Prosecution of War Crimes: A Sign of Civilization
It is a cliché, but true, to say that war is an ugly affair. Which does not mean that there are no good moral and economic arguments for defensive wars. The world is not only inhabited by noble savages. But just as international thugs must be dissuaded from waging aggressive wars, soldiers on all sides must be dissuaded from committing gratuitous atrocities. It is clearly a sign of civilization that some of those have come to be be considered war crimes by international conventions and domestic laws since the 19th century. I take “civilization” in this context to mean a general recognition of a minimum respect for each human individual and of rules to that effect.
The government of Australia just charged one of its soldiers with war crimes when he was deployed in Afghanistan, and more charges may be coming (“Australia Charges Soldier Deployed to Afghanistan With War Crime,” Wall Street Journal, March 20, 2023):
The charge, which carries a maximum sentence of life in prison, follows a 2020 government inquiry that found credible information that Australian special forces were responsible for the unlawful killing of 39 prisoners, farmers and other civilians.
The recognition of war crimes also reminds us of an important legal-individualist principle: even a soldier cannot hide behind the collective to commit crimes. During the 1968 My Lai massacre in Vietnam, as many as 500 unarmed civilians including women and children were killed. Rapes were committed too. No Viet Cong combatants were in the area. The very few heroes in this story include Warrant Officer Hugh Thompson and his two men. The Encyclopedia Britannica writes:
As the massacre was taking place, Warrant Officer Hugh Thompson was flying a scout helicopter at low altitude above My Lai. Observing wounded civilians, he marked their locations with smoke grenades and radioed for troops on the ground to proceed to those positions to administer medical aid. After refueling, Thompson returned to My Lai only to see that the wounded civilians subsequently had been killed. Spotting a squad of U.S. soldiers converging on more than a dozen women and children, Thompson landed his helicopter between the two groups. Thompson’s door gunner, Lawrence Colburn, and his crew chief, Glenn Andreotta, manned their weapons as Thompson hailed other helicopters to join him in ferrying the civilians to safety. In 1998 Thompson, Colburn, and Andreotta (posthumously) were awarded the Soldier’s Medal for acts of extraordinary bravery not involving contact with the enemy.
A few soldiers and officers at My Lai were eventually charged with war crimes, but only Lieut. William Calley, commander of Charlie Company’s 1st Platoon, was found guilty. Many of the others hid behind the collective by claiming that they were following orders. Calley was condemned to life in prison, but was paroled three years later. He tried to defend his actions in a book: John Sack, Lieutenant Calley: His Own Story (Viking Press, 1971).
General Paul Selva more recently declared before a Senate committee: “We take our values to war.” That’s a far cry from what president Donald Trump tweeted before pardoning Army commando Mathew Golsteyn, who had been charged with premeditated murder in Afghanistan. Trump’s tweet of October 12, 2019 read:
The case of Major Mathew Golsteyn is now under review at the White House. Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!
Conservative Bill Kristol sensibly replied:
No we don’t. And it’s beyond disgusting that an American president would say this about our military.
Civilization is fragile. This idea is omnipresent in the work of economist Friedrich Hayek; my third essay on his trilogy Law, Legislation, and Liberty is forthcoming at Econlib.
Mar 21 2023 at 10:31am
Quoting Bill Kristol, a huge advocate of the Iraq and Afganistan Wars, is rather questionable.
And many liberals considered imperialism, eugenics, the kulturkampf, the Popish Plot and Covid lockdowns to be signs of civilization.
Yet didn’t he write a whole book about how he was not a conservative? And did Hayek in 1914 envision Naziism, Communism and The Yugoslav wars as the sort of changes to the status quo of the Austro-Hungarian Empire he wanted?
And isn’t Hayek dead? Doesn’t that make Hayek old Knowledge that we shouldn’t reject in the name of novelty?
Replacing freedom, prosperity and peace with war, tyranny and poverty is a change to the status quo. And since supporting the status quo is conservative doesn’t that make liberalism prone to totalitarianism?
We are saw this in the late 19th century with the rebellion against classical liberal status quo and the current rebellion against the neoliberal status quo.
