Since the onset of thinking about the laws of war, such laws have been divided into the jus ad bellum (the right, or lack of it, to make war) and the jus in bello (the rules governing the conduct of war). To begin with the jus ad bellum in the case of Chechnya. According to any traditional or universally accepted approach, Russia's legal right to prosecute this war is incontestable. Chechnya is an internationally recognized part of Russia's territory, in rebellion against its sovereign. Throughout history and all over the world today, states have reacted to armed secession with armed repression. By contrast, the number of cases where a territory has been allowed to separate peacefully from its sovereign state is extremely small. In the great majority of cases (and invariably where its own territory or its own allies are concerned), the United States has backed the existing internationally recognized sovereign: the Kurdish revolt against Turkey being only one example.
Moreover, when Russia yielded to de facto self-rule in Chechnya in 1996, the government there proved incapable of controlling its own territory. The result was a great wave of kidnapping and other forms of criminality directed at Russian citizens in the North Caucasus and the establishment on Chechen soil of forces publicly dedicated to the prosecution of a religious war against Russia and to carving away further pieces of Russian territory. Leaving aside the unproven issue of Chechen-based terrorism, it is uncontested that this movement led to a large-scale armed incursion, in August 1999, from Chechnya into the Russian autonomous republic of Dagestan, and that in the subsequent fighting 270 Russian soldiers and several hundred Dagestani policemen and civilians lost their lives.
Legally, therefore, Russia certainly had the right to retaliate. Furthermore, when it comes to actual international practice, the United States, in the course of the twentieth century, has intervened repeatedly with armed forces in independent states in Central America, when it has seen itself as threatened, in some way, by domestic developments and especially by criminal behavior in these countries (Panama being only the most recent example). On the only occasion when US territory was directly attacked as a result of civil war in a neighboring state (Pancho Villa's raid on Columbus in March 1916), the immediate US response was counter-invasion, on a vastly larger scale.
But of course, legality and morality are not the same, nor is morality and past US international practice. Morally, the issue of Russia's latest intervention in Chechnya is not so clear. Much of the pathological behavior emanating from Chechnya between 1996 and 1999, can be seen as a direct result of the unnecessary and even criminal Russian armed intervention of December 1994, and the bloody and destructive war that followed.
Not only was that intervention a great deal less justifiable than that of 1999 but the memory of the futile bloodshed of 1994**96, and the ferocity of the Chechen resistance, should have given the Russian leadership pause before embarking again on a war in Chechnya. Warfare, and especially antipartisan warfare, is inherently savage. Before you engage in it, you have a moral obligation to be very sure indeed that all other policies have been exhausted, and that there is no better alternative.
Hence the force of the criticism, for example, concerning the US use of atomic bombs against Japanese cities in August 1945, when Japan was, in effect, already defeated. The use of these weapons must have caused grave moral qualms. But these would have been far fewer if the bombs had existed and been dropped on Germany or Japan in 1942, when victory was still in the balance and when tens of millions of other lives would have been saved by an Axis surrender. The gravest doubts concerning the morality of the obliteration of Hiroshima and Nagasaki relate to the fact that it was probably unnecessary, or at least wholly incommensurate with the result to be gained.
As Thomas Aquinas laid down, there must be a reasonable hope of achieving the actual goal of the war concerned. In the case of Russia in Chechnya, as with the US in Vietnam, the leadership clearly failed to think adequately about whether this goal was, in fact, achievable by the strategies adopted. In the case of Chechnya, the results of the war so far have been, at best, highly inadequate from the point of view of Russian national interests and goals. The radical Islamic threat has been curbed, Chechen-based kidnapping and banditry greatly reduced, and Russia's military prestige, to some extent, restored from its nadir in 1996. However, thanks in part to atrocities committed by Russian troops against the Chechen population, Russia has become bogged down in a brutal partisan struggle with no end remotely in sight; the threat of terrorism remains very active; and the Russian-backed Chechen authorities are failing to consolidate their authority or, in many cases, even to save their own lives.
All this was entirely predictable, given the experience not only of 1994**96 but of so many other similar conflicts around the world. So the Putin administration should have made a much more determined and sincere attempt to pursue other strategies before deciding on full-scale armed intervention (for example, some combination of an occupation of Chechnya, north of the Terek River, with extra carrots and sticks directed at the Maskhadov regime in Chechnya to persuade him to crack down on the extremists).
But this said, if Moscow had pursued such policies and after a reasonable time they clearly had failed to work--if major Chechen-based armed attacks on Russia had continued--then it must also be recognized that Russia would have had the full moral as well as legal right to go to war in Chechnya, as would any organized state in Russia's position. And it must also be recognized that, unfortunately, even a legally and morally justified war of this kind is inevitably going to involve massive civilian suffering and numerous human-rights abuses.
