Making War More Deadly
The International Committee of the Red Cross, self-appointed guardian of the laws of war, has embarked on an exciting new online project: destroying the very laws it ostensibly seeks to protect. Of course, the ICRC would put it differently; it would say it’s teaching the laws of war. The problem is that the “laws” it teaches aren’t the actual laws of war, as codified in international treaties, but a made-up version that effectively denies countries any right of self-defense against enemies that fight from positions inside civilian populations. And it is thereby teaching anyone unwilling to concede the right of self-defense that the laws of war should simply be ignored.
The website has four sections – “behavior in war,” “medical mission,” “torture” and cultural property.” But the big problem is the first one, which consists of three questions users must answer correctly to receive a “medal of integrity.”
Question number one: “You’re a military commander. The enemy is hiding in a populated village across the front line. Can you attack?” The correct answer, according to the website, is “no.”
This is simply false. The laws of war do not grant immunity to enemy soldiers simply because they choose to hide among civilians, nor do they mandate avoiding any military action that might result in civilian casualties. They merely require that civilians not be deliberately targeted (the principle of distinction), that reasonable efforts be made to minimize civilian casualties, and that any such casualties not be disproportionate to the military benefit of the operation (the principle of proportionality).
The second question was, “What if you know for a fact that many civilians would be killed? Can you attack?” Since the ICRC had already ruled in the first question that attacking populated villages is never permissible, I’m not sure what purpose this question served; it would only make sense if the answer to the first question had been “yes” and this were a follow-up meant to explore the limits of the license to attack populated villages. But let’s ignore that incongruity and examine the question on its own merits.
The ICRC’s answer, of course, was “no.” But the correct answer is “insufficient information.” As noted, the laws of war don’t prohibit civilian casualties as collateral damage of a legitimate military operation. They do, however, require that such casualties not be disproportionate to the military benefit, and the question doesn’t supply the information necessary to determine whether this attack would be proportionate. For instance, how many civilian casualties does “many” actually mean – 10? 100? 1,000? Even more important, what price will your own side pay if it doesn’t attack? For instance, how many of your own civilians might be killed if you don’t stop the enemy’s rocket and mortar fire?
The laws of war were never meant to be a suicide pact; they do not require countries to let their own civilians be slaughtered in order to avoid harming enemy civilians. But in the ICRC’s version, they do. Its website teaches users that military action which harms enemy civilians is never permissible, so all an enemy has to do to slaughter the other side’s civilians with impunity is set up shop among its own civilian population. By that logic, no action should have been taken to stop, say, the Islamic State’s genocide against the Yazidis, because it operated out of populated villages and couldn’t be dislodged without civilian casualties. Is that truly what the ICRC wants?
Incidentally, using civilians as human shields is a war crime in itself, but you’d never guess that from the website. The implication of the ICRC’s questions is that the laws of war actually encourage using civilians as human shields, because doing so buys you immunity from attack under those very same laws.
Before moving to the third question, the website provides the average scores of respondents from 16 countries on the first two. Unsurprisingly, Israel had the lowest percentage of respondents who gave the “right” answers (followed by America). That’s because Israelis, who are regularly attacked by enemies operating from populated villages, understand better than most that the “right” answers would require them to sit with folded hands while their enemies kill them.
This is highly relevant to the website’s third and final question: “The Geneva Conventions, the core of the international humanitarian law, are now 70 years old. Warfare today is very different; does it still make sense to impose limits in war?” The ICRC’s answer, which I agree with, is “yes.” But limits on warfare will gain wide acceptance only if they still allow for the possibility of effective self-defense. If obeying the laws of war requires letting your own civilians be slaughtered with impunity, no country under attack would agree to do so.
That is precisely the danger of the ICRC’s position. The real laws of war set a challenging but achievable goal: reducing civilian casualties to the minimum consistent with effective military action. But the ICRC’s made-up laws set an impossible goal: avoiding any civilian casualties whatsoever, even if this precludes effective military action. Thus any country that engages in military action would end up violating the ICRC’s laws no matter what steps it takes to minimize civilian casualties. And if so, why even bother to take those steps?
