Dave Graham on Sam Moyn’s “Humane: How the United States Abandoned Peace and Reinvented War” and much more!
In today’s post my friend (and, really, mentor of many years) retired colonel Dave Graham reviews Yale’s Sam Moyn’s provocative new book “Humane: How the United States Abandoned Peace and Reinvented War,.” I think you will find, as I did, that the review is thorough, thoughtful, and soberly rendered. This is one you really need to read!
A Review of Sam Moyn’s “Humane: How the United States Abandoned Peace and Reinvented War”
by Colonel David E. Graham, USA (Ret.)
Professor Samuel Moyn, a Yale historian and law professor, in his new book, “Humane: How the United States Abandoned Peace and Reinvented War,” returns repeatedly to his premise that the U.S. has abandoned any effort to secure a lasting peace for the international community. Instead, American policy makers have chosen to “humanize” armed conflict by emphasizing stringent compliance with an increasingly enhanced Law of War (LOW), a decision, he contends, that has served only to facilitate America’s ability to engage in “endless war”. How is this so? Moyn submits that it has been this focus on its very publicly professed adherence to the LOW; that is, the lengths to which it goes to “legally conduct” its armed conflicts, that has enabled the U.S. to surreptitiously distract attention from the fact that it has continuously waged “illegal” war.
With this being said, however, I believe it would be wrong to conclude that the author views the recent advances made in the LOW (aka, the Law of Armed Conflict (LOAC) and International Humanitarian Law (IHL)) as either futile, counterproductive, or unilaterally responsible for the perpetuation of conflict. Instead, it is Moyn’s contention that this body of law, albeit essentially humanitarian in nature, has, nevertheless, intentionally been used as a mechanism by which to mask repeated U.S. violations of even more important, macro international law principles-those governing the right to resort to the use of force itself. So it is that a significant portion of this book is dedicated to a discussion of what he views, not always mistakenly, as a systematic U.S. failure, particularly over the past several decades, to adhere to the conflict management norms of the Jus ad Bellum (Law before War). But, more on this later.
From Tolstoy to World War I
“Humane” begins with a discussion of the differing views espoused, in the past two centuries, by those who have warned that any effort to humanize war would lead only to its entrenchment and, conversely, individuals who, accepting the reality of armed conflict, have advocated for restraining rules. In the former camp, we meet Tolstoy’s Prince Andrei, in his novel, “War and Peace”: “One thing I would do if I had the power,” Andrei declares, “I would not take prisoners.” In contrast to such an approach, we are introduced to the work of those who, very early on, sought to mitigate, ever so incrementally, the ravages of war- among these, Henri Dunant, Gustave Moynier, Francis Lieber, Florence Nightingale, and Clara Barton. In tandem with this discussion, Professor Moyn also concisely surveys both the peace movements under way during these centuries, led by activists such as the Austrian, Bertha von Sutter, and America’s Quincy Wright,as well as the early, but unsuccessful, international initiatives to secure “a lasting peace”- the attempt to achieve a universal system of binding arbitration among States, the League of Nations, and the 1928 Kellogg-Briand Pact, the ill-fated commitment by States “…to condemn recourse to war for the solution of international controversies.”
As these efforts to rid the world of conflict failed, giving rise to World War I, strides were taken, nevertheless, to regulate hostilities, initiatives duly noted by the author. Among these were Lincoln’s issuance, during the American Civil War, of Army General Orders No. 100, the Lieber Code, which, among its provisions, banned torture and recommended the granting of quarter; the first Geneva Convention of 1864, ratified by the U.S. in 1882, which codified standards for the treatment of the sick and wounded on the battlefield; the 1874 Brussels Declaration, entered into by European States, which codified existing customs of land war and occupation regimes; the 1989 Hague Convention, which further regulated land warfare, enhanced regulations pertaining to occupation and the safeguarding of prisoners, banned hollow point ammunition, and prohibited the targeting of hospitals and cultural sites; and the 1907 Hague Convention, which significantly updated the 1989 Convention.
Having acknowledged these early attempts to regulate conflict, however, Moyn proceeds to chronicle what he perceives as their abject failure. “[M]ost laws of war didn’t apply or were ignored when it came to counterinsurgent and colonial war”, to include the Indian Wars in the American west, the Boer War, and the U.S. military action in the Philippines, even though American conduct in the latter was purportedly subject to restrictions imposed by the Lieber Code. And in terms of their effect on the conduct of the first great war, “World War I dealt a serious blow to the hope that someday humane war might come. Not only were the laws of war violated without a second thought, but…the worst acts of war…were not illegal,…regularly offset by allowance for ‘military necessity’”. Sigmund Freud is referenced to conclusively channel the author’s assessment of the Law of War’s worth at this point in history: “Not only is it [WWI] more bloody and destructive than any war of other days…. It disregards all the restrictions known as International Law….”
