‘We must have a bit of a fight, but I don’t care about going on long,’ said Tweedledum.
‘What’s the time now?’ Tweedledee looked at his watch, and said ‘Half-past four.’
‘Let’s fight till six, and then have dinner,’ said Tweedledum.
As far back as we can tell, people on Earth have been fighting to the death. The reasons do not change much down the ages. Love, revenge, territory, power, food, fear or belief all feature now as causes of deadly hostilities, just as they did far back in history.
Massed armed conflict is massively violent and massively destructive. Some of mankind’s greatest minds including Cicero, St Thomas Aquinas and Immanuel Kant have grappled with devising and enforcing rules to keep war under control.
Christianity and Islam alike reflect this. Deuteronomy 20:19-20 gives an example of utilitarian rules designed to minimise environmental damage during war: ‘When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by forcing an axe against them: for thou mayest eat of them, and thou shalt not cut them down (for the tree of the field is man’s life) to employ them in the siege…’
Early Muslim leader Abu Bakr laid down founding principles of Islamic military law: ‘Do not betray or misappropriate any part of the booty; do not practise treachery or mutilation. Do not kill a young child, an old man, or a woman.’
As time passed in Europe, attempts were made to codify matters. The idea of a ‘just war’ emerged. Circumstances required for war to start (jus ad bellum) were differentiated from what was or was not permissible once war had started (jus in bello). Lately a new body of thinking is developing: jus post bellum, or justice after war (reparations, fair principles for peace treaties and so on).
One lasting notion running down the centuries is ‘proportionality’ – that precisely because war is so ghastly, both the aims of war and the methods used somehow have to be fair. Take chemical weapons, which by their very nature are hard to control and indiscriminate in whom they injure or kill. They have an impressive history.
By 1000 BC China was experimenting with poisonous smoke for military purposes. An early recorded use of chemical warfare came in 590 BC, when Kirrha’s water supply was poisoned by Solon of Athens. Roman jurists proclaimed armis bella non venenis geri (war is fought by arms, not poison). This did not stop Roman armies poisoning wells of besieged cities in Anatolia 300 years later.
Much later, England’s Henry III found a way to get upwind of the French fleet and try to blind them with quicklime. Science marched ahead. Ingenious schemes used chemicals in sieges of cities, prompting a French/German treaty in 1675 prohibiting the use of ‘perfidious and odious’ toxic devices.
The First World War saw industrial-scale deployment of chemical weapons, despite earlier conventions prohibiting their use. The baneful environmental legacy of that war and the Second World War is still with us in the Baltic Sea; thousands of tonnes of German chemical munitions were dumped overboard and still lurk at the bottom. Today, the 1993 Chemical Weapons Convention has created a lot of work to safely destroy huge chemical weapons stockpiles accumulated by different countries in the twentieth century.
Yet all this shows something odd about the way we look at weapons. Why precisely is it acceptable to blow opposing forces to pieces or incinerate them with explosive shells, but not poison them? If the idea is to kill the enemy as ‘nicely’ (that is, painlessly) as possible and without killing civilians in the process, maybe chemical methods might help? Why is it acceptable painfully to kill enemy soldiers from afar when they are wide awake, but not to do so by deftly making them unconscious first? And why are chemical weapons banned when nuclear weapons – far bigger and necessarily likely to do untold damage to civilian people and property – are not?
Paradoxically, the more precise the methods used to kill the enemy and not kill civilians, the more such precision looks like assassination or even cold-blooded murder rather than ‘war’. Hence unease in some quarters over the Obama administration’s unrelenting use of unmanned aerial vehicles (or drones) in Iraq and Afghanistan to pinpoint suspected terrorist and insurgent targets. And destroy them.
As the ghastly 1995 Srebrenica massacre in Bosnia exemplifies, one unambiguous war crime is killing unarmed prisoners. Examples are remembered for decades, even centuries, afterwards. Thus in 2008, angry exchanges took place across the English Channel over the killing by the English of many French noble prisoners at the 1415 Battle of Agincourt. An early example of perfidious English war crimes? Or merely a practical response to charging French knights bearing lances with red banners signifying that no mercy would be given to any English prisoners?
