The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War

Amanda Alexander writes in 2021:

Abstract: This paper reviews a body of recent literature that interrogates the development and deployment of the contemporary regime of political violence. This literature includes Samuel Moyn’s account of the emergence and dominance of the humanitarian paradigm and Francine Hirsch, Giovanni Mantilla and Boyd van Dijk’s diplomatic histories of the creation of the central provisions of this paradigm. It also encompasses Dirk Moses, Benjamin Meiches and Sinja Graf’s examinations of genocide and universal crime, Neve Gordon and Nicola Perugini’s Human Shields, and Yagil Levy’s Whose Life is Worth More? This is a diverse literature but, considered together, it traverses the creation of the legal categories, the cultural values and the ethical concerns that shape the current regime. It shows how these laws and values are created through political and cultural negotiations and how they become, themselves, political mechanisms that erase or legitimize certain forms of violence. By doing so, these works reveal the contingency and dangers of the current paradigm of ethical violence. They also, this review argues, show how difficult it is to escape from this paradigm.

The more rights you have, the less democracy and the less national sovereignty you have. Conversely, the more democracy and national sovereignty you have, the fewer rights you get.

Where do rights come from? The likeliest answers are God, reason, social construction springing from the combination of genes with environment.

Delusional is the best word to describe the dominant human rights paradigm (the left’s agenda made universal).

Before we had human rights, it was taken for granted that the ethical use of violence was whatever violence was necessary to keep your people safe. Your nation was your extended family. The enemy, notes Carl Schmitt, is he who threatens the existence of your nation.

Before we had human rights, Israel’s war in Gaza would not have been considered genocidal. The term was barely used prior to the 1970s.

Chronicles magazine remembers when “you could speak of human responsibilities in the same breath as human rights…and not be derided an as an insensitive fool.” (Culture Wars, pg. 244)

In a June 2, 2015 lecture, Samuel Moyn says: “The humanitarianization of human rights comes at the cost of local, strong and expensive solidarity with distant weak and cheap solidarity. Was it necessary for solidarity with our fellow citizens to wither as solidarity with our fellow humans gains ground?”

Conservatives believe in adjacent rungs of solidarity (first to oneself, then family, extended family, friends, community, and nation) while liberals believe in a leapfrog solidarity that jumps around from the individual in California to, say, oppressed lesbians in Uganda.

Steve Sailer wrote in 2012:

[C]onservatives typically define their groups concentrically, moving from their families outward to their communities, classes, religions, nations, and so forth. …

In contrast, modern liberals’ defining trait is making a public spectacle of how their loyalties leapfrog over some unworthy folks relatively close to them in favor of other people they barely know…

Christopher Caldwell writes in his 2020 book The Age of Entitlement: America Since the Sixties:

In July 2014, Hungarian premier Viktor Orbán lamented the results of the human rights – based liberal democracy that the United States had been spreading ever since the Cold War ended. Under communism in the late 1980s, Orbán had been a fearless defender of what he thought were Anglo – American ideas of liberty, but now he saw that they were subject to a terrible paradox. “ The liberal organisation of society,” he said, “is based on the idea that we have the right to do anything that does not infringe on the freedom of the other party.” That was the basis on which Hungary had been reconstructed in the two decades after the end of the Cold War. And now Orbán sensed a terrible problem at its core:
“Although this is an extremely attractive idea, it is unclear who is going to decide the limits beyond which someone is infringing on our freedom. And since this is not automatically given, somebody must decide it. And since we have not appointed anybody to decide it, what we experienced continuously in everyday life was that the strongest decided. What we continuously experienced was that the weak were trampled over. Conflicts on the acceptance of mutual freedom are not decided according to some abstract principle of justice, but what happens instead instead is that the stronger party is always right.”

Moyn notes the paucity of evidence that [human rights] “have made any difference… The change in sensitivities is enormously important.”

Alexander writes:

War is a cultural artefact. What constitutes war, who is allowed to wage war, which forms of violence are accepted, glorified or abhorred, are shaped within particular societies. The rules governing warfare reflect and reinforce the cultural conception of warfare.

The contemporary ideal of acceptable warfare is a carefully regulated, humanitarian war. A good war should be carried out in a way that is “clean,” precise, sparing of civilians and even combatants. The purpose of war should be to protect the weak and control the violent. Genocide and crimes against humanity are the ultimate transgressions in this paradigm of warfare; humanitarianism and the protection of civilians are the best justifications.

The ubiquity of war indicates that it is also biological. Different forms of life struggle for survival. You don’t find in nature multiple sub-species living in harmony with each other. One thing you do find in nature is niche construction – organisms change their environment to make it more suited for their thriving. The best interest of one organism, however, often clashes with the best interest of other organisms. Eucalypti, for example, emit chemicals that make it difficult for other plants to grow underneath its branches. Report: “Eucalyptus may contain allelochemicals that negatively affect nearby plants by inhibiting growth and seed germination. A study of Eucalyptus camaldulensis (Dehnh) in California found that there was a zone of limited growth surrounding the woodlot.”

Report: “Lemon ants use formic acid (a chemical fairly common among species of ants) as a herbicide. By eliminating trees unsuitable for lemon ant colonies, these ants produce distinctive habitats known as Devil’s gardens.”

Cultures that don’t wage war effectively die out. The Stanford Encyclopedia of Philosophy entry on pacifism notes: “The absolute ideal is nearly impossible to achieve because we must harm other beings in order to survive: we must kill in order to eat.”

Our close relatives, the chimps, also wage war. Netflix released the documentary series Chimp Empire in 2023 and then published this note about what happened since the end of filming:

Who is the new Central Ngogo alpha?

Yes, the king has fallen: Jackson, leader of the Central group, died at the end of the final episode as a result of injuries he suffered fighting enemies in the Western group. And he’s left behind more of a void than you might realize.

We saw Abrams, the younger, cocky would-be alpha, at least tentatively assume Jackson’s place by the end of the season. But Abrams’ position is anything but secure…

Abrams’ hold on the top spot is tenuous because he has been unable to form strong ties to other males who can support him.

…As any reality show viewer knows, friendships and alliances can change in an instant. This is as true in other primates as it is in humans. “Chimpanzee social relationships change,” Mitani says. “Today’s friend can easily become tomorrow’s foe. And not all budding relationships come to fruition.”

While it may well be that the “contemporary ideal of acceptable warfare is a carefully regulated, humanitarian war” — ideals diminish when a group fights for it survival. Wars escalate and overwhelm ideals.

Every individual has a hero system and he usually gets it from his community. It is this hero system that determines “which forms of violence are accepted, glorified or abhorred.”

Insults to a hero system may be experienced as keenly as assaults to a body.

The contemporary ideal of war described in the last Alexander paragraph bears almost no relationship to reality. This is not an obstacle to enthusiasm for human rights, however, for it is the utopian nature of human rights that makes them so exciting. Here is a crusade that produces amazing feels even as it relieves next to no suffering in the real world.

Like human rights activists, evangelical Christians also have a utopian ideal. They dream of the world coming to Christ. These two vision receive no support in reality, but that does not diminish their emotional power.

I too have a vision. I’d like to build a world a home and furnish it with love, grow apple trees and honey bees, and snow white turtle doves. I’d like to teach the world to sing in perfect harmony. I’d like to hold it in my arms and keep it company. I’d like to see the world for once all standing hand in hand and hear them echo through the hills for peace throughout the land.

I also have a vision of sex with unlimited numbers of nubile women. You might call me a dreamer, but I’m not the only one.

So why do visions of unlimited sex and the whole world coming to Christ receive no respect from our ruling elite but visions of clean wars command respect? Hero systems, my dear boy, hero systems.

There was a moment of optimism about this ideal and its apparent translation into reality at the turn of the century. Yet this optimism was soon tinged with a deep unease. Hopes for peace and civilized interventions5 were followed by decades of “endless war.” Violence persisted, both in more fantastical and more subtle forms: torture, beheadings, human shields, drone warfare, surgical strikes and global policing.

There was a moment of optimism among those possessing a certain left-wing hero system (the one focused on human rights and international humanitarian law). Outside of this hero system, there was no such optimism for the disappearance of violence. Realists, for example, don’t believe in progress in international relations.

If you don’t believe in progress, you can’t believe in human rights. If you don’t put the individual first, you can’t believe in human rights.

In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:

My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”

[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.

Human rights is a peculiarly left-wing obsession. I can’t think of any important human rights actors who are right-wing. People on the right don’t tend to be individual-first. They understand that states are the actors in international relations.

We’re all stuck in an iron cage together and nobody is coming to rescue us. The international system is anarchic. The best way to survive is to become as strong as possible, which simultaneously makes your neighbors feel less secure.

Alexander writes: “An impressive body of literature has emerged over the past couple of years that interrogates the development and deployment of the contemporary regime of war.”

This is an impressive body of literature for those who share its left-wing hero system. For those who don’t, much of this literature is silly. Samuel Moyn, for example, believes that war should be illegal. Good luck with that! I’d like to teach the world to sing in perfect harmony.

Alexander writes:

…this literature covers the creation of the legal categories, the cultural values and the ethical concerns that shape the current regime. It shows how these laws and values are created through political and cultural negotiations and how they become, themselves, political mechanisms that erase or legitimize certain forms of violence. By doing so, these works reveal the contingency and dangers of the current paradigm of ethical violence. They also, I will suggest, show the difficulty of trying to escape from this paradigm.

It’s easy to reject this paradigm if you reject the left-wing hero system that underlays it. It’s hard to escape this paradigm if your job, income, and social standing depend upon acceding to it. You can’t expect somebody to understand something if their income depends upon not understanding.

