First, permit me to state that I wholeheartedly and unreservedly, believe in the value and necessity of international criminal justice and law. The foremost reasons for this belief include the moral, philosophical and legal explanations and arguments proffered on the subject by the philosopher Larry May in the following (this is not a complete list):
- May, Larry. Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005).
- May, Larry. War Crimes and Just War (Cambridge University Press, 2007).
- May, Larry. Aggression and Crimes against Peace (Cambridge University Press, 2008).
- May, Larry. Genocide: A Normative Account (Cambridge University Press, 2010).
- May, Larry. Global Justice and Due Process (Cambridge University Press, 2011).
- May, Larry and Zachary Hoskins, eds. International Criminal Law and Philosophy (Cambridge University Press, 2010).
Incidentally, May treats the crime of torture in international criminal law in the above book on War Crimes and Just War (2007), noting that “Torture and other forms of degrading treatment have been condemned by all the relevant documents in international law for over a century.” In a later post I will share some more titles on international criminal justice and law.
That said, I concede that international criminal law proceedings have often amounted to what Danilo Zolo describes in words from the title of his book, Victors’ Justice: From Nuremberg to Baghdad (2009). Thus, and for example, the U.S. and its allies, notably Great Britain (through the British Royal Air Force or RAF), and at first under the euphemism of “precision bombing,” engaged in targeted and utterly indiscriminate (thus not only ‘disproportionate’) bombing of civilians in both Germany and German-occupied cities that included Allied-citizens (e.g., Paris, Nantes, and Amsterdam). Presumably all of us are also familiar with the unnecessary and unjustified atomic bombing of Hiroshima and Nagasaki. The U.S. Army Air Force (USAAF) began its bombing campaign against Japan in late 1944:
“According to Henry Arnold and Curtis LeMay, bombing civilians was essential in order to break Japanese morale, and this was the quickest way to force them to surrender. At the same time, it was the most efficient method to minimize casualties to their own men. In this sense, Arnold, LeMay and other U.S. military leaders inherited the idea of strategic bombing originally advocated by RAF [British Royal Air Force] leaders in World War I. According to this concept, the killing of enemy civilians is justifiable, no matter how cruel the method; indeed it is indispensable to hastening surrender. U.S. leaders, however, in their public pronouncements, continued to insist that their bombs were directed toward military targets. Consider, for example, President Harry Truman’s announcement immediately after the bombing of Hiroshima: ‘The world will note that the first atomic bomb was dropped on Hiroshima, a military base. That was because we wished in this first attack to avoid, in so far as was possible, the killing of civilians.’ Truman made this statement immediately following the instant killing of 70,000 to 80,000 civilian residents of Hiroshima. By the end of 1945, 140,000 residents of that city died from the bomb. In the end, more than 100 Japanese cities were destroyed by firebombing, and two by atomic bombing, causing one million casualties, including more than half a million deaths, the majority being civilians, particularly women and children.” — From Yuki Tanaka’s introduction to the invaluable volume she co-edited with the historian, Marilyn B. Young (25 April 1937 – 19 February 2017), Bombing Civilians: A Twentieth-Century History (The New Press, 2009).
Consider too the bombings in Japan that preceded Hiroshima and Nagasaki: in in the “final six months of the war, the United States threw the full weight of its airpower into campaigns to burn whole Japanese cities to the ground and terrorize, incapacitate, and kill their largely defenseless residents in an effort to force surrender.” Discussion of this in no way precludes ignoring the fact that Japan was earlier (1932-1945) involved in horrific bombings of Shanghai, Nanjing, Chongqing, and other cities, “testing chemical weapons in Ningbo and throughout Zhejiang and Hunan provinces.”
The goal of U.S. bombing assault on Japanese cities, Mark Selden explains, is found in the words of the officers responsible for the U.S. Strategic Bombing Survey (SBS): “either to bring overwhelming pressure on her to surrender, or to reduce her capability of resisting invasion ... [by destroying] the basic economic and social fabric of the country.” The description of the use of firebombing and napalm on Tokyo (in an area estimated to be 84.7 percent residential) on March 9-10 is chilling: “Whipped by fierce winds, flames generated by the bombs leaped across a fifteen-square-mile area of Tokyo, generating immense firestorms that killed scores of thousands of residents. [....] With an average of 103,000 inhabitants per square mile and peak levels as high as 135,000 per square mile, the highest density of any industrial city in the world, and with firefighting measures ludicrously inadequate to the task, 15.8 square miles of Tokyo were destroyed. An estimated 1.5 million people lived in the burned-out areas. Given a near total inability to fight fires of the magnitude produced by the bombs, it is possible to imagine that the casualties may have been several times higher than the figures presented [100,000-125,000 killed and a roughly equal or higher number wounded] on both sides of the conflict.” [....] Subsequent raids brought the devastated area of Tokyo to more than 56 square miles, provoking the flight of millions of refugees. [....] Overall, bombing strikes destroyed 40 percent of the 66 Japanese cities targeted, with total tonnage dropped on Japan increasing from 13,800 tons in March to 42,700 tons in July. If the bombing of Dresden produced a ripple of public debate in Europe, no discernible wave or repulsion, let alone protest, took place in the United States or Europe in the wake of the far greater destruction of Japanese cities and the slaughter of civilian populations on a scale that had no parallel in the history of bombing.”
