By David MacMichael*) ©

(Talk given at Pennsylvania State University, 19 October 2004)

To speak of war crimes and the United States in the same breath is, in polite circles, unacceptable. We, the United States, simply do not commit war crimes. Such acts, by definition, are only committed by our enemies in war. The official historical record bears this out. After all, the United States has been the winner in most of its wars, and it is, of course, the winner who can press charges against the loser and bring him to trial. After World War II at Nuremberg it was only Germans who were in the dock-no Americans, no Russians, no British, no French. Likewise in Tokyo, only Japanese faced charges, not Americans, not Chinese, not British, not Australians, not Thai (although in that last case our British and Australian allies were sorely disappointed that Washington did not allow them to press charges against those Bangkok leaders who had collaborated with Japan in the building of the infamous death railway through Thailand and Burma in which many thousands of their troops, prisoners of war, perished.) Point is, though, that since no charges of war crimes were filed against US forces, obviously, no war crimes were committed by those forces. Case closed.

Saying this, of course, is not meant to suggest that any acts committed by the US or its allies during the second World War could be in any way compared to the brutalities of the Nazi regime, notably the Jewish holocaust, or the Japanese military leadership-the rape of Nanking, the Bataan death march. Indeed, as Justice Robert Jackson of the US Supreme Court, presiding at the Nuremberg trials made very clear, the one greatest war crime of the German Nazi regime, was its launching aggressive war in the first place. That was the great violation of international law, the war crime par excellence. And yet, and yet, there was, after all, Hiroshima and Nagasaki. There were, after all, the firebombings of Tokyo and of Dresden and Hamburg, with their many hundreds of thousands of civilian fatalities.

No mention of these as war crimes. Indeed, there was no mention of the German bombings of Rotterdam or Coventry, or the U2 missile attacks on English cities at the end of th war,either. This despite the fact that the existing Hague Conventions on the laws of war made clear that the intentional targeting of civilian population centers by aerial bombardment was prohibited. Article 25 states: "The attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended is prohibited." In this context, perhaps I should point out that among the most ardent proponents of using airpower directly against the enemy's civilian population in order to break the national will to continue the war, a sort of reversion to the siege tactics of ancient warfare, had been the now mythologized American theorist of aerial warfare, General Billy Mitchell, a man one might call the spiritual father of General Curtis LeMay, who effectively created the new United States Air Force after World War II. Mitchell's British counterpart was Air Chief Marshal Harris, who commanded the RAF during the second world war. In other words, what had once been, and, in fact, what was at that time, a war crime, a violation of international law, directly attacking the civilian population of the enemy nation became and remains a central element of the American way of making war. Mutual assured destruction, we said during the Cold War. Shock and awe, as we say today. And the civilians? Need you ask? That is collateral damage.

For an example, we might recall the US attack on Panama in 1989. Whatever the provocations of General Noriega, whatever the rationale put forward by the Bush I administration, the fact remains that the United States, without any prior declaration of war or warning to the government of Panama, announced the opening of hostilities by a night bombing attack on the Panama City barrio of El Chorillo resulting in the deaths of hundreds of civilians and the destruction of their homes and property. One can accept that the bombing-undoubtedly in violation of Article 25-did reduce the will to resist of the survivors. Maybe it even saved the lives of some US servicemen. But was it a war crime. You tell me.

As the British poet Roger Woddis wrote some 30 or so years ago:

Throwing a bomb is bad,
Dropping a bomb is good,
Terror, no need to add,
Depends on who's wearing the hood.

Now war, just or unjust, pre-emptive or in response to attack, defensive or aggressive, is by its very nature brutal and homicidal. The object, after all is to kill one's fellow human being, although the enemy, almost by definition is, we all must understand, something rather less than human. And true enough, if we don't do it to him, he will surely do it to us. It is somewhat unreal, or unrealistic, to speak of laws of war and war crimes. Oxymoronic, one might say.

