Criminal Behavior

I

Since last year many people have been taking more seriously the claim that the precedents of the Nuremberg trials are somehow relevant to what the United States has done and is doing in Vietnam. The shift in thought and attitude is striking. Only a few years ago Dr. Howard Levy was regarded by many people as something of a lunatic for insisting that his defense against the charge of refusing to obey orders was based on Nuremberg. Even today many—perhaps even most—critics of the war reject as misguided the suggestion that the senior military and civilian leaders of the United States are war criminals within the terms and conditions of Nuremberg. But they no longer regard the accusation as absurd or deranged. The relevance of the Nuremberg trials to Vietnam is now at least an open question.

One book that has certainly helped to make a concern for Nuremberg respectable is Telford Taylor’s Nuremberg and Vietnam. Taylor, a law professor at Columbia University and a former prosecutor at Nuremberg, has impeccable credentials. Those whose opposition to the war has rested on the grounds that it is a horrendous moral evil, a criminal undertaking of the most serious sort, will find it tempting to embrace Taylor’s book as valuable and important just because it has made discussions of the applicability of Nuremberg to Vietnam legitimate. Now that Lieutenant Calley’s supporters claim he should be given a medal for having murdered Vietnamese babies, it is especially tempting for many people to praise Taylor’s book for its conclusion that the Nuremberg decisions, when properly understood, are applicable to the United States. Nonetheless, the temptation must be resisted. Created in this way, concern for such an important subject can cause damage far outweighing the possible benefits of respectability.

It seems likely that thinking about Nuremberg has been and will be much influenced by the way in which Taylor has defined the issues. If so, his book can be dangerous, for he provides seriously inadequate and defective perspectives from which to assess the behavior of the United States. Although Taylor writes about the applicability of Nuremberg to Vietnam, the application is an extremely restrictive and guarded one. The danger is all the greater, therefore, because of the deceptive quality of Taylor’s ostensibly rigorous application of Nuremberg to the war in Indochina.

Taylor places two enormous restrictions upon the potential scope of Nuremberg. Like many people, and especially like almost all lawyers, he is most at ease when reasonably precise, reasonably well-established rules and conventions happen to be available. Thus he believes Nuremberg is applicable to Vietnam primarily with respect to war crimes—violations of the so-called laws of war—and not with respect to what was said and done at Nuremberg about crimes against peace, e.g., waging aggressive war, or about crimes against humanity, e.g., genocide. Secondly, Taylor embraces a very limited and morally unattractive notion of what constitutes a war crime. By the time he is through, Nuremberg’s applicability to Vietnam does not cut very deep or matter very much.

Taylor rejects the notion that the senior military and civilian leaders of the United States are guilty of—or even chargeable with—the commission of crimes against peace and humanity. He also dismisses summarily the notion that ordinary soldiers are liable under Nuremberg as accomplices by virtue of their participation in the Vietnam war. He never even discusses the possible liability of, say, civilian industrialists who manufacture weapons of mass destruction. On the matters he does discuss, many of Taylor’s arguments do not seem to me sound. All of them are surely worth careful discussion.

As I have said, however, Taylor’s dominant concern is with war crimes. For him, the part of Nuremberg that is applicable to Vietnam is that which holds accountable soldiers who violate the laws of war, e.g., Lieutenant Calley, and the military superiors who order the commission of war crimes or who knowingly fail to punish the commission of war crimes by their subordinates. In what follows I shall restrict myself to this dominant concern (which is a very common one) and try to explain what it is that is unsatisfactory about Taylor’s approach.

II

By the laws of war Taylor means such rules as those in the Geneva, Hague, and other treaties against the wanton killing of civilians, the mistreatment of prisoners, the use of certain maiming weapons in combat. Some of these treaties figured in the reasoning of the Nuremberg decisions. There are, Taylor asserts, two reasons why, in spite of some imperfections, these laws of war are of great importance, and their enforcement a matter of fundamental significance. The first reason is that they have worked to save lives. Just how this happened is not terribly important to him. Perhaps, he suggests, it happened because the participants were deterred by the threat of punishment. Perhaps it was because the laws of war embody standards of behavior that men, even in time of war, think it worth respecting. Perhaps because countries recognized a crude kind of self-interest in adhering to the conventions as a means of securing adherence by the other side.

