Is it possible to wage war without committing crimes?

By Herbert Rothschild

With increasing frequency, Vladimir Putin is referred to in U.S. media as a war criminal. I agree, because I consider all war a crime and so anyone who starts one is a criminal. By that measure, every U.S. president from Harry Truman through Donald Trump is also a war criminal. However, neither media rhetoric nor my belief in nonviolence constitutes a basis for actionable judgment. Objectively, persons are criminals only if they violate accepted legal prohibitions.

So it was that on March 23, Secretary of State Antony Blinken formally accused Putin of war crimes in Ukraine. “We’ve seen numerous credible reports of indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities,” Blinken said. “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers and ambulances, leaving thousands of innocent civilians killed or wounded.” Blinken was citing acts that under Protocol 1 of the Geneva Convention are listed as crimes in international conflicts.

Every member of the U.N. is party to the Geneva Convention of 1949. However, the two protocols that were added to it in 1977, which contain the most detailed and comprehensive protections of persons and property during war, haven’t been ratified by some states, among them the U.S. and Israel. The U.S.S.R. had ratified Protocol 1, but on October 16, 2019, Putin revoked Russia’s ratification by executive order.

On July 1, 2002, by a U.N. treaty commonly referred to as the Rome Statute, the International Criminal Court (ICC) was established at The Hague to prosecute war crimes committed on or after that date. Up to now, 123 nations have signed the treaty. Among those that have refused to recognize the authority of the court are the United States, China, Russia and Israel.

No leader of a state that hasn’t been defeated and overrun has ever been brought in person before an international tribunal and tried for war crimes. Some leaders of Nazi Germany and Imperial Japan were tried by the victorious Allied nations. More recently, a few Serbian leaders were prosecuted in the ICC, as were a couple of very bad actors in sub-Saharan Africa, including Liberian President Charles Taylor. The U.S. lost its wars of choice in Vietnam and Afghanistan, but we faced no legal consequences.

No matter how his war goes in Ukraine, Putin won’t be captured and stand trial in the ICC. Nor do I see how the U.S. can call for his prosecution given that we, like Russia, don’t subscribe to the legal code he has violated or acknowledge the jurisdiction of the court that enforces it.

Further, I see an inherent problem with trying to enforce an international code of conduct in warfare. While many of the crimes specified in Protocol 1 are avoidable, such as torturing prisoners or taking hostages, some really aren’t. And those that aren’t are the very ones Blinken accused Putin of violating. Beginning at least as far back as World War II, no warring nation has avoided killing civilians or damaging schools, hospitals, apartment buildings, etc. Indeed, civilian deaths tolls almost always exceed those of combatants. The weapons of modern warfare assure it.

Staff of the Wall Street Journal project called 24/7 Wall St. recently reviewed the data about our Middle Eastern bombing campaigns released by the U.S. Air Force. On March 5, 24/7 reported that between 2007 and 2020, the U.S. dropped more than 57,000 bombs on Afghanistan and almost 123,000 bombs on Syria and Iraq. The death and destruction must have been enormous.

Doubtless, our leaders would argue that we didn’t target civilians. They came up with the Orwellian term “collateral damage” to exonerate us in the court of world opinion. But anyone can play that game; Russia already is. If one knows, when a bomb is dropped or an artillery shell is fired, that there’s as much certainty it will kill civilians as combatants, one’s intention to kill only combatants is a moral dodge and a legal fiction.  

How much collateral damage — flesh seared, limbs blown off, infants left crying in the rubble of their homes — did those 180,000 bombs cause? No tally was kept, but I’ve worked out a way to arrive at a meaningful number by using data about U.S. drone strikes. You’ll see from the spreads in the data I cite that no one claims exactitude, but serious efforts were made to collect that information.

The Bureau of Investigative Journalism reported that there were at least 430 drone strikes in Pakistan from January 2004 through February 2020 and they killed between 3,677 and 5,775 people. Of those killed, between 424 and 969 were civilians, of whom between 172 and 207 were children.

Now, our drone strikes use highly precise missiles, and after a public outcry about civilian deaths in early drone strikes, extra care was taken to avoid them. Neither was true of the Air Force bombings. But even if we take the lowest estimated civilian deaths caused by our drone attacks in Pakistan and apply them proportionately to the bombings (180,000/430 x 424), then in 14 years we were responsible for 177,500 civilian deaths, including 72,000 children. Probably those figures are gross underestimates.

So, I return to my initial assertion that all war — and certainly all modern war — is a crime. By now, however, I have used international law to validate my personal belief.

Herbert Rothschild is an unpaid Ashland.news board member. Email him at herbertrothschild6839@gmail.com.