However, at least since 1648 and the end of the Thirty Years War that had destroyed about one third of the population of western Germany, even as the weapons of war have become ever more lethal and indiscriminate and long range-no more of that "don't fire until you see the whites of their eyes" stuff-Europe and then the rest of the world have attempted to, if not outlaw war, at least to set limits to how it can be waged. To oversimplify, the objective of a code of war is to limit deliberate killing to battlefields where regular forces, identifiable by being uniformed, would only direct their weapons at each other. If captured enemy soldiers were to be treated humanely. Even ununiformed, irregular forces-guerrillas or partisans-enemy combatants in the current jargon-eventually came under the protection of the code and had to be treated humanely, as the Hague Conventions entered into at the end of the 19th century spelled out. The civilian population, its homes and its property could not be targeted. If towns and cities were captured, looting was forbidden, the occupying power was responsible for police and good order. Needless to say, the rules were observed as often in the breach as in fulfillment. However, I think it can be argued that in Europe, at least, where the dynastic rulers of the nation states which came into existence during the 18th and 19th centuries were usually each other's first or second cousins, and at a time when the religious passions that usually fuel really nasty warfare had cooled, there was some progress toward the goal. This was true to a very great extent even during the Wars of the French Revolution.

It should also be said, as we take this very superficial historical tour of the subject, that even as Europe which, with its Guns, Germs and Steel, was dominating the globe, that the rules which applied in Europe were not well adhered to during the establishment of colonial rule over what Kipling called "the lesser breeds without the law." Certainly, Spain during the 16th and 17th century had set the standard in its decimation of native American populations. The English in North America, thanksgiving day legends and Pocahontas stories to the contrary notwithstanding, were as successful and determined in eradicating the heathen redskins on the territory they settled. And it should be noted, by the way, that Pizarro in Peru and Lord Geoffrey Amherst in the British North American colonies were not above deliberately using biological warfare methods to wipe out the redskins. After gaining independence, the new United States took roughly only a century to all but eliminate the native American population. The millions who had existed when the Mayflower landed had been reduced to not much more than 100,000. The term genocide was not then in use, but it was a concept and a method of making war with which the US was not unfamiliar.

The campaigns fought by the embryonic United States Army during this period are, I think, important for understanding the military ethos of our country and necessary for considering the subject of war crimes. When engaged with Great Britain (War of 1812) or even Mexico in international conflict, the laws of war were generally adhered to. The Civil War was different. In that struggle, the Union forces, in pursuit of the goal of unconditional surrender of the Confederacy (remember that in conventional war one presumes that the enemy nation, even if defeated, will continue to exist) and its destruction, resorted to what we today call total war, employing scorched earth tactics. When General Phil Sheridan finished the campaign in the Shenandoah Valley in 1864, he was able to report proudly that so thorough had been his destruction of that granary of the Confederacy that a crow could not fly from one end of the valley to the other; it would starve to death. After taking and burning Atlanta, General Sherman famously marched toward the Atlantic and northward saying, "Now God help South Carolina." In fact, these were the same total war tactics that were employed against the Indian tribes. Their homes and farms, and in the case of the plains Indians, the buffalo, would be destroyed, and when they resisted, they were slaughtered-men, women, and children--and the survivors confined to reservations-concentration camps, if you will. The Indian, you see, was not really human-not white. For lack of time, we will not discuss here the US military genocide-not too strong a word-carried out by the US military during the suppression of the Philippine insurrection after the Spanish-American War.

I think you can see by now where this is going. Two themes emerge. One is a United States doctrine of warfare coming out of the Billy Mitchell heritage and applied most notably during the Second World War. Massive aerial bombardment of the enemy's civilian population to break that nation's will to resist. In other words direct and deliberate military attack on that population in violation of both the letter and spirit of the basic law of war. Inherently, a war crime.

Second, coming from the long era of the Indian Wars and, I am afraid, out of the racist roots of American society, is the notion that the rules of warfare as they would be followed (with the aerial bombardment exception) in any conflict with European (read white) nations, do not really apply when dealing with ethnically and culturally different nations. Granted, all opponents in war are dehumanized. In two world wars our German cousins became Huns and Krauts, but the distinction was not really deeply held. The Japanese, though, were not our cousins at all. Those resident here, even those who were citizens, were confined to concentration camps. And, while it is true that German cities were firebombed, we reserved the A-bombs for the Japs.

Our post-World War II wars (overlooking for a moment the Cold War itself) have essentially been with Asian nations-North Korea and China, Vietnam-and now with an Arab state-Iraq. The Asians, you will recall, were Gooks and the Arabs are Ragheads. The Vietnamese, it is to be remembered, did not have our sense of the value of human life. Our Arab opponents, as Assistant Secretary of State for Intelligence, General Jeremy Boykin, reminds us worship a God definitely inferior to the God whom we worship. Can, or should, the rules of war adopted for, or, at least acknowledged to exist for regulating armed conflicts among civilized peoples apply when we are engaged with such? The situation today, is, it almost goes without saying, complicated by the fact that the wars we are currently waging in Afghanistan and Iraq are declared to be a totally new category. They are not wars against a state or against the inhabitants of a defeated state who have, under international law, a right to take up arms against the invading or occupying power, they are, we are told, wars, or a war, against terrorism. In the case of Iraq, since we made war, not against a state, but against a regime, the international law waters are even muddier. Those who are in arms against us are then, by definition, terrorists, at most, illegal combatants who, according to us, have no rights at all under the laws of war, or even if considered as criminals, no legal rights whatsoever. As we declared with regard to Afghanistan especially, even a recognized government that is harboring terrorists by not taking what we define as sufficient actions against them is outside international law and we can, therefore, invade the country and do as we please.

