tv War Law and Restraint CSPAN July 16, 2017 7:59am-9:46am EDT
that idea has been questioned in the work of more recent dollars. -- for that reason and many others, i'm so happy to bring to you today a panel on the question of whether law can constrain more -- war. perhaps, that is the area we think if you have the least affect and what do historical examples help us think about that. we have four brilliant scholars and writers here today. they have all written important books that are relevant to the
have and two of them served within government as well as during the george w. bush administration and obama administration. i'm going to do quick, very short intros. questions them a few and then we will turn it over to you. q&a, please go to we haveophone because this great crew from c-span here today and we really need to help them out. how first speaker starting at is john.f the table it is wonderful to see you here.
is the alan h duffy president at yale law school. 2013 prizewarded the and was the finalist for a pulitzer prize. it also won the american bar association silver scandal lord -- ilver scandal which is about the foundation that helped finance the efforts that eventually became brown versus board of education. next up will be helen come nstella. "the image before
theweapon," was awarded sussex international theory prize. she will be a council of foreign relations fellow with the international committee of the red cross. then we will hear from jack goldsmith. he is the henry -- the senior fellow with the hoover institution and cofounder of law fair which it used to be this obscure law blog and now it is all the sudden at the center of american politics. during the george w. bush administration, he served as forstant attorney general the office of legal assistance
-- up now is john with. [applause] --for thinking about law and worn -- four and relations. the question is can law restrain war? let's just say sometimes it can and does, though all too often and usually not. a difficulty with starting with a constrain were question is i'm not sure there is a reason to begin with an idea that the law even aims to constrain war.
pacifist, you a think that is a good thing at least sometimes. and better question for crowd like this one would be whether the law is variable for the study. questiono pursue this ask. be asked -- how to economic models, political organizations, even blind chance . on into list skeptics the present.
-- and read reports that the whole episode amused greatly and says we are not going to pull out of our pockets a little booklet and read over the rules. parallelicism has a into realism of historical literature. the historians version of what i want to call that the and ask -- in the compliance model the
like the opposite of the compliance model, but it is actually its twin. the compliance model turns out to be the first stop in a shuttle that very quickly arise -- arrives. the compliance model and the scrap of paper idea are flip sides of the same mistake. they imagine the influence of law and or is universal when in fact it is multifarious. what i mean by these things? multifarious is just a five dollar way of saying there are many ways that law shapes war. here to -- to quick examples to get us started.
a favorite of mine drawing from the history of american foreign relations is the same as trent affair. this would bring in outrage united kingdom into the civil u.s. hadeven if the -- authority to had a procedural obligation to bring the trent into an american seizurehave the confirmed by federal court. historians have treated this legal controversy as kind of a
farce. this is a real accomplishment to participants in the moment in a situation that one recent historian has called lincoln's cuban missile crisis. there are lots of examples. i think of rules governing rules of four --rules rules of war. one example comes to my mind is code issue lieber during the american civil war. this is a founding moment in the humanitarian law tradition.
the south refused to exchange african-americans captured. francis lieber takes the position of the law of nations and knows the sanction of color in the union insists that black prisoners be included. humanitarian catastrophe in -- ensues. that muchs making it easier for the union to stick to the position. these two examples i hope dispel the compliance model and its scrap of paper to encourage the
law functions as a social ormation and shaving reshaping the conflict for which it exists. the board of jefferson davis might offer us third mechanism. i'm trying to choose well-known bits from american history. instrumental resource and i want to talk about a third through jefferson davis. let's label this mechanism walls paramedic effect and it involves the way law operates and paradigms. davis is aniseed after committing treason against the united states, but once again the compliance model is misleading.
is prosecution of davis entailed by the logic of a legal regime. the social formation whose structure and logic are organized around a distinct structure. logic in perth meeting social action. in davis's case, the consequences are apparent after my -- affair and labor code presuppose the conflict was a war. treating the conflict as a war had paramedic entailment because the laws obligation of inerality still required
these obligations raised the cost of reversing course is merely rebel treason prosecutions. it is no rebuttal to say that davis -- letting davis go was dictated by reintegrating the postwar south or argue that andrew johnson was predisposed because those imperatives is positioned for themselves conditioned by the expectations the laws of war had produced during the previous four years. nor is it a rebuff to the paradigm story to observe that the north could have prosecuted davis and very nearly dead indicting him not once, but twice. ammitting the u.s. to particular approach had logical entailment, lord the cost of others to help.
the all of war is not exogenous to the goal of actors. it constitutes and embodies them. consider for white confederate ofders consider the option euro low warfare. might have been impossible to overcome. consider what general washington thought it was important to fight and survive set piece battles. -- visions that were shaped by the structure of europeans dates and embodied
into the cottonelle converse and the confederacy. may hear more about that from rosa and check. that is what we are saying from non-international conflict. old paradigms being put to work in new settings. the answer medalist account is about finding devices that have meaning because of the system that the law creates. his lever is pulled in one part of the system and reverberate in another part of the system so, can law restraint or. law constitutes systems of meaning with claims of legitimacy and authority that shape any number of ways.