World War II, Nuremberg and Korea: “America’s Brutal Peace”
It is for good reason that the first four chapters of “Humane” appear under the general heading of “Brutality”, as they cogently capture Moyn’s view that the wars conducted, to this point in history, were inherently inhumane, largely unaffected by the early attempts to make them less so. And, as he delves into the last of these four chapters, “Air War and America’s Brutal Peace”, dealing with the “strategic bombing” campaigns of World War II, the reality of that war’s documented LOW violations, the Nuremberg Tribunal, the Korean conflict, and the post-war creation of the United Nations, he evokes, ever more so, the political science historian, rather than the lawyer.
In discussing the truly staggering loss of civilian life and property resulting from the unrestricted fire-bombing of Tokyo, a tactic not then prohibited by the LOW, he returns to a previously voiced theme that pervades his thinking regarding why this body of law has so often failed in its purpose. It is a contention that those crafting the rules of “civilized warfare” have consistently made the decision that these norms need not be applied to “inferior” races. In support of this conclusion, this perceived causal link between racism and the commission of war crimes-he makes the jarring assertion that, “Like earlier colonial struggles, World War II was a race war—for…Hitler in the European theater…, but also for Americans in the Pacific.”
This is a charge that history simply does not support. While racial prejudices have historically played a role in the commission of crimes of war, framing the root cause, and LOW violations committed in the midst, of WWII solely in the context of race-for the purpose of proselytizing a conceived social-political concept-is an academic misnomer. Ever the advocate, however, his assertion of a racially-centric basis for the commission of war crimes appears repeatedly in his discussion of essentially all U.S. conflicts.
As he concludes this section of his work, Moyn adjudges the post-war Nuremberg Tribunal’s singular accomplishment to be that of its recognition and condemnation of the crime of “aggressive war”, rather than its attempt to adjudge breaches of the LOW. Having applauded this development, however, he then laments the fact that, shortly thereafter, General MacArthur’s “fateful” decision to push beyond the 38th parallel into North Korea represented a blatant violation of this very norm-an act that, in his view, “…destroyed the prospects of a Pax Americana under international law”. In surveying the nineteenth and first half of the twentieth centuries, the author has thus found very little benefit to be derived from international law, in general, or from the Law of War, in particular.
The Vietnam Conflict
Moyn begins the second section of his book, “Humanity”, with an assessment of the effect of the LOW on combat operations in Vietnam. In short order, he renders his judgment. “[I]t never occurred to [the U.S.] that anyone would regard [the LOW’s application] on combat as a barrier…. They believed that they could bask in the glow of the rule of law while liberally violating its terms.” He then offers reasons as to why he perceives this to be the case: “cavalier attitudes, cultural preconceptions about savage foreigners, counterinsurgent realities, strategic policy…and the lack of an ethic within the military itself that humane war mattered.” For those who served as military attorneys through the Vietnam experience, the topics Moyn chooses to support his analysis are familiar ones—ineffective Rules of Engagement, “search and destroy” missions, “free fire zones”, “body counts”, and, once again, the fact that the U.S. “…was fighting and killing a nonwhite race.” Issues such as these unquestionably presented challenges-sparking debate both within the military and amongst policy makers.
Mistakes were made; LOW violations occurred. However, the author’s treatment of these topics, perhaps unsurprisingly, often fails to tell the entire story. He notes that, in conducting the American air campaign, …”the question of what was legal in such warfare had occurred to no one.” And this, “Despite an essentially functional system of military justice, the military culture of the day—including among lawyers in the Judge Advocate General corps (sic)—excused callous and deadly treatment of civilians and frowned on allegations of wrongdoing.” I would challenge the accuracy of both these statements. Additionally, even in speaking to the issue of the legal basis for American military involvement in Vietnam itself, Moyn’s treatment is decidedly skewed. “In the hands of…the Johnson administration’s supporters among academics, international law was ‘less a fig-leaf than a see-through garment’”. For those who, at the time, witnessed the debates on this very subject engaged in between Princeton’s Dick Falk, prominently noted in this book, and the noticeably unmentioned University of Virginia’s John Norton Moore, this statement, too, rings decidedly untrue.
