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International Justice,

War Crimes, and


Terrorism
X HE topics addressed in this volumeinternational jtistice, war
crimes, and terrorismare among the most important that
mankind faces in the twenty-first century. They are also topics that
make us uncomfortable precisely because they are often ethically
ambiguous. The September 11 suicide mass murders that foctised
Americans' minds on the random, immoral, and destructive violence of terrorism were not ethically ambiguous. As a result they
moved the question of how to prevent such attacks to the top of
our domestic and foreign policy agendas.
The solutions, however, are not as obvious as we wish and they
will not be found merely in painful reexaminations of United
States actions in the past. Last spring, when I chose to make public the details of a military operation I led during the Vietnam
War that ended with the death of innocents, I said I hoped to turn
this story into "an educational moment." Unfortunately that was
not to be. It became another hot current event to be argued ferociously until the next hot event came along, and was then quickly
forgotten.
This conference is a result of the promise I made when hope
for an educational moment was still alive. To be clear: I do not
intend to meekly submit to cross-examinations or self-indulgent,
one-sided criticism of United States foreign policy during the war
in Vietnam. Open and honest evaluation of America's conduct
during that war and other wars has led to substantial improvement in our military training and behavior as well as our attitude
toward becoming involved in the affairs of others.
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In any discussion about America s conduct in war, it is best to


remember our tendency to withdraw from the world, especially
after a terrible military experience. We withdrew after experiencing the horror and slaughter of the first great war of the twentieth century. \\^ stacked our arms, downsized our military, and
attempted to return to normal. \\^ refused to ratify- the treaty creating the League of Nations. V\/e enacted restrictive, racist immigration laws. The Great War may not have been the war to end all
wars but Americans were unambiguotisly and ethically determined that it would be the last European war with which we
would be involved.
WTien the National Socialist Partv' came to power in Germany
on January 31, 1933, the head of this university, Alvin Johnson,
knew that intellectuals, and Jewish intellectuals in particular, were
in trouble. He began an effort to raise the money to provide a
refugea University in Exilethat became one of the great
moral acts in the history of American higher education. And lest
we forget, it was not a decision fully embraced by public opinion.
Americans steadfastly resisted getting involved. Franklin Delano
Roosevelt had to resort to the Lend Lease Act of 1941 to provide
assistance. It was not until we were attacked on December 7, 1941,
and Germany declared war on us, that we mobilized and entered
the conflict.
After the Second W^rld War, the American people chose a
more international course. The United Nations, the Bretton
Woods agreements, NATO, and the Marshall Plan stand as monuments to our understanding of how the world's peace and security depend upon our not yielding to isolationist impulses. Still,
we slashed our defense spending and were able to provide relief
to Europe only because of presidential determination and the
reputation of General George Marshall. We certainly did not send
billions to rebuild those war-shattered lands because of overwhelming public support. As a child, I remember angry sentiment
against the effort.

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The Korean War is an even more striking example of what can


happen when the United States disengages following a terrible
and bloody war. North Korea's invasion of South Korea occurred
after we withdrew much of the Seventh Army from the peninsula
and after our secretary of state indicated that South Korea was not
a strategic interest of the United States. Even after the invasion.
President Harry S. Truman did not have enough public support
to ask Congress for either a declaration of war or involuntary conscription. Public support for the war evaporated in short order
along vfith Truman's chances for reelection. No doubt this memory contributed to our unwillingness to act to prevent Soviet
troops from entering Hungary in 1956.

I cite this history at the beginning of this paper because America has not always covered itself in glory during the great ethical
challenges of the pastnot just in the way it has conducted itself
in war, but by how it has conducted itself in avoiding war.
Proudly citing our superiority in opposing some specific war
encourages us to forget how our ethical preference for pacifism
and neutrality in 1938, 1939, and 1940 became the greatest of all
ethical disasters.
In the papers in this volume on the concept of ajtist and therefore legal, we have been reminded how difficult and important it
is to morally justify what must be done in any war, even one that
is fought by combatants who follow the Geneva Conventions to
the letter. To wage a war we must train our youth to use violent
and deadly means to defeat an enemy force that has been organized against it. Killing is the business of war.
Few things darken my mind more quickly than listening to two
opposing sides explain why their cause is just and moral as the
death toll continues to mount. But if the United States is to use its