these systems also do many other more. than constrain this i think is why the field seems to me rich -- reach historical inquiry and what i hope to see more is said is that dylan the significance. thank you very much. >> i'm truly honored and humbled to be here today on the company of other scholars whose work has influenced my own. you that -- not
especially as a historian, although i do try to be a diligent student between the history and the law. thinking are by the actuality of -- keeping this in mind, i have attempted to make three contributions. first, the laws of war can be analyzed as an archive and with routers --ard to the rubrics of rules. it has been well-established that the laws of war are intertwined with histories of imperialism and colonization.
second, i have argued that paying attention to attempts to define categories such as the direct participation of -- paying attention to define and regulate these categories illuminates the ambiguity of the law and also brings to the shifting notions of power and authority to define the law itself. this brings me to my third contribution. thinkingrcises and offer resources to apprehend and judge present moment. collectively, this is
significant important to the study of the laws of war. does againsts it the -- languages and norms across time and space. is past, far from being gone constantly being retrieved as a source as john already mentioned. more broadly, to fully comprehend the relation must first trace from which the laws of war were reproduced. after all, the evaluation of the laws of war be at in terms of restraint or otherwise is predicated upon a prior agreement for purpose in utility.
for example, on the one hand, if we except international military and law -- then restraint may be understood quite differently than if on the other hand we believe the laws of war are justified and grounded into practicality. warfurther, the laws of reflect compelling consideration of humanity of the survival of the sanctity of individual human beings. my point is simple. isinition of restraint dependent on particular construction of what it means among other things to be a illegitimate or lawful combatant.
definitions which we know are also dependent on our very notions of war itself. take for example the road is -- prohibition against superfluous injury. article 35 states it is methods ofto employ or for that cause unnecessary suffering. that the5 details right of belligerent to a. means of -- that means there is a
limit on the exercise of force used in victory. it isy of understanding as a prohibition on the use of force that is the use of force that is more than enough. the lack of consensus over the precise meaning of these terms and desire to fully define their content tarragon importance during four years of diplomatic conferences. take placerences from 1974 to 1977. conferences or decorate the -- in a diverse and transnational
cultural of third world liberation. important, morals -- wars of national liberation were internal wars. while the use of chemical, biological, incendiary, and nuclear war preceded this, underscored the right of belligerent to doubt means of injuring the enemy is not unlimited. conference,tic representatives from national liberation movements seized on ofse concepts as a means holding imperialistic states accountable.
it was the first time in the development of war that colonized people who had previously only been -- they did so through invoking expertise grounded into the recent experiences. from newly decolonize contradicteded or -- they wereish to the people who had first-hand knowledge of the victims of the effects of modern correctional weaponry. icrc, theyy the insisted on broadening the concept of superfluous injury and unnecessary suffering to include not only physical harm and injury, but also psychological harm and most significantly, cars -- harm to
ways of means and life. -- third will delegates refuse to accept and demanded a more robust accounting. for one, they drew attention to the use of superfluous injury. enable them to you use justified by killing more quickly. further, as another delicate explained to prohibit or restrict certain categories of weapons would give the
impression that they were dangerous. he company delegates were trying to move away from the means and just thinking about the message of war itself. not surprisingly, the emphasis on damage to the environment is damaging to the means of life was reiterated. third world delegates also puts the conversation to encompass the entire population. not simply those who were targeted. debates throughout the
was that the environment be evaluated in terms of scope and duration. the debate over superfluous injury and unnecessary suffering began an individual terms and expanded and even to consider turninglexities -- a point in the development and the laws of war -- it was also a moment in which the victims andaim the laws of war denounced those fall against them. to retrieve the debate over unnecessary suffering, unsuccessful much of the probably was.
it reminds us something that has no history can be so plainly and this offersd precisely the possibility may be used in unpredictable ways and not always in the service of what some call violence imperialism. >> thank you very much. thank you for inviting me to come. i agree with john that the to constrain war is to constraining.
is a lens for political debate. iny often, war shapes law probably more often than law shapes for -- war. said, i'm going to talk about how laws of war have operated since 2001. it hasn'tto suggest had much of an impact and does not seem like much constrain when it comes to the initiation has -- is taken much more seriously, but that constraining effect might not have the effect that some people
onnk it should so depend what type of war you are talking about. to,ou look at article presidents have use military in the absence of congressional authorization and the justifications that they libyaiven primarily in ,nd president trump in syria the office of legal counsel is legalfice that writes the opinions that explains how the president can use unilateral force under article two. i can tell you with some confidence that i can't imagine a circumstance where president would want to use military force
without congressional authorization. i don't think article to stand as a constraint to any plausible scenario when a president might want to use force. the possible exception is a large-scale military intervention with lots of ground troops. exception month, -- the law that was and i did a couple days after 9/11 allow the president to use all necessary force against nations or persons responsible for 9/11. that was a more restraining formulation that president bush
asked for. inhink it is constrained time the government, but if you look at it from the outside, it seems like it is expanding. it was first used to forces associated with al qaeda, then expanded to the islamic state and 15 years we are fighting an entirely different conflict against global terrorists and we 9/11.n the war powers resolution enacted in the 1970's is the one time congress has roasted up to the president and kind -- and
trying to limit his powers. i think it received its deathblow under the obama administration when they ruled that the month-to-month and campaign against libya which involved thousands of americans, the elimination of gaddafi, that action did not count as hostilities that would trigger the limitations of war. once the executive branch exhibits that, there is no constraint at all. moving to the international law many people find constrained the last several years. it was remarkable.
