pageok
pageok
pageok
Does the Prevalence of Bogus Justifications for Violating International Law Prove that Violations are Never Justified?

In response to my earlier post on justifications for violating international law, some commenters point to the danger that "necessity" arguments can be used to justify virtually any illegal conduct. For example, one argues that:

Necessity is a poor defense for war crimes. Barring the truly gratuitous (like the Soviet rapes [of German civilians during WWII]), 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.

The argument is not without some force. Indeed, some Soviet officials even tried to justify the mass rape of German and other women by their troops by claiming that it was necessary to keep up the soldiers' morale. However, the fact that many necessity arguments for violations of international law are bogus excuses doesn't prove that all of them are. For example, there is pretty strong evidence that the illegal targeting of German and Japanese civilians by the Allied strategic bombing campaign in World War II played an essential role in the defeat of the Axis (see, e.g., Richard Overy's book, Why the Allies Won). Perhaps the risk of allowing states to get away with bogus justifications is so great that a categorical ban with no exceptions is the only solution. In my original post, I emphasized that:

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.

Such concerns justify a high burden of proof for necessity arguments, especially in cases such as the strategic bombing campaign where the illegal conduct causes great harm. They may also justify other institutional safeguards to reduce the risk of bogus necessity-mongering. Nonetheless, I am skeptical of claims that these dangers justify a categorical rejection of conduct that violates international law. In some important cases - including World War II - rigorous enforcement of such a rule would lead to far greater atrocities than the it prevents. For example, this rule would mean that outside forces could never intervene to oust a repressive regime engaged in mass murder so long as its crimes were confined to its own territory (because nondefensive war is considered illegal under the UN Charter).

We should certainly guard against bogus justifications for violating international law. But we should also guard against the sort of cult fetishization of international law that unthinkingly elevates adherence to international legal rules above all other considerations.

Related Posts (on one page):

  1. Does the Prevalence of Bogus Justifications for Violating International Law Prove that Violations are Never Justified?
  2. Are Violations of International Law Ever Justified?
EH:
Indeed, some Soviet officials even tried to justify the mass rape of German and other women by their troops by claiming that it was necessary to keep up the soldiers' morale.
It seems like so much longer than 60 years ago.
9.10.2007 6:40pm
A. Berman (mail):
Maybe some things that we consider 'war crimes' really aren't? I know exactly how that sounds, but, for example, the way we distinguish military from civilian populations is relatively new. Maybe a smaller, tighter set of war crimes might work. That doesn't mean we can't place additional restrictions on what we do, of course.
9.10.2007 6:44pm
Dilan Esper (mail) (www):
One thing that Ilya seems to be ignoring is that international law can itself address the issue of necessity. Thus, the torture convention prohibits necessity defenses, because everyone who has ever tortured has pleaded necessity and 99.999 percent of the time (and perhaps 100 percent) it has been BS. But international law's prohibitions on transnational aggression have clear exceptions for self-defense.

I see no reason that necessity defenses can be treated like anything else, and be debated and agreed to within the framework of international law.
9.10.2007 6:46pm
Zacharias (mail):
To me there is every justification for strategic bombing of civilians of an enemy democracy, since (disregarding child victims) it is the very rulers who are killed. Less justified is such bombing of a dictatorship or oligarchy like Japan of WWII or Cuba or Saudi Arabia, where the civilians are not so culpable.

That's why it pains me so to think that Amerikans actually elected George Bush. If anyone is responsible for misery in the world today, it is the Amerikans who elected him.
9.10.2007 6:46pm
Anderson (mail):
I already took a swipe at the "very strong evidence" in the last thread, but here is Grayling on Overy:

... Overy's analysis ... focuses on the two points that, first, the bombing campaign kept guns and fighter aircraft away from the fronts to defend the homeland, and second, that by January 1945 bombing had at last so depleted Germany's industrial capacity that Speer was moved to write to Hitler saying that "realistically, the war is over in this area of heavy industry and armaments."

This however is not a vindication of area bombing. For once again one has to point out that precision-bombing efforts against industry, transport, power and military targets would have kept those guns and fighter planes in Germany; and once again one has to point out that it was precision-bombing endeavours against oil and transport, not area bombing, that forced German war production to diminish and at last falter in the closing months of the war.


--Among the Dead Cities at 259 (citing Overy at 128-30) (boldfacing mine).

Again, one must not lump in area bombing with "bombing in general."
9.10.2007 6:55pm
samuil (mail):
>>>>>For example, there is pretty strong evidence that the illegal(?) targeting of German and Japanese civilians by the Allied strategic bombing campaign in World War II played an essential role in the defeat of the Axis >>>>.


Complete rubbish.
First, how and by what standards that was illegal?

