And second, even if considerations of military necessity were not decisive here, violations of the London treaty would still not have been war crimes because the treaty was violated by both sides during the Second World War. And nothing is properly a war crime, at least in the absence of a genuine international tribunal, says Taylor, if both sides engage in the conduct in question.
As long as enforcement of the laws of war is left to the belligerents themselves, whether during the course of hostilities or by the victors at the conclusion, the scope of their application must be limited by the extent to which they have been observed by the enforcing party. To punish the foe—especially the vanquished foe—for conduct in which the enforcing nation has engaged, would be so grossly inequitable as to discredit the laws of themselves. [p. 39]
Another illustration of this view is the way in which Taylor deals with the permissibility of aerial warfare. The bombing of cities was, of course, not punished at Nuremberg and is not a war crime. Why not? For the two reasons Taylor has already given. Since it was done by the Allies—and much more intensively than by the Germans or the Japanese—it would have been improper to punish the Germans and the Japanese for what we also did. But more important, the bombing of cities with almost any kind of bomb imaginable is proper because bombing is an important instrument of war.
Taylor unequivocally rejects the charge that the United States is guilty of war crimes by virtue of the aerial warfare it is waging in Vietnam, Laos, and Cambodia. There is nothing wrong with bombing population centers; there is nothing impermissible about using anti-personnel bombs. To begin with, such bombings are not war crimes because aerial bombardments were not punished at Nuremberg. Nor, more importantly, should they be proscribed—for bombs are important weapons of war.
But what about the fact that they appear to violate the general prohibition against the killing of noncombatants? They certainly do end up killing lots of civilians, Taylor concedes. But that just cannot be helped because a bomb is, unfortunately, the kind of weapon that cannot discriminate between combatants and non-combatants. What is more, bombing is an inherently inaccurate undertaking. The pilots of fast moving planes—no matter how carefully they try to annihilate only enemy soldiers—will often miss their targets. And if there are civilians nearby, they will, regrettably, be wiped out instead. It is a pity, but that is war.
The general test for the impermissibility of bombing is, says Taylor, clear enough. Bombing is a war crime if and only if there is no proportionate relationship between the military objective sought by the bombing and the degree of destruction caused by it. In Vietnam what this means is that the only bombing that is impermissible is the bombing of unfriendly villages in South Vietnam for the sole purpose of inflicting reprisals upon the villagers for allegedly harboring Viet Cong. And bombing under these circumstances is wrong, not because bombing is a war crime, but because reprisals against civilians are forbidden.
I know of no place that better illustrates Taylor’s attitude toward war and war crimes than in the passages where he considers whether war crimes were committed at My Lai because women and children were killed. He begins by rejecting the proposal that the deliberate killing of infants, the aged, and women at My Lai by itself makes what was done there a war crime.
It is sad but true that the weak and the helpless are not exempt from the scourge of war…. In this day and age they are at least as often the victims of aerial bombardment as are regular troops. The death of an infant in consequence of military operations, therefore, does not establish that a war crime has been committed. [pp. 134-5]
Indeed, the question whether any war crimes were committed at My Lai is vastly more complicated than one might think. Crimes were certainly committed, says Taylor, but it is not clear that they were war crimes. However, after a lengthy, somewhat tortuous examination of the applicability of international conventions and laws to the My Lai dead, Taylor decides that the persons killed were protected by the laws of war, and, therefore, if the killings were improper they were war crimes. While there is something to be said on both sides of the question, Taylor concludes that war crimes were committed:
…However far the “necessity” argument be stretched, it cannot justify what was done at Son My. Given the history and location of the village, the Americans might have had reason to suspect that many of the inhabitants were sympathetic to the Vietcong. There has been no suggestion, however, that there was reason to believe that any particular individual had engaged in hostile conduct. Even had there been such grounds, the slaughter of all the inhabitants would have been an unlawful and atrocious reaction; the Geneva Conventions are explicit that persons suspected of violating the laws of war “shall be treated with humanity” and not punished without trial and opportunity to contest the charge. And while small boys can toss grenades, infants in arms cannot, and were nonetheless killed along with the rest. [pp. 137-8]
I said at the outset that I think we should be wary of Taylor’s book. I have tried so far to show, but only by implication, what I think are some of the major problems of his view. I want finally to try to state more explicitly what I believe are its dangers. First, to become unduly absorbed in trying to prevent violations of the laws of war is dangerous. For if Taylor has outlined with reasonable accuracy the rules and principles which determine what is and is not a war crime—then he has demonstrated, I believe, that the laws of war are not of much importance morally and that they are not morally admirable inventions.
To begin with there is an incoherence in this set of rules and principles, an incoherence that extends both to the rules concerning how people ought to be treated and to the rules concerning what sorts of weapons may and may not be used. Much of the attractiveness of the idea of war crimes derives from the notion that even in war morality has some place, that even in war there are some things that are sufficiently horrible, sufficiently immoral, that they ought not to be done.