perhaps the most remarkable thing about the reaction to clear strike in syria, a violation of the u.n. charter since it did not have any plausible substance or rationale. it was not authorized by security council and basically theirwas a loud cry in was a large discussion -- under that position kind of evaporated as of a couple months ago. moreover, to doctrines have risen up since 9/11. heel on theachilles .rohibition of the use of force
if you just look at those laws of the last 15 years, he would say there's not much constrain going on. we could argue how much proportionality rules have. they are completely immigrated into the operation and they often result in things that commanders did not want happening. underf other constraints domestic law. how highlythings is legalize not just the defense
department's, but the justice department as well. there are many instances of noncompliance, i think the general story is the law is vindicated. the courts would not accept executive positions. lots of areas, the law has become much more legalize. lawyers have a greater say inside the executive branch. -- i just want to close by suggesting as i wrote -- and theire many many more that i mentioned, there are many constraints have
had the effect of pushing back on what the executive branch my wanted to do. some of it has been marginal. it has gotten the other two branches of government involved. the course played to what i think is an impressive roll through habeas corpus, but there .s some total of all that the total of the legalization, the publicity in legal terms about what is going on has been real restraint, but also legitimation. we don't fight about the legality of gitmo anymore.
basically some people still fight about it. similar had happened to a lesser degree, i think targeted killings. ironically, the restraint has empowered and the generated and in most war. suggests that the focus on away liberties has taken the bigger question about the legitimacy of for itself. i don't quite draw that conclusion, but i think it is fair to say the combination of the lever legalization of work combine to make more secretive, have more at a distance, has in effect taken war off the table as far as the american public is
concerned. i'll leave it to you to figure out if that is a good or bad idea. [applause] thanks, mary for inviting me to participate in this. i don't think you will see a huge amount of disagreement between any of us on this disagreement. instinct was to respond like a lawyer or more specifically one of bill clinton's lawyers during proceedings and say it depends what you mean by law, by constraint, and war. a coded way of saying does
law produce conflict, international law or or reduce theaw amount of human misery and suffering? i think the answer to that one is no. law is not care that much about reducing suffering. the law is pretty agnostic about miserywars and a lot of during wars. sometimeshave said, does nothing of the kind in fact tends to legitimize and enable more prolonged and frequent miserable war.
what is certainly does is one of the tools used to assign meaning to different forms of warfare and suffering. ben we pronounce them to indiscriminate and so forth. used tovehicle structure war. let me switch to a different question. i was think one of the problems if you are in a national law professor is international law islly law #my answer to that
kind of the wrong questions. a more interesting question to ask is under what circumstances will the law influence their behavior and if you're an advocate coming you care about .hat and ominously clearly there are some there pretty where much irrelevant -- they are pretty much irrelevant. law is not separable from power. it is not something that tends outside of all of those things. as it is only triggersonalized and people support. -- rwise
had a famous line, liberty lies in a man -- hands of men and women. no court can do much to help the. this is true not only for the law of war. it is also true for domestic law. law matters when we decided it matters that we create institutions that turn abstract laws into habits of bureaucracy. that is when law matters. jack washat is when talking about when he talked about llama having a huge affect on force in the first place. beenof the reason that has is within the u.s. military for instance, particularly after
, one of the responses of the u.s. military as an institution was to essentially push lawyers further and further down operationally so instead of having a few lawyers at headquarters level, increasingly you have lawyers operating at the time level and at the company level so decisions being made by small groups of people are subject to lawyers saying you can do that or you have to do it in this way. when you do that. -- you create create a bureaucracy that defines itself by its role andompliance with the law
you put those people with other then you create a huge group of people who are deeply invested into saying the law matters. it gets embedded into the roles of engagement. does it reduce suffering? not necessarily. in that sense, it matters enormously because we create institution that enforce it. even looking at the differences between obama under whom i served and president trump. obama come along mattered. i believe that he believed that
law mattered. person that it mattered what the new york times thought in the courts thought. when you say that, people can influence your behavior from activists to republicans in congress. if you care about your reputation, then it starts to matter. it is not matter in the same way all the time. some things matter more, but it becomes it pretty powerful constraint. enter dolch of any say it doesn't matter to me, then it does not matter to you anymore. you're willing to carry on, then law is not going to constrain your behavior.
