Morality and International Humanitarian Law
International humanitarian law proscribes certain actions in war, particularly actions that harm non-combatants. On a strict reading of these laws (see what Richard Goldstone said in his debate with Dore Gold at Brandeis University here and see what Matthew Yglesias had to say here), these actions are prohibited regardless of the justice of the war itself: there are certain things that you are just not allowed to do, no matter what. The natural response of any warring party accused of violating humanitarian law and confronted with this argument (aside from simply denying having done the things they are accused of doing) is to insist that their actions in the war cannot be judged outside the context that led to them going to war in the first place. They are the aggrieved party, they are in the right, and they did what they needed to do to defend themselves. Any law or law enforcer who fails to understand this critical distinction between the good guys and the bad guys is at best hopelessly naive and at worst actively evil.
What to make of this response? On the one hand, the position taken by Goldstone and Yglesias can’t strictly be morally right. No one really believes that moral obligations in a war are completely independent of whatever caused the war in the first place. For example, it can’t but be the case that the set of morally acceptable actions if you are defending yourself against annihilation is different from the set of morally acceptable actions if you (justifiably) take offensive action in response to some relatively minor provocation. (Which situations justify which actions is, of course, a hugely important question, but it is not the point here.) On the other hand, the whole point of constructing humanitarian law to be independent of the moral claims surrounding the war itself is that while there is at least one wrong side in every war, there is no real hope of getting the warring parties to agree on which side that is, so the only way for humanitarian law to make them behave any better is by side-stepping the whole issue of who’s right and who’s wrong.
So any sensible moral standard demands that the context be considered, but there is an excellent reason why the legal standard requires that it not be. What to do? Since requiring that the context be considered would pretty much be the end of humanitarian law, the question boils down to whether the benefits of a neutrally-administered humanitarian law are worth whatever injustice would be suffered by the occasional country that gets condemned for doing an illegal but morally justified act. I think it’s clear that these benefits far outweigh the costs, but in any case that’s the tradeoff.
P.S. Though I used Goldstone as the example to motivate the post, I deliberately stayed away from discussing the specific war that he was talking about. I don’t think my views on that war can be inferred from what I wrote in the post, but in any case I would ask that folks not argue about them in the comments, not because it’s not important, but because this isn’t the right forum for it.
My thoughts, expressed in a sound bite:
If something isn’t worth killing civilians over, it’s not worth killing soldiers over either.
(Note that this is logically equivalent to its contrapositive: anything worth killing soldiers over is also worth killing civilians over.)
It’s far from clear to me that that’s true; soldiers, more or less by definition, are people who are more than usually willing to be killed in warfare. They are also typically engaged in (actual or attempted) killing of their own.
On the other hand, they commonly get killed in much greater numbers than civilians do, even when international law is being disregarded.
So the principle in question is really something like “If something doesn’t merit killing a small number of innocent third parties, then it doesn’t merit killing a large number of people who are actively trying to kill your people and who are willing to risk death in the process”.
Of course, that doesn’t make such a good soundbite. But I think the details that make it less of a soundbite have to be considered when evaluating it.
Volunteer soldiers, who may comprise a minority of soldiers in the world.
(This comment has been significantly edited since its original posting.)
Well, my thinking was more along the lines of “If it’s okay to kill soldiers, then it’s also okay to kill the civilian farmer growing food to feed the soldiers, without which the soldiers would be less able to fight.” In other words, I am indirectly arguing for an end to civilian immunity in war.
There is a well-known and proven technique that allows a conventional fighting force to defeat a guerrilla insurgency. It is known as collective punishment. All that is required is that the civilian population be more afraid of the conventional army than it is of the guerrillas; if they are sufficiently terrorized, they will turn over the guerrillas to the conventional forces. If that fails, the conventional forces can simply attack the population itself. Level a city or two, as Syria did, and soon you’ll have much less of a problem with insurgents. ;)
In a symmetric war, not targeting civilians is cooperating in an iterated prisoner’s dilemma; you don’t want to switch from C/C, except in the (seemingly very unlikely) event that the war will end so much more quickly that overall suffering is reduced.
What you say seems correct as a matter of pure terminal values, but this also seems like a great example of a situation where common-sense values that claim to be terminal* are implausible as such but contain real instrumental wisdom.
* to the incomplete extent that common-sense morality makes this distinction
I’ll agree that, a lot of the time, going out of one’s way to kill non-combatants just isn’t very useful. They’re non-combatants, after all, so they’re much, much less of a threat. It’s generally more efficient to kill only the people shooting back at you. But if your cause isn’t worth killing civilians over, should it become expedient to do so, then maybe it’s better not to resort to violence in the first place. Indeed, you can’t send a foreign army anywhere and expect to be considered liberators, or, at least, you can’t expect to be considered liberators for very long. If you’re going to invade some other country and expect to have a lasting influence on it, you’re a conqueror—so if you want to be successful, you have to admit that conquering is what you are doing, and do the job right!
