PEACE AND WAR IN OUR TIME

Henry Fairlie attacks the Spectator

Washington DC

The reduction of a complicated problem to a simple either/or choice is usually suspect. It can also be dangerous, as in the meandering editorial pronouncement of the SPECTATOR, on 28 November, on 'War Guilt and Little Lt Calley':

Either wars are to be utterly eschewed and can no longer be considered just instruments of policy; or, if wars are to be allowed, to be declared, to be waged, to be won and lost, then in the conduct of them there can be no room for convention or for any practical morality. If they do nothing else but bring out of obscurity this essential either/or position, the two- handed gropings at Fort Benning will have served a kind of purpose.

If we cannot banish war altogether, we cannot hope to limit its evils.

It was this kind of simplification which—among other motives and causes—paralysed Phis xit during the Se- cond World War. In The Silence of Pius XII, perhaps the most illuminating book to appear in recent years on the relationship between politics and morality, Carlo Falconi describes the Pope's anguished indecision. More than once, he prepared a speech in which he would denounce the special horror of the Nazi atrocities; every time, he drew back.

In August 1942, he was ready to make just such a denunciation at a general audience, condemning the violations against the human person for which Nazism had been responsible, bjit he tore up his speech at the last moment, and is reported to have said, as he did so : 'My duty is to simplify things, not to complicate them'. I find a similar moral evasion in the simplifying of the SPECTATOR. If men continue to resort to wars as a 'just instrument of policy', we cannot expect that `convention' or 'practical morality' will limit their atrocities. But it was exactly by such a self-justifying argument that Pius xit made himself blind to the special character of the Nazi atrocities.

As early as 11 June 1940, Cardinal Tisserant had written to Cardinal Suhard, on exactly this point, complaining of the Pope's damaging and inexplicable silence: Our rulers do not want to understand the real nature of the conflict and insist on supposing that this is a war like wars in the past. But the Fascist and Hitlerite ideology has transformed the conscience of the young, and all those under thirty-five are ready to commit any crime granted they can attain the goal set by their leaders.

But Pius xit refused to make even this distinction—in public—and was content simply to bewail the fact that the Dove of Christ appeared to have left the hearts of men, and to bemoan the general iniquity of war rather than particularly evil atrocities.

I was reading the SPECTATOR editorial on the same day that I received in Washington a

copy of a new book: Nuremberg and Viet- nam: An American Tragedy, by Telford Taylor, who was the us Chief Counsel at the Nuremberg trials, and is now Professor of Law at Columbia University. There are, he says, two reasons for 'the preservation and continued enforcement, as even-handedly as possible, of the laws of war'; or perhaps, he adds, they are 'one basic reason with two formulations'. (One of the values of his book is this effort at precision.) The first is strictly pragmatic. They work. Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them ...

Another and, to my mind, even more im- portant basis of the laws of war is that they are necessary to diminish the cor- rosive effect of mortal combat on participants. War does not confer a licence to kill for personal reasons—to gratify

perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the soldier is indifferent. War is not a licence at all, but an obliga-. tion to kill for reasons of state ...

As Francis Lieber put the matter in his 1863 [us] Army regulations: 'Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God'.

These statements are the opposite of 'an either/or position': they are concerned with the fact that 'enough of the rules are observed enough of the time' to count, that the laws of war, even if they do not eliminate, can 'diminish the corrosive effect of mortal combat', that a man is not either a soldier or a moral being, but is enjoined by the laws of war to attempt to be both.

But let us see what the SPECTATOR means by `two-handed gropings at Fort Benning':

And the groping is with two arms: for just as the prosecution gropes towards establishing the personal responsibilities of the baby-faced Lieutenant who liked it out in South Vietnam, and to deny him the defence of acting under superior orders, so does the defence grope towards establishing the responsibility of the five- star generals, and beyond them, the Presidents of the United States themselves, whose decisions have not only caused the war to continue but have caused it to possess its special nature.

I do not regard this as a two-banded grop- ing 'towards a new morality', but a dangerous confusion of issues: for, whether the politicians and the generals are pursuing a just or an unjust war—in terms both of ob-

jects and of methods—the responsibilities of individual soldiers, whether in the field or as occupying forces, to act also as moral beings must be enforced wherever and whenever it is possible.