one of the fascinating things to watch and we had three and a half years to find out how this experiment will turnout, we have a president who does not think law matters terribly. we continue to have a federal bureaucracy that does that law , -- rs and on most issues all caps routine matters on whether it is health care or environmental issues or anything else, even the president can't bureaucracy we the people and that bureaucracy are inclined to think that law matters, regulation matters, with the
court say matters and when you're president in his everybody do this and have your employees say we can't do that, then law starts matter. when ours matter friends matter. one of the things they're the bush administration, for instance that had an impact the actions of the bush administration was the responses of european allies. ine of our practices afghanistan went unchallenged despite criticism from human rights in journalists. can't turn over detainees. we're fearful because we comply to different set of human rights
standards so unless you change your practices, we can't change them. saying while matters when we decided matters and when we are going to the map for it. there are certainly ways to make it matter less and one of the things is the ways in which the categories in which conflict depends on war. law as ader to use constraint tool when there is ambiguity and vagueness in the categories themselves. if you asked me. , but ifa historian that's me does law constraint
can make this actor constrained in the following glaze -- following ways, that is something we know of their mouth. we know which law will matter and which circumstances it won't and that is probably the more interesting question. [applause] >> thank you so much. a number of questions i want to ask. as you were all talking, i started thinking about your book . maybe one of the trajectories voyeur duration of american politics and pointsent and one of the
that law endeds up coming -- it is sort of john's point. context where post-9/11 people were worried about not only is there going to be another attack, we going to be blamed for. it was difficult to push back from extreme policies. is anason that would work argument that the action was -- firemen were correctly, jack argued there was pressure to go to the edges of the law. things -- but
then, if you can call something , vomit comes the mechanism in the head of the 9/11 commission suggested lawyers had become too central. law as an outer boundary was the coming two important and it was leaving out, as i think you argue, other factors of decision-making. thiss it going to affect domestically? law on the comes a decision-making mechanism in a way that others have talked about. it seems that becomes part of law inry of the role of
war. i wanted to know if you could reflect on that and thinking backwards in time whether helen andjohn have thoughts earlier moments in time. i think that captures what i said. just to repeat it quickly, there's no doubt lawyers play a role in policy decision to different degrees in different administrations. -- they were squared -- scared after 9/11. they do not to intelligence. there were not sure what the
right policies were. they wanted to do everything they could do the lawyers in an upsetting the policies. the normal thing to do and government is to have a debate with what is lawful about what one should do and a lot of the time in the early bush administration, the lawyers decided where the line was. was true ofk that the second-most administration. it was not true of the obama administration which famously put a policy overlay on legal authorities to narrow what could be done so it can work in a lot of different ways. it can shut something if a lawyer says no, sometimes
that is the end of it. playingers are multitudinous roles. the particular when described was especially prevalent in the bush administration first-term. >> great question, mary. one misconception i think that has spread in the years since 9/11 is that the law matters now but didn't matter that, with then somewhere in the past. i think the increased number of lawyers involved in the decision-making processes that reducescribed has helped that impression. we should establish between two different effects of the law in armed conflict. let's call one, institutional and a second discursive affects. i'm making up these categories so i am not committed to the labels.
think of the emancipation proclamation. it is saturated in the laws of just war theory. what is the ground for emancipation? that emancipation is necessary as a war measure. warwe've got a law of framework setting up the justification, and then emancipation sets off a humanitarian law crisis. so, we could think of the lwaw of structuring -- something like a emancipation. but there are essentially no lawyers in the executive branch in 1862. william whiting is running around saying he's a solicitor but no one is sure what that means. they have to reach out to a columbia professor to find somebody to write about code of war. there are no boots on the ground in the law domain and now there are. help explain in part
why it looks different now. because their people there, standing behind, targeting officers who can offer advice and order things. it is not mean the law matters now and did not want before. >> i just want to say i completely agree with that. you read the supreme court decisions in the 19th-century during wartime, and you read the executive decisions and they are highly legalized about neutrality law. these were informing policy. and so my claim is not that this is something new. i think the bureaucratization and i think the extent of the legalization is, but i agree with what you say. the only thing i would add is fields i havee worked in over the years is the suppose it field of rule of law
is actually ach multibillion-dollar industry in which governments pay people like me to run around the world a-ing to other countries, ha. here is how you get the rule of framework means we say we have a- that fantastic code. here is the criminal code. needless to say, that has not proven effective for all kinds of reasons. one of which has been sometimes the glaring cultural inappropriateness. but the other is that in the united states, to the extends that law domestically is a constrained and most of us think it's a pretty powerful constraint, albeit perfect. 100% compliance cannot be the test. we still have murders and steps and all kinds of lawbreaking.
we think of ourselves as a rule of law nation. the reason we have that is not because we have terrific legislation. we often don't. it turns out our legislation we offer other people is a good deal better than the ones we adopt for ourselves. but it's because it is so deeply embedded in so many different institutions in so many ways and on so many levels that it is because we teach kids that it matters from the time they are little. it's because we have all these lawyers who we pay money to, and they have an and send it to say that the law matters. it is because we have courts and police and interlocking systems that make the law matter. when you do not have as many of those and they do not penetrate as many levels of society as deeply, then the law just becomes one tiny formalistic piece and it does not tend to have a whole lot of impact, except as a rhetorical tool, which can under certain
circumstances create a constraint. it creates a language, certainly international law. it creates a language that use.s use and have to nobody, not even north korea, nobody says the law doesn't matter. they say, i am complying in the law, just in the way that you did not understand it even at worst, it is still structured the discourse enormously. but whether it is embedded at the institutional level, obviously, has a profound impact on the degree to which it will constrain various actors at different levels. just for a little history on that, one of the interesting things about the rise of lawyers post vietnam, they -- began with the gentle civilize us, group of elite european publicists were both philosophers as well as
legally trained. so, the history of the laws of war comes out of a moral combination of thinking about questions of imperialism and questions of state governors, notnot devoid of, and i'm saying lawyers now are devoid of, but impressions of what it is right in good and how to properly govern a country. while they were not lawyers, there was much more of a merging of the morality and -- i call the laws of war strategic expressions of morals. it is a reference to the early grounding in the work of -- the interesting thing, too, about the rise of lawyers is vietnam andto military lawyers. in the 1977 protocols one of the frustrations western states have with third world delegates as they were not trained in the laws of war. that hampered them dramatically when they were attempted to participate in the development of the laws of war.
