War Crimes and Just War (review)

This is not really a history book, although it necessarily examines the history of military law in exploring war crimes and just war. Rather, War Crimes and Just War focuses more on recent war crimes in the context of the principle of "humaneness." Author Larry May, who describes himself as "a scholar of 17th century thought, political philosopher, and part time practicing criminal lawyer" (p. 22), argues that violations of the law of armed conflict are best understood as "crimes against humaneness rather than violations of justice …and that the principle of humaneness is the cornerstone of international humanitarian law" (p. i).

The book is well-written, thoughtful, and has been highly praised in academic circles; while in manuscript form, it won the 2005 Frank Chapman Sharp Memorial Prize from the American Philosophical Society (for the best monograph on the philosophy of war and peace).

The author's approach to war crimes is to be commended, because any scholarship that seeks to expand thinking about the law of armed conflict is good. The basic thrust of the book is that war crimes violate the principle that soldiers should act humanely. In May's view, this means that soldiers must "act with mercy and compassion, even as they are allowed to kill enemy soldiers" (p. 2). Much of May's book is devoted to explaining the philosophical underpinnings of this perspective, and May stresses "that even when it is 'necessary' to kill, there are still moral rules that apply" (p. 20).

Most of War Crimes and Just War is well-reasoned and thoughtful, especially when May explores the philosophical groundings for the law of armed conflict. The book also has an interesting discussion about holding senior military leaders legally liable for violations of the rules of war (pp. 256-278), and looks at history in examining what defenses should be recognized in war crimes prosecutions (pp. 279-300). May also has a good chapter on why terrorists should be treated humanely; nothing could be more relevant to the history of the war on terrorism (pp. 310-323).

But War Crimes and Just War is on shaky ground when it proposes replacing the existing legal principles of distinction, proportionality, and military necessity with a new comprehensive "baseline" principle of humane treatment. According to May, this new principle would require "minimal suffering on the part of others who are affected by our actions." When applied to combat operations, this would mean that any act would be "inhumane" (and consequently prohibited) if it made "another person suffer when nothing of equal or greater importance is accomplished by that suffering" (p. 78).

While the principles of distinction, proportionality, and military necessity are easy to define but sometimes difficult to apply (and this reviewer would add the fourth core principle, "unnecessary suffering" to the three examined by May), it is difficult to see how the law of armed conflict will be improved by jettisoning them in favor of a new humane treatment principle. The principle of distinction has been part of U.S. Army doctrine since the Civil War (when Francis Lieber authored his famous code governing the conduct of Union forces in the field). The principles of military necessity and proportionality have been a part of the customary law of war for many years. Finally, no serious student of the law of armed conflict would disagree that the principle of humanitarian treatment is explicitly embedded in the fourth Geneva Convention (and is implicitly part of the other three Geneva Conventions). In sum, the history of the law of armed conflict is the story of centuries of trial-and-error on the battlefield and, while that law is not perfect, it is universally accepted (every country has now ratified the 1949 Geneva Conventions). It also has worked fairly well for almost 60 years. Additionally, while May's proposal is interesting, it is hard to see how metrics for a principle of humane treatment (assuming they...