Since when did "war criminal" start to mean "honored guest of the realm?"

February 25, 2010 § 19 Comments

There are three classes of persons we must consider in warfare.

First, there are innocents. Innocents are those who are not in any way engaged in any attacking behaviors, where “attacking behaviors”, for the sake of argument at least, include any activity proximately supporting the war. We must never kill innocents deliberately, no matter what consequences flow from not doing so. Accidents do happen, and are expected to happen, on the interstate highway system and in wartime. Proper care must be taken to avoid signate accidents, but in both venues – highway system and wartime – they are generally unavoidable.

Second, there are enemy soldiers. Soldiers fight in uniform under the laws of war or provide supplies, etc to the war effort. It is licit to kill them on the battlefield, when necessary, and yes, the battlefield includes the supply lines. When we capture them we owe them – to the extent of our ability to reasonably provide it – medical care, three hots, a cot, and (always) POW status. Name, rank, and serial number are all we are entitled to from them. If they attempt to escape, they are thereby deliberately making themselves active combatants again: a POW in the process of attempting escape becomes, qua escape attempt in process, an active combatant. As always, killing legitimate soldiers and support personnel is only licit when it is necessary in order to stop an attack. POW’s must be released when hostilities cease.

Third, there are criminals acting outside the laws of war. (Thus the term “war criminal”). Criminals may be killed in the process of committing a crime, if necessary. They may be captured, killed while attempting to escape capture (if necessary), interrogated, put on trial (military or civilian), and even executed if doing so is necessary to protect the common good. Interrogation may (or may not) involve plea bargaining with respect to their criminal status and sentencing.

Complicity of leadership in war crimes makes them war criminals also.

It is not permissible to torture, rape, abuse, or perform other intrinsically immoral acts on criminals.

There is no other kind of person: there is no subhuman “illegal enemy combatant” distinct from a war criminal.

This post brought to you by the surreality of this comment thread and hundreds of others like it.

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§ 19 Responses to Since when did "war criminal" start to mean "honored guest of the realm?"

  • JohnMcG says:

    That particular thread isn't terribly bad. It could be an honest question, and I haven't seen much resistance to the answers.

    Maybe another way to think about it is that you can add traits to a human person, but you cannot take them away.

    A human person can become an enemy combatant, or someone convicted of a capital crime, etc, who might me legally put to death, or killed in self-defense or as part of a just war.

    But he cannot take off his humanness.

  • Zippy says:

    That particular thread isn't terribly bad. It could be an honest question, and I haven't seen much resistance to the answers.

    The surreality, to me, isn't any imputed bad faith on the part of any particular discussion participants. It is just that when I say stuff like this I know that, on the one hand, people struggle with it. (There was a time when I literally without any thought assumed that dropping the Bomb was just a legitimate way to end WWII — so my “hands” aren't clean here either). On the other hand, I feel like I am saying “water is wet”.

    What is it about us — and I do mean us, not those guys over there — that makes the obvious so opaque? We could say “original sin” or whatever, but there seems to be something unique about modernity in our capacity to abstract things away, something that makes us uniquely morally ignorant in the history of the human race.

  • JohnMcG says:

    Could it be that the volume of information we process leads us to take as many shortcuts as we can find? If we can categorize some as not worth listening to, or fitting into a well-defined category, that's a tremendous time-saver.

    And probably also something to reflect on in Lent.

  • George R says:

    Maybe another way to think about it is that you can add traits to a human person, but you cannot take them away.

    A human person can become an enemy combatant, or someone convicted of a capital crime, etc, who might me legally put to death, or killed in self-defense or as part of a just war.

    But he cannot take off his humanness.

    On the contrary, John, as St. Thomas writes in the Summa:

    By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood, in so far as he is naturally free, and exists for himself, and he falls into the slavish state of the beasts, by being disposed of according as he is useful to others. This is expressed in Psalm 48:21: “Man, when he was in honor, did not understand; he hath been compared to senseless beasts, and made like to them,” and Proverbs 11:29: “The fool shall serve the wise.” Hence, although it be evil in itself to kill a man so long as he preserve his dignity, yet it may be good to kill a man who has sinned, even as it is to kill a beast. For a bad man is worse than a beast, and is more harmful, as the Philosopher states (Polit. i, 1 and Ethic. vii, 6).

