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Kindle Notes & Highlights
by
Samuel Moyn
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April 16 - June 1, 2023
Even when racist assumptions were lacking, the liberal idea of international law was that global peoples needed to be brought under the stewardship of the civilized. Martens, the great Russian international lawyer, is still famous for his clause in the Hague treaty holding that what the law of war prohibited specifically did not necessarily exhaust the general obligation to treat enemies humanely. Speaking for his profession, however, he stated bluntly that “Muslim peoples and pagan and savage tribes” were not admitted to the society of nations, or covered by international law, though by
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A rare exception to such patterns, the Swiss international lawyer Joseph Hornung proved the rule. In the 1880s, he urged his colleagues to save international law from its hypocritical restriction to Christians and white people, which was making “selfish interest and, too often, unmitigated violence” the global norm.
After the Berlin Conference of 1884–85, which parceled Africa out among the great powers, and gave Leopold the vast territory of the Congo, Moynier served as the Belgian king’s representative in Switzerland.
Secretly, and for a long time, Leopold’s henchmen amputated arms and hands of native workers when rubber quotas were not met, and what historians now estimate to be as many as ten million deaths took place. Moynier never mentioned any of this. Always omitted among those who lionize Moynier and the Red Cross for inventing the project of humane war, his imperial interests reflected mainstream opinion among the new breed of international lawyers.
Agreements such as the Geneva Convention of 1864 or the Hague treaties of 1899 and 1907 were never framed to exclude global peoples explicitly, and they operated on top of customs of engagement, or even underlying principles of natural law, that a few took to be applicable everywhere. But the rules—and especially their interpretation in policies and on the ground—clearly were different in spirit and especially in practice when it came to counterinsurgent and colonial war.
But conventional engagements happened outside Europe much more rarely than within it. More important, the overwhelming majority of colonial violence took place within empires. As such, it was not subject to any international law, which did not purport to regulate the “domestic” affairs of private ranches like Leopold’s Congo or even of far-flung polities on which the sun never set.
“When a nation adopts guerilla tactics it deliberately courts those sufferings to the whole country which such tactics invariably entail,” Doyle began. “They have been the same in all wars and at all times. The army which is stung by guerillas strikes round it furiously and occasionally indiscriminately.” As a matter of fact, Boer civilians themselves celebrated the gentlemanly humanity of British soldiers.
More troublesome for Doyle was what was done to those white people deprived of their homes when they were put to the torch, since it had become scandalous across the world that up to 100,000 white women and children had been herded into concentration camps. Of the 28,000 who died, most were children, many of whom perished after a runaway measles outbreak. Concentration camps had been used before—by Spain in its last-ditch attempt to control the Cuban outpost of its declining empire—but this episode gave them notoriety, even while making them a model for counterinsurgency in other situations.
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Doyle’s defensive posture anticipated a time when the public judged how warfare was conducted, even counterinsurgent war. But it mattered more that he barely mentioned the indigenous Black population because not enough of his opponents considered their treatment relevant. More than 100,000 of them had been forced into a separate camp system, and 20,000 died, most of them children. On both sides of the international struggle over the morality of the war, pro-Boer and pro-British, the treatment of Africans went almost entirely ignored, though it was generally far worse.
The African presence in the war surfaced only briefly for Doyle. Interning white women and children might look bad, but, he offered, it would have been an even more “ineffaceable stain” to leave defenseless white people “without shelter upon the veldt in the presence of a large Kaffir population.”
Had native Africans been given a bigger role in the conflict, Doyle explained, there would have been no pretense of generosity. It turned out that at The Hague Britain hadn’t, after all, joined its fellow European states in banning expanding bullets (the United States didn’t either).
Regrettably, there had been some mix-ups in South Africa and some ammunition meant for target practice had snuck into a few pouches during live exchanges. If the rules of war were flexible in counterinsurgency against white people, they were inapplicable to colonial wars against nonwhite people. Doyle was quite open on this point: “Fighting desperate savages, the man-stopping bullets could still have been used.”
