Transcript: How do you define a war crime?

This is an audio transcript of the Rachman Review podcast episode: ‘How do you define a war crime?’

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Gideon Rachman
Hello and welcome to the Rachman Review. I’m Gideon Rachman, chief foreign affairs commentator at the Financial Times. This week’s podcast is about war crimes. My guest is Boyd van Dijk, a historian at Oxford university and author of a recent book called Preparing for War: The Making of the Geneva Conventions. So how do you define a war crime? And is it really possible to make armies fight within the law? 

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The wars in Ukraine and Gaza have seen Russia, Israel and Hamas all accused of committing war crimes. The subject of war crimes is also on my mind since I’m living in Tokyo at the moment. Some 100,000 people are thought to have died in the firebombing of this city in a single night in 1945. Robert McNamara, who later served as US defence secretary in the Vietnam war, was on the staff of the air force general Curtis LeMay, who ordered the bombing of Tokyo. Many years later, in a superb film called The Fog of War, McNamara reflected on the bombing of Tokyo and other Japanese cities. 

Robert McNamara voice clip
What one can criticise is that the human race prior to that time and today, has not really grappled with what are, I’ll call it the rules of war. Was there a rule then that said, you shouldn’t bomb, you shouldn’t kill, shouldn’t burn to death 100,000 civilians a night? LeMay said, if we’d lost the war, we’d all have been prosecuted as war criminals. And I think he’s right. 

Gideon Rachman
But many other people still defend the firebombing of Tokyo and the subsequent dropping of atom bombs on Hiroshima and Nagasaki. They point out that the Japanese invasions of China, and then of large parts of south-east Asia, had led to millions of deaths. Over 100,000 American troops had died fighting Japan by the time the war ended, and many more would have lost their lives had the Japanese had not been forced to surrender. Lord Macaulay, a famous British historian, once put it this way: the essence of war is violence, and moderation in war is imbecility. But that was said in 1831, before the era of mass bombing of cities, let alone nuclear weapons. So I began my conversation with Boyd van Dijk by going back in history. When did the idea of war crimes first originate? 

Boyd van Dijk
The terminology of war crimes and crimes against humanity did not gain widespread usage before World War I. In some respect, the new prominence during the war was due to Allied propagandists who often use the term war crimes to indict German lawlessness. In 1915, the allies also coined the concept of crimes against humanity in response to Armenian genocide perpetrated by their Ottoman enemies. So embracing criminal law, liberal ally jurist helped to criminalise atrocities and develop new institutions to deter future war crimes such as war crimes tribunals. 

Gideon Rachman
So that takes us up to the second world war. And then famously, you have the war crimes tribunals in Nuremberg. So what was the international legal significance of what happened at Nuremberg? 

Boyd van Dijk
I think the significance of Nuremberg lies in the fact that it made it possible to put individual heads of state or higher officials on trial for acts committed before or during wartime. And I think that legacy is extremely important, even though we can recognise that the Nuremberg and Tokyo trials were imperfect experiments of international criminal justice, allied crimes were not discussed, or at least not discussed by the prosecutors and certainly not punished by the trials. And I think we need to reckon that legacy as well as we move forward into the 21st century. 

Gideon Rachman
And yet, as we heard from that clip of Robert McNamara, it had occurred to some of the allies that some of what they were doing could be classified as war crimes. Most obviously, the mass bombing of cities such as Tokyo, Dresden, Hiroshima and Nagasaki. And after the second world war, you get this revision of the Geneva Conventions that you’ve written a book about. Is it at that stage that massive bombing of civilians is made illegal, or does that come later, or is it still legal? What’s the actual position? 

Boyd van Dijk
Yeah. So the Rome Statute, which lies at the foundations of the International Criminal Court in The Hague, is clear about the illegality of intentionally targeting civilian populations. So we have moved away from a time in which their bombing was not regulated strictly to a time which is regulated more strictly. But what’s striking when I was doing research for my book is that there is no clear prohibition on the use of indiscriminate bombing in the Geneva Convention of 1949. That created a puzzle for me. How come that after the bombing of places like Tokyo, we don’t see a clear prohibition of that atrocity in a very important set of treaties like the Geneva Conventions of 1949. 

Gideon Rachman
And your answer was?

