Crimes of War

October 10, 2001

H. Wayne Elliott, S.J.D.
Lt. Col. (Ret.) U.S. Army Former Chief, International Law Division; Judge Advocate’s General School, U.S. Army
Interviews and Introduction by Marguerite Feitlowitz

I do not see the sentiment expressed in the quote as a "paradigm shift in the nature of war."

Modern war has always been fought on several "fronts." Making it difficult for the enemy to finance his war effort has a long and established history. The U.S. makes it very difficult, and often illegal, to engage in trade with a warring State. Following the money and making it unavailable to the enemy is nothing new. Clearly, the United States could track any money in any source or institution where that money is intended to finance a criminal enterprise directed against the United States. If anything, in my opinion, the fact that the United States is now engaged in armed conflict (whether properly denominated a "war" or not) would warrant even greater use of these investigative tools. Not only have criminal acts been committed against the United States which would warrant arrest and trial of the offenders in peacetime, but, even under the law of war, these acts would be criminal and those who perpetrate them subject to arrest and trial.

Giving the police a role in the war effort is not new. During World War II, the FBI was heavily engaged in identifying espionage and sabotage directed against the United States. The Geneva Conventions even suggest that the participation of law enforcement is expected in the case of war crimes. In an article common to all four Conventions there is a requirement that each Contracting Party "search for persons alleged to have committed , or to have ordered committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts." Thus, the Geneva Conventions anticipate a role for domestic law enforcement in the punishment of war criminals who commit grave breaches.

That war criminals are to be treated as criminals and not simply as Prisoners of War is supported by the practice of the Allies in World War II:

In April 1945 the Joint Chiefs of Staff directed Eisenhower to "search out, arrest, and hold, pending receipt… of further instructions as to their disposition, Adolf Hitler, his chief Nazi associates, other war criminals and all persons who have participated in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes." Quoted in William G. Downey, The Law of War and Military Necessity, 47 A.J.I.L. 251, 257 (1953). The verb "arrest" is instructive. Prisoners of war are not arrested; they are captured or surrendered. Arrest is an action reserved for suspected criminals. The apprehension of war criminals was clearly part of Eisenhower's overall military mission.

(H. Wayne Elliott, The Trial and Punishment of War Criminals 102, footnote 58, (unpublished S.J.D. Dissertation, 1997).

War always brings some restrictions on liberties. That has certainly been true in the wars of this country. But, these restrictions, whether somewhat onerous, i.e., the draft; or less severe, i.e., gasoline rationing, have the primary purpose of speeding the end of the conflict and thereby a "return to normalcy."

If the Taliban or Bin Laden have some particular idea of who "deserves" to inhabit the world, that hardly means they have the legal right to fulfil that dream by making war on innocent civilians. The attack on public buildings caused the deaths of thousands of innocent people. Under the domestic law of the United States, these attacks were murder. Under the law of war, these attacks were "war crimes." Either way, civilized nations must understand that those who make war on innocents are properly subject to punishment and that punishment can be on the field of battle or in the courtroom.

Victory over those who would make every American a target is imperative. There is a role for the law in bringing about that victory.