We can, according to the strained to the breaking point interpretations of international law that presidential counsel Albert Gonzalez and others in the Justice and Defense Departments have conjured up, by declaring those individuals captured there "enemy combatants" and not prisoners of war, confine them in ways contrary to law, transport them thousands of miles away from where they were captured (Guantanamo and other places), subject them to torture. Needless to say, absent the unlikely possibility that the US is, in some conventional sense, defeated, we need not suspect that Mr. Gonzalez or anyone higher up in the chain of command than PFC Lyndie England or her paramour, Sergeant Grane, will face any charges. Certainly not, Secretary of Defense Donald Rumsfeld who, as former Secretary of Defense James Schlesinger established in his recent report on the Abu Ghraib prison abuses, authorized "tougher" methods of interrogation, nor, will we be likely to see in any international war crimes dock-or even a US military court martial-such as former Guantanamo prison commander Major-General Geoffrey D. Miller, who applied the new Rumsfeld guidelines there and then, on DoD orders, carried them to Iraq and gave them to the US commanding general there, Ricardo Sanchez, who signed a memorandum authorizing a dozen interrogation techniques that went beyond the US Army standards under the Geneva Conventions of 1949. I alluded to an international war crimes dock possibility solely to point out that the United States, under the current administration has rejected the treaty establishing the International Criminal Court specifically established to try individuals charged with war crimes, genocide, and crimes against humanity. Given standard US policy regarding international tribunals for over a century, we can presume that no succeeding administration would entertain the possibility, either.

Indeed, the United States not only rejects the jurisdiction of the ICC for itself, but it has established a policy of cutting off certain kinds of military and law enforcement assistance to countries which have agreed to the jurisdiction of the ICC if they do not agree to making US citizens immune from the court's actions, that is, they will not turn over US citizens on their territory who have been charged with war crimes, to the court. In other words, a double standard is set-immunity for US citizens, prosecution for everyone else. One wonders what the US is afraid of?.

I also referred here to command responsibility. As I said, unless the US is defeated in a traditional sense, there is no likelihood that any senior military or civilian official will be called to account for any war crime. The case of Henry Kissinger-wanted by law enforcement in more than one country-well illustrates the point. Perhaps some or most of you would agree that only the actual torturer or murderer of a prisoner, or the senior officer on the ground when such an incident occurred should be liable.

However, as a matter of both international and US law and precedent, it might be useful to recall the case of Japanese General Tomoyuki Yamashita. General Yamashita, the conqueror of British Malaya in 1941, was sent to command Japanese forces in the Philippines early in 1943. As MacArthur's forces began their landings, Yamashita was isolated in Manila with, as the US command boasted, no means for controlling or even communicating with the Japanese forces throughout the archipelago which, even as the war was ending, committed atrocities against the Filipino population. Yamashita was captured on 2 September 1945 and MacArthur ordered him tried for war crimes.

Interestingly, during his trial in the Philippines on the general charge of having violated the laws of war, no evidence was presented showing his ordering any of the specific crimes described to the court nor even that he was aware of them. It was fully demonstrated that, in fact, he had no means of controlling the forces nominally under his command. Yet, he was found guilty on grounds that as the commander he was ultimately responsible for the actions of those subordinate to him and ordered to be hanged. His case was appealed to the US Supreme Court which heard the case in January 1946. By a margin of 7 to 2 the justices found that merely because he was the commander, he was responsible. He was hanged on 23 February, 1946.

I point this out, of course, simply to show that the precedent in United States law is that the overall commander is responsible for violations of the laws of war committed by his troops. Commander-in-Chief Bush might consider that. I am sure, though, that he will not, nor need he, lose any sleep over it.