Boyd van Dijk
So I think one answer to that question is to look at the role of the big air powers at the time. Of course, we are then focusing on the United States, Great Britain, and to a lesser extent, France and the Soviet Union. And what’s particularly striking about what the Soviet Union and its allies do at the diplomatic conference in 1949, when the conventions were discussed, is that they push the British and Americans to accept restrictions on the use of the air weapon. And they argued that if you don’t do that, then you’re effectively legalising policies extermination. So the Americans and British pushed back, and I think what they tried to achieve was to maintain a free hand in ongoing and future military operations and condoning the use of enormously destructive weapons against their enemies, in this case, the Soviet Union. But it could also be easily anti-colonial actors or other sets of actors that might emerge in the future. 

Gideon Rachman
But you then say that it’s really not until the Rome Statute that mass bombing of cities does become pretty unambiguously illegal. So when does the Rome Statute to happen, and why does that change things? 

Boyd van Dijk
So I think one important step in between the 1949 and the 1990s, early 2000s, when the ICC is established, into making of the additional protocols to the Geneva Conventions. Here you see prohibitions on the intentional targeting of civilian population. You see the coining of the principle of proportionality, which is extensively discussed as we speak. And in the 1970s, we see this incredible debate just like happened in the 1940s, but then leading to legal prohibitions to moves towards restraining the air weapon. I think part of the credit should be given to socialist states, as well as for world actors, including non-aligned states and isolation movements, who realise that if their weapon will be used in the near future again, it will probably target them. So they had a clear incentive to push back and say this weapon, which had been effectively unregulated in preceding decades, now finally needs to be restricted to protect civilian populations in the future. Then we get into the 1990s and we have the Rome Statute, which criminalises particular acts related to indiscriminate bombing and also talks about proportionality in relation to criminalisation, which I think is a really important step moving from just prohibition to actually criminalisation. So if you violate these rules in seriously significant way, you could be individually held responsible for these atrocities. 

Gideon Rachman
But that raises to me an interesting thought, because if you think of, say, all the members of the UN Security Council, they’re all nuclear weapon states, they all retain the possibility, indeed, have incorporated into their security doctrines that they can use nuclear weapons. So do they all have national security doctrines that are technically illegal under international law? 

Boyd van Dijk
I think it’s a very interesting question about whether the use of nuclear weapons can ever fall in line with what our international law principles for regulating armed conflict, also known as International Humanitarian Law (IHL). I think what’s the more interesting and important question is: what role can law play to deter or prevent nuclear states from actually using these weapons in the future? I think that’s the kind of important role international law can play rather than having long discussions about hypothetical situations in which nuclear weapons are used in particular conditions in which you don’t necessarily target civilians. I think that’s a slippery slope. It’s a rabbit hole, I think. You want to avoid it. We should rather have a conversation about how can we use international law to deter heads of state to decide to use nuclear weapons in a future scenario. 

Gideon Rachman
But is that conceivable? Because I guess the people running those nuclear weapon states will say, well, we retain our nuclear weapons and the possibility of using them because we’re trying to avoid a nuclear war and we need them for deterrence purposes, and that if we embraced international law in the way that some would like us to, we may actually make a tragedy more likely, not less likely. 

Boyd van Dijk
Yeah, I think it’s an important debate. There are definitely different interpretations on the legality of the use of nuclear weapons. My position is slightly different than the one you just mentioned. I think the risk of a nuclear catastrophe is so big, so significant, that I cannot imagine any sort of scenario in which we can recognise the morality of not targeting civilian populations and at the same time using these weapons. So if we take these principles seriously, then we have to follow the logic behind these principles and potentially accept that nuclear weapons and such cannot be legal under any circumstance. 

Gideon Rachman
So let’s put nuclear weapons to one side, hopefully for the rest of our lifetimes, to focus on issues that are now much more in the news. For example, the question of proportionality that you raised and specifically the issue of famine because Israel, as anybody who reads the papers knows, stands accused of using hunger as a weapon in the war against Hamas in Gaza. You’ve written about this, and actually there is a long history of states, including Britain and the United States, using famine in the 20th century as a deliberate tactic to try to prevail in world war. 

