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Are Violations of International Law Ever Justified?

John McGinnis, a Northwestern University law professor (and my coauthor on several papers), raises this question in the process of recounting a deliberate violation of the Geneva Convention by the US military during World War II:

I begin with some interesting information that I recently learned on a trip to the Chicago Museum of Science and Industry...: the United States once decided, consciously and at the highest levels of government, to violate the Geneva Convention. The incident occurred when in 1944 our navy captured a German submarine and a version of the enigma machine—the equivalent of the German codebook. While the navy also captured the entire crew, it did not notify the Red Cross of their capture or identities. The exhibit itself states that this failure violated the Geneva Convention. Notification would have tipped the Germans off to the substantial possibility that the allies now had a means for breaking their code.

How, if at all, would this decision then differ from a decision today to violate some aspect of the Geneva Convention in order to achieve an objective as important as avoiding disclosure of capturing a code? Certainly, the violation in 1944 was clear and premeditated. It also cannot be argued that it was not certain to inflict very substantial harm. As a result, the relatives of the German seamen thought they were dead for a substantial period, and, I believe in at least one case, the wife of one of the sailors remarried. Such grief and disorientation of lives might be thought of even greater consequence than the humiliation of a few unapproved interrogation techniques. Would the decision be different because of a difference in the level of threat we now face? Who makes that determination?

This incident was just the tip of the iceberg of a vast number of Allied violations of international law during World War II. In the case of the United States, the most serious WWII-era war crime was probably the deliberate killing of hundreds of thousands of German and Japanese civilians during the strategic bombing campaigns of 1942-45. These efforts very likely violated international law; indeed, President Franklin D. Roosevelt had denounced as illegal the Germans' use of similar tactics on a much smaller scale in their bombing of Guernica during the Spanish Civil War.

Both the strategic bombing campaign and the far less serious incident recounted in John's post can be justified on the grounds that they were necessary to avoid an even greater evil: an Axis victory in the war. Defeat for the Allies would almost certainly have led to far worse atrocities than those we inflicted in order to achieve victory. Assuming for the sake of argument that the illegal strategic bombing campaign really was essential to the defeat of Nazi Germany and Japan, it is possible that it was justified (at least in part).

If so, however, that opens up two other vital issues. First, if even very grave violations of international law (such as the deliberate killing of hundreds of thousands of civilians) were justified in order to defeat the Nazis, it is possible that comparable or smaller violations might be justified if necessary to vanquish other evil regimes and/or terrorist organizations. Whether or not they are depends on how evil the enemy is, how great a threat they pose, and how necessary the violation in question is to the attainment of victory. The threat posed by, say, Al Qaeda, is far smaller than that posed by the Axis. But it nonetheless might be great enough to justify some (smaller) degree of illegality in our response.

Second, this line of argument should lead us to question the traditional view that international law - and the laws of war - should apply equally to all combatants regardless of the cause that they fight for. The difference - if there is one - between the German attack on Guernica in 1937 and the far bloodier Allied attacks on Berlin and Hamburg during WWII lies in the ends they served, not the means. The Allied cause was vastly more just than that of the Germans and therefore arguably justified the infliction of far greater harm (including, in some cases, harm to innocent people) if necessary to achieve its ends.

That said, there are three important caveats to the above reasoning:

First, in this post, I have deliberately abstracted away from institutional, slippery slope, and public choice considerations. Even otherwise justified violations of international law might lead to unjustified ones in the future and should perhaps be curtailed for that reason. The risk of slippery slope problems, public choice problems, and the institutionalization of atrocities, argues for tighter constraints on combatant behavior than might otherwise be justified.

Second, even if we can sometimes justify violations of international law that are needed to achieve victory in a just war, there is no defense for gratuitous atrocities that have no connection to military necessity. Even if the Anglo-American strategic bombing campaign was defensible, there is no justification for such Allied war crimes as the rape of some 2 million German women by Soviet soldiers.

Finally, I emphasize that the above references to Allied WWII-era war crimes in no way justify the considerably greater war crimes of the Axis powers. The latter are all the more reprehensible because they were committed by regimes fighting for an unjust cause and in most cases had no connection to any military necessity.

Anderson (mail):
Necessity is a poor defense for war crimes. Barring the truly gratuitous (like the Soviet rapes), the violating power can almost always cobble a "necessity" argument.

The whole point of declaring conduct X a "war crime" is presumably to declare it off limits, even when one could get arguably good results thereby. I can't rob a bank just because that's a really good way for me to solve my credit issues ....
9.10.2007 4:53pm
Stating the Obvious (mail):
Ilya asks: Are Violations of International Law Ever Justified?

The more interesting question: Are there ever violations of international law that some partisan cannot justify? The overwhelming power of nationalism as a major force in modern society, for several centuries now, guarantees, for any war, and on both sides, sufficient partisans.
9.10.2007 4:58pm
PDXLawyer (mail):
There is another institutional reason to avoid committig atrocities, even when they have some strategic value - committing atrocities can erode the morale of the forces which commit them.
Many people can face danger much more readily if they have the sense that they are doing so in a righteous cause. Even the Nazis took some pains to hide their atrocities from the general population.
9.10.2007 5:03pm
Anderson (mail):
P.S. -- I'm not terribly up on the history of Enigma, but by 1944, wasn't Bletchley Park pretty much reading Enigma message in close to real time?

And wasn't the Battle of the Atlantic pretty much decided in the Allies' favor by then?
9.10.2007 5:04pm
Carolina:
The Wikipedia article on Allied war crimes linked in Ilya's post is not a good resource for anyone interested in this topic. It lists incidents that are very questionable as war crimes, such as the atomic bombing of Hiroshima and Nagasaki, and fails to list other obvious incidents, such as the Laconia Incident -- where the US bombed U-Boats in the process of rescuing sailors from the water.

As an aside, those who argue that the US grossly exaggerated the casualties that we would suffer in an invasion of Japan to falsely justify use of the atomic should consider the Army's handling of purple heart medals (for wounded soldiers).