(The U.S. really sucks at conquering these days; we haven’t conquered anything successfully since World War II ended, and I’m not sure that really counted. I suspect the last time we really conquered something was during the Philippine-American War...)
True, but these are pretty rare these days.
Then is it okay to kill peace protesters? Children?
If killing the children of suicide bombers deters future suicide attacks, then, by all means, let’s all go out and kill us some children! (Although I suspect that killing their parents might be more effective, as most suicide bombers are unmarried.)
I also endorse a general policy of shooting through human shields; hostages won’t be taken if they are of no value, and intermingling civilian and military facilities, as Hezbollah does whenever it builds a school on top of an ammo dump, is already recognized as a war crime under international law.
Summary of the thread until now:
Crono: If it is ok to kill soldiers it is ok to kill civilians. And vice versa. gjm: But wait there are important differences between soldiers and civilians. Soldiers kill and are often willing to be killed. We should consider these distinctions in evaluating this issue. Crono: Civilians are part of the war effort too and are willing to help in killing. (Adding after my comment: Collective punishment is a good tactic!) Me: Some people aren’t part of the war effort. Protesters, children. Crono: If killing children prevents suicide bombers, do it. Also, look at these other cases where we should kill civilians.
You’ve given some arguments for why you think killing civilians is good strategy in some circumstances. But I don’t see how this answers the issue gjm brought up. Even if there are circumstances in which killing civilians in justified it doesn’t follow that reasons for killing soldiers are good enough reasons to kill civilians. It seems like the fact that soldiers are more willing to die and that they are likely to kill if they aren’t killed first are very good reasons for requiring weaker justifications for soldier killing than civilian killing. Why is gjm’s point wrong?
Also, as this is a discussion about international law the question is about setting norms for war fighting. As such, do you think collective punishment and killing the children of soldiers to deter them make sense as norms governing conduct during wars?
I would also note that while you’ve given evidence that breaking international rules regarding killing civilians can be useful, the question is whether or not the benefits outweigh the costs. How much shorter will the war be if you kill all the farmers? How many fewer men will die in total because you nuked that city? How much less will future generations value human life because rape and torture are considered acceptable means to an end?
My knee-jerk reaction is that having these standards may indeed reduce overall casualties and that they are important for international image and future cooperation. I am open to evidence to the contrary though.
If you happen to be the weaker side then potentially quite a lot longer.
I think that’s the argument that by default requires proof, not the other way around. Intuitively, having external independent standards can only prevent me from best accomplishing my goal, whatever my goal may be. If my goal is to kill while also killing few civilians, I’ll go for that, but I’ll do it more efficiently in most cases than if I have to follow laws I don’t believe in.
I would say the opposite, out of conservatism, but I don’t expect to be able to argue the point as anything more than headbutting intuitions.
True of normative reasoners, not of humans. See Ethical Inhibitions.
I absolutely agree with you if my own actions are the only ones I am taking into account, however I expect that the actions of others will better align with my goals if the standards are in place.
Given the high cost of implementing these standards, some level of proof (or at least a calculation of expected future utility) should be given as justification for their existence. I can think of two ways of examining this:
1) Compare the casualties (or other desired metrics) of similar conflicts before and after the implementation of standards and in situations in which standards were adhered to or ignored.
2) Try to quantify metrics of interest in a hypothetical war with or without adherence to the standards. This of course is very difficult, but I’m not willing to say impossible.
(1) doesn’t really help us predict the effect of proposed new standards that have never been tried before, and that’s what we really want to do. I hope we can find a way to achieve (2) :-)
Their soldiers have usually done that for you.
Yes, well then it hardly seems right to kill the farmers and other civilians who don’t protest for fear of their lives and the lives of their family.
The soldiers are often fighting on pain of death too. Pretty much the only people who it is ‘just’ to kill are the leaders who are throwing men at each other for their own personal gain. Assassination should be considered the most honourable form of combat in war.
Agreed. Though with soldiers it is a collective action problem. If enough of them were willing to disobey orders they would have little to fear. This makes the soldiers somewhat more culpable than, say, children. The point about assassination is a good one.
Agreed. Especially since they have a gun and could at least KO their CO and leg it.
There are problems with a norm that says killing foreign leaders is OK, but wedrifid’s point also has merit.
For a start, paranoid leaders kill more of their own civilians than secure ones.
On the other hand, many conflicts have a self-perpetuating nature independent of the specific leaders involved. Assassinating Alexander the Great may very well have saved Persia from conquest, but assassinating FDR or Stalin would have been of little benefit to the Axis powers. Assassinating Hitler may or may not have helped the Allied powers, and I have no idea what effect assassinating Napoleon would have had. If an assassinated leader’s successor simply continues their policies, then assassination does little good.
Also, an assassination was the trigger for World War I. :(
Agreed.
Voted up for bullet-biting.
Is bullet-biting an inherently good thing? Is it even reliably correlated with good things?
