Armed Conflict Cybersecurity & Tech Foreign Relations & International Law

The Long and the Short of the History of the Laws of War

Samuel Moyn
Tuesday, September 14, 2021, 8:01 AM

My colleague and friend John Fabian Witt penned the best confrontation with my historical argument in "Humane," and it deserves a reaction.

A Predator drone photographed on the ground (Nan Palmero/ BY 2.0)

Published by The Lawfare Institute
in Cooperation With

Since my new book, “Humane: How the United States Abandoned Peace and Reinvented War,” came out last week, it’s had its ups and downs. But it was my colleague and friend John Fabian Witt who penned the best confrontation with my historical argument so far, and it deserves a reaction.

Witt is the master of American legal history in general, and the history of the laws of war in particular. His acclaimedLincoln’s Code: The Laws of War in American History” set the bar for the field—one that I wasn’t foolish enough to try to reach. It has been my good fortune to learn from him, and to get his thoughts on my work. Yet for all the personal generosity of Witt’s essay, it also obfuscates a few things.

Let me get a big distraction out of the way first. Witt writes that legalization of war—and possible legitimation through law—goes all the way back. But I never denied it. (The syllabus from our co-taught class from 2007 that Witt mentions started with “Deuteronomy”—which I assigned.) Indeed, my central claim in “Humane” is not that there were no laws of war, but that the modern cause of “humanity” barely affected them for a long time.

While I don’t deny the ancient and modern legalization of war, I did mean to critique Witt’s own treatment of the actors, causes and timing of the humanization of the law. In his masterpiece, Witt disguises the fact that Americans were never much concerned with humanizing their wars—even when they legalized them in new ways—by citing Civil War-era adviser Francis Lieber’s passing assurances that brutality itself in “short and sharp” wars would be more humane indirectly, in consequence of their brevity. But not only was Lieber’s view faulty (since brutal wars can last a long time). Lieber’s star turn gives Americans a role in the coming of more humane war by changing the definition of it—to include some of the most permissive standards in the laws of war ever penned. And with Lieber’s version of “humanity” getting Americans in on the ground floor of what became international humanitarian law, Witt can achieve Solomonic wisdom: There is nothing new under the sun of the laws of war, with an eternal oscillation in the regulation over time between concerns for maximizing force and minimizing suffering. Both of these are all-American from the start, Witt believes, like Jekyll and Hyde in the American or modern or even human spirit.

I adopt a more conventional—and historical—view. I start “Humane” with essentially opposite premises. Even within Christian and then Enlightenment “civilization,” the humanitarian ethic of reducing suffering was distinctive. And the search for the origins of humane warfare has to concern the direct reduction of suffering in war through law, for the sake of soldiers or civilians. That was a European (more specifically, Swiss) project first. It is an open question when Americans began to take it seriously. In fact, after the feint toward it in 19th-century Europe, the question is when anyone took it seriously before Americans did in recent decades.

The humanization of the laws of war required the promotion of “humanity” relative to other ends (including international peace, military necessity and state coordination). I date the great leap forward in this regard to the 1970s because that is when combatants were made the only legal targets and excess collateral damage was prohibited. But even this novel emphasis on humane war also had to confront two other features in the historic laws of war that I insist upon at length in my book. One is that for the longest time the whole point of the laws of war (including Lieber’s code) was to create zones of exception for no-holds-barred fighting against irregulars and “savages.” I devote a great deal of attention to the endurance of this second track in the laws of wara track that John Yoo infamously attempted but failed to reactivate after 2001and how it was not until the 1970s that it was closed down, thanks to decolonization and the (partial) deracialization of the laws of war. The other is that even when they were applicable, the laws of war were mostly disregarded by state and military actors. Now they are not. “The grim fact that settler colonial societies stole land from indigenous peoples is not evidence against the significance of the law of theft,” Witt observes. But it is evidence for the racist exclusion of peoples from coverage by that legal regime. And it is evidence of a legal regime that—like the laws of war for so long—went almost entirely nonenforced.

There are some credible responses to my emphasis on the novelties of the laws of war today, but I do not see as much disagreement as Witt stresses. I write in “Humane” that, with a little exaggeration, one could say there were no laws of war before recently, and Witt condemns it as an exaggeration. But all I meant, as the context of the passage shows, is that combat itself, not its circumstances, was hardly regulated even on paper before the 1970s. Witt and I agree that there were earlier contributions not only to the legalization but also to the humanization of war—especially with regard to limits on treatment of prisoners of war. (And of course, there were also prohibited targets and weapons.) Witt and I also agree that, with no clear principle of distinction and no rule of proportionality governing killing before recently—and no lawyers involved in targeting—there is lots of recent novelty. And if I gave short shrift to prisoner law in my genealogy of “humane” control and death from the air today, it is because of the harsh lesson that the very legalization of capture and detention from long ago proved the predicate for Barack Obama’s decision to kill enemies instead from the air by armed drone or standoff missile (or in a quick visit from special forces), with alleged compensation of humane targeting—the frightening phenomenon that the book explores from its opening pages.

