Talking About “War Crimes”
In May 2022, just a few months after Russia began its war on Ukraine, Ukrainian civilian prosecutors secured convictions against three captured Russian soldiers. The first, a young sergeant convicted of following an order to kill an unarmed 62-year-old civilian, was sentenced to life in prison, later reduced to 15 years. Ukrainian courts convicted two others of indiscriminately shelling a civilian neighborhood – after pleading guilty, they were sentenced to more than a decade in prison. With “unprecedented” international support, Ukraine has relentlessly sought to bring to justice Russian troops who seem to have consistently and unabashedly ignored the “rules of war” either at the direction of their chain-of-command or with their tacit acquiescence. These cases were just an opening salvo. The Ukrainian government has opened and is actively pursuing dozens, if not more, war crime investigations based on tens of thousands of reports.
Of course, these Russians have been accused of breaching far more than mere “rules” or “customs” – they are prohibitions ultimately grounded in respect for the humanity of vulnerable populations and the realistic restraint on the use of armed force during conflict between and within States. Crossing these redlines is sometimes a technical “violation” (an infraction, or foul) like when a prisoner of war is not permitted by her captors to wear her rank on her uniform, violating Article 18 of the Third Geneva Convention (1949), or when doctors aboard one belligerent nation’s military hospital ship refuse to surrender a wounded-but-fit-to-move combatant of the other belligerent nation upon that nation’s demand, violating Article 14 of the Second Genevan Convention (1949).
But sometimes the breach amounts to severe criminal conduct, stripping away the soldier’s default “combatant immunity” and exposing them to criminal liability for their conduct. This might be for acts already considered serious criminal conduct outside of armed conflict (e.g., kidnapping, sexual assault) or conduct that is wholly martial in character (e.g., using human shields to protect military weapons or facilities). But the Ukrainian prosecutions have a common denominator: a criminal act charged formally as breaking the “laws and customs of war” (even if it also violates the State’s criminal code) – what the judge in sentencing the Russian sergeant referred to as “a crime against peace, security, humanity and the international legal order.”
By contrast, consider the international and domestic furor following then-President Trump’s highly unusual pardons of Lieutenant Michael Behenna, Lieutenant Clint Lorance, and Major Matthew Golsteyn in 2019. All three engaged in serious misconduct during an armed conflict during which they victimized persons specifically protected by the laws of war. Not one of them was charged with committing “war crimes” as such – instead, they were charged with violating the murder prohibition (among other offenses) in the U.S. Uniform Code of Military Justice. Yet, in public discourse all were condemned as “war criminals” (see here, here, here, here, here, and here).
The disparity raises a difficult but important question. Should our degree of interest, revulsion, and concern have been less critical because the U.S. service members were not – technically – “war crimes?” It seems like a problematic, or at least awkward, distinction to make.
This post has two main points to make about this inconsistency of practice and language. First, lawyers, the public, government officials, members of the military, and the media can be misleading when they describe certain wrongful acts of service members committed while serving in armed conflict. Contrary to popular use, a “war crime” is something with a particular legal meaning (which I will describe below). But colloquial overuse of the phrase blurs it in uncomfortable ways. This may misidentify the character of the offense and its relationship to the “law of nations.” And this mayunreasonably amp up expectations for punishment.
This may also pose a challenge to commanders trying to determine whether credible evidence suggests a “war crime” occurred or is occurring. This categorization problem is particularly true when it comes to allegations against U.S. service members that can erode public trust in a war effort writ large or damage the credibility and impugn the profession. Misuse and abuse of the term “war crime” is in the same family of careless, incendiary rhetorical excess that characterizes contemporary political communication. Careful attention to word choice is warranted if only to chill the polarizing extremes our rhetoric often leaves in its wake.
