The start of General David Petraeus’ teaching assignment at CUNY's Macaulay Honors College has been marked by protests. During the protests, the retired General and former CIA Director has been pelted by charges that he is a “war criminal,” among others.
Following the initial protests, Macaulay Honors College Dean Ann Kirschner explained, "Our university is a place where complex issues and points of view across the political and cultural spectrum are considered and debated in the hope that we might offer solutions to the problems in our world." In the face of the continuing protests, interim CUNY Chancellor William P. Kelly issued a statement that CUNY “will continue to ensure” that Dr. Petraeus will be “able to teach without harassment or obstruction.”
The protests involve two issues. The first issue is the principle of academic freedom. The second is the content-related teaching opportunity that has emerged.
The Association of American Colleges and Universities (AAC&U) states that academic freedom concerns the ability of faculty to “explore significant and controversial questions” in serving higher education’s basic mission of “advancing knowledge and in sustaining a society that is free, diverse, and democratic.” The AAC&U explains:
[I]t is inevitable that students will encounter ideas, books, and people that challenge their preconceived ideas and beliefs… The clash of competing ideas is an important catalyst, not only for the expansion of knowledge but also in students’ development of independent critical judgment… Liberal education, the nation’s signature educational tradition, helps students develop the skills of analysis and critical inquiry with particular emphasis on exploring and evaluating competing claims and different perspectives. With its emphasis on breadth of knowledge and sophisticated habits of mind, liberal education is the best and most powerful way to build students’ capacities to form their own judgments about complex or controversial questions.
In his seminal treatise, On Liberty, 19th Century English philosopher John Stuart Mill offered a rousing defense of free speech, much of which is relevant to the principle of academic freedom. In part, he wrote:
Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right… [T]he necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion… [I]f any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility… [T]hough the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied…
With his background and experience, General Petraeus affords students an opportunity to explore important, and perhaps even controversial, ideas. Academic freedom compels no student to embrace or adopt those ideas. Instead, it implies that students will only examine those ideas in an open-minded pursuit of truth. Nothing more. To facilitate that end, academic freedom also encourages vigorous but reasoned dissent. Such inquiry and debate promote the larger academic goal of helping students develop and enhance the critical thinking skills upon which they will draw throughout any future study, their careers and in their civic life.
In terms of the teaching opportunity presented by the protests, labels such as “war criminal” are not merely verbal weapons of delegitimization freely available to be hurled against those responsible for devising and/or implementing strategies, tactics, or policies with which one might disagree. Terms such as “war criminal” have a specific meaning. Proper application of the term also requires a conviction following judicial proceedings consistent with due process.
The Rome Statute of the International Criminal Court is a good source for initiating the learning process. The definition of a “war crime” is derived from the requirements set forth in the Geneva Conventions of 1949. Those Conventions draw upon even earlier legal documents that comprise the Laws of War.
Under the Rome Statute, a war crime entails “any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages.”
In evaluating whether a war crime has taken place, evidence, including that concerning intent, matters. For example, there is a difference between a military operation’s inflicting excessive civilian casualties due to error and one that results in such casualties from indiscriminate bombardment or deliberate targeting. When it comes to proving war crimes, the evidentiary requirement is high, as should reasonably be expected given the gravity of the acts involved. Finally, the protesters' rhetoric notwithstanding, as of the date of this blog, General Petraeus has not been charged with any war crimes, much less convicted on any such charges.