Second, the killing of the civilians did not help at all, otherwise how come Germans who did much more civilian killings did not win the war ?

So, the real answer should be, the deliberate targeting of civilians was wrong and immoral, but it did not help to win the war in the slightest.
9.10.2007 6:56pm
Dave Hardy (mail) (www):
To me there is every justification for strategic bombing of civilians of an enemy democracy, since (disregarding child victims) it is the very rulers who are killed. Less justified is such bombing of a dictatorship or oligarchy like Japan of WWII or Cuba or Saudi Arabia, where the civilians are not so culpable.

How 'bout Nazi Germany? They were about as democratic as Cuba.
9.10.2007 6:59pm
Dave Hardy (mail) (www):
It's my understanding that it was the pinpoint (for the day) daylight bombings, when the Allies finally figured out that they should target a handful of key industries and railroads and blow them flat and keep coming back, that did the trick. The night firebombings didn't do much except kill civilians. The British were more or less forced into night bombing (no fighter planes could go the distance for escort, and their defensive armaments were insufficient to survive in day bombing). Given the inaccuracy of night bombing (I seem to recall circular error probable was in the tens of miles), it was only possible to bomb a city as such.
9.10.2007 7:02pm
A. Berman (mail):
People who argue against killing civilians in Nazi Germany and Japan forget that both Hitler and Hirohito were immensely popular. Democracy, Oligarchy, or Dictatorship, the Germans *loved* Hitler and the Japanese worshiped Hirohito.
9.10.2007 7:07pm
Zacharias (mail):
If you studied history, Dave Hardy, you'd realize that the election that brought Hitler to power was way more democratic than the election that brought Bush to power in 2001!

Still, the saddest truth of all is that bombing of Amerikan civilians by many of the world's aggrieved, from Iran to Tierra del Fuego, is clearly justified under international law.
9.10.2007 7:10pm
Benjamin Davis (mail):
I think it depends on the type of international law rule in play. A lower level norm might be breached and a remedy for that be found. Other norms - like torture - are much higher and categoric so that no justification works for breaching them. States have thought about this and have made this prohibition against torture categoric. Why wouldn't that be good enough to answer the question?
Best,
Ben
9.10.2007 7:10pm
Anderson (mail):
The British were more or less forced into night bombing (no fighter planes could go the distance for escort, and their defensive armaments were insufficient to survive in day bombing).

Gotta head out, but one of the instructive things in Max Hastings' Bomber Command is that the Brits' technical inadequacies were not an accident. They set out to build a fleet of terror bombers, &then ran into the politicians' squeamishness at "provoking" the Germans. Of course, once the Blitz was on, no one gave a damn any more about the German civilians.

Really, the amazing thing in reading about this stuff is how candid people were at the time, esp. Arthur Harris. The postwar justifications often bear little resemblance to what the actual motives were.
9.10.2007 7:12pm
Anderson (mail):
Zacharias, before you start tut-tutting others' historical knowledge, perhaps you would explain what election "brought Hitler to power"?

The Nazis never polled as well as Bush's take in the 2000 election, and Hitler became chancellor through backstairs wheeling and dealing, not by democratic vote.

Elections *after* the Nazis were in, and Goering was Prussia's police minister, are suspect for obvious reasons.

Comparisons of Bush to Hitler are both rhetorically inadvisable and factually dubious. Besides, he's much more a Mussolini character ... [runs away].
9.10.2007 7:15pm
Earnest Iconoclast (mail) (www):
If the United States ever finds itself in a truly desperate existential war, I hope that the generals running the war use every means at their disposal to win and don't let any rules prevent them from using an effective means to win.

Given our current situation, we are fortunate that we can afford to play nice and follow all kinds of international and internal rules of war.

EI
9.10.2007 7:24pm
frankcross (mail):
How quickly we "disregard child victims."

I think the issue is one of rule utilitarianism. That is, if there are appropriate exceptions, do we trust ourselves to appropriately distinguish betweeen legitimate and bogus invocations of exceptions?

Frankly, in a war where national survival is at issue, like WWII, I don't think law is ever going to restrain our actions. We accept the bogus under a "better safe than sorry" theory. However, where survival is less directly at stake, I'm inclined not to invoke exceptions on the grounds that self-interested individuals won't do a good job of accurately distinguishing the bogus from the legitimate.
9.10.2007 7:31pm
Zacharias (mail):
Well Mr Anderson, on election day, 6 March 1933, the Nazi Party gained 43.9% of the vote, remaining the largest party, but its victory was marred by its failure to secure an absolute majority, necessitating maintaining a coalition with the DNVP.

By contrast, George Bush LOST the popular vote in 2000. If the Amerikan people hadn't given him a majority in 2004, we might have a claim to innocence.