    You might want to reflect on that in Lent.

  • zippy says:

    Another thing to ponder when reading even the greatest of theologians is – as the greatest theologians agree – for example, this.

  • Could it be that the volume of information we process leads us to take as many shortcuts as we can find? If we can categorize some as not worth listening to, or fitting into a well-defined category, that's a tremendous time-saver.

    Certainly laziness factors in. Also perhaps that these days there are so many pleasant diversions: books, television, music, teh internetz, etc. that we are never alone. When I'm alone, my conscience starts going into its backlog of greivances with me, and there is enormous temptation to plug back in to shut it out. After a long time of doing this, the conscience becomes dulled.

  • Tom says:

    Is the assertion that the quote from St. Thomas contradicts what John wrote?

    Because St. Thomas goes on to write, in the very next article, that “a man who has sinned is not by nature distinct from good men.”

  • Bob says:

    What is it about us — and I do mean us, not those guys over there — that makes the obvious so opaque? We could say “original sin” or whatever, but there seems to be something unique about modernity in our capacity to abstract things away, something that makes us uniquely morally ignorant in the history of the human race.

    In a way, I believe it is nominalism. We've lost the capacity to understand things in a way related to the reasons for the creation of Orwell's Newspeak. We can't understand things. So when you say “water is wet” people ask “what is water?” and “what is wet?”. We're now questioning “what is marriage?” And so when they ask “what is torture?” it's not completely a willful blindness, it is part of a complete environment of deconstruction. We're in a place of loss of meaning and intelligibility about the world around us.

    But, I'm just as sure that nominalism fails as a complete identification of the problem. It's evil twin voluntarism, the supremacy of the will seems to be just as active. “I want,” no matter what the cost.

    Modern man doesn't know who he is, what he is, where he is, and where is going. The rational man without a chest has succumbed to his belly. He is mere animal now.

  • Tommy says:

    Zippy, Let us grant for the moment that you have correctly identified the legal categories as the laws of nations now stand. (Not least of which, I believe that this is exactly what the Geneva Convention people are claiming).

    How much of the fact of the 3 categories and no more is due specifically to positive law, and how much to the very nature of the beast and cannot be changed.

    For example, it was really quite recently that we began to recognize something distinct like “POW” status in the law of nations. Certainly up through Roman times there was no such category. So, if the current structure of POW status is actually a construct of human positive law, then it would be possible to re-arrange the categories to slice up somewhat differently.

    (For example, and as was said somewhere else recently: the decision to specify for POWs the right to attempt to escape may have been a prudential blunder in setting out their rights. It certainly causes a wealth of pragmatic problems, because making the POW category mean “may attempt to escape” effectively prevents a prisoner from giving his “parole,” that he will cease his attempts to act in a manner contrary to the (just) dictates of the capturer. Which in former times would be what “I surrender” actually meant.)

    Likewise, if we wanted to re-write the Conventions, we could provide for a 4th category without damage to human dignity, that of “illegal combatant” in a restricted sense of one who uses warfare but who has no writ of authority to use warfare. I don't see why this category cannot be reasonably set apart from the generic class “criminals”, since “criminals” would mostly cover people who, even during war, commit crimes but don't use warfare itself to commit those crimes, and don't use warfare even while being non-soldiers. Surely this is a matter of positive law rather than natural law as such. The fact that one of the categories you state is “soldier” it is within the realm of reasonable positive law to specify the category of “illegal combatant.”

    Just as we set up a special category for those who engage in genocide, which is basically murder committed over and over, why are we precluded from considering as a special class those who take on the usages of war without the writ of authority of a state?

  • Zippy says:

    Tommy,

    Although yes, I was just trying to state our actual obligations including those under the positive law, it seems to me that the three categories of persons have validity under the natural law even absent positive law; and while certainly the details of other civilizations in other times might be different, to the extent they actually deviate from these they deviate from natural law. (I don't have a brilliant argument to that effect — at the moment that is just my gut reaction to the questions).

    On the other hand, there are certainly many different categories of criminals. The main point of the post is that there is no category beyond “criminal”, a category of subhumanness which makes it morally permissible to torture them.