Prior to the invasion of Japan, the army ordered 500,000 purple heart medals. They weren't used for the Japanese invasion, obviously, and in fact are still being used today. When a soldier is wounded in Iraq, he is awarded a purple heart made in 1945 -- because all of the casualties in all of our wars and conflicts since 1945 have not used up the supply of purple hearts the army procured for the invasion of Japan.
9.10.2007 5:13pm
cirby (mail):
To paraphrase Captain Barbossa:

"International law is more what you'd call 'guidelines' than actual rules."
9.10.2007 5:16pm
martinned (mail) (www):
L.S.,

Q: Are Violations of International Law Ever Justified?

A: Yes. The attacks of Kosovo were a violation of art. 2(4) of the UN Charter, without justification under art. 51 (self-defence) or art. 42 (Security Council authorisation). Therefore, it was in violation of international law. Nevertheless, I think most readers will agree with me that these attacks were justified, ethically.
9.10.2007 5:20pm
Anderson (mail):
It lists incidents that are very questionable as war crimes, such as the atomic bombing of Hiroshima and Nagasaki

Says you!

As for the Army's estimates, I'm not aware of any serious contention that they were made in bad faith. Whether they were accurate is another question. Still another question is why we would've invaded rather than blockading the Home Islands.

(And of course ANOTHER question is whether *blockade* is itself a war crime, tho IIRC the Brits made sure it wasn't internationally agreed to be such, after rejoicing it its use during WW1. Blockade kills vulnerable civilians -- the old, the ill, children -- just like area bombing does. Food gets reserved for precisely the "legitimate targets," soldiers &their rulers.)
9.10.2007 5:20pm
Carolina:
Andersen,

Yes to both your questions.

But one of the reasons the "Battle of the Atlantic [was] pretty much decided in the Allies' favor by then" was the Allies could decode the messages from U-boat command which contained movement orders for the boats. Had the Germans figured this out, merchant ship losses might have increased again.
9.10.2007 5:22pm
Caliban Darklock (www):
I think the purpose of declaring something a war crime is to say "this should not be standard practice".

If you can accomplish your aims without war crimes, you should. If you can't, however, you have to violate international law. When your violations inevitably come to light, the international community should be asking not whether what you did was technically a war crime, but whether you could have done something else instead. If it's generally agreed that you could have accomplished your aims sufficiently without violating international law, then we get something like Nuremberg.
9.10.2007 5:35pm
Seamus (mail):
Violation of the Geneva Convention rules about notification of the Red Cross, etc. is merely malum prohibitum and thus could be morally defensible, depending on the circumstances. Deliberate killing of noncombatants is malum in se.
9.10.2007 5:35pm
Le Messurier (mail):
A question which has crossed my mind more than once in the past is to what extremes may a country go in order to preserve it's existence? Is there a line which may not be crossed in the self preservation of a country/government? E.g. if Germany had been winning the war say in 1945 and we saw our ultimate defeat on the near horizon, can a justification be made for an all out gas attack on Germany on the supposition that we could win the war, or at least avoid abject defeat. And doing so knowing full well that doing so would violate International law?
9.10.2007 5:36pm
ejo:
too bad that the lawyers weren't in charge of WWII-we could have emerged unsullied. of course, we might have lost the war but procedural due process would have been sustained.
9.10.2007 5:38pm
Richard Aubrey (mail):
Let's take some generic fight with the one side as evil as the Axis, and one side as virtuous (excluding the conduct of the war) as the Allies in WW II.

Is it legitimate for the virtuous side to lose the war--with all that means for their civilians--in order to not break an international law? Do their leaders have the right to make that decision? Let's save time by stipulating the issue at hand is the make-or-break decision, you win, or you lose.

Secondarily, can concern about international law justify the deaths of soldiers due to the lack of an advantage breaking the law might generate? Well, it had better, since we've been doing it since Viet Nam. But nobody wants to address that. We sent our Marines door to door in Fallujah like the Fuller Brush man, when we could have pulverized it from the air and nobody but the bomb loaders would have broken a sweat.

"The Secretary of War regrets to inform the families of the last 50,000 guys to die in WW II, in 1946, that their sons were killed because we almost lost the Battle of The North Atlantic again, as a result of following international law."

As people are no doubt tired of hearing, law really does affect people, once the blathering is done. Then the real questions arise. And the blatherers are generally silent.
9.10.2007 5:38pm
Le Messurier (mail):
I think Caliban Darklock has satisfactorily answered my query even before I posted. But I'll bet there are people who would disagree
9.10.2007 5:40pm
Spitzer:
The essential weakness of International Law is that, unlike domestic (criminal) laws more recognizable to the modern eye, there is no executive presumptively empowered with enforcing the law. Indeed, one could construct an argument that there does exist a legislature for enacting new international laws (e.g. United Nations, various IOs, multi- and bi-lateral treaties), and perhaps (though more ambiguously so) a judiciary (from the "permanent" ICC to the ad hoc war crimes courts, to the World Court (which doesn't exactly treat with "war crimes"), to the panels created by various treaties). But the Security Council remains the closest analogy to an executive, and, as has been demonstrated repeatedly, that body simply has little or no will to enforce the laws.

What can one take from this? On the one hand, an argument could be made that the Security Council (and analogous bodies created for the purpose of specific treaties) has sole authority over enforcement, much like US Attorneys have over most (non-qui tam) statutes, and that an unwillingness to enforce the law represents a simple exercise of (nearly) unreviewable discretion. In such a world, international "laws" may exist in theory, but they come into practical being if, and only if, the Security Council exercises its discretion. At all other times, the existence of any enforceable international law is merely theoretical.