My second point is that there is a straightforward way to avoid this problem and to minimize the risk that rogue misuse of “war crime” metastasizes into a norm. This requires identifying and defining a new but intuitive and commonsense category of generic wrongdoing. We can label it: “battlefield misconduct.” “War crimes” then becomes a particular brand or subset thereof. It is imperative to employ this category when lawyers, commanders, politicians, and the public begintalking about allegations of things like mass murder of civilian villagers while drunk, the degrading psychological humiliation of detainees, the bombing of a military bunker sheltering civilians, the use of tank plows to bury alive enemy troops caught in a trench, biological experimentation on prisoners, photographing and displaying enemy corpses, using culturally significant sites to stage military weapons, using human shields, and theft via fraudulent contracts. In each of these cases, the facts – and the specific legal mechanism used to prosecute them – matter. All war crimes are, by definition (more on that later), a species of battlefield misconduct, but not everything within the genus of battlefield misconduct is a war crime.
War Crime: Differential Usage
“War crime” is a loaded term – what logicians call prejudicial language. It is not merely a technical legal classification of a specific type of offense punishable by the State or an international tribunal. It possesses an incredibly complicated nature that gives off contradictory emotive signals. In some quarters, the label “war crime” insinuates a particularly ominous and wicked event: war is bad enough, so behavior that goes beyond the pale even in those dangerous circumstances is truly defenseless and vile. One who commits such an act – a “war criminal” – has an especially malevolent, barbarous character.
Facing stark visual evidence that such conduct has occurred, public support for a war effort can degrade sharply. This was a common reaction to the 1968 U.S. Army massacre of Vietnamese persons at My Lai, although never charged as a “war crime” either. On the other hand, the label “war crime” can also mean in some quarters a class of behavior that is lesshorrible because it occurs in the context of a war: war is bad enough, so behavior that crosses already hazy lines of morality is understandable and maybe even expected. One who commits such an act, if not already considered a “hero,” should be understood as having been overcome by the stress, anxiety, fear, anger, and pain commensurate with our expectation of what war is like, amplified by lack of training, horrible conditions, and absent leadership or proper oversight. Strangely, this was the common reaction to Lieutenant William Calley, the officer who led the U.S. troops at My Lai.
The public’s naturally non-neutral values, perceptions, and beliefs about war and those who participate in it may be inconsistent with their knowledge of the facts of the case. It is fertile ground for bouts of cognitive dissonance that lead otherwise reasonable people to defend or excuse the indefensible and inexcusable. Some evidence suggests that Americans are willing to look the other way, giving “moral license” to soldiers and rejecting calls for their legal accountability, if the allegations arise in a conflict we think is morally just. They may prefer to reject the label “war crime” and “war criminal” at the time of the allegation, or during its unfolding investigation and trial, or even after a conviction despite facts that would warrant its legal use. At the extreme end, it translates as doubling down: not only is the soldier not a war criminal, he is instead a war hero, as Trump described Special Forces Major Matt Golsteyn not long before pardoning him.
This is to say that the label “war crime” has heavy semantic implications and real-world consequences. They range from popular condemnation to political and strategic re-direction, from criminal prosecution to diplomatic tension, and from fraught international relations to tactical military failures. The label “war crime,” however, has been used to describe or allege a smorgasbord of actions before, during, and after the conduct was addressed and adjudicated through legal processes: bombing a hospital; torturing a detainee; murdering a civilian; raping women and children; attacking a mosque.
But, in fact, the last American tried, convicted, and punished for a committing an “offense against the laws of war” was Confederate Captain Henry Wirz, commandant of the notorious prisoner of war camp at Andersonville, Georgia, in 1865. His conviction predates all of the Geneva Conventions (except the first in 1864, which only addressed impartial relief to the wounded and protection of medical personnel), predates the Hague Conventions, predates the United Nations, and predates the Uniform Code of Military Justice. It even predates the first written use of the term “war crime” (kriegsverbrechen, 1872). The United States has deployed its military forces abroad in major armed conflict at least seven times since Wirz was hanged for his war crimes: the Spanish-American War, the Philippine Insurrection, World War I, World War II, Korea, Vietnam, the Persian Gulf War, and the “War on Terror.”