  • JohnMcG says:

    Another thing we may need to let go of is the need to have an opinion about everything. If we could recognize the issues that we're ignorant and don't have the time, inclination or energy to properly inform ourselves about, and keep our mouths shut about them rather than repeating the opinions of those we agree with on other things, we might be able to keep ourselves out of trouble.

  • George R. says:

    Tom,

    It is true that where John says, “But he cannot take off his humanness.” he is correct, since all men, the good as well as the bad, remain essentially identical. But where he says, “Maybe another way to think about it is that you can add traits to a human person, but you cannot take them away,” he is not correct. For as Thomas said, “By sinning man departs from the order of reason, and consequently falls away from the dignity of his manhood.”

  • Tommy says:

    Zippy, I quite agree that much of the “laws” of war come from natural law, and I'm not trying to suggest otherwise.

    The main point of the post is that there is no category beyond “criminal”, a category of subhumanness which makes it morally permissible to torture them.

    I can't decide whether the 3 categories you state are too many, or too few, for the purpose at hand. On the one hand, all you need to give to arrive at the conclusion “so you cannot torture them” is that they are human. Any distinction after that is not germane. You can't torture enemy soldiers, you can't torture “innocents”, and you can't torture criminals, because they are all three human and you can't torture humans. So why bring in the 3 groups?

    On the other hand, the three seem to be not rightly set out, in that they don't really distinguish separate and non-overlapping groups which cover the universe of humans. Your use of “innocents” seems odd, for example, since the obvious correlate is “guilty”, but that's not what you want. And “innocent” doesn't really mean the same thing as those who are not in any way engaged in any attacking behaviors since a person can be guilty for not engaging in attacking behavior when that is his duty. A better word might be “legally non-combatant,” possibly, although there are problems there too (see below).

    Then the second category, “enemy soldiers” seems to be overly narrow: why not just “soldiers”, since they are engaged in attacking behaviors. And since your own soldiers can be either doing warfare rightly or wrongly as well.

    And the specific difference of the third group, “criminals” is, again, something that doesn't really track with the specific differences for the other two at all: a person can be a criminal without engaging in “attacking behavior” at all, such as white collar crime, or he can be a criminal while an enemy soldier.

    If you wanted to set out that there are (1) legal soldiers and (2) legal non-soldiers, that would seem to be a good starting point. Either / or, right, one or the other? (I avoid “not engaging in attacking behaviors” because if someone – like an enemy soldier – starts raping my daughter you better believe I am going to engage in attacking behavior, but that doesn't make me a soldier.) But there is in fact more than those 2 classes: there are various groups who fall in between: reservists, citizen militia, and “home defense forces” (consisting of old men and youths unfit for normal combat) all lie in between. As do police. And as do the most troublesome groups: the “freedom fighters”, insurgents, remnants of the army that are still intact when the rest of the country has been overrun and has settled for peace years after the king went into exile and died there, and so on. They all lie somewhere not quite as legal non-soldiers and not quite as legal soldiers. Aspects of both. Troublesome, that's what they are.

    But nowhere on that list is “criminal”. “Criminal is not really opposed to the above list, because men can be “criminal” while being in any of the above categories: you have a criminal who is legally a soldier, who steals from the army depot or rapes the female soldier in the next barracks, (i.e. without engaging in war crimes), and you can be a criminal who is a legal non-soldier, and so on. So it does not seem like setting “criminal” out as a third category actually sets apart from the first two categories in a way that quite works, that separates into distinct non-overlapping subsets.

  • Tom says:

    George:

    The words “in so far as he is naturally free, and exists for himself” modify the way in which St. Thomas says the sinning man “falls away from the dignity of his manhood.”

    By sinning, man deprives himself of his natural freedom — and in particular, by certain grave sins man deprives himself of his natural freedom from being killed.

    So yes, a strict reading of John's comment leads to a contradiction. But I think a less strict reading, which does not lead to a contradiction, is warranted by the context of the post and comment thread Zippy links to.

  • zippy says:

    On the one hand, all you need to give to arrive at the conclusion “so you cannot torture them” is that they are human.

    True. But the argument then goes “but we can do X, Y, and Z in situation P, Q, and R, so therefore …”

    I could have said “Om” instead of writing a blog post, I suppose.