While we are waxing historical about war crimes and the American way of making war, it is impossible not to refer to Vietnam. The last US forces left there almost 30 years ago, scrambling undignifiedly into helicopters plucking them from the roof of the US embassy in Saigon, but because of the wartime service there of the Democratic candidate for president, John Kerry, and his later denunciation of, among other things, war crimes committed in the conflict by US forces, Vietnam vies with Iraq as an issue. Veterans groups have bitterly denounced Kerry for his apostasy, for even hinting that he could believe that any American serviceman of any rank could ever do anything that might be considered a war crime. Kerry himself has backed away from his 1971 testimony to the Senate Foreign Relations Committee, telling commentator Tim Russert a few months ago that he was very young when he made those statements and might speak differently today. Well, he wasn't running for president in 1971, either.

On August 21 the Washington Post ran a front page article headlined, "Some Veterans Still Bitter at Talk of Crimes," reporting outrage that Kerry 33 years ago had spoken about alleged atrocities committed by US forces. When I read this lengthy article I was somewhat surprised to see that the Post staff writers went on for paragraphs about the outrage but nowhere indicated that, in fact, during that long and brutal struggle some US forces had committed some pretty bad acts. It appeared that by the omission the Post was endorsing the attack on Kerry or at least tacitly endorsing the view that no US forces had committed war crimes..

This seemed somewhat odd to me because only last April the Toledo Blade had won the 2004 Pulitzer Prize for journalism by revealing in a well-documented series of articles that in 1967 the 101st Airborne Division had created a so-called "Tiger Force" ordered to kill all Vietnamese males in Quang Ngi Province. According to official US Army records unearthed by the Blade reporters, Tiger Force killed many hundreds of Vietnamese and, yes, some soldiers of that force did proudly wear necklaces of the ears they cut from their victims. To its credit, the Army had investigated that incident and identified the perpetrators of the crimes; to its discredit, it chose not to prosecute any of them.

Also in recent months, former Senator Robert Kerrey of Nebraska, found it hard to explain how he accepted a Bronze Star for leading a night raid on the village of Thanh Pong on March 25, 1969. Then Lt. (jg) Kerrey's SEAL team was supposed to capture or kill the alleged Viet Cong-supporting mayor of the hamlet. The mission was a total failure-the mayor was never found--, but Kerrey and his SEALs, who met no resistance, did manage to kill 21 people, including 14 women and children, all of whom appeared in his after action report as "21 VC KIA."

At Christmastime in 1968, Colonel George S. Patton III-son of the WWII general-then commanding a brigade in Vietnam, sent out Christmas cards showing dead Vietnamese stacked up Abu Ghraib-fashion, with the message "Peace on Earth" signed by him and his wife.

And then there was Project Phoenix, a joint CIA and US military program to eliminate civilians supporting the Viet Cong. CIA director William Colby later testified to congressional committees that at least 20,000 civilians had been extra-judicially executed-that is, assassinated-by US forces or by Vietnamese government forces under US direction and control. Other estimates by respected researchers indicate that the victims may have totaled 40,000.

And then, of course, there was My Lai. There C Company of the 11th Brigade of the Americal Division in 1967, under the command of Captain Ernest Medina, entered the village without meeting resistance. There C Company methodically killed between 347 and 504 of the unarmed inhabitants. At least 100 of them were lined up in an irrigation ditch by 2dLt William Calley and shot to death by his GIs. The slaughter only ended when the shocked crew of an Army helicopter gunship landed and at gunpoint forced C Company to cease and desist.

An isolated incident it has been argued. Yet, in truth, it was far from an exceptional case. And it might never have come to light had not a troubled Americal Division enlisted man, Tom Glen-who had not been present-heard about it from his comrades. After rotating out of Vietnam and back in the US, he wrote to the US commander in Vietnam, General Westmoreland. His letter only mentioned My Lai as "part of the abusive pattern that had become routine in the Americal Division."

Months later, Headquarters MACV in Saigon assigned a staff officer, a Major Colin Powell, to follow up on Glen's letter and investigate. He concluded there was nothing to Glen's accusation. Powell's report stated: "[I]n direct refutation of this portrayal is the fact that relations between the American soldiers and the Vietnamese people are excellent." One cannot resist noting two things here. One is that Powell's report was issued only months before the 1968 Tet uprising of quite a few Vietnamese people whose relations with the American soldiers were not exactly excellent. The other is that Powell, now Secretary of State, as his February 2003 presentation to the United Nations on Iraq's alleged possession of prohibited weapons and imminent threat to the region and to the United States itself demonstrates, had learned early that reporting what one's superiors want to hear is career enhancing.