I guess it depends on how you define bullet-biting. Let me be more specific: voted up for accepting an ugly truth instead of rationalizing or making excuses.
Yes. (But having good preferences to ‘bite bullets’ towards is rather important too.)
Which question are you answering “yes” to?
Also, evidence?
The first.
As an answer to the first question it is a normative claim. All else being equal I prefer a universe in which bullets are bit than where they are not bit. The evidence for this is that I say I do, have no particular motive to lie and consistently demonstrate sufficiently aversive reactions to non-bullet-biting for me to have reliably inferred whether or not I consider it an intrinsic good. Depending on your moral philosophy you may consider it appropriate to declare my answer false but this would not be because of evidence.
In response to the second question, biting bullets also increases the relationship between one’s consequentialist values and one’s belief about optimal actions to take. Unless other assumptions and reasoning are sufficiently poor there will be a correlation to other good things.
Bullet biting is a terminal value for you? That is one of the weirdest things I’ve read in a while. More power to you, I guess, it doesn’t threaten my terminal values so long as you aren’t sacrificing truth for it.
Weird? Sacrificing truth? Are we even talking about the same concept here?
Bullet biting means excepting a disturbing conclusion instead of using the conclusion to reject one of the premises in a modus tollens or reducio argument. Some arguments that bite the bullet are probably true. If you want to consider them extra good because they also take this form, fine but most people tend to value things like happiness, freedom, knowledge etc. Biting the bullet looks kind of weird next to that list but terminal values aren’t things you can be argued out of. Problem is, some arguments that bite the bullet are false. Were you to value biting the bullet over truthfulness you’d basically be declaring your willingness to argue dishonestly in cases where you can make arguments that bite the bullet.
Or maybe we’re talking about totally different things.
I tend to associate not-bullet-biting less with rejecting one of the premises and more with “just kind of ignoring the whole thing because actually believing what your premises would lead you to conclude is silly even though the premises are the Right thing to believe”.
I agree about what is bullet-biting. Yes, a common alternative to bullet-biting is forgetting the argument through cognitive dissonance. But there are other alternatives, such as worrying that the argument is wrong, or that subtle errors in the hypotheses make a difference. Especially in something like politics (the original context), simple hypotheses are unlikely to be true enough to push deduction very far.
But let’s go back to Alicorn’s original question: is bullet-biting good? It sure looks better than cognitive dissonance. Acknowledging a problem is good, but biting a particular bullet means choosing a conclusion to support or a hypothesis to discard and that choice is high-risk. Some weird and unpleasant things are true and you have to bite those bullets to get the right answer, but it’s pretty easy to bite the wrong bullets and do worse than the people who follow the incoherent crowd. For example, the young TGGP followed mainline Christianity to the conclusion of Cthulhu. This is what typical bullet-biting looks like.
Your basic assumption that war are ever just has very little evidence behind it, making the question meaningless from consequentalist point of view (but maybe not deontological).
This evaluation ignores the consequentialist result of holding “entering into a war is never justified” as a major worldview/national policy. If you view wars of retaliation as a necessary expense to maintain a credible threat of retaliation, it changes the equation completely. That is, failing to retaliate would send the message, “You can always get away with attacking us,” the cost of which, over time, would probably significantly outweigh the cost of any specific war of retaliation.
I really liked your post, particularly the economic analysis underlying it.
On a similar note, however, I wondered about the incentive-compatibility effects of looking at the deaths in any individual war by themselves. Might not we say that “just” wars are really wars in which failure to respond to a certain form of aggression would incentivize future global-utility-harming actions?
Each individual war may be utility-harming vs. no war, but being willing to go to war in “just” circumstances may reduce the number of such wars (or acts of aggression, or invasions, or whatever) and thereby provide a net positive utility.
Game theoretic thinking about wars (wars are bad, but not fighting would provide incentive for invasions, what would be worse) is extremely common, but completely at odds with historical experience—history consists of “wars to end all wars”, “wars to punish aggressors” and alikes, not a single of them actually worked at stopping future wars. On the other hand just giving in, like many did to Romans, or Mongols, not too infrequently led to centuries of peace.
I haven’t seen a single shred of evidence for game theoretic interpretation of wars.
Much of modern political science of conflict consists of testing game-theoretic models against evidence… either of the APSR or AJPS has dozens of such articles over the last decade. I actually wrote a thesis on game-theoretic models of war, so I have references if you’d like them.
Either way, we don’t even have to conceptualize this as game theory (though explicit use of game theory may have prevented nuclear war—see Schelling’s The Strategy of Conflict and his Nobel citation). Empires appear to frequently fight as a demonstration of their strength, if nothing else. Might that be why “giving in” to the Romans was followed by peace: other tribes could see that future wars would be met not by complacency but with force?
Giving in to the Romans or Mongols worked because they had no interest in harming your population. They would have wanted taxes and levies (of soldiers), and these are reasonable things to negotiate in exchange for peace and protection inside a big empire.
