Last Tuesday morning, the League of Women Voters of Williamsburg sponsored the third lecture in the “Great Decisions” series offered by the Foreign Policy Association. As always, here’s a link that will give you more information about this organization. This was the first lecture in this series that I was able to attend in person, and as a result I found this talk more engaging than the previous two lectures, which I attended via Zoom.
The FPA Great Decisions briefing book provides an exhaustive overview of this incredibly complex topic. The author of the essay, Francine Hirsch, knows what she’s talking about. She is the Vilas Distinguished Achievement Professor of History at the University of Wisconsin
-Madison, where she teaches courses on Soviet history, Modern European history, and the history of human rights. He most recent book, Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II (Oxford 2020) has received several book awards including the George Beer Prize of the American Historical Association.
The speaker in the library auditorium on Tuesday was Dr. Kelebogile Zvobgo is an Assistant Professor of Government at William & Mary and founder and director of the International Justice Lab. Her research broadly engages questions in human rights, transitional justice, and international law and courts, and has been published in such journals as International Studies Quarterly, the Journal of Human Rights, and Foreign Affairs. She appears frequently on major news outlets. Her lecture focused on a nuance of the broader topic of war crimes. She focused on two questions: What is a war crime? How does this definition apply to recent events in Ukraine?
As an aside, one of the benefits of being in the auditorium was that I got to talk to Dr. Zvobgo briefly after her talk. She is a lovely and delightful person who is “wicked smaht.” I’ll be talking to her later this year about providing some lectures for our Osher Program members. She is open to this idea in principle, but a combination of moving into a new home and turning her dissertation into a book will keep her busy for a while.
The topic of “war crimes” reminds me how much I don’t know. Wars are barbarous and feature intended death and destruction. How can you possibly define aspects of this as criminal? Hard for me to wrap my arms around. But I understand intellectually that it is a real thing, but Kelly said something in her lecture that made me think. She says that the reactions of her 19-year-old students is almost nihilistic. The says that they don’t believe that laws surrounding war are ever prosecutable or provable, so we shouldn’t worry about the whole thing. I was reminded by her that college students often hold superficial opinions because they have not yet encountered complex issues that are worth time and serious study if we want to solve problems.
Another aside: When I was thinking about this, I was reminded of a Star Trek episode from 1967. So I looked it up (you can find anything on the internet) and learned that the episode was called “A Taste of Armageddon.” In the episode, the crew of the Enterprise visits a planet engaged in a completely computer-simulated war with a neighboring planet, but the casualties, including the Enterprise's crew, are supposed to be real. Briefly, In the episode, the crew of the Enterprise visits a planet engaged in a completely computer-simulated war with a neighboring planet, but the casualties, including the Enterprise's crew, are real.
Here’s how the episode ends. Kirk confronts Anan 7 but is overpowered by guards and taken to the Eminian council chamber. When Anan 7 opens a channel to the Enterprise, Kirk orders Scotty to execute General Order 24 before being cut off. Kirk explains that he just ordered the ship to destroy everything on the planet within two hours. Panic ensues, which Kirk takes advantage of to disarm the guards. After Spock arrives, Kirk destroys the war simulation computers. Anan 7 condemns Kirk's actions, arguing that it is unalterable nature to fight wars, so without the simulation they have no alternative but to fight a real war. Kirk instead believes that the only reason the war with Vendikar has gone on so long is because the simulation insulated both societies from the horrors of war and gave them little reason to end it. He convinces Anan 7 to call a ceasefire and begin peace negotiations, and Fox agrees to act as a neutral mediator between the planets.
We didn’t necessarily realize it at the time, but the whole Star Trek series was about the clash of empires – the United Federation of Planets against all opponents. The Klingons were a lightly disguised Soviet Union or something.
So why does the topic of war crimes remind me of this Star Trek episode? I’ve wondered – if we make war more palatable, will we be willing to engage in it more frequently? Should we really just “let slip the Dogs of War?”
A whole lot of people think this would be an extraordinarily bad idea, and they are working hard to address the issue of violations of international law. The atrocities committed by the Russians in Ukraine have focused the world’s attention yet again on the innocent victims of war, with Vice President Kamala Harris noting in Munich this week that the invading forces have committed “crimes against humanity.”