I lived in Germany after WWII and found few Nazis there and nobody who admitted voting for Hitler's party. I wonder how many Amerikans will deny having voted for Bush once Bin Laden takes over?
9.10.2007 7:34pm
Stating the Obvious (mail):
Anderson: The Nazis never polled as well as Bush's take in the 2000 election, and Hitler became chancellor through backstairs wheeling and dealing, not by democratic vote.
---
I find this (and I usually find myself agreeing with Anderson) unconsciously ironic. Wasn't it "backstairs wheeling and dealing" that got Bush I the VP slot under Reagan? And of course he wouldn't have become President otherwise. And of course his son wouldn't have become President otherwise. So it seems that backstairs wheeling and dealing certainly played a role in making our favorite Alfred E Newman lookalike leader of the free world.
9.10.2007 7:42pm
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 7:42pm
Stating the Obvious (mail):
Ilya: But we should also guard against the sort of cult fetishization of international law that unthinkingly elevates adherence to international legal rules above all other considerations.
---
Here, under "other considerations" that trump international law, I think Ilya refers to "losing," or, more precisely, "not gaining such an unconditional victory that one has to actually negotiate truce terms with the enemy." FDR's call for unconditional surrender is reported to have caught Churchill off guard and added more than a year to the war, with the attendent additional deaths.
9.10.2007 7:45pm
tsotha:
The Geneva conventions have specific language to the effect of "you have to follow these rules even if your opponent does not". Initially it seemed kind of daft to me, but on relection makes sense: has there ever been a war since the conventions were ratified where one side couldn't point to some conduct on the part of the other that contravened the rules of war?

On the other hand we fight a foe that considers us weak for trying to remain civilized. I wonder if they're right.
9.10.2007 8:06pm
Dave Hardy (mail) (www):
If you studied history, Dave Hardy, you'd realize that the election that brought Hitler to power was way more democratic than the election that brought Bush to power in 2001!

My point was that the Nazis were at least as democratic as Cuba -- which also has elections. And only one fewer major party than we do. : )

What democratic input there was ended long before the strategic bombing campaign, circa 1933-34.
9.10.2007 8:37pm
Elliot123 (mail):
Unfortunately, wars are not fought by lawyers in courtrooms. They are fought by politicians, generals, soldiers, and populations who might regard Geneva as a noble goal, but one which remains a long way off when survival is at stake.

Identifying past violations of Geneva is probably valuable in assisting future compliance, but we shouldn't expect any society to sacrifice it existence by blind compliance.

Geneva, like any law, is a guide, and we have to make the determination when the need arises as to whether compliance or the alternative offers the greater good. And who determies the greater good? We do.
9.10.2007 8:42pm
Houston Lawyer:
Just look at the recent example of soldiers in Afghanistan who were observed by some shepherd boys. The soldiers had no way to keep the boys quiet other than to kill them, so they let them go. The boys brought back help and all but one of the soldiers, and several others brought in to help were killed.

War forces hard choices on soldiers that are hard to adequately judge in hindsight. Necessity can be a cruel thing.
9.10.2007 8:54pm
Dave N (mail):
Any time I see the Bush is worse than Hitler drivel or see America spelled with a "k" I know I am seeing someone incapable of rational debate. When I see them both in the same post, I don't even try.
9.10.2007 9:01pm
Ilya Somin:
Overy's analysis ... focuses on the two points that, first, the bombing campaign kept guns and fighter aircraft away from the fronts to defend the homeland, and second, that by January 1945 bombing had at last so depleted Germany's industrial capacity that Speer was moved to write to Hitler saying that "realistically, the war is over in this area of heavy industry and armaments."

This however is not a vindication of area bombing. For once again one has to point out that precision-bombing efforts against industry, transport, power and military targets would have kept those guns and fighter planes in Germany; and once again one has to point out that it was precision-bombing endeavours against oil and transport, not area bombing, that forced German war production to diminish and at last falter in the closing months of the war.


There are 2 problems here. First, as Overy points out, the area bombing played an important role in diverting German resources to antiaircraft defense and dispersal of industry - which occupied millions of men who could otherwise have been sent to the front. Second, in the context of WWWII-era technology, the difference between "precision" and "area" bombing was relatively minor in practice. "Precisely" targeting a war factory usually meant leveling a large area around it. There were no laser-guided bombs or other PGMs back in 1945.
9.10.2007 9:03pm
Ilya Somin:
One thing that Ilya seems to be ignoring is that international law can itself address the issue of necessity. Thus, the torture convention prohibits necessity defenses, because everyone who has ever tortured has pleaded necessity and 99.999 percent of the time (and perhaps 100 percent) it has been BS. But international law's prohibitions on transnational aggression have clear exceptions for self-defense.