It does not matter very much why the laws of war were respected to the degree that they were—even in the total wars of the twentieth century. What matters is that they were respected:

Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them. The rules for the treatment of civilian populations in occupied countries are not as susceptible to technological change as rules regarding the use of weapons in combat. If it were not regarded as wrong to bomb military hospitals, they would be bombed all of the time instead of some of the time.

It is only necessary to consider the rules on taking prisoners in the setting of the Second World War to realize the enormous saving of life for which they have been responsible. Millions of French, British, German and Italian soldiers captured in Western Europe and Africa were treated in general compliance with the Hague and Geneva requirements, and returned home at the end of the war.

German and Russian prisoners taken in the eastern front did not fare nearly so well and died in captivity by the millions, but many survived. Today there is surely much to criticize about the handling of prisoners on both sides of the Vietnam war, but at least many of them are alive, and that is because the belligerents are reluctant to flout the laws of war too openly. [p. 40]

Taylor’s second argument for preserving the laws of war concerns the effect of the laws—or of their absence—upon the moral sensibilities of individuals. Were we to do away with the laws of war, were we to concede that in time of war anything and everything are permissible, the capacity of persons generally to respond in accordance with the dictates of morality would be diminished rather than enhanced. “All in all,” Taylor argues, “this has been a pretty bloody century and people do not seem to shock very easily, as much of the popular reaction to the report of Son My made depressingly plain. The kind of world in which all efforts to mitigate the horrors of war are abandoned would hardly be a world sensitive to the consequences [of total war]” (p. 39).

More important, Taylor asserts, the laws of war have very significant and beneficial consequences for the moral outlook of the participating soldiers. They prevent the combatants from becoming completely dehumanized and from being made wholly vicious by their participation in war. The laws of war, he tells us, are

…necessary to diminish the corrosive effect of mortal combat on the participants. War does not confer a license to kill for personal reasons—to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge.

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. [pp. 40-41]

The passage just quoted suggests a point of view that is fundamental to Taylor’s analysis, and that is made explicit in any number of places throughout the book. That is the view that the laws of war, when properly understood, do not impose any major restrictions upon the waging and the winning of wars, and, moreover, that there is nothing especially troublesome or morally unsatisfactory about this characteristic of the laws of war. Herein, I believe, lies one of the dangers of accepting Taylor’s approach, and one of its major defects.

The laws of war, Taylor tells us, place limits on what is permissible in time of war. But what this means is that “the ravages of war should be mitigated as far as possible by prohibiting needless cruelties, and other acts that spread death and destruction and are not reasonably related to the conduct of hostilities” (p. 20. Emphasis added).

Admittedly, this makes the laws of war somewhat amorphous, a good deal more elastic than one might abstractly like them to be. But much of this is due, Taylor hastens to assure us, to the inevitable character of war itself—which cannot be helped and which apparently need not, therefore, cause us undue concern. Consider, for example, the prohibition against killing enemy combatants who have surrendered. That doesn’t really mean, says Taylor, that you always have to take prisoners. There will certainly be times when it is permissible to kill combatants even though they have laid down their arms and tried to surrender: namely, when the commander orders his men to kill them because it is militarily necessary to do so. “The prisoners will be killed by operation of the principle of military necessity, and no military or other count has been called upon, so far as I am aware, to declare such killings a war crime” (p. 36).

Or consider two other cases where, according to Taylor, the doctrine of military necessity makes permissible ostensibly impermissible conduct. In 1930 a number of nations signed the London Naval Treaty. That treaty required that no ship sink a merchant vessel “without having first placed passengers, crew and ship’s papers in a place of safety.” The provisions of this treaty were regularly violated in the Second World War. Nonetheless these violations were not war crimes punished at Nuremberg. This is so, says Taylor, for two reasons. First, the doctrine of military necessity makes the treaty unworkable. If submarines are to be effective instruments of war, they cannot surface before they attack merchant ships, nor can they stand around waiting to pick up survivors. The answer is not that it is wrong to use submarines. Rather it is that in the interest of military necessity the prohibitions of the treaty cease to be prohibitions.

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]

III

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.