The United States is now insisting that Russian President Vladimir Putin should be put on trial for “war crimes” committed in Ukraine. As Putin is still insisting that he will attend the upcoming G20 summit in November on the island of Bali, Indonesia, it will be a great opportunity to have US Marshalls snatch him from the stage and whisk him off to a federal courthouse in Virginia for justice to be served. Or a form of justice anyway, since the United States has no actual jurisdiction over where Putin’s alleged crimes might have taken place and it will be impossible to prove that he actually ordered anyone to carry out so-called “crimes against humanity.” We’ll see how it all works out.
Indeed, there is no other phrase that has been more misunderstood and generally abused of late than “war crimes” or “war criminals.” It belongs with several other labels, including “weapons of mass destruction” and “crimes against humanity” that are used to indicate an adversary has crossed a red line and is so deplorable that anything that is done to him either during actual fighting or in the aftermath is completely acceptable. Going back to Greek and Roman times it has always been understood that even in wartime there are certain activities that are unacceptable, but the attempted definition and codification of “war crimes” as a concept is largely a twentieth century creation used to inflict additional punishment on the losers after the fighting is over. The Treaty of Versailles that ended the First World War punished Germany far beyond what most would consider reasonable, largely because the victorious powers were able to do so without any consequences until the next war began. Likewise, the linked concepts of war crimes and crimes against humanity came largely out of the post-Second World War Nuremberg Trials, which shaped the legal arguments around alleged German behavior, not that of the allies.
The Second World War certainly included atrocities of various kinds on both sides, but the Anglo-American deliberate bombing of German cities has to stand out as particularly disproportionate. Forty-two thousand mostly civilians died in Hamburg in the 1943 firebombing and the bombing of Dresden in 1945, at a point when Germany was on the verge of defeat, was remarkable in that the city was not a military target and was full of refugees from the east. At least 200,000 civilians died. Judge Andrew Napolitano has suggested that the greatest war crime in history, if one makes a case based on unnecessary human suffering, was President Harry Truman’s nuclear bombing of Hiroshima and Nagasaki, which almost certainly killed more than 200,000 mostly civilians, when Japan was preparing to surrender. As Truman was on the side that won the war and controlled the prosecution process, there were no legal consequences or punishment relating to his decision, though critics since 1945 have sometimes decried the first use of nuclear weapons.
If killing civilians unnecessarily is the standard definition of a war crime, then America’s most recent five presidents have been war criminals. In other words, historically speaking, accusations of war crimes, which have no real meaning in law and are both infinitely elastic and subject to interpretation, have often depended on which side of the fence one is standing on when the war ends. And it gets more complicated than that, given the politics of what is sometimes referred to as the rules based international order, which in theory arose from the ashes of World War Two. The new world order was US-centric from the start, with the United Nations (UN) situated in New York City, the World Bank in Washington, and the dollar as the world’s reserve currency. At the UN, American primacy was reinforced through the creation of a Security Council, which alone has the power to authorize military action against a rogue state. The Security Council had five permanent members, each of whom was armed with a veto, meaning that no effective action against them could ever take place no matter what they had done. And so it has played out, with the US plus China, Russia, Britain and France being effectively immune from censure authorizing military action by the United Nations.
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