they were good advocates and it figured out how to use the u.n. general assembly on their own behalf, but when they switch to a different form, the laws of war, they were outmaneuvered. george aldrich, a representative of the united states, basically said his frustration if you read through his notes, his frustration with third delegates has to do with their misunderstanding of the law. they can't figure out the difference between unavoidable suffering and unnecessary suffering. then i was going through how law is made now. it seems that one of the interesting things in michael smith talks about this -- individual speaking and talking and making laws. not through treaty making our state opinion -- but the interpretation -- is that states have seem to have stepped back. have directu participations and hostilities, in 2009, you had very few state discussions of what it is. question of how central
lawyers is seems to have changed over time. it is important to pay attention to how the discourse and the institutionalization may or may not be influenced by that. >> thank you so much. rosa, you were talking about pushing lawyers further down the operational, to the operational level. it just reminded me of, you know, of, of, you know, what -- a couple of things. one is, the whole question of law fare in the way that charlie dunlap talks about it, as a weapon of war. law, part of the technology of war. as as you go further down the operational, um, to the operational level, you know, the um, someone making a decision about whether to use force in a
particular context basically has to call of the lawyer, find out if it is ok. so then the decision about yes or no is taken on the basis of the lawyers recommendation. and that's sort of one of the descriptions of how this happened. so law as a weapon of war. and, you know, david kennedy in of law and war really sort of a poignant reflection on this idea. where he basically suggests that uh, essentially, soldiers and humanitarians, uh, advocates have basically been caught up in essentially bureaucratic language that then has distanced them from the feeling of the decision to choose to kill or to choose to allowed to live.
and he basically says we need to get out of this language that i s a language of law. as a way of getting back to, you know, not just the moral questions about killing or not killing, but also, the sort of human relationship to those ac ts and those human beings. so, i wonder what you know you all think about this sort of codification of war in a way that, you know, from, uh, kennedy's take is really undermine our ability to have this human connection with the life we're taking the we go to war. yes, and i would say that is the point. that is why we like law, because it enables us to legitimize
things that otherwise might be psychologically troubling or to delegitimize things that other people might think are fine. that is its purpose. there's sort of nothing -- and on the lawware, what else is new? of course it is. how could it ever not be? everything is a weapon of wra. ar. jack you would like me to spend a fair amount of time -- things like hybrid warfare. so far as forces in conflict with one another will use what ever lose thetools they can . does it matter and how does it matter? can we and should we push back against it? it depends what you think. here is an example. take something like u.s. drone strikes helen mentioned and the
choice of legal paradigms. and one of the things i have spent a lot of time thinking about and writing about are the ways in which our categories of war, not war, combat in civilian have gotten squishy. if you believe, as three successive u.s. presidential administrations have argued, that a u.s. drone strike in yemen or somalia far fromt a hot battlefield, if you believe that yes, there is an armed conflict between the u.s. and either the place or person we thatargeting, any believe person is a combatant or civilian participating directly in hostilities, if you believe those various things, then a u.s. drone strike targeting particular individual is legally and morally identical to an american soldier on the beaches of normandy shooting at a german
soldier. there is no interesting difference between them from a legal perspective. therefore, we get to say there is no interesting difference from a moral perspective. of thoseallenge any categorizations, wait a minute, i'm not sure there is armed conflict between the u.s. and that organization or it is not in that place or there is with an organization but that person is not part of it. any of thosenge categorizations, then the united states is going around the world murdering people. extra-judicial executions. i can argue either side of that. that is what they trained us to do in law school. i don't think that there is a legally correct or incorrect answer. the law doesn't give us the tools to answer that question, and i've sat, as i know some of you have in many, many rooms with really, really smart lawyers who have gone around in circles for a really long period of time, saying, is it war? no, it's not. yes, it is.
the law won't suddenly magically give you the answer but if we can persuade ourselves that it gives a clear answer, then we can say i knew it. that's murder. or ah-ha, it's fine. and we can stop thinking about all of the other issues that may be the much more important issues such as does it work? do we think it is a good idea to have a world in which states can, without sharing the go around the world and kill people even if we think it is justified? there also some questions, the legal question's the least interesting question but the legal questions helps us avoid having to think about the other questions and that is why we love it. >> when you talk about judicial killings, one of the difficulties about talking about how does the law - we have been talking about who monetary law -- about humanitarian law.