It would be silly to conclude from this absence of war crimes prosecutions that U.S. soldiers have not committed offenses against the law of war in those years of bloody conflicts – atrocities were not all “tragic mistakes” or a “failure in discipline.” But it does suggest that we are either under-prosecuting these crimes or that our linguistic and terminological choices could be refined to reflect more accurately and objectively what the conduct is, our moral reaction to it, and our legal response. This post is not about under-prosecution; it is about linguistic and definitional precision.
“War Crimes” Defined
There is no single universal definition of “war crime,” much as there is no single universal definition of “murder” across all jurisdictions. At a minimum, however, we can count three core elements: an act or omission that is (1) a serious violation of the law of armed conflict; (2) occurring during an “armed conflict” (broadly defined); (3) and which has a “battlefield nexus.” This formula distinguishes standard criminal offenses (e.g., a captain who kills a pedestrian while driving intoxicated; a sergeant who threatens a trainee; a general who sexually harasses a younger subordinate aide) from a separate class of war-atypical criminal offenses, the latter justified by the structure and purposes of international “law of nations.”
For example, suppose that a senior army officer deployed to a counterinsurgency operation becomes enamored with a local woman, who happens to have a contract with the Army to deliver various sundry items to the officer’s forward operating base. After she rebuffs his overtures and advances, he violently strikes her then strangles her to death. Murder of civilians is prohibited by the laws of war, and indeed is one of the most “serious” breaches. The officer’s crime occurred in the midst of an armed conflict in which he was performing military duties. But the facts of this murder have no “nexus” to the battlefield.
This does not mean the offense must occur at a time and place of actual hostilities – if it meets the “nexus” test, the actual crime can occur far from a front line and during a period of relative security. What matters, according to the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, in Prosecutor v. Kunarac (2002), is that the existence of the armed conflict must play a “substantial part in the perpetrator’s ability to commit [the offense], his decision to commit it, the manner in which it was committed or the purpose for which it was committed.” The officer’s deployment was the setting for the offense, but did not impact his decision to commit it, the manner in which he did it, or his purpose in doing it. This was murder, but not murder-as-a-war crime. In other words, it offended social, cultural, and moral norms encoded into positive State law, but did not offend the law of nations.
Customary international law Rule 156, reflecting norms of State practice, recognizes that “war crime” offenses occur in both traditional international armed conflicts and in some forms of non-international armed conflict. Most States either expressly define “war crime” as a “serious” breach of the laws and customs of warfare or proscribe certain acts that are mal en se and “serious” under any reading (e.g., murder, cruelty, torture). Customary law also recognizes that such offenses need not be just direct physical harms to protected persons or property; rather, certain key “values” may also be the reason behind a prescribed “war crime” (e.g., abusing dead bodies; denying a prisoner a fair trial; humiliation and degradation). Custom is often a reflection of domestic practices and laws as well as international treaty obligations and prohibitions.
The Rome Statute for the International Criminal Court, one such source for what could be called customary international law but creating its own criminal jurisdictional regime, defines “war crimes” broadly. First, it categorically includes any “grave breach” of the 1949 Geneva Conventions of 12 August 1949, which would include, inter alia, “wilful [sic] killing; torture or inhuman treatment, including biological experiments; wilfully [sic] causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; [and] taking of hostages.”
But the Rome Statute also incorporates non-Convention-based prohibitions drawn from customary practice: “other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.” This includes “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities . . . committing outrages upon personal dignity . . . enforced prostitution [and] forced pregnancy” and using civilian persons as human shields to protect military equipment or personnel from lawful attack. The Statute defines war crimes irrespective of the characterization of the armed conflict: even acts, provided they are “serious,” committed in armed conflict “not of an international character” can be prosecuted as war crimes, including acts against members of an armed force who are hors de combat” and conscripting children under the age of 15. This sweeping definition of war crime and the International Criminal Court’s jurisdiction only applies, however, to nations who are parties to that treaty – the U.S. is not such a party.