This brings me to the question of the jus in bello with regard to Chechnya, and what is a war crime and what is not, because the approaches to this issue by western media and NGOs have been extremely confused. This confusion could pose a future risk not only to Western soldiers in similar situations but to the actual growth of relative humaneness in the conduct of war. This is because, like any other law, the laws of war have to bear some practical relation to the actual field they are meant to regulate. If they cease to be applicable, practically, by soldiers in concrete situations, they will become not laws but a form of scholastic theology, practiced by a priestly caste of international lawyers; perhaps formally beautiful, but with no reference to actual, human activity.
Even more importantly, if the US and other Western nations persistently and blatantly (if only in rhetoric) lay down a set of rules for other states that are utterly at variance with the way their own troops have always conducted war, the result will be not to strengthen the laws of war but fatally to weaken them.
The collapse of communism as an ideological force has created the genuine possibility of the universal establishment of Western humanitarian values--the first time in history that such a development is possible. But even with communism gone, this is inevitably going to be a slow, incremental process. And above all, these values have to be seen by other societies as genuinely universal and equal in their application--not a crude and cynical tool adopted by US politicians to weaken rival states. It should be remembered that in the nineteenth century European and North American imperial powers also declared that they were spreading what were then called "civilized" values to lesser breeds all over the world. Unfortunately, the manifest colonial greed, aggrandizement, ruthlessness, and hypocrisy that attended these "civilizing missions" fatally compromised them in the eyes of other peoples and helped to produce pathological backlashes against the West and, in some cases, even against modernity in general.
In any conflict, war crimes can be divided into two general categories. The first is deliberate war crimes, ordered by the leaders of a state or of a state-run military campaign. These include organized torture to extract information; extrajudicial executions; systematic methods of terrorizing the population; and so on. The second category involves spontaneous crimes committed by soldiers without or against orders and for the sake of personal revenge or gratification: murder, rape, looting, and so on.
Clearly, these categories may often overlap. In the past, generals like Wellington, after the capture of Badajoz in 1811, or (reportedly) the French Marshal Juin, after the fall of Cassino in 1944, may give their troops the "right of pillage," entailing mass rape and looting, as a reward for courage and in an attempt to keep up their morale. In Bosnia, mass rape was evidently sanctioned by the Bosnian Serb high command as a way of terrorizing, demoralizing, and driving out the Bosnian Muslims. And any policy of officially ordered mass reprisals against a civilian population is going to give ample room for ordinary soldiers to satisfy lust, anger, revenge, and greed.
Nonetheless, the difference between these two categories does need to be kept in mind. Because they are usually directed against the general population, spontaneous crimes by soldiers usually weaken the cause they are fighting for and only generate more recruits for the other side. A classic instance may be seen in the "arrests" of Chechens at Russian military checkpoints. There is ample evidence to suggest that in a great many cases--perhaps even a majority--the Russian soldiers making the arrests do not suspect those arrested of fighting against them. The intention is, simply, that their families should pay ransoms for their release. In effect, this has become a kidnapping racket, of a kind certainly not ordered from above and certainly contrary to every Russian goal and interest in Chechnya.
Crimes of this sort by soldiers are often the result of demoralization and a lack of discipline, which weakens their cause and may also be directed against their own officers and NCOs. As with the Russian troops in Chechnya, spontaneous atrocities by US troops against Vietnamese civilians were matched by a strong tendency to murder ("frag") unpopular officers and NCOs--something that is obviously going to give pause to any officer or NCO who tries to prevent attacks on the civilian population.
As in Vietnam or Chechnya, it may be that when a majority of the soldiers are extremely unwilling to fight hard, and are unhappy with their commanders and economic position, that cracking down severely on their crimes is likely to result in their ceasing to fight altogether--with the result that the war is lost. This is a dilemma that every state, and indeed every political class, also faces with regard to domestic police forces. If they are allowed to commit too many abuses, they undermine the rule of law, push whole classes toward criminality or violent protest, and ultimately weaken the state. But crack down too hard, and the police will cease to work seriously against crime, with potentially terrible results for their critics. New York City has seen a number of episodes of this kind. As a result, even many liberals are cautious when it comes to alienating the force that, in the end, protects their lives and property. One can, of course, still say that the state bears overall moral responsibility for abuses by its servants; but one must be aware that, in practical terms, this problem is a complicated one.