Please see Mark Selden’s chapter, “A Forgotten Holocaust: U.S. Bombing Strategy, the Destruction of Japanese Cities, and the American Way of War from the Pacific War to Iraq,” in Yuki Tanaka and Marilyn B. Young, eds., Bombing Civilians: A Twentieth-Century History (New York: The New Press, 2009): 77-96. See too Tsuyoshi Hasegawa’s chapter, “Were the Atomic Bombings of Hiroshima and Nagasaki Justified?”: 97-134.
Perhaps some readers are familiar with Gar Alperovitz’s The Decision to Use the Atomic Bomb (1995) (see to arguments made by John V. Denson). As he wrote on a previous anniversary of the bombing, “Many Japanese historians have long judged the Soviet declaration of war to have been the straw that broke the camel's back, mainly because the Japanese military feared the Red Army more than the loss of another city by aerial bombardment. (They had already shown themselves willing to sacrifice many, many cities to conventional bombing!) An intimately related question is whether the bomb was in any event still necessary to force a surrender before an invasion. Again, most Americans believe the answer obvious as, of course, do many historians. However, a very substantial number also disagree with this view. One of the most respected, Stanford University Professor Barton Bernstein, judges that all things considered it seems ‘probable’ indeed, far more likely than not ‘that Japan would have surrendered before November’ (when the first landing in Japan was scheduled). Many years ago Harvard historian Ernest R. May also concluded that the surrender decision probably resulted from the Russian attack, and that ‘it could not in any event been long in coming.’”
Let us move forward to the American war in Indochina. “Operation Rolling Thunder was the title of a gradual and sustained US 2nd Air Division (later Seventh Air Force), US Navy, and Republic of Vietnam Air Force (VNAF) aerial bombardment campaign conducted against the Democratic Republic of Vietnam (North Vietnam) from 2 March 1965 until 2 November 1968, during the Vietnam War.
The four objectives of the operation (which evolved over time) were to boost the sagging morale of the Saigon regime in the Republic of Vietnam, to persuade North Vietnam to cease its support for the communist insurgency in South Vietnam without actually taking any ground forces into communist North Vietnam, to destroy North Vietnam’s transportation system, industrial base, and air defenses, and to cease the flow of men and material into South Vietnam. [….] The operation became the most intense air/ground battle waged during the Cold War period; indeed, it was the most difficult such campaign fought by the U.S. Air Force since the aerial bombardment of Germany during World War II. Supported by communist allies, North Vietnam fielded a potent mixture of sophisticated air-to-air and ground-to-air weapons that created one of the most effective air defenses ever faced by American military aviators.”
“Operation Linebacker II was a US Seventh Air Force and US Navy Task Force 77 aerial bombing campaign, conducted against targets in the Democratic Republic of Vietnam (North Vietnam) during the final period of US involvement in the Vietnam War. The operation was conducted from 18–29 (or 17-28) December 1972, leading to several of informal names such as ‘The December Raids’ and ‘The Christmas Bombings.’ It saw the largest heavy bomber strikes launched by the US Air Force since the end of World War II. Linebacker II was a resumption of the Operation Linebacker bombings conducted from May to October, with the emphasis of the new campaign shifted to attacks by B-52 Stratofortress bombers rather than tactical fighter aircraft.”
“In twelve days…the American military bludgeoned Hanoi, Haiphong, and other highly developed areas of North Vietnam with the most concentrated aerial bombardment ever used against any human population. Air Force B-52 Stratofortresses plastered densely inhabited areas with their ‘arc-light’ strikes crater-making 2,000-pound bombs in half-mile wide swaths. Together with the smaller F-4 Phantom and F-111 fighter-bombers, they dropped in the last five days alone 100,000 tons of explosives, the equivalent of five early atomic bombs. At the end of twelve days, American planes had dropped on North Vietnam the destructive equivalent of all the bombs dropped on Japan during the entire Second World War.”—From Wikipedia entries
In an interview with the television journalist Marvin Kalb on February 1, 1973, Kissinger defends the December 1972 bombings as essential to the effort to persuade both North and South Vietnam of the desirability and necessity for a peace agreement.