When Alexander uses the word “regime,” I presume she means the delusional human rights regime. This entity has almost nothing to do with the way states operate in the real world with regard to violence. When states struggle to survive, they are not terribly handicapped by “the legal categories, the cultural values and the ethical concerns that shape the current regime.” When you fight for your life, you don’t give a damn about left-wing utopias.

All the works covered in this review unsettle the current paradigm of ethical violence by examining the construction of its various components. Francine Hirsch, Boyd van Dijk and Giovanni Mantilla do this by using extensive archival research to reveal the negotiations and compromises that shaped some of the most pivotal legal categories and rules of the contemporary regime of violence. Hirsch’s Soviet Judgment at Nuremberg focuses on the Nuremberg Trials. Hirsh shows the influence of Soviet thought and Soviet jurists on what is often depicted as the most fundamental moment in the liberal paradigm of international humanitarian law, international criminal law, and indeed the whole modern ethics of violence.

It’s easy to unsettle paradigms that bear no connection to reality. For example, you don’t need extraordinary intellectual effort to point out that Kim Kardashian is naked in her sex tape. So too you don’t have to burn many calories to show that “the current paradigm of ethical violence” is absurd and unworkable. You do need to burn a few calories however to point out that the unworldly nature of human rights is precisely the source of its appeal (by being unworldly, you reduce the chances of getting disillusioned, which is what has happened to those who pursued previous left-wing utopias).

Many upper middle class husbands I know fund their wives’ businesses that lose money. Why would they fund a losing business? Because a happy wife means a happy life. So you give her money to do her jewelry design, yoga teaching, novel writing, thought leading, Alexander Technique teaching, environmental consulting, and the like so that she feels fulfilled. You give her money so she can get the feels she needs to keep up her wifely duties. That her business doesn’t make money doesn’t matter because the point of her jewelry design and thought leading is not to make a difference in the real world, the point is to indulge her feelings.

Similarly, the point of international humanitarian law and human rights is to stimulate delicious feelings among its adherents that they are doing something exciting and prestigious.

In the novel Middlemarch, the lead character Dorothea Brooke is obsessed with designing cottages for poor tenants. Notes Wikipedia: “Dorothea is an especially pious young woman whose hobby involves the renovation of buildings belonging to the tenant farmers, although her uncle discourages her. Dorothea is courted by Sir James Chettam, a man close to her own age, but she is oblivious to him. She is attracted instead to the Rev. Edward Casaubon, a 45-year-old scholar.”

Sir James Chettam is happy to indulge Dorothea Brooke’s passion for cottages in exchange for romance, just as heterosexual men today are usually happy to listen to a beautiful woman prattle on about human rights if it means they increase their chances of getting her into bed. In my experience, these women become furious when they learn the score so instead they usually prefer to avoid painful reality. They think he really cares for her insights into social justice when he’s primarily interested in fondling her breasts.

Human rights is a utopian scheme that keeps thousands of left-wing women (and womanly men) in the delicious feels they need to be happy and fulfilled. It’s a passion that removes them from the real world where they might make mischief. It’s an indulgence. Some people play video games, other people do marijuana, and other people do human rights. These are all just different ways of checking out.

Academics love the word “contingent.” Contingentmagazine.com notes:

…fancy word for how any given historical event is dependent on a multitude of interrelated factors. No event has a single cause. Thomas Andrews and Flannery Burke offer this explanation in a 2007 essay: “To argue that history is contingent is to claim that every historical outcome depends upon a number of prior conditions; that each of these prior conditions depends, in turn, upon still other conditions; and so on. The core insight of contingency is that the world is a magnificently interconnected place. Change a single prior condition, and any historical outcome could have turned out differently.”

Academics also love the word “problematic.” I wrote recently:

“Problematic” is a favorite word among academics but they feel insulted and retreat into silence when you ask them to describe their hero system that renders so much of reality “problematic.” According to the Merriam_Webster dictionary, the third meaning of “problematic” is “having or showing attitudes (such as racial prejudice) or ideas (such as falsehoods) that are offensive, disturbing, or harmful.”

Racism is a made up moral category that had no currency until the 1960s. Somehow all the great moral thinkers throughout history prior to the 20th Century had no concern about this great evil.

If academics had the strength of their convictions and weren’t afraid of owning up to having a subjective partisan hero system just like everyone else, they’d just say “bad.” But talking about good and bad sounds Christian, so academics pretend to have transcended partisan hero systems, which is impossible.

When academics won’t admit distress because their subjective hero system has been violated, what do they do? As human beings, they must lash out at an offense, but they won’t fight back in a way that is true, raw and vulnerable (a la how American conservatives do when somebody desecrates their nation’s flag), so instead they subjugate their impulses to reference good and evil, and instead employ the careful language of the courtier cocooned in his buffered identity.

Alexander writes:

Humanitarian warfare, Moyn shows, is an idea that has been toyed with since the nineteenth century, but only really took precedence as the dominant ethical paradigm in the late twentieth century.

Meiches, Moses, Gordon and Perugini, and Levy focus on particular aspects of this paradigm of violence. Gordon and Perugini look at the function and problem of human shields in this paradigm, while Levy explores the ways in which democracies create hierarchies of death that come to legitimize the use of force against civilians. Meiches and Moses examine genocide – the archetypal crime in the current paradigm of violence. They show how genocide was first created, and then negotiated and renegotiated as a
concept. They also reveal the more problematic aspects of these discourses and the political implications of genocide.

The aim and effect of these works is to destabilize what is variously described as a “cosmopolitan,” “liberal” or “progressive” account of the contemporary paradigm of violence. That is, an account that regards the current legal structures as enlightened, humanitarian, and progressive, and sees genocide and crimes against humanity as ahistorical, universal crimes that warrant intervention.21 The new literature disturbs this image by demonstrating the contingency of the current rules and concepts. It shows that these rules were created by particular actors, movements and discourses. As a result, it exposes the politics that inform the ethics of violence.

The straightforward historicization of the laws and values of the contemporary paradigm is an effective way of showing their contingency and political nature, even without any overt gloss. Hirsh’s history of the Nuremberg Trials decentres the liberal, triumphant Western account simply by demonstrating the importance of Soviet jurists and Soviet thought in shaping the Nuremberg principles. Soviet Judgment at Nuremberg replaces the traditional, Western fixation on Robert Jackson as the main protagonist of the trials with a detailed account of Trainin and Vyshinsky’s motivations and contributions. Hirsh emphasizes that the Nuremberg principles were political as well as humanitarian; they were created, negotiated, and deployed for particular ends. As Hirsch says: “The full story of Nuremberg confronts us with two awkward truths: illiberal authoritarian states have at times positively shaped international law, and international justice is an inherently political process.”

“Positively shaped” is a fancy phrase for “more aligned with my hero system.”

There’s no evidence that liberal democracies are a force for peace. John Mearsheimer wrote in his 2018 book The Great Delusion: Liberal Dreams and International Realities:

The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities — state and interstate. They evoke hope and provoke action.”

…Since there is no world state, there is no higher authority in the international system to which countries can turn when another state threatens them. That simple fact of life, coupled with the fact that liberal democracies are not always tolerant, respectful, and peaceful toward each other, means they must worry about their survival even when dealing with other liberal democracies. Once this logic is at play, they have no choice but to engage in balance – of – power politics with each other.

…The United States, for example, has a rich history of toppling democratically elected governments, especially during the Cold War. The more prominent cases include Iran in 1953, Guatemala in 1954, Brazil in 1964, and Chile in 1973. Following the January 2006 Palestinian elections, in which Hamas defeated the U.S. – supported Fatah, the United States and Israel (another democracy) moved to destabilize the new government and marginalize Hamas. They treated Fatah as the legitimate representative representative of the Palestinian people, even though it had lost the election. The United States, as we saw, also played a role in toppling the democratically elected Muslim Brotherhood in Egypt in 2013. “The record of American interventions in the developing world,” Sebastian Rosato notes, “suggests that democratic trust and respect has often been subordinated to security and economic interests.”

Perhaps the most damning evidence against the case for liberal democratic norms is found in Christopher Layne’s careful examination of four cases where a pair of liberal democracies marched to the brink of war, but one side pulled back and ended the crisis. He carefully examines the decision – making process in both Britain and the United States during the 1861 Trent Affair and the Venezuelan Crisis of 1895 – 96, the Fashoda Crisis between Britain and France in 1898, and the 1923 Ruhr Crisis involving France and Germany, and convincingly argues that liberal norms had little to do with settling these crises. There was substantial nationalist fervor on each side, and all four outcomes were primarily determined by strategic calculations involving the balance of power.

A final, albeit indirect, reason to doubt that liberal norms carry much weight in international politics is that there is little evidence that liberal democracies fight wars in especially virtuous ways. Given the emphasis liberalism places on inalienable rights, one would expect liberal democracies to go to some lengths to avoid killing civilians, or at least do better than authoritarian states. This is one of the central tenets of just war theory, a quintessentially liberal theory that has individual rights at its core. Michael Doyle, for instance, urges that all sides in a conflict maintain “a scrupulous respect for the laws of war.”

But when Alexander Downes did his groundbreaking study of civilian victimization in war, he found that “democracies are somewhat more likely than nondemocracies to target civilians.” John Tirman shows in his detailed analysis of how the United States fights its wars that it has killed millions of civilians, many on purpose. And although Geoffrey Wallace shows autocracies are more likely than democracies to abuse prisoners of war, he provides plenty of evidence that democracies mistreat their prisoners. The widespread use of torture by the United States in the wake of 9/11 is just one example. Both Downes and Wallace show that when states get desperate in wartime, they quickly forget the enemy’s humanity and begin to value rights far less than effective fighting. Liberal democracies are no exception.