Witt also elides the difference between the claim that the laws of war mattered (since in some sense they did very far back in time) and the claim that the laws of war were morally and politically salient, especially in modern public debate. Overreading extremely spotty 19th- and early 20th-century evidence, Witt insists, in tune with his Solomonic bent, that people were always as obsessed with the laws of war as they have been since Sept. 11. But this is clearly false. Specialists can debate which one of us is right about how serious legal constraints on U.S. forces in the Philippines war were. I do, however, mention the passing controversy around abuses (which I do not deny altogether, noting the much greater salience of the laws of war in Boer War debates across the Atlantic at the same time). And I also mention the court martialing of American offenders (because Witt rightly insisted I do so). Even so, it’s of prime importance to explain how public debate during the current war has been entirely transformed by the rising salience of international law governing the conduct of hostilities—in military and reform circles and for the public at large.

Not for a lack of trying to make his field matter during the Vietnam era, Richard Falk could ruefully complain as late as 1973 of “a humbling realization … that only international lawyers have been paying attention to the international law arguments on the war.” Until the war on terror, there was no Jane Mayer heroically drawing the attention of millions to the Geneva Conventions and related international constraints on the conduct of hostilities (though not, alas, the constantly violated norms of the U.N. Charter), nor any Charlie Savage penning regular news stories about the legal conundrums of American wars. Nor can one deny the completely unprecedented attention to the history of the laws recently, including Witt’s and my books (and many others). This juridifying transformation of the politics of contemporary war looks to me like a fact Witt neither acknowledges nor explains. The laws of war may be forever, but their salience today—like their humanity—is very new.

Witt’s perspective of eternal oscillation is rooted in a moment not long after 2001, when it could seem plausible to portray American history as an ongoing contest between those who want brutal war and those who want humane war—as if those are the only options. It was a quite particular moment, which Witt projected backward. That agenda led him to downplay the actual significance of peace movements, to backdate the coming of “humanity” to American legal priorities, and to overstate the salience of international law generally to the politics of American war. By contrast, my book is an artifact of a later stage of the war on terror. Now it seems like the problem is not only or so much inhumanity as how—once brutality is opposed—the law can legitimate endless war, in a novel form our ancestors never had to face down. More generally, only once the public recognizes the novelty of law’s salience in the contemporary politics of war and its conduct can it consider the disquieting or uplifting possibility that there are alternatives—though my main emphasis in “Humane” is on the goal of legal peace that Americans exchanged for debating the legal propriety of detaining then killing and surveilling.

History is always moral and political. In a new book, the international lawyer Anne Orford rightly indicts historians for pretending otherwise—except that most don’t. I never have written history as anything but politics by other means, though Orford makes much of some rash (or strategic?) verbiage in one of my books to the effect that it restored the “true history” of human rights. In his review of “Humane,” Witt comparably says he has furnished the “real history” of the laws of war. But what does his own narrative of the sun never setting on the eternal dilemma of brutality versus humanity in war imply morally and politically?

Just as Witt says, I am a melodramatic and moralizing writer. Based on his post, the inevitable if less showy moral stance Witt takes up seems to have three components. He makes room for good causes for wars (even though, as peace advocates always insisted, most are pretexts for making the world worse, and certainly have been lately). He credits humanitarians for picking up the pieces (even though that honorable agenda must confront the risk of entrenching conflicts precisely if the humanization works). And he sets a bar so low for their achievements that it is “stunning” when concern for suffering affects historic violence at all (as if the only real alternative were doing nothing rather than doing better).

I can see the appeal of Witt’s moral stance. But I simply do not find it compelling, especially right now. As a response to an era of endless American war—however legally humane—that has set the world far back, I prefer melodrama. We are no longer dealing with John Yoo, whom we can now see as the advocate of a foregone American tradition of brute and brutal force. Rather, our moral duty is to confront the durable subsequent war of those who successfully pushed back against that tradition in our time, rescuing war from war crimes and placing it on legal footing through seeking (more) legal propriety in its conduct. And I would prefer to be “stunned” by seeing that result challenged and overcome.

In his eloquent final peroration, Witt says that the laws of war that states have made is “us.” It does not surprise him, therefore, that it is no better than “we” are. But to date, states have never been representative of the interests of their peoples, let alone of a broader cosmopolitan perspective. The critical stance in doing history, therefore, must emphasize that the law to date is not and never “us.” It is only some of us. It is one means by which they dominate others, whether within societies or the global stage. If the law is bad, it is for that reason, not because “we” are. “Humane” is about how historic domination was reinvented in new terms through law. If it is persuasive, the law has to be reclaimed from those who have so often made it—and made the world—for themselves.

Samuel Moyn is a professor of law at Yale Law School.

Subscribe to Lawfare