My Lai was not, as Glen's letter made clear, an isolated incident, at least in the Americal Division. It may not have been even the most horrendous. According to the late Army journalist Ron Ridenour who first tried to publicize the story, the Saigon press corps told him they weren't interested because this sort of thing was too routine.

We might also note here, since Iraq's use of chemical weapons in its war with Iran 20 years ago-and, it is also true against Shiite rebels after that war-is one of the charges used to justify, or, at least, rationalize, the US invasion of that country, one cannot, when speaking of Vietnam and the actions of the US military there overlook our massive use of the chemical weapon Agent Orange. The indiscriminate spraying of this extremely toxic and persistent herbicide to destroy the crops that fed the Viet Cong and the jungles they used for concealment was, by anyone's definition, chemical warfare. Even today, as the World Health Organization reports, the people of Vietnam suffer, among other adverse effects of Agent Orange, huge numbers of gross birth defects-the greatest rate in the world-and will continue to do so for the foreseeable future. In addition, large areas of the country have been made permanently unsuitable for agriculture.

In addition to this, a regular tactic of US forces in the tunnel warfare that was a feature of combat in the Vietnam War, was to spray tunnels in which enemy forces were suspected of hiding with great quantities of tear gas. Tear gas, regularly used in this and other countries, as some of you may know, or even have experienced, for crowd control, is non-lethal and produces no permanent disabling effects, and is thus, under international law, not classifed as a poison gas. However, when used in enclosed spaces it becomes a poison gas. (And, incidentally, during the Iraqi suppression of the Shiite rebellion in 1992, according to the recently released Duelfer Report of the Iraq Survey Group on Saddam Hussein's so-called weapons of mass destruction demonstrable past programs and alleged future intentions, while a very small amount of sarin gas was used without much effect, tear gas was the main chemical used). I will expand a little bit more later on chemical warfare and US past history, but will return here to the specific question of war crimes and Vietnam.

One can appreciate that many Vietnam War veterans, and certainly most United States citizens, want to believe that our country and its military forces fought nobly and in complete compliance with the laws of war in Vietnam. And, of course, one need not overlook the fact that our adversaries there certainly committed their share of atrocities. One can understand that some veterans and others resent John Kerry for having had the temerity 33 years ago to speak for a group of veterans who saw things somewhat differently. Indeed, one can understand Vietnam Veteran Kerry, now a presidential candidate who wants the votes of veterans and patriotic citizens, for his own current partial disavowal of his Senate testimony.

But let's face it. My Lai happened. The 101st Tiger Force was unleashed. Colonel Patton sent his Christmas Card. Robert Kerrey and his brave lads thought they heard some shots in the dark and slit the throats of infants and old women as they fled back to their boats. Project Phoenix happened and Agent Orange happened and is still happening. War, as they say, is hell.

A word or two, I think, is necessary here on the difficulties of adjusting the laws of war-whether these be customary or codified-to changes in the availability of deadly technology. As far back as the 13th century, the Catholic Church was trying to have the newly devised and lethal crossbow outlawed. Needless to say, it was as unsuccessful in that endeavor as the current Pope John Paul II was in blocking the US invasion of Iraq by declaring it an unjust war. So much for moral suasion. (Speaking of moral suasion, and this may be a little unfair, but since some American Bishop have chosen to insert themselves into the current election process by, essentially, demanding that Catholics not vote for a candidate-and I think they mean Kerry-who would not make both abortion and stem cell research illegal, I think we should be allowed to express some surprise at the fact that when the Vatican declared the US invasion of Iraq an unjust war, these bishops did not see fit to pronounce anathema on those American officials who ordered the invasion or the troops who participated in it. Perhaps they remembered that just 25 years ago when El Salvador's primate, Archbishop Oscar Romero told Salvadoran soldiers that they should refuse orders to kill their fellow countrymen, he was shot down at the altar of his own cathedral. That also, by the way, is related to US policy toward war crimes.)

One might argue that the Hague Conventions of the late nineteenth and early twentieth centuries that met to establish recognized and internationally agreed upon parameters for the conduct of armed conflict and, not incidentally, means for preventing armed conflict through regularized means of arbitration, were, at least in part, a response to the new technologies that were revolutionizing warfare. Perhaps the most dramatic of these was the invention of practical automatic weaponry. Even hardened colonialists were appalled by the slaughter of middle eastern and African tribal forces by the new machine guns. Resistance, even by the most hardened and warlike natives was futile. As the British poet rhymed: "Whatever happens, we have got, the Maxim Gun, and they have not." And then, of course, there was the possibility of better things for better killing through chemistry, as the DuPont Company might have, but of course did not, put it.

