class: center, middle, inverse, title-slide # Dirty Wars ## Restraint in War ### Jack McDonald --- class: inverse # Opening Discussion .question[ How relevant do you think the various arguments and debates in Seth Lazar's article are to the average soldier? ] ??? --- class: inverse # Outline .pull-left[ > Dirty wars are conflicts where one or more parties denies the political, legal, and/or moral status/standing of their opponents. To understand status and standing, we need to understand the regulation of war and armed conflict ] .pull-right[ - The Problem of Escalation - Three Attitudes to Restraint in War - Normative Frameworks of Restraint ] ## Main Points Escalation is an essential problem in war There are fundamental differences within and between normative frameworks as to why killing and violence in war (and war itself) should be restrained ??? --- class: inverse # Part 1: The Problem of Escalation ??? --- # Escalation as a Problem > War is nothing but a duel on a larger scale... Each tries by physical force to compel the other to do his will; his immediate object is to overthrow his adversary and thereby make him incapable of any further resistance. > Force, to meet force, arms itself with the inventions of art and science. It is accompanied by insignificant restrictions, hardly worth mentioning, which imposes on itself under the name of international law and usage, but which do not really weaken its power. Carl von Clausewitz, _On War_ (Trans: Jolles) ??? --- # Restraint: Escalation, Deterrence & Reciprocity > To exploit a capacity for hurting and inflicting damage one needs to know what an adversary treasures and what scares him and one needs the adversary to understand what behavior of his will cause the violence to be inflicted and what will cause it to be withheld. The victim has to know what is wanted, and he may have to be assured of what is not wanted. Thomas C. Schelling, _Arms and Influence_ War is presented as a life-and-death activity in which nothing is more important than victory, how many wars do you know where this is the case? The escalation paradox: escalation appears logical and inevitable, yet most wars reach some ceiling of intensity. Why? "Bad" reciprocity is still reciprocity. ??? Virtue, Cooperation, and Deterrence Self-image, self-interest --- # Why War is and isn't a Game .pull-left[ ![Dave Schultz, of the Philadelphia Flyers](../img/4/flyers.jpg) ] .pull-right[ > To play a game is to attempt to achieve a specific state of affairs [prelusory goal], using only means permitted by rules [lusory means], where the rules prohibit use of more efficient in favour of less efficient means [constitutive rules], and where the rules are accepted just because they make possible such activity [lusory attitude]. Bernard Suits, _The Grasshopper_ ] ??? In war, rules aren't unnecessary obstacles --- # Material and Political Explanations for Restraint .left-column[ ![Map of DRC conflict events](../img/4/drc1.png) ![Map of DRC minerals](../img/4/drc3.jpg) ] .right-column[ > When addressing politics, we must accustom ourselves to think and speak about the actions and interests of specific, named leaders rather than thinking and talking about fuzzy ideas like the national interest, the common good, and the general welfare. > For leaders, the political landscape can be broken down into three groups of people: the nominal selectorate, the real selectorate, and the winning coalition. Bruce Bueno de Mesquita, _The Dictator's Handbook_ ] ??? --- # Institutional and Practical Explanations for Restraint .left-60[ > The level of institutionalization of any political system can be defined by the adaptability, complexity, autonomy, and coherence of its organizations and procedures. Samuel P. Huntington, _Political Order in Changing Societies_ > U.S. forces, now knowing they are on the way out but not knowing just when, have developed an enclave mentality and a philosophy of ‘Why take the risks in a war that’s winding down?’ Recent reports from Vietnam talk of demoralization and of draftees ‘fragging’ gung-ho officers; that is tossing hand grenades at them to put a stop to aggressiveness. Chalmers Roberts, _Washington Post Opinion, 1971_ ] .right-60[ The institutional and organisational level of analysis is vital to understanding restraint. Institutional design, values, priorities, and accountability structures shape institutional responses to conflict. Guerrillas and death squads can be analysed in much the same way as state military or police forces. What motivates combatants to fight? Which forms of warfare lend themselves to escalation? ] ??? Huntington p.12 greitens Quote from p.17 --- class: inverse # Small Group Discussion .question[ How and why might ideas about right and wrong in war matter to the conduct of war? ] ??? --- class: inverse # Part 2: Three Attitudes to Restraint in War ??? --- # War is Cruelty .left-column[ ![William Tecumseh Sherman](../img/4/sherman944.jpg) ![Sherman's march to the sea](../img/4/march.jpg) ] .right-column[ > You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out... > You might as well appeal against the thunder-storm as against these terrible hardships of war. They are inevitable, and the only way the people of Atlanta can hope once more to live in peace and quiet at home, is to stop the war... William Tecumseh Sherman, _Letter to Atlanta_ ] --- # It is Humane to End Wars Fast .left-60[ > The more vigorously wars are pursued, the better it is for humanity. Francis Lieber > Looked at in a different light, Lieber’s code seems not so constraining after all. It authorized the destruction of civilian property, the trapping and forced return of civilians to besieged cities, and the starving of noncombatants... in its most open-ended provision, the code authorized any measure necessary to secure the ends of war and defend the country. "To save the country," Lieber wrote, "is paramount to all other considerations." John Fabian Witt, _Lincoln's Code_ ] .right-60[ ![Francis Lieber](../img/4/lieber.jpg) ] ??? --- # It is Humane to Constrain War's Excesses .left-column[ ![Henri Dunant](../img/4/dunant.jpg) ![1899 Hague Convention](../img/4/hague.jpg) ] .right-column[ > ...in an age when we hear so much of progress and civilization, is it not a matter of urgency, since unhappily we cannot always avoid wars, to press forward in a human and truly civilized spirit the attempt to prevent, or at least alleviate, the horrors of war? Henri Dunant, _A Memory of Solferino_ > Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience. The Martens Clause, _1899 Hague Convention_ ] ??? Dunant quote is from p.127 of [This version](https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0361.pdf) It's worthwhile noting that whatever you think about this disagreement, Sherman's actions would now be classed as wholly unlawful under international law, in part due to the codification of International Humanitarian Law in the 19th and 20th centuries, which was in part due to the efforts of Dunant and the ICRC. --- # Balancing Humanity .pull-left[ ![Barack Obama receives a Nobel Peace Prize](../img/4/obama1.jpg) ] .pull-right[ ![Barack Obama watches the OBL raid](../img/4/obama2.jpg) ] > I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism – it is a recognition of history; the imperfections of man and the limits of reason. Barack Obama, _Nobel Peace Prize Speech_ ??? --- class: inverse # Small Group Discussion .pull-left[ .large[ I've discussed three views of war: - That war cannot be humane - That it is humane to end wars fast, even if this causes significant destruction - That it is humane to constrain the excesses of war, irrespective of strategic concerns ] ] .pull-right[ .large[ Which of these ideas do you intuitively agree/disagree with, and which do you rationally agree/disagree with? Consider if/why your answers vary. ] ] ??? --- class: inverse # Part 3: Normative Frameworks of Restraint ??? --- # Objectivity, Subjectivity, and Cultural Relativism > Following from an open declaration of war, understandings of accepted modes of war are governed by the expectation that once war has begun its conduct will be bound by certain rules, laws, and conventions that will, again, act as constraints. These rules and conventions may proscribe forms of behavior—such as torture or assassination—that might be deemed illegal under domestic law and are consciously designed to limit the actions of a political authority. Even in the absence of formally constituted restraints in domestic law, the general expectation is that combatants will follow the norms or rules of international behavior, such as those laid down in the Geneva Conventions that outline the limitations on protagonists, most notably in relation to the treatment of prisoners. M.L.R. Smith and Sophie Roberts, _War in the