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Thus "war crimes" are violations of specific—and fragile—taboos. Though a soldier may kill any enemy civilian who seeks to attack him, for example, he may not deliberately harm those who do not. The rules protect defeated enemy troops, the wounded, parachuting airmen and other helpless people. Forbidden weapons include dumdum bullets and poison. Forbidden targets include hospitals, churches, museums and coastal fishing boats unless used for military purposes. Torture, looting and political assassinations are banned. Reprisals are permitted against illegal enemy acts, but only on orders from top commanders and never against civilians, who may not be punished without trial before a court. Civilians may be removed from their homes for imperative military reasons, but they must be returned as soon as local combat ends. They may not be used to protect combatants, whether by placing them inside military objectives (a Viet Cong tactic) or by forcing them to precede troops across minefields, a practice that Calley admitted to without a qualm.
Moral Choice
With no international police or legislature, laws of war are mainly enforced by custom and the violators' own military courts. They have doubtless saved millions of lives. If observing them threatens to bring defeat, however, they are likely to be ignored. The big loophole is "military necessity." Though not a legal defense against specific prohibitions, says the Army manual, military necessity can justify any other acts deemed "indispensable for securing the complete submission of the enemy as soon as possible." In short, this authorizes the use of any tactics and weapons that the law has not caught up with—napalm, for example.
A lesser loophole involves "superior orders," a legal defense that 19th century military disciplinarians strengthened by insisting that superiors were never wrong. Two world wars weakened it. The Nuremberg Trial of Nazi leaders after World War II revived an ancient tenet of Western thought: a higher law sometimes requires men to give their primary allegiance to humanity rather than the state. Though 22 Nazi leaders pleaded "state orders," 19 were convicted and ten of these were hanged. About 10,000 lesser defendants were tried for war crimes throughout the world between 1945 and 1950. Nuremberg was aimed at top policymakers, upon whom it imposed liability for two new offenses under international law. These were "crimes against peace," such as waging aggressive war, and "crimes against humanity," such as mass murder and similar malevolent policies on the Hitlerian scale.
To skeptics who criticized the ex post facto nature of those restrictions, Nuremberg mainly proved that losing a war had become a crime under international law. Few recalled that some Allied leaders had wanted no trials—just summary executions. Nuremberg also produced a new U.N.-approved rule of civilized behavior: "The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." The U.S. Manual of Courts-Martial