It may also be that the individual soldiers (or policemen) committing the crimes have distinguished themselves for courage and ferocity in combat. Unfortunately, both because of the nature of their training and because of the kind of personality that seeks to join such forces, elite troops, like the British paratroops, are often distinguished by ruthlessness with regard to civilians and violence in their personal lives. I am reminded of a (fictional) character in Stanley Kubrick's Full Metal Jacket, evocatively nicknamed "Animal Mother"--a kind of modern savage, but also, quite clearly, the only fully effective soldier in his squad.
An officer faced with the question of whether to arrest an "Animal Mother" for some crime will have to wonder which of his other men will die as a result of the former's absence; indeed, Animal Mother may already have saved the lives of others in past combats. In these circumstances, a fighting officer or NCO--not a staff officer at headquarters, let alone a civilian lawyer--is going to be faced with a set of acute moral and emotional dilemmas, not readily understandable by those who have not experienced combat and comradeship in combat.
When it comes to crimes in Chechnya deliberately ordered by the Russian state, more clarity of thinking, again, is needed. What have been described by the Western media and politicians as war crimes can be divided into three categories.
The first comprises actions universally recognized as crimes and treated as such since the beginning of the formulation of the modern laws of war in the later nineteenth century: torture, massacre, extrajudicial execution. Almost all states involved in antipartisan warfare have committed these crimes to some extent, but equally, since 1945 at least, all states have denied this and sought to cover up such activities. No modern state (with the exception of certain maniacal communist ones) has ever declared torture and massacre to be its official policy.
The French forces in Algeria conducted a major torture campaign, as recently revealed by General Paul Aussaresses, that was not only ordered by the French high command in Algeria but was condoned by the French Justice Minister (and later president) François Mitterrand. But the French have never admitted this official policy, and when General Aussaresses made his statement, in April 2001, French officials were forced to pretend to be shocked and amazed.
There is ample evidence of the extensive use of torture in Chechnya, and of numerous extrajudicial executions--the latter, as in Algeria perhaps, intended in part to cover up evidence of particularly savage torture. Human Rights Watch has details suggesting 853 illegal executions by February 2001. At least one verified mass grave has been located close to a Russian detention camp. There have also been extensive killings of civilians in the course of military sweeps, though these have not yet amounted to a systematic program of massacres, as in Bosnia (Human Rights Watch has documented three massacres, with a total figure of around 130 killed).
The second category consists of actions not previously considered crimes by Western governments but that are, nonetheless, gradually coming to be considered such as a result of moral consensus and informal convention. These include the bombing of populated areas away from the immediate fighting, and the use of especially destructive and unpleasant weapons like napalm and "vacuum bombs." Such strategies and weapons were employed openly and on a massive scale by Western armed forces in the past. In the Second World War, Korea, and, to a relatively more limited extent in Vietnam, the systematic destruction of civilian populations by aerial bombardment was a central part of US strategy. Napalm was used very extensively by both US and French forces in the course of antipartisan operations, with horrible results.
But, partly as a result of such practices, there is now a relatively strong feeling in Western public opinion against such methods; and in the wars with Iraq and in Kosovo, Western forces did try to avoid killing civilians and eschewed the use of fuel-air explosives. Russia, for its part, has made sketchy attempts to deny indiscriminate bombardment and has not acknowledged the use of vacuum bombs, indicating at least some degree of moral embarrassment and respect for Western public opinion.
On the other hand, in private, Russians argue that the only reason the West has not used such weapons recently is that it has not needed to, and that in a really serious war, involving heavy casualties, the West, too, would abandon such constraints. Since in recent times the West has not, in fact, been involved in ground combat against serious adversaries, it is impossible to give any conclusive answer to this question. Nonetheless, this is an area where one can see a change in public culture leading to a new set of attitudes and even of behavior.
The third category concerns actions that have been widely described as war crimes but that cannot, in fact, be so described--at least, not without both indulging in massive hypocrisy and rendering the whole concept of war crimes absurd. Above all, this relates to the bombardment of defended towns and cities--most notably of Grozny itself, which was defended to the bitter end by the separatist forces, both in 1995 and in 1999**2000, and was attacked by them in March and August 1996.
Clearly, if one side in a war decides to entrench itself in a town, that town will be attacked, whether or not it contains civilians, and a large proportion of those civilians present will be killed. Unfortunately, despite advanced technology-development programs by the US military, to this day there is no effective way of storming a defended city without destroying much of it in the process--not, at least, if you want to avoid massive casualties among your own troops. In the US assault on Manila (the capital of a US protectorate) in the winter of 1944**45, General MacArthur initially tried to avoid the use of artillery and air bombardment so as to spare the civilian population but soon abandoned this as US casualties began to mount. The same was true, later, in Seoul, Hue, and elsewhere.
