Week 4 War, Aggression and

State Crime

Introduction

War of Aggression is known as ‘Supreme Crime’. A supreme crime is the initiation of a war that is not in

self-defence but rather has the purpose of conquering territories and peoples.

The term was introduced by Justice Robert H. Jackson, chief prosecutor for the United States at the Nuremberg Trials.

Ask yourself: What is a ‘preventative war’? Who has engaged in such wars? Is ‘preventative war’ a ‘supreme crime’?

Some laws/ideas that you need to know Jus Ad Bellum Jus in Bello UN Charter Nuremberg Charter These are know as ‘International Criminal Law’

Note that debates exist over their universality and the argument that international law is all about the political legitimacy of white, western, liberal views.

Jus ad bellum (Just War)

These are the criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable. For example:

…having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used.

Jus in bello (Justice in War)

These are the laws which concern acceptable conduct during war.

These are the laws which most international human rights organisations will monitor.

Concerned with the protection of victims of armed conflict—defined as the wounded, sick and/or shipwrecked, prisoners of war and civilians.

Governs methods and means of warfare, such as weapons that are restricted and tactical battlefield restraints.

The UN Charter (1945)

Article 2 says (among other things):

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

UN Secretary General, Kofi Annan, said that Iraq war was illegal because it was not sanctioned by the UN security council or in accordance with the UN's founding charter.

Nuremberg Charter - Principles

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

The main one is principle VI which identifies particular types of crimes……

Nuremberg Charter - Principles

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

War Crimes (Principle VI)

War crimes fall into three groups - or four if you include genocide (as defined in the Nuremberg Charter).

Crimes Against Peace War Crimes Crimes Against Humanity Let’s look at what each of these 3 entail…

Crimes against peace

Planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.

Participation in a common plan or conspiracy for the accomplishment of any of the above.

Crimes against peace formed the first charge against the Nazis in the 1945 Charter of the International Military Tribunal at Nuremberg.

Bit of a problem with the definition of ‘aggression’ ….

See Larry May, Aggression and Crimes Against Peace, Cambridge University Press, 2008, ISBN 9780521719155.

He says that a state is engaged in illegal aggression when that state:

1. has been the first to use violent force in a confrontation against another state that jeopardizes basic human rights;

2. has not been provoked, or if provoked, the provocations do not constitute an imminent or immediate threat to it;

3. has not acted in self-defense or defense of other states or subgroups of a state; and

4. has not been authorized by the UN to use violent force against another state.

War Crimes

Violations of the laws or customs of war, including: Atrocities or offences against persons or property, constituting

violations of the laws or customs of war murder, ill treatment or deportation to slave labour or for any other

purpose of the civilian population in occupied territory murder or ill treatment of prisoners of war or persons on the seas killing of hostages torture or inhuman treatment, including biological experiments plunder of public or private property wanton destruction of cities, towns or villages devastation not justified by military necessity

Crimes Against Humanity

Atrocities and offences committed against any civilian population, before or during the war, including:

murder extermination enslavement deportation mass systematic rape and sexual enslavement in a time of war other inhumane acts persecutions on political, racial or religious grounds in execution of

or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated

Theoretical Analysis – Structural, institutional and/or individual level Structural (Criminal Wars) – no incentive to

abide by rules of convention Institutional (Criminal Armies) – commanders

flout the rules as a matter of strategy Individual (Criminal Soldiers) - more motives for

breaking the rules than for following them See Green & Ward (2004), State Crime, chapter

9 for more on this.

Criminal Wars

See Mary Kaldor’s analysis of ‘new wars’ (2001):

“Such a war is fought not for a state interest, but for religious identity, zeal and fanaticism. The aim is not to acquire territory, as was the case in ‘old wars’, but to gain political power through generating fear and hatred. War itself is a form of political mobilisation in which the experience of violence promotes extremist cause”.

According to Green and Wards (2004) definition of what constitutes a state crime, you must ask yourself ‘do these wars violate human rights and are they regarded as deviant by domestic and by international audiences?’

Criminal Armies

Commanders may allow their subordinates to commit criminal acts.

Commanders might adopt policies which lead to criminal conduct

Failure to train soldiers adequately in relation to the rules of engagement outlined previously.

Eg Reinterpreting the evasive action rule to target civilians and increase body count.

Criminal Soldiers

Shoot them or take them as prisoners of war? The power of revenge led to the mantra ‘take no prisoners’ in 2 world wars and in Vietnam.