and human rights law and criminal law has been growing. the intersections are getting tighter. the question of which law matters in which particular point in time, and rich framework you use depends on your interpretation. they may be targetable -- [indiscernible] may decide not to target based on international human rights law. in terms of thinking about law constraining war, it is not just the laws of war, but also the interface of multiple kinds of law. >> could i intervene and throw it back to you all? as you were answering, let me tell you one way to hear what you said. when you said, of course, kennedy's we're not in touch with that emotional experience in some ways. so, and when you said, of
course, that is what law is supposed to do. the way i heard that is that law is basically the mechanism now we think about the war in the pacific in world war ii, and you know, this group knows work, war without mercy, on the incredible racism on both sides. so, one of the ways is getting soldiers to be interested in killing other human beings. is the dehumanization and the ramping up of an ideology that makes the killing right and a good thing to do? there is also his of literature also that says when soldiers are killing, they're trying to survive. but to the extent that effort to get soldiers prepared for conflict, for example in world war ii, was to essentially dehumanize the enemy or ramp up the ideas about the goodness of killing.
so, that was, that was sort of the training for it. and, so, it functions to enable them to kill. and now we just have a different mechanism. that provides a rationale and justification. and that's what makes it easy didin a way that ideology in an earlier context. >> may i just say, i think that is -- talks to commanders that say they do not did the language he used, but when you are training 19 and 21-year-olds to kill, psychologically they want that whatderstand they are engaged in is an honorable activity, that it is just, disciplined, that are rules and things called law that limit it, defined and justified
it. i do think that is explicitly part of the role -- [indiscernible] >> the dour example is useful there, because it suggests the is being which the law driven down the operational andn, even to 18 19-year-old is not replacing the regime in which we once asked are 18 and 19-year-olds to make moral decisions as they were deciding whether to fire ordinance. so, in one complication to the really interesting model you set up there is that, since at least the first geneva convention, the currency in international humanitarian law has been suffering. the basic model of international humanitarian law is we will set aside who is in the right and who is in the wrong. we are not going to ask about that. if we do, it is a race to the
bottom because everyone thinks they are right. the only thing we are going to ask about his unnecessary suffering. so, unnecessary suffering becomes the thing, the currency of the inquiry. which is a displacement of the questions of right or wrong. i think some of the, the confusion in this area, in the ways in which sometimes the loss categories seem to be frustrating, is that the law has set aside the questions that most people will want to ask first. >> there's a fantastic article paul 5 years ago now by kahn at yale law school. it is called lessons from the gulf war. it's a piece about there's a line where he says the amount of suffering that is permissible under international humanitarian
law is staggering. and he essentially is making precisely that point, the we kae kid ourselves when we think it is about reducing suffering as opposed unnecessary suffering which the law will do fine for us and we can feel ok about the carnage we leave in our wake. >> can i and one thing? -- add one thing? when you think about the suffering coming after think about that it has to be oriented towards the protection of combatants. so, the organization of the laws of war was focus on prisoners of war. o longer actively engage in combat. it was not until 1977 we get a specific definition of a civilian or protections of civilians. so, i think it is important to think about the laws of war as we're expanding that the model ofthe productiotection
combatant, it is not about the civilians. we misunderstand it if we think it is about the protection of civilians. that is a recent development. >> so, why don't we open it up to questions? we have got two microphones. please identify yourself for the viewers at home. go ahead. >> hi. i'm from washington university in st. louis. fantastic panel. and i have a question about, i am interested in how paradigms are shaped by capabilities. and so, on the technological side, um, and i mean, the 1899 hague convention talks about how you can't throw projectiles down from balloons because -- hot air balloons because you might hit civilians and that would be terrible. they don't use crime against humanity but they almost do. yet, 44 years later we have atomic weapons being used against some predominantly
civilian populations in depend. anjapan. if you read oppenheimer, it is like a marble rolling down a chute. we have this capability it is going to be used and we have to paradigsome of our ms to make this possible. so, whether it is ironclads or if kate upstein is her or her brilliant book on the computer torpedo or drones. i would love to hear examples about paradigms being reshaped by these capabilities. and one the dented footnote because there always the dented footnotes with historians and long which, i think the language about unnecessary suffering is from the 1868 st. petersburg declaration, right? witt, hee hat to john
wrote a holbrook. whole book. nobody cares about that law. anyway, thanks. i would be interested to hear your thoughts. of leaving my 19th-century jurisdiction, it's actually, and others will know better, since the drone the future of the drone is a huge threat to the paradigm for unnecessary theering, the sub rosa, unnecessary suffering will has added to the cost of using armed force, because it is hard to use armed force and not hurt other people. in the world of cnn, it is going to add to the political costs. in the world of drones that are accurate and we are in that world -- jack knows much more
about this than i do. they are going to get more accurate every day. we expect this. to havere going mistaken identities but you're not good to have cases where people were killed were not the intended target of the attack. that means the use in bella to use latin is going to stop serving one of the functions it has been serving for some time. >> it is an irony, contra a lot of the media coverage is not that they kill so many civilians, it is that they kill so few. you can use so much precision that it reduces the costs -- which lowers the threshold for using force. it will be interesting to see how cyber plays out is that becomes part of our landscape. in so far as contra drones, cyber remains of a pretty -- a pretty blunt weapon because one of the criteria in armed
conflict is you have to distinguish between civilian and military infrastructure and so on and so forth. that principle of this tension is absolutely vital i. in every domain, it has gotten harder to distinguish between news categories. those categories. in cyber, what counts as a civilian target is almost impossible. cybery kind of offensive will have spillover effects in simplyhe, the user cannot draws those distinctions. i don't know how those things will kind of unfold in the coming years, but i think each in opposite ways challenges our ability to use those paradigms anymore. yes, you areside, correct. i was using 1868, i went to
1907. that was using the quote. is a precision or accuracy we are talking about? one of the things with a lack of transparency and the very statements we don't know who we kill but we are convinced it was the correct person and that we kill people at various times over. should we keep open the idea that these drones are precisely that they are accurate? at least in terms of what information we have, we should be able to -- >> sometimes we do not know the identity? >> right. we know we killed somebody but we have less of an idea that was the right person, and that that was the person we were intending to kill. i think precision versus accuracy is useful to think about. so, a lawyer argues we have a duty to use drones because they're so precise. ryan goodman would say, no. we're using drones in conformance with the laws of war
and the protection of civilians cause more unnecessary suffering and that is what we have done is invented a newer and more dangerous way of thinking about it in deference to the protection of civilians. >> the illusion of accuracy. >> if i could just add in. the media cannot cover it. they are not embedded in the drones and cannot get to the site to report on it. so, that is one of the crucial difficulties that comes out of this kind of warfare. go ahead. >> i'm arron o'connell. aron o'connell. my question is this -- one, the propaganda presented by sameer con protected under the first amendment? and two -- >> i'm going to give this one to jack.
