Before the centenary of the First World War gives way to the eightieth anniversaries of the Second World War, we should stop for a moment and consider how far we are regressing in the fields of law and human rights as careful internationalism is elbowed out of the way by heedless nationalism.
In 1918 the issue of trying ‘war criminals’ raised its head. In Britain, calls to ‘hang the Kaiser’ infected the General Election called immediately after the Armistice – the vote was 14 December 1918.
Eventually, in 1921, some war crimes trials were held with charges against military men of the defeated nations. It may seem bizarre to us now, but the trials were held in the German Supreme Court – in Leipzig.
One of the war crimes considered by the court was one of several instances of U-boats sinking hospital ships. This case concerned the British hospital ship Llandovery Castle and the loss of 234 lives. It is fair to say that the trials were not very successful – they were later referred to in terms of ‘farce’.
But they were a start – the German court ruled unequivocally “Any violation of the law of nations in warfare is…a punishable offence.” They advanced international law – an advance that may seem small from this distance in time, but that became significant.
These trials were instrumental when politicians and lawyers were establishing war crimes trials after the Second World War – including the Nuremberg Tribunal. And those war crimes trials set the foundations for modern international military and criminal law.
One hundred years on from the identification of the sinking of the hospital ship Llandovery Castle as a war crime, and hospitals are still seen by some regimes as legitimate targets – for instance in Syria and in the Yemen. (The latter case almost certainly involving British supplied armaments.)
Why is that possible? Did we think that the careful Geneva Conventions and all the laws of war had got us beyond that?
In Syria the state has been targeting hospitals its own hospitals and its own people. One British surgeon guiding a complex surgical operation in a ‘rebel held’ hospital via Skype (and similar digital connections) is certain that hospital was targeted when the Syrian authorities traced where the Skype signal was being received.
Other hospitals have been hit during the Syrian civil war. They may not have had Red Cross/Red Crescent symbols on their roofs, but hospitals do feature on town plans.
(Incidentally, it has recently been revealed that the Syrian regime targeted and killed the journalist Marie Colvin by tracing signals from her satellite phone. The French photojournalist she was working with was also killed.)
Part of the problem is, of course, that much of the law of war was drawn up to regulate wars between state armies. Civil wars and a-symmetrical wars involving non-uniformed and often untrained and not appropriately commanded forces, do not yet have their rules and laws. They may never get them.
However, it is obvious that ‘war crimes’ are still being committed by both sides in such wars whether terror organisation against terror organisation or state versus terrorists. And have been committed by both sides in Syria.
Now we come to those ‘red lines’. Chemical weapons are forbidden by a straightforward, uncomplicated international convention – so in some ways they are the most straightforward war crimes when it comes to punishing those who use them.
They are also a uniquely vile and cruel way of killing your enemy and they are indiscriminate – they kill civilians. They have become a convenient ‘red line’. But, sadly, one that implies that any method of killing except chemical weapons is to be tolerated.
Why, it is pertinent to ask, was there not a ‘red line’ held to by western nations and other Arab nations, which said that use of ‘barrel bombs’ dropped from the air will automatically bring down punishment? They too are weapons of terror – if terrorists could deliver them they would do so. They too are indiscriminate – they kill civilians.
Indeed, ‘barrel bombs’ are almost certainly designed, built and delivered to kill civilians – as are chemical weapons – and as such, they are forbidden by the laws of war.
We know that war crimes charges could be brought. Syrian leaders – including Assad – should end up at the International Criminal Court (ICC). They could be charged with crimes against humanity – the jurisprudence of which began during the Second World War and were first given some substance by the Nuremberg Tribunal.
Instead we are simply regressing. We have a Prime Minister who told electors she would dilute human rights laws that hindered the pursuit of terrorists – who apparently finds the phrase ‘international law’ hard to utter – who stated her government would withdraw from the European Court of Human Rights who is now overseeing the re-writing in secret of British rules on the use of torture.
Great Britain signed the Convention against Torture in 1985. Torture is – or ought to be – a ‘red line’ for British politicians. Why do they behave as though they are, when it suits them, above the law and beyond the reach of international law? Are they taking lessons from Syria’s dictator?
Or are our politicians simply following our closest ally and its President – who calls for more waterboarding and puts in charge of the CIA a woman who apparently oversaw a secret U.S. ‘Black site’ – or torture centre.