Indeed, this very argument has raged in Israel for years now. Despite Israel’s great efforts to comply with the real laws of war – it “met and in some respects exceeded the highest standards we set for our own nations’ militaries,” a group of high-ranking Western military experts wrote in a report on the 2014 Gaza war – it is repeatedly accused by the UN, “human rights” organizations, and world leaders of grossly violating those laws. Hence many Israelis wonder why they should keep making those efforts, which often increase the risk to their own soldiers and civilians, if they get no international credit for doing so.
The ICRC is not only encouraging terrorists to operate from among civilian populations by granting them immunity; it is also discouraging efforts to comply with the civilian protection measures mandated by the real laws of war. In other words, it’s actually making civilian casualties more likely on two counts – and thereby betraying its own humanitarian mission.
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The Red Cross Destroys the Laws of War
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The other last refuge.
Someone in the 19th century (Mark Twain attributed it to Benjamin Disraeli, but that’s dubious) said that there are three forms of lying: lies, damned lies, and statistics. If you would like a beautiful example of the last category of mendacity, check out David Leonhardt’s April 15th column in the New York Times, entitled (try not to laugh) “The Democrats Are the Party of Fiscal Responsibility.”
In it, he compared the deficits run up by each Democratic and Republican administration from Jimmy Carter on to the present with the GDP of that time. Precisely how he did this is anything but clear. Is he, perhaps, confusing the debt with the deficit? For instance, he has the ratio for George H. W. Bush’s term as 0.4 percentage points. But the total deficits in those years were $932 billion and the total GDP was $23.9 trillion. That’s 3.8 percentage points. And how the national debt could double in eight unprosperous years under Obama while the “change in deficit, in percentage points of GDP” went down 0.1 percent is totally mystifying
Thus, Leonhardt committed the cardinal sin of statistics: using obscure methodology, which is the way people lie with statistics—presuming they are not just making the numbers up.
Whatever his methodology, Leonhardt was comparing apples and oranges. For instance, he ignores such factors as the raging inflation of the Carter years, when income tax brackets were not adjusted for inflation, pushing people into higher and higher brackets when their real income had not increased at all (This, of course, was one of the reasons why Carter carried fewer states in 1980 than Herbert Hoover won in 1932).
Leonhardt implicitly ascribed to the president the power to shape the budget and, thus, the deficit. But presidents have been effectively bit players when it comes to federal spending levels since the wildly misnamed Budget Control Act of 1974. It was not Bill Clinton who slew the deficit dragon in the 1990’s but the Congress, which the public transferred to Republican control in 1994 for the first time in 40 years following an outcry over Democratic profligacy. The Republican Congress increased spending by a mere 18 percent between 1995 and 2000, while the roaring economy increased tax revenues by 51 percent.
Nor did Leonhardt take into account the phony accounting the federal government uses to obscure reality. Officially, we ran surpluses (meaning, by definition, that income exceeded outgo) in 1998, 1999, 2000, and 2001. But the national debt went up, not down, in each of those four years.
Nor did he take into account the fact that recessions cause government spending to go up and government revenues to go down—something quite beyond the control of Congress or the President. The brutal recession of the early 1980’s (when unemployment reached 10.8 percent), for instance, skewed Reagan’s numbers while Carter’s four years were largely recession-free.
There’s plenty of blame for both parties, of course. As Jesse Unruh famously said, “Money is the mother’s milk of politics.” But in the last forty years, the only time the federal government made a serious, sustained effort to rein in the deficit was when a Republican Congress was writing the checks.