On the other hand, giving in to e.g. a Nazi invasion is very foolish if you have reason to think they’re going to kill one third of your men, take another third as slave labor, and starve the last third to death. (These were the actual German plans for Poland and Ukraine, which they didn’t have time to carry out due to the failure of their war on the Eastern front.)
Were the US, Canada, etc. wrong to enter the European fronts of WW2 for game theoretical reasons?
Hard evidence for it being? It’s quite easy to see that peaceful Nazi conquests like Austria and Denmark had it far better than those that fought back like Poland and Soviet Union.
What reason is there to think that the Nazis would have treated a country like Poland differently if it surrendered without resisting? They made clear their view of the rights of Poles (none) and the purpose of the invasion (replacement of the Polish population with German settlers) for a while before the invasion. At least some of the actual plans and directives for this had been drafted before the invasion as well. I could give you references if you like, but unfortunately I’ve loaned away one of my main sources, a book called The Wages of Destruction. I’ll have to see if I can find an ebook copy if you want specific refs.
In brief, a country that wants to offer better terms to enemies who surrender will publicize this fact and offer good terms of surrender. Germany didn’t do this, instead they publicized their leadership’s view on races and human rights and might makes right. Why not believe they meant what they said?
Why not believe they meant what they said?
Exactly. For ‘racial’ reasons alone, Austrians and Danes would get an easier deal than Poles or Ukrainians.
Also, while I find your (taw) posting here and at your blog enlightening, I cannot help but feel you ignore that history teaches us only partial derivatives.
True, Denmark got a sweet deal, but your only comparison is ceteris paribus. We do not know the result if every single country subject to Nazi aggression had chosen to yield. The result may definitely have been less lenient for the Danes.
Finally, I believe it’s commonly accepted that Hitler intended to attack the Soviet Union no matter what, and that he did not expect UK and France to actually go to war over Poland.
The Soviet Union ended up worse off than it would have been under Nazi rule? Possible, but certainly not guaranteed from the evidence. I suspect Austria and Denmark’s similarity to Germany and the relative absence of the demographics that Hitler targeted may have played a role.
Perhaps nations fight back precisely because they have more to lose.
While I’m commenting here...
Don’t the Mongol tactics fit brilliantly into game theory?
Razing and killing utterly the first resisting city is a bad outcome for the Mongol conquerors, but ″pour encourager les autres″, it leads to subsequent substantial gains as the next city on the list decides to ‘defect’ and surrender immediately rather than ‘cooperate’ and get burned, even if the cities had collectively resisted to the last man the Mongols might’ve been stopped before they got too far.1
It maps pretty well onto the Prisoner’s Dilemma, I think—the Mongol’s announced commitments put each city into a situation where its optimal outcome (surrendering peacefully) leads to a global suboptimum (China under Mongol rule).
Not really, you can write a just-so game theoretic story for everything, that doesn’t mean it’s true.
There were too many instances of countries not only resisting Mongols against really bad odds, but also of more ridiculous actions like killing Mongol envoys for no apparent reason, even when Mongols weren’t trying to invade. I’ve never seen anyone using game theory to even make testable retrodictions for historical actions with any success.
Although the Mongols did take as captives individuals with certain artisanal skills (saddlemaking might be one such IIRC) such individuals only ever made up a tiny fraction of the population of a besieged city. The rest were usually killed (and the city burned) when the city stopped fighting at least when the Mongols were operating in Europe (I don’t know about Mongolian operations in Asia) because the Mongols had learned from experience that most European city-dwellers could not adapt to nomadic life. (European nomads might have fared better, but there might not have been any nomads in Europe aside from the invading Mongols).
So, giving in to the Mongols was often a very bad idea.
ADDED. I hereby retract part of what I wrote above, namely, “because the Mongols had learned from experience that most European city-dwellers could not adapt to nomadic life”. I no longer have an opinion on the considerations that led the Mongols sometimes to kill the inhabitants of a captured city. Moreover, I retract my final sentence, “So, giving in to the Mongols was often a very bad idea.”
I’ll try to be more careful in the future :)
Correct me if I’m wrong, but my history books make a specific point of mentioning that Mongol treatment of captured cities was incredibly brutal when the city had resisted, and that cities that immediately surrendered were treated very well; which is what taw is saying with ‘just giving in’.
gwern, I amended my coment (grandparent of this comment) so that now our comments no longer contradict each other. For those reading via the comment feed, here is gwern’s comment again:
This is what I remember learning a well and a cursory google search appears to confirm it.
Giving into the Mongols worked out very well for the Russians, at least in the intermediate run. They were left alone to rule themselves for the most part as long as they paid their taxes. (In the long run, areas ruled by the Mongols ended up relatively backward when compared to the rest of Europe.)
Well, there is one interesting incident regarding Mongols and city dwellers and nomadism:
(http://history-world.org/mongol_empire.htm)
How do “wars to stop the invaders looting your stuff, killing most of your menfolk, raping your women and eating your lifestock” fit in here?