When we think of the 'war crimes' trials after the Second World War, we tend to think only of the more sensational Nuremberg and Tokyo trials. 'It would be a conservative estimate,' says Telford Taylor, `that some 10,000 persons were tried . . . from 1945 to 1950, and during the past ten years hundreds more have been, and still are being, tried before West German courts. With a few exceptions, these trials were ex- clusively concerned with violations of the laws of war, and for the most part the charges related to mistreatment either of prisoners of war, or of the civilian popula- tions of occupied countries.' These were the trials of soldiers whose governments were alleged by the victors to be fighting an.unjust war. As victors, the Allies assumed that they were fighting a just war, but this was not allowed to be a sufficient cause for excusing breaches of the laws by individual Allied soldiers.

Telford Taylor deals roughly with those who have excused the Son My massacre on the 'correct' assumption that such un- justifiable killings are bound to occur in war: . . . what they overlook is that in the United States Army, when detected, they have not gone unpunished. During the Se- cond World War, many American soldiers were courtmartialled and severely punished for killing or assaulting civilians in vioption of local law or the laws of war. The fact that we are now fighting in Asia instead of in Europe is hardly a worthy basis for suspending their application.

But the general effect of the SPECTATOR'S editorial is to accept such a suspension in all modern wars as inevitable; and its particular effect is to excuse Lieutenant Calley, assum- ing that he is found guilty of the charges which have been brought against him. 'Little

Lt Calley . . . the baby-faced Lieutenant': these are sentimental, and even offensive, trivialisations of the issue. For there are `little' and 'baby-faced' lieutenants in the American forces in South Vietnam who have not done what he is alleged to have done.

By thus brushing off the trial of a 'little' and 'baby-faced' lieutenant, the SPECTATOR diminishes the huinanity and the discipline of the majority of lieutenants: their effort, to put it no higher, to be guided by 'convention' and 'practical morality', often in appalling situations. Given the draft, most of them are little' and 'baby-faced'; and, however much compassion I may feel for a Lieutenant Calley, and it is quite a lot, my deeper feel- ings of compassion itself, but of respect and admiration as well, are reserved for those in similar positions who have struggled to re- main moral beings, even while performing their duties as soldiers.

One knows, of course, the point to which the SPECTATOR is trying to take us. Wars are willed and yvaged by the state—by an abstraction, I think the editor of the SPECTATOR would say, in the name of other abstractions—and 'little' and 'baby-faced' in- dividuals trying to carry out its will are as much its victims as those whom they in turn injure. I find this a much too convenient ex- cuse for all kinds of rotten behaviour. The fact—the important fact—of the matter is that, even in the policed, computerised. data- banked, eavesdropping, modern state, by far the greater part of the relations of one in- dividual with other individuals are still not under its control or supervision. We are much more on our own in the daily oc- currences of our lives than we find it com- fortable to acknowledge. By far the greater number of occasions on which we cheat, or lie, or steal, or hurt, are not occasions on which we have been ordered by Big Brother to do so, or even when Big Brother is watching.

This is as true of soldiers as of civilians. especially in combat. A lieutenant and a sergeant and a private are frequently on their own, and the moral decisions which they take are only tenuously connected with any superior decision. either that the war should be waged or what the nature of the war should be. It is not the state—unless it is peculiarly atrocious, as was the Third Reich—which orders a lieutenant. when face to face with an unarmed two-year-old child, to shoot it. There are too many stories of too many soldiers—not least among the Germans during the Second World War—who did not have 'itchy fingers', who continued to respond as moral beings even in the heat of battle, for us to find excuses for a little' and 'baby-faced' and 'itchy-fingered' lieutenant in a caricature of what otherwise may legitimately be called 'reasons of state. and legitimately be obeyed.

War may be an atrocious business; that does not mean that every atrocity is justifiable, or even understandable. Telford Taylor, in a footnote, tells the story of a Confederate general, Jubal Early, who in 1864 drove back the forces of a Union general, David Hunter, until his own troops reached the town of Chambersburg, in Pennsylvania. Early ordered that the town be burned, by way of reprisal, but his regimen- tal commander in Chambersburg, William E. Peters, refused to carry out the order. He was relieved of his command, and placed un- der arrest while others did the burning. There were no 'reasons of state' for burning the town: the state did not order Jubal Early to burn it. Even in a just war, as both the Union and the Confederacy—with equal reason—believed theirs to be, the area of in- dividual decision, beyond the control or supervision of the state, is extensive. William E. Peters accepted his individual responsibility within that area: we should do nothing to ease the burden of that responsibility on any individual.