“Throughout World War II, in all sectors, the United States dropped 2 million tons of bombs; for Indochina, the total figure is 8 million tons, with an explosive power equivalent to 640 Hiroshima-size bombs. Three million tons were dropped on Laos, exceeding the total for Germany and Japan by both the U.S. and Great Britain. For nine years, an average on one planeload of bombs fell on Laos every eight minutes [from 1965 to 1973 — about one ton for every Laotian man, woman and child]. In addition, 150,000 acres of forest were destroyed through the chemical warfare known as defoliation. For South Vietnam, the figure is 19 million gallons of defoliant dropped on an area comprising 20 percent of South Vietnam—some 6 million acres. In an even briefer period, between 1969 and 1973, 513,129 tons of bombs were dropped in Cambodia, largely by B-52s, of which 257,465 tons fell in the last six months of the war (as compared to 160, 771 tons on Japan from 1942-1945) [In Cambodia, between October 4, 1965 and August 15, 1973, the U.S. dropped 2,756,941tons in 230,516 sorties on 113,716 sites]. The estimated toll of the dead, the majority civilian, is equally difficult to absorb: … 2 to 4 million in Vietnam.”— Marlyn B. Young, “Bombing Civilians from the Twentieth to the Twenty-First Centuries,” in Yuki Tanaka and Marilyn B. Young, eds., Bombing Civilians: A Twentieth-Century History (New York: The New Press, 2009).
“In Vietnam the majority of U.S. bombing was in the South of the country in the rural areas. (In the North the bombing was largely targeted on urban areas and the population had to decentralize). Much of the U.S. bombing of Indochina was integrated into the Pacification Program, primarily as part of what were called ‘search and destroy missions.’ These missions have been graphically described as ‘typically [beginning] with B-52 saturation bombing of an “objective” area ... [followed by] long range artillery fire ... aerial bombing by smaller, lower flying attack bombers which are armed with half-ton bombs, ... and huge canisters of gelatinous napalm ... Last to arrive and devastate the “objective” from the air are helicopter gunships firing rockets and M-60 machine guns….’ (Committee of Concerned Asian Scholars, 1970: 104; see also Schell, 1967). After these bombing attacks, any people left alive were either forced to move to the cities or were herded into ‘strategic hamlets,’ set up and financed by the United States, surrounded by high barbed wire fences to separate the ‘ocean’ from the ‘fish.’ Between 1965 and 1970, 5,000 hamlets, with an estimated population of four million people, were destroyed.
The use of chemicals (such as CS gas and napalm) and herbicides (such as Agents Orange and Blue) against the people, forests, and crops was also part of this overall Pacification Program of destroying the capacity for people to support the guerilla fighters, rather than primarily, as the Army generally claimed, to destroy the opposing military forces or to destroy their forest cover. According to the Committee of Concerned Asian Scholars (1970: 112), ‘The army denies that herbicides were used in populated areas. But there is ample documentary evidence to the contrary, even from government sources.’
This was the policy throughout Indochina. In Laos, from 1965 to 1973, the U.S. Air Force dropped over 2,000,000 tons of bombs. Most of the victims were civilians. In Cambodia in March 1969, the U.S. military increased to ‘intensive’ the secret bombing program: 3,630 B-52 bombing raids annihilated the country (Kiernan, 1989; Shawcross, 1987: 28).
The U.S. bombing in Indochina was the ‘heaviest aerial bombardment in history’ (Committee of Concerned Asian Scholars, 1970: 97).” — From Truda Gray and Brian Martin, “The American War in Indochina: Injustice and Outrage,” Revista de Paz y Conflictos, No. 1, 2008.
In addition to my bibliography on the American War in Indochina, see in particular:
- Branfman, Fred, ed. (with essays and drawings by Laotian villagers) Voices from the Plain of Jars: Life under an Air War. Madison, WI: University of Wisconsin Press, 2nd ed., 2013 (1972).
- Coates, Karen J. (photos by Jerry Redfern) Eternal Harvest: The Legacy of American Bombs in Laos. San Francisco, CA: ThingsAsianPress, 2013.
- Committee of Concerned Asian Scholars. The Indochina Story: A Fully Documented Account. New York: Pantheon Books, 1970.
- Conboy, Kenneth (with James Morrison) Shadow War: The CIA’s Secret War in Laos. Boulder, CO: Paladin Press, 1995.
- Duffett, John, ed. Against The Crime of Silence: Proceedings of The Russell International War Crimes Tribunal. New York: O’Hare Books, New York, 1968.
- Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Viking, 2002.
- Falk, Richard A., ed. The Vietnam War and International Law, 4 Vols. Princeton, NJ: Princeton University Press (sponsored by the American Society of International Law), 1968-1976.
