International Humanitarian Law's Death PenaltY?
“We do not accept the paradox that legal responsibility should
be the least where power is the greatest:”
Associate Justice Robert H. Jackson
May 3, 1945
What is it about international law and the Bush administration that causes the latter to always shoot itself in the foot?
An Associated Press story in the February 13th Philadelphia Inquirer described an unclassified State Department memo to all U.S. embassies instructing Foreign Service personnel on the “politically correct” (from the administration’s viewpoint) responses to “sample questions” about the forthcoming trials of 9/11 “terrorists “under the Bush administration’s military commissions.
State is particularly worried about the possible (and in some locales, the inevitable) official protests by governments and the reaction of “the street” when it becomes widely known that the U.S. prosecutors are asking for the death penalty for six of the men named as defendants in proceedings under the “military commissions” established by Bush.
The memo is an attempt to draw a parallel between 9/11 and the Nazi Holocaust and, by extension, to equate the Guantanamo proceedings with the Nuremberg Trials of top Nazi military and civilian officials: “International Humanitarian Law contemplates the use of the death penalty for serious violations of the laws of war.” And as if to reinforce the message, the cable adds that “The most serious war criminals sentenced at Nuremberg were executed for their actions.”
In 1945, “the laws of war” pertaining to the conduct of war were still not well developed – certainly not as developed as the criteria under which nations felt justified in going to war. The first Geneva Convention, signed in 1864, in recognizing the neutral status of medical personnel on the field of battle, was the first modern restriction on the virtually unregulated power of the warrior to do what was necessary to win. “Common sense,” never abundant on the battlefield, when allowed to come into play in post-Medieval times in Europe, might induce some restraint, but there was never any guarantee how much or for how long. Not until the Hague Conventions of 1907 (Article 22), did a real proscription come into force: “the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity.”
In fact, Justice Jackson concedes this point in his interim report to President Harry Truman when he proposes that “our test of what legally is a crime gives recognition to those things which fundamentally outraged the conscience of the American people and brought them finally to the conviction that their own liberty and civilization could not persist in the same world with the Nazi power.”
But it is not enough, as Justice Jackson realized, just for American sensibilities to be outraged. In 1945, the world did not have the current formal framework of multinational agreements that regulate the conduct of war. Without specific international agreements, the best “authority” on which the Nazis could be tried would be a consensus – “customary “international practices – derived from examining statutes of numerous countries, that particular actions “offended the conscience of our peoples [and thus] were criminal by standards generally accepted in all civilized countries.”
In the end, 12 high ranking Nazis were executed. In Japan, where General of the Army Douglas MacArthur ruled, seven men were executed. For Jackson, what counted most was to not allow war respectable, which he saw could best be achieved by criminalizing “making unjustifiable war.” MacArthur focused more on the actions of individuals – exemplified in affirming the death sentence for General Yamashita: “The soldier…is charged with the protection of the weak and unarmed….When he violates this sacred trust, he not only profanes his entire cult but threatens the fabric of international society.”
Americans were outraged by 9/11. Perhaps they should be outraged by what has transpired in the subsequent six and a half years to their own civil liberties?