And doesn’t civilization require traditions, customs and social norms to underpin it? Yet if all traditions, customs and social norms should be challenged then doesn’t that mean that those traditions, customs and social norms underpinning civilization should be challenged as well?
Liberals have a long ugly history of blithely assuming that changes to the status quo they won’t like will never happen because of The Inevitable March of History and fear that expressing such concern makes them sound reactionary: John Lilburne not forseeing Cronwell using the New Model Army against him, Paine not foreseeing a French Revolutionary faction coming to power that wanted to kill him, Mill taking it as a given that experiments in living would only be conducted by people he deemed to “civilized” and would only result in behaviors he deemed to be “civilized”, Spencer not forseeing the politics of the suffragettes or “rebarbarization” like thebspirts section, not forseeing the likes of Puyin or Xi, not foreseeing how the public schools and universities would turn against them
Mar 21 2023 at 1:14pm
Laurentian: There seems to be some confusion in your firehose of criticisms. Of course, questions are welcome. Let me just answer four of your questions.
No to the first question; he wrote a postcript to The Constitution of Liberty, which I do recommend you read. And no to the second one, or at least I never read or heard anything along those lines; you might find his The Road to Serfdom useful too.
As for the two questions:
The answer to the first question is yes. And if you answer yes to the second one, you have to answer no, because there will be some new knowledge next year.
Mar 21 2023 at 10:55am
Also if civilization is fragile then why did the liberals spend the last 80 years defending everything single social, cultural and economic change in the West? The idea that some of these might be bad for a free society was universally dismissed as reactionary bigotry.
Also why is that even today liberals can’t decide if Current Year is the Best Year Ever or if there are something seriously wrong that needs to be addressed.
Here Art Carden says that “2020 was still pretty much the best time to be alive ever”.
Yet two years later we learn that 2020 saw a global decline in economic freedom, especially in the US.
So is declining Economic Freedom a sign that Everything is Not Fine or what?
Mar 21 2023 at 1:43pm
Laurentian: Are you sure you are not confusing “liberal” in the American sense with “classical liberal”? At any rate, I don’t see your point. In comparing A and B, two classical liberals may have different opinions, especially if one is, in fact, comparing A and C instead. If you want some long-term view on the evolution of our world, I might recommend three books:
The short and delicious A Theory of Economic History, by John Hicks.
The more involved and less theoretical A Culture of Growth, by Joel Mokyr.
Walter Sheidel’s Escape from Rome.
The links are from my Regulation reviews and should not replace the main things.
Mar 21 2023 at 11:19am
“The alleged murder occurred just days after two U.S. Marines, Sgt. Jeremy McQueary and Lance Cpl. Larry Johnson, were killed after they entered a building rigged with explosives. Golsteyn was present when the Marines were killed and three others were injured, he said.
According to military documents, the Afghan man was taken into custody over suspicion that he was responsible for planting the explosives that killed the two Marines. He was later released.”
International law imposes a duty to target the enemy with distinction and proportionality. It also imposes a duty on the combatants to distinguish themselves from the civilian population itself so there are situations, and Golsteyn’s case surely might be one of them, where the failure of the enemy to distinguish themselves on the battlefield makes it impossible to distinguish between combatant and non-combatant.
Nevertheless based on the article I read, Golsteyn believed that the person he killed was a bombmaker for the Taliban. In Golsteyn’s opinion he was a legitimate military target, Golsteyn targeted him and killed him. That’s the nasty business of war.
Calley’s actions are much more egregious he didn’t genuinely believe the villagers to be direct combatants, the issue in Vietnam is the soldiers were getting sniped and then blending in with the local villagers, hiding weapons in those villages, sometimes under duress and so many soldiers began to view these villages as complicit in hostilities against the US forces there.
I am actually noting these things because the nature of guerilla war is such that the enemy hugs the civilian population, quite on purpose I might add, and engages in a manner where they do not distinguish themselves from the civilian population, itself a war crime actually, and the natural consequence is that the distinction between the non-combatant civilian population and combatants becomes so blurred that it becomes very difficult to engage the enemy with distinction.