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considerable power for good we must be capable of understanding when war itself can be ethically justified.
In the section on the training of the militarv' that appears in this
issue, we read detailed explanations of the actions national go\^
ernments take to make certain their soldiers do not \iolate
domestic laws that have been written to implement international
treaties. Few' things are more difficult than to bring the calm, reasoned approach of the classroom into the irrational, bloodstained
environment of the battlefield.
Another set of papers in this volume help us understand the
founding arguments and rationales for international tribunes,
their use today, and their potential in the newly created International Criminal Court. Eew things are more confusing than to be
reminded that a judicial process one opposes and condemns
today is a process one has supported in the past when it suited
one s political purposes.
These discussions will lead us to the question of how to define
and respond to terrorism; we trust that some ideas will emerge to
guide us into a future where terrorism and crimes against humanit)' become increasingly rare. It is always our hope that our arguments will produce greater clarit\' and a greater willingness to run
the risks that are always associated with holding controversial
political opinions.

To begin the argument, I would like to express my opinion that


we must take care not to tilt too much in the direction of using
national and international tribunals as a remedy for war crimes.
We should also pay attention to the value of using military efforts
to deter, defend against, or to stop the violence of large-scale
atrocities such as ethnic cleansing and genocide. While clear and
certain penalties can deter crimes by soldiers in most modem
nation-states, they will have considerably less impact in places

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where the idea of a nation-state seems like fantasy or where corrupt religious beliefs have led people to think that suicide-murders are a pathway to salvation.
A well-trained but deadly military committed to conducting war
according to the specific requirements of the Geneva Conventions can prevent crimes against humanity. Few should doubt that
the intervention by the United States and NATO in Bosnia and
Kosovo had the effect of ending ethnic cleansing and setting up
an international tribunal against Slobodan Milosevic. Few should
have any qualms about concluding that our unwillingness to
intervene with a military force in Rwanda was responsible for
permitting one of the twentieth-century's greatest crimes to take
place. Few should doubt what would be the fate of the Kurds living north of Iraq's thirty-sixth parallel and the Shia south of Iraq's
thirty-third paraUel without the almost daily missions being flown
by United States and British pilots and their crews. And few
should doubt that military intervention in Afghanistan has substantially weakened the capacity of those who perpetrated the
crime against the United States and the free world on September
11 and just as importandy liberated the people of Afghanistan
from the terror of their own government, giving them hope that
peace may finally be returning.
Giving hope to those who are without hope does not just mean
demonstradng a willingness to intervene with our military. It
means we must be willing to help do the risky, messy, and never
perfect work of building stable democracies with market
economies. It means we must be willing to transfer some of our
wealth and credit, especially in those cases where political leaders
have demonstrated the courage and will to end debilitating pracfices of corruption. It means the developed world must keep its
trade policies open so that the developing world has a chance to
sell to our markets as well as a fighting chance to get a fair resolution of trade conflicts at the World Trade Organization. It
means we cannot withdraw from the world because we fail or are
not perfect.

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At the same time we must acknowledge and understand the


risks that come with our leadership and our involvement. Taking
sides in bitter domestic disputes provokes opposition. Osama bin
Laden's initial anger toward the United States came from our
decision to leave troops in Saudi Arabia after the Persian Gulf
War as a deterrent against the possibility that Saddam Hussein
might become an aggressor again. To us this is a reasonable and
necessary thing to do. However, to the Muslim believer we are infidels who desecrate the holy places of Mecca and Medina. To the
Muslim believer, killing Americans is a reasonable and necessarv'
thing to do.
I do not bring moral relativism to this analysis. I believe the
presence of United States forces in Saudi Arabia has helped stabilize the region. I do not believe radical Islamists are justified in
their killing. The point I seek to make is that the will to intervene
to reduce the threat or the fact of crimes against humanit)' is
often inversely correlated with the perceived risks associated with
the intervention. These risks include the financial costs, the
human costs, and the possibility that history might judge your
actions harshly.
Before I proceed to offer a short list of what I believe the world
communit)' must do to deal with terrorism and war crimes, allow
me to present a second controversial opinion. I believe the singularity' of United States militar)' supremacy is a ver)' good thing
for those of us who want the world to become more peaceful,
prosperous, and just. And critics have it wrong when they express
concern that this supremacy makes us overeager to deploy our
forces in the world. Critics should be just as concerned about the
opposite. They should worry that the risk assessment done by
United States presidents and members of Congress before authorizing the deployment of any of our armed forces will cause us to
disengage and do less.
I offer the current United States effort in the war on terrorism
as a case in point. The primary energy driving our deployment of
force is self-defense and threat reduction. Now, self-defense and

