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On War Crimes and Trials

Alan Dershowitz has a very interesting video up in which he discusses the possibility of trying Putin in absentia. The gist of it is, he probably won’t be tried in absentia, but Dershowitz thinks we should still have a tribunal of some sort to gather and evaluate the evidence, just so it will be available in the future (as it will become more and more difficult to determined the more time passes). He even suggests that Putin may want to present evidence via an attorney, if he truly thinks Russia is innocent of the crimes it is accused of. (I wanted to share a link to an Izvestiya article — the lead article this morning — that accused Ukraine of fabricating war crime accusations against Russia. I found it comical, mainly because Russia has been fabricating stories about Ukrainian “atrocities” in the Donbas for years, and finally invaded this year — an atrocity that is plain for everyone to see. I wouldn’t be surprised if Ukrainians exaggerated Russian actions, but Russia doesn’t have a leg to stand on in the court of public opinion. Unfortunately, I don’t see the article on the website any longer.)

One other interesting thing that came out of Dershowitz’s discussion is his admission that, by today’s standards, Churchill and Truman would also be guilty of war crimes for targeting civilians. And this is the point where I think the idea of “war crimes” becomes a bit of a sinkhole. It is well known that Allied behaviour in World War II was not always exemplary, ranging from the execution of soldiers who were trying to surrender up to bombing civilian targets. There are a lot of mitigating factors considering Germany and Japan’s horrible behaviour and the ongoing loss of life among Allied soldiers when the Axis refused to surrender. The trouble is, when you attempt to set up a universal standard of behaviour, it becomes very difficult to maintain a semblance of impartial justice during and following a war. As Dershowitz says, the justice after World War II was a victor’s justice. I have no problem with that; I’m sure that many of the convicted Axis defendants were very bad people and deserved what they got. It gets weird when we start saying we’re going to maintain certain (relatively high) standards ourselves, not because it’s wrong to have standards, but because war brings out the worst in people. There is no hope during a war that a judge is going to stop the violence by ruling in your favour; it is a classic anarchic situation. It is good to maintain one’s standards of humanity, but I’m not sure it’s realistic to expect people fighting for their lives to live up to standards established by a peacetime commission. The Geneva Conventions seem to have been reasonable minimum standards that both sides could respect (although they didn’t always); current standards strike me as excessively optimistic. We really are in unchartered territory here.

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