A second approach is to rely on the individual sovereign states to enforce international law. This has the advantage that the law is more likely to be enforced by some party at some time than if enforcement depended entirely on the Security Council, but it has many disadvantages. First, the enforcement of the "law" by one sovereign state as against another sovereign state resembles vigilante justice, for it could look much more like old-fashioned ("illegal") warfare than law enforcement, and there are few obvious limits on the extent of such vigilante justice (and no effective way to prevent two sovereign states from going to war over their differing views of the "law"). In a sense, this approach simply replicates the (near) "anarchy" that traditionally dominates the international scene. Second, the enforcement of the "law" by individual sovereign states could be limited to enforcing the law against their own citizenry only. This has the advantage of removing the "vigilante" element of the law enforcement activity, for states could not enforce the "law" against other states. But it would be extremely limited, as (a) only those states with a real interest in enforcing a particular "law" would actually do so against their own citizens, thus effectively "disarming" those states' citizens as against those states that choose not to exercise this option, and (b) it may be ineffectual, as most of the thrust of international law is to control the acts of nation states, not the acts of mere citizens.

But either way you slice it, international order, in the absence of a powerful executive presumptively empowered to enforce "international law", consists of independent actors in a necessary state of (near) anarchy. That is, states may choose to abide by certain international "law" out of self-interest (smoothing over relations with other states, or encouraging a tit-for-tat response as in the laws of war) or out of some perceived moral obligation (presumably felt by the state's leaders as a result of public pressure in democratic states, the ruling elite's personal desire to please fellow heads of state/government, or some personally felt moral or ethical oblgiation by the regime's leaders). But states essentially have no way of enforcing international "law" against another sovereign state without resort to extralegal measures. In this, one may argue that the international order, even in an age of "law", resembles the domestic state of Medieval Iceland more than it does contemporary expectations of a well-ordered/governed society.
9.10.2007 5:41pm
Anderson (mail):
Secondarily, can concern about international law justify the deaths of soldiers due to the lack of an advantage breaking the law might generate? Well, it had better, since we've been doing it since Viet Nam.

Well, yeah. Suppose we could've kidnapped Saddam's infant children/grandchildren, and then gone on TV with them, saying "Saddam, step down &hand over national authority to the UN, or we'll kill the kids."

Think how many lives would've been saved!
9.10.2007 5:41pm
Anderson (mail):
The problem with Caliban's answer, it seems to me, is implicated in the reference to "something like Nuremberg."

If the measures in question really were necessary, and effective, then presumably you won. Which means that you and your allies are providing the judges at the tribunal that decides whether or not you committed war crimes.
9.10.2007 5:43pm
Pio (mail):
Ilya seems to assume that most people would agree that the bombings of civilians in WWII (and the even more terrible Hiroshima and Nagasaki bombings) were justified, which for me is a pretty dubious stretch. Deliberately killing thousands of innocents is murder no matter what your aim; in the present case, torture is torture no matter how you sugar-coat it and try to justify it. Pointing to much worse atrocities committed by the other side is the worse kind of utilitarianism, and the claim that the Allies wouldn't have won WWII without the firebombing of Dresden and the use of the atomic bomb is dubious at best. In the latter case, more soldiers would probably have died, but one cannot excuse taking civilian lives to save soldiers.
9.10.2007 5:47pm
Gerg:
The whole point of declaring conduct X a "war crime" is presumably to declare it off limits, even when one could get arguably good results thereby.


No, that's pretty much precisely what "war crimes" should not be. The original geneva and Hague conventions were very clearly designed to bar only conduct that was pointlessly cruel for little or no benefit. Serrated bayonets, bombing temples or hospitals, etc are not going to accomplish any military goal aside from psychological terror.

Declaring conduct off-limits which would help accomplish military goals is the surest way to put parties to the war in a position where they must dispose of your convention or face worse consequences. That's precisely what's wrong with the additional protocols.
9.10.2007 5:50pm
Carolina:
I think Richard Aubrey framed the issue well. The bottom line is:

"How many military and civilian deaths is our country willing to tolerate as a result of complying with 'International Law.'"

Personally, my answer is, "Some deaths, but not an infinite number."

I think there is a point, perhaps hard to define, but there nonetheless, where a just government has to say "International law be damned, we are going to protect our people."
9.10.2007 5:54pm
GEORGE LARSON (mail):
I have read that the US Navy's unrestricted submarine warfare against Japan was also a violation of International Law.

The effect of Military Intelligence in WWII has been highly over rated. The British defending Crete had the relevant Enigma intercepts and still lost the island to the Germans. Enigma did not protect our coastal merchant shipping from German U Boats after we entered the war. We were reading Enigma in December 1944 and the Battle of the Bulge was still a surprise. The channel dash of the Scharnhorst and Gneisenau was a surprise. The Japanese fleet response to our invasion of the Philippines was a surprise. Our MI capabilities did not help the Red Army at all. I think it was important at the Battle of Midway, but we did not know the Japanese plan, just their general intent. I think MI saved lives, but it did not shorten the war. The number of lives saved did not amount to many compared to the tens of millions who perished
9.10.2007 5:55pm
PDXLawyer (mail):
Isn't "International Law" what we'd call in the domestic context either "morality" or "convention"?

After all, I can put up with some limitations on my right of self-defense because I can always call on the courts and sheriff to protect me. I'm safe in my house not because I have fortified it to the point where it is impossible to kill or rob me. Rather most people who would otherwise be inclined to kill or rob me know that there is a very good chance that the state would punish them if they did so.

International "Law" just doesn't protect losers. In social contract terms (see John Locke), I submit to domestic law and in return receive the protection of the law. International "Law" doesn't keep its end of the Lockean bargain, and thus cannot claim the rights that sovereign law could claim.

None of the above is to discount the importance of morality and convention. Its just different from "law."
9.10.2007 5:56pm
Gerg:
And on point: not notifying the enemy of POWs and allowing them exercise time etc will not normally accomplish any military goal. It's normally in both parties best interests to agree to treat POWs humanely since it costs nothing and gains them humane treatment of their soldiers in the enemy's hands. In this situation the circumstances the original agreement presuposes don't hold.
9.10.2007 5:56pm
Anderson (mail):
The original geneva and Hague conventions were very clearly designed to bar only conduct that was pointlessly cruel for little or no benefit.

