McCain: War Hero or War Criminal?

Robert Richter has an article at Counterpunch arguing that commentators should focus more on McCain's conduct as an airman during Vietnam. In particular, his frame as a war hero may be incongruous with his role in the US policy of indiscriminate bombing during that war.

As character assassination attacks on Sen. Barack Obama have now taken over Sen. John McCain's campaign, and because McCain cites his military experience as of prime importance, now is the time to focus closer attention on a facet of the Arizona Senator's own character. This is related to his 23 combat missions for Operation Rolling Thunder - the Pentagon's name for U.S. bombing of North Vietnam... The targets McCain and his fellow pilots actually bombed in Vietnam and his justification then or now for the actions that led to his capture, are no longer simply old news. They are part of what must be taken into account today, as voters weigh support for him or Obama to be the next President of the United States.

Fair enough. I too would like to see more focus on how Presidential candidates fought in US wars rather than whether they did. However two minor misconstruals of the Geneva Conventions in his piece:

First, the time period to which he refers was the mid-60s, but the explicit protection for civilian populations against indiscriminate bombing was only codified in treaty law in 1977. So, under which provisions of treaty law would McCain or other US pilots be prosecuted for "war crimes" for failing to live up to a post-1977 standard for minimizing civilian casualties? (Not that they shouldn't be, but the legal case may not be as cut and dry as Richter hopes.)

In giving a nod to counterarguments, though, Richter concedes too much ground:

There were questions raised about whether the Geneva conventions applied to the pilots, since there had been no formal declaration of war by the U.S. against the Hanoi regime - and the Geneva rules presumably are only in force in a “declared” war.

If this was true then, it certainly isn't now. The rules are understood to apply in "situations of armed conflict" declared or not.