I’m not suggesting this as justification, but rather as mitigation (different thing). Golsteyn absolutely should be pardoned and he surely shouldn’t be treated any worse than Calley was. Noting your reference to Trump here, I might like to add that of the many people who spoke up for Calley, one of those people was Jimmy Carter. I might also note that a substantial percentage of Nazi war criminals (obviously not all), tried and sentenced to hang would see their sentenced first commuted and then subsequently released, many before 1951.
Anybody at the age of 17 who might be considering joining the US military should take a cold hard look at the Golsteyn case because if that recruit is called on to fight, there’s a good possibility its going to be in one of these ridiculous #endlesswars with contrived rules of engagement that don’t reflect the actual fight on the ground. Watch your buddies get blown to smithereens and when you go to do something about the person responsible for it, they very well might hang you out to dry for a ‘crime’ that you personally derived no benefit from committing.
#nationaldivorce #outofnato stop the #endlesswar
Let me know when Bush & Cheney answer for themselves at the Hague. Don’t hold your breath, Professor!
Mar 21 2023 at 12:58pm
Craig: It is not because one thinks one criminal (war or ordinary, punished or just suspected) did not receive a sufficient punishment that another one suspected of a crime should not be prosecuted. Perhaps mitigation is required in some cases (don’t judge often do this?), but I don’t think it changes my arguments. As for the case of Golsteyn, I understand that he decided to be judge, jury, and executioner, that is, to be “a killing machine”–or at least the army thought there was enough evidence of something like that to prosecute him.
Mar 21 2023 at 2:38pm
“As for the case of Golsteyn, I understand that he decided to be judge, jury, and executioner, that is, to be “a killing machine”–or at least the army thought there was enough evidence of something like that to prosecute him.”
Cases can turn on very specific factual differences that its difficult to speak of general principles in the face of a specific case at certain times. I am noting here your mention: “judge, jury, and executioner” and there is a comment to be made there because there is a distnction between the ordinary course of civil justice and the laws of armed conflict during hostilities. Indeed, during armed conflict all soldiers actually are the ‘judge, jury and executioner’ down to the lowliest private. The lowliest private can climb out of landing craft at Omaha Beach, look up, see someone in wearing feldgrau, make the unilateral determination based on the reasonable believe that person is an active member of the German military, put him in the scope and shoot him dead, right there and right then.
That’s why the power to declare war is vested in the legislative branch (theoretically!)
Goletsyn’s case typifies everything wrong with a military police action. Goletsyn’s fellow soldiers were killed, he went after the enemy he thought responsible, apparently captured him and after questioning the detainee, the military released the guy. Why didn’t they make the guy a POW at that point?
So Goletsyn and his other camrade kill him.
Why the ambiguity? Its because the Taliban didn’t wear feldgrau, Professor.
The military set Goletsyn up for failure there. The US military trained him and delegated authority to him to determine who is and who isn’t the ‘enemy’ – that’s what war is! And then when he puts the suspected bombmaker in custody, they should’ve deferred to Goletsyn’s judgment for the duration of the conflict and put the suspected bombmaker in non-punitive detention for the duration of the conflict.
Mar 21 2023 at 10:28pm
Obama administration fomented civil war in Syria and Libya, was involved in gun running from Libya to Syrian rebels, practically turned US air Force into an AL Quida auxiliary. Not to mention support for Saudi bombing of Yemeni civilians.
Which court is going to prosecute Obama and his advisers, some of whom still continue to advice the US government.
Mar 22 2023 at 4:02am
Major Mathew Golsteyn violated the UCMJ and is guilty of vigilantism in carrying out the premeditated murder of an unarmed combatant, for which I salute him. In so doing, it is certain that he saved the lives of many servicemen. Vice was punished and virtue rewarded, the very definition of poetic justice. This trumps all, IMO.
Retired Marine Corps general James Mattis:
Mar 22 2023 at 10:10am
Monte: Why not kill any murderer if we (somebody) know he is guilty? Courts can then just we dispensed with. Why didn’t anybody think about this during the history of mankind?
Mar 22 2023 at 10:22am
I’d suggest this conflates the ordinary operation of civil law with the law of armed conflict. I’d further suggest the Constitution recognizes the danger of unleashing the Executive Branch and thus checks its power with Legislative/Judicial, but in so doing recognizes the potential for war/armed conflict and the need to actually unleash the Executive Branch.
Mar 22 2023 at 10:36am
I don’t think so at all. The military has courts. Pierre’s question stands.
Mar 22 2023 at 10:58am
The bombmaker is a combatant, not a murderer. The Professor is asking why not dispense with murderers with summary execution.
There’s no question that if the bombmaker were an active belligerent Goletsyn could have summarily targeted and killed him as he could do with any legitimate military target.
The wrinkle is the bombmaker gets captured and once captured the combatant is no longer is no longer ‘active’ — the further wrinkle is the bombmaker gets subsequently released.
This then returns to the point of the frustrations of putting military in situations where the guerilla doesn’t wear a uniform and IL demands they distinguish between ‘combatant and non-combatant’ but they can’t in many circumstances.
Mar 22 2023 at 12:27pm
Yes, those are wrinkles. Those wrinkles are precisely why the soldier’s actions are a war crime and should be condemned, not praised.
But you have yet to explain why Pierre’s question is irrelevant. You just dismiss it out of hand. But laws exist and courts exist for a reason. We send our values to war.
Mar 22 2023 at 2:34pm
PM: “But you have yet to explain why Pierre’s question is irrelevant. You just dismiss it out of hand. But laws exist and courts exist for a reason. We send our values to war.”
PL: Monte: Why not kill any murderer if we (somebody) know he is guilty? Courts can then just we dispensed with. Why didn’t anybody think about this during the history of mankind?
I repost the question just to make it easier to read. Professor L is clearly referring to the operation of civil law under normal circumstances where criminal suspects are subject to judicial punishment.
War circumvents that entirely, by design. In the war zone Golestyn could target and kill active combatants. Even combatants who never killed anybody, even combatants sleeping in a barracks 20 miles away. Its their status as a combatant which is relevant, not whether or not they ‘murdered’ somebody.
Why not kill any combatant (murderer or not actually doesn’t matter) if we (somebody/Golestyn) know he is a combatant (guilty)?
Well, yes, actually at war Golestyn can do exactly that actually.
Mar 22 2023 at 10:51am
There are extraordinary mitigating circumstances to be considered here, Pierre, not the least of which is a combat situation involving a known Taliban terrorist guilty of killing 2 marines and injuring others with an IED. All indications are his release was going to be ordered, in which case he would have had the Taliban torture and kill the tribal leader who assisted U.S. forces in identifying him. Without question, he would have continued building bombs and killing both U.S. military personnel and civilians opposed to Taliban rule.
I can’t conceive of a situation where frontier justice was more warranted than in this case. The more heinous crime would have been to follow the letter of the law and have him released without consequence.
Mar 22 2023 at 11:07am
I agree, the natural consequence of engaging an enemy that refuses to distinguish themselves on the battlefield, a duty that IS imposed by IL/GC.
Mar 22 2023 at 12:28pm
A possible implication is that all POWs should be executed.
Mar 22 2023 at 1:37pm
Jon (and especially Craig and Monte): Or that Calley was right. After all, he had been told (if I remember correctly from his book) that he should consider everyone he meets as an enemy or an enemy helper (willingly or not).
Another point: the ideal is to replace frontier justice by formal justice, the laws of war by the legal principles of self-defense–to the extent possible, and not the other way around. For every real cattle thief hanged in the Far West, there was probably one innocent man lynched–not to mention two innocent black men in the South.
Finally, it is one thing to argue, like Buchanan, that those who don’t respect the liberal ethics of reciprocity should not expect to benefit from it; it is another thing to say that barbarians should be treated like they treat others. At the very least, it is proper that a system of military justice exists (“we take our values to war”), and that soldiers that defend us not be led to believe that they are “killing machines.”
Mar 22 2023 at 2:14pm
Golsteyn thought that he was a bomb maker, but others did not or they would not have been releasing him. I understand his being angry about people being killed but that does not justify his independently deciding to kill the guy. Remember that we also tortured a bunch of people who were innocent of wrongdoing. Its certainly what you are taught as an officer and in a slightly different way as enlisted. (I was both.)
Calley and his fellow soldiers were angry. In the hear of battle and in the immediate aftermath stuff happens. In some ideal world you immediately shutdown and become rational again but that isn’t the way we work. However, when you kill people hours later, especially non combatants, that is pre-meditated. Its also incredibly counter-productive to the war effort.
Strongly recommend Bing West’s book on the Iraq war. He is a pretty staunch conservative having served as an assistant Sec of Def under Reagan if memory serves. Among other observations he noted that the common decency of the American grunt went a long way towards turning the war around. I think a lot of civilian idiots have this idea that just indiscriminately killing everyone is a good approach.
Mar 22 2023 at 2:18pm
That inference isn’t correct. If the bombmaker had actually been made a POW, Golestyn wouldn’t have killed him. Once they refused him, they’re the ones actually not providing ‘quarter’ — the bombmaker reverts back to combatant.
@Professor L – The mitigating circumstance of the enemy failing to wear uniforms applies to Calley to the extent he really can’t determine a combatant from a non-combatant, but in My Lai he killed, I believe, infants who COULDN’T be combatants, so the mitigation as applied to that class of victims only goes so far as the circumstances led Calley to, essentially, ‘go berserk’
Mar 22 2023 at 2:48pm
The key point being “to the extent possible”. In my view, this qualifies as an isolated event calling for an extra-judicial command decision. If the military had been willing to allow the perp to remain in custody and face the consequences of his actions, great!
Ask the parents who lost their sons if they believe justice was served in this case. Or consider a similar hypothetical situation: Pedophile rapes and murders a child, but is released based on a technicality of the law and rapes and murders again. Was justice served by following our values and observing the legal principles of self-defense?
Mar 23 2023 at 10:43am
Monte: There are certainly self-defense cases–against a direct and imminent threat– that justify not waiting for formal justice to intervene. The case I discussed in my post on the “true remedy for slavery” is, I think, among them; some tyrannicide also belongs to that category. Situations where there is no direct and imminent threat and where the goal is not protecting an innocent, but rendering “justice” against somebody whose guilt has not been proven (except in the mind of the executioner) are very different.
I don’t think the argument in your last paragraph works. Asking the parents of sons killed by Hitler’s armies would not prove anything, except if one may kill teenagers or babies that are likely (in the executioner’s mind) to become Hitler. (The danger of basing justice on counterfactuals or pre-crimes is further illustrated, for a different problem, in my just published Regulation piece “Which Is Better, a Larger or Smaller Population?“)
As Hayek and Buchanan (and Kant and Rawls) argue, justice is unthinkable outside of rules.
Mar 23 2023 at 1:18pm
I think the hypothetical I posed is more applicable than the emotional appeal to the parents of the dead marines, although I’m sure the parents would have hoped for an acquittal if Goldsteyn’s case had gone to trial (which, I think, a jury of his peers would likely have rendered).
From a purely legal standpoint, the Buchanan/Hayek/Kant/Rawls argument is the correct one, I agree. However, I would have done the same thing in Golsteyn’s situation and done it with a clear conscience. And I suspect my actions would be seen as justified in the court of public opinion, as Golsteyn’s were.
Mar 22 2023 at 9:02pm
“Which does not mean that there are no good moral and economic arguments for defensive wars”
Since it takes two to tango a “defensive” war should be, at the very same time an “offensive” war and so, an “immoral” war and so you could say that you have the moral duty of opposing the “immoral” aggressor.
So, the question now is, is it moral to wage a war against an invading army even if you are not strictly “defending” your group/country?
Afterall, fighting in Vietnam was not in America “self-defense” and fighting in Afghanistan was not in Australia self-defense. If the concept of “self-defense” that render a war “moral” is let too open you could end up accepting “preventing a neighboring country from joining an hostile military alliance” as “self-defense”.
Mar 23 2023 at 10:17am
José: We must agree that both zero self-defense and self-defense by any means are positions that are morally and economically untenable. The defendable range of self-defense certainly includes alliances between threatened friends. Indeed, the standard anarcho-capitalist recourse to private protection associations or agencies crucially depends on that.
Comments are closed.