You have a strange idea of ‘just’ if it doesn’t include a nation defending itself from attack (war) ever.
Also, if the aggressor is killing all of your population, then it will be their genetic descendants enjoying those centuries of peace, and not yours.
Oh please, everyone war in history was two nations both “just defending themselves” or having an otherwise good excuse and invader stories are as reliable as the ticking clock of torture stories.
What usually happens is that elites of one country want to get some concessions from elites of other country, and the common people in both suffer. Their vast suffering counts for nothing compared to the slightest one of the elites, of course.
No they didn’t. Some just wanted to take over stuff and said as much.
You have changed from everyone to usually. You also completely neglect the fact that the inhabitants of invaded countries are not always treated particularly well. By ‘not treated particularly well’ I mean they are killed, raped, taken as slaves or generally left destitute.
Invasions are not happy events for the populous, even when you do not put up a fight. Especially if you are not the same colour as the conqueror. Prevent them if it is convenient to do so.
Although I find your cynicism appealing the position you have taken in support of your is untenable. You don’t need to kill all the enemy soldiers for “War’s are never about justice” to be victorious here.
Indeed, and this should be stressed. The Mongols and the army of Alexander the Great are both examples of this. So are the various religion-fueled wars between Christian empires and Islamic empires. Hitler was another would-be conqueror who didn’t make his ambitions much of a secret. Napoleon, too, was an invading conqueror; I don’t know what arguments he made to justify his invasions of the rest of Europe, but he certainly acted like a conqueror.
We usually think of the Romans as conquerors, but they didn’t think of themselves that way. In their writings, they almost always described their wars as defensive conflicts, much like the U.S. has.
The Allies won World War 2 largely by killing about 2 to 4 million civilians in Germany and Japan. Therefore, it isn’t clear that the benefits of not killing civilians far outweigh the costs.
This will become more important as technology decreases the difficulty of building WMDs. Eventually, even a small nation like North Korea will be able to make nuclear missiles. By that time, the cost of allowing them to do as they please (and encouraging other nations to also do as they please) may be greater, in expected lives lost, than the cost of brutally killing a million North Korean civilians.
I would go on, but there’s no point in going to the next shock level.
I doubt very much that is correct.
Germany’s & Japan’s populations suffered as little moral damage as the UK’s did during the Blitz.
Germany’s war-time production in general only suffered and faltered in late 1944.
Whether Germany had lost 0, 2, or 10 million civilians in May 45, massive Allied armies occupied the country and capital. As I see it, Germany primarily lost due to its lack of oil and battlefield defeats in the East.
Japan had lost the war economically far earlier than August 45. The scale of civilian casualties during the nuclear bombings had only a psychological effect on the Japanese government, although obviously a major one.
Naturally, the North Koreans will use similar reasoning just as hard as they can. How powerful do you need to be before you are promoted from ‘pre-emptive strike’ to ‘cold-war’? (I support placing N. Korea in the former category for what it is worth.)
I would put Pakistan in the “potential target for destruction” category before North Korea. I’m more scared of Islamists with nukes than North Korea with nukes. North Korea is essentially a country run by the Mafia; they’re not going to nuke anything if there’s no money in it and their power and wealth are not threatened. Islamists believe that if they get blown up by a nuclear weapon, they go to Paradise. They might very well prefer mutual annihilation to mutual coexistence.
What odds would you give on a nuclear weapon being detonated in Israel in the next fifty years?
I only give odds if I think the person I’m betting with knows less than me (or bets irrationally).
In the longer term, engineered viruses might be a bigger WMD threat than nuclear weapons. If you have the technology, you can make smallpox virus a lot more cheaply and with a lot less infrastructure than you can make enriched uranium or plutonium.
Seconded.
You mean ones not built with leprechaun gold and rumour, powered by moonbeams and levitating over the great big pot of oil at the end of the rainbow?
What about ‘awe’? (To give Taw some more examples!)
This is a little too strong for me. In domestic criminal law some means are permissible for resolving personal disputes and others are not. If you insult me I can insult you back but it is illegal for me to kill you in response. But in cases of actual self-defense I can kill you. There are even cases of less immediate self- defense in which this is permitted (some types of extreme stalking, abusive spouses, etc.). Other provocations don’t justify murder but they can lead to more lenient sentences. So it doesn’t seem to be the case that law needs to ignore context. The fact that neither of two warring nations would admit to being in the wrong is beside the point- just as contextual facts are evaluated by domestic courts they can be evaluated by international courts. And the extent to which a particular set of circumstances can alter the ruling is a question of jurisprudence, a jurisprudence that can’t be established until we have an impartial and legitimate international justice system. A court needs to evaluate some test cases to establish the kind of exceptions we want. Unfortunately, I’m not sure we actually have a legitimate and impartial international court.
Even if we had a perfect court, we have no enforcement system. If we had a working enforcement system, we could use it to prevent all the wars in the first place.