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The totalitarians’ arguments always end up in the same place
The great shortcoming of democracy is and always has been the demos. John Adams, like many of the Founding Fathers, abhorred the very idea of democracy, precisely because it provided the means to amplify and weaponize the demos and its vices: “It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy,” he wrote in a famous passage. “It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty.” Conservatives of the more pointy-headed variety enjoy taking any occasion to tut-tut loose talk of “democracy,” insisting on “republic.” They may be pedantic on the point, but there is a point: What’s most valuable about the American constitutional order isn’t universal suffrage (a relatively recent innovation for us Americans, though it’s worth appreciating that some Swiss women were not enfranchised until 1990) or regular elections—what’s most valuable is in fact all that great anti-Democratic stuff cooked up by James Madison, Thomas Jefferson, and George Mason and sundry Anti-Federalists: a tripartite government with a further subdivided legislative branch in which unelected senators (oh, happy days!) had the power to frustrate the passions of the more democratic House; a Bill of Rights depriving the demos of the right to vote at all on certain fundamental questions such as freedom of speech and of religion; a Supreme Court empowered to use the law as a cudgel to beat back democratic assaults on liberty and citizenship; the hated filibuster; the holy veto; advice and consent.
The dread of illiberal democracy goes back at least to Polybius and his ochlocracy, and, though he did not use the word, to Plato before him. It was very much on the minds of the American founders and those of later liberal thinkers such as Karl Popper. That democracy might grow abusive and tyrannical in service to popular passions—to “the violence of faction,” as Madison called it—is a very old idea. But a curious version of that concern began to emerge in the early 20th century, most famously articulated by the German political theorist Karl Loewenstein in his “Militant Democracy and Fundamental Rights,” published in the American Political Science Review in 1937. In surveying the European politics of his time, Loewenstein identified a number of remarkably similar totalitarian movements, some of them asserting their fascism and some of them formally opposed to the self-proclaimed fascist parties of their time, the latter a case of ote-toi de la, que je m’y mette, Loewenstein thought. Loewenstein understood fascism not as an ideology but as a method, one that exploited nationalism and newly available forms of media to achieve “a supersession of constitutional government by emotional government.” The parallel with our own time need not be belabored, but Loewenstein is very much worth reading today: “The technical devices for mobilizing emotionalism are ingenious and of amazing variety and efficacy, although recently become more and more standardized,” he wrote.” Among them, besides high-pitched nationalist enthusiasm, the most important expedient, perhaps, is permanent psychic coercion, at times amounting to intimidation and terrorization scientifically applied.”
Fascism, Loewenstein argued, wasn’t about nation, race, corporatist economics, or indeed any positive political agenda at all. “If fascism is not a spiritual flame shooting across the borders,” he wrote, “it is obviously only a technique for gaining and holding power, for the sake of power alone, without that metaphysical justification which can be derived from absolute values only.” Democracies, with their sense of toleration, fair play, equal treatment, liberal access to the political system, and open elections, were in Loewenstein’s view lamentably vulnerable to fascism. His program was to counteract autocratic movements with autocratic means such as prohibiting certain political parties, repressing their political communications, and limiting their participation in the political process in order to prevent them from using campaigns for propaganda purposes. “Democracies withstood the ordeal of the World War much better than did autocratic states—by adopting autocratic methods,” he wrote. “Few seriously objected to the temporary suspension of constitutional principles for the sake of national self-defense. During the war, observes LéonBlum, legality takes a vacation.” An exile in the United States, he named this model of defending liberal democracy with illiberal and undemocratic methods “militant democracy.” Translated into German, streitbare Demokratie is today an important constitutional principle of German government. It forms the philosophical and legal basis for prohibiting neo-Nazi literature and prosecuting extreme nationalists for acts that would ordinarily be unremarkable and unobjectionable parts of democratic discourse, such as holding rallies and giving speeches.
Until quite recently, it would have been unthinkable for the United States to set aside the First Amendment and allow for the suppression of unpopular political speech and the criminal prosecution of the speakers. Americans might have understood why the Germans do things the way they do, and sympathize—and they might even have thought that this was the proper model for the Germans, given their history—but the United States has never experienced a great need for streitbare Demokratie, because the American freiheitlich-demokratische Grundordnung has been robustly defended by other means. Some of those fortifications are structural and constitutional: The limited powers of the federal government and the division of those powers limits autocratic ambitions of all ideological stripes. Some of those fortifications are cultural: George Lincoln Rockwell and Richard Spencer are greeted as amusements, not revolutionaries—grotesques, not messiahs. Every American has a little Puritan in his soul, and the ostentation of fascism historically has achieved very little purchase among us.