During the extrication of the US Rangers from Mogadishu, in October 1993, US firepower claimed the lives of up to 50 Somalis--mostly civilians--for every US soldier killed. Not to have used this firepower would have constituted a betrayal of the US soldiers involved, and while an international lawyer may make or accept an argument for not using this destructive option, a commander cannot do so. Realistically, and even ethically, the first duty of a commander is to pursue victory, and the second is to the lives of his men. Once battle is joined, it may be possible to get him or her to avoid legally and traditionally recognized war crimes. It will never be possible to get them to sacrifice deliberately the lives of their own people for the sake of a vague and contradictory moral principle.
Of course, the attacking side may well be expected to try to give the civilian population a chance to leave the city before it is attacked. The Russians did, indeed, warn the population of Grozny to do this. They can certainly be criticized, however, for not having done more to create safe corridors by which the civilians could escape. Western criticism should have focused on this failure, and the Russians' refusal to allow the International Committee of the Red Cross (the traditional and long-recognized neutral body for arranging humanitarian arrangements of this kind) to play a stronger role. Instead, however, too much Western criticism treated even the Russian warning to the population as a crime, which is ridiculous.
Nonetheless, a traditional means does exist for averting the destruction of cities: it is for the side on the defensive to declare the town concerned an "open city," and to promise not to station troops there or prevent the other side from entering it. If such an agreement is made and stuck to, if the other side then bombards that city, it will be guilty of a war crime. Otherwise, however, to accuse the attacking side of committing a crime, by using heavy firepower, is to declare war itself a crime.
This has, indeed, been the underlying approach of many in the Western NGO world. Hating war and its inevitable cruelties, they tend to forget that the intention of war-crimes legislation is not to end war but to regulate it. Ending war may perhaps be possible at some stage in human history, but it is certainly not possible now; and, in any case, the whole question of the jus ad bellum--the right to make war--is, as I have pointed out, covered by a quite different set of international laws, traditions, and conventions. In any conflict--to the ranks of those who hate war as such--will be added those who, for whatever reason, hate this particular war, or, more commonly, take one side in it and hope for its victory, and therefore condemn all the actions of the other side as "crimes." This has been very evident in the Western approach to Chechnya.
As has often been pointed out, there is something inherently illogical about attempts to regulate the conduct of war, given war's naturally violent and seemingly anarchic nature. The Latin maxim "In war, the laws are silent" expresses this view, or, more colloquially, "All's fair in love and war." Nonetheless, in the 100 years and more since modern international legislation on war crimes began to be discussed and drawn up, very considerable progress has been made when it comes to the treatment of uniformed soldiers.
In the Second World War, the generally civilized German treatment of prisoners from the Western allies--compared to the bestial inhumanity displayed toward Soviet POWs--was mainly due to Nazi racial attitudes. But it also reflected the fact that the Western powers and the Germans had both signed the Geneva Convention, while the Soviet Union had not. The Germans had the same racial hatred for the Poles as for the Russians, but thanks to Poland's signature of the convention, POWs from the Polish Army were treated far better than those from the Red Army. It was quite otherwise, of course, with the German treatment of prisoners from the Polish underground forces, who, from 1939**44, were usually tortured and shot, or sent to the concentration camps.
This brings us to the central problem of war-crimes legislation and thinking: the question of partisan and antipartisan warfare. For when the European powers began thinking seriously about internationally agreed-upon treaties on war crimes toward the end of the nineteenth century, the universally recognized approach to partisans was explicit: if caught out of uniform with weapons in hand, or where it was obvious that they had been engaged in fighting, they could be executed on the spot without any trial.
This approach was somewhat complicated by the European (and American) involvement in operations against "native" peoples, whose fighters often did not wear regular uniforms. On the whole, Western forces respected their enemies as warriors and did not simply massacre prisoners; but the decision whether or not to do so was very much in the hands of the local commander and his men. Where--as so often on the American frontier, or during the revolt of 1857 in India--the other side had itself been guilty of atrocities, massacre by the purportedly civilized forces was the frequent result and never, as far as I am aware, received any official sanction.
The essential moral problem of partisan warfare hinges precisely on the fact that the most basic partisan or guerrilla strategy consists of hiding amid the civilian population: at best, to use it as a shield; at worst, to try actively to provoke anticivilian atrocities by the other side in order to stir up more hatred in the population. Combined with this strategy is the attempt, in all circumstances, to kill "enemy" civilians as well as soldiers, while trying to disguise your men as civilians, and, increasingly, to chose heavily populated areas as your sphere of operations.