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threat reduction are understandable and justified bases for military action. However, self-preservation is an instinct that is
nowhere near as noble and worthy as its opposite: the v\dllingness
to risk your life for someone else. And it is obviously a self-limiting effort. At some point the cause begins to be too self-indulgent
to sustain. In the current case I am personzdly appalled at the
extremes to which President Bush and Congress are willing to go
to make us feel safer. Total spending increases on defense and
homeland security will total $80 billion between this year and
next. I would feel safer if they converted the $80 billion into
$1,000 bills and threw them out the window. Along with last year's
tax cuts, this spending will guarantee that the United States does
not have the resources or the will to make the investments needed
to close the widening gap between the world's haves and the
world's have-nots and to make necessary investments in the health
and education of our people.

My recommended agenda for dealing with the problem of


international jtistice and war crimes has four parts.
First, we will need a strong military force, multinational where
possible and unilateral where necessary, to signal to international
oudaws that we will not waiver if they threaten the open, secular,
tolerant, and multi-ethnic societies that they consider such a
threat.
Second, we need better training of our own forces in both the
existing rules of war and the dire consequences of violating those
rules.
Third, we voll need a doubling or even a tripling of our foreign assistance combined with greater liberalization of our trade
policies.
Fourth, we will need an International Criminal Court in which
the United States participates ftilly.

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Let me briefly add detail to each of these four items.


We need for a strong and effective militarv' force. Here the most
difficult issue is United States supremacy. It is an unpleasant truth
to some in the free world, but it is a truth nonetheless. The successful intervention in Bosnia would simply not have been possible without United States leadership and participation in the
diplomatic, intelligence, and military effort. Likewise in Kosovo:
as long as the effort was under the control of the international
community, we witnessed the horror of ethnic cleansing and the
slaughter of innocents. As soon as the United States put its weight
behind a NATO intervention, the balance began to swing toward
peace.
A more painful example is Rwanda. Only the United States is
blamed for not interv^ening to stop the genocide because the
world knew only the United States had the capability to get the
job done. That we did nothing will make tis feel shame for as long
as our nation survives with a memory worth praising. No other
people on earth carry such a burden.
In the war against the Al Qaeda network in Afghanistan and
around the world, the United States has taken the lead. This is justified and necessary because those who have declared war on liberal democracies and who enthusiastically embrace the use of
attacks on civilian populations attacked the United States for a
reason. We are the House of W^r. We are the number one enemy,
not because of our policies in the Middle East or our support for
Israel. We are target number one because of our economic, political, and military success. If we were in second place, we would
simply not be targeted.
The issue of what justifies the use of military force is of primary
importance. To illustrate my views, let me use two examples. I
could not justify' either the cost or the killing in Afghanistan on
the basis of self-defense or threat reduction alone. I can justify the
action when the outcome is the removal of the repressive Taliban
from power if the United States and our allies make the military
and economic commitment to stav the course until a stable

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nation-state exists. Likewise in Iraq, I am not convinced that military intervention is justified to reduce the threat of Iraq's weapons
of mass destruction. On the other hand, I would support military
intervention if the objective was the liberation of 25 million Iraqis
and the establishment of a democratic Arab government.
A second addition to the agenda is a need for honest and open
evaluation of our military training, especially in times when force
structure is increased rapidly. I come to this issue with considerable personal experience and believe strongly that it is not
enough for us to give our soldiers a card telling them about the
rules of war, a practice that became United States law after we ratified the 1949 Geneva Conventions. Nor is it enough to selectively
prosecute offenders. Kwe expect the law to be enforced fairly and
jusdy, we must provide every serviceman and servicewoman with a
thorough education and training about the details of the law and
the consequences of what could happen to them if they violate
this law. Otherwise politics and circumstance vnll determine who
is prosecuted and who is not.
In this area there is, for all the reasons cited earlier, considerably more risk for United States military personnel than for the
armed forces of other nadons. WTien a United States soldier
breaks a law, it is much more likely to become an international
incident than when the soldier of any other nation does the same.
Unless aind unfil some other free nadon becomes the world's preeminent military power, the sons and daughters of American feimilies will be called on more often to put their lives and their
characters on the line. Still, the United States mtist lead on this
issue by setting an example just as we must with other dangers,
such as weapons of mass destruction, the spread of AIDS, and
global climate change.
A third addition to the agenda is the level of international aid
and less than open trade policies of the United States and the
European Union; both fall appallingly short of what is needed to
give tis cause to say we are doing all we are capable of doing. I do
not believe that economic progress on its own will end the threat