…The universalist strand springs from liberalism’s deep – seated commitment to individual rights. There are no boundaries or borders when it comes to human rights: they apply to every person on the planet. To be clear, the claim is not that individuals should have those rights but that all people axiomatically do have them. There are no meaningful limits to our ability to reason when it comes to comprehending rights.

…Political elites in the United States, [Rogers] Smith argues, “require a population to lead that imagines itself to be a ‘people,’” which is another way of saying a nation. He emphasizes that conceptions of peoplehood, which are particularist at their core, are at odds with liberalism’s emphasis on “universal equal human rights.”

…liberal hegemony provides the foreign policy elite with many attractive career opportunities, since trying to dominate the globe is a labor – intensive enterprise. Finally, that elite is likely to think it has the know – how to interfere effectively in the politics of other countries. This combination of perceived benefits and faith in the ability to realize them invariably leads powerful liberal states to pursue liberal hegemony.

The prominence that liberalism accords to the notion of inalienable or universal rights means that a foreign policy based on liberal principles requires careful monitoring of other countries’ human rights performance. When the rights of foreigners are threatened, a powerful state pursuing liberal hegemony will likely feel compelled to intervene to protect the rights of those individuals. That state is apt to conclude that the best way to ameliorate, even eliminate, the threat to individual rights is to make sure that as many people as possible live in a liberal democracy, where respect for individual rights is of great importance. This logic leads straight to an active policy of regime change aimed at toppling autocracies and replacing them with liberal democracies.

…Clausewitz’s famous dictum that war is an extension of politics by other means does not apply in a liberal world, because liberal states do not consider war a legitimate way of settling their disagreements. Yet war remains an acceptable instrument for protecting human rights abroad and for spreading liberal democracy around the world. Doyle points out that liberal democracies are inclined to wage wars against non – democracies with “imprudent vehemence.” For liberals, as R. H. Tawney notes, “war is either a crime or a crusade. There is no half – way house.”

…John Mueller notes: “Although Americans are extremely sensitive to American casualties, they seem to be remarkably in sensitive to casualties suffered by foreigners including essentially uninvolved — that is, innocent — civilians.” John Tirman, who has done a major study on this subject, concurs: “One of the most remarkable aspects of American wars is how little we discuss the victims who are not Americans.” Of course, this kind of thinking is not peculiar to the United States. All nations think this way, and it cuts directly against liberalism’s universalist dimension.

…Liberals…emphasize that rights apply equally to people everywhere. They talk about human rights, not national rights, and the former trump the latter.

…Modern liberalism appears to have a more relaxed attitude toward sovereignty than either nationalism or realism. In the liberal story, state borders are soft and permeable, because rights transcend those boundaries, meaning not only that people living in different countries have deep ties and common interests but also that liberal states have the right and responsibility to intervene in other countries’ affairs if they violate their citizens’ rights. Norms about individual rights overshadow the norm of sovereignty in a world of liberal states.

…One of liberalism’s core missions is to protect people whose rights are being seriously violated. The urge to intervene in other countries is especially powerful when large numbers of those foreigners are being killed. This undertaking is clearly reflected in Responsibility to Protect (R2P), a norm that grew out of the failure of the so – called international community to prevent the Rwandan genocide in 1994 and the Srebrenica massacre in 1995. 2 R2P mandates that states have a responsibility not only to protect their own populations from serious human rights violations like ethnic cleansing and mass murder, but also to protect people in other countries from these crimes. In essence, nations are told to be on the lookout for major human rights abuses around the globe and, when they arise, to move quickly to stop them. A powerful liberal state with the military wherewithal to intervene in such circumstances is strongly encouraged to go to war to protect the victims.

This task of defending individual rights easily morphs into the more ambitious strategy of removing the source of the problem by actively promoting liberal democracy in other countries.

…A liberal unipole is unlikely to use military power to protect individual rights or foster regime change in a major power, mainly because the costs are too high. Nevertheless, it is likely to interfere in that country’s politics in other ways. Its tactics might include relying on nongovernmental organizations (NGOs) to support support certain institutions and politicians inside the target state; linking aid, membership in international institutions, and trade to the major power’s human rights record; and shaming the target state by publicly reporting its human rights violations. This approach is unlikely to work, however, because the major power invariably views the liberal power’s behavior as illegitimate interference in its internal affairs. It will think its sovereignty is being violated, causing the policy to backfire and poisoning relations between the two countries.

Alexander writes:

The contribution of the Soviet Union to what is usually considered a liberal story of international humanitarian law is also noted by Mantilla and van Dijk.25 Van Dijk argues that the Soviets were important in supporting some of the more protective elements in the 1949 Geneva Convention IV; he states that Pilloud later admitted privately that he “hardly dared to think what would have become of the Civilian Convention without the presence of [the Soviet] delegation.”

Mantilla and van Dijk agree that the Soviet Union played a critical role in introducing common article 3 into the 1949 Geneva Conventions. Common article 3, which provides some minimal protection in non-international armed conflicts, is now regarded as an essential element of the structure of modern international humanitarian law. While most Western states at the Diplomatic Conference sought to limit any recognition for colonial or civil wars, the Soviets pressed for their inclusion in the Geneva Conventions.

The Soviet Union also sought to incorporate the principles of national self-determination and decolonization in the Conventions. This approach may, Mantilla and van Dijk acknowledge, have been motivated by political considerations and a desire to encourage communist uprisings.29 Yet, whatever the motivation, the Soviet strategy forced reluctant Western delegates to engage with the Soviet proposals.30 Even the British delegation, which was the most opposed to the recognition of non-international conflicts, was sensitive to being regarded as “backward, decaying and legalistic.” And, even though Western delegates ensured that the final article was deliberately ambiguous and limited in effect, Soviet pressure meant that there was a common article 3. This article, van Dijk states, would act as the herald for a legal revolution whose impact would grow, an asset for anti-colonial struggles and a guideline in modern terrorist conflicts.

“Backward” is bad from a progressive point of view but is a good thing from a traditional point of view. You can’t have a legal system without being, at times, “legalistic.”

It’s not just “international justice” that is political, all justice is political. Justice depends upon one’s hero system. That justice being political is awkward is only true for those with a worldview far removed from reality. For people who respect reality, being removed from reality is awkward.

That protecting guerillas against the state is a good thing depends upon one’s hero system. The Soviets wanted to incentive revolution against states that weren’t aligned with the Soviet Union. They had no interest in protecting revolutionaries fighting communism. The contingent nature of Soviet support for non-state fighters is an obvious point not noted in Alexander’s essay.

Alexander writes:

Van Dijk emphasizes the messiness of the negotiations; this was not a reflective, scholarly process:

“The drafting process resembled less an ivory tower, in which blueprints are conceived in splendid isolation, than a political arena, in which actors contemplate and struggle over different proposals and the stakes are often impossibly high.”

The stakes were impossibly high in the fantasy lives of these utopian schemers. I may have once or twice dreamed about romancing swimsuit model Kate Upton but I don’t think many academics would publish that the stakes in my yearnings are “impossibly high.” I have as much of a chance at dating Kate Upton as human rights activists have of achieving their dreams but my dreams get no respect while the dreamers of international humanitarian law get money, jobs and prestige.

I have had as much success at stopping Vladimir Putin as all the human rights activists in the world combined — zero. Why aren’t we accorded equal respect? We have identical records of accomplishment.

Singlehandedly over the past decade, I have been as effective at stopping human rights violations as all human rights activists combined and yet I am just a blogger and they publish in the New York Review of Books! Why? Because they have a worldview that is aligned with power in the halls of cultural production and I don’t.

Alexander writes:

Mantilla makes the point even more bluntly, describing international law as a product of politics in historical context. The politics that Mantilla describes, however, are not just the interests of states. Rather, Mantilla’s aim is to show how states are persuaded to adopt rules that do not appear to be in their interests. Mantilla uses methodologies from historical sociology and social psychology to explain this process. He builds on the work by Keck and Sikkink on the naming and shaming strategies of transnational advocacy networks, to show the influence of social pressure and social opprobrium on the development of international law. Mantilla adds to this approach a detailed examination of the peculiar dynamics within an insular diplomatic forum, suggesting that shame created by diplomatic isolation increases the chances that those put under pressure will acquiesce to changes in the law – “albeit grudgingly and strategically.” This is a fascinating and important contribution to the understanding of international lawmaking. And it shows, again, that the construction of international law can be a very human process, and one influenced by the specific feelings and decisions of particular actors.

When has international law stopped the United States from doing what it wants? In a few isolated examples of little importance.

When people play the board game Risk, there sometimes arise shaming networks that discourage actors from certain actions. Board games and international law create wonderful opportunities for certain personalities to play the big shot. In the end, though, the strong take what they want, and the weak endure what they must, and international law makes very little impact on this law of nature.

Alexander writes:

Thus, these detailed excavations of the archive emphasize the role of individual actors, compelled by personal, philosophical, and political motivations, in creating the provisions of international law. The other works in this body of literature are also extremely effective in showing that the concepts of ethical and criminal violence in the current paradigm are contingent and political, but they do so using different methodologies and sources. Many of these works emphasize the influence of philosophical, social and cultural discourses as well as the contribution of individuals.

In other words, our dreams are affected by what happens during our waking hours.

If we want to strut on the world stage of human rights international law, we would do well to consider which narratives are winners and which narratives are losers.

Alexander writes:

As Graf’s term “universal crime” makes explicit, the concept of genocide as the archetypal crime in the current paradigm is a particular, historically situated understanding of criminal violence. Graf and Moses show this through their accounts of alternative understandings of universal crime or, in Moses’ words “languages of transgression.” Moses demonstrates that in the past, the language of transgression captured a much wider range of activities, including economic and political oppression.40 Moreover, both Graf and Moses are able to show just how closely these standards are tied to their time and how poorly ideas of crime and ethical behaviour translate across historical periods. Graf does this by pointing out that Locke employed an idea of universal crime to justify English ownership of property in America, while Moses shows how population exchanges were linked to prevailing ideas of rights.