My Lai and the LOW
There exists little disagreement that the murder of innocent Vietnamese civilians by American soldiers at the village of My Lai, in March, 1968, was a significant turning point in the future role that the LOW was to play in the conduct of U.S. military operations. The revelation of these events had a profound impact on both the American public, its political leadership, and its military-resulting in a sea change in the manner in which the U.S. was to perceive and implement the LOW. Moyn chooses to attribute this change, primarily, to the work of Telford Taylor, whose opposition to the war was framed almost exclusively in terms of war crimes. “If one had to choose a single cultural document that marked the beginning of the coming of humane war in our time, Taylor’s bestselling … [1970] “Nuremberg and Vietnam: An American Tragedy”…is undoubtedly it.”
I disagree. If a single document is to be cited as the deciding factor in the cultural change that was to occur in the American military’s adherence to the LOW in the coming decades, it was, in fact, the 1974 Department of Defense Directive 5100.77, “DOD Program for Implementation of the Law of War”. This, in turn, evolved from the Peers Inquiry, a comprehensive DOD investigation of the events surrounding My Lai-an initiative that Moyn pointedly fails to note. A finding in the report filed by this Inquiry focused on the fact that inadequate training in the LOW was a contributory factor to the My Lai killings. Consequently, the DOD Directive established a unified and extensive LOW training program for the armed forces, instruction that was to be provided by military lawyers. Perhaps even more significantly, however, the Directive mandated that, henceforth, Judge Advocates were to be involved in both the development and review of all Operation Plans in order to ensure their compliance with the LOW. Few, at the time, could envision the substantive effect that this mandate would have on U.S. adherence to the LOW over the following decades.
The 1977 Protocols Additional
Moyn next introduces us to the Swiss international lawyer, Jean Pictet, a familiar figure to all who have consulted his definitive Commentaries on the 1949 Geneva Conventions. He serves as a conduit for the author’s discussion of the 1977 Protocols Additional to these Conventions. In doing so, Moyn, once again, evidences his disdain for the LOW norms existing at that time-to include these ’49 Conventions. He notes that, before the ’77 Protocols were in place, “…one could say with only a bit of exaggeration that there were no laws of war, humane or not.” The triumph of the Protocols was, in his view, the fact that, “ [T]here really were—finally—laws of humane war. [F]or the first time, the brutal essence of killing itself was a legally constrained activity.” This is yet another example of the author’s now familiar hyperbole that simply does not withstand examination. Yet, even here, in his enthusiastic endorsement of the Protocols, he cautions that this more robust LOW might simply serve to legitimate conflict itself. “What if those who initiate…more humane war consider the results ethically legitimate, precisely because they are following the rules?”
Post-Vietnam: The Role of Military Lawyers
Moyn proceeds to identify the decade following the Vietnam conflict as the historic point at which the U.S. military “first” makes a determined effort to adhere to the LOW—“out of a combination of moral education and post-Vietnam public relations.” He attributes this new found awareness, in large part, to the end of the draft-a development that exempted essentially all Americans from service in any future conflict (and resulted in an end to widespread citizen protests against such conflicts), and one that created a professional, all-volunteer force. With the creation of the latter, he opines that a younger generation of military officers now welcomed these “newly humane” laws of war-believing an adherence to these rules not only to be honorable, but an initiative that would serve as a shield against any damage future violations of these norms might do to their profession.
Perhaps to the surprise of some-if not most-Moyn attributes much of this attitudinal shift to the work of military attorneys: “Judge Advocate General lawyers in the different service branches were in the forefront of this change.” Why was this the case? It was most decidedly not the result of a newly discovered collective moral compass on the part of JAGs. Nor was it, as Moyn would attest, the fact that, again, for the “first” time, the ’77 Protocols Additional actually provided military lawyers with substantive, “humane” LOW rules-principles that could be conveyed to the military community. While a greatly enhanced LOW training program, administered by JAGs, was indeed developed, as mandated by the aforementioned DOD Directive 5100.77, this instruction centered not around the Protocols Additional, but on long-standing codified and customary LOW.
And, while this training certainly played an essential role in a markedly enhanced appreciation for, and adherence to, the LOW, the pivotal factor in this development, undoubtedly, was the DOD Directive requirement that military attorneys be involved in the development of Operation Plans-to ensure their LOW compliance. This meant, for the first time, JAGs were to be an integral part of a commander’s war fighting staff- a role that was to expand exponentially over the following decades-and one Moyn duly observes. He notes the involvement of JAG officers in the planning for the 1989 U.S. intervention in Panama and that Air Force attorneys-among over 350 military lawyers deployed to Iraq during the 1990-91 Gulf War-were key players in Air Operations Centers, offering critical advice on the selection of targets. In the words of General Colin Powell, Moyn notes, lawyers had become “…absolutely indispensable to military operations.”