Much more recently, the 1940 Katyn massacres of over 20,000 senior Polish prisoners on Stalin’s personal orders is an impeccably documented war crime, all the more startling as for decades the Soviet leadership blamed it on the Nazis – and many Western governments including London looked shiftily away.
The truth emerged officially only as Soviet communism ended. Yet even now the Russian government does not accept that Katyn was a war crime, arguing that it was a ‘political’ or military crime requiring no further investigation more than 50 years later. The Russians meanwhile continue to press Poland for more information on the obscure fate of thousands of prisoners captured after the Red Army’s stunning defeat near Warsaw in 1920.
When do war crimes fade into history? Very slowly. Katyn gnaws away at normal relations between Warsaw and Moscow: so many Poles have friends or family connections with Katyn victims, and young Soviet soldiers who took part in the Katyn killings are perhaps still alive today, feted as heroes from the Great Patriotic War. The crash of President Kaczynski’s aircraft at Smolensk in April this year killing so many senior Poles en route to a 70th anniversary Katyn commemoration made that new tragedy especially painful for millions of Poles.
Could this disaster lead to a new spirit of reconciliation and openness between Poland and Russia? Early signs have been promising. But it may prove a step too far for Moscow to accept that Katyn was a war crime, lest that call into question colossal Russian losses in the war against Nazi Germany, or lead to unmanageable Polish calls for compensation.
Laws about war make sense only if those who break those laws face Consequences. An early war crimes trial in 1474 following a local uprising in the Upper Rhine saw German military commander Peter von Hagenbach beheaded for crimes ‘he as a knight was deemed to have a duty to prevent’. In vain, he argued that he had been ‘only obeying orders’.
The defining war crimes trials of modern times were the Nuremburg Trials following World War Two. The most famous trial had 22 top Nazi leaders on trial. Twelve were sentenced to death and 10 promptly executed. The legitimacy of the process was challenged as ‘victor’s justice’ both by defence lawyers and some Allied opinion-formers.
Top Soviet leaders had conspired with Hitler to start the Second World War and had used appalling methods to pursue it – what of justice for their victims? Chief US prosecutor Robert H Jackson: ‘These defendants may be hard pressed but they are not ill used… If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given the chance to plead for their lives in the name of the law.’
Less remembered now are the dozens of other trials across Europe, often lasting only a few days or weeks with many Nazi officials briskly executed.
Today, the International Criminal Tribunals for the Former Yugoslavia and Rwanda are dealing with suspected war crimes in those territories. Proceedings have been very different from Nuremburg – far slower, meticulous almost to a fault – as it was decided to set new, unimpeachable standards for international justice.
Offering defendants the greatest leeway to defend themselves has allowed some indictees – notably Slobodan Milosevic, Vojislav Seselj and now Radovan Karadzic – to use procedural ruses to duck and weave and so try to discredit the process. Nonetheless, the trials have led to over 60 convictions (and some acquittals). Important new legal principles have been established. And new war crimes tribunals in Belgrade, Sarajevo and Zagreb are dealing with other war crimes, with results generally seen as both credible and creditable.
The core problem with these Balkan trials is that they proceed in a local moral and political limbo. Each community concerned likes to see a conviction of someone from another community who brutalized their fellow ethnic cousins. But they hate it when ‘their’ court is expected to put on trial one of ‘their’ people. And above all they suspect that the other sides’ courts pull their punches in looking at ‘their’ war crimes suspects.
Why, cry Bosniacs, has Serbia not arrested General Mladic? Why, cry Serbs, has the Bosnian legal system for nearly 20 years done next to nothing about the 1992 Dobrovoljacka St killings in Sarajevo? Hence the controversial attempt this year by Serbia to get former Bosnian Presidency member Ejup Ganic extradited from London to Belgrade.
The harsh reality is that every community in former Yugoslavia sees itself as a victim of something or other. And the central part of being a Victim is that you never get Justice.