A few years later, Doyle penned a screed denouncing Leopold’s atrocities, The Crime of the Congo, that helped crystallize international public opinion against the evil there. He didn’t comment on the distance between his apologetic attitude toward his country’s conduct in the Boer War and his passionate denunciations of the immoralities of Leopold’s rule.
For Americans it was much the same story. First in their own continental expansion, and then later abroad, rules of war were generally deemed inapplicable to “savage” enemies.
In a two- or three-acre fort, the Pequots were completely surprised in late May 1636 when Mason barred one door, and Underhill the other. In less than an hour it was burned to the ground, with anyone approaching the exit shot; 695 of the 700 Pequots present died. “It was the end of the Pequot nation,” a late nineteenth-century historian reported. “The tribe which had lorded it so fiercely over the New England forests was all at once wiped out of existence.”
“As a matter of practical policy, the annihilation of the Pequots can be condemned only by those who read history so incorrectly as to suppose that savages, whose business is to torture and slay, can always be dealt with according to the methods in use between civilized peoples,” he continued. Actually, it was a forward-looking act: “The world is so made that it is only in that way that the higher races have been able to preserve themselves and carry on their progressive work.”
Crystallizing in the early eighteenth century, “Indian war” fought by teams of white “rangers”—as some of the special forces of the United States are still called—became the monotonous rhythm of the continent’s life. Especially in the early days, it did not rule out coexistence and collaboration. But that frequently broke down. While their own practices by no means conformed to later notions of humanity in warfare, native peo...
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Patterns of settler counterinsurgency left a deep mark on American war-making far beyond the domain of war proper, because conquering and clearing territory helped to define national identity and expansionary zeal.
America’s default way of war—honed in the imperial encounter with native peoples and lasting into the twentieth century across the globe—recognized no limits. There was no protection for noncombatants, since the people were the enemy; prisoners, if captured instead of killed by choice, were entitled to no respect; and torture, eventually the most important taboo in an age of more humane war, was rampant.
If justification was needed—and the point is that it usually wasn’t—the new Americans were just punishing their predecessors for having taken the low road first. “The known rule of warfare with the Indian Savages is an indiscriminate butchery of men, women, and children,” Thomas Jefferson maintained in 1779. It was scandalous when white men visited such cruelties on fellow white people. But it was noble or at least necessary when the “Savages” themselves needed to be cleansed from the land, and Jefferson cheered two years later when seven hundred Virginians burned and terrorized Cherokee
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justification was needed—and the point is that it usually wasn’t—the new Americans were just punishing their predecessors for having taken the low road first. “The known rule of warfare with the Indian Savages is an indiscriminate butchery of men, women, and children,” Thomas Jefferson maintained in 1779. It was scandalous when white men visited such cruelties on fellow white people. But it was noble or at least necessary when the “Savages” themselves needed to be cleansed from the land, and Jefferson cheered two years later when seven hundred Virginians burned and terrorized Cherokee country,
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In the midst of America’s Civil War, the Prussian American Francis Lieber issued Rules for the Union Army that purported to codify the unwritten rules of war. His project shared almost nothing of the aspiration for humane war that Swiss gentlemen breathed deeply across the ocean at the same time. And he restricted the code to conventional rather than counterinsurgent war.
In the Civil War itself, the general practice of Union forces in the field (who didn’t need Lieber’s advice in this regard) was harsh. They shot on sight anyone deemed a partisan. As for anyone suspected of falling into that category, the most rudimentary trials approved their execution.
The proceeding that followed was a sham in retrospect. Knowing little or no English, the accused were forced to represent themselves, their translators served as star witnesses against them, and their bitter enemies sat in judgment. Williams’s note was revealing for its vision of an international law that didn’t apply to how white Americans treated their native enemies in war. Even when it was invoked, it was to permit whatever outcome between death and forbearance that policy dictated.
