People gather around a vehicle targeted and hit by an American drone strike, which killed ten people including children, in Kabul, Afghanistan, August 30, 2021 (Marcus Yam/Los Angeles Times/Getty.

‘Sops to Humanity’

Making war more palatable masks its intrinsic evil.

 

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In 2016, on the eve of a historic peace treaty between Communist guerrillas and the Colombian government, I interviewed a retired Colombian colonel about the role of the United States in his country’s decades-long conflict. A graduate of the United States School of the Americas in the 1980s, where Vietnam veterans had taught him savage tactics like “zonas de aniquilación,” he was gregarious and charming, if at times a little chilling in his frank discussion of atrocities over the past decades. It had been a brutal war, fought brutally with brutal allies. “We’ll never have paradise,” he told me. “The conquistadores were criminals, bandits, terrorists of Spain, and they are my grandparents, my ancestors. I have that gene in my blood, of wickedness and evil.” And yet when I asked him what sort of military support the United States should continue to offer Colombia, he told me (after a long oration on the importance of our support to Colombian air capabilities) that we should continue helping them with “human rights, that’s important.”

At first I thought he was joking, or pandering to a soft-hearted American. The push to improve the Colombian military’s human-rights record was not considered one of our greatest successes, nor was it especially popular within parts of the Colombian military. “The army of speaking English, of protocols, of human rights is over,” a Colombian general would soon be recorded saying. But my Colombian colonel approached the matter of human rights the same way he approached the issue of partnering with wildly abusive paramilitary groups: pragmatically. “If the peace treaty goes through, we will be responsible for territory where we have committed massacres,” he explained, “and if we continue to do that, over time, it will be bad for us.”

But he might have had another reason to bring up human rights. At the time, the hardline former president was waging a bitterly divisive political campaign against the peace treaty, and “human rights” was one of his talking points. After the head of Human Rights Watch’s Americas Watch division, José Miguel Vivanco, strongly criticized the “justice” provisions of the accord (he claimed they would give perpetrators of human-rights violations immunity), right-wing political figures suddenly discovered a commitment to international humanitarian law. In other words, at that moment “human rights” were a major arrow in the quiver of those opposing a peace treaty. No justice, no peace—literally.

 

Such perverse employment of humanitarian discourse lies at the heart of Samuel Moyn’s Humane: How the United States Abandoned Peace and Reinvented War, which traces the rise and fall of antiwar movements over the past few centuries alongside legal battles to bind soldiers to humane conduct in war. A fascinating and disturbing book as well as a timely and vital one, Humane gives us a genealogy of our modern illusions about war, and builds a moral case against the style of war-making that America has favored in the twenty-first century.

Moyn begins by carefully disentangling two approaches to the horrors of war. On the one side are those whose primary goal is an end to all war. According to this school of thought, it is fine to publicize atrocities during wars, from My Lai to Abu Ghraib, but the central crime is war itself. Here the seminal figure for Moyn is the novelist Leo Tolstoy, for whom niceties like taking prisoners instead of wholesale slaughter merely put a thin veneer on barbarism. Writing War and Peace around the time of the First Geneva Convention (1864), which codified standards of treatment for injured soldiers, Tolstoy mocked such humanitarian ideas. “They talk to us of the rules of war,” Prince Andrei says in one of several sharp commentaries on standards of military conduct in the book, “of mercy to the unfortunate and so on. It’s all rubbish.” Later in life Tolstoy would compare attempts to humanize war to nineteenth-century efforts to make slavery more politically acceptable by introducing limits on how badly you could treat the enslaved. (The 1826 Slave Code was one such attempt at “amelioration.”) Just as humane slavery had been a sham, Tolstoy thought, so too was humane war. “Where violence is legalized,” he argued, “there slavery exists.”

Just as humane slavery had been a sham, Tolstoy thought, so too was humane war.

On the other side are the humanitarians. They might share the antiwar folks’ repugnance to war, but their emphasis is on the pragmatic alleviation of suffering in a world where war is a reality. To that end, they work to improve the treatment of civilians and prisoners, publicize war crimes, and constrain militaries in how they use violence. Here the seminal figure is Henri Dunant, the founder of the International Committee of the Red Cross. When Dunant saw the aftermath of the Battle of Solferino in June 1859, he ended up tending to the wounded, later writing a pamphlet about the carnage itself but also, crucially, about the badly organized medical care. The stricken fighters healed in unsanitary conditions, “their faces black with flies that buzzed around their wounds.” Dunant’s solution was to form international brigades to help soldiers, an idea which came to fruition in the Red Cross. Far from an antiwar organization, the Red Cross brought militaries on board its humanitarian project from the beginning.