I don’t have time today to write as complete a summary as I usually do about these lectures, but I’ll give you some of the main takeaways:
What is a war crime?
A layman’s understanding of this term is less precise that the legal definition, as you might imagine. But the term is used broadly to refer to a long list of transgressions, including violations of the rules of warfare (more on that in a minute), mistreatment of civilians during a military conflict, the breaking of international treaties, and the waging of a predatory war of aggression. (Professor Hisrch went into great detail on a lot of this in her essay in the FPA briefing book. Professor Zvogbo alluded to the complexity of these issues but in the interests of time did not focus on them in this lecture.)
The Laws of War include things like attacking civilian targets, torture of civilians or prisoners of war, pillaging conquered areas, and mistreating sick or wounded soldiers. Overall, the purpose is to protect the “welfare of humanity” – in other words, a War Crime victimizes every one of us, not just the obvious victims.
Where can we find all of this laid out?
Hague Conventions of 1899 and 1907
Geneva Conventions of 1864 and 1906
League of Nations Charter after World War I
Kellogg-Briand Pact of 1928 which “outlawed war”
United Nations War Crimes Commission which began meeting in London in 1943
International Military Tribunal (Nuremberg) was established in November of 1945
International Courts of Justice begins its work in 1946
Genocide Conventions approved by the United Nations in 1948
Geneva Conventions of 1949
International European Court of Human Rights 1959
International Criminal Court 1998 (“Rome statute”) which was established to investigate and rule on three categories of crimes: genocide, crimes against humanity, and war crimes.
How does this definition apply to recent events in Ukraine?
Russian soldiers and leaders can be held individually criminally responsible for war crimes. There are mechanisms in place to prosecute Russian soldiers and officers for violations of the laws and customs of war and for crimes against civilians; such trials can be held by Ukraine and by the ICC.
The crimes of genocide and aggression will be much harder to prosecute.
The problem of all of this is, of course, the issue of enforcement. International agreement to punish the actions of one nation threatens that nation’s sovereignty – and by extension, the sovereignty of all nations. Here’s an example: the International Courts of Justice (ICJ) is an arm of the United Nations. All prosecutions it pursues have to be approved by the Security Council – which contains three of the most powerful countries in the world (The United States, Russia, and China) whose unilateral veto power can shut down investigations into their own acts. For example, neither Russia nor United States does not recognize the jurisdiction of the International Criminal Court (ICC).
Although this body is the appropriate location for any adjudications to occur, there is not a chance that the Russians (or the Americans) would accept its conclusions. For another example, we need only look at the ICC investigations into actions by the United States in Afghanistan – which included extrajudicial killings, drone strikes against civilians, and torture. In 2002, the United States enacted the American Service-Members’ Protection Act, which sought to protect U.S. personnel from international prosecution. The US blocked this investigation.
If you want to know more about all of this, there are ample published and online sources.
I was able to have one interesting interaction with Professor Zvobgo during the Q&A session. I posed this question to her:
“Most of us hadn’t heard much about the International Criminal Court until Jack Smith, a former prosecutor for the ICC, was tapped by Merrick Garland to become the Special Counsel assigned to investigate the actions of the previous administration. What skills or insights do you think he brings to this investigation because of his experience in The Hague.”
Her answer encouraged me. Here are the two parts I found most interesting.
Smith is accustomed to prosecuting uncooperative defendants. He know all of the legal mechanisms that defendants use to delay or evade justice, and he has the ability to stay steps ahead of their plans.
He know that there are two strategies to controversial prosecutions.
The legal strategy operates behind the scenes to build a tight case.
We see evidence of this in his efforts to get potentially valuable witness under oath
The communications strategy works to prepare the interested publics (note the plural) about what’s going on. This serves to soften the landing for decisions that will be inflammatory for sectors of the public.
I don’t think we see this as much. Smith is largely letting his actions speak for themselves. I certainly don’t know what his strategy is, but it may be that his reticence to become a media darling lends his investigation an element of seriousness and competence that we want to see in an investigation like this.
The FPA briefing book includes suggested discussion questions and recommended readings, but I don’t have that in front of me right now. I’m at the public library, finishing up this post for today. My laptop is in the computer hospital — a routine check-up, probably, but there may be more going on. Meanwhile, I’m limping along.
Impressive. Would it be possible to read your copy of the FPA?