01 Jun John Keegan: Bad (International) Law and Just Wars
Legendary British military historian John Keegan weighs in with an insightful criticism of the effect of modern international law (and especially institutions like the International Criminal Court) on the ability of a military to operate effectively. Reviewing the upcoming prosecutions of UK soldiers in UK courts, and perhaps in the ICC, he writes:
The United States has been much denounced for failing to fall into line with other states, particularly in Europe. Recent events suggest, however, that the Americans may have been wise to withhold their consent. The British are discovering why.
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The mobilisation of legal procedures within a law-abiding army, such as the British, against its own people, has the most undesirable effects. No one wants law-breakers to go unpunished. The reality is, however, that once military police and military lawyers start investigations, the normal understandings and assurances of mutual confidences on which normal army life subsists go out of the window.
Military lawyers, in the nature of their job, cast their net as wide as possible. Comrade is questioned against comrade. Suspicion is aroused. The law of self-protection sets in. Men who would never in everyday life impugn a brother in arms are driven to hint at wrongdoing. Worse, those in positions of command who would normally object to any accusations being levelled against their subordinates become affected by the desire to distance themselves from
criminal proceedings.
I must admit I’m not sure what I think about this particular criticism of the ICC-led movement to merge international human rights law and the law of war. And Keegan is obviously a pro-military institution kind of guy. But he also may be one of the greatest living military historian (writing in English) and has forgotten more about how military institutions operate than most of us will ever know. See a list of his books here. So his views are worth thinking about.
As I believe you had already noted, the action proposed against the UK alleging war crimes or crimes against humanity (i forget!) against the UK for sending soldiers to participate in a soi-disant illegal war is either
a) a clever ploy by the ICC who plan on completely rejecting the pleadings and thus reassuring notably the US that they are serious, or
b) a farcical way of shooting themselves in the feet and guaranteeing not only US non-cooperation but active hostility for ever and ever amen, not to mention the possibilty of the UK’s withdrawal.
Every criticism that you have relayed from Keegan about international law could apply equally to traditional military law. Surely, U.S. JAG investigations cause suspicion, the production of informants, and some loss of morale among the troops that are being investigated. But I don’t know anyone that uses these grounds to justify getting rid of military criminal law. I’m not arguing for international criminal law necessarily (the jury’s still out on this issue in my mind); however, the arguments that you have relayed here are pretty weak.
Jeff ought to have read Keegan’s article himself, he’s pretty clear on the specific advantages of military law, most relevantly, that war is a damn funny business and soldiers do a better job of understanding what happens there and so judging conduct there.
I paraphrased that somewhat.
You a randy travis fan, patrick? 🙂