Gray_ ??? --- # The Just War Tradition .pull-left[ > A nation cannot preserve and perpetuate itself except by propagation. A nation of men has therefore a right to procure women, who are absolutely necessary to its preservation: and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. Emer De Vattel, _The Law of Nations_ ] .pull-right[ Religious, moral, and political thought Law and legalism 20th Century Revival (Walzer) Contemporary revisionist approaches (Rodin, McMahan, Fabre) ] ??? --- # Central Problems of Just War Theory .pull-left[ ## _jus ad bellum_ - Just cause - Proportionality - Reasonable chance of success - Legitimate authority - Right intention - Last resort - Public declaration of war ] .pull-right[ ## _jus in bello_ - Distinction - Proportionality - Necessity ] ??? --- # International Law .pull-left[ ![USA Signs the UN Charter, 1945](../img/2020/un-charter.png) What is it? Sources of International Law International Law and International Order ] .pull-right[ Aggression and Self Defence The Law of War/LOAC/IHL International Human Rights Law International Criminal Law ] ??? --- # LOAC & IHL .pull-left[ Sources: Custom, treaty, state practice, domestic law, courts, publicists Means and methods of warfare - Geneva tradition - Hague tradition Four principles: - Distinction - Necessity - Unnecessary suffering - Proportionality What about humanity? ] .pull-right[ ![Geneva conventions map](../img/2020/conventions2.png) ] ??? --- # Human Rights .pull-left[ The "big three" (there are seven other core instruments) - The Universal Declaration of Human Rights (1948) - International Covenant on Civil and Political Rights (1966, in force 1976, monitored by the Human Rights Committee) - International Covenant on Economic, Social and Cultural Rights (1966, in force 1976, monitored by the Committee on Economic, Social and Cultural Rights) ] .pull-right[ - Where do human rights come from? - Theology/natural rights - Positive law - Figments of imagination - What is the "location" of your human rights? - Individual rights - Membership of a political community - Are they enforceable? - Is there a court where an individual or group can pursue a claim? - Do states have extraterritorial human rights obligations? - To nationals of other states abroad - To persons within their effective control ] ??? Regional treaties - European Convention on Human Rights (1950) - African Charter on Human and Peoples’ Rights (1981) - Asia (...) - American Convention on Human Rights (1969, US/Canada not signatories) /// --- # Domestic Law .pull-left[ ![President Obama delivers remarks on National Security, copyright free NARA](../img/2020/obama-small.jpg) ![UK Poll tax riots, 1990, James Bourne This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license](../img/2020/polltax.jpg) ] .pull-right[ Sovereignty and International Law Sovereignty and War Powers Law relevant to institutions - Military - Police - State security forces - Intelligence agencies ] ??? --- # Martial Law .left-33[ ![Pierre Trudeau says "just watch me"](../img/2020/trudeau.png) ![October Crisis](../img/3/october.png) ] .right-33[ .medium[ > **Trudeau:** Yes, well there are a lot of bleeding hearts around who just don't like to see people with helmets and guns. All I can say is, go on and bleed, but it is more important to keep law and order in this society than to be worried about weak-kneed people who don't like the looks of a soldier's helmet. > > **Ralfe:** At any cost? How far would you go with that? How far would you extend that? > > **Trudeau:** Well, just watch me. Pierre Trudeau, _CBC Interview_ > repression is anticipated when the parameters of threat exceed the parameters of what is deemed "legitimate" (accepted by social practice) and "legal" (accepted by law). For example, even though democracies generally accept a wide variety of behavior that can be viewed legitimate and legal, it is clear that leaders do not permit all forms and/or levels of challenge. Christian Davenport, _State Repression and the Domestic Democratic Peace_ ] ] ??? Emergency powers and sovereign force Rule of Law vs Rule By Law? --- # Conclusions .large[ Where do our expectations of good conduct in war come from, and why does that matter? There are many different overlapping sources of restraint in war, particularly internal conflicts Baseline differences such as "rule of law/rule by law" need to be evaluated critically ] ???