the Balkan war in the early 1990s, and several Serbs and Croats served prison terms as a result. Individuals considered responsible for the genocide in Rwanda, and atrocities elsewhere in Africa have also been tried and sentenced to prison.
The U.S. war in Indochina filled every definition of a crime. But since the victor determines who is a war criminal, no one has ever been punished. Our forces invaded Vietnam and Cambodia, that posed no threat to our national security, and killed an estimated 2 million members of a largely peasant population. We poisoned their forests and crops with agent Orange, which resulted in thousands of cases of birth defects, and the cluster bombs used by U.S. forces caused agonizing wounds.
The war crimes have continued. In retaliation for Iraq’s invasion of Kuwait in 1991, the U.S. under George H.W. Bush dropped more bomb tonnage on Iraq than was used in the ten years of war in Indochina, according to then Defense Secretary Cheney. The sanctions imposed on Iraq by the Clinton administration were responsible for the deaths of 500,000 Iraqi children, according to the British medical journal, the Lancet. Operation Shock and Awe in 2003 that ousted Saddam Hussein killed untold numbers of Iraqis as well as four thousand American soldiers and left behind a society fractured by sectarian rivalry. The perpetrators of that war, are not likely to be charged with war crimes.
The truth is, the object of a war is to win it, by any means necessary, and those means are almost always ugly. Looting, rape, torture, and the killing of civilians, have been integral parts of every war. The United States now has troops stationed in more than 650 places around the world, and American forces are fighting in Afghanistan, Iraq, Syria, Niger, Cameroon, and aiding in the bombing of Yemen by Saudi Arabia and the Gulf emirates.
It’s a safe bet bet that in such dangerous territory, war crimes are being committed by both sides. All wars involve the killing of civilians and there are no limits on brutality when soldiers are trained to regard the enemy as less than human, and their worst impulses are released. Since the winner determines who is a war criminal, the only way to deal with war criminals is to prevent wars from taking place in the first place.