At any rate, it is worth quoting the Second Hague Convention Annex on the Laws and Customs of War signed by, among others, the United States on July 25, 1899, Article 22: "The right of belligerents to adopt means of injuring the enemy is not unlimited." "It is especially prohibited to employ poisoned gas or poisoned arms...[or] to employ projectiles of material of a nature to cause superfluous injury."

Alas, just as the Church had been unsuccessful in preventing the crossbow from use in war, the pledged word of all the kings and queens and emperors and presidents at the Hague did not suffice to prevent their going madly and gladly to war in 1914 and, barely a year into that war, beginning the "especially prohibited" use of "poisoned gas." We must note here, of course, that it was Germany that introduced the use of first chlorine and then mustard gas, but all the participants soon joined.

It should also be noted that the Hague Conventions had also been aware of the potential of emerging aerial technology and placed restrictions on the use of balloons and airships. A few years later the Wright brothers, questioned about the utility of their new fixed wing aircraft, responded that obviously a major use would be in war, and, indeed, every European nation entered the first World War with some sort of an air corps. By the end of the war the Allies had the first of what we might call strategic bombing squadrons ready to take off and bomb German cities and their civilian populations to break the national will. Billy Mitchell was gravely disappointed that the November armistice thwarted his plan to demonstrate what airpower could do.

The point here, and I guess it has been made here already, is that the laws of war, insofar as they are intended to restrict the actions of belligerents-as per Article 22 of Hague II-have never, at least in modern history, been well observed during time of war. It is painfully obvious to the leaders of any nation that if the alternative is national defeat or to obey the law there is really no choice. To cite a current example, the Duelfer Report argues convincingly that Saddam Hussein's Iraq had, with the more than tacit support of the United States, gone to war with Iran and found itself facing catastrophic defeat. At that point, Iraq used its chemical warfare weapons to turn back Iran's massed infantry assaults and its long range missiles to bombard Iran's cities. It was commit war crimes or be destroyed.

One should recall here the continuing debate over the US decision to use the atom bomb, certainly a missile or projectile designed to cause superfluous injury, as prohibited by Hague II's Article 22, on an obviously already defeated Japan. The US victory was assured. Hardly a case of violate international law of war or be destroyed. A war crime? You decide.

In any case, the law of self-preservation is, perhaps, sufficient excuse for violation of the agreed upon laws of war. The question grows more complicated when one asks whether the achievement of one's objective, which may be a noble one, one whose attainment, arguably, will benefit not only one's self but everyone, but which is not a matter of survival, is sufficient cause to ignore international law. You have perhaps heard echoes of that in the presidential debates. Does the United States, once it has decided on a course of action, have to submit itself to the dictates of international law, in order to proceed? How is that expressed, to seek the approval of some institution like the United Nations? Never, cry both candidates.

Let me return for a moment to the specific example of chemical weapons. After the experience of the first World War-probably the greatest example in history of absolute mass madness, from today's perspective (excluding the current neocons, perhaps), it is simply incomprehensible that whole populations threw themselves into the meatgrinder that that war was and for almost four years celebrated what they were doing as the most exalting and spiritually necessary action of their lives-a sobered European leadership resolved never again. League of Nations and all that. There was also a resumption of the Hague conferences to apply some of the WWI lessons to the laws of war. In 1928 the Hague Convention produced a statement declaring that since the use of "asphyxiating, poisonous, or other gases and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world.... the high contracting parties agree to extend this prohibition to the use of bacteriological methods of warfare." It is, perhaps, worthy of note that the United States did not sign this declaration until 1974, well after its major participation in Vietnam and use of Agent Orange. In fact, when in 1969, the United Nations General Assembly voted to prohibit and ban the use of herbicides and tear gas in warfare, the United States, using both in Vietnam at the time, as we have observed, was one of the three countries voting against the regulation.

As a sidebar here, and to point out that the United States is by no means historically unique among the great powers in excusing itself from observation of laws it finds inconvenient, we should note that in the 1920s, Great Britain, with the express approval of Colonial Secretary Winston Churchill, used gas in the Iraq it was constructing against the Kurds and also in Afghanistan. France and Spain both used it against resistance forces in Morocco and Algeria. In the 30s Italy used it in Africa and Japan used it in China.

During World War II, the great powers did not use gas for fear of retaliation by their opponents, in the case of Germany even when in extremis. Nevertheless, all the countries involved had active chemical warfare programs and developed new and even more deadly gases-nerve gas, or Sarin, particularly.