Yet, when we look at the rules which tell us what may and may not be done in time of war, they do not correspond in any obvious way to intelligible moral behavior. It is, for example, permissible in time of war to kill an enemy soldier who is asleep and unarmed. It is permissible to strafe and bomb soldiers who are defenseless against airplane attacks. It is permissible to bomb cities despite the fact that one knows that many, if not most, of those killed will be children, women, and old people. It is permissible to use tactical as well as nontactical thermonuclear weapons, but it is forbidden on the other hand to use bullets if they are filled with glass. It is forbidden to kill prisoners of war, but it is permissible to do so if “military necessity” requires it. In short, it is permissible to do almost anything if what is done is “reasonably” related to an important military objective.
Whatever else one may wish to claim for the preservation of the idea of laws of war, one cannot plausibly claim that they should be preserved because they embody or reflect in any coherent or systematic fashion our sense of what, even in war, it would be most seriously wrong and immoral for one man to do to another.
The case is hardly improved by the rules for applying these laws. That something ceases to be a war crime if both sides engage in the practice is an idea that does not possess the obvious attractiveness that Taylor seems to find in it. Perhaps it is wrong to punish others for conduct in which you yourself have engaged. But if the conduct was seriously wrong, all who do it should be condemned. It is a strange morality that would make murder permissible because everyone did it. In Taylor’s view, were we “to punish the foe—especially the vanquished foe—for conduct in which the enforcing nation has engaged,” it would be so grossly inequitable that it would discredit the laws of war. But it seems to me to discredit the laws of war far more to say that they cease to be enforcible whenever the victors find it in their interest to break them too.
All of this should make us extremely skeptical of Taylor’s main defense of the laws of war, which I’ve already quoted:
Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. The consequence would be that many returning soldiers would be potential murderers.
But what sorts of things about killing do the laws of war (in theory, let alone in practice) teach soldiers? Will someone who has mastered the distinctions established by the laws of war be any the less a potential murderer? It is difficult to see how getting the laws of war straight will encourage someone to learn important moral lessons and to maintain a decent respect for the value of human life. It is difficult to be at all confident that soldiers who have mastered the distinctions established by the laws of war will be for that reason turned away from murder. Instead the laws of war seem far more likely to teach soldiers—and the rest of us—that it is permissible and lawful to kill and maim and destroy, so long as it will help to win the war.
But what about Taylor’s other argument, that the laws of war are important and deserving of respect because they work? Aren’t even somewhat irrational rules useful if they have the consequence of saving lives? Even if it is permissible to kill women and children whenever military necessity requires, isn’t it important to save the lives of these women and children whose deaths are not necessitated by military considerations?
The argument is both sound and deceptive. Of course it is better to save some lives rather than none at all. If punishing soldiers like Lieutenant Calley will tend to prevent other soldiers from gunning down unarmed civilians, that is a good reason for enforcing the relevant laws of war against them. If punishing officers like Lieutenant Calley’s superiors will affect army policy toward indiscriminate, militarily unnecessary killing of civilians, that is a good reason for enforcing the relevant laws of war against them. But this by no means ends the matter. The question is where is it fitting and important to focus attention and direct one’s energies.
There are costs as well as gains when we concentrate our attention upon the laws of war and their enforcement. There is, to put it simply, a risk to human life that is substantial. The risk is that we inevitably and necessarily give legitimacy to behavior that is morally indefensible, that is truly criminal. The cost—and it is a cost in human life—is that the slightly sanitized war in Vietnam that would result from a scrupulous adherence to the laws of war could increase enormously our tolerance for and acceptance of the horror, the slaughter, and the brutality that characterize a good old clean war.
There is something genuinely odious about a code of behavior that says: if there is a conflict between the attainment of an important military objective and one or more of the prohibitions of the laws of war, it is the prohibitions that properly are to give way. And there is something dangerous about a point of view that accepts such a system with apparent equanimity and directs us to concentrate upon its enforcement. The corrosive effect of living in a world in which we note with calm, realistic detachment that “it is sad but true that the weak and the helpless are not exempt from the scourge of war” seems to me far more dangerous than a concerted effort to preserve the often bizarre, seldom morally coherent or commendable niceties of the laws of war.
There is one final danger in Taylor’s approach that I must mention. It arises from the preoccupation with war crimes and the relative neglect of those portions of Nuremberg that dealt with crimes against peace and crimes against humanity. For to focus only on the prevention of war crimes is to concentrate upon the way in which “our” soldiers are fighting “their” soldiers and civilians in Vietnam, Laos, and Cambodia. It is to divert us from the question of why it is wrong to be fighting at all; it is to deflect our attention from those who are most responsible for our presence there; it is to ignore most of what we are doing to the civilian populations of Southeast Asia. These are the issues that should preoccupy us. This is the specter of Nuremberg that should haunt us. This is not at all where Taylor’s analysis would lead us.
Nuremberg and Vietnam August 12, 1971