I used to hear the words “rape” and “genocide” and feel mad about this fallen world. Starting in the 1990s, however, I’d hear those terms and wonder who’s trying to pick my pocket.

Both Meiches and Moses note the role of Lemkin and the personal and intellectual background that inspired him to conceive of a crime of genocide. This crime, in Lemkin’s conception, was much broader and more subjective than later renderings. For Lemkin, genocide encompassed actions leading to the destruction of the national pattern of a group. The group was variously described as a people bound together by imagined relations or sharing a national spirit. It was not, as Meiches says, an objective status.

The translation of Lemkin’s crime of genocide into the United Nations Genocide Convention was, as these works show, the result of a contingent constellation of events and political manoeuvering. Moses argues that the restrictions placed on crimes against humanity at the Nuremberg trials meant that a coalition of religious organizations, thinkers and smaller states sought to find a way to criminalize such acts. The creation of the United Nations provided a forum for this. In an interpretation that resonates with Mantilla’s approach, Moses states that the great powers were ambivalent about genocide but did not want to be seen to thwart the United Nations consensus embodying “international conscience.”50 Instead, they engaged in negotiations to ensure that the Convention would not inhibit or delegitimize their own military or colonial practices. Thus, these works show that, as with the other foundational documents of the humanitarian
paradigm, the codification of the Genocide Convention was influenced by political
considerations. The result was a progressively more limited codification of the crime and its victims. In place of Lemkin’s range of genocidal actions, the Genocide Convention was narrowed down, in Meiches’ argument, to a “ban on killing.”

The negotiations, as is well known, also limited the groups who could be victims of genocide to religious, national, racial and ethnical groups. Lemkin’s conception of peoples was discounted, and linguistic, cultural and political groups were excluded.

Most forms of life, and most nations, go extinct. Life and nations must fight to survive. If wiping out an opposing life is necessary for your life to be safe, this happened without regard to international law, and it will keep happening in the future without regard to international law (unless powerful state actors intervene, presumably to pursue their own interests).

Due to human rights agitation, the term “genocide” is now primarily deployed as a rhetorical tool to attack your opponents. Was it always this way?

The more open and subjective the definition of genocide, the easier it is to enlist it in your particular cause.

There’s a saying that there is no business like Shoah business. Similarly, there’s no business like genocide business. It provides jobs and prestige for thousands of people.

Michael Hirsh writes for ForeignPolicy.com May 7, 2024:

So why are so many observers putting the worst possible face on the conflict?

In an interview with Foreign Policy, [Randall] Schweller said that when he first entered the academic job market in 1993, just after the collapse of the Soviet Union, international security (IS) studies were fizzling fast. Now, they’re hot again.

“Promoting the idea of Cold War 2.0 definitely promotes the careers of IS scholars,” Schweller wrote in an email.

Just as International Security scholars are incentivized to hype dangers that require their expertise, so too genocide scholars are incentivized to hype genocides to create more jobs, income and prestige for their group.

Amanda Alexander doesn’t take claims at face value, and instead she examines the situations and narratives that produced the claims. For example, the contemporary idea that genocide is the greatest of all evils is the product of particular contingencies.

Raphael Lemkin achieved fame by inventing the crime of genocide but it is easy to invent crimes. What’s tough is to enforce punishment of crimes, and that essentially is only done by states. Human rights have great fantasy value but little real world meaning outside of the rights enforced by a particular state. I can draft the greatest players in the NFL for my fantasy team but that will not get me influence in the NFL. The fantasy and the reality in football and in rights have almost nothing to do with each other.

The invention of the crime of genocide did nothing to reduce genocide, but it did create thousands of jobs for people who wanted to pontificate about genocide. The invention of international human rights and international humanitarian law did nothing to increase international human rights, but it did create jobs for thousands of people to pontificate about such rights.

Fantasy sports are often an obsession among the masculine just as fantasy human rights are often an obsession among the feminine. Some people get off to fantasies about Kate Upton and other people get off to fantasies about the end of war. Whatever the direction of your love map, I salute you for keeping a grip on things.

There is no international conscience because people do not agree on right and wrong.

Nations support human rights and international law only when that accords with their interests and hero systems just as individuals obey the law when they feel like it (or when feel they can’t get away with breaking it).

How much has the Genocide Convention’s ban on killing reduced killing?

Just as a stiff prick has no conscience, a vital national security interest has no conscience either. In a state of emergency, rights go out the window.

Here are some highlights from a 2010 paper in the Minnesota Law Review by two Yale University law professors, Sanford Levinson and Jack M. Balkin:

* If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution.

The opposition between democracy and dictatorship, however, is greatly overstated. The term “dictatorship,” after all, began as a special constitutional office of the Roman Republic, granting a single person extraordinary emergency powers for a limited period of time. “Every man the least conversant in Roman story,” remarked Alexander Hamilton in The Federalist No. 70, “knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator” to confront emergencies caused by insurrection, sedition, and external enemies. No political constitution was well designed, Hamilton believed, unless it could confront emergencies and provide for energetic executive powers to handle them.

Under this view, dictatorship-the power of government officials to act on important matters free of accountability or timely legal checks-is not the opposite of democracy-or what our Constitution calls a “Republican Form of Government.” It is an institutional feature within constitutional democracies that can and should be employed to perform valuable civic functions. From this perspective, “dictatorship” becomes-as it was in the early Roman Republic-a term of description rather than a term of opprobrium. It refers to institutions and powers of emergency government that constitution makers might establish to serve the public interest. Indeed, if the institutions are properly designed, “dictatorship” might even have positive connotations-think only of the praise heaped on the legendary Cincinnatus.

* Carl Schmitt offers perhaps the most chilling analysis of all. Although he recognizes the possibility of commissarial dictatorships, where the ultimate goal of dictatorship is restoring the status quo, he assumes that elements of the sovereign dictatorship always lurk in the background, waiting to emerge and to transform any existing political order. No matter how well designed a constitutional system might be, the true sovereign will always be able to escape the confines of that design and make exceptions to it.

* Emergency, or at least claims of emergency, are the standard cause and the standard justification for creating dictatorships.

* Machiavelli argued that republics should plan for emergency allocations of power in advance. Does the American constitution meet Machiavelli’s test? Does it adequately build the possibilities of emergency into its design, to avoid the dangers of inertia, impotence, and deadlock yet still preserve republican government? Recall Chief Justice John Marshall’s famous statement in M’Culloch v. Maryland that “[the] constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Notably, the word “crises” is italicized in the original opinion. Nevertheless, the text of the American Constitution is remarkably devoid of specific clauses that give government officials emergency powers. The most relevant example is the Suspension Clause, which allocates to Congress (contra the views of Abraham Lincoln) the power to suspend the writ of habeas corpus, but only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Moreover, the Suspension Clause says nothing about other kinds of dangers, for example economic meltdowns, fires, floods and hurricanes, or even the invasion of a drug resistant virus. Nevertheless, constitutional emergencies may arise from many different sources.

* The first decade of the twenty-first century has made us all too aware of the various dangers that can plague our social orders; even the cost of terrorist attacks may pale in comparison to the damage wrought by tsunamis, hurricanes, earthquakes, or dangerous viruses. Thus in 2009, the President of Mexico, Felipe Calderon, placed the entire country under a “state of emergency” because of the potential swine flu pandemic. As John Ackerman, chief editor of the Mexican Law Review has explained, this serves to: “concentrate political power in his hands…. [President Calderon] has authorized his health secretary to inspect and seize any person or possessions, set up check points, enter any building or house, ignore procurement rules, break up public gatherings, and close down entertainment venues. The decree states that this situation will continue ‘for as long as the emergency lasts.’. . . This action violates the Mexican Constitution, which normally requires the government to obtain a formal judicial order before violating citizens’ civil liberties. Even when combating a ‘grave threat’ to society, the president is constitutionally required to get congressional approval for any suspension of basic rights. There are no exceptions to this requirement.”

Ackerman notes that Latin America has a “long history of using states of emergency as ploys to … return to authoritarianism.”

* Nikita Khrushchev paid for his commendable caution [regarding the Cuban Missile crisis] with his job, which suggests a degree of accountability that made the Soviet leader significantly less of a full-scale dictator than most Americans assumed.

* John Yoo, the author of the notorious “torture memos,” has argued that, despite American objections to King George III, the President still enjoys the powers possessed by the English monarch at the time of the American Revolution. Although Parliament retained the powers of the purse, Yoo explains, the King possessed unbounded discretion over the use of military force.

* Schmitt’s “sovereign” is the person who can successfully define something as a “crisis” and then basically do whatever he or she thinks necessary to meet the crisis.

Alexander writes:

Meiches notes that delegates asserted the importance of only protecting stable, “objective” groups – without justifying why these groups were considered to be objective.

The result was to restrict the concept of genocide,56 both politically and conceptually. It meant that if a state was carrying out a political action or responding to domestic opposition, its acts would not be considered genocide. Nor could a state’s management of many minority groups be classified as genocide. Conceptually, it meant that genocide would be imagined as a racially inspired hate act that resembled the Holocaust. The victims of genocide could not be political actors in any way; they would have to be innocent and agentless victims.

Both Moses and Meiches note that the idea of genocide receded in political discourse
soon after the conclusion of the Genocide Convention. Then…

“[B]eginning in the 1970s, a series of changes prompted a resurgence of the concept of genocide. These changes included, but are not limited to, the rise of human rights rhetoric, the growth of media and visual imagery surrounding mass violence, fears about state power during the cold war, and the development of consciousness about the Nazi genocide.