Though the supposedly glorious tale of increasingly humane war—from the Lieber Code and the First Geneva Convention to the current emphasis on war crimes—is today the more familiar story, Moyn deftly describes the vitality of the late-nineteenth- and early-twentieth-century antiwar movements, along with their practical achievements. In the 1840s William Jay, the son of Founding Father John Jay, suggested an international system in which nonpartisan outsiders would adjudicate differences between countries. Such a system would federalize the world, doing “for fractious nations what the Constitution had done for their previously fractious states in 1787.” It was no pipe dream. The peace movement boasted more than one hundred fifty actual instances of arbitration between states in the late nineteenth century. Peace activists like Austrian noblewoman Bertha von Suttner, author of the influential antiwar novel Lay Down Your Arms!, became global celebrities, inspiring local activists and international peace conferences. At the highest reaches of government, William Jennings Bryan, Woodrow Wilson’s secretary of state from 1913 to 1915, would furiously try to put the peace program into practice, concluding thirty arbitration treaties between the United States and other nations. And though the antiwar movement would fail to prevent World War I, the horror of that war won even more converts to the cause, convincing activists around the world that war itself is the greatest crime, no matter how humanely it is conducted. The League of Nations Covenant in 1919 demanded “the acceptance of obligations not to resort to war,” and the Kellogg-Briand Pact of 1928, sponsored by the United States and France, declared that the contracting parties “condemn recourse to war for the solution of international controversies.”

 

Moyn notes the inevitable failure of such efforts, but he saves his deepest cynicism for advances in humanitarian law. He describes Lieber’s Code, the rules of warfare promulgated during the American Civil War and a foundational text in international humanitarian law, as an attempt to intensify war rather than restrain it. “For Leiber,” Moyn writes, “anything necessary in war, more or less, ought to be legal.” Of the First Geneva Convention, Moyn writes that it “mattered mainly because it cloaked the agenda of states as they followed up its 1864 convention with new moves to codify rules of war without any intended or express humanitarian goal at all.” Moyn treats the reader to a lot of amusing quotes deriding these humanitarian efforts. At the Hague Convention of 1899, the first of a series of peace conferences that followed the Lieber Code in codifying laws of war, the very Britishly named First Sea Lord John Arbuthnot Fisher declared “The humanizing of War! You might as well talk about humanizing Hell!” The peace activist Suttner dismissed talk of humanizing war as a “trap that opens up in front of the feet of the pacifists.”

Bertha von Suttner (Austrian National Library/Interfoto/Alamy Stock Photo)

Humane also makes much of the enormous exceptions for brutality carved out from these early codes, especially when it came to nonwhite people. Fyodor Fyodorovich Martens, who drafted a key clause in the Hague Conventions, nevertheless declared that “Muslim peoples and pagan and savage tribes” were not covered by international law. In Africa, Red Cross cofounder Gustave Moynier championed brutal Belgian imperialism in the Congo as a means of exporting Christianity and European civilization. In America, the supposed savagery of American Indians was justification for indiscriminate butchery. In Asia, U.S. generals declared that “human life all over the East is cheap” and behaved accordingly. “I want no prisoners,” ordered Gen. Jacob Smith during the Philippine-American War, “I wish you to kill and burn, the more you kill and burn the better it will please me.” Some estimates put the death toll of that war at a seventh of the population. Even in Europe, the tactics in the Franco-Prussian War made a mockery of the notion of humane war.

It is with some justice, then, that Moyn declares the cause of humane war to have been a failure at the beginning of the twentieth century: “The few provisions that might have imposed serious limits on the conduct of fighting were simply ignored in practice.” Or, as H. G. Wells put it more savagely in 1919, “all Geneva Conventions and such palliative ordinances, though excellent in intention and good in their immediate effects make ultimately for the persistence of war as an institution. They are sops to humanity, devices for rending war barely tolerable to civilized mankind, and so staving off the inevitable rebellion against its abominations.”

Following World War I, the rise of aerial warfare opened a new chapter in violence against civilian populations. Though the bombing of German and Japanese cities is well known, Moyn takes care to note that it is the Korean War that was the most brutal war of the twentieth century, as measured by per capita death. The air force reduced North Korean towns and villages to smoking ruins, then strafed survivors trying to put out the fires. At the end of three years, 4 million people had died, half of them civilians.