One possible response to the problem of civilian casualties in antipartisan operations is to try to deport noncombatants from the contested area. This supposedly saves civilian lives while also "draining the water in which the guerrillas swim," to adapt Mao Tse-Tung's famous dictum. That was a policy followed by the French in Algeria, and by the Americans in Vietnam. It has not yet been adopted by the Russians in Chechnya, though the creation of large numbers of refugees has something of the same effect. This sometimes works when it comes to achieving victory against the partisans. Is it more merciful? The usual result is that, rather than being killed by bombs, shells, and marauding soldiers, the deported get to die of malnutrition and disease in some equivalent of "protected hamlets," even as their women become prostitutes for the occupying forces.
But where, as in Chechnya, partisan attacks are erupting from the midst of the civilian population, preventing attacks on civilians by the antipartisan forces is obviously going to be extremely difficult. Soldiers may have a certain respect and even strange affection for the soldiers on the other side, who are undergoing the same risks and hardships as themselves. They may even prefer them to their own civilians sitting safely and comfortably at home.
But this respect will, in almost all circumstances, be restricted to recognizable soldiers. The eminent military historian John Keegan has discovered that in many wars, soldiers are much more likely to spare the life of an enemy from their own fighting arm, and, conversely, to kill a prisoner from another arm. Infantry sympathize with infantry, but hate cavalry or armored troops, and so on. In the First World War, memoirs of Verdun recall that the infantry on both sides reserved their greatest hatred for the artillery, which was pounding them from a distance--a hatred that extended even to their own artillery. Of course, captured enemy infantry were also sometimes killed-but, on average, they still stood a much better chance than captured gunners.
This attitude fully brings out the difficulty of inducing regular troops to respect irregular partisans, as well as the civilian population that shelters them. The willingness of soldiers to take prisoners from among enemy soldiers, and to treat them decently, also depends critically on a belief in reciprocity: that they themselves will be treated the same way if captured. Given the nature of partisan warfare, it would be impossible for a partisan force to give such assurances even if it wanted to. In fact, the usual practice of guerrillas is to take very few prisoners and to treat those they do take abominably. Both approaches have been characteristic of the Chechen partisans, and the international Mujahedin-who were also fighting there--have announced publicly the execution of prisoners and attempted to justify this under Islamic law.
Finally, antipartisan operations inevitably embody major elements of policing, and, therefore, lead to the typical crimes of policemen--but this is policing in exceptionally brutal, dangerous, and squalid conditions, with far less supervision from above, far less regulation by clear rules, and usually conducted by men who by their training and psychology are hopelessly unfitted to be policemen. In these circumstances, some use of physical force against prisoners and civilians is inevitable, although, of course, its degree of severity will depend on the character and policies of the states involved, the morality of commanders, and the discipline of their troops.
It will also depend, however, on the success of the partisans in killing those troops and thereby provoking them into taking revenge. At present, NATO forces on the Kosovo border with Macedonia are obviously pursuing an extremely civilized approach to the Albanian partisans and civilian population, as compared with the Russians in Chechnya. A key reason for this is that the NATO soldiers are not truly cracking down on the Albanian extremists they are supposed to be controlling; as a consequence, to date they have not suffered any casualties. The casualties are restricted to the Macedonians NATO says it is defending. It is not too hard for NATO soldiers to be civilized in that kind of operation. Their whole operation is eminently civilized--though one could also find other words to describe it.
The above remarks are not intended to lay down any exact set of Western approaches, concerning the Russian war in Chechnya and Russia, but only to suggest that these approaches should be a good deal more nuanced than hitherto. We should certainly condemn genuine Russian crimes in Chechnya--and these have been legion--but before doing so, we also need to be much clearer about what is and is not a crime. Furthermore, any such condemnation has to be combined with some awareness of past Western crimes, and of the inherently brutal nature of antipartisan war. Knowing something of war, and of the terrible psychological effects of combat, I myself find it difficult to judge too harshly certain crimes committed in the heat of battle, or to approve glib judgments of such crimes made from the safety of offic
When French leaders condemn Russia's "barbarism" in Chechnya and then profess to have been unaware of France's Algerian record; when American hawks damn Russia unconditionally but then find excuses for the mass murder of Vietnamese civilians, the result is certainly not to increase respect for the West or to further the cause of more-humane values throughout the world.
This is, of course, a very important cause. How actually to further it in the case of partisan and antipartisan warfare is another matter, and, as I have indicated, terribly difficult. The best approach, legally, practically, and above all, morally, may be to try to distinguish between crimes committed in hot and cold blood; this is, indeed, a distinction that is drawn by many contemporary legal systems.