Was this also the case in Iraq?

Examples of War Crimes: 1.Rape in war – at institutional level Evident in Bosnia, Rwanda, Sudanese civil

war.. Why?1. Incentive to soldiers and militiamen 2. To improve the fighting sprit of soldiers3. Terrorises and humiliates the community4. Has a genocidal purpose (helps to destroy an

ethnic group - as was case in Bosnia by Serbs)

Rape in War – at individual level

Motives are:

1. A form of revenge

2. An Afterthought or a bonus

3. Means of sexual access to women

4. As a form of male bonding

Example 2 of War Crimes: Use of Child Soldiers

Children are the perpetrators of many war crimes

See week 2 section on children in conflict, as both victims and perpetrators.

Examples of War Crimes can be found in many, many, recent cases…

NATO bombing of Yugoslavia in 1999

Kosovo

Afghanistan

Iraq

Note that I haven't used an African countries – the ICC are prosecuting 4 of them, so cast the net wider and look at others instead for now.

Consider Iraq

Ask yourself: Why was the Iraqi regime allowed to get away with so much, for so long? And why was the country then punished so brutally? (Clue: read Green and Ward (2004) State Crime, Chapter 12)

Read anything by Robert Fisk and bring this to class next week.

Begin from the premise that violations of international law are state crimes even if they don’t violate domestic law (as in the case of the US invasion of Iraq)

The Law and Iraq

Article 2 of the UN Charter – says there can be no invasion. The US and UK focused on the ‘exceptions’ to this rule, such as:

Article 51 of the UN Charter The legality of humanitarian intervention

Article 51 says:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

IHL and Iraq

The irony of using international humanitarian law as a reason to invade Iraq becomes all the more pronounced when one consider that four types of war crimes committed during Iraq war:

1. Failure to secure public safety and protection of civilian rights

2. Illegal transformation of Iraqi economy3. Indiscriminate response to Iraqi resistance movt

leading to more civilian casualties4. Torture and abuse of Iraqi prisoners

Techniques of Neutralisation in Iraq

Denial of responsibility (the war was Saddam’s fault)

Denial of victims (they were all terrorists) Denied injury (always said that there was only

limited collateral damage) Condemned the condemners (protestors

unpatriotic and the French were ungrateful & cowardly)

Appealed to higher loyalties (God told me to do it – Bush)

Finally, were war crimes committed in Gaza?

Watch Gaza: Behind the Scenes

Amnesty International has found compelling evidence of war crimes and other serious violations of international humanitarian law.

http://www.youtube.com/watch?v=_jpFyyW0Mbc

Not quite as clear cut perhaps….

Dr Hugo Slim is the author of a book on the subject and a leading academic in humanitarian studies. He talks about the issue of proportionality in the context of high civilian casualty numbers:

http://www.bbc.co.uk/mediaselector/check/worldservice/meta/dps/2009/01/090120_slim_wt_sl?

Watch Panorama - Gaza: Out of the Ruins (BBC, 09/02/09) As Israel prepares to vote on its future, the BBC's Middle

East editor Jeremy Bowen travels through a devastated Gaza to ask where the recent Operation Cast Lead now leaves the future of the region.

With feelings running high on all sides, Bowen follows extraordinary personal stories across the frontline, and pieces together rival claims about war crimes and the targeting of civilians.

http://www.bbc.co.uk/iplayer/episode/b00hk9p7/Panorama_Gaza_Out_of_the_Ruins/

Questions to consider

Explain the US media’s failure to perform their critical role as a ‘watchdog’ over government power, in relation to the invasion of Iraq?

Powerful nations can violate international humanitarian law with relative impunity. Discuss.

What's the difference between war making and state making?

Required Reading

Green, P. & Ward, T. (2004) State Crime: Governments. Violence and Corrption. London: Pluto. See chapter 9: War Crimes, pp. 147-164.

Tilly, C (2009) ‘War Making and State Making as Organized Crime’, in Whyte, D. (2009) Crimes of the Powerful: A Reader. Maidenhead: Open University Press. pp.38-40.

Ronals C Kramer & Raymond J Michalowski, ‘War, Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq’, British Journal of Criminology, 45, pp.446-469.

Kauzlarich, David (2007) 'Seeing War as Criminal: Peace Activist Views and Critical Criminology', Contemporary Justice Review, 10:1, 67 – 85