Throughline: War Crimes
Host: Rund Abdelfatah and Ramtin Arablouei
Release Date: May 22, 2025

Introduction: The Ancient Roots of War and Order

The episode opens with a vivid metaphor from ancient Egyptian mythology, illustrating the perennial struggle between order and chaos. Rund Abdelfatah narrates the nightly battles of the sun god Ra against the serpent Apep, symbolizing the creation of cosmos and the establishment of order for the ancient Egyptians. Historian Pamela Chambers elaborates on this narrative, connecting it to the divine justification of pharaohs' actions during wartime:

"The enemies of the pharaoh were likened to night and to disorder and chaos. And of course, the pharaoh and his army was then considered to be on the side of race." (00:20)

This ancient context sets the stage for the episode's exploration of how societies have historically justified violence and how these justifications have evolved into modern concepts of international law and war crimes.

Historical Foundations: From the Civil War to the Lieber Code

Transitioning to the 19th century, Ramtin Arablouei introduces the brutal realities of the U.S. Civil War, particularly highlighting the Lawrence Massacre conducted by Confederate guerrillas led by William Quantrill in 1863. Pamela Chambers underscores the unprecedented violence of the conflict:

"The Civil War was the most violent war the US had ever experienced. Neighbors turned on each other, brothers fought against brothers, and now guerrilla fighters were going after civilians." (08:54)

Faced with the moral dilemma of how to treat guerrilla fighters, the Union Army sought guidance from law professor Francis Lieber. Lieber's analysis, which distinguished between regular combatants and irregular guerrillas, culminated in the creation of the Lieber Code—a pioneering legal framework for acceptable conduct in war. Rund Abdelfatah notes:

"The Lieber Code was the first modern, comprehensive legal framework about what was and wasn't acceptable in times of war." (11:59)

Despite its groundbreaking nature, the Lieber Code contained provisions allowing for the bypassing of certain ethical guidelines under the guise of military necessity, a theme that resonates throughout the episode.

The Evolution of International Law: Hague Conventions and Nuremberg Trials

As warfare technology advanced towards the late 19th and early 20th centuries, the devastation wrought by World War I spurred the creation of the Hague Conventions in 1899 and 1907. These conventions, heavily influenced by the Lieber Code, aimed to codify the rules of war and protect civilians. However, opposition from major powers like Germany limited their effectiveness, as demonstrated by wartime atrocities:

"The Germans at the Hague Convention ... objected to virtually every article that was proposed on the grounds that it would conflict with military necessity." (15:06)

The true turning point came after World War II with the establishment of the Nuremberg Trials. Rund Abdelfatah recounts:

"In the palace of justice in Nuremberg... the international military tribunal judged the chief Nazi war criminals." (17:31)

Historian David Bosco emphasizes the significance of these trials in holding individuals accountable:

"The Nuremberg Trials really gave a lot of momentum to the idea of trying to investigate and prosecute crimes committed during warfare at the international level." (19:01)

Despite criticisms regarding victor's justice and selective accountability, the Nuremberg Trials marked a foundational moment for international criminal law, paving the way for future tribunals.

The Birth of the International Criminal Court (ICC): Aspirations and Challenges

Building on the legacy of Nuremberg, the episode delves into the formation of the International Criminal Court (ICC) in 2002. Unlike the International Court of Justice (ICJ), which handles state disputes, the ICC prosecutes individuals for the gravest crimes, including genocide and crimes against humanity. Historian David Bosco explains:

"The ICC specifically tries cases dealing with the gravest international war crimes, genocide, crimes against humanity and the crime of aggression." (39:52)

However, the inception of the ICC was fraught with political tensions, particularly with the United States. Initially supportive, the U.S. grew wary of the ICC's potential to prosecute its nationals, especially in the context of the "War on Terror." This culminated in the 2002 American Service Members Protection Act, which:

"Essentially [authorized] the President ... to bring about the release of any person ... detained by ... the ICC ... with provisions seen as a threat to use armed force against the ICC if necessary." (42:29)

The episode highlights the paradox of U.S. involvement: instrumental in establishing international tribunals yet simultaneously resistant to external scrutiny.

Modern Implications: ICC's Struggles and Geopolitical Tensions

Fast forward to recent conflicts, the ICC has grappled with its scope and effectiveness. The episode discusses high-profile cases, including arrest warrants issued against leaders from Hamas, Israel, and Russia's Vladimir Putin. Rund Abdelfatah points out:

"These cases signal a significant moment for the role of these international courts in adjudicating claims of genocide, war crimes or crimes against humanity." (05:55)

Despite its establishment, the ICC faces significant hurdles:

1. Selective Prosecution: The majority of ICC cases have focused on African nations, raising questions about its impartiality and effectiveness elsewhere.

2. Lack of Universal Jurisdiction: Major powers like the U.S., Russia, China, and Israel are not ICC members or actively resist its jurisdiction, undermining its authority.

3. Political Interference: The U.S.'s sanctions on the ICC in February 2025 have stymied its operations, particularly concerning investigations into Israel:

   "These sanctions have halted their work." (46:09)

Moreover, internal challenges such as limited resources compel the ICC to prioritize certain cases over others, often influenced by geopolitical interests.

Historian Pamela Chambers offers a nuanced perspective:

"Principles of power, power politics will always bedevil that effort to hold political leaders and military leaders accountable." (52:34)

Yet, she remains optimistic about the progressive nature of international law:

"The term genocide did not even exist 100 years ago... So my feeling is that the future is going to belong to legality and to human rights and holding countries accountable." (52:34)

Conclusion: The Ongoing Struggle for Accountability and Justice

The episode concludes by reflecting on the duality of the ICC's legacy. While it remains a symbol of the international community's aspiration to hold individuals accountable for egregious crimes, it also embodies the profound geopolitical challenges that impede its full potential. Rund Abdelfatah summarizes:

"War crimes are still happening. So has the effort to put war into a legal container ... been worth it? Is it still worth it?" (51:38)

Both Pamela Chambers and David Bosco affirm the importance of continued efforts despite setbacks, emphasizing that the evolution of international law is a "long, slow march" towards greater accountability and human rights protection.

Notable Quotes:

• Pamela Chambers on the Lieber Code's impact:

  "Libra code article 23. Private citizens are no longer murdered, enslaved, or carried off to distant parts." (11:23)

• David Bosco on the significance of the Nuremberg Trials:

  "The Nuremberg Trials really gave a lot of momentum to the idea of trying to investigate and prosecute crimes committed during warfare at the international level." (19:01)

• Rund Abdelfatah on the ICC’s current state:

  "It's clear that we're in a different phase of the Court's existence where it is more willing... to take on investigations that might entangle it with powerful countries." (50:40)

Final Thoughts:

Throughline's exploration of war crimes provides a comprehensive overview of the historical and contemporary efforts to regulate warfare and hold perpetrators accountable. By tracing the evolution from ancient myths to modern international courts, the episode underscores the persistent tension between the ideals of justice and the pragmatic realities of global politics. Despite inherent challenges and critiques, the pursuit of a more humane conduct of war and the enforcement of international law remain pivotal in shaping our world's ethical landscape.