[laughter] answer to know the those questions. and i am not familiar enough to the facts. i think the premise for killing that he had an operational role in an associated force of al qaeda and he was directing attacks on the united states. i do not know what other activities he was engaged in, but that was the premise. the premise has been proven to be true based on things that have come out since he was killed. basically what i can say in response to that. >> go ahead. >> i'm an associate professor of history at marquette university. in early august, 1990, i was watching c-span covering an international conference in aspen, colorado, and george herbert walker bush came to the microphone and he condemned to be iraqi invasion of kuwait. and he called it correctly a
violation of international law. he further condemned it in moral and ethical terms, movingly, really. no great power has a right to invade a smaller parower to seize -- the only problem i had was that 7.5 months earlier, the same herbert walker bush had ordered the invasion of panama in which the united states had invaded a small neighbor to seize the main resource, which was the canal. i'm just 13 can you cnn he weighing the for seeable future, anyway the international organizations, the united nations and the world court, can put any kind of constraints on great powers and regional powers either former are violating international law when it comes to starting wars in the future?
it seems as if there is one set of rules of law for smaller nations that can't impose their will or attack their neighbors. and there is another set of violation,ear constant record of routine violations of great powers going to war when they see fit. thank you. is youthing i would say might think of this as an hichple of the way in witc noncompliance produces disillusionment. i hear that in your question. i experienced disillusionment nearly almost every day. but, but when i also hear in your question is that international law is structuring the politics of those episodes because we are talking about it. you are talking about it. the politics are organized around the international law
categories pretty does not mean that the international law will be follow. resistance, defenses of those things are going to happen in the language of the law. which is going to be structuring the episode. that will be disappointing to those who want compliance or non, what it should be uplifting to those who are tempted to be disillusioned. because it is an alternative to the absolute -- that's useful, i hope. >> i am skeptical that international law can constrain great powers when they have powerful interests they want to see carried out in terms of using force. but i will also say that, i do'' t have the exact numbers, but to incidents of using war grab territory has dropped significantly in the last 100 years. there is a debate about that. there is a book coming out in september that argues that law was consequentially noin
that. i will just leave it at that. >> ok. um, you know, we have got about 8 minutes and three questions. so, if it is ok, what would like to do is to make sure everyone gets their question in, why don 't you all speak. please identify yourself and then we will have the panel respond to all of the questions together. >> robert shafer, shippensburg university. one topic that has not come up is war crimes tribunals which have at least originally were seen as wastys to prevent violations of war. do you see any useful purpose for those kinds of tribunals from nuremberg to the hague today? >> hello. i'm from -- the history of science in berlin.
i wanted to bring the question to the 17 century spain. and one of the chapters is a called on -- and letters. that is the title of my paper which will be on the law of the sea, a case in which territory is still the course of law. the main argument that cervantes sepulveda, using cipolla letters, law are supported on war. the main legitimization for war is that without it there is no law. the law of a state needs to be defended by war. and this is 17 century. i suppose that argument has been made many times. it's likely different to what you have been saying. could you please comment on
that/ >t? >> university of texas. i like your description of analysis of what is going on, the idea of the framing of how the framing on the laws going down to bureaucratic levels. my question really is this. i think of the law, and the rule of law is about accountability. when you have been talking about law, it seems there is some administrative law, some statutory law. i'm not familiar with the ball and amendments. -- the baldwin amendments. then constitutional law and international law, geneva and nuremberg. where has been, the rule of law gets back to the government of the governed and of, of, uh, governable society of rule of law, rather than discretionary power. my question is, where have you
seen examples of accountability at administrative levels or statutory levels or constitutional levels? it seems that there is not a whole lot of that. it seems that is a big part of the law. not only i would disagree little bit with simply, i'd say there really is a normative under pinning to it. if not, we say, well, it's the law as simply empowering and we have to disregard the normative aspects. it seems to me that is incredible about how we think of it in a big way it is operationalized through the accountability mechanism. if you talk about the history in recent years? >> and, also, just if you have anything to say to wrap up, this is the time to do it. >> i'll wrap up by telling two stories. one is the story about law ware.
