The Fog of War Crimes

IN HIS MOST famous rock edict, Ashoka, the emperor under whom the Mauryan dynasty reached its apogee, begins thus, as translated by Ven S Dhammika: “Beloved-of-the-Gods, King Piyadasi, conquered the Kalingas eight years after his coronation. One hundred and fifty thousand were deported, one hundred thousand were killed and many more died [from other causes].” This violence is one of the great precursors to human redemption, because Ashoka, revolted by what he had unleashed, is said to have turned to peace, both inner and outer, and became a benign ruler. Today, his actions would come under war crimes. (Principle VI of the 1950 Nuremberg Principles adopted by the International Law Commission provides that “deportation to slave-labour or for any other purpose of civilian population of or in occupied territory” is a war crime, says the International Red Cross Committee’s study on international human rights.) But Ashoka wouldn’t think that. The concept of war crimes is very new, in fact so modern that many trace it only to World War II as agreed moral and legal principles. Another aspect of the Ashoka story is that the focus of war crimes, even now to some extent, is dependent on who is the victor. If Ashoka had not won that war and the history that we receive today came from the Kalingas, it would be an entirely different portrait.

Bucha, a small town near the Ukrainian capital of Kyiv in Ukraine, is the latest symbol to define the cruelty and horror of war. The Russians had occupied it as part of the bid to take Kyiv. They then left because the plan hadn’t worked out. And in their trail, what we saw were civilian corpses strewn on the road. The New York Times reported that days after the withdrawal, bodies were still being discovered. It said: “Some of the bodies were found face down, or curled up, killed on bicycles, or while walking down the street, or in the basements of homes.” A local coroner, Serhiy Kaplishny, told them that they had to dig mass graves to put the bodies because there were too many. “On a single day, Kaplishny said that he had picked up about 30 bodies—13 of whom were men whose hands had been tied and who had been shot in the head at close range. Russia has denied that its troops were involved in atrocities in Bucha, calling the images “another hoax” and suggesting that the bodies had been recently placed on the streets after “all Russian units withdrew completely from Bucha” around March 30. But a review of videos and satellite imagery by The Times shows that many of the civilians were killed more than three weeks ago, when Russia’s military was in control of the town, and have been rotting in the street ever since.”

The paradox around war crimes is that war itself is an acknowledgement that ordinary rules don’t exist anymore and the only way to resolve the question is violence. Force is now the sole arbiter, making ideas of right and justice irrelevant. For a concept of crimes within wars to exist then again requires mutual agreement between the warring parties. Or it needs someone who is extremely powerful to play referee. The US can do that when there is a war between Serbia and Croatia, but Russia has more nuclear weapons than them. So, how is it to get Vladimir Putin before a court even if he withdraws from Ukraine in disgrace? Russia is never going to be taken over by Ukraine. Punishment is not possible when it comes to the most powerful countries and their rulers because these are the only ones who can enforce such trials on the rest of the less powerful world. Or they have to be totally vanquished, like Germany after World War II, but that was before nuclear weapons.

The world felt the need to put war crimes on a legal pedestal because of the Holocaust against the Jews in World War II. But that same war also saw the dropping of two nuclear bombs that killed lakhs of innocent civilians, one of the parameters by which a war crime is defined. There is no reason for a nuclear attack to not fit into the definition of a war crime, but again, there is the malleability of the concept of a war crime because it is tied to power. It is, however, necessary to have an ideal, because even that is a very powerful moral weapon and that is how human civilisation progresses. Take the manner in which the conduct of soldiers during wars has changed. In the past, they took it as a right to rape and pillage the territories they conquered. In medieval times, looting was a key reason for people joining an army. But whereas earlier it was considered a reward, now even Putin will, at least in principle, recognise that images of his soldiers looting and killing in Ukraine as a crime. Russia obfuscates it as Ukrainian propaganda, but they need to do it precisely because they know it is considered unacceptable. One of the most famous instances in modern times of a war crime was the My Lai episode in which a company of US soldiers massacred a village in Vietnam during the war between the two countries. The US army tried to hush it up but the media brought it before the American people. Only one person was convicted. The US president commuted the sentence of the soldier from life imprisonment and he ended up serving three years under house arrest despite 22 Vietnamese civilians being killed in cold blood. Should such a massacre happen today, at least society in the US or other liberal democracies would demand punishment befitting the crime.

Dictatorships are better at war crimes because there is no accountability, plus the dictator himself usually fights to the top without too many moral compunctions. Someone like Hitler or Stalin wasn’t interested in the protection of the lives and property of their own citizens, so why would they be concerned about the territories their soldiers were marching over? Bucha, and there might be more coming to light wherever the Russians withdraw, will make memories permanent, but it is hard to see anything being done about it if and when peace is made. US President Joe Biden called for Putin to be tried as a war criminal, but who will do it in a world that is no longer unipolar with America as the engine? There is the International Criminal Court but as The Guardian noted in a recent article: “The ICC opened 20 years ago to prosecute the perpetrators of genocide and crimes against humanity. But the US, China, Russia, and Ukraine are not members of the court, which has been criticised for focusing too heavily on Africa and applying “selective justice”.” The United Nations cannot move without Russia because it has a veto in the Security Council. What is possible is to just bide one’s time and hope that years or decades later, Putin is no longer in power and then try him. There are precedents for that. But will Putin ever not have a country under him? That is banking on hope.

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