A former colleague of mine was on the plane that was crashed into the Pentagon. She was travelling to Australia with her husband and two small children to take up a visiting appointment. It’s as close as murder has ever come to me and, given the circumstances, it could just as easily have been me and my family. I am often haunted by thoughts of that flight and the horror of its final moments.
I know of course, that everyone killed by war or the unofficial war that is called terrorism is someone’s colleague, friend, parent, child. If we use the language of war, are we not justified in killing our enemies, regardless of their individual guilt or innocence? But I am no longer prepared to accept the easy conclusion that, in some sense, deaths in war aren’t murder. Some deaths may arise from self-defence or accident, but I have come to the conclusion that everyone involved in war, from presidents and prime ministers to privates and paymasters, should be answerable for their actions.
In the case of terrorists like Al-Qaeda, the implications are straightforward. Anyone involved in such groups is a murderer and should pay the penalty. Moreover, this penalty should be imposed under national or international law, not on the basis of ‘rules of war’ that implicitly justify war itself. If it is necessary to make new and retrospective laws to achieve this outcome, and to use doctrines of criminal conspiracy, this is preferable to a continuation of the international law of the jungle.
But what about ‘ordinary’ wars and the crimes of governments like those of Saddam and Suharto? In the world that prevailed in theory until the formation of the United Nations and in practice until the end of the Cold War, any notion of applying justice in these circumstances was nonsensical. At best, ‘victor’s justice’ could be applied to criminals on the losing side. In most cases, considerations of realpolitik meant that crimes went unpunished.
Today, however, liberal democracies dominate the world. If we are willing to apply the law to ourselves, we can impose it on everyone else. This means seeing armed forces as being like police forces, empowered to use deadly force, but answerable for the way they use it. It is a step which European countries are just about ready to take, but for which the United States is not yet ready.
One problem is that, for law to be effective, there must be a high probability that it will be applied. In the past, heads of state have enjoyed immunity for all but the worst crimes, as have rank-and-file members of armed forces acting under orders. In effect, middle-ranking officers have borne the brunt of criminal prosecution.
On the first score, the arrest and trial of murderers like Pinochet and Milosevic is a start, but there are still dozens of former dictators, and thousands of their top henchmen, enjoying comfortable retirements. On the second, there must have been hundreds of people directly involved the massacre at Srebenica, but only a handful have been tried or even indicted. A similar story could be told for other war crimes.
There may be cases, such as those of long-running civil wars, where the rights and wrongs are too complex for criminal law. Even so, we should not let bygones be bygones. The Truth Commission in South Africa, where those on all sides who had killed or tortured in support of ‘the cause’ were made to confess in return for amnesty, provides one possible model for responding to such situations.