this goes to helen's comments about the frustration of first world political leaders and third world actors -- late 1990's during the sessions at the united nations to negotiate the statute that would create the international criminal court, um, after many years in which the third world delegates, not the term we currently use, but less powerful states, smaller, less powerful states in the global south were systematically getting rolled by the most powerful states, a couple of ngo's came up with a brilliant idea. they went out to yell all school and they found law students and paired them with state delegations. and as their international law experts and send them back to the u.n. conference on the icc. i remember the look of astonishment. i was on the u.s. department of
state delegation at the icc conference. i remember the look of utter stuntman on the faces of my colleagues when the representatives from trinidad and tobago would stand up and say we need the icc to look like this and the person saying this would be a blonde 26-year-old law student. it was incredibly powerful. it suddenly meant that far from the ability of the powerful states which had legions, the u.s. delegation, we had 20 international lawyers. this year from the solomon islands, you do not have 20 international lawyers in the whole place. suddenly the solomon islands had 22. it was a significant part of the story of how the u.s. ended up losing some crucial battles, which perhaps meant the u.s. was not part of the icc. but nonetheless, it is a two edge sword but it proved to be very powerful, in unintended ways. the other story is about accountability and the story about both the reach and the limits of law.
one of the major frustrations of many in the human rights community has been is there was no accountability for the use of waterboarding under the bush administration. nobody is going to go to the icc. nobody is going to get prosecuted outside of the u.s. or inside u.s. i live in alexandria, virginia, a few miles from here. i had some friends who were parents of the, my children's classmates. they told me a story, they lived, their back fence borders the house of david addington viewed by many as one of the chief movers in enabling the use of such techniques as waterboarding. and the parents were very liberal and would talk at the dinner table in front of their giovan of ottawa terrible man david addington was and how he was a war criminal and should be violatedbecause he international law.
one day their children who at the time were four and 7 coptic hopped across the fence and caps on posters up that said you are a war criminal and a jerk, which was created a dilemma for their parents and had to knock on the door and say, we are really sorry. that was not appropriate for our children to do. but people tended not to trick-or-treat at david addington's house, either. what is the moral of the story? i'm not sure. one of the morals that accountability takes many forms. it's structured and shaped by the law. should we feel good or bad about that story? depends on your point of view. but certainly did the law shape the way that family, that neighborhood responded? absolutely. with the go to jail? no. was the law irrelevant? i don't think so. >> let me add on that example.
i'm not sure that this is to your question but i want to build them what you said because so many discussions about accountability as soon that if someone does not go to jail, or end up in court, there is no accountability. i think that is a large mistake. accountability in general is wh en a government is when an actor's behavior is known to another entity with authority to examine and judge that behavior and punish that person if they think, or sanction, if they think that person has acted romawrongly. i think you take the worst example, the interrogation mess. there has been enormous accountability for a lot of people, not only david addington but many people. >> jack played incredibly in mportant role. >> david was my college. we worked together a lot.
but there have been many forms of accountability in terms of various types of punishments. that is been brought to bear on a lot of people that were involved in this program that are still ongoing. here's is the important thing. accountability is not in my judgment just for its own sake. and i think it is a remarkable thing that despite the trump rhetoric that it was never possible we were going to return, once he became president, as he pledged to the bad old days in the early 2000's. from the central intelligence agency perspective, the punishments have been so severe and ongoing for so long and summoned individuals lives have been disrupted that they basically, you speak to anyone lhere, they will ttel tel you, they will not to go close to that. you saw that when trump floated it and the republicans in
congress that no way. i think there has been quite significant accountability for the early interrogation program. .'ll say one more thing if roger criminal trial, it is almost certainly the case they would've been acquitted. in terms of the norms that have developed since then. i think we had extraordinary accountability. i think it had a useful impact. it's a mistake to see accountability in terms of judicial decisions. just follow-up, this question of accountability. there is also an empirical question. a lot of research looking at child pacific, in terms w compliancei, the justise cascade. we do not have something similar in terms of humanitarian law. the questions we have around compliance, if we choose the searching we're still
for the empirical research that would help us to answer those questions. i advocating for." research, it crazy. but i think there is a lot of room for that. that is what they are trying to do with her updating of the roots of behavior in war. these are the kinds of questions that should remain open and we need more empirical research to be able to decide. >> on, at the end of michael walter's haunting just and unjust wars. there is the story of the shaming of arthur harris. he oversees the statistic aerial bombardment in world war ii for the united kingdom. certainstory is about a form and accountability that looks a lot like forms of accountability my panelists have been talking about. arthur harris is prosecuted or put in jail. this is a and british enforcement, he does not get a peerage on the same terms as his friends. the last 15in
years, we have seen shaming much like the shaming of arthur harris, on more american terms. attorney general gonzalez to not get the job he wanted. wandered around for a while looking for a job but we have had shamings of important figures in our last decade and a half. seehould expect to accountability happening in diffuse ways, which is sometimes going to be unsatisfying but happens nonetheless. >> um, i want to jump and again but we are out of time. so, i would just like to thank you so much for coming here and participating in this conversation today. now it is schaefer's 50th birthday and you are invited to the party. come to our reception, and there is cake. first, please help me thank the panel. [applause]
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