S.J. Quinney College of Law

By Samantha Smith

To prevent atrocities occurring during war, dominant world forces must provide more leadership in limiting the consequences of warfare. In the law of armed conflict, several principles have been found across all nations and time periods, seeking to protect non-combatants to hostilities, wounded soldiers, and prisoners of war, because engagement in conflict does not give military forces unlimited and unchecked means of waging war.[1] The Geneva Conventions and various treaties supply this international law. [2] Enforcement mechanisms for violations of these conventions tend to be international tribunals to punish the individual perpetrators of atrocities, while superpower nations hold few individuals accountable for illegal actions committed while engaged in war. Dominant countries avoid accountability at the policy level because they win their conflicts and mete out their own justice, avoiding culpability for criminal policies. In order to enforce the laws of armed conflict, other dominant nations must step up and collectively enforce international standards of conflict in war.

Common Article Two of the Geneva Convention incorporates laws and customs of war. Violations of these customs without military necessity are known as war crimes. Because death is an inherent part of war, war crimes primarily consist of attacks on civilian populations or prisoners of war. [3] Attacks against domestic civilian populations are classified as crimes against humanity. Both are serious crimes that violate international norms for conflict. The trials at Nuremberg and Tokyo after the end of World War II set the precedent for international criminal liability for war crimes, but an international criminal tribunal is only as effective as the collective political will and military power of the alliance that creates and supports it.[4] Since then, the most significant war crime trials have been in Rwanda and Yugoslavia. Unfortunately, these are not the only countries where war crimes have occurred since World War II. Rather, these are small, unstable countries where it is easy for outside forces to enter and punish the perpetrators of war crimes. The International Criminal Court has been heavily criticized for its heavy focus on Africa and blind eye to human rights violations in other parts of the world.[5] Though the U.S. appeared as the spokes-nation against war crimes during the period after WWII, championing a movement to build on the precedent of the trials at Nuremberg, the U.S. and other dominant nations have largely escaped scrutiny and consequences for debatable actions during conflict. [6]

For example, even today there is great debate among the scholarly community about the motives for the bombings on Hiroshima and Nagasaki, and whether the attacks constitute the definition of a war crime. Those who support the bombings paint a picture of a xenophobic, fanatical Japan that would not have surrendered and would have ultimately cost many more lives in the continued warfare, so that the bombing shortened the war and prevented future casualties. Those on the other side argue that U.S. military leaders knew that the bombings were unnecessary, but continued in order to ensure post-war American primacy. In an interview with Newsweek, General Dwight Eisenhower recalled a meeting with Secretary of War Stimson and that he felt that “…the Japanese were ready to surrender and it wasn’t necessary to hit them with that awful thing.”[7] Even high-level military commanders opposed this decision, but this enormous attack on civilian lives has gone largely unquestioned, in large part because of the post-war status of the U.S. as an emerging superpower.

Russian leader Joseph Stalin deported 400,000 Chechen and Ingush people to Kazakhstan after accusing them of being Nazi sympathizers during WWII, and roughly thirty percent died during their exile. [8] War continued for Chechen autonomy, and the conflict has seen war crimes committed by both sides, with various human rights groups accusing the Russian forces of crimes against their own people such as rape and torture; however, little happened in response on an international scale[9]. Roughly 5,000 Chechen people have disappeared at the hands of Russian security services. The European Court of Human Rights has handed down over 200 decisions against Russia. However, even though Russia is a party to the European Convention on Human Rights and is thus obligated to implement the core judgment of the European Court of Human Rights, Russia has consistently failed to comply fully, with no repercussions. [10]

The website www.iraqbodycount.org keeps an estimate of civilian deaths following the United States invasion of Iraq. The tally is 115,294-126,494. Comparatively, there have been 6,750 U.S. military casualties since 2003. There have been many calls for the U.S. to take accountability for its attacks on the civilian population, as the gross disproportion in casualties is a strong indicator that U.S. military forces took inappropriate action. While American soldiers have been tried individually for conduct committed during the wars in Vietnam, Iraq, and Afghanistan, U.S. leadership has largely escaped any real consequences and continues to avoid the wider implications of its policies. While most U.S. allies support the International Criminal Court, the U.S. does not recognize International Criminal Court jurisdiction.[11] Because the U.S. does not answer to a larger body for international crimes, without international pressure the U.S. will continue to dodge responsibility.

This intent of this post is not to debate the merits of United States military action, or to provide an exhaustive list of reprehensible conduct during wartime, but to point out that dominant countries, including the United States, have committed atrocities against civilians that have not been acknowledged. And, if war crimes have taken place, for perpetrators to face justice, it will require collective support from other dominant countries. While other countries will obviously want to avoid starting a new conflict, economic and political sanctions would provide the “push” a country may need to provide the personnel, including leadership, responsible for war crimes. Actions speak louder than words, and as the U.S. is still the most dominant nation in the world, if the U.S. were to launch its own investigation and punishment against its military and political leaders for the commission of atrocities, the U.S. would demonstrate a true commitment to ending war crime. Further, by standing tough and enforcing just war against itself, the U.S. would be emboldened to place real sanctions on other countries who violate the laws of war