Given this catalogue of atrocities, it’s hard to call Moyn’s pervasive cynicism about the laws of war unearned, but he sometimes goes too far in his effort to dethrone more optimistic accounts of the early evolution of the laws of war. Humanizing war may indeed be like humanizing hell, but there are different levels of hell, after all. The 450 cases of sexual assault prosecuted during the Civil War under the Lieber code, which explicitly forbade rape during wartime, might have represented only a tiny fraction of the sexual assaults committed during the war, but nevertheless, as Crystal N. Feimster has noted, Lieber’s Code brought Black women under the umbrella of legal protection and “made it possible for women to seek justice in military courts and eventually established the modern understanding of rape as a war crime.” This might not be much; it’s also not nothing.

 

It is with the Vietnam War, though, that Moyn’s story starts to shift. Within the legal world, initial opposition to the war focused on the legality of the war itself. These efforts were mostly fruitless, but as the war dragged on and the public turned against it, a new tactic for opposing the war opened up, spurred by the revelations of the massacre at My Lai, where a company of American soldiers murdered several hundred unarmed Vietnamese villagers.

“The timing of atrocity consciousness is everything,” writes Moyn, and though the massacre at My Lai was hardly the worst atrocity in American military history, the public reaction was convulsive. Opprobrium at war crimes spiked in the winter of 1970–71. The Winter Soldier investigation, a mock trial in which members of Vietnam Veterans Against the War described their own transgressions, added fuel to the fire. Soon major figures like Telford Taylor, who had served as Counsel for the Prosecution at the Nuremberg Trials, were going on The Dick Cavett Show and claiming that the commander of troops in Vietnam was liable for war crimes—and that the president might be too.

This cultural change picked up momentum in the years following the Vietnam War. At the Red Cross, Swiss lawyer Jean Pictet rebranded the regulation of wars as “international humanitarian law” and agitated for limiting principles on collateral damage. Military lawyers, stung not only by defeat but by the highly publicized accusations of atrocity in Vietnam, began focusing on military conduct in war. And new monitoring groups such as Human Rights Watch sprang up to denounce governments that committed wartime atrocities while remaining neutral about the justice of the wars themselves.

“Consciousness of war crimes did not end a war but helped reset one,” ultimately making the war more durable.

By the Gulf War in 1990, Human Rights Watch was on the ground monitoring its first international conflict, while U.S. military lawyers inserted themselves for the first time in the process of picking targets in accordance with the rules of war. Gen. Colin Powell commended lawyers as “absolutely indispensable to military operations,” and the deployment of America’s “smart bombs” was, as Moyn ironically puts it, “leading the military from a depressing nadir of grotesque horror to the sunlit uplands of humane war.” Or, as George H. W. Bush earnestly put it, “the specter of Vietnam has been buried forever in the desert sands.”

Then came 9/11, and the Bush administration’s flouting of humanitarian codes. For Moyn, this is the exception that proved the rule. When President George W. Bush’s administration declared prisoners of war captured in Afghanistan to be outside normal rules of treatment for prisoners and began permitting the use of torture, it did spark an increasingly powerful response from activists, a few administration insiders, and the military itself. But according to Moyn, “consciousness of war crimes did not end a war but helped reset one,” ultimately making the war more durable.

Here Moyn’s narrative becomes more of an insider legal history, detailing how the brutal conduct of the Bush administration was slowly reined in (while leaving untouched the expansion of presidential authority for war-making). For Moyn, this is not the triumphal story of America regaining its moral purity; it’s a story that confirms the early warnings from Tolstoy and peace activists like Suttner. Take John Yoo, author of the infamous torture memos, which permitted “enhanced interrogation techniques” like waterboarding on detainees. As Moyn points out, Yoo’s legal arguments didn’t just exempt America from standard rules of conduct in war; they also asserted almost limitless presidential authority in war-making. And although “much greater suffering was visited on more people through illegal war than illegal war crimes—in part because so much is legal once war starts,” it was only Yoo’s torture memos that became infamous.

From this perspective, the election of Barack Obama proved to be a victory for humane war but a disaster for the war against war itself. While liberal journalists like the New Yorker’s Jane Mayer were writing that “Obama consigned to history the worst excesses of the Bush administration’s war on terror,” his administration was steadily advocating an expansive view of the executive’s powers in waging war, with Elena Kagan suggesting a “global battlefield” concept of the war on terror, in which anyone could be captured anywhere without constraint. Moyn carefully makes his way through the various legal arguments of these early days to show how quickly the Obama administration began laying out the rationales for our current war paradigm, which he calls “a spree of humane killing on which the sun might never set in space or end in time.”

