It has been brought up lately, and I’ve been pondering it for quire a while. Here are some thoughts I have on the subject:
Back in ancient days, those who were defeated in war were at the mercy of the conqueror – it was felt that merely enslaving them was to cut them some slack. But putting an entire city to the sword down to the last man, woman and child was not uncommon. Over time, this was modified a bit as some great conquerors (most notably Alexander and Caesar) discovered that clemency was itself a mighty engine of war – letting the defeated off relatively easy tended to make conquests more lasting; and you could get more out of the defeated in continuing tribute than you could in a one-off sacking. But, still, for the longest time it was thought that an enemy who refused terms and was then defeated was without recourse to mercy.
Mostly through the agency of the Catholic Church as it rose to prominence, this idea of mercilessness to the conquered was modified. And the waging of war, itself, was held to require a strict set of rules. That these rules were often ignored is beside the point – there were rules and people would refer to them in judging the wartime actions of a nation. Time went on and war became to be seen as a thing between professional armies, alone, and the non-combatants were to be spared the ravages of war as far as possible. Napoleonic France diverged from this general trend (essentially, Napoleon looted Europe in order to fund his regime and his continuing wars) but the post-Napoleonic reaction was just that much more strong – until, by treaty, nations in the late 19th century started to codify the rules of war.
But it was still held that if one side violated the rules, the other side was justified in following suit. A good example of this was poison gas – banned by treaty prior to World War One, once the Germans started using it then all sides used it to the best of their ability. And then World War Two happened – a war was started by a nation with absolutely no justification and that nation then ran amok murdering and looting on a scale never seen before in war. After the war, trials were held and those judged most guilty of carrying out the crimes were hung or imprisoned for long terms. And it became rather set in stone: there were some things you just couldn’t do in war, ever.
But it still remains a fact that some people depart from the laws of war – most notably the terrorist. Remember, what was most terrible about the Nazi crimes was the way they brutalized people who couldn’t fight back…civilians and disarmed prisoners of war. We look far more in horror at the massacre of Babi Yar where more than 33,000 defenseless Jews were murdered than we do the bombing of Hamburg where more than 42,000 Germans died…this is because the Jews were completely harmless and completely helpless, while the Germans were at least working to support the German war machine and in the Luftwaffe and the Flak units, the Germans at least had a chance at self defense. We feel sadness when, say, an American or Israeli soldier is killed by an enemy but we know that soldiers voluntarily face such risks – and they have a chance to defend themselves. But when a bomb goes off in a shopping mall, it is defenseless, harmless people being murdered. The laws of war require that those shooting and being shot at be clearly identified as people who can do that – anyone who is not so identifiable must not be shot at and must not shoot. But the terrorist is violating both sides of that – they are not identifiable as shooters and they seek to kill people who are most definitely not in a position to shoot back.
What do we do about such a thing? That is the crucial thing we need to be clear in our minds about. The enemy diligently hides his identity. He desperately does not want to be known as a combatant before he starts shooting. He hides among his like, blending in to the best of his ability to confound those who would prevent him from attacking. He browbeats and threatens non-combatants into keeping silence, and supporting his efforts. He then steers clear of any place where he’s likely to be met with armed resistance, and then attacks. Is such a person, if captured, to then he held as if he were a regular soldier, honorably seeking to engage his like in battle? Or is he to be treated as a common criminal and be provided with a defense attorney? Or is he to be fought as he fights? Here is a clip from the movie Breaker Morant – it tells the story of three Australian officers being charged with murder for shooting out of hand what amounted to captured terrorists during the Boer War:
Most of the laws of war we use today were in effect at the time – but there is a difference: the defense the officers used was that they were obeying orders. Here’s the scene where the defense sums up:
And, of course, the standard was created in the post-WWII trials of the Nazis that obeying orders is no defense. Soldiers are to refuse to obey any order of a criminal nature – and, indeed, this has been written into American law and into the Uniform Code of Military Justice. But, still, what to do with an enemy who has departed entirely from the rules of war?
If a terrorist is planning on setting bombs in a series of shopping malls, what rule are we to use in stopping him from doing it? To be sure, if we can just arrest him and send him to jail, that is fine. But suppose we can’t? And even if we can arrest the particular terrorists planning the bomb-setting, what of their masters in a foreign land? And what of the government which allows them to operate in their territory? A further example – a terrorist group is using an active hospital as a base for their operations, what rule of war are we to use in getting after them? Kindly ask them to leave? Bomb the hospital? Suppose we decide in such cases that it is legitimate to bomb a hospital but we, being human, bomb the wrong hospital and kill hundreds of civilians – is that a war crime? Bring up the pilots on charges of murder?
We all know we must not become just like the enemy – but it seems to be that to become like the enemy would be to start hiding our military forces behind civilians and to eschew entirely attacking the enemy but, instead, go in search of family and friends and killing them out of hand. That would be acting like the enemy – but fighting the enemy without let or hindrance even though he is hiding behind civilians would not, in my view, be a crime…and if in the heat and pressure of battle where our troops are in a shooting gallery where who is the enemy and who the noncombatant is unclear, then it still would not be a crime if some of our troops did some things which in cool hindsight were wrong.
We are faced with a ruthless enemy and we have our choice – fight or quit. I don’t think that quitting is an actual option because they are determined to get after us regardless of what we do. But, still, if one wants to believe that if we stop, they’ll stop then that can be tried. On the other hand, however, if we decide to fight then while obeying all the rules of war, we still have to understand that an enemy departing from the rules will have to pay a high price for his actions…and those shielding the enemy while he violates the rules have to know that cooperating, even involuntarily, with the enemy is the worse option than resisting enemy pressure (in other words, the guy allowing his house to be used as a staging area for terrorists must become convinced that it is better to risk the wrath of the terrorists than to risk our wrath should we find out his house is a staging area).
War is a nasty, dirty business and no one comes out of it with completely clean hands. To take a human life is always a terrible thing and we should do our best to find ways to solve our problems without the spilling of blood. But the nature of humanity dictates that there will always come people who desire to obtain things by killing. It doesn’t really matter what particular thing it is they are trying for – the fact that they are willing to kill to get it is all that matters. And each enemy who arises has to be dealt with in the most efficient way possible. If someone wants to raise a conventional army to fight us and is willing to spare, as far as possible, all civilians then that, indeed, is how we should fight them…but if someone is taking to the hidden bomb in a school or the gunmen in an airport, then other means will be necessary to convince such an enemy that fighting is a losing proposition.