Invocations of genocide became another tool for running a con.

Historian Peter Novick wrote in his 2000 book The Holocaust in American Life:

…the decline in American of an integrationist ethos (which focused on what Americans have in common and what unites us) and its replacement by a particularist ethos (which stresses what differentiates and divides us). The leaders of American Jewry, who once upon a time had sought to demonstrate that Jews were “just like everybody else, except more so,” now had to establish, for both Jews and gentiles, what there was about Jews that made them different…

What does differentiate American Jews from other Americans? On what grounds can distinctive Jewish identity in the United States be based? These days American Jews can’t define their Jewishness on the basis of distinctively Jewish religious beliefs, since most don’t have much in the way of distinctively Jewish religious beliefs. They can’t define it by distinctively Jewish cultural traits, since most don’t have any of these either… What American Jews do have in common is the knowledge that but for their parents’ or (more often) grandparents’ or great-grandparents’ immigration, they would have shared the fate of European Jewry…

At bar and bat mitzvahs, in a growing number of communities, the child is “twinned” with a young victim of the Holocaust who never lived to have the ceremony, and by all reports, the kids like it a lot. Adolescent Jews who go on organized tours to Auschwitz and Treblinka have reported that they were “never so proud to be a Jew” as when, at these sites, they vicariously experienced the Holocaust. Jewish college students oversubscribe courses on the Holocaust, and rush to pin yellow stars to their lapels on Yom Hashoah (Holocaust Remembrance Day)…

Another, parallel development in contemporary American culture has furthered this development. There has been a change in the attitude toward victimhood from a status all but universally shunned and despised to one often eagerly embraced. On the individual level, the cultural icon of the strong, silent hero hero is replaced by the vulnerable and verbose antihero. Stoicism is replaced as a prime value by sensitivity. Instead of enduring in silence, one lets it all hang out. The voicing of pain and outrage is alleged to be “empowering” as well as therapeutic…

The historian Charles Maier of Harvard…has described modern American politics as a “competition for enshrining grievances. Every group claims its share of public honor and public funds by pressing disabilities and injustices. National public life becomes the settlement of a collective malpractice suit in which all citizens are patients and physicians simultaneously.” All of this…meshes with the new emphasis on separate group identity rather than on “all-American” identity. In practice, the assertion of the group’s historical victimization — on the basis of race, ethnicity, gender, or sexual orientation — is always central to the group’s assertion of its distinctive identity.

American Jews were by far the wealthiest, best-educated, most influential, in-every-way-most-successful group in American society — a group that, compared to most other identifiable minority groups, suffered no measurable discrimination and no disadvantages on account of that minority status. But insofar as Jewish identity could be anchored in the agony of European Jewry, certification as (vicarious) victims could be claimed, with all the moral privilege accompanying such certification.

The grounding of group identity and claims to group recognition in victimhood has produced not just a game of “show and tell,” with members of the class waving their arms to be called on to recount their story. In Jewish discourse on the Holocaust we have not just a competition for recognition but a competition for primacy. This takes many forms. Among the most widespread and pervasive is an angry insistence on the uniqueness of the Holocaust… “Your catastrophe, unlike ours, is ordinary; unlike ours is comprehensible; unlike ours is representable.”

Matter-of-fact references by blacks to their “ghetto” (a century-old usage) are condemned as pernicious attempts to steal “our” Holocaust. Let Ted Turner, denouncing what he regards as Rupert Murdoch’s autocratic behavior, refer to Murdoch as “fuhrer”, and the ADL (I’m not making this up) sends out a press release demanding an apology for Turner’s having demeaned the Holocaust. The greatest victory is to wring an acknowledgment of superior victimization from another contender. Officials of the U.S. Holocaust Memorial Museum tell, with great satisfaction, a story of black youngsters learning of the Holocaust and saying, “God, we thought we had it bad.”

…Whatever its origins, the public rationale for Americans’ “confronting” the Holocaust…is that the Holocaust is the bearer of important lessons that we all ignore at our peril… Individuals from every point on the political compass can find the lessons they wish in the Holocaust…

We are all attracted to explanations that make clear that our troubles are someone else’s fault, that we are blameless.

…The Holocaust framework allowed one to put aside as irrelevant any legitimate grounds for criticizing Israel, to avoid even considering the possibility that the rights and wrongs were complex…

…The qualifications for certification as a Righteous Gentile [by Yad Vashem] had little connection with the everyday meaning of “righteousness”: following accepted moral norms and doing what people could reasonably be expected to do. The criteria were to have risked one’s life, and often the lives of the members of one’s family as well, to save another; to have displayed self-sacrificing heroism of the highest and rarest order. At Yad Vashem nominees for Righteous Gentiles are carefully screened. Often the process takes many years, and the most rigorous standards are applied. (Thus fishermen who transported Danish Jews to Sweden in 1943 are not eligible because they were paid.)

…the success of Jews in gaining permanent possession of center stage for their tragedy, and their equal success in making it the benchmark against which other atrocities were judged, produced a fair amount of resentment — “Holocaust envy.”

…”Holocaust envy” contends with “Holocaust possessiveness.” Claims by others that they have experienced genocide or a holocaust — claims that are indeed sometimes hyperbolic — are treated as felonious assault…

Alexander writes:

With the resurgence of the concept of genocide came renewed discussion about the elements, meaning and application of genocide. Moses emphasizes the importance of intellectual and cultural movements in re-establishing conceptual parameters for genocide as the crime of crimes…. Meiches examines ongoing disputes over the elements of genocide. For example, he shows how the “stable” groups introduced by the Genocide Convention have been reconceptualized in academic and legal contexts in constructivist and accretive approaches. This resurgence and development of genocide reaffirms that genocide is a contingent and changeable concept. Moreover, it shows that the contemporary focus on the battle against genocide as part of a “moral international order” is itself contingent and dependent on the current humanitarian paradigm – as well as being an essential part of that paradigm.

All this high IQ genocide talk created a lot of jobs for enthusiasts of genocide studies without impinging at all on actual genocides.

Alexander writes:

Moyn documents a cultural transformation towards humanitarianism and humane war in the 1990s. He refers to the work of historian and writer Samuel Hynes, who noted that the prototypical story about war had shifted from a story about fighters to a story about the helpless and innocent. Alongside this cultural shift, Moyn notes that activists, international lawyers, and the military also began to focus on the innocent victims of warfare. The legal agenda was soon engrossed with the suffering of innocents. Even the defense community and military lawyers “agreed to occupy themselves with something called ‘international humanitarian law’.” These different groups converged to humanize the permissive laws of war. In this way, Moyn demonstrates that the aspiration for humane war is not a universal or unproblematic goal. Rather it is part of a specific and historically located cultural movement.

Cultural transformations towards humanitarianism and humane war no more decrease human suffering than cultural transformations in fantasy football effect real football. These transformations occurred within a left-wing dreamscape that only remotely intersects with reality. Last year I once ate pizza for my evening meal and this affected my dreams but my dreams had zero effect on Putin’s war in Ukraine. So too this “transformation towards humanitarianism” had no effect on Putin’s war in Ukraine. The “transformation” intersected with reality only to the extent it produced exquisite feelings among human rights activists contemplating the suffering of innocents, just as some people get exquisite feelings when they watch horror films.

Alexander writes:

The humanitarian paradigm aspires to protect human life. Yet, as Gordon and Perugini and Levy show, even the concept of a valuable life is shaped by political, legal and cultural discourses. Gordon and Perugini use the figure of the human shield to show how different forms of life are regarded as valuable in different periods. For, example the Prussians in the Franco-Prussian war used people of a certain social class and status as human shields, because they were considered valuable. In the humanitarian regime, ISIS uses defenceless civilians, in the hope that the value given to the innocent human shields would protect them.75 As Gordon and Perugini state, the “seemingly neutral term human” in human shields is not a universal biological condition but a political one. It is constituted through social and political hierarchies.

Levy examines the way different lives are ascribed distinct value, even within a humanitarian regime. He argues that democracies create “death hierarchies,” through which they allocate risk either to their combatants or enemy civilians. Levy states that while military variables play a role in this process, the most important factors are the legitimacy of the use of force and the legitimacy of sacrifice within a society. These legitimacies are created, Levy shows, by socially constructed norms, symbols, values and beliefs, and he exposes the contingency of these norms by demonstrating a cultural shift away from a legitimacy of sacrifice in the 1970s and 1980s.79 The growing sensitivity to military casualties led, Levy argues, to a greater willingness to redirect risk to enemy civilians. This willingness might seem incongruous in a humanitarian regime, but Levy shows how the same discourses that promote humanitarian values can also devalue adversaries who are connected with non-liberal values.

The most powerful lens people use on life is us vs them. It’s a national racial genetic lens. People instinctively feel more at ease with people genetically like themselves. Academics talk about these things being 100% socially constructed not because it is true, but because “social construction” gives them jobs and prestige while genetic predictive power does not currently afford them jobs nor prestige. A great test of social construction vs the power of genes is to examine the life outcomes of biological children vs adopted children. Does genetic similarity predict closer ties? The evidence is clear.  Anthropologist Peter Frost wrote:

As late as 1923, only 2% of children without parental care ended up in adoptive homes, the others going to foster homes or orphanages (Adoption, 2014). And a large chunk of that 2% involved adoptions between related families. These statistics are mirrored by my family tree: whenever children were left with no provider, they would be adopted by an aunt or an uncle or placed in a foster home. In those days, changing your family identity was as unthinkable as changing your religion or nationality.

To deal with the surge of illegitimacy, progressive-minded people now turned toward a seemingly great idea. On the one hand, there were babies abandoned by deadbeat dads. On the other, there were middle-class families with loving homes. Why not transfer these babies from the dads who don’t love them to the ones who can?