In 1969, the United Nations began again to deal with the issue of chemical and bacteriological weapons. It defined chemical warfare agents as those having direct toxic effects on people, animals, or plants. White phosphorus and napalm, interestingly, although clearly chemical weapons, were not covered since their effects were thermal in nature-go figure. In 1972 this resulted in the Convention on Prohibition of Bacteriological and Toxic Weapons and their Destruction. The US, the Soviet Union, and Iraq signed the Convention. The definition of chemical weapons used in the convention referred only to substances whose chemical effect on living processes may cause death, temporary loss of performance, or permanent injury to people and animals. While plants are not mentioned in the Convention, it is undeniable that herbicides such as Agent Orange do result in the prohibited death or permanent injury to people. To put this in contemporary perspective, it is necessary to remember that in July 2001, the US withdrew from the Bio-Toxic Weapons Convention. Since the US has also unilaterally announced that it will begin production and testing of a new generation of nuclear weapons, the so-called mini-nukes or bunker busters which at five kilotons are one fourth the size of the basic 20KT Hiroshima bomb it seems that Washington has determined to get back into the chemical and nuclear weapons posture that characterized the US military during most of the Cold War. Again we see the sort of exceptionalism in which the US essentially declares that what is a war crime for other nations is not a war crime for us.

Or is it really exceptionalism. On Chemical and Biological weapons, I think some of you might find it interesting to go to the Fall-Winter issue of The Non-Proliferation Review and read the account of South Africa's secret programs in the 1980s, not only for nuclear weapons, but particularly for chemical and biological weapons. Some university scientists and private business people expressed reluctance to participate on grounds that the program violated the 1972 Convention to which South Africa was a signatory and that other countries might react negatively if the program was discovered. The Minister of Defense was dismissive. He told them not to be naïve. None of the other signatories really considered themselves bound by the Convention. Since the US was at that time, during the Reagan administration, particularly close to and supportive of South Africa, I naturally draw the worst conclusion about the nation to which he was referring.

Before bringing this already lengthy presentation to a close, I really think it necessary to bring up the matter of covert operations, especially para-military operations. These, throughout the last half century or so, were primarily conducted by the Central Intelligence Agency. Today, para-military operations are really the responsibility of the Pentagon's Special Operations Command.

First, though, we need a definition of covert operations. When the 1947 National Security Act was passed, it, among many other things, created the CIA. The new agency was charged with directing the intelligence activities of the United States, with the primary task of warning of grave threats-no more Pearl Harbors. The Act also gave the CIA the task of carrying out such other activities of an intelligence nature that the National Security Council may from time to time direct. Pretty murky language. What were these "activities of an intelligence nature?" In response to whether it included the sort of derring do, behind the lines sort of things the wartime Office of Strategic Services (OSS) had done, the first response was no. However, it wasn't long before the CIA was knee deep in manipulating the Italian elections of 1948 and taking over from the wartime German intelligence service the running of very large scale and bloody para-military operations, insurgencies, if you will, in Soviet territory in Belarussia and the Ukraine, and also in the Soviet Baltic republics. There were also major operations in Poland and Albania all supported by massive intrusions by US military aircraft into Soviet air space. Whether these activities fall, or fell, under any war crime definition is questionable. However, it more than certain that if the Soviet Union had conducted anything resembling such actions in the territory of the US there would, literally, have been hell to pay.

Now these were covert operations. It wasn't until 1991 that these were given a legal definition in the Defense Appropriation Act of that year. I quote-or paraphrase very closely. "Covert actions are those activities undertaken by the United States to influence political, economic or military events in another country that are carried out in such a way that the United States involvement is concealed, or if revealed can plausibly be denied." Ah, yes, plausible deniability, what Kipling called the most intensely pleasurable of human activities, the construction of "a well-made lie." In fact, in most instances, the lies were not all that well-made. The targets of such operations-for example, Cuba-were well aware of what was happening, and the 1961 Bay of Pigs attack-a clear attack of aggression if there ever was one was only one example.

To go back to our emphasis on chemical and biological warfare. It is now generally accepted that in the mid-1960s the United States introduced a form of swine flu into Cuba, destroying for years the pigs raised there. A dirty trick, for sure, and, incidentally, one violating the international prohibition on biological warfare. Can there be such a thing as a covert war crime?

Let us take another example, and a not unusual one of covert action, assassination. These days we hear our national leaders and hope to be national leaders talking of the need to track down and kill our enemies. Get 'em dead or alive.

