States Do Not Routinely Prosecute War Crimes

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Who tries war criminals? Various bodies exist or are convened, but these institutions are either temporary or, if permanent, haven’t established themselves as having teeth. The Hague and Geneva Conventions leave the handling of war crimes up to individual states, but they have little or no incentive to discover and prosecute war crimes committed by their own forces as a routine matter of justice. Consequently, war crimes are crimes that frequently fall between the cracks.

Three recent examples of war crimes follow, and these are by no means all that could be listed over the past 1-2 years. The first is by U.S. forces in Afghanistan. This is from an Amnesty International report:

“The U.S. military has systematically covered up or disregarded ‘abundant and compelling evidence’ of war crimes, torture, and unlawful killings in Afghanistan as recently as last year, according to a report by Amnesty International published today in Kabul.”

The second is by Israeli forces in Gaza. This report is by Marjorie Cohn of the Thomas Jefferson School of Law.

The third case is that of the Islamic State (IS) formerly known as ISIS. That case is being made by a UN Commission of Inquiry on Syria. IS has advertised its war crimes in Iraq by posting videos.

States do not prosecute war crimes because they do not want to be held accountable for the wars in which these crimes are committed. They know that if war crimes are prosecuted by established institutions as a matter of routine, the next step will be to tighten the noose on war-making itself. Other horrors of war will be publicized and argued to be as criminal as the egregious war crimes. The bar will be raised by peace-loving people as to what constitutes a just war in self-defense, and the freedom of action of states to employ violence will be constricted. If war crimes are prosecuted vigorously, questions will eventually be raised as to what kinds of state-inflicted violence are just and proper in the pursuit of preventing a portion of a country or a portion of its citizens from seceding. The state cannot withstand too much exposure and too much such questioning. It far prefers to keep secret its war crimes, deny them, count them as highly exceptional, prevent their prosecution and spread propaganda that minimizes them or treats them as a necessary or unavoidable or simply regrettable adjunct of war, collateral damage, if you will.

12:09 pm on August 12, 2014