Boyd van Dijk
Yeah. So I did some work together with a colleague at Cornell on the question of how come the weapon of starvation was prohibited and also criminalised only very, very recently. So we’re talking only about the late 1970s, under the additional protocols in which there’s a prohibition on the use of starvation as a weapon of war, or we’re talking about the Rome Statute from the 1990s. And even if we accept, and I do accept, of course, to adopt certain criminal legal provisions, to say that we cannot use the weapon of starvation against civilian populations, that criminalisation still looks fairly fragile. So we asked a question how come that that system looks fragile still? And how come that these rules have been put in place only very, very recently, despite knowing all these different cases from the 20th century in which indeed, the weapon of starvation was used by various parties, whether by the Nazis during the second world war or the Soviet Union in preceding years and decades, or by United States and United Kingdom during both the first and the second world war. So I think our argument was that the late ban on wartime starvation can be best explained by the central role it plays in the use of blockade strategies, in, around wartime. The use of blockade as such, the weapon of blockade is still legal today. So intentionally cutting off states and territories from external resupply was a method that’d been widely used by the same western states that played a key role in structuring modern international law, especially Britain and France. And I think blockade derived its attractiveness from being an essentially negative material intervention. So you prohibit existing flows of resources and diverting their course with low public visibility and high pay-off as a war fighting strategy. That’s why the weapon is still used today. 

Gideon Rachman
So let’s be clear. When was that used? Are we talking specifically about the first world war, when essentially they to some extent successfully tried to starve Germany into submission? 

Boyd van Dijk
Yeah. So we can see the weapon of starvation being used during the first world war by Britain and France against Germany, Austria-Hungary and also the Ottoman Empire, leading to very significant civilian casualties. We’re talking here about hundreds of thousands of civilian deaths across Europe and the Middle East. And then you have more weapon of starvation usages during the second world war. Think of the blockade of Japan itself and also its occupied territories across the Pacific and east Asia, leading to mass starvation as well. And then you have in the late 1940s, during the making of the Geneva Conventions, a similar debate. Should we not finally get rid of this terrible, inhumane weapon? And what’s striking is that, again, Britain and the United States pushed back because they see the weapon as one which is effective. And it could be extremely useful in their vision of warfare in the future against the Soviet Union. And it’s therefore not a surprise that the Soviet Union then pushes back and says, we know that this weapon will be used against us if we get into any sort of conflict in the future. 

Gideon Rachman
So at what stage does the world begin to change its mind and make famine illegal? And in fact, you seem to be saying that there’s still some ambiguity about whether blockading food is illegal. 

Boyd van Dijk
I think the ambiguity continues or will persist as long as we accept the legality of siege warfare and blockade. If we don’t accept the legality of these methods of warfare, then I think the use of starvation as a weapon of war will die out. But as long as that’s not the case, we can also imagine a situation in which civilians will get hit by that same siege and may get ill or even die because of lack of food, medicine, and so on, or simply disease that often emerges during a siege. 

Gideon Rachman
And that’s a very real issue now in the Gaza war. But it strikes me as interesting, actually, that the Israelis are not saying we have the right to block food going into Gaza. Their argument is this is not what we’re doing. So does that suggest that international norms have actually shifted, to some extent?

Boyd van Dijk
Yeah. So that’s quite interesting. And Israel is not alone in that sort of policy. We have seen similar cases of blockades where states do allow some aid to get into blockaded regions, but then do not provide adequate food and other types of resources that are necessary for the civilian population to survive. So it’s all about controlling what goes in or out of a blockaded region. As long as that is a blockading state, they all may be very difficult to break that blockade in ways that provide adequate and enough food resources for civilian populations living under siege.

What’s interesting is that throughout the 20th century, alternatives were being discussed, where if we accept the legality of blockade, why don’t we internationalise the whole question of what goes in and out of a blockaded region? So you ask an international organisation or an NGO or UN, for that matter, to control what goes in out of region to make sure no weapons get in, for instance. But all these kind of proposals were put off the table, particularly by the United States, because they saw the weapon of blockade, if not the weapon of starvation as such, as a very useful and cost-effective measure to put down resistance they might face in conflicts that might erupt in the future. 

Gideon Rachman
Does it suggest that people still haven’t quite settled in their own minds — politicians, perhaps, maybe lawyers have settled them — this thing that I quoted from Lord Macaulay, who said, look, if you’re fighting a war, moderation is imbecility. If you’re fighting for your national survival, you do what you have to do. Do you think that at least in the way that politicians think, there is that tension still there between talking about the need to obey the international law, not to commit war crimes, and the sense that, well, you’ve got to win a war? 

Boyd van Dijk
Yeah. So I think the critique comes from roughly two directions. One is the idea that war’s inherently brutal nature makes restraint both militarily and politically unwise, if not foolish, as warfare inherently lacks limits. And if you do impose limits, it could be easily exploited by the enemy. So that’s one critique of the project of humanising warfare. Another one, which is a pacifist critique of the laws of war, is that it’s misguided or imbecility, because how can you make war humane if it’s inherently inhumane? So our ultimate moral goal should be its abolition rather than its humanisation. I think my sympathies tend towards the more pacifist direction. At the same time, I feel that we do need these rules as long as we have wars. So I think our moral and political focus should be on redoubling efforts to prevent or end war, while closely monitoring states’ preparations for future wars and ensuring sufficient protection for us as civilians in future armed conflicts. 