It can address these issues, but what if it doesn't? In current law there is no exception to the rule against bombing civilians for the WWII situation. Nor is there an exception from the rule against nondefensive war to cover interventions against highly oppressive regimes - or even ones engaged in mass murder.
9.10.2007 9:04pm
Benjamin Davis (mail):
"The soldiers had no way to keep the boys quiet other than to kill them, so they let them go."

Why was kill the only other option to letting them go - can you cite to the story where this came up?

Best,
Ben
9.10.2007 9:08pm
Ilya Somin:
Complete rubbish.
First, how and by what standards that was illegal?


It was illegal under the Hague Convention and other international law banning intentional targeting of civilians. FDR and other Allied leaders themselves made that point when they denounced as illegal the German bombing of Guernica, Warsaw, and Rotterdam.

Second, the killing of the civilians did not help at all, otherwise how come Germans who did much more civilian killings did not win the war ?

The Germans mostly killed civilians in places they had occupied - people who were not in a position to aid the Allied war effort. By contrast, the Allies killed German civilians IN GERMANY who were engaged in arms production, keeping up the Germany economy, and other tasks that aided the German war effort in various ways. Moreover, the Allied bombing campaign helped to undermine German morale. By contrast, the German policy of killing civilians in countries they had already defeated did little to undermine the morale of civilian populations of nations that were still in the fight.

Finally, the fact that a country that used a particular tactic didn't win the war, doesn't prove that the tactic was ineffective. It could just mean that it was not the only factor affecting the outcome.
9.10.2007 9:09pm
Anderson (mail):
Prof. Somin: First, as Overy points out, the area bombing played an important role in diverting German resources to antiaircraft defense and dispersal of industry - which occupied millions of men who could otherwise have been sent to the front.

As the Grayling quote that I provided expressly states, AA defense was going to be needed against *any* strategic bombing, whether precision or not. Dispersal of industry likewise was needed in either case. Also, "millions" is a gross exaggeration.

Second, in the context of WWWII-era technology, the difference between "precision" and "area" bombing was relatively minor in practice. "Precisely" targeting a war factory usually meant leveling a large area around it. There were no laser-guided bombs or other PGMs back in 1945.

I could not disagree more. Sure, precision bombing was in its infancy, and bombing a factory might take out the surrounding houses.

But the alternative was area bombing, which in practice meant targeting the city center and doing your best to burn the whole damn place down.

The difference is between dozens or hundreds of casualties, and thousands or tens of thousands. That is not a "relatively minor" distinction.

If Prof. Somin has not read Grayling's book, I would recommend it -- it's very weak on the Pacific theater, but I found it persuasive on Germany.
9.10.2007 9:14pm
Anderson (mail):
StO, I hear ya, but there's a bit more remove between Bush I's getting on the ticket and Hitler's getting named chancellor to make me feel happy with any analogy.

A "for want of a nail" problem ... had GHWB not gotten Barbara tipsy one night, GWB might not've been conceived, and therefore alcohol is to blame for the Bush II presidency?
9.10.2007 9:17pm
Anderson (mail):
("bit TOO MUCH remove" -- my editor is out today!)
9.10.2007 9:18pm
KeithK (mail):

Geneva, like any law, is a guide, and we have to make the determination when the need arises as to whether compliance or the alternative offers the greater good. And who determies the greater good? We do.


Exactly. Just one nitpick though. In the final analysis the greater good determination is made by the winners. A losing general is a lot more likely to stand trial for war crimes than a winning one.
9.10.2007 9:47pm
sashal (mail):
Ok, Ilya, so it was not deliberate killing of civillians, our troops were targeting infrastractures where civilians worked.
btw Germans did that too-bombed factories and other industrial objects....and beside that, they engaged in killing civilians who did not work on those objects...
9.10.2007 9:48pm
rfg:
The area bombing of both Germany and Japan in WWII was justified with the reasoning that if enough damage could be done to the civilian population, the enemy would surrender.

So far, this has not worked- it didn't work for the Germans (London blitz, etc), nor did it work for the allies.

The bombing of Europe was controversial at the time, too. It is noticeable that Air Marshal Harris, of Bomber Command, was the only senior British officer not rewarded with a peerage or a knighthood after the war.

Man is not a rational being- we are rationalizing beings.
9.10.2007 9:57pm
Anderson (mail):
So far, this has not worked

I would like to agree, rfg, but the Japanese example is difficult to ignore.

However, had we not been inured to the incineration of Japanese civilians by the time the A-bomb cleared the production line, we might have waited to see what effect the Soviets' non-renewal of their treaty with Japan would have.