The 20th century is littered with great ideas that proved to be not so great. Adoption is no exception. One negative outcome, which could have been foreseen, is that adopted children tend to replicate the psychological profile of their biological fathers. In one study, Gibson (2009) notes:

Adoptees were more likely than genetic offspring to have ever received public assistance, been divorced or been arrested. They also completed fewer years of schooling and were more likely to have ever required professional treatment for mental health, alcohol and drug issues.

This supports other research showing that, compared to genetic children, American adoptees have a higher overall risk of contact with mental health professionals, specifically for eating disorders, learning disabilities, personality disorders and attention deficit hyperactivity disorder… They also have lower achievement and more problems in school, abuse drugs and alcohol more, and fight with or lie to parents more than genetic children…

So what best predicts a child's education attainment (and with it future income and family stability)? Blood or home? As the Times of London reported: "NATURE not nurture is the main determinant of how well children perform at school and university…"

Economist Gregory Clark wrote in the New York Times Feb. 21, 2014:

To a striking extent, your overall life chances can be predicted not just from your parents’ status but also from your great-great-great-grandparents’. The recent study suggests that 10 percent of variation in income can be predicted based on your parents’ earnings. In contrast, my colleagues and I estimate that 50 to 60 percent of variation in overall status is determined by your lineage…

The notion of genetic transmission of “social competence” — some mysterious mix of drive and ability — may unsettle us. But studies of adoption, in some ways the most dramatic of social interventions, support this view. A number of studies of adopted children in the United States and Nordic countries show convincingly that their life chances are more strongly predicted from their biological parents than their adoptive families. In America, for example, the I.Q. of adopted children correlates with their adoptive parents’ when they are young, but the correlation is close to zero by adulthood. There is a low correlation between the incomes and educational attainment of adopted children and those of their adoptive parents.

These studies, along with studies of correlations across various types of siblings (identical twins, fraternal twins, half siblings) suggest that genetics is the main carrier of social status.

Amanda Alexander writes:

…the legal construction of genocide in terms of a depoliticized, racially motivated attack, together with the cultural prominence of the Holocaust as the archetypal genocide, means that events and people are stripped of their political aspect to fit into the parameters of genocide. This has the effect of distorting and simplifying historical narratives and the understanding of current events. Even the Jewish holocaust, Moses shows, is capable of a political reading.

These depoliticized narratives also distort the way that victims are understood. Victims have to be presented as innocent victims, in the way that the Jews of the Holocaust are perceived. Whether Jewish or Christian, or both, this image of the exemplary victim has proven irresistible to those seeking recognition as innocent victims of persecutions who deserve protection and/or compensation. Victims of various conflicts routinely construct themselves as Jews: killed for their identity rather than for their deeds, likewise virtuous martyrs.

This presentation shapes a particular view of victims, and an assessment of value in terms of innocence…

…innocent victims have so much political weight in this system that it is possible to wage “good” wars on their behalf, when they are threatened by the universal crimes recognized by this paradigm. At the same time, however, actions that are not considered crimes in the paradigm will not be redressed, and victims who cannot be described as innocent will not be protected. Moses’ The Problems of Genocide shows, convincingly, the array of violent political actions that have been allowed and justified by a system that will only protect a few depoliticized groups. Those who are not innocent become acceptable targets.

In the real world, innocent vs guilty is not nearly as powerful a duality as in-group vs out-group.

Alexander writes:

It is this political power inherent in the humanitarian paradigm – the power to create groups and justifications that facilitate and legitimize violence – that is the principal source of discomfit within this body of literature. A number of these works argue that the humanitarian project justifies certain types of violence, in particular: imperial violence; ongoing and obscure forms of violence; and violence against the same innocent people that the humanitarian system is intended to protect.

In other words, the writers examined in this essay feel pained by the reality that one can never escape the human tendency to divide the world into in-group vs out-group. They shouldn’t feel too bad about the “political power inherent in the humanitarian paradigm” because it rarely intersects with reality. I suspect the violence they abhor is not created by the humanitarian project but rather is justified by it. States, like individuals, rarely say what they mean and mean what they say.

Alexander writes:

Moyn writes, for “most of its history, international law was generally in tune with imperial and increasingly racialized projects.” “International law” was shaped, from its early renderings in the context of Spanish imperialism up until the modern laws of armed conflict, by imperialist concerns and ideas. Moyn notes that Martens, famed for introducing the principle of humanity into the Hague Convention, had stated that “Muslim peoples and pagan and savage tribes” were not admitted to the society of nations, or covered by international law….

When did imperial projects become increasingly racialized? When they encountered foreign races, particularly Africans. People don’t like strangers, and the more strange the stranger, such as Africans for Europeans, the more disturbing.

Throughout history, including the human rights era, the strong take what they want and the weak endure what they must. Why did imperial powers shape international law to protect their interests? Because they could.

Alexander writes: “the inclusion of common article 3 [protecting guerrillas became] a weapon for anti-colonial movements.”

Not as much of a weapon as a real weapon such as a gun.

Alexander writes:

even when the laws may not have been drafted to explicitly exclude global peoples, they were clearly different in spirit and practice when it came to counterinsurgent and colonial war. The value of different people, and therefore the readiness to protect or attack them, is often determined through a racist lens. Gordon and Perugini show this in terms of human shields, arguing that there was little use of human shields in anti-colonial uprisings, because the lives of indigenous people were not regarded as valuable enough to deter attacks…

There’s a friend-enemy distinction at the heart of politics and usually that distinction is racial.

Amanda Alexander writes:

…narratives about the association between non-democratic regimes and international crimes make violence more visible in other settings. The same narratives present the objects and perpetrators of violence as helpless victims and dehumanized, satanic aggressors.111 As a result, intervention starts to appear as an ethical response.

Endless War and Global Policing

These interventions are the most obvious way in which international law continues to play out its imperial function. The crimes established by the humanitarian paradigm legitimize interventions aimed at rescuing innocent victims. These victims are perceived through an imperialist lens as “subject,” non-Western women who can “only feel pain and who are bereft of agency.”113 The interventions are carried out by “Western coalitions” against non-western states114 or, more specifically, by the United States, taking up Britain’s mantle, in an imperial “war on terrorism.”

The result, as described in this literature, is an endless war, unconstrained in spatial or temporal reach. The reimagination of these wars as global policing, global law enforcement or, in Moses’ term, “permanent liberal security,” suggests both the interminable nature of these operations and their unprecedented and intimate reach. Moyn argues that this form of war is more like policing; that it is less traditionally violent and increasingly protective of both civilian and combatant.120 This does not, however, make it any less oppressive for Moyn. Indeed, he suggests that the increasing humanity with which these interventions are carried out makes them more legitimate, and therefore more pervasive.

For the most part, however, this literature argues that endless war enables traditional as well as new forms of violence – in particular, the legal killing of civilians in the
name of humanity.

The Suffering of the Innocent

Thus, despite Moyn’s insistence that the real problem with war is war itself, for the most part these works suggest that their principal concern with the current paradigm of violence is that it continues to allow for civilian suffering. Universal crimes facilitate coercive action to save civilians which then, as Graf writes, “injures and destroys even as it purports to save and protect.”123 Levy shows how even wars which are initiated to protect civilians result in civilian deaths. A campaign might begin with strict rules and clear intentions to protect civilians, but the rules are gradually loosened to allow for civilian casualties.

It is also argued that the current conceptualization of international crimes and their
victims allows for more civilians to be killed. People who cannot be depicted as innocent, depoliticized civilians, are exposed to danger. Gordon and Perguni show how the use of the civilian as a political tool exposes human shields to violence; innocence is a qualification for protection that too easily becomes a disqualifier.

Moses argues that the emphasis on genocide as a depoliticized crime against innocent
victims legitimizes violence against other civilians. If an act can be represented as
politically motivated or directed at political agents, once it is an act of “permanent
security,” it is no longer seen as criminal or horrific. The focus on depoliticized genocide and its innocent victims, Moses argues, therefore allows for violence against other civilians. Some of these civilians, Moses says, will still be innocent and deserving of protection.

Levy, like Moses, argues that when civilians are seen as political agents, citizens who
support or should resist their state, they can be targeted. Moreover, when their state
is considered the purveyor of international crimes, the humanitarian paradigm has the
effect of dehumanizing and delegitimizing the opposition in a way that particularly sanctions the killing of civilians…

Civilians in many conflicts are not apolitical – as these works repeatedly show. Their agency may be limited by social roles, cultural norms, political, economic and epistemological structures. But this would also apply to the combatant. Who is to say that the citizen who supports her state has less agency than a conscript, or even a soldier who volunteers because of a lack of other opportunities or social pressure? To make this statement is extremely objectional in the current paradigm.

Yet the fact that the soldier poets of the First World War were prepared to say this, angrily, about the civilians who they perceived as the political supporters of the
carnage, shows that different ethical perspectives are possible. Indeed, this complexity
is not an ethical problem in a context where the potential agency and dangerousness of
civilians is acknowledged culturally and legally. The political civilian can be simply reinscribed as a threat and a target. It only becomes a trap, this infinite loop of humanitarian anticipation, disappointment and renewal, when international law is seen as a project that is aimed at protecting civilians and civilians are seen as innocents.

…My argument would be that the overriding theme in the laws of war has never been to
protect “innocent” civilians, but to make sure that the state has a monopoly over violence and political action. The laws of armed conflict have traditionally operated to divide people into two depoliticized roles. On the one side, combatants, who comply with the directions of his state or a military leader, rather than asserting their own political agency. On the other, civilians, who refrain from “direct participation in hostilities.” Civilians are not protected because they are innocent; rather, they are not deliberately targeted or punished while they remains passive.