A Singular Perspective Regarding Contemporary U.S. Compliance With Jus ad Bellum Norms
Having apparently reconciled himself to the fact that the U.S., particularly in the form of its military, has now become committed to compliance with an increasingly humane LOW, the author spends the last 100 pages of his work primarily discussing how, in his view, this new found, publicly espoused focus on adherence to this law has been used systematically by American policy makers simply to mask U.S. violations of the more strategic legal prohibitions against the use of force, itself. Speaking in some detail to the legal bases put forward by the U.S. for military operations conducted abroad immediately following the Gulf War, to include that undertaken in Kosovo, he concisely sums up his analysis: “[T]he United States treated ‘self-defense’ not as a constraining limit on force, but as an expansive justification for it.”
In levying this criticism, he takes to task, in part, the role played by military attorneys in this process: “The new culture of military law focuses not on keeping American force from deployment, but on making its force more humane when leashed.”… “Never does ‘operational lawyering’ involve judging the legality of America’s choice to initiate hostilities abroad in the first place.” This is a misleading assertion, at best. War fighting commanders and their lawyers often candidly discuss the legal basis for undertaking a particular mission. Moreover, military attorneys, at the policy making levels of the government, are routinely asked for-and express-their views regarding the international norms applicable to a potential use of force. As Moyn well knows, however, and as he ultimately admits: “[T]he wars they go to are not chosen by these attorneys.”
In his penultimate chapter, “The Road to Humanity After September 11”, the author revisits many of the legal issues associated with the conduct of U.S. military operations in both Afghanistan and Iraq: the legal bases for such operations, the classification of these conflicts (and thus the extent to which the LOW applied to them), the status of the individuals seized, and the documented abuse of detainees-to include the employment of “enhanced” interrogation techniques. All of these subjects have been examined in much greater detail elsewhere. As he had with respect to essentially all previous American uses of force, Moyn once again challenges the validity of the legal arguments put forward by the U.S. for its actions. The legal reasoning posited, he asserts, significantly “stretched the rules of self-defense”. The intervention in Iraq, he concludes, without reservation, was “…illegal under applicable international law prohibiting force.” His consistent thematic premise again dominates his discussion, as well. In his view, the intense debate surrounding the LOW aspects of these conflicts resulted in a failure to focus on the real evil at play-the actual decision to resort to the use of force. “[A]s the fighting became more and more legalized, ‘going to war’ was less and less so.”
As he concludes his book, Moyn, with what one senses as a palpable sense of betrayal, attacks the Obama administration, and Obama personally, for not only pursuing, but expanding, America’s “endless war”. Upon assuming office, after campaigning on what the author deems a “rhetoric of peace”, the newly elected president, in accepting his Nobel Prize for Peace, opines that global terrorism is so new and threatening that it required thinking “… in new ways about the notions of just war and the imperatives of a just peace.” And then, this: “We must begin by acknowledging the hard truth. We will not eradicate violent conflict in our lifetime”–a statement that undoubtedly sent a metaphorical bullet through the author’s peace activist’s psyche. His critical response to this path chosen by the President focuses on two distinct policy decisions made by his administration, determinations that he regards as an attempt by “Obama’s lawyers” to claim the “… authority to continue war, indefinitely, across time and space, [by] devising formal legal frameworks for targeted killings.” And, here, his criticisms are not completely without merit. This was a time when desired policy goals often drove the law, rather than the law dictating policy.
Moyn notes that the U.S. has characterized its war on terror as one that must be fought on a “global battlefield”-enabling the U.S. to capture or kill perceived terrorists anywhere, at any time. He presents a number of legal arguments that counter the legitimacy of this approach, some valid, some not-an example of the latter being his contention that the self-defense concept of “unable or unwilling” is merely a creative American doctrine that has no basis in law. Significantly, however, he fails to address the more troubling Jus ad Bellum aspects of this “global” war. For both domestic and international law reasons, the government has found it necessary to attempt to unilaterally redefine the universally agreed definition of “non-international armed conflict”. Accordingly, an assertion is made, in its recently published DOD Law of War Manual, that, in terms of the applicable law, a conflict waged against non-State actors, though global in scope, remains non-international in character. This oxymoronic attempt to redefine non-international (internal) armed conflict has drawn no support from the international community.
Equally problematic, as well, has been the U.S. attempt to significantly expand the customary norm of “anticipatory self-defense” in order to more readily target terrorists, worldwide-primarily through the essentially risk-free use of unmanned aerial vehicles (UAVs). It has determined that an “imminent” threat, justifying the anticipatory use of force against it, now no longer need be one that is “instantaneous, overwhelming, leaving no choice of means, or moment of deliberation”. Instead, in an unprecedented expansion of this established self-defense norm, the U.S currently reserves the right to use a classified decision making process, utilizing U.S.-derived, classified determinative criteria, to adjudge the imminence of a threat against which it can launch a preemptive strike.