Gerg makes good points, but the indiscriminate slaughter of women and children, inter alia, used to be a pretty clear example of "pointlessly cruel for little or no benefit."

A.C. Grayling has a memorable photo, in his Among the Dead Cities, of a man, woman and child huddled together, and burned into a cinder, I believe from the bombing of Hamburg. Multipy that by, what, 10,000? 15,000? for that one raid?

Whatever the benefit of Hamburg's bombing -- and it was meant as a terror raid 1st &foremost -- was it proportionate to the civilian deaths? And if not, why was it not a war crime?
9.10.2007 5:58pm
James in AZ:
With regards to the questions regarding the u-boat war...

In mid-1944 the allies were deeply concerned about the u-boat war. The Germans were testing a new burst communication system (that was never officially deployed) and rumors were rife among allied intelligence agencies of hundreds of new "electro boats" that were in testing.

The worry was the news of the capture of U-505 could speed up either of these programs in Germany. This could have the effects of greatly prolonging the war and increasing casualties at sea.

While in hindsight, it is obvious that the u-boat threat was diminishing and the "electro boats" were greatly overrated, it is important to remember that allied intelligence greatly exaggerated these threats. Causing the allies to take several unnecessary actions to counter them. Hence, intelligence failures were the primary cause of this action.

Finally, it was the Americans, not the British, who were the primary readers of naval enigma in the later stages of the war. The American decoding machines were significantly faster and could decode in hours things that took the British days.
9.10.2007 6:04pm
Ilya Somin:
Ilya seems to assume that most people would agree that the bombings of civilians in WWII (and the even more terrible Hiroshima and Nagasaki bombings) were justified, which for me is a pretty dubious stretch. Deliberately killing thousands of innocents is murder no matter what your aim; in the present case, torture is torture no matter how you sugar-coat it and try to justify it. Pointing to much worse atrocities committed by the other side is the worse kind of utilitarianism, and the claim that the Allies wouldn't have won WWII without the firebombing of Dresden and the use of the atomic bomb is dubious at best.

My post refers to the strategic bombing campaign as a whole, not just Dresden and the atomic bombs. There are very strong arguments that the Allies would not have won (or would only have won MUCH later, thereby causing even more civilian deaths). Moreover, there is a lot of evidence that absent the atomic bombs, conquering Japan would have cost far more Japanese civilian casualties (to say nothing of Japanese and Allied military losses).
9.10.2007 6:04pm
dc user (mail):
Isn't Ilya missing the most basic point? If there is going to be any hope at all of nations basically adhering to the Conventions, then the imperative to adhere to them can't be conditioned on each nation's determination about whether it's reason for fighting war in the first place is just. That's because each nation at war will of course say that its reasons for fighting are just.

Now, adherence to the Conventions may be imperfect in any case. But nobody has ever asserted that such agreements would have 100% compliance -- the goal is to get as much compliance as possible.

This isn't so different from ordinary criminal law. We could very well write theft laws that say "Don't take someone else's property -- except if you have a superior/more-important/more-just use to make of the property. In one sense, such a law would, almost by definition, be more efficient and just than our existing law (which pretty much tells people not to steal regardless of the reasons, except in exceptionally narrow circumstances). But experience gives us good reason to think that would-be thieves are not necessarily the best judges of their own claims to other people's property.
9.10.2007 6:06pm
Gerg:
Ah, you're jumping ahead here. The prohibition to which you rely here of tactics which pose a risk to civilians out of proportion to the military goal comes from the additional protocols to which I refered. They did not exist yet at the time of the second world war.

Had they existed it would be pretty hard to argue this didn't violate them (though the US is not a party to them).

So then the question to torture yourself with here is to assume the Allies would have lost the war without them. Would it be better to have lost the war and condemned Europe to live under the rule of Hitler and company than to have engaged in such tactics?
9.10.2007 6:08pm
Anderson (mail):
There are very strong arguments that the Allies would not have won (or would only have won MUCH later, thereby causing even more civilian deaths).

It's important not to mix up the German and Japanese bombings.

One can make a stronger case for the impact of strategic bombing on Japan's war effort than for the German parallel, even w/out the obvious impact of the A-bombs.

But I do not much credit the claim of "very strong arguments" that carpet bombing much advanced the end of the European war, much less made the difference b/t victory &defeat. Strategic bombing played a big role -- attacks on oil, bridges, factories. These were targeted, daylight attacks with relatively small collateral damage. Had we focused on these sooner, the war might have ended even earlier.

The # 1 cause of the German defeat, however &of course &(perhaps) alas, was the Red Army, strategic bombing be damned.
9.10.2007 6:12pm
Alaska Jack (mail):
As a currently serving member of the U.S. Armed Forces, I personally find Gerg's comments pretty much on point. War is war, and no country in its right mind is going to agree to a convention that binds its hands while leaving the enemy's hands free. The key to these agreements is reciprocity, and you're only going to reciprocate elements that don't relate to military necessity.

Prof. Somin, was the decision to bomb German civilians in WWI influenced by the fact that the Germans had already been targeting British civilians? My understanding is that the Battle of Britain largely comprised British fighters fighting off Focke-Wulf and Messerschmitt-escorted Dorniers and Heinkels -- not to mention the V-1s -- that targeted the civilian population.

My history is a little rusty here -- please correct me if I'm wrong.

- Alaska Jack
9.10.2007 6:16pm
Gerg:
This isn't so different from ordinary criminal law. We could very well write theft laws that say "Don't take someone else's property -- except if you have a superior/more-important/more-just use to make of the property.


The laws of war are quite different from ordinary criminal law precisely because the situation is extreme. In fact even in ordinary criminal law if your life is threatened and your only hope of survival is to steal something it's my understanding (from you know, an extensive study of Law and Order episodes:) that you have a good defense against any criminal charges.