The United States has its own domestic federal prohibition, the War Crimes Statute, codified at 18 U.S.C. § 2441. This statute applies only when the alleged perpetrator or victim is a member of the U.S. armed forces or is a U.S. national. But it, too, incorporates categorically “grave breaches” of the Geneva Conventions. It also incorporates by reference violations of certain “Regulations” of the Annex to the 1907 Hague Convention IV, including poisoned weapons, declaring “no quarter,” employing “arms, projectiles, or material calculated to cause unnecessary suffering,” misusing a “flag of truce,” and bombarding undefended towns, villages, and buildings. Also, like the Rome Statute, the U.S. War Crimes Statute prohibits by reference acts already prohibited by virtue of Common Article 3 to non-international armed conflicts.
U.S. Army doctrine aimed at informing commanders of their law of war obligations also reflects this emphasis on “serious” offenses but acknowledges that there are many sources of definition. And particular use depends on the intentions of the government with respect to that allegation. Field Manual 6-27 defines “war crimes” as:
serious violations of [the Law of Armed Conflict] that are punishable by criminal sanctions. The definition of “war crimes” often depends on the legal purpose at issue, and different definitions of “war crimes” are used.
This suggests that a reasonable commander ought to liberally interpret allegations of wrongdoing during an armed conflict that appear to have a connection to military operations as a potential “war crime.” Such a default presumption (not that the allegation is true, but rather that – if true – it would be a “war crime”) triggers a duty to investigate or (if applicable) stop ongoing conduct as part of their command responsibility.
Given the wide range of, and in some places vague, definitions of “war crime,” and its heavy semantic implications, the legal term is subject to inadvertent misuse or deliberate abuse. Acts that should not be considered “war crimes” might be labeled and condemned as such in public discourse or political messaging, inflaming passions about the war effort and mischaracterizing the culpability of the accused. As one highly accessible example, consider that the open-collaboration and non-peer reviewed English language Wikipedia entry on “United States War Crimes” describes in detail horrific cases of abuse and crime committed by American troops in wartime, from the Philippines in 1898 through Iraq in 2005. None of those cases, however, was prosecuted as “war crimes.” Second, acts that should be considered “war crimes” might instead slip into the mere “violation” bin, either delaying proper and thorough investigations into credible allegations or under-accounting for the seriousness of wrongdoing committed by U.S. servicemembers. In both cases, the reputation of the profession, not just the reputation and freedom of the accused servicemember, is at risk.
This misuse and abuse problem is exacerbated by the long history of the U.S. not prosecuting its nationals for committing an offense “against the laws and customs of war” as Confederate Army Captain Wirz had been 157 years and seven major armed conflicts ago. As described above, the criminal acts of Calley, Lorance, Golsteyn, and Behenna (among many others) were charged as violations of the domestic UCMJ punitive articles and tried by court-martial, resulting in a wide range of informed and underinformed opinions about the character of their culpability.
“Battlefield Misconduct”
To dampen the effects of this misuse and abuse problem, we can arm ourselves with a higher-level abstraction of the underlying (alleged) act or omission. We should refer to this as simply “battlefield misconduct.” All such offenses – regardless of whether it was or could be eventually charged as a “war crime” or not – share two overlapping characteristics.
1. The conduct was incidental but orthogonal to the soldier’s otherwise legitimate performance of duties in combat, and
2. The victim of the conduct was a party or property protected from various applications of armed force by the laws of war, however those laws are codified.
The phrase “incidental but orthogonal” is chosen deliberately to distinguish this type of misconduct from “collateral” harms. Collateral harms or damages are anticipated to occur “incidentally” to the legitimate use of force but are not prohibited by the laws of war provided they are proportional. That is, they are lawful so long as they are not anticipated to be excessive in relation to the concrete and direct military objective that was expected. Battlefield misconduct – a potential war crime – therefore, is conduct that could not have occurred but for the fact that the alleged perpetrator was functioning as a belligerent in the kind of armed conflict where the laws of war apply (hence, “incidental”) but which is objectively wrongful in and of itself (e.g., raping a civilian) or diverges from the normal expectation of lawful conduct associated with that soldier’s particular duty or mission (hence, “orthogonal”).