The Japanese placed a pathetic faith in the notion that the Soviets might broker a peace with the U.S.; the clear signal of an impending Soviet declaration of war might've been the tipping point.

But by August 1945, there was no particular reason not to kill tens of thousands of Japanese civilians -- we'd been doing it for months (remember that more died in the Tokyo firestorm than at Hiroshima).
9.10.2007 10:06pm
Richard Aubrey (mail):
Benjamin Davis.

See "Lone Survivor" by Luttrell, part of a SEAL team in Afghanistan. There were only a handful of them. None could be spared to guard prisoners. Tying up a half dozen people only delays by a bit how long it takes for them to get loose.

A Brit (SAS) faced the same choice in Iraq, deciding that he was SAS, not SS, and got caught, with some of his team dying. Andy McNabb--can't recall the title of the book.

Later on, though, Luttrell was aided by other civilians who actually notified US authorties about where to find him. If they'd killed the first bunch, they might not have needed help from the second bunch. But if they had needed it, it may not have been forthcoming.

Anyway, it was a very difficult decision and he says he replays it every day.
9.10.2007 10:21pm
Ilya Somin:
Prof. Somin: First, as Overy points out, the area bombing played an important role in diverting German resources to antiaircraft defense and dispersal of industry - which occupied millions of men who could otherwise have been sent to the front.

As the Grayling quote that I provided expressly states, AA defense was going to be needed against *any* strategic bombing, whether precision or not. Dispersal of industry likewise was needed in either case. Also, "millions" is a gross exaggeration.


Sure, but it would not have been needed on the same scale or covering nearly as large an area. And millions is precisely correct. As Overy points out, some 2 million Germans were manning AA guns in Germany itself by 1944, and that's not counting those engaged in manning fighters and other air defenses.

[IS]: Second, in the context of WWWII-era technology, the difference between "precision" and "area" bombing was relatively minor in practice. "Precisely" targeting a war factory usually meant leveling a large area around it. There were no laser-guided bombs or other PGMs back in 1945.

[Anderson]: I could not disagree more. Sure, precision bombing was in its infancy, and bombing a factory might take out the surrounding houses.

But the alternative was area bombing, which in practice meant targeting the city center and doing your best to burn the whole damn place down.

The difference is between dozens or hundreds of casualties, and thousands or tens of thousands. That is not a "relatively minor" distinction.


In the case of cities with large industrial facilities (the kind the allies were targetting), there was not much difference between targeting the city center and targeting factories, which in practice meant targetting entire sections of the city where the factories were located. There was simply no way, in the 1940s, to limit "precision" bombing of cities in ways that would reduce casualties to "dozens" or "hundreds" or limit effects to "surrounding houses." The evidence on that point is pretty overwhelming (including the record of the US precision bombing campaign against germany in 1942-44, before the US came around to accepting British area bombing tactics to a greater extent).
9.10.2007 10:23pm
Anderson (mail):
As Overy points out, some 2 million Germans were manning AA guns in Germany itself by 1944

And how many of those were of negligible use for anything else? The Germans weren't above sending 15-year-olds out against the Russians, but it didn't slow the Russians up much.

Agree to disagree on the 2d point, since I don't have time to marshal the necessary facts (tho it's much more fun than answering EEOC complaints). Focus on factories was misplaced for the most part; the simple fact was that without oil and gasoline, Hitler's army was hamstrung, and targeting those did not require burning down cities. And I still think you're exaggerating in maintaining that burning down an entire city was really the only approach the Allies had to destroying key industries. But again, we can save this for another day.
9.10.2007 10:30pm
Richard Aubrey (mail):
Despite night bombing, the RAF Bomber Command lost more people than we did in Viet Nam. And, despite more guns and armor on the bombers, tight combat formations,, eventual fighter cover for the whole trip, flying in daylight, the Mighty Eighth lost more men than did the Marines in the Pacific.

The results of targeting versus results in civilian casualties were not particularly connected with intent. The US heavy bombers had, IIRC, a Circular Error Probable (half the bombs fell within the circle and the other half didn't) of a quarter of a mile--radius, that is.

The first raid on Ploesti was more productive of valor than of any results and the Allies had to keep bombing the thing practically until the end of the war. Everybody had an idea of what the best chokepoint in the war effort was. Fuel eventually turned out to be it. But in the meantime, there were ballbearings (60 planes lost on that raid, plus a huge number written off when they struggled back with dead and wounded crew). And there were the dams. (The Dambusters raid was costly, too. Results in the overall effort???) But, since the Germans were on the defensive--didn't have to move so much--since Stalingrad, even degrading their fuel supplies took a long, long time to make a substantial difference.