- Falk, Richard A., Gabriel Kolko, and Robert Jay Lifton, eds. Crimes of War. New York: Random House, 1971.
- Grandin, Greg. Kissinger’s Shadow: The Long Reach of America’s Most Controversial Statesman. New York: Metropolitan Books, 2015.
- Hersh, Seymour. The Price of Power: Kissinger in the Nixon White House. New York: Summit Books, 1983.
- Hitchens, Christopher. The Trial of Henry Kissinger. New York: Twelve Edition (published in arrangement with Verso, an imprint of New Left Books), 2012 (2002).
- Kiernan, Ben. How Pol Pot Came to Power: A History of Communism in Kampuchea, 1930-1975. London: Verso, 1985.
- Kiernan, Ben “The American Bombardment of Kampuchea, 1969-1973,” Vietnam Generation, 1, 1989 (Winter): 4-41.
- Kiernan, Ben. How Pol Pot Came to Power: A History of Communism in Kampuchea, 1930-1975. London: Verso, 1985.
- Neilands, J.B., et al. Harvest of Death: Chemical Warfare in Vietnam and Cambodia. New York: The Free Press, 1972.
- Proceedings of the Russell International War Crimes Tribunal (John Duffett, ed.) Against the Crime of Silence. New York: Bertrand Russell Peace Foundation/Flanders, NJ: O’Hare Books, 1968.
- Russell, Bertrand. War Crimes in Vietnam. New York: Monthly Review Press, 1967.
- Sartre, Jean-Paul. On Genocide. Boston, MA: Beacon Press, 1968.
- Shawcross, William. Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York: Simon and Schuster, 1979; revised ed., Copper Square Press, 2002.
- Tanaka, Yuki and Marilyn B. Young, eds. Bombing Civilians: A Twentieth-Century History. New York: The New Press, 2009.
- Turse, Nick. Kill Anything That Moves: The Real American War in Vietnam. New York: Metropolitan Books, 2013.
- Vietnam Veterans Against the War. The Winter Soldier Investigation: An Inquiry into American War Crimes. Boston, MA: Beacon Press, 1972.
More recent history of course provides us with yet more examples of the international crime of aggression (crimes against peace) and war crimes committed by the U.S. For instance, the U.S. helped orchestrate and took part in NATO’s bombing of the Yugoslav Federal Republic, in particular, “seventy-eight days of uninterrupted bombing raids on Serbia, Vojvodina, and Kosovo in 1999,” as part of its campaign of “humanitarian intervention.” Before and after this date we have the cases of Iraq and Afghanistan, which likewise raise questions of international criminal law and justice.
All of this, while incomplete and bereft of the nasty details, is a disturbing reminder that international criminal law can often be reduced to “victor’s justice,” as the superpowers studiously and shamelessly avoid criminal responsibility and blame for aggression and war crimes they self-righteously and hypocritically condemn when believed to be (often correctly) committed by others. Those of us on the Left cannot but help to also point out the war crimes repeatedly (among other violations of international law, criminal and otherwise) committed by Israel in its wars on Gaza, for which the U.S. is at least complicit.
In bringing these matters to your attention, I do not intend in any way to diminish the crime of aggression and war crimes one can accuse Russia of committing today in Ukraine (or elsewhere for that matter). It is rather an attempt to enable us to understand how and why it is that the behavior of the U.S. around the world since WW II has contributed to an international political and legal climate in which such example(s) as outlined above, as well as those set by other powerful nation-states (Russia, China, the UK …), has led to something like a contagion effect on other countries, thereby forming a moral vacuum and corresponding ethos of illegality and political chaos or instability in the international community (such as it is), which at the very least increases the risk of more and wider wars if not the use of nuclear weapons (‘do as I say, not as I do,’ can no longer serve as the regnant norm). It leads to derision, cynicism, and even dismissal of the necessity and value of international criminal law and justice. This, and thus not Russia alone, has brought us to the horrific situation that prevails in Ukraine. Manichaean morality in the world of nation-states is entirely self-defeating and intrinsically dangerous in whatever form it assumes among the powers-that-be, especially the U.S. Again, please do not misunderstand; we need to do all we can to bring the war in Ukraine to an end. At the very least, we need to make sure that any “success” on that front that Russia may claim, will not set the stage for yet more Russian imperialist aggression. And equally important, we need assurance from our political and military leaders (perhaps preceded by a confession of sins) that henceforth they will hold themselves to the very same moral and legal norms and standards they assign to others, indeed, that they will act domestically and abroad in a manner worthy of emulation. Perhaps this is a utopian wish, although I prefer to believe it is a realistic hope, for if I thought otherwise, I would conclude that we are all, at least figuratively, damned.
Relevant Bibliographies
Comments