Well, in war *everything* is a matter of survival.

If following the rules will lower your chance of winning the war then no penalties after the fact will ever convince someone to follow them. And there's no reliable way to ensure such penalties anyways.

The only consequences which can be brought to bear is the equitable nature of the agreements: If you notify us of POWs and allow the Red Cross to visit them we'll agree to do the same. You're free at any time to stop doing so but all it will do is bring similar consequences down on your soldiers for negligable gain.
9.10.2007 6:17pm
Thorley Winston (mail) (www):
Ah, you're jumping ahead here. The prohibition to which you rely here of tactics which pose a risk to civilians out of proportion to the military goal comes from the additional protocols to which I refered. They did not exist yet at the time of the second world war.


Let's say you have two countries. Country A locates its weapons and munitions in middle of an area highly populated by civilians knowing that in order to attack its weapons-making capacity, an enemy would likely inflict massive civilian casualties and hopes to use that as a deterrent. Country B is at war with Country A and in order to win needs to destroy those weapons and munitions and launches a bombing raid which destroys them but also kills many civilians. Which of these two countries engaged in prohibited military tactic under this standard?
9.10.2007 6:18pm
Anderson (mail):
Gerg, if you want to restrict the discussion to the prohibitions in effect at the time, the area bombing of Hamburg was a pretty clear-cut violation of Hague IV, was it not? "Proportionality" is a rather large concession as opposed to the prohibitions in Hague IV.
9.10.2007 6:20pm
ejo:
again, reading the posts here, I thank god that other people were in charge in WWII. by the way, if one lauds the Red Army rather than strategic bombing raids, are you condoning the conduct of that same Red Army?
9.10.2007 6:23pm
Gerg:
This draft convention makes the standard of being undefended quite high - any military units or anti-aircraft within the radius qualifies a town as defended. This convention, like the 1923 draft, was not ratified, nor even close to being ratified, when hostilities broke out in Europe. While the two conventions offer a guideline to what the belligerent powers were considering before the war, neither document was legally binding.


It doesn't seem we have the same mentality about this as the authors or players at the time. They seemed pretty clear they were talking about random pointless bombing of small villages and towns of no military significance.

I can't claim to be entirely at peace with the firebombings of Dresden or the nuclear bombings of Japan. Would I have been willing as a soldier to lay down my life to avoid such tactics? Would I have been capable of giving the orders if I thought it was the only way to win? I'm quite happy not having to find out really.
9.10.2007 6:30pm
Gaius Obvious (mail):
E.g. if Germany had been winning the war say in 1945 and we saw our ultimate defeat on the near horizon, can a justification be made for an all out gas attack on Germany on the supposition that we could win the war, or at least avoid abject defeat. And doing so knowing full well that doing so would violate International law?

You have described the almost exactly the early stages of planning for Operation OLYMPIC, the planned invasion of Japan. If Japan had not surrendered and the invasion was a go, the plan called for gassing the defending troops and then to launch a massive gas attack on Japanese cities until surrender or there were no Japanese left.

Read this short article excerpted below.

At the time of the invasion itself, tactical strike aircraft would drop nearly 9,000 tons of chemical weapons on the defending troops in the first fifteen days, with further attacks planned at the rate of just under 5,000 tons every thirty days from then on. As US troops came ashore, they would bring in howitzers and mortars that could deliver an additional forty-five tons a day of poisonous gas on Japanese positions.

This represented a massive use of chemical weapons, but it was dwarfed in scale by the proposed attacks on Japanese cities. In what the document described as an "initial gas blitz", long-range B-29 and B-24 strategic bombers would attack a large number of cities across Japan -- starting with Tokyo, fifteen days before the ground invasion started. Over the next, initial fifteen-day period, over 56,000 tons of gas bombs would be dropped on cities, followed by almost 24,000 tons of gas bombs dropped every month from then on until the war ended or all the planned targets had been hit.

At the time prior to Hiroshima and Nagasaki, Japan was arming even 17-year old school girls with crude swords and training them in suicide attacks. Their defensive plan was to fight to last Japanese. Little did they know that our offensive plan, barring a prior surrender, ended up there as well. As bad as Hiroshima and Nagasaki were, God help us that we never carried out the ultimate plans that were in the pipeline.
9.10.2007 6:42pm
Nikki:
Gaius Obvious - that reminds me of this excerpt from p17 of George Weller's First Into Nagasaki:
Before the bombs fell, Nagasaki was getting ready to lose the war but win the psychological recovery. American prisoners working in the Mitsubishi plant were naturally told that if defeated, the entire nation would commit hara-kiri. But the executives of the plant had taught their foremen some highly unsuicidal terms, such as, "How are you today?" and "We workers want to save our plant."
9.10.2007 7:05pm
Clayton E. Cramer (mail) (www):
At the time prior to Hiroshima and Nagasaki, Japan was arming even 17-year old school girls with crude swords and training them in suicide attacks. Their defensive plan was to fight to last Japanese. Little did they know that our offensive plan, barring a prior surrender, ended up there as well. As bad as Hiroshima and Nagasaki were, God help us that we never carried out the ultimate plans that were in the pipeline.
Or Japan would be the 51st state today--and it would have been a population that looked like America, not Japan. Japan was actually quite fortunate that we used nuclear weapons on them. As horrifying as the civilian casualties were, it seems to have been the equivalent of throwing cold water on two fighting dogs.

What makes the whole concept of international law a bad analogy to traditional law is the disparity between the players. As one of the U.S. delegates to an international peace conference around the start of the 20th century pointed out, an individual fighting against his own government is so puny in his powers that he can fight the law, but is almost certain to lose. Many of the world's nations are in a position to put up a serious fight against a UN decision, because the costs of enforcing such a decision are likely to be quite high.
9.10.2007 7:12pm
Larry Fafarman (mail) (www):
IMO bombing Hiroshima and Nagasaki was not necessary, for the following reasons --

(1) The one surrender condition that Japan proposed before the bombings -- retention of the emperor -- was accepted by the Allies after the bombings.