We are dealing with a complicated pro- blem. If superior orders are not in themselves considered to be a sufficient defence, there are nevertheless 'two quite different factors', as Telford Taylor says, which have to be taken into account: 'One of which is appropriate by way of defence. and the other only in mitigation. The first is essentially a question of knowledge, and the second a question of fear.' As far as the first is concerned, 'especially in combat situa- tions, there are bound to be many orders the legitimacy of which depends on the prevail- ing circumstances, the existence and sufficiency of which will be beyond the reach of the subordinate's observation or judg- ment'; and, as for the second, 'it is one thing to require men at war to risk their lives against the enemy, but quite another to ex- pect them to face severe or even capital penalties on the basis of their own determination that their superior's command is unlawful. Such a course calls for a high degree of moral as well a., physical courage: men cannot be judged too severely for falling short and mitigation of the punishment is ap- propriate.'

These complicating personal factors are carefully woven into the current field manual of the us Army, 1956: a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it con- stitute a defence in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defence to an allegation of war crime, the fact that the individual was acting pursuant to orders may be con- sidered in mitigation of punishment.

b. In considering the question whether a superior order constitutes a valid defence. the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be ex- pected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders.

'These principles are sound', comments Telford Taylor, 'and the language is well chosen to convey the quality of the factors, imponderable as they are, that must be assessed in a given case.' In fact, one should notice that, in the first sentence and in the last of these two sections, designed to take into account the actual situations of soldiers in the field, the emphasis is still on the fact that there are such acts as war crimes, and that orders may be unlawful.

The difficulty of the SPECTATOR is that it does not make the careful distinctions which some of the judges, more than others, and some of the counsel, more than others, at- tempted to make even at Nuremberg and Modern civilisation puts limitless weapons of destruction into the hands of mankind ... Every recourse to war, to any kind of war, is recourse to measures which by their very nature are criminal. War is inevitably a web of killing, invasion, loss of freedom, and destruction of property ... Human reason demands that the law should not be considered adequate if it punishes only petty crimes of which lesser people are guilty. The law must also reach the men who seize great power and deliberately combine to make use of it to commit an evil which affects every home in the world. The last step of preventing the out- break of war,. which is unavoidable with international lawlessness, is to make statesmen responsible before the law. Let me say it quite clearly: this law is here first applied to German aggressors, but it includes, and must do if it is to be of service, the condemnation of aggression by any other nation, not excepting those who now sit here in judgment.

Mr Robert Jackson, Chief Prosecutor of German War Criminals before the International Military Tribunal, Nuremberg, 1945.

Tokyo. (I may perhaps be allowed to say. in passing, that some of my earliest journalism included leading articles for the Manchester Evening News in 1946, severely criticising the Nuremberg and Tokyo trials.) Perhaps the most unfortunate influence on those trials was the presence of Robert H. Jackson, who took leave from the Supreme Court of the United States to act as his country's chief prosecutor. 'Robert Jackson's extraordinary gift for the written word projected the terri- ble events and searching issues in un- forgettable language', says Telford Taylor in a double-edged compliment, because it was exactly this kind of heroics that was not re- quired. and the unfortunate result is a score of mindless passages such as that quoted by the SPECTATOR. But, in spite of the obnoxious atmosphere in which the Nuremberg and Tokyo trials took place, attempts were made to draw important distinctions, capable of legal formulation; and it is with these that the SPECTATOR, and others today, are careless.

The most important—and, in my view, the most retrograde—action of the Nuremberg and Tokyo tribunals was to establish that there were acts—in fact, they again and again seemed to be condemning only in- tentions—which could be designated as 'crimes against peace'. This was a retrograde step because it implied that the victors in the war had won, not only by might, but by right. These 'crimes against peace' were defined in the London Charter, from which the Nuremberg and Tokyo tribunals ultimately drew their authority, as the 'plan- ning, preparation, initiation and waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances'.

But who could be held to have been privy to the 'planning, preparation, initiation, or waging' of such a war? Indeed, if the victors were in a vengeful mood, who could not be? 'It takes a number to plan and many to wage war', says Telford Taylor, 'but knowledge of its aggressive or defensive character may be confined to a small group, and even among the members of the inner circle there may be disagreement'. Karl Doenitz, for example, was only a commodore and commander of the small u-boat arm when the war began, and the Nuremberg Tribunal found that he had neither been present at Hitler's con- ferences nor informed about his plans; yet it convicted him of 'waging' aggressive war because his submarines 'were fully prepared to wage war'. By any standards of justice, such a conviction is insupportable; and a later Nuremberg tribunal acquitted com- manders of much higher rank than Doenitz on the same charge, on the obviously just ground that they were not at the 'policy level'.

