The concept war crimes is a very dangerous one, contrary to the U.S. Constitution and American legal codes. It is a non-objective, undefined term, and can be used by anyone to condemn and prosecute anyone he chooses.
Trials for war crimes arose against the Nazis and Japanese after World War II. There was no question that the leaders of these two governments were responsible for many atrocities and deserved to be tried as criminals. However, any moral force of the Nuremberg war crimes trials against the Nazis was doomed from the start. One of the trying nations was Soviet Russia-whose government was responsible for even more murders and atrocities against its citizens than the Nazis had committed.
Today, with this fatal precedent for war crimes, we see demands for war crimes arrests and trials against a country like Israel. This nation has been under attack for almost 60 years, through devices such as suicide bombers and terrorists who knowingly use innocent (relatively) women and children as shields. Then, when Israeli attacks against the terrorists result in deaths of women and children, wails and moans of unjustified homicide and war crimes are heard. Even officials of the U.S., such as Bush and Rumsfeld, have been accused to some extent of committing war crimes in Iraq. Our jailing of enemy terrorists in the Guantanamo prison has sometimes been alleged as an incident of war crimes.
Of course, we should not forget Hanoi Jane Fonda. In the late 1960s, her well-publicized characterization of U.S. airmen, doing their job of bombing enemy combatants, as war criminals, gave great comfort to our enemy, the North Vietnamese.
After World War II, there was a rational way, consistent with U.S. and Western criminal codes, for trying Nazis and Japanese. Japanese leaders, all the way up through Hirohito, had been responsible for atrocities against American prisoners of war. Similar accusations of murder could have been brought by British, Australian, and Nationalist Chinese leaders.
With the Nazis, the situation is a little more complicated. French authorities, for example, could have brought charges against Nazis for atrocities against Resistance and underground leaders. Similar charges could have been brought by other countries occupied by Nazis, such as Austria, Czechoslovakia, Belgium, The Netherlands, Yugoslavia, and Greece. Two other countries who suffered greatly at Nazi hands were Poland and the Soviet Union. However, by the time of Nuremberg, Poland was already in Soviet hands. Since Soviet Union had its own barbarous government, this fact should have morally disqualified both countries from participating in any trials against Nazis.
The British suffered from indiscriminate Nazi bombing against civilians during the Blitz. This would have qualified them from participating in murder trials against Nazis.
Israel as a nation did not exist until 1948. When people thus became Israeli citizens, they could make a strong case that Nazis surviving at that time had murdered millions of people who would have become Israeli citizens if they had been allowed to emigrate.
The U.S. situation is a little more complicated. I am not aware of U.S. citizens who were murdered by Nazis, except for a few captured airmen. The latter would have justified trials at least against local SS instigators, although possibly against Nazi higher ups as well.
Many U.S. citizens of Jewish ancestry lost close relatives during the Nazi holocaust. Unfortunately, the latter were not American citizens. Even so, the argument can be made that many Jews who were later massacred had petitioned the U.S. government for asylum. These requests during the early 1940s were shamefully denied by that great “humanitarian”, Franklin Roosevelt. It might represent a stretch, but a good argument could be made that the Nazis thus murdered many would-be U.S.citizens.
Through the above arguments, many nations could have and should have brought criminal charges against Nazi and Japanese leaders. Both mass murder, rape and torture were all legitimate charges under legal codes of most of these nations, especially the U.S
Later on, the U.S. could have brought criminal charges against North Korea and North Vietnam for atrocities against American prisoners of war. Similar murder charges can be brought against any terrorists who were complicit in the 9 11 attacks. Enemy combatants captured in Iraq, Afghanistan (or even the 1982 Lebanese bombing of our Marines) can legitimately be held indefinitely as prisoners of war.
Under this approach, the U.S. does not seem able to bring criminal charges against Serbs, Somalis, Arab Sudanese, or Hutus for their atrocities. However, if it is determined to be in our nation’s self interest, we could certainly attack these groups, to whatever degree seems appropriate.
In summary, the concept of war crimes itself should be condemned by the U.S. and should never be the basis for trying anyone, no matter how despicable he is