(2) The US gave Japan only three days to respond to the Hiroshima bombing before bombing Nagasaki.
9.10.2007 7:13pm
Bart (mail):
There is no such thing as international law because there is no international government which the people of the world have made sovereign with the power to enact and enforce law.

What folks call international law is a really set of generally agreed upon norms which all governments violate to some degree based on wartime necessity.

The only enforcement of these norms is by the victor in a war, which is far more analogous to vigilante justice than a government civilian criminal law system.

The United States should practice the rules of reciprocity and reason when applying these norms. Where the enemy follows the norms, we should as well. Where the enemy does not follow the norms, then we should still follow them when reasonable. However, if it will save lives to push the boundaries or simply ignore the norm when fighting against an outlaw regime or group, then the norm should give way.

If the Constitution is not a suicide pact, then "international law" most certainly is not.
9.10.2007 7:41pm
Carolina:
Larry Fafarman:


IMO bombing Hiroshima and Nagasaki was not necessary, for the following reasons --

(1) The one surrender condition that Japan proposed before the bombings -- retention of the emperor -- was accepted by the Allies after the bombings.


What is your source for this? Japan had no peace negotiations with the US whatsoever prior to the dropping of the atomic bombs, much less offered to surrender on the condition we retained the emperor.

We did know, from intercepted Japanese radio messages, that some Japanese diplomats wanted to surrender. But they were rebuffed, and it was clear at the minimum that if we initiated negotiations Japan would demand conditions we would not agree to, such as "No occupation of Japan."

Even AFTER we dropped the SECOND atomic bomb on Nagasaki, the imperial council deadlocked on whether to surrender or not and the emperor had to break the tie and order the surrender.
9.10.2007 8:12pm
Smokey:
On August 6th, the first atomic bomb was dropped. The Japanese military reported it as a 'magnesium bomb.' They didn't understand what had hit them. On August 9th, the second bomb was dropped. Japan surrendered six days later.

The A-bombs decisively ended a war which would have otherwise gone on for much longer, with many more casualties on both sides.

That said, the problem with ''international law'' is that rather than deciding if the leaders of a country are abiding by, say, the Geneva Convention, international law always devolves onto the enlisted foot soldier, and therefore always ends up as anti-American propaganda. For that reason alone, international law is a bad thing; it is a sinister foreign entanglement.

The UCMJ has always been brutal when it comes to disciplining U.S. soldiers for wrongdoing. Our military takes justice seriously. This country certainly does not need a bunch of self-serving foreign finger waggers proclaiming in self-righteous terms how bad American soldiers are, while turning a blind eye to the overwhelming, unpunished atrocities committed by socialist/communist countries with ''peoples' republic'' in their names.
9.10.2007 9:12pm
Elliot Reed:
I get the impression that this discussion is being harmed by taking an ex post perspective rather than an ex ante one. The acts of the Allies in World War II, which would have been atrocities if we'd done them as part of the Vietnam War, seem justified only because we won and there's a colorable case that they made a big difference to the outcome/made the war, on balance, less bad than it would have been otherwise.

But that's not the important question for policy. Decisions get made ex ante, not ex post. So the important question is: under what circumstances should violating international law be viewed as acceptable ex ante? This is an important way of characterizing the issue: ex ante you don't get to assume that your strategy will be effective, or that it will make the difference between winning and losing, and no doubt there's a tendency to undervalue the lives of "enemy" civilians.

For the record, I care very little about "international law", and a great deal about not committing moral atrocities. As an individualist, I view the rights of individuals (including "enemy" individuals) as the paramount concern in war. Nor do I think "enemy" civilians can be viewed as the enemy merely because they have the misfortune to live within the boundaries of the wrong state.
9.10.2007 9:41pm
Richard Aubrey (mail):
""Secondarily, can concern about international law justify the deaths of soldiers due to the lack of an advantage breaking the law might generate? Well, it had better, since we've been doing it since Viet Nam. "" (Aubrey)

Well, yeah. Suppose we could've kidnapped Saddam's infant children/grandchildren, and then gone on TV with them, saying "Saddam, step down &hand over national authority to the UN, or we'll kill the kids."

Think how many lives would've been saved (Anderson)

Given Saddaam's family values, I don't think that one would have worked. But it's a step for you. After all, you are acknowledging there is a cost. Take a rest, now. And be reassured that you won't be paying it. Probably.
9.10.2007 9:43pm
Elliot Reed:
Aubrey - there's a cost to committing (what would otherwise be) moral atrocities in the course of a good cause too, and it too is being paid by other people, probably.
9.10.2007 9:53pm
Elliot Reed:
There is no such thing as international law because there is no international government which the people of the world have made sovereign with the power to enact and enforce law.

What folks call international law is a really set of generally agreed upon norms which all governments violate to some degree based on wartime necessity.
This is a good description of domestic law too, at least in most countries. Few countries' governments were "made sovereign" by "the people". (Even the U.S.'s claim to this honor is pretty dubious, given all the people who weren't allowed to vote.) There are probably no governments who don't violate their own laws when they find it convenient. I guess there's no such thing as domestic law either.
9.10.2007 10:00pm
Caliban Darklock (www):
@ Anderson:

'The problem with Caliban's answer, it seems to me, is implicated in the reference to "something like Nuremberg."'

I happen to agree with this analysis. I don't know what we'd do if the party allegedly guilty of war crimes had actually won the war, but it seems to me that the international community should ought to do /something/ about it. Otherwise, you have what amounts to "international law only applies to the loser" which is not a supportable scenario IMO. I have some amount of faith in human nature, so I prefer to think we'd come up with something, if the situation were to arise.
9.10.2007 10:02pm
Randy R. (mail):
Regarding the bombing of Dresden: The communist eastern Germany used that bombing as anti-America propaganda for the next several decades, and even today there are a great many Germans who hold resentment towards the Americans and Brits for the bombing.