My father's unit was once to be preceded in an attack on a German town by a medium level raid in daylight by B25s. The sight of all those bombers being shot down (Kraut flak was damn' good) got the soldiers screaming helplessly that they'd go by themselves, but get the planes out of there.

Point of the foregoing was that there was hardly any good choice in the matter of bombing. Anything you did would kill civilians and get bomber crews killed and the results in terms of the war effort were usually indistinct. Or if it didn't get civilians killed, the targets were probably in the combat zone, which meant that, instead of getting them coming out the factory door, you got them only after they'd been in action against your guys for some time.

If you ever thank any Supreme Being, thank Him for not putting you in a position to make those choices and try to live a normal life afterwards.
9.10.2007 10:36pm
Eli Rabett (www):
Happy to see you argue for jury nullification
9.10.2007 11:05pm
Gaius Obvious (mail):
The Geneva conventions have specific language to the effect of "you have to follow these rules even if your opponent does not".

Not true. The exact language is this: "...Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

You only have to adhere to the GC if your opponent, who is not a signatory to them, nevertheless adheres to them. If your non-signatory opponent violates them, then you are not bound by them in conducting your military operations against the violating non-signatory.

The whole point is to encourage the GC to be followed, to lessen the brutality of war. Granting GC rights to your opponent who does not follow them and who is not a signatory encourages just the opposite, for as we have seen in these threads here, flouting the GC can gain you military advantage in certain situations.
9.10.2007 11:45pm
Carolina:
Richard Aubrey:

Everybody had an idea of what the best chokepoint in the war effort was. Fuel eventually turned out to be it.


And the sad thing is, we missed the tightest chokepoint of all, which was German electricity production. Analysis after the war suggested we could have shortened the war by at least 6 months, maybe a great deal more, by targeting Germany's power grid.
9.10.2007 11:46pm
V:
Anderson, responding to StO:
A "for want of a nail" problem ... had GHWB not gotten Barbara tipsy one night, GWB might not've been conceived, and therefore alcohol is to blame for the Bush II presidency?
---
A stronger argument for teatotalism I have never heard...
9.11.2007 12:20am
Dilan Esper (mail) (www):
It can address these issues, but what if it doesn't? In current law there is no exception to the rule against bombing civilians for the WWII situation. Nor is there an exception from the rule against nondefensive war to cover interventions against highly oppressive regimes - or even ones engaged in mass murder.

International law comes from two basic sources-- positive law (treaties and multilateral institutions) and custom.

With respect to custom, if there is a custom that permits this sort of warfare, that's enough unless there is some positive law pronouncement that it is illegal. In the case of bombing civilians, as I understand it, you aren't supposed to TARGET civilians, but if you TARGET a military target, you can cause any amount of foreseeable collateral damage. Thus, the atomic bombing of Hiroshima and Nagasaki was not a violation of international law, as the targets were ostensibly military.

But to the extent that is not sufficient, we can try to get a more favorable rule enacted in positive law. We can try to get UN resolutions passed, or treaties into force. We can make arguments before international tribunals.

Finally, a nation can always hold out of treaties and even persistently object to customary international law (except for a limited class of "jus cogens", nonderogable norms).

So what's the problem?
9.11.2007 12:37am
Bob from Ohio (mail):
War is murder and any and all rules like Hague or Geneva Conventions or "customary" international law are like lipstick on a pig.

These rules are only obeyed when it is in the nation's interest (real or perceived) to follow them. If any advantage is to be gained, the rules go right out the window.

Some people recognized that the bombing was morally dubious but we did it anyway because we thought it would help us. In a total war situation like WW2, there are no civilians anyway, just soldiers and those who are workers in support of the war. What is the real difference between killing a soldier and kil;ing a "civilian" who makes the rifle the soldier uses? Or grows the food that keeps the soldier in the field?
9.11.2007 1:26am
American Psikhushka (mail) (www):
Bob from Ohio-

These rules are only obeyed when it is in the nation's interest (real or perceived) to follow them. If any advantage is to be gained, the rules go right out the window.

What if your real long term goal is to live up to the standard of your nation being a beacon of freedom, justice, and decency, no matter what manner of enemy you happen to be fighting? Especially if you aren't fighting a war of survival, or even on your own soil.
9.11.2007 8:09am
Richard Aubrey (mail):
American Psi. What if your real long term goal is to live? "Especially". You will note that, when we aren't fighting a war of immediate survival, we're far nicer than when we were back in the day.