Neither the court not the enforcement mechanism have to be perfect. And the mechanism for enforcing war crimes and crimes against humanity doesn’t have to be so powerful as to be able to prevent all wars. I agree that we’re not likely to see a state-like system for enforcing international law any time soon. But all that is needed is a small multinational force backed financially and logistically by the United States. And they don’t need to catch every bad guy, even a prosecuting a handful would go a long, long way to deterring future leaders.
What mechanism could there be for enforcing a judgment on a country that won its war of illegal aggression, other than some powerful enforcer nation(s) warring against that country?
I’m not saying there are no alternatives, I’m just asking.
Incidentally, that’s exactly what happened when Saddam’s Iraq invaded Kuwait.
There have been proposals for an independent force under the control of the UN. But I don’t really have a problem with enforcement meaning nations warring for basically the same reasons I don’t have a problem with the state using violence to enforce domestic law. For various reasons the kind of nations that are going to be involved in enforcement are going to be more democratic, more liberal, more legitimate and more powerful than the states run by war criminals. And the actions of the enforcement force will be observed far more closely by than the actions of your average autocracy. If this isn’t obvious I guess I can go into it more. All this doesn’t mean enforcement will never ever ever lead to abuse, but crimes during enforcement will be substantially less likely than crimes during your average ethnic conflict or authoritarian territory grab.
If there were an external force that was decent enough and powerful enough, then it would make sense to have that force actually decide which side is right on the merits, and that would pretty much be the end of war. That would be great. Whether it is possible, or whether it is likely to become possible, are very important questions. But right now no such force exists. Humanitarian law serves the function of limiting the human suffering caused by war, and as such is very valuable.
It does this only insofar as it is enforced. If it were enforced more, more people would be deterred. If it was enforced less, fewer people would be deterred.
Given the current state of the world, Putin’s Russia is going to be one of the enforcers. How do you feel about that?
Not sure I grant the premise but Russia definitely isn’t going to be enforcing anything unilaterally. Other militaries would be a pretty solid check on abuse.
Well, there was that one incident last year...
How is that an instance of international law enforcement?
Russia claimed, among other things, that it was acting to protect South Ossetians from Georgian genocide. That makes it definitely count as a case of Russia enforcing (their interpretation of) international law unilaterally, with no repercussions from other nations.
That makes it a ilaw vigilante, not part of an enforcement regime. As a rule, aggressor nations say stuff like that. Part of the point of an international criminal court is to legitimize actual humanitarian interventions.
How independent could it really be? Who would be giving the orders?
The UN General Assembly? That has all the disadvantages of a non-representative democracy—tyranny of the majority and so on. Plus the disadvantages of deciding questions of law and morals by vote. You’d get big alliances or parties sticking together right or wrong, and demanding rent from others (join us in votes or we’ll vote war on you).
For instance what if all the Arab countries voted for war against Israel? What a bunch of countries voted for war against some little county you never heard of? I don’t want to rely on the other countries diligently fact-checking every time when they suffer no repercussions for making mistakes.
What if votes were by UN GA with veto power to a few big countries, like today’s GA resolutions? That just means those big countries, like the US, are above the law and can also grant their proxies and satellites above-the-law status. And because these countries aren’t afraid of ever being voted against, they don’t care much (from symmetrical considerations) about enforcing the law correctly against other countries. Instead they enforce the law only in their own interests.
Plus, in any war declared by a voting body like the UN, the voters are liable to cancel the war after the first battle gone wrong.
OK, what if decisions were made by some International Court of Justice? Well, how would you elect the judges to this court? Or do you want 1000-judge panels with a judge from every country? That would be the same as voting.
Why is that? I think a much simpler explanation for the state of affairs today, and a much better predictor of the future, is—the nations involved in enforcement are going to be whichever nations belong to the most powerful military and economic global alliances. They have to be to be able to enforce judgments against anyone else; and they do it to protect their own economic interests.
The UN needs to be reformed. Specifically, the Security Council (which is where the big countries have vetos) needs to get rid of the veto and replace it with a 2⁄3 or so supermajority requirement. This would be the body that would have control over any security forces.
But that really isn’t the issue. Every potential problem you point out has an exact analog in domestic government. Majority rule? Check. Fear that some will be above the law? Check? Militias abandoning their posts when things get ugly? Check. The wealthy using the law to enforce their own interests? Check. What is needed is the right set of institutions to alleviate these concerns. It will be difficult. It may be impossible. But I don’t see why the result would be worse than the status quo.
Well for one thing, the most powerful military and economic global alliances consist mostly of democratic countries. For another, leaders of non-democratic countries tend to be more wary of granting ilaw legitimacy because they are more likely to be prosecuted by it. Israel and US are in pretty unique positions that cause them to reject the ICC, but by and large the biggest objectors are autocrats and ‘rogue’ states.