One need only talk to any person of Armenian descent to hear about their hatred towards the Turks for the genocide that occured 100 years ago.

The Serbs and the Croats still hate each other for the atrocities that each committed hundreds of years ago.

Poles still talk about the Katyn massacre and hold resentments towards Russia for that (among other atrocities).

Everything you do has a reaction to it, and part of international law is to provide for a good peace when peace eventually occurs. If a country or tribe commits unspeakable acts, the type of which are banned by international law, it will never achieve a true peace, but will instead create smoldering resentments, which can ignite against you at any time.

Following international law isn't some nicety that we do to have a comfy tea party. It's because it is in our own best interests to achieve military goals militarily. Of course, the reality is that violations occur, and may even be necessary. I won't argue that. But even those can be forgiven as long as systemic violations are not made as normal wartime policy.

If our military leaders agreed that rape and torture of civilians is the best and easiest way to 'win' in Iraq, do you really think that after peace is acheived that Iraq will be our friend and ally in a dangerous and volitile region? You would be naive to think so, in my opinion.
9.10.2007 10:25pm
Smokey:
Question for the handwringers: what country or countries are supposed to sit in judgement of the actions of America?

The totally corrupt UN? The Euroweenie-ruled World Court? Who do you propose we surrender our sovreignty to? And if we did such a stupid thing, what would stop it from becoming instantly political and anti-American?

America is better than any other country in the world when it comes to policing soldiers. Note that soldiers under the UN flag are routinely accused of rape and murder, without any prosecution. And you think they should sit in judgement of us??

Handing our collective heads on a platter to any of these immoral, money grubbing, massive beureaucracies would be complete stupidity, if not outright insanity.
9.10.2007 10:34pm
Elliot Reed:
Following international law isn't some nicety that we do to have a comfy tea party. It's because it is in our own best interests to achieve military goals militarily.
To the extent that international law bans things like the wanton slaughter of civilians, I vehemently disagree. The reason to avoid such things is not that they're poor military strategy, but that they're wrong. Morality means doing the right thing even when it's not in your interest to do so.
9.10.2007 10:58pm
Richard Aubrey (mail):
Elliot.

Of course there's a cost. In Anderson's hypothetical, it would have been borne by Saddaam's immediate family. The point is, Anderson snarks, is that it would have saved a lot of lives, if Saddaam had cared.

And, given your comment about doing the right thing even when it's not in your interest to do so?

If it means losing a war against some vicious regime?
If it means the loss of a large number of your own people, soldiers or civilians? "not in your interest" as you use it has two components. One is it means lots and lots of dead people. The other is that the person who decides is generally not one of them, for perfectly good reasons. Presidents and generals don't lead squads.

To be more useful, you should have ended the sentence with, "even if it means a lot of your soldiers would die."
Just to get the flavor.
9.10.2007 11:14pm
New Pseudonym (mail):
Posts on this thread generally make an unwarranted assumption concerning what International Law is. In international law, it is strictly a Hobbsean World. No State is bound except by its consent. It may express this consent by signing a treaty, or by some other actions. In the case of its actions, duress is not a "defense." What a nation is made to do by force majeure, is an action that establishes international law. Therefore, the Nuremburg trials established the consent of Germany. The judgment of a Japanese Court in no way binds the United States of America. Jurisdiction of International Courts is bestowed solely by the consent of a State/party, so once again, a state's actions bind it to the judgment of the international court. International court decisions are effective only between the parties to the judgment and are persuasive, but not binding, precedent in an identical case (to which the parties have consented to jurisdiction).
When states act to comply with the judgment of an international court which has entered judgment between two other states, it is the state action, not the judgment of the court, which binds the third party state.

In the cited cases, the failure to notify the Red Cross was a violation of a treaty entered into by the United States, and was, therefore, a violation of international law. None of the examples of strategic bombing qualify. First, the claim that innocent [sic] civilians were intentionally killed is just that -- a claim. Collateral Damage is not a violation of international law, and since 1864 in Georgia, civilians who contribute to the production that enables a hostile power to continue hostilities have little claim to be "innocent." All the arguments made here may have some validity in questioning whether the conduct of strategic bombardment in World War II was justified, but they have nothing to do with whether they are violations of international law.
9.10.2007 11:31pm
Randy R. (mail):
Smokey: "Note that soldiers under the UN flag are routinely accused of rape and murder, without any prosecution."

I've never heard this accusation. Any citation or links for it?

Furthermore, this follows the line of reasoning that it's okay for us to rape and murder because everyone else is doing it. Is that what you are saying?
9.10.2007 11:41pm
Smokey:
Randy R.-

You can take it from here.
9.10.2007 11:51pm
Smokey:
Oh, and Randy R, you're not deliberately misconstruing what I said, are you? You asked:
Furthermore, this follows the line of reasoning that it's okay for us to rape and murder because everyone else is doing it. Is that what you are saying?
My point was that the U.S. polices its soldiers better than any other country in the world polices theirs. How you got to the assumption that it's OK for our soldiers to rape and murder is beyond me.

And why won't you answer my question: who is supposed to sit in judgement of American soldiers? Zimbabwe? Libya? North Korea? The UN?
9.11.2007 12:00am
W.J.Hopwood (mail):
Anderson writes: ".. -- I'm not terribly up on the history of Enigma, but by 1944, wasn't Bletchley Park pretty much reading Enigma message in close to real time?"

The capture of U-505 greatly facilitated the speed with which the U-Boat operational traffic could be deciphered. Not only was the cipher machine itself captured but also a curent codebook with its list of "keys" and numerous messages showing both plain text and cipher text side-by-side.