Loewenstein did not believe himself to be an advocate of illiberalism or autocracy in an authentic and meaningful way, because what he understood his “militant democracy” as being used to suppress was not a political belief but a political technique. One hears echoes of his idea in the arguments of modern advocates of “campaign finance reform,” the very nice way we talk about suppressing and regulating political speech coming from unapproved parties at unapproved times or in unapproved contexts. They insist that they are not trying to control speech but to control the influence of money on politics—as though it did not cost a great deal of money to publish the New York Times, which exists at least partly for the purpose of influencing politics. (As, indeed, do all newspapers.) But Loewenstein’s idea is ultimately totalitarian (and the world did not and does not need yet another totalitarian ideology of German origin) as is the program of the campaign-finance reformers—as indeed is the program of those who would through legal action or through extralegal violence prohibit Charles Murray from giving a speech on a college campus, those who would ban dissident sermons about gay marriage or the wanton use of unapproved pronouns as “hate speech,” those who advocate the arrest and suppression of activists and scholars with unpopular views about climate change, presidents who threaten to sic the federal regulators on media critics and left-leaning technology companies, mayors who would use the powers of government against nonconformist evangelical chicken-sandwich merchants . . .
The totalitarians’ arguments always end up in the same place: militant democracy. If Ben Shapiro is permitted to speak on a college campus, the argument goes, then the gas chambers can only be a few days away. Well. I would like to go back to Loewenstein’s time—1937—and inform that gentleman, a German Jew in exile, that in anno Domini 2018, the great threats to American democracy are a mild-mannered Orthodox Jew with a newspaper column, a histrionic Kentish homosexual with a book to peddle, and one or two nice blonde ladies from Connecticut. I do not think he would believe that. Neither do I. And, for all the stupidity of our current moment in history, the United States today is not very much like Weimar Germany.
(It remains wise to study the European experience, which you can do if you are in Washington on Wednesday, April 18. The Cato Institute will be hosting the Danish lawyer and social critic Jacob Mchangama at noon in the Hayek Auditorium. Mchangama has done a great deal of work illuminating the idea of “militant democracy” in Europe and its ramifications for free speech in the United States.)
“Militant democracy” is meant to address the purported inability of democracies to contain fascism; a more immediately pressing question is whether liberalism can contain democracy—it is mass democracy itself, not jackbooted stormtroopers, that poses the most dangerous threat to freedom of speech, freedom of conscience, property rights, and other fundamentals of citizenship. It is the democratic mob, not an autocratic elite, that demands conformity in life and thought and speech, and brooks no dissent. Donald Trump’s worst autocratic tendencies are a product of the same kind of hysteria—that very same “supersession of constitutional government by emotional government”—as is the garment-rending and teeth-gnashing that greets Ann Coulter every time she feels the need to step out in public and top up her bank accounts. It isn’t only Trump’s crowds chanting “Lock her up!”
This is not a dystopian possibility at some unhappy future date but the facts of the case today. Robert F. Kennedy Jr. has called for prosecuting Charles and David Koch as traitors and war criminals for their political activities. And it’s not just loose talk and heated rhetoric: The Competitive Enterprise Institute, a free-market think tank, was subjected to subpoenas (including demands for information about its donors) because the nation’s Democratic attorneys general don’t like what its former patron Exxon has had to say about global warming in the past. ExxonMobil remains under investigation for its activism and advocacy on climate change. As attorney general of California, Kamala Harris illegally demanded donor lists from conservative nonprofits for the obvious purpose of subjecting them to political bullying. The IRS harassment of Tea Party groups and the National Organization for Marriage is not a hypothetical—it is history.
The regnant political assumptions of the moment call to mind the worst of the Wilson era, when the risible “fire in a crowded theater” standard was invented as a fig leaf for imprisoning peace activists and draft protesters (and, as in the Baltzer case, those who organized petitions criticizing incumbent politicians), while the cultural currents of the time are pure Red Scare (minus the Reds, who were, alas, all too real). The rough beast, its hour come at last, slouching toward Washington to be born is a democracy a good deal worse than merely militant—it is vicious, merciless, and total.