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Kindle Notes & Highlights
by
Samuel Moyn
Read between
April 16 - June 1, 2023
Beyond all the other factors in the emergence of America’s novel and shocking form of belligerency, it was the cultural transformation that Hynes registered that made humane war imaginable. Concern for military excess, culturally peripheral before, gave the laws of war an importance they had never acquired under their own power. Yet while those laws would cleanse war of its historic brutality, their legacy would be not eternal peace but endless control.
Born within a month of the outbreak of World War I, Jean Pictet was easily the most important twentieth-century lawyer to drive the “humanization” of the laws of war—even if his success depended on factors over which he had no control.
Pictet played a role in the drafting of the Geneva Conventions in the late 1940s. Disabused by World War II of hopes for peace, he now concentrated on ameliorating wars.
Besides marketing, there was substance. To deal with the absence of limits on actual killing, including the death toll from the sky so vivid for those who had lived through World War II, Pictet and his Red Cross colleagues started to agitate in the 1950s for a new limiting principle. Attacks once justified as militarily necessary, they proposed, ought never to be allowed if collateral harm would outweigh the advantage they would reap.
Pictet succeeded here, too, and his work would have an impact on America’s humane war after September 11, 2001. Counterterrorism would eventually be placed within a framework originally devised for internal war.
Pictet also recognized, unlike his forebears, the realities of a newly decolonized and diverse world. He hoped to overcome a dark past in which reformers had focused on making war humane only for Europeans who no longer fought one another, and—after losing their empires—almost stopped fighting altogether.
Indeed, he observed, the goal of humane war “is permanent,” the “expression of a long-term wisdom indifferent to passing opinions and momentary ideologies.”
fact, in spite of a certain amount of talk about the possibility in the late 1960s, human rights were not brought to bear on war until after September 11, 2001. But as Pictet angled to undo his defeat, he was more successful in proselytizing for what he called “international humanitarian law.” This law would elevate a few isolated principles in the laws of war and make them the humane essence and purpose of the entire field.
He was sure at least that “the existence of humanitarian Conventions does nothing to promote war,” even if it was hard to make the case that they had improved the world yet.
Aside from banning certain weaponry and exempting some targets under narrow conditions, the militaries of the world could always cite “necessity” to do nearly anything they wanted within the fight. Pictet’s ambitious rebranding project was to reverse polarities: the laws of war would become constraining rather than permissive. Humanity would define the terms of violence rather than eking out minor exceptions on the margins of its reign.
The documents not only clearly formalized the immunity of civilians from targeting for the first time but also imposed the newfangled prohibition against fighting that risked excessive collateral harm, even when the targets were fair game. Equally important, they called for precautions in targeting so that militaries could not shoot first and ask questions later. Even to get these provisions down on paper, after years of state resistance, was epoch-making.
Earlier, the extraordinary repression of irregular fighters for “national liberation” had been the norm, on the premise that they existed outside legal categories or were ordinary criminals. The history of overseas colonialism, like the American treatment of native peoples, was a grim record of the consequences of such treatment. Before—and during—the wars that led to so many new states after World War II, counterinsurgent empires and genocidal settlers had regularly played by no rules. Now those states had a vote on the laws of war. In the 1977 protocols, there was much confusion over what
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For the first time in the history of international law, these documents affirmed that the point of war was to weaken military capacities on the other side, absolutely prohibiting the direct targeting of civilians. And excessive collateral damage was also condemned for the first time.
Strategically if sanctimoniously, delegates in the mid-1970s pretended that they were only reaffirming ethical precepts laid down long since. They wanted it to seem as if the laws of war had always been humanitarian—even as they papered over how inapplicable or permissive those rules had been.
The new rules prohibited urban destruction, previously justifiable if there was any military target nearby. Many progressives hoped that states would accept a ban on targeting choices that threatened coll...
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Though the requirement of proportionality was dropped during negotiations, it was soon taken to be in the treaty in spirit.
Now there really were—finally—laws of humane war. Now, for the first time, the brutal essence of killing itself was a legally constrained activity. It was an enormous breakthrough on paper for a world of persistently atrocious fighting. But if states complied, it opened the possibility of unforeseen risks, too. What if those who initiate, moderate, and tolerate more humane war consider the results ethically legitimate precisely because they are following the new rules?
Starting in the early 1980s, Human Rights Watch first reported on violations of the laws of war without a great deal of ceremony or even officially reflecting on the fact that it was doing so. With the new Geneva protocols as its backstop, it attempted to raise consciousness of “violations of the laws of war on both sides” in Central American wars.
But Human Rights Watch was not pacifist. The outfit remained neutral not merely on who was in the right during a war but on whether a war was justified before it broke out. Neier’s successor, the current Human Rights Watch leader, Kenneth Roth, later reflected, “We weren’t against war per se. We never took up the issue of who is the aggressor, who is the defender, who was at fault for starting the war, who’s in the right, who’s in the wrong. We always did stay neutral on those issues.”