Carolina. Given the difficulties of hitting anything, "targeting" the power grid is not the same as hitting it, much less getting ahead of the work-arounds. The Allies bombed railroads from the beginning to the end and only managed to make transportation more difficult and time-consuming (which was a help). I wonder if the six-months conclusion took into account the actual, or presumed-by-experience, rate of net degredation of the grid. Or was presumed to work just fine like the other schemes people were desperately seeking to provide a way around a repeat of the Western Front in the previous go-round..
9.11.2007 8:44am
Carolina:
@Richard Aubrey:

Power plants are relatively easy to damage and hard to build/repair. 82% of Germany's electrical power was provided by just 400 power plants.

The US Strategic Bombing Survey (post-war)indicated that destruction of only 45 power plants would have reduced Germany electrical production by more than 40%. Even without the allies bombing the power plants, the Germans were already suffering brownouts. Had we targeted them, the German industrial machine would have been in serious trouble.

The head German electrical engineer estimated we could have cut the war short by two years through massive attacks on power stations (also from the USSBS).
9.11.2007 12:07pm
Richard Aubrey (mail):
Carolina.

Thanks. But consider the difference between "attacking", which is to say, sending the planes, and "destroying", which is to say hitting seriously.

BTW. A book, "Battle over The Reich" stated that the German homeland AA included 10,000 88mm guns. "Ten thousand" usually means "a lot". The 88 was a savage tank-killer in the anti-tank role, when mounted on a Tiger tank or one of the armored anti-tank vehicles the Germans introduced. As Bill Mauldin remarked, the word that there was an 88 up ahead usually took the steam out of an attack. Whatever bombing was being done, one result was taking a highly effective weapon out of the ground combat against our troops.
9.11.2007 12:32pm
Bob from Ohio (mail):

What if your real long term goal is to live up to the standard of your nation being a beacon of freedom, justice, and decency, no matter what manner of enemy you happen to be fighting? Especially if you aren't fighting a war of survival, or even on your own soil.


The less "total" a war, the more such goals come into play, at least for the US and other democracies. We did things in WW2 that we have not done since, but if they were deemed necessary, we would do them again.
9.11.2007 1:15pm
J. F. Thomas (mail):
BTW. A book, "Battle over The Reich" stated that the German homeland AA included 10,000 88mm guns. "

If you are going to factor the expense of German anti-aircraft defense and the damage done to German industry, then you also have to consider what the strategic bombing campaign cost the allies, even if you set aside the ethical considerations. Almost 100,000 aircrew in the strategic campaign lost their lives, and many thousands more were captured--and they were among the most highly trained personnel in the military. Especially early in the campaign they rarely lasted more than a few missions. The bombers themselves were expensive and suffered extremely high attrition rates. Even if you exclude the amount of money spent to develop a nuclear bomb which we used exactly twice (the second time which was almost certainly overkill), the strategic bombing campaign probably was the least cost-effective expenditure of the war.

It is almost certain, that rather than throw good money after bad at the strategic campaign, that the money would have been much better spent on tactical air support and short range bombing of rail heads and fuel supplys (and building better tanks for that matter) and leaving the long range bombers to hunt U-boats. The most successful British Bomber of the war was the short range, fast and light Mosquito, not the heavy bombers. Same with the Americans, our ground attack and tactical bombers were a lot more effective at stopping the Germans than any 1000 bomber raid. They were so afraid of the P-47s and other ground attack planes that they could not move if the weather allowed flying.
9.11.2007 1:54pm
Richard Aubrey (mail):
J.F. Right for tactical bombing. It has the effect of being done where there are fewer civilians. The downside is that the targets are more diffuse.

Problem is, if the Allies weren't doing strategic bombing, the resources devoted to keeping the heavies out of the heartland would have been devoted to covering the German ground forces. More fighters over the front lines, more flak just in the rear. No free lunch. And you can't use heavies in close support, considering the two blue on blue hits during the St. Lo breakout.
9.11.2007 3:05pm
Brad Sallows:
The question which hasn't been satisfactorily answered is whether or why an adult citizen of a nation which instigates war which demonstrably prosecutes inhumane, racist, and genocidal policies, should be a less legitimate target than an adult citizen who has been unwillingly conscripted (forced into armed service) by a nation fighting defensively.
9.11.2007 3:16pm
American Psikhushka (mail) (www):
Richard Aubrey-

American Psi. What if your real long term goal is to live? "Especially". You will note that, when we aren't fighting a war of immediate survival, we're far nicer than when we were back in the day.

We didn't get very close back in the day. And we certainly aren't close to fighting a war of survival now.
9.11.2007 3:19pm
American Psikhushka (mail) (www):
Bob from Ohio-

The less "total" a war, the more such goals come into play, at least for the US and other democracies. We did things in WW2 that we have not done since, but if they were deemed necessary, we would do them again.