An MQ-1 Predator drone, 2013 (CNS photo/Lt. Col. Leslie Pratt, U.S. Air Force handout via Reuters)

Famously, Obama turned to drones to carry out counterterrorism missions, striking almost ten times as many targets as his predecessor. What before 9/11 might have counted as assassination was recast as simple self-defense, even when Obama’s lawyers had to use absurd terms like “elongated imminence” to justify strikes against targets who didn’t actually pose an immediate threat. As new terrorist groups proliferated, the Obama administration stretched the Authorization for the Use of Military Force passed after 9/11 to permit strikes against groups with few or no ties to Al Qaeda, including groups that had never struck at the United States. And though the War Powers Resolution required congressional signoff after sixty days of “hostilities,” Obama lawyers argued that “hostilities” was “an ambiguous term of art” that need not include bombing. Concerns about the president’s expanding authority to kill were waved away by administration officials who pointed to the supposed rigor with which the laws of war were being applied. “There hasn’t been a single collateral death because of the exceptional proficiency and precision of the capabilities we’ve been able to develop,” claimed then-Homeland Security Advisor John Brennan in one of the more outrageous falsehoods of the past twenty years. As the lawyer Naz Modirzadeh complained, the optics of precise, humane targeting were “being used to give an international law-like gloss” to “a policy they anticipated would be criticized for being unlawful.”

American war was thus expanded in scope while constrained in its conduct, a situation that lasted through the Trump years. Despite Trump’s interest in reviving torture, for example, the national-security establishment pushed back, preferring to keep its wars—by then waged in nineteen countries, over the course of forty-one operations, with no end in sight—respectable.

 

The history Moyn lays out is compelling, if at times a bit confusing. The early chapters of Humane constantly jump back and forth in time, referencing a bewildering number of lawyers and activists and politicians. Moyn’s ultimate purpose, however, is not simply to offer a genealogy, but also to invite his American readers to consider Tolstoy’s warning that “where violence is legalized, there slavery exists.”

We currently claim the right to exercise violence in broad swathes of the world. We have extremely limited contact with, or understanding of, the societies where that violence is happening. War waged like this is not politics by other means, but something more disturbingly akin to pest control—an endless series of deaths meted out to the members of those societies we find most troubling (which under the last administration could mean anyone carrying a two-way radio or wearing a tactical vest). When the anthropologist Hugh Gusterson did fieldwork in Waziristan, a poor region of Pakistan where drones have been deployed for more than a decade, he found people trapped in the “living death” of “fear as a way of life,” in which above every moment hangs the possibility of a drone strike or special-operations raid. “A global policing system burnished with your humane aspirations but under your nation’s sole authority,” Moyn argues, might amount to “a humbling new form of permanent subjugation for others.” Even if we could bomb with the perfect precision claimed by the early Obama administration, there’s something morally troubling about that.

But, of course, we don’t bomb with perfect precision. After the suicide attack during our evacuation from Afghanistan that killed thirteen servicemembers and 170 Afghan civilians at Kabul’s airport, the Biden administration trumpeted a retaliatory strike against the alleged planner of the attack, as well as a strike against an ISIS Khorasan car bomber. The latter strike, which the general who heads Central Command bragged was “very disruptive to [ISIS’s] attack plans,” actually killed ten civilians, seven of them children.

Details soon emerged in national newspapers about the victims: the worker at an American aid group; his children, killed in his car next to him; the former army officer, who had hopes of getting a special immigrant visa to America; his fiancée. But this was, after all, only one of an endless series of strikes we’ve carried out over the years, most of which have received little public attention. Now, with no more U.S. troops in Afghanistan, we can expect attention to the suffering in Afghanistan to again recede from the news. What won’t recede is our lethal presence in the skies above that country.

“We will maintain the fight against terrorism in Afghanistan and other countries,” President Biden promised in the same speech in which he also claimed to have ended twenty years of war. “We just don’t need to fight a ground war to do it. We have what’s called over-the-horizon capabilities, which means we can strike terrorists and targets without American boots on the ground—or very few, if needed.” It might strike you as chilling to have a president claim to have ended a war in one breath, and, in the next, promise that the killing will continue. But never fear. Biden also made sure to deliver a few words that would have warmed the heart of my Colombian colonel. “Human rights,” he said, “will be the center of our foreign policy.”

Humane
How the United States Abandoned Peace and Reinvented War
Samuel Moyn
Farrar, Straus and Giroux
$30 | 416 pp.

Published in the October 2021 issue: 

Phil Klay is the author of Redeployment (Penguin Books) and the host of the podcast Manifesto! He teaches in the Fairfield University MFA program.

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