And, while U.S. authorities have expended great energy in attesting as to how the use of a UAV (drone), as the mechanism by which to conduct such strikes, complies fully with the LOW, this has never been the issue. There should be no debate regarding the legality of the UAV as a weapon system. The real matter of concern has always been that of whether a particular use of force itself, of which the UAV is merely the tool for employing such force, violates recognized Jus ad Bellum norms. This is the very scenario at play when Moyn, in his epilogue, criticizes the January 2020 U.S. targeting of the Iranian General, Qassim Soleimani, in Iraq. And, in noting what he terms, “the brief legal debate” surrounding this event, he offers up a fitting, though, again, entirely subjective summation of his book’s familiar, central premise: “It mattered for the first time since Vietnam that the country’s wars are lawless, even if they are now humane.”
Final Thoughts
There is much with which I disagree in Professor Moyn’s book, from both a LOW and Jus ad Bellum perspective. He challenges the legality of essentially every U.S. use of force, post-World War II. And, while there is merit to his criticism of the legal reasoning put forward in connection with certain of these scenarios, his obvious opposition to the use of force, per se, prevents him from acknowledging even those instances when American military might has been rightly and legally deployed. This agenda-driven lack of objectivity diminishes his credibility, as does his, often, over the top hyperbole. And the same holds true regarding any number of the “definitive” statements he offers concerning the LOW.
This is particularly the case regarding his thematic contention that the U.S. systematically “uses” its compliance with this legal regime for no other purpose than to mask its continuous violations of the international norms prohibiting the use of force. Moreover, his assertion that no meaningful rules governing the conduct of armed conflict actually existed prior to the negotiation of the ’77 Protocols Additional to the ’49 Geneva Conventions is simply inaccurate, as is his claim that very few-if any-paid attention to those provisions that did previously exist. As someone who taught countless LOW classes, in various fora in the seventies, I can assure the author that this instruction called upon an extensive, substantive body of both codified and customary LOW, much of which did indeed later find its way into the Protocols.
While I often find fault with what the author has to say-and how he says it, I, nevertheless, recommend this book to all who work with-or who are simply interested in-the Jus ad Bellum and Jus in Bello principles that regulate a State’s use and conduct of force. Moyn’s brief tour of the historic development of these norms is worth taking. Additionally, his introduction of the leading peace activists who have toiled, over the centuries, for a peaceful world may well come as new information to many readers. And while I have criticized this work as one rife with agenda-driven hyperbole, it is a hyperbole that is both provocative and well written.
All can wish, as does Moyn, that the global community could free itself of conflict. I find myself in agreement, however, with two observers of human nature who have spoken to this prospect, many centuries apart. Aristotle is said to have remarked: “Only the dead have seen the end to war.” And, once again, hundreds of years later, a Nobel Peace Prize recipient has advised that we must acknowledge a hard truth: “We will not eradicate violent conflict in our lifetime.” The current looming threat of a potential Russian decision to wage aggressive war against Ukraine is but a stark reminder of this reality.
Accordingly, I approach the matter of our nation’s use of force-and the manner in which it employs this force-from a much different perspective than that of Professor Moyn. With this being said, however, given a future certain to witness conflict, I believe the professor might at least join me in the hope that those tasked with formulating the legal rationale for forthcoming U.S. military operations will be imbued with the ability to adhere to established international law, rather than being called upon to craft disingenuous legal arguments to sanction actions which policy makers wish to take.
About the author:
Colonel (Retired) David E. Graham is the former Chair of the International/Operational Law Department–the Judge Advocate General’s School of the Army (TJAGSA), where he played the seminal role in developing the field of Operational Law; the former Director of the Center for Law and Military Operations, TJAGSA; the former Chief of the International/Operational Law Division—Office of The Judge Advocate General, Department of the Army; the former Executive Director—The Army’s Judge Advocate General’s Legal Center and School; and the former Associate Director, Center for National Security Law, the University of Virginia School of Law.
Currently, he is a Special Advisor to the ABA’s Standing Committee on Law and National Security; serves on the Editorial Board of the “Journal of National Security Law and Policy”; and is a Senior Fellow at the Georgetown Law Center’s Center on National Security. He is a Distinguished Graduate of the National War College and holds a B.A. from Texas A&M University, an M.A. in International Affairs from The George Washington University, a J.D. from the University of Texas School of Law, and a Certificate from The Hague Academy of International Law.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