For Bletchley to produce similar decode results required considerably more time, effort, and analytical machinery. The capture of this material was a giant step in the anti-submarine war in the Atlantic.
9.11.2007 1:37am
Malvolio:
Even AFTER we dropped the SECOND atomic bomb on Nagasaki, the imperial council deadlocked on whether to surrender or not and the emperor had to break the tie and order the surrender.
After which, a pro-war faction put the supposed sacred Emperor under house-arrest and ransacked the radio station where his recorded surrender announcement was being prepared for broadcast. If their efforts had not been hampered by a blackout, they might very well have kept Japan in the war weeks or months more.

Read Japan's Longest Day for more information, but in summary, anyone who thinks that Japan was "about to surrender" just isn't paying attention.
9.11.2007 2:46am
Ken Arromdee:
Before the bombs fell, Nagasaki was getting ready to lose the war but win the psychological recovery. American prisoners working in the Mitsubishi plant were naturally told that if defeated, the entire nation would commit hara-kiri.

If the enemy lies to us, we believe them, and that leads us to conclude we need to kill more of them, shouldn't they be considered responsible for the extra deaths?

Why is it our fault when the enemy misleads us into thinking that an invasion will cause a bloodbath, and we respond by deciding we're better off dropping an atom bomb than invading? It was their own lies which made the atom bomb look so inviting in the first place.
9.11.2007 3:19am
Gaius Obvious (mail):
I've never heard this accusation [of UN troops raping civilians]. Any citation or links for it?

It's just a Google search away:

UK Telegraph: UN troops accused of 'systematic' rape in Sierra Leone

The BBC: UN troops face child abuse claims

The Washington Post: U.N. Faces More Accusations of Sexual Misconduct

The BBC: UN Haiti troops accused of rape

ABC News: UN Troops Continue Sex Abuse
9.11.2007 4:31am
Richard Aubrey (mail):
I don't think Randy R is as ignorant as he sounds.

The UN troops as pedophilic sex tourists with guns (ht. Mark Steyn) has been a matter of common knowledge for years.

And then when Randy R riffs off on "this follows the line ...." crap, you can be sure he's not talking in good faith. He knows better.

Nobody's that dumb.
9.11.2007 8:48am
mariner (mail):
Ilya seems to assume that most people would agree that the bombings of civilians in WWII (and the even more terrible Hiroshima and Nagasaki bombings) were justified, which for me is a pretty dubious stretch.


For Pio that may be a dubious stretch. For many people who post here it may be a dubious stretch.

But I feel pretty safe in saying that most people don't lose much sleep over Hiroshima, Nagasaki, or Tokyo.

Another commenter in another of these threads said it best: "international law" is like putting lipstick on a pig.
9.11.2007 12:37pm
Richard Aubrey (mail):
International law would, if conducted as many would like, put Sudan on a committee investigating genocide by the US. The genocide treaty considers the disappearance of an ethnic group as genocide, even if it's the end of some miniscule sub-tribe of Indians who assimilate. In a dust-up like that, Sudan would be the good guy for the simple reason that we would be the accused.

It would put Syria on the Human Rights Commission. Oops. Wait.... Judging us. With us getting the crap, not Syria.
9.11.2007 1:10pm
Richard Aubrey (mail):
Carolina; Wrt the electric grid. Every plan which isn't tried is presumed to work just like it says in the manufacturer's brochure. The ones we tried or try don't work out that well. Something about the real world, or plans surviving contact with the enemy or something.
There weren't all that many refineries, either.

Nevertheless, it should have been tried. Problem is, with the resilience of modern society, you have to get pretty far into it before you can tell if it's making a significant difference.
9.11.2007 4:05pm
Larry Fafarman (mail) (www):
Carolina said (9.10.2007 7:12pm) --
Larry Fafarman:

IMO bombing Hiroshima and Nagasaki was not necessary, for the following reasons --

(1) The one surrender condition that Japan proposed before the bombings -- retention of the emperor -- was accepted by the Allies after the bombings.


What is your source for this? Japan had no peace negotiations with the US whatsoever prior to the dropping of the atomic bombs, much less offered to surrender on the condition we retained the emperor.

I am not talking about direct negotiations -- I am talking about "peace feelers" that the Japanese sent out through indirect channels.

I am also criticizing the US for giving the Japanese only three days to respond to the Hiroshima bombing before bombing Nagasaki.

It is probable that the USA had a desire to take revenge on Japan. That is one of reasons why it is difficult to analyze the USA's motives 62 years later.
9.12.2007 12:02am
Rich Rostrom (mail):
There are some false premises here.

First, the "Geneva Conventions" are agreed conventions, not "international law". The latter is a different beast.

Second, aerial bombing of a defended city, even if done indiscriminately, is not a "war crime". It might be judged such if the target city was completely devoid of military assets, but there were no such targets in WW II. The firebombing of Hamburg destroyed shipyards that were building U-boats. Hiroshima held the army group HQ for all southern Japan. Dresden had numerous war production factories, and was the transportation hub for the supply of German troops on a large part of the Eastern Front (which was only 125 km to the east). For that matter, Guernica had a small munitions factory.

Regarding the U-505: the Allies were reading a lot of Enigma traffic by that time, but not all of it; some keys were never broken. Breaks into Enigma depended on the use of the "bombes", the electro-mechanical quasi-computers, of which there were never enough, German errors, and knowing the wiring of Enigma wheels. If U-505's crew had not been sequestered, and the Germans learned of the capture... At the very least, the Germans would have replaced the captured keys, and precious bombes would have been required to break the replacement keys. The Germans might have gone further, and replaced their Enigma wheels, forcing the Allies to start the cracking process from scratch. It should be noted that in the latter stages of the war, the Allies went to some trouble to avoid capturing Enigma material, because after such captures the Germans would know Enigma was compromised.
9.12.2007 1:26am
Richard Aubrey (mail):
Here's a thought: Was it a war crime to allow Coventry to be hit, without taking action for which Enigma provided the foreknowledge? The Brits didn't even pre-position ambulances.
9.12.2007 9:30am