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Samuel Moyn, From Antiwar Politics to Antitorture Politics, available at SSRN.

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.”  Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos.  When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war.  Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969.  This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare.  Things did change.  Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it.  The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war.  Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer.  Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg.  Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).”

Now these legal arguments were more or less redundant in the face of massive widespread social and political opposition to the war.  Moyn contrasts this with our own times, in which wars that have not relied on the draft (e.g. Iraq and Afghanistan) have elicited little social or political protest, at least in the United States.  In these wars, incidents like Abu Ghraib and the human faces of detainees at Guantanamo Bay have loomed large.  Politically, the fact that there turned out to be no “weapons of mass destruction” in Iraq, the reason George Bush gave for starting that war, was something I recall people cared very much about.  United Kingdom international lawyers expressed their initial opposition to the Iraq invasion in legalistic terms that included an emphasis on going to war in the absence of authorization from the United Nations Security Council.  See the famous letter to the Guardian from March 7, 2003.  This was legal anti-war politics not an anti-torture politics.  Although the very idea of aggressive war sounds antiquated, as Moyn put it in his talk, people do certainly continue to speak in the older language of just and unjust wars (e.g. Michael Walzer’s Just and Unjust Wars: A Moral Argument with Historical Illustrations, which was first published in 1977 with new editions to 2006).  Nonetheless, I think Moyn is correct to say that we have generally moved away from aggressive war.  Consider, by contrast, the central role that the charge played at the Tokyo Trial, sometimes called “the Forgotten Nuremberg.”  Yet it proved to be problematic at Tokyo for the same reason Telford Taylor pointed to in Vietnam, namely, that what looked like Japanese aggression to Westerners and the Chinese, looked to others in South Asia like anti-imperialism and anti-colonialism, a perspective the judge from India on that tribunal voiced strongly in his dissent.  General MacArthur’s decision to charge those defendants (but not the Emperor) when nothing was said or done about Hiroshima or Nagasaki has always looked like the height of hypocrisy, the pure politics of “Victor’s Justice,” as it was often said, especially by the Japanese.  MacArthur felt he needed the Emperor to rule post-war Japan, and the nuclear bombs were what they were.  Most of us in the West grew up being told that they were necessary to stop the war.

As Mary Dudziak has argued in her work and her just published book, War Time: An Idea, Its History, Its Consequences, the United States has been at war almost continuously for as long as anyone who is now alive has been living, and so the idea of war as a time of exception, a time when the ordinarily unacceptable becomes acceptable is utterly untenable.  If war has been normalized in this way, then what will catch our attention is something like Abu Ghraib, i.e. “scandalous news of atrocity.”  War itself seems (tragically) to be a given.  Moyn wants to tell us about the Vietnam War and all the atrocity that was committed there, which found no uptake (legally and politically) until a very late date, in order to make it clear that what went on under the Bush administration post-9/11 was not out of keeping or out of step with the way that the United States has always behaved in its wars.  In fact, what happened in Vietnam was probably worse.  That does not make post-9/11 behavior ok; it does mean that we cannot talk about it or understand it as an aberration.

The broader point about the shift away from the crime of aggression to atrocity in war, Moyn argues, is that it allows conservatives to avoid having to contend with the legal restraints on going to war in the first place, while at the same time encouraging liberals to humanize war without dealing with its basic illegality.  It is true that the executive should not be allowed to torture; however, it should also not be allowed to fight wherever and whenever it wishes.  The focus on atrocity has done some work on us here, including our historical sense.  So, for instance, Moyn points out how we have forgotten that the war crime central to Nuremberg actually was aggressive war.  There may be a story here about the way in which Nuremberg came to stand as a precedent and even a paradigm for the future world in a way that actually became quite difficult to apply to other conflicts, even those as close in time as Tokyo.  Moyn’s paper however would caution against thinking of the crime of aggressive war in that way, challenging us to think about our orientation towards atrocity and torture and what it might be doing to the possibilities of an anti-war politics, not just legal anti-war politics that emanates from international lawyers but political anti-war politics, which rejects going to war in the first place or, to draw on Dudziack’s insight, rejects being at war all the time.  I highly recommend Moyn’s piece.

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Cite as: Angela Fernandez, Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War, JOTWELL (February 6, 2012) (reviewing Samuel Moyn, From Antiwar Politics to Antitorture Politics, available at SSRN),