One could argue that they weren't necessary then. And even if one deemed that they were necessary then, they by no stretch of the imagination would be necessary now. We were fighting two powers with large, technologically advanced militaries and a near global reach then. Now we are fighting a group of religious fanatics numbering in the thousands. Even though their numbers grow every time we blast our way through a neighborhood in Iraq, it is still not even close to fighting Nazi Germany and Imperial Japan at the same time.
9.11.2007 3:26pm
Richard Aubrey (mail):
American Psi. The thread started out without specifying a particular conflict.

And the idea that we create more terrorists as we blast through a neighborhood in Baghdad is interesting. One presumes that the same would be true for the families and friends of the civilian victims of car bombs and suicide attacks. By that process, we're getting ahead in local adherents. Which, as it happens, seems to be empirically true. See Anbar.
9.11.2007 4:02pm
Bob from Ohio (mail):
I did not think we were discussing Iraq or the broader war. Just abstract questions of laws of war with reference to WW2. Don't we talk about Iraq enough?

Plunging ahead anyway, Irag and the War on Terror are with weaker foes so naturally we don't feel it as necessary to violate as many of the "laws" of war.

Without inciting yet another torture thread, many think that we are grossly violating Geneva for instance. Yet, many feel it acceptable that we do so. I think this proves my point that a nation is willing to cast aside the "laws" of war whenever it is felt to be an advantage. International law is really just a very thin vaneer of civility on what is a very uncivil thing, war. More honored in the breach. I don't think that will ever change.

When the dogs of war are unleased, law does not hold them back very much.
9.11.2007 5:47pm
Richard Aubrey (mail):
Bob from Ohio. Is that the butternut state? Something like that.

True. But less true if the other side is trying to comply. The US and the Germans treated each others' prisoners better than the Germans and Russians did, and the US and the Japanese did.

Exception for Jewish US prisoners. The army pulled Jews out of the line units after some of the captives were found. The circumcison had been completed, was all my father would say.
9.11.2007 8:03pm
tsotha:
Bob,

While it's true there's little danger of a massed Jihadi land invasion of San Francisco, al Queda and other wacky groups pose as big an existential threat as the Axis powers.

How long, really, do you think the republic would survive if nuclear bombs started going off beneath our major cities? So far they don't have the capablility, but do you think that will always be so?
9.11.2007 10:23pm
Fat Man (mail):
I will be interested in international law when it applies to any countries other than the US and Israel. Until then it it is leftist claptrap.
9.12.2007 1:52am
American Psikhushka (mail) (www):
Fat Man-

I will be interested in international law when it applies to any countries other than the US and Israel. Until then it it is leftist claptrap.

Funny, much of it US personnel had a hand in penning. My suspicion is that you would call it leftist claptrap up until you got tortured or illegally experimented on, then you would eagerly support it being applied to your assailants.
9.12.2007 8:39am
American Psikhushka (mail) (www):
Richard Aubrey-

One presumes that the same would be true for the families and friends of the civilian victims of car bombs and suicide attacks. By that process, we're getting ahead in local adherents. Which, as it happens, seems to be empirically true. See Anbar.

I have a feeling finding exactly what your referring to about Anbar Province would be difficult to locate. Please provide a link.
9.12.2007 8:46am
American Psikhushka (mail) (www):
Correction: Should be "you're" just above.
9.12.2007 8:47am
American Psikhushka (mail) (www):
Bob from Ohio-

When the dogs of war are unleased, law does not hold them back very much.

Let's hope there's not too much whining when the law gets applied.
9.12.2007 8:49am
Richard Aubrey (mail):
Ameican Psi. You've got to be kidding.
9.12.2007 9:27am
abb3w:
How's this for a compromise position: allow necessity defenses to apply to those who follow orders that violate international law, but not for those who initiate the order or who act without instruction from (otherwise) lawful higher authority?

EG: Leiutenant Colonel Eve Mallory leads an attacking force through hostile territory. En route to their primary target, they surprise a handful of enemy combatants, who immediately surrender. Colonel Mallory determines she has no troops to spare to guard them, lacks means to secure them from escaping, and that she does not dare risk the secrecy of the mission. She orders Sergeants Alice and Bob to summarily shoot the prisoners out of necessity, despite the Geneva conventions; Alice refuses, while Bob orders the assistance of Private Carl and they comply.

Lt. Colonel Eve Mallory has committed a war crime. Alice is excused from charges of failure to follow a direct order, on grounds she believed the order was in violation of the International Laws of War. Carl is excused from the war crimes charge because he was following the order of a superior; Bob is similarly excused for having shot the prisoners, but is subject to separate charges for having ordered Carl to help shoot them.

Not the way I(AmNotALawyer) understand international law currently sits, but we're discussing alternate implementations anyway. Implications?
9.12.2007 11:15am