Most importantly, this more generalized and broader category of misbehavior is defined in part by its punish-ability as a war crime. We are talking about, case-by-case, behavior that could have been (or might yet be) prosecuted as a “war crime” provided that it fits the mold of “war crime” defined by treaty, statute, or customary international law (and this has a “battlefield nexus”). This shifts attention from the public’s colloquial default use of the term (or the technical charging language used in that case) to what is ultimately more relevant and worthy of public and legal scrutiny, namely, the facts of who the victim was and the bad act’s deviant relationship to what otherwise would have been legitimate and lawful performance of military duties. It therefore encompasses – and more accurately portrays – the criminal conduct of everyone from the young enlisted Russian soldiers tried in Ukrainian courts to My Lai’s Lieutenant Calley and, more recently, former Navy SEAL Eddie Gallagher.
Words Matter…Or Do They?
Shifting our rhetorical vocabulary from “war crime” to the more general term “battlefield misconduct” may seem like legal hairsplitting of synonyms. One might argue that there is no meaningful difference between the two or that “war crime” is accurate enough because it leaves the listener or reader with a satisfactory impression of the crime’s character – enough to condemn it at least. I am sympathetic to this argument, but I do not think it prevails because while it may be enough to condemn the conduct, it is not enough to defend it, to prosecute it, or to punish it. Moreover, if the terminology made no difference, then we ought to expect such misbehavior by soldiers to be tried as “offenses against the laws and customs of war” almost by default. But, as we have seen, they are certainly not (at least for U.S. soldiers tried by courts-martial) even though the facts of the cases satisfy the elements of 18 U.S.C. § 2441, not to mention custom.
Alternatively, one might complain that there is a too great a difference—that by its very word choice, this new label obscures the gravity of the injustices committed against the innocent bystanders and victims of war. “Battlefield” seems benign contrasted to “war;” “misconduct” seems sterile next to “crime.” In fact, Chile Eboe-Osuji (the former President of the International Criminal Court, former legal advisor to the U.N. High Commissioner for Human Rights, and a former prosecutor with the International Tribunal for Rwanda), once made a similar point about the difference between “grave breach” and “serious violation.” But that is precisely the point: it reserves the negative semantic implications of “war crime” for when a legitimate governing authority (like an international tribunal, military commission, or national court) charges, prosecutes, and convicts a service member for conduct formally classified as a “war crime.” It does not allow for the kind of hyper-condemnation that is too readily associated with the term, nor does it risk the inadvertent (or intentional) sanitization of the conduct in public discourse.
Conclusion
The common words we use to label wrongdoing in wartime are often tainted—they are prejudicial in the sense that they can convey the wrong message or substantive content and are often abused or misused for precisely that rhetorical effect. After the Islamic State attack at the Kabul Airport during the U.S. evacuation from Afghanistan last year, I made a similar point about how political rhetoric can dangerously conflate legal concepts behind jus ad bellum and jus in bello in the same way. They often become the sticky narrative – a story that becomes increasingly difficult to reverse and to separate from its legal technicalities. It masks real distinctions that turn on the facts of each case, the manner in which they are subjected to legal scrutiny, and the legal standard against which those facts are judged. When we talk about “war crimes,” we may not be talking about them at all. What we are talking about when we talk about those offenses, no matter what the adjudicatory outcome is or could be, is “battlefield misconduct.”
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Lieutenant Colonel Dan Maurer is currently an Associate Professor of National Security Law at the U.S. Army’s The Judge Advocate General’s Legal Center & School where his portfolio includes teaching war crimes to new and seasoned judge advocate officers. This analysis and opinions in this essay are the author’s alone and do not reflect the official position or policies of the U.S. government.
Photo credit: Pixabay