    Your use of “innocents” seems odd, for example, since the obvious correlate is “guilty”, but that's not what you want.

    I use the term because it is the term the Church uses; and the meaning I assign to it is the meaning that the Church assigns to it.

    My post sets the context as “in warfare”, so the bank robbers etc business is outside the scope of the post.

    A soldier, in this taxonomy, ceases to be a soldier and becomes a criminal when he commits a war crime.

    As for the rest, I can grant for the sake of argument that all of those subcategories fall under one of the three categories – say, that reservists are soldiers – without in any way weakening my own argument. Splitting them into sub genres doesn't help the — I guess I can call them arguments, though they tend to be questions posed as if they were baffling and unanswerable, even though the answers are manifest — of my interlocutors.

    So for the sake of parsimony I think this exposition works well, is true, addresses the concerns of my interlocutors forthrightly and honestly, and settles the matter. That other less parsimonious expositions are possible is doubtless true though.

  • Tommy says:

    A soldier, in this taxonomy, ceases to be a soldier and becomes a criminal when he commits a war crime.

    And that's the specific point that I find the most trouble with. A soldier who commits a war crime is a criminal soldier, just as a civilian who commits a war crime is a civilian criminal. So again, the categories overlap. If you want to say that you are _defining_ the categories so that the soldier ceases to be in the category soldier when he commits a war crime, you are going to have to deal with the fact that (before his war crimes are uncovered) he still wears the uniform he is required to wear by his country, and he may still go around carrying out orders to kill enemy soldiers. Are those subsequent acts now crimes because he is a criminal? Or are they not crimes because he is still a soldier?

    But the issue of what category to put the terrorist into isn't about whether he is criminal in his acts or not. The issue (at least, the reason this part of the argument is raised over and over) is rather in what manner we deal with the criminal acts. A civilian Hitler who commits war crimes by sending his army into Poland unprovoked is not dealt with by putting out a warrant for his arrest and sending the sheriff. You use the army. A soldier who forms an underground conspiracy whose purpose is to rape all the women in occupied Paris born on Tuesday, you send out the law enforcement people after, you don't send a division of the army. Doesn't matter whether the crime is a war crime per se, what matters is the kind of disruption to the social order is involved and the degree of danger in containing that evil. Massive scale disruption requires the army whether the cause is a criminal act by an outside head of state or an uprising by the Maoists or a bona fide declaration of war.

    And obviously, for large-scale crimes by a large, wealthy, well-armed organization operating in occupied territory, you don't send the sheriff (unless you really hate that particular sheriff), you use the army.

    If, after sending the army to deal with these men and half of them are apprehended, you let the men go free because they have not been given Miranda rights even though they are criminals apprehended for crimes and the law says you have to give prisoners detained for crimes Miranda rights, there is obviously a category mistake here. I suggest a discussion of exactly how that category mistake is to be understood.

  • Zippy says:

    While many of those issues are beyond the scope of the post, what I would suggest is that:

    1) Whether we send the Sheriff or the Army after any particular criminal depends on whether the criminal happens to be inside our sovereign territory or outside.

    2) Whether we send either is a prudential judgment with all that that implies.

    3) There isn't anything wrong with military tribunals, as opposed to civil trials, for war criminals.

  • Tommy says:

    Well, I agree with most of that, except that we will also send the army within our own territory if someone invades our territory. It isn't qua inside or outside that is critical, though we have been so blessed for 200 years as to be able to let that fact slide to the back burner.

    many of those issues are beyond the scope of the post,

    Perhaps I made a mistake. I thought the post was at least in part about whether we obliged to treat a captured enemy as either a captured soldier-combatant (i.e. POW), or as a captured criminal. Some equate “captured criminal” with “captured civilian non-combatant criminal”, and so they draw from this division the immediate conclusion that civilian non-combatant prisoners are entitled to all sorts of civil rights, and so all of these rights ought to apply to any captured prisoner who is not a POW. I was trying to point out that this conclusion does not follow.

  • zippy says:

    Some equate “captured criminal” with “captured civilian non-combatant criminal”

    OK, but I thought I addressed that in the post itself through the term “war criminal” and my mention of military prosecution.

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