The enemy is he who threatens the lives of your people. Somebody passive is not an enemy.

Rony Guldmann writes in Conservative Claims of Cultural Oppression:

Along with sundry multinational treaties and international conferences, the United Nations “provides the left with venues through which to elevate their own priorities into universal human rights” and then bully non-Western leaders into adopting them. These are America’s real crimes against the developing world. Muslim resentment toward America is an understandable response, not to any economically or militarily imperialistic foreign policy decisions, but to the cultural decadence that the liberal elites cultivate at home and then export abroad in the name of freedom and progress…

Christopher Caldwell wrote Feb. 2, 2024:

Human rights is the assertion that, no, our equality perdures even if the Creator is not in the picture. It is a rallying cry, advanced stridently by initiates but received dubiously by others, even today. Our own version of it dates from 1948. That was when Eleanor Roosevelt led a committee to draft for the newly established United Nations a “Universal Declaration of Human Rights,” one that, it was hoped, might vie with other great founding documents such as the Declaration of the Rights of Man and of the Citizen that accompanied the French Revolution. Already that year the young Minnesota Democrat Hubert Humphrey had upstaged the Democratic convention by urging his party “to get out of the shadow of states’ rights and walk forthrightly into the bright sunshine of human rights!” He was talking about equal rights for blacks in the segregated South—rights that later came to be called “civil rights.” Humphrey’s term was the better one for what he was talking about, but, then as now, there was considerable confusion about matching the vocabulary of rights and the reality of rights.

The U.N. declaration got bogged down in such distinctions almost immediately. The rights it enumerated were of two types. There were a bunch of rights familiar from the constitutions of well-run states in the enlightened West: Freedom of speech. Freedom of movement. No slavery. No torture. But there were other rights that seemed to be contingent aspirations: The right to join a trade union. The right to adequate medical care. The right to “periodic holidays with pay.” What would the meaning of these human rights be in an economy where all humans worked in rice paddies? Cranston argued that, in the context of the Cold War, laying out rights this way was a mistake on the part of the West. The Soviet Union and its loyal East Bloc satellites did not vote for the declaration, but they had received a propaganda bonanza from Eleanor Roosevelt: Sure, they could now argue, maybe we don’t have bourgeois freedoms like freedom of speech. But the West doesn’t have constitutional guarantees of cheap medical care. Nobody’s perfect.

It also resulted in a confusion over what exactly the U.N. was promulgating: was this a set of laws or a set of values? And the confusion grew across the decades as the U.N. established a long list of bodies and boards to refine some rights and discover others: the Convention on the Elimination of All Forms of Racial Discrimination in 1969, the Convention Against Torture in 1984, the Convention on the Rights of Migrant Workers in 1990.

The problems with the declaration’s vision of rights became clearer after 1951, when the U.N. passed its Convention on Refugees. The Convention was a solemn response to the mass human rights abuses of World War II. But it was done after the fact, when those problems were no longer an emergency. The refugees whose cases still had to be adjudicated in the early 1950s amounted to a few dozens or hundreds. International bodies could demand a high degree of solicitude and punctilious accountability from countries that had to process these people. The problem is that today, tens of millions of migrants are on the move in search of a better standard of living, and prosperous countries are constrained by democratic majorities to send these job-seekers home expeditiously. So every citizen of an equatorial country who wishes to wash dishes in Germany or trim lawns in Canada has an interest in presenting himself as a special case—not a job-seeker but a “political refugee.”

The European Union, since 1992 a pan-European government-in-embryo that binds together more than two dozen countries, has always had human rights at its core. The Maastricht Treaty, its founding political document, places “safeguarding the common values, fundamental interests and independence of the Union” at the heart of the project. Understood this way, “Europe” is not a people. It’s not a social contract. It’s what the Germans call a Wertegemeinschaft, or community of values—and in this case the main value is human rights. There are two problems with that. One is that these aren’t European values so much as universal ones, and the job of promulgating them has already been claimed by a body with more plausible claims to universality: the U.N. Meanwhile, the job of defending human rights has already been claimed by a Western country with more cohesion and more military and economic power: the United States.

It was apparent from 1948 that human rights would be more easily pursued in inter-state relations (a jurisdictional no-man’s-land) than in domestic politics (where human rights infringes on the prerogatives of politicians). Human rights tends to advance alongside American capitalism—most energetically in foreign countries—behind tax-exempt non-profits set up by Western billionaires. George Soros’s Open Society Foundations operate “transparency” initiatives across Eastern Europe. The Bill & Melinda Gates Foundation is responsible for advanced health care and vaccination across Africa. To the State Department, this is evidence that free markets build free societies. To any world leader concerned about protecting his country’s sovereignty, it is evidence that human rights is, often as not, a stalking horse for American power.

Certainly human rights provides ample pretexts for American military self-assertion. The doctrine of “Responsibility to Protect,” devised by Canadian diplomats at the turn of this century, brought about the catastrophic Anglo-Franco-American attack on Libya in 2011, which over the past thirteen years has produced nonstop migrant crises in the Mediterranean. Nor has the United States been reluctant to use its economic power, almost always citing human rights violations when it imposes sanctions, as it now does on two dozen countries.

Those who make foreign policy in the name of human rights often behave as if this ensures their country will always be on the side of right rather than might. That is a mistake. Human rights is as liable to serve as a pretext for conquest as religion used to be (and surely will be again). Most of the problems arise from the universalism that is of the essence of human rights. Some don’t like it to begin with. “Universalism is a corruption of objectivity,” warns the French conservative Alain de Benoist in his book on human rights. “To be objective is to start from particulars; universalism defines the particular by starting from an abstract notion.” To impose “universal” rights requires something like universal power. In fact, there are probably fewer checks on an army crusading for the rights of man than on an army crusading for the glory of God. The religious crusader, if he is in good faith, may well fear judgement under the law of the God he proclaims. The human-rights crusader is the promulgator of the law he proclaims. And if you are making your arguments in the name of humanity, then a fellow who doesn’t agree with you is an enemy of humanity, to be treated accordingly.

The late, underappreciated French political theorist Julien Freund used to wonder where people got the idea that a “universal” state would necessarily be a peaceful one that would put an end to war. In 1965, he asked his readers to imagine a globalized society somewhat like our own, ordered by a global state. Politics would still be politics, he said, because human nature would still be human nature. Ultimately all that would change is the vocabulary. Wars would be called civil wars. Enmities would be called heresies.

But it is not just that human rights change our vocabulary for understanding conflict. If not properly understood, they can corrode relations inside a given political system. The intellectual historian Marcel Gauchet, a longtime activist in France’s Socialist Party, has spent the decades since the 1980s studying the way democracy has been transformed by increasingly frequent invocations of human rights. The picture is paradoxical and self-destructive. Classic democracy involves the sovereignty of the people—who are empowered to rule. But human rights has brought a new “liberal” version of democracy that involves the sovereignty of the person—who is entitled to human rights. Securing those rights for the person often means the people’s right to rule must be suspended. It is the courts that must effect this transformation, mostly by imposing rules of non-discrimination. And this turns human rights–based “liberal democracy” into a weapon against democracy as we have understood it for centuries.

In the course of his career, Gauchet has come to pay more attention to religion and sex. That is because the central concern of human communities has generally involved the “imperative of perpetuation”—cultural continuity through religion, biological continuity through sex. It is striking that human rights–focused democracies persistently undermine the longstanding democratic arrangements that once secured these continuities. “The lifting of the taboo that used to weigh on homosexuality as the anti-procreative practice par excellence,” he writes, “is a striking illustration.”

It is striking partly from a social point of view: marriage, an institution that once served the dead-serious purpose of protecting the offspring of love from the fickleness of love, now serves the relatively frivolous purpose of “equalizing” “dignity” among citizens. It is striking in a second way, too: it cuts not only against traditional culture but also against modern culture as it was understood until recently. Regarding sexuality, it seemed throughout the twentieth century that the more we moved away from the “state of nature,” the more necessary it would be to signal traditional gender roles—onerous or unfortunate though some might find that to be.

Apparently, though, there was another dynamic at work, too. Human-rights advocates seemed to be analogizing from the purported efficiencies of the liberal economy, which are alleged to work optimally when guided only by the “invisible hand.” And human-rights ideology wound up promising that we would all be more productive, orderly and happy once all social institutions were destroyed and all traditional values renounced. If one reads Gauchet and other human-rights skeptics correctly, we may be arriving, after a long delay, at the world Rousseau and other eighteenth-century thinkers dreamed of. For centuries, the utopian schemes of the Enlightenment were stymied by the stubborn-looking, stupid-looking resistance of farmers, manual laborers, bandits, and traditional subjects of all kinds. Nowadays society’s traditions have been so eroded and its defenders so demoralized that utopians have been emboldened to return for a second whack.

Paul Gottfried writes in 2024: “the invocation of natural right or human rights has often been accompanied among American liberal interventionists by an unseemly will to dominate other peoples.”

Dennis E. Teti writes in 1985:

If human rights demand equal treatment of individuals before the law, “affirmative action” clearly contradicts that demand by calling for preferential treatment; i.e., privilege, on the basis of race, gender, religion, ethnic group, etc. The only criterion which ulti­mately determines which group is entitled to such privileges is raw political power.

…Primitive nations regard human rights legalism as subversive of their moral basis, preventing their governments from regulating morality through such means as censorship or other restraints on personal liberty. Therefore we need a “redefinition” of human rights purged of “liberal, democratic, and capitalist elements.”

…No genuine understanding of human rights can stand with one foot planted in nature and the other in history. The idea of human rights requires the same cosmic support needed by the philosophic, or pious ways of life in order to make them choiceworthy.