It’s fine saying it “needs to be reformed”. How do you see this actually being done? The existing UN will resist (with votes and vetoes) any reform movement. The only realistic proposal is for most countries to go off and start their own body and ignore the UN. This happened once before—when the League of Nations was disbanded. And how did that occur? By the Big Guys (US and USSR, basically) deciding at the WW2 Tehran Conference to do it. The rest of the world combined (other than Axis-allied nations) couldn’t have done anything to stop them if they wanted to. And they conveniently gave themselves unique veto powers in the new body they established, the UN.
Democratic-esque nations use variations on the separation of powers—passing laws, passing judgments, and enforcing them. The UN would have to have an equivalent. Essentially a world system functioning like the EU. Well, we can dream, but I don’t see this happening. A lot of nations will not freely vote to be subject to the UN. Which leaves you with a body forever enforcing laws on nations that don’t agree to them and don’t want the UN to exist.
The theory of nations includes the idea of self-determination. It’s the opposite of universal worldwide law. (The practice of nations, of course, is ‘might makes right’.)
My point is that this is an utter coincidence, and unlikely to last indefinitely.
Reforming the UN would definitely require the support of some of the current UNSC veto nations. But the idea is actually quite popular among American foreign policy elites—I’m talking about advisors to Clinton, Obama and McCain (the last less so). As far as I can recall, Anne Marie Slaughter, current Director of Policy Planning at the State Department, came up with the supermajority idea (though it could be she was just repeating it). It is a relatively mainstream, if liberal notion. It is the kind of thing Obama might have tried if the economy hadn’t shot south and he had some political capital left. If the US made a push for this there would definitely be resistance, but it wouldn’t be universal. The new powers (Brazil, India, etc.) would have a lot to gain since they aren’t currently on the UNSC. With the right bribes and threats backed by the US UN reform doesn’t look like an impossibility to me. If we really wanted it I’d say we’d have a 30-40 percent chance of making it work.
I’m pretty confused by this. It is true separation of powers is one way to check abuse (but by no means our only tool). But checks and balances don’t have to come with a powerful central government. Nations wouldn’t have to submit to a power that could regulate their economy or legislate- they just have to submit to the very sparse list of prohibitions that constitutes international law. A lot already have. You get a decent number of countries (especially rich, powerful countries) and it wouldn’t be hard to get more to follow.
Some might take a long time to join (say, North Korea). But if there are a few places where we can’t enforce international law, so be it. We’re no worse than in the status quo.
It almost certainly is not an utter coincidence. There is a huge body of literature on this, some google searches should do the trick.
… Now there’s a name to live up to.
If we did it without making a lot of other changes at the same time, I don’t think the result would be any better than the current situation, and might be a lot worse. At least we’d need to exclude unelected, oppressive governments that commit large-scale violations of the Rome treaty themselves from the game. (E.g., Syrian serving a term as president of SC isn’t something you’d want without US veto.) We’d also want voting based on number of people represented, maybe as upper and lower houses, etc.
I think the main reason for this is that there’s no enforcement of the Court’s decision except for voluntary submission of the state parties to the Court’s decisions. The worst that could happen to a state party that the Court ruled against is that it would have to withdraw from the Court.
The politicians who sign the Rome Treaty send a good signal and get political rewards. They don’t care about their successors who may suffer the political penalty of having to “unsign” the treaty. They would be a lot more careful about signing submission to an International Police Force. I think most of them would then refuse on the same grounds as the US Senate, i.e. that it would be surrendering (judicial) sovereignty.
That’s frankly quite surprising. I’ll try searching, but could you drop a couple of names of theories of this sort?
http://en.wikipedia.org/wiki/Democratic_peace_theory
Hmm. It doesn’t look to be well supported to me—at least not on the basis of reading the WP article and some statistics. Possibly reading the professional papers on this would change my mind, but I’m not going to spend the time to do it. The problems I see with the theory are:
Most democratic countries are inside a few political and cultural allied blocks—Western Europe, North America and to some extent South America. This must be controlled for.
There are few wars between two democratic countries, but there are many wars between a democracy and a non-democracy, and the democracy is often the initiator (per the WP article). If you look at how many wars democracies initiated against autocracies, vs. how many wars autocracies initiated against other autocracies, there’s no significant difference (again per WP article). To me that suggests that democracies preserve political capital by redirecting their wars against the outsiders, while not forgoing wars at all.
The definition of what should be counted as a democracy is problematic anyway. For instance, at the start of WW1 Germany was arguably the most democratic of the big countries after France. It was almost as democratic as the USA is today, which is sort of the entry-point standard for democracy (noone wants to publish a paper that classifies the USA as non-democratic). And yet any standard history book will treat WW1 as a conflict of the Good Democracies vs the Evil Autocracies. A similar argument applies to some WW2-era countries.
Oh, and US hegemony in Western hemisphere affairs. The US has started many more wars than the average for any country regardless of regime.
I’m not sure why you would want to control for this. Creating these kind of political and cultural blocks is one of the mechanisms by which democracies act and influence the world.