For years I have treasured this quote from an op-ed in the Washington Post written by Robert F. Turner, at that time professor of international law at the University of Virginia Law School and the chairman of the American Bar Association's standing committee on law and national security. "It is important," he wrote, "to distinguish between assassination and the intentional killing of an individual under circumstances in which the act may be morally and legally justifiable. The issue is one of distinguishing between acceptable and unacceptable uses of force. The indiscriminate expansion of 'assassination'-commonly defined as a form of political murder-to encompass every intentional killing of a foreign official risks confusing some highly complex and quite distinct legal and moral issues." Well, I am sure that everyone here is sufficiently well educated and sophisticated to be able to make the necessary distinctions.

Going back to the Cuban example, the CIA's Operation ZR RIFLE, which was the long enduring effort to kill Fidel Castro involved at least 16 separate attempts to assassinate this, shall we say, "foreign official." Some of these involved poison manufactured right in the CIA's own Langley laboratories. In one instance the CIA smuggled a German-born former mistress of Castro's, Marita Lorentz, a woman I know well, back into Cuba just before the Bay of Pigs with the special poison concealed in her jar of cold cream. The poison disintegrated inside the cold cream, though, and Marita, when she confronted Fidel, simply lost her nerve and went, unmolested, back to Miami. In another attempt, this one using bacteria, an attempt was made to get the Cuban leader to wear a diving wet suit impregnated with the fatal germs. He didn't.

Nicaragua was another country targeted by the CIA with the most overt covert operation in history, the contra war. Here again was assassination, random destruction of property, blowing up the country's biggest oil refinery (in this case the assault undertaken directly by US naval personnel, not Nicaraguan surrogates), placing of mines in the country's harbors, some of which killed foreign nationals, and, once again, in this case the placing of the mines was done directly by US naval personnel. Were these, by any definition, war crimes?

Certainly, they were in violation of international law and, again reminding us of the rationale for invading Iraq, these actions were publically justified by the US on grounds-totally false, by the way,--that Nicaragua was smuggling weapons to insurgent forces in El Salvador, whose government the US was supporting. When Nicaragua tried to use international law to make the US cease and desist by going, in 1985, to the International Court of Justice at the Hague, the United States Government simply denied that the court had jurisdiction and refused to defend itself. Tried in absentia-with the US member judge sitting on the bench, not even having the grace to recuse himself-the US was found guilty on 12 of 14 counts, if I recall correctly, of having violated Nicaragua's international law rights and ordered to submit to arbitration to pay Nicaragua the estimated $16 billion in damages its actions had caused. The US, of course, refused that order, as well. Not only were we found guilty of committing crimes under international law-war crimes, if you will, but we were in contempt of the court that so found.

I am not as naïve as I have perhaps sounded tonight. I know that great powers, let alone the world's self-proclaimed sole superpower, are not and never have been held to the same legal standards as the lesser players on the world stage. However, when this same sole superpower strikes a moral pose and declares the right to invade, against the declared will of the United Nations, whose charter, a treaty, is by United States constitutional definition, to be treated as a supreme law binding the government of the US, another country on the grounds that it is not living up to its international law obligations the mind, for lack of a better word, boggles.

In closing, I am reminded of an obscure event in the history of US international relations. Back in the first US Grant administration in the late 1860s, the US signed a treaty with the Dominican Republic, calling for the mutually agreed annexation of that country to the United States. The treaty failed in the US Senate, but as part of it the US had leased Samana Bay on the east end of Santo Domingo for use as a naval base, promising to pay a certain annual rent. We used the Bay for several years, but never paid the rent. Year after year a Dominican envoy would come to Washington to try to collect what was owed. Finally, sometime in the 1880s, the envoy was told bluntly by the acting Secretary of State that, yes, the US owed the money. But, no the US was not going to pay it, so he might as well stop asking.

Whether or not we agree that the United States has been in the past guilty of what most people would call war crimes, or, at best, violations of international law, and if, in Iraq today, as exemplified in the Abu Ghraib scandals or the handling of prisoners in Iraq or at Guantanamo, we are now involved in these crimes and violations, I think that it is necessary that we, as citizens, both of the United States and of the world, consider carefully the actions we take internationally and not merely presume that because we do it, it is right.

•Any comments? Send them to lifeinfo.de and we will be happy forwarding it to David


*) David MacMichael is an ex-analyst for the CIA and a member of Veteran Intelligence Professionals for Sanity. He lives in Linden, VA.

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