Cameron Hilditch writes for National Review:

How do we know which rights are “natural” to human beings? This is an important question to ask because, as the Commission’s report itself concedes, there is now “widespread disagreement about the nature and scope of basic rights.” Furthermore, how is this kind of “widespread disagreement” even possible if the rights of man are “self-evident,” as Jefferson famously argued in the preamble to the Declaration of Independence? …The idea that the human being’s right to life, liberty, and the pursuit of happiness is “self-evident” to the unaided rational intellect is thoroughgoing and unadulterated nonsense.

The stubborn fact is that rights commonly referred to as “natural rights” or “human rights” by people in Western liberal democracies have not been thought of as such by most human beings at most times and in most places in world history. This means that they cannot be thought of as “naturally discoverable” in our nature in the same way language or the appetite for food is, because only certain communities, nations, and civilizations exhibit any kinds of adherence to them. Human rights are, consequently, radically contingent in historical terms. …Most cultures have examined nature, human and otherwise, and drawn very different conclusions from it than the notion that we each possess the title-deeds to a long list of subjective rights testifying to our unique individual dignity.

Why is this the case? Because human beings contain such a bewildering variety of contradictory desires, impulses, intuitions, and habits that it’s possible to infer just about anything one might care to from our nature… Reason can indeed discover in nature that human beings are all of the same species, each self-conscious with the capacity to reason, form judgements, and act freely. But that groups of human beings often brutally kill others groups of human beings in a quest for collective supremacy is also discoverable in nature. Neither is more natural than the other…

Our inheritance of human rights was built to reflect the fact that we are all living images of a particular crucified criminal from Galilee, who proclaimed that we are each and all more than what Caesar would make of us. If we care to enjoy the rights bequeathed to us by this tradition throughout the coming years, decades, and centuries, then we can no longer avoid publicly discussing the inextricable nature of religious and political ideas.

Professor Roger Pilon responds: “[I]f our unalienable natural rights are mere “cultural artifacts,” we are in trouble indeed. Our chances are far better, we submit, if we defend them with appeals to reason, common to all, as America’s Founders did.”

Paul Gottfried wrote in 2013:

The term or concept that lately has been causing me the most visceral pain, however, is “human right.” The pain became excruciating last week, when I heard Fox News commentator Juan Williams insist that gay marriage is a human right. If Williams had his way, the Supreme Court would impose recognition of this arrangement on every hamlet in this country. That’s because he thinks it’s “fair” and in any case required by the equal protection clause of the Fourteenth Amendment. I’ve no idea how the Fourteenth Amendment can require the imposition of a marital practice that differs from how marriage was understood since the beginnings of human societies and up until a few years ago in this country. It is possible to see why the Fourteenth Amendment might be invoked to uphold the right of every American taxpayer, whatever his color, to use the public facilities he or she pays for. But how can it require, except by an act of judicial usurpation, that all Americans be forced to recognize as marriage a cohabitation arrangement between people of the same sex. Supposedly this entails a right that must be equally protected. Right to what? Presumably of anything that those involved decide to call marriage and then oblige everyone else, on pain of punishment, to accept as such.

What happens, however, if those who wish to experiment with new forms of marriage decide that it would be a good idea to practice incest? Does that too become a right protected by the Fourteenth Amendment? What about group marriage, a practice that’s already being tried in Holland? Is that too protected by our constitution, according to Juan Williams? The answer is that incest and group marriages may be entitled to legal protection against discriminators, if Williams decides to characterize them as human rights. What the hell—two more rights added to the list really won’t muddle the term “human rights” any more than it’s already been muddled. And in fact the term has now been reduced to a rhetorical trope that is meant to impress the listener with the moral seriousness of the person who pronounces it.

My objection to the term is not based on moral relativism, since I don’t pretend to be a moral agnostic. I could think of at least one right that all people should be entitled to and which government should provide: it’s Thomas Hobbes’s single example of a natural right, which is to be protected by government against violent death. But who believes in what rights is not the point here. I am arguing against the use of human rights bombast whenever some individual, institution, or state wishes to express a political preference or a program of social reconstruction. Just make your arguments and let the listener decide. Further, I don’t object to listening to moral arguments against societies that do horrible things. Mention what the leaders of these societies do and then leave it to others to decide whether your indictment is correct. Saying that what you deplore violates human rights fills space with noise without contributing anything substantive to human knowledge. For example, if someone shows me that the Taliban stones women to death if they’re seen talking to young men to whom they’re not married, that’s a sufficient indictment. In no way would the speaker be strengthening his brief by adding that the Taliban “violates human rights.”

I would also make a traditionalist case against human-rights language. Whereas most of us in the same society up until a few decades ago could have agreed on what actions were right and wrong, human rights are more subject to change than traditional moral verities. Their validity depends on political and cultural winds; and it is foolish to believe that one can bridge the breakdown of moral or social consensus throughout the Western world by resorting to a new universal ethic based on “human rights” or “democratic values.” There are sharp and even growing differences in our society about fundamental behavioral questions, and appeals to supposedly universal rights language will not likely heal these divisions. Significantly, both those who favor and those who oppose the right to abort a fetus shower us equally with human-rights rhetoric. That practice settles nothing of importance, except for allowing the speakers to feel good about their cause and about themselves for upholding it.

I share Paul Gottfried’s pain on reading the news because it often invokes concepts such as human rights without placing them in their historical and cultural context. Everything needs to be understood in its situation. Abstracted from that particular time and place and placed on an eternal plane, well, that’s fine for religious claims, but obnoxious for everything else.

According to the Stanford Encyclopedia of Philosophy entry on Carl Schmitt:

Liberal states, in Schmitt’s view, have a tendency to fail to distinguish properly between friends and enemies, and thus to extend rights of membership to those who do not truly belong to the political nation. In a liberal state, Schmitt fears, the political nation will slowly whither and die as a result of spreading de-politicization, it will succumb to internal strife, or it will be overwhelmed by external enemies who are more politically united (CP 69–79; L 31–77). To avert these dangers, Schmitt suggests, it is necessary to make sure that the boundaries of the political nation and the boundaries of citizenship coincide. This demand explains Schmitt’s claim, in the first sentence of The Concept of the Political, that the concept of the state presupposes the concept of the political (CP 19). The point of this remark is that a state can only be legitimate if its legal boundaries embody a clear friend-enemy distinction.

In order to achieve this aim, Schmitt clearly implies, a sovereign dictator, acting in the interstices between two periods of positive constitutional order, must homogenize the community by appeal to a clear friend-enemy distinction, as well as through the suppression, elimination, or expulsion of internal enemies who do not endorse that distinction (CP 46–8). In so doing, the sovereign dictator expresses the community’s understanding of what is normal or exceptional and of who belongs, and he creates the homogeneous medium that Schmitt considers to be a precondition of the legitimate applicability of law.

William Rasch writes in the Spring 2003 edition of Cultural Critique:

In the past, we/they, neighbor/foreigner, friend/enemy polarities were inside/outside distinctions that produced a plurality of worlds, separated by physical and cultural borders. When these worlds collided, it was not always a pretty picture, but it was often possible to maintain the integrity of the we/they distinction, even to regulate it by distinguishing between domestic and foreign affairs. If “they” differed, “we” did not always feel ourselves obliged to make “them” into miniature versions of “us,” to Christianize them, to civilize them, to make of them good liberals. Things have changed. With a singlepower global hegemony that is guided by a universalist ideology, all relations have become, or threaten to become, domestic. The inner/outer distinction has been transformed into a morally and legally determined acceptable/unacceptable one, and the power exists (or is thought to exist), both spiritually and physically, to eliminate the unacceptable once and for all and make believers of everyone. The new imperative states: the other shall be included. Delivered as a promise, it can only be received, by some, as an ominous threat…

“Time and again,” wrote Schmitt back then, sensing what was to come, “the great superiority, the amazing political achievement of the U.S. reveals itself in the fact that it uses general, flexible concepts…. With regard to these decisive political concepts, it depends on who interprets, defines, and uses them; who concretely decides what peace is, what disarmament, what intervention, what public order and security are. One of the most important manifestations of humanity’s legal and spiritual life is the fact that whoever has true power is able to determine the content of concepts and words. Caesar dominus et supra grammaticam. Caesar is also lord over grammar.” (1988, Positionen und Begriffe, 202)

For Schmitt, to assume that one can derive morally correct political institutions from abstract, universal norms is to put the cart before the horse. The truly important question remains: who decides? What political power representing which political order defines terms like human rights and public reason, defines, in fact, what it means to be properly human? What political power distinguishes between the decent and the indecent, between those who police the world and those who are outlawed from it? Indeed, what political power decides what is and what is not political?

…As Schmitt said, the old Christian and civilizing distinction between believers and nonbelievers (Gliubigern and NichtGlaubigern) has become the modern, economic distinction between “creditors and debtors” (Glaubigern and Schuldnern).

…So, for those who sincerely believe in American institutional, cultural, and moral superiority, the times could not be rosier. After all, when push comes to shove, “we”
decide-not only about which societies are decent and which ones are not, but also about which acts of violence are “terrorist” and which compose the “gentle compulsion” of a “just war.” What, however, are those “barbarians” who disagree with the new world order supposed to do?

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Filling the Gaps: The Expansion of International Humanitarian Law and the Juridification of the Free-Fighter

Amanda Alexander writes in 2023:

Abstract: This article traces the expansion of international law from the Hague Conventions, where only a state’s soldiers had legal status, to the contemporary understanding that international law governs all participants in conflict. This can be seen as a humanitarian shift that diminishes state power. This article, however, argues that the Hague Conventions only established a limited sphere of formal law because delegates deliberately left free-fighters outside the law, to be governed by their own will and moral code. In doing so, delegates echoed a philosophical tradition that situates true freedom outside the state. As this article