Telford Taylor points out that none of the sixteen persons—German and Japanese —who were convicted only on the aggress sive-war charges received the death penalty, and he adds that this 'restraint on the part of the courts no doubt reflected the unprecedented nature of the charge'. The fact is that there is no way in which such a charge can be legally valid, however politically convenient and morally self-satis- fying it may be. (Even if Hitler made his intentions plain in document after document, all of which were available to the Nuremberg tribunal, he stated those intentions in terms of waging a defensive and even a just war.) I therefore find the SPECTATOR'S belief that we are 'groping towards a new morality' by trying to establish a legal responsibility which can be settled on the politicians and the generals, not only confusing, but specious and dangerously so.

Nothing is more telling in Telford Taylor's book—and he is far from being sympathetic to the American enterprise in South Viet- nam—than his demonstration that it is usually impossible, as in the Middle East to- day, to determine who is the aggressor, or even to decide what kind of evidence should be admissible in such a case. At least, he

argues, at Nuremberg and at Tokyo, the vic- tors who sat in confident judgment had an

unparalleled number of captured German and Japanese documents at their disposal; and even is worth adding, a number of American polemicists are today claiming that the Japanese attack on Pearl Harbor was in response to the 'aggression' of the Roosevelt

administration, a claim whose egregiousness (at a time when the new Japan is beginning to flex its muscles) I find as alarming as the myth of the 'Carthaginian peace' imposed at Versailles.

Anyone who has read the 615-page col- lection of essays edited by Richard A. Falk, The Vietnam War and International Law, or the even more stringent book by Roger H. Hull and John C. Novogorod, Law and Viet- nam, must recognise, not only how complex the issues are, not only the valde of in- ternational law in helping to clarify them, but the importance of the fact that the

criteria which international law seeks to establish are peculiar• to it : distinct, even

though they are not separate, from political and moral considerations. To invite a domestic courtmartial at Fort Benning, operating within its own established rules of evidence, forming its judgment on charges brought under the regulations of the us Army, to concern itself with the political and moral responsibilities of politicians and generals whose decisions, it is alleged, 'have not only caused the war to continue but have caused it to possess its special nature', is to misunderstand the proper and possible func-

tion of law : in-this case, military law. It may or may not be possible under international law to convict the leaders of the United States on these charges—although Roger Hull and John Novogorod, after the most strenuous and disinterested examination, decide that it is not, as do some of the essays in Richard A. Falk's collection—but the issue is not one which has any place at Fort Benning, and is not one which can be facilely formulated.

The international community, and our sense of it, have both been weak since the collapse of the European system in 1914 and the emergence in 1917 of a great power which denied the principles on which it was established. But some sense of it has miraculously survived, and has played a part in the self-denial of the nuclear powers in the use of their weapons for almost a quarter of a century. In his classic exposition, The Theory and Reality of Public International Law, which is also a passionate defence of it, and of our sense of an international society, Charles de Visscher attacks those who would revise the laws of war in order to ac- commodate the limited use of nuclear weapons: These attempts have the serious fault of cultivating the illusion in some quarters that the use of such weapons can be sub- jected to systematic regulation and the traditional criteria, in a word that it can be tamed. Such an illusion is dangerous, it can only attenuate the salutary fear of a war which would in fact be one of an- nihilation. There is no place here for anything but unambiguous condemnation, out-and-out prohibition.

My criticism, both then and now, of the Nuremberg and Tokyo trials is that the invention, by the victors, of the category of `crimes against peace' asked international law to perform so ambiguous a function that it must bring its unambiguous functions into disrepute. I believe that this has to a large extent happened.

For the tenuous promise that it may be possible to identify and condemn politicians and generals for willing and waging aggressive wars, the SPECTATOR, and those whose voice it echoes, ask us to refuse to identify and condemn those who have trespassed against the acknowledged laws of war. That is exactly what the SPECTATOR says in the either/ or proposition with which it en- ded and I began. I find this attitude either ignorant or reckless, or both; above all, perhaps, I find it neglectful of the clear—and even lapidary—distinctions which one once felt one could expect of a Cambridge mind.