Doesn’t this support the original statement, which was that it’s not a coincidence that “the most powerful military and economic global alliances consist mostly of democratic countries”?
Is there evidence that the democracy caused the creation of the blocks? To me it looks more like the blocks were there to begin with—for political and historical reasons—and because dominant members of the blocks were democratic and some of them strongly pushed for democracy in their foreign policy, democracy spread and lasted inside the blocks.
E.g., Western and Southern Europe has been almost entirely democratic post WW2 because the victors led by the US demanded it. If the Nazis had won, or if the USSR had conquered Western Europe, then they would not have been democratic. That’s another (and obvious) sense in which it’s a historical coincidence, not predictable beforehand, that Western Europe is democratic.
It’s true that the block(s) define themselves, today, as democratic and won’t allow tight integeration with non-democratic countries. But what countries are there whose regimes actually changed as a result of this policy? Probably a few and a few more where it was a factor, but AFAIK nothing much on a global scale.
It’s a method by which such alliances maintain their power, but it’s hardly powerful enough to be the main reason they became paramount in the first place.
If during WW2 (and plausibly also during WW1), the US had been anti-democratic—then the post-war world would almost certainly not have contained any democratic countries in Europe. If we count countries and not people (which is reasonable when discussing alliances and power blocks), then a regime change in just one country would have (with significant probability) reversed the regime outcome for the whole world.
I also want to point out that the power to make war is insufficient to resolve many conflicts. You also need to be able to subsequently enforce and manage order in peacetime—to be a police force and a managing government.
There has been a lot of discussion about the merits of humanitarian law, some of it very good. But there has been no discussion of the more LW-ish point of the post, which is that anyone who says that humanitarian law should applied completely independently of the context of the war would seem to be subject to a pretty powerful counter-argument (a moment’s thought demonstrates that it can’t really be true that what actions in war are or are not OK is completely independent of the context), and yet there’s good reason to give this perfectly valid argument very little weight.
Morals are determined to a significant degree by those with the most power. This holds right down to our instinctive moral circuitry. If you want to be ‘morally right’ in war win. The moral philosophers will then compete to create arguments in favour of whatever actions you happened to choose. Phrases like ‘pre-emptive strike’ and ‘liberation’ will be used.
The language of morality is handy to immerse ourselves in while we are signalling and shaming each other to get our way. But if you want to really think about the way things could be consider what I want, what you want and our ability to make it happen.
History is, indeed, usually written by the winners.
Humanitarian law, for the most part, serves to help people feel better about horrible tragedies. It does not serve a meaningful deterrent effect. I recall watching a lawyer discuss all the work he had done in investigation and prosecution after the Rwandan genocide. I asked the question, “Do you think this prosecution did anything to deter such actions in the future?” He seemed somewhat surprised, and said, basically, “No, not really.”
In other words, humanitarian law has the major caveat that it’s only enforced against the losers, or relatively powerless winners. So looking at it from a game-theoretic perspective is not terribly productive.
Humanitarian law, for the most part, serves to help people feel better about horrible tragedies. It does not serve a meaningful deterrent effect. I recall watching a lawyer discuss all the work he had done in investigation and prosecution after the Rwandan genocide. I asked the question, “Do you think this prosecution did anything to deter such actions in the future?” He seemed somewhat surprised, and said, basically, “No, not really.”
In other words, humanitarian law has the major caveat that it’s only enforced against the losers, or relatively powerless winners. So looking at it from a game-theoretic perspective is not terribly productive.
“Covenants without the sword are but words and of no strength to secure a man at all.”—Thomas Hobbes
When someone breaks a law, is it really the proper response to go “OMG you broke a LAW!!”? Can’t Yglesias call the police or something? I vote for actually examining the moral issues in each particular war without mentioning “laws” that aren’t enforced laws but rather arbitrary goalposts in the debate.
Laws are only as good as the effectiveness of the power that enforces them. By that standard, international law is largely a joke.
“War crimes” trials are an extra fillip imposed on the loser by the winner to rub the losers noses in their loserness and to proclaim the winners’ own moral superiority. Very little is less moral than the strategic bombing campaign in WW II, but I don’t remember any British or American generals or politicians being tried for it.
Do you think recent trials and warrants against ex-Yugoslav, Cambodian, Rwandan and Sudanese leaders have any preventive effect?
Do you think these trials are void of moral content?
If the circumstances giving rise to the war itself cannot remove the obligations a nation has, can the actions of a participant (such as a guerrilla) revoke protections of the laws of war? The reason George Davis argues in favor of that proposition is that he views the law as being an agreement among states, and for that reason also agrees with the “excellent reason” for the legal standard. “Laws” in that sense are rules which are enforced by somebody (states), distinct from morals which may be merely internalized as good things by actors.
For a different take on international law, see Stephan Kinsella, who thinks libertarians in particular should be enthusiastic about its freedom from the constraints of positivism that shackle municipal legislation, and its focus on justice.