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posed by terrorism. There is increasing radicalism among Muslims in Singapore despite a per capita income of $29,000. .4nd
dare I use the example?Timothy McVeigh's murderous act was
not caused by economic disparities. Still, where there is no economic or political hope, there is unquestionably a greater potential that violent means will be used to achieve political objectives.
W^e simply must spend more of our income to help the developing world. And we cannot afford protectionist trade pohcies,
which make it nearly impossible for developing countries to
export to the two largest consumer markets, the United States
and Europe. We should condition economic assistance on political reform and the elimination of the kind of corruption seen in
Nigeria and Angola. We should use nongovernmental organizations to help struggling democracies write good laws and build
the structures of civil society that will hold them together. However, we cannot allow the need for political reform and capacity
building to become an argument against further material aid.
Closely associated with the issue of aid and trade are the issues
of immigration and domestic drug policies. Anti-immigrant
impulses in the developed world are dangerous and counterproductive and must be resisted. The economic and social success of
New York Cit)' is the best argument in favor of liberal immigration
laws that work to reduce the burden and paperwork placed on
those who seek economic opportunities. No military, aid, or trade
policies will succeed if we allow those who view immigration as a
danger to win the argument. The connection between terrorism
and drug policies is less obvious and I will add no further details
beyond the assertion that such a connection exists.
A final addition to the agenda: the United States Senate
should ratifv' the treat)' creating the International Criminal Court
so that the United States can participate fully in its establishment
and operation. Failure to do so will not protect United States military forces from politically motivated accusations. Once again,
that comes with being the world's leading military power. Failure
to do so will mean that our military personnel and elected polit-

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ical leaders will have no power but refusal to cooperate to make


certain that proper safeguards and sanctions are placed on individuals and organizations who make unsubstantiated charges.
Citizens who debate this issue should remember that ratification
is not permanent. Withdrawal from any treaty always remains an
option.
I reach this conclusion even though I am not comforted by
assurances given by Secretarv' General Kofi Annan and others that
politics will play no role in the court's deliberation. In open
democratic societies politics almost always plays a role in the
process ofjustice. I would respectfully urge those who try to offer
guarantees of a politics-free ICC to stop making this argument lest
they persuade supporters such as myself to change our minds. I
would likewise encourage supporters of the ICC to openly criticize and condemn indi\iduals and organizations that tise the new
court to score political points. Failure to do so could have a terribly negative impact on the safety and security of the free world.
I choose to make one controversial suggestion at the close of
this paper: the possibility' of being accused of war crimes will deter
some military actions we would prefer to see happen. I have heard
some proponents of the ICC say they hope this occurs and that
political leaders, especially American, will become far less willing
to authorize the tise of force. To that, I merely urge you to read
the 50-plus-page declaration of war issued in 1996 by Osama bin
Laden. He counted on the United States being unwilling to run
the risk. A lot of people died because he believed we would do
nothing.
I also urge you to examine the reluctance of United States policymakers to authorize and United States military leaders to use
force to prevent Slobodan Milosevic's threatened invasion of
Montenegro in 1999. Had he sent his army south to bolster his reelection efforts it is likely we would have stood by and watched the
slaughter. The reason: fear of being accused of violating the
Geneva Conventions.

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That said, I still believe strongly in the need for the United
States to ratify the treaty creating the International Criminal
Court. My belief is that the potential benefits of the courtdeterrence of atrocities that could provoke United States military interventionfar outweigh the potential negatives: deterring
necessary United States intervention. If we have any hope that the
rule of law will become an active force for good throughout the
world, we have no other good choice.
It is with considerable pride that I note the quality of the disctissions taking place at this conference on a subject that is at
once important and taboo. It is with considerable hope that I wish
these discussions will make their way into the popular debate and
that they contribute to a more just and humane world.