Gideon Rachman
And do you believe that all these legal efforts have actually changed the nature of war? And is there any evidence that war is becoming more humane or perhaps it’s becoming less humane despite these efforts? 

Boyd van Dijk
Yeah, it’s a good question and a very important one. We know that international law, unlike domestic law, lacks the authority to use sovereign coercive power to enforce immediate penalties for rule violations. Nevertheless, we also know that the states often adhere to international law, partly to maintain a reputation for lawfulness, and partly because compliance simply aligns with their interest. I also believe that international law can serve the goal of deterrence, can shape public thinking about war as such. It can empower those who try to stop the war crime from continuing. Some states, especially democracies, are often more likely to consider law in their decision-making processes. In general, democratic publics impose cost on leaders who’ll make legal commitments but later break them in war. And I think a more compelling theory suggests that states commit fewer violations if they expect their actions to be reciprocated by their enemies. I mean, a famous example of that logic having its effect was the general humane treatment of western allied and German POWs during the second world war. But then the question is, what if the rules themselves are sometimes part of the problem? Ambiguity persists. But I still think the law plays an important role in making it possible for other critics, or those that are in states that are involved in warfare, to push back if they recognise a situation in which a war crime is either imminent or already taking place. 

Gideon Rachman
And I think one thing that’s interested me commentating on wars is, I was slightly surprised initially by how important military lawyers are, even in the course of war, so that the Americans, the British, the Israelis all have lawyers advising the militaries as they fight on what they’re allowed to do and what they’re not allowed to do. I mean, whether they’re listened to all the time or not, I don’t know, but they’re certainly part of the structure of warfare now. 

Boyd van Dijk
Yes, that’s absolutely right. It’s remarkable how many resources are being invested in legal advice that concern how states conduct themselves on the battlefield. And in some ways, that could be seen as a good thing, because states are taking their legal obligations seriously, even if they do not follow the law strictly, and may think it’s important or even necessary to move beyond it. At the same time, if that’s the case that law is taken seriously by states that violate the law, then what’s the function? What’s the purpose of law? Is it then just to justify what is essentially unjustifiable? And I think that’s a continuing struggle for international law in armed conflict. Will it help those who are in most in need of the law’s protection? Or will it help powerful states to do the things that they want to do when you go to war? I push for the former, but in certain situations, of course, we see that it’s more of the latter, and that’s concerning. That’s troubling. 

Gideon Rachman
So let’s finish then by picking up on how things are gonna develop. I think we’re speaking at a time when, unfortunately, the fear of war, even in the west, is rising. But the story that you tell in your book, in your articles, is of the evolution of a doctrine of international law that is at least changing the way that people think about war. So what do you think the next steps might be? I mean, do you see this as a very dynamic field in which we’re gonna see further evolutions of this idea of war crimes? And what changes do you anticipate? Or where’s the most pressure coming? 

Boyd van Dijk
Yeah. So when I’m presenting my book to members of the armed forces or diplomats working at foreign ministries, I’m often asked, can we replicate the success of 1949 when the Geneva Conventions were adopted? Can we establish yet another comprehensive set of rules for regulating warfare, as it did 75 years ago? Undoubtedly, achieving a similar outcome presents numerous, numerous challenges, particularly given the massive increase in number of states compared to the 1940s. But we’re also witnessing striking parallels. Then you make your reference to preparations for war, for instance, in the Pacific, and similar mechanisms were underway in late 1940s. Think of the emergence of the cold war. Think of the idea that the Soviet Union, United States and Britain would be in this gigantic struggle in which the military, but also law would play an important role. And in some respects, as we encounter challenges similar to those faced by the drafters in 1949, it becomes all the more astonishing to observe how more successful they were compared to us. This is even more true when we consider our own inability, I think, to gain great power support for new IHL principles, even on comparatively lesser questions, as the application of international law to outer space. So as we confront contemporary challenges, such as development of AI weapons, we’re being reminded of warning signals and lessons from the past, I think. So I think it’s crucial to work on behalf of ending and preventing war, while ensuring that wartime restraints are not neglected. If not, then I think we have very few remaining tools left for justice around wartime. 

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Gideon Rachman
That was Dr Boyd van Dijk of Oxford university, ending this edition of the Rachman Review. Thanks for listening. Please join me again next week. 

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