“I want the world to hear my side of this trouble,” Kintpuash said to a visitor while awaiting hanging. From Kintpuash’s perspective, international law was little more than a euphemism for the destruction of his people. And there were two critical facts left out of the American story and the attorney general’s reasoning. First, the United States wasn’t true to its word when it purported to make peace agreements with native peoples—legal treaties were deceptive to begin with (as Kintpuash felt of one he signed), or disregarded as soon as expansion and settlement demanded it. Second, both before
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“Had he slain the entire tribe in fair battle, no just condemnation could have been pronounced against him,” remarked one observer, “but to violate a flag of truce, under pretence of peace-making, was a wrong that fair-minded men, everywhere, condemn as an outrage against humanity and civilization.” As, indeed, they did a generation later—but only when Captain Jack committed that wrong.
“How many times were the treaties a hypocritical mask covering embarrassing corruption beneath the pretense of legality?” wondered Jean Pictet, a Swiss gentleman responsible for renovating the laws of war in the later twentieth century, while writing American history on the side. “It is hard to understand how men who were respectable in their own society could show so much duplicity when they dealt with the natives. But then, why should pens have been less mendacious than forked tongues?”
“We have never considered the wrongs of the Indian as our own,” Mott observed the next year. “We have aided in driving them further and further west, until, as the poor Indian has said, ‘You will drive us away, until we go beyond the setting sun.’”
Chaffee would put those assumptions into practice as a military governor of the Philippines in 1901‒1902. Though Lieber himself had been explicit that his rules applied regardless of color—the boundaries of the law depended on conduct—the fact that the Philippines campaign was a “race war” meant to most that the law of war said there were no limits.
From the first days of fighting, Americans violated even the new rules—such as the requirement to accept surrender—that would have applied had they recognized the Hague treaty as relevant. Worse, from the early phase in and around Manila, Americans assumed that most of the people they met were hostile, and shot many without a second thought. The French minister filing reports commented mordantly that “American soldiers are the true savages,” adding that their very “brutality, provocation, and excess surely have served the cause of insurrection.”
The Nation agreed. “The war of 1898 ‘for the cause of humanity’ has degenerated in 1899 into a war of conquest, characterized by rapine and cruelty worthy of savages.” Trying to be nice, the magazine conceded that it was “to the credit of our soldiers that while in the heat of battle they carry out the orders to take no prisone...
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Anyone with the potential to resist was fair game. And unconditional surrender was the goal, which justified nearly any act. These were “methods which have proved successful in our Indian campaigns in the West,” Elihu Root, secretary of war in the period, explained (a view of no pertinence to his later Nobel Prize as enthusiast for transatlantic arbitration). And practices worsened when General Arthur MacArthur, Jr., succeeded Morris as governor, as the U.S. effort devolved into the kind of counterinsurgency farther south that MacArthur had personally led on the northern island of Luzon before
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For a brief period, before MacArthur proclaimed all resistance—and in practice, anyone the army wanted—beyond the pale of legal protection, there was an internal debate within the military about limits.
It is true that in the first, conventional phase of the war Americans captured rather than killed prisoners, though many were eventually shot. Once the counterinsurgency intensified, less radical policies were shelved as whole populations were treated as potential enemies. Doing so did not demand a new legal framework in which bandits and outlaws deserved any treatment they got. The existing one sufficed.
He escalated the policy options farther along the continuum of intensity, in the tradition of “Injun warfare,” without ever meeting a law he didn’t like. This often meant burning crops, killing animals, and leaving nothing behind—including humans. After an alleged Filipino massacre of U.S. troops, the most sadistic counterinsurgency operations raged on the island of Samar. “I want not prisoners, I wish you to kill and burn, the more you kill and burn the better it will please me,” commented General Jacob Smith, Chaffee’s subordinate and another Indian War veteran, promising to reduce the area
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No one was legally safe from U.S. counterinsurgent violence. The rules imposed no limits, either because the Filipinos were unprotected by law or because those generously distinguished as noncombatants under the law were still eligible for reprisals, which the Lieber Code did not ban (and almost encouraged).
The overall death toll reached as high as a seventh of the population—and intermittent hostilities continued against Moro “fanaticism” in the far south for another decade.
After September 11, 2001, a few observers recalled that many Americans had been furious about reports of imperial violence in the Philippines a century earlier. The first to raise the alarm were Democrats backing William Jennings Bryan’s pacifist candidacy in the 1900 presidential campaign.
“I believe in God who made of one blood all races that dwell on the earth,” the African American intellectual W.E.B. Du Bois prayed in 1904 in his prose-poem “Credo,” anticipating a world without aggressive conflict or race war. “I believe in the Prince of Peace. I believe that War is Murder,” he continued. “I believe that armies and navies are at bottom the tinsel and braggadocio of oppression and wrong; and I believe that the wicked conquest of weaker and darker nations by nations white and stronger but foreshadows the death of that strength.” But it would take a long time. “Finally, I
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As the twentieth century began, the cause of humane war had little to show for itself. The few provisions that might have imposed serious limits on the conduct of fighting were simply ignored in practice. It was not just that humane war was a consolation prize for the failure to constrain the resort to force in the first place. It was not merely that the rules of humane war were inapplicable to most conflicts because they were counterinsurgent and colonial fights. The last indignity was that, even when they were applicable, the few concessions that states recorded on paper had little real
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“It was no coincidence,” the French intellectual Jean-Paul Sartre later noted in indicting the U.S. war in Vietnam, “that jurists and governments should have been increasing the attempts to ‘humanize war’ on the eve of the two most frightful massacres mankind has ever known.”
World War I dealt a serious blow to the hope that someday humane war might come. Not only were the laws of war violated without a second thought, but also the worst acts of war, the ones that met with the most moral outrage, were not illegal.
If Britain fared better in perception or practice as the war dragged on, it was because the constraints on its sea power were much less robust: the British Empire had made sure of it. International law such as it was permitted the most gross moral wrongdoing of the period, besides the Armenian genocide: the British blockade of the Continent, which caused half a million civilian deaths through starvation.
The Armenians were driven to slaughter, and the eastern front was a nearly ungoverned zone where the Hague rules went almost entirely disregarded. Even on the trench-ridden western front, atrocities anticipating World War II’s excesses, from camps to rapes to reprisals, have barely begun to have their stories told. The category of “civilian” offered little protection; a civilian could be defined as a kind of victim in waiting, in part because the formal rules did precious little to protect him or (usually) her.
With new insight into the death drive that no law could eliminate, the psychoanalyst Sigmund Freud was blunt about the futility of humanization. In 1915, when World War I was only in its second year, he wrote: “Not only is it more bloody and destructive than any war of other days, [but] it is at least as cruel, as embittered, as implacable as any that has preceded it. It disregards all the restrictions known as International Law, which in peace-time the states had bound themselves to observe.” “It is more utopian to hope to make war humane than to eliminate war,” one German international
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In the years that followed the 1918 armistice—agreed to in the eleventh month, on the eleventh day, and at the eleventh hour of that year—it was simply no longer credible to argue that making war more humane would contribute to staving off its outbreak.
“In four brief years,” the English novelist and seer H. G. Wells insisted in 1919, “Europe was compelled to develop a warfare monstrously out of proportion to any conceivable good which the completest victory would possibly achieve for either side.” If that was so, “all Geneva Conventions and such palliative ordinances, though excellent in intention and good in their immediate effects, make ultimately for the persistence of war as an institution. They are sops to humanity, devices f...
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“The war has … shown that international law can not greatly reduce the destructiveness of war,” he observed in 1920. If so, “the effort of international law to regulate war” was “of slight practical value,” and “international law must more seriously devote itself to the regulation of the conditions which lead to war and the elimination of war itself.”
As it turned out, the American-run peace that took hold in Europe after 1945 would lead the very people for whom humane war was devised—white Europeans—to stop slaughtering one another. But in those same years, Americans would commit to fighting all around the world. If their wars were ever to become humane in intent or effect, it was, alas, not going to be anytime soon.
With America’s help, European dreams of a continent beyond military strife were finally realized. But the militarized standoff that counted as the Cold War’s version of peace in Europe coexisted with American wars in Asia and elsewhere. American internationalists such as Quincy Wright had argued for their country to be involved in the struggle for global peace. Perpetual war was the price. And it was pitilessly violent. The United States guaranteed the European peace by exporting to Asia the total-war tactics Europeans had previously used in colonial wars, and that Americans themselves had
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