by Nicola Walter Palmieri (Ruvigliana, Switzerland)*
Both sides tacitly adopted the principle that any act was justifiable if it
held out even a remote hope that it might stave off the frightful
consequences of defeat.
F.J.P. Veale
The legal framework. I will briefly address the international law relating to the issues of reprisals, torture, bombing of civilians (including chemical warfare). The legal framework is embodied in treaties and customary laws. The basic treaty is the Convention (IV) respecting the Laws and Customs of War on Land (and its annexed Regulations) stipulated in The Hague on October 18, 1907 which states, in its preamble, that it is intended to serve, in war, the interests of humanity and the needs of civilization, and to confine the general laws and customs of war with a view to define them within limits as would mitigate their severity, with the desire to diminish the evils of war, as far as military requirements permit, and to provide guidance to avoid the arbitrary judgment of military commanders. According to the Convention, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
In particular, the Annex to the Convention provides that the right of belligerents to adopt means of injuring the enemy is not unlimited (Art. 22); that it is especially forbidden to employ poison or poisoned weapons, kill treacherously the enemy individuals, kill or wound an enemy who has surrendered at discretion, declare that no quarter will be given, employ arms and material calculated to cause unnecessary suffering, destroy or seize the enemy’s property unless imperatively demanded by the necessities of war, declare abolished and suspended the rights of the nationals of the hostile party, compel the nationals of the hostile party to take part in the operations of war directed against their own country (Art. 23); that it is prohibited to attack or bombard, by whatever means, towns, villages, dwellings, or buildings which are undefended (Art. 25); that family honour and rights, lives of persons, and private property, as well as religious convictions and practice, must be respected and that no private property shall be confiscated (Art. 46); that no general penalty shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible (Art. 50).
The Nuremberg Trial of war criminals has declared that the 1907 Convention has become part of International Customary Law. It was confirmed and consolidated in the Geneva Conventions of August 12, 1949, particularly the Convention IV relative to the Protection of Civilian Persons in Time of War (and additional Protocols of 1977). The most relevant sections are Art. 33, which states that no protected person may be punished for an offence he or she has not personally committed, and that collective penalties and all measures of intimidation or of terrorism are prohibited, that pillage is prohibited, and that reprisals against protected persons and their property are prohibited; and Art. 34 prohibiting the taking of hostages.
Of special relevance to this article is also the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment under the review of the United Nations. It requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured. «No exceptional circumstances whatsoever» may be invoked to justify torture as a means to protect public safety or prevent emergencies. Each State Party shall ensure that all acts of torture, and attempts to commit torture, by any person, including accomplices and participants, are offences under its criminal law, and made punishable by appropriate penalties (Article 4). Any State Party in whose territory a person alleged to have committed torture is present shall take him into custody or take other legal measures to ensure his presence in the jurisdiction (Article 6). The Convention was adopted on December 10, 1984 and came into force on June 26, 1987. As of the date of the Convention’s entry into force, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become a principle of customary international law.
Reprisals, torture and bombing of civilians. Notwithstanding these clear principles of international law and customs, horrible breaches have taken place during World War II, Korea, Vietnam, Afghanistan and Iraq wars. Although forbidden by the relevant Conventions, reprisal was permitted by the Field Manuals of the belligerents (Art. 453, 454 British; Art. 358 U.S.), the Nuremberg Tribunal confirmed admissibility of reprisals under customary laws of war (Case VII), and so did other tribunals (e.g., Venice War Tribunal against Albert Kesselring, Hamburg War Tribunal against Erich von Manstein). These courts were quick to distinguish between reprisals done by the Allied forces and those done by the Germans: without factual support, they declared illegal all reprisals done by German troops. The My Lai massacre that took place during the Vietnam War was an egregious case of reprisal (American soldiers had been killed in the area and the U.S. destroyed the whole hamlet killing all civilians they could get hold of). No satisfactory punishment of the perpetrators has followed. Reprisals are now absolutely prohibited under international conventions and customary laws of war.
Torture is a most heinous crime. Each state has a duty to prosecute offenders, accomplices and accessories. The whole world has heard of the acts of torture in the Abu Ghraib prison in Iraq, and of the torture to death of Mullah Habibullah and of Dilawar (of Yakubi) in the Bagram Collection Point in Afghanistan (the coroner certified them as homicides). Maj. Gen. Antonio Taguba, Special Investigator of the U.S. Army, wrote: “There is no longer any doubt as to whether the current administration [Bush government] has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” The U.S. domestic law is clear and strict: “Whoever . . . commits or attempts to commit torture, . . . if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life. . . A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.” (18 U.S.C. § 2340A). Neither those who ordered the use of torture nor the superiors who knew or should have known, up to the supreme military commanders, were held accountable. Although specifically prohibited, “rendition” is common practice. The world has not heard of any soldier of a “civilized” nation being put to death as a consequence of a grave violation of the law that prohibits torture. Michael Parenti (The Sword and the Dollar, p. 50) describes a grisly example of training to torture. Torture must be eradicated.
Civilians shall not become target of bombing operations, and of operations of war generally. Article 25 Hague Convention 1907 (carried over into Geneva Convention 1949) could not be clearer. The bombings of Hamburg, Dresden, Tokyo, Hiroshima, and Nagasaki are showcases of the opposite: they were intentional attacks on harmless civilians. Sir Winston Churchill is reported (by Lord Casey) to have exclaimed “Are we beasts? Are we taking this too far?” when he was shown the film of the mass raid on Dresden. U.S. General Curtis LeMay said that the enemy should be “scorched, boiled and baked to death”, and that he would bomb the Vietnamese “back to the Stone Age”. President George W. Bush promised the Iraqis “Shock & Awe”. He kept his promise; civilians were killed by the thousands, property was destroyed, including essential utility plants, the Iraqi people suffered great harm though it had done no wrong to the United States. Illegal orders shall not be carried out. Accordingly, some American pilots refused to bomb civilian installations in Laos: these pilots were court martialled and dismissed from service. The NATO bombings of Yugoslavia in 1999 caused an uproar of protest by the international community as it was perceived illegal. NATO had no authority to bomb a sovereign state, which had not attacked a Member State. In accordance with NATO Charter, its province is to resist armed attack, and it shall become active only when the territorial integrity, political independence or security of any of its Parties is threatened. No Member State had been attacked; NATO’s reaction was arbitrary. In 78 days of bombing, it inflicted great loss of life and property upon the Yugoslavians. Four years before the NATO strikes, the massacre of Srebrenica had occurred, with 8,372 people killed by assassin bands. The U.N. was there, with a small unit of Dutch soldiers, but nobody took action to avoid the homicidal fury. The Special Prosecutor of the International Court of Justice for Yugoslavia, Ms. Carla Del Ponte, tried to investigate the NATO actions. The Lords of the Earth (alas, including Canada, which is generally considered a “civilized” nation) screamed at the affront, and Ms. Del Ponte was sent as a Swiss Ambassador to a far away Latin American country. The military says that it is not possible to conduct war operations without intentionally killing civilians. G. Lowes Dickinson said: “No rules to restrain the conduct of war will ever be observed if victory seems to depend upon the breach of them.” Recently, the U.N. has condemned chemical warfare in Syria. The same international body did not protest when the U.S. sprayed Agent Orange containing dioxin over a period of ten years, in Vietnam. Neither did it protest when the British used similar chemical agents during the Malayan Emergency.
Do we really care to have a body of international law on the conduct of war, when the major provisions thereof are consistently breached with impunity?
*Mr. Palmieri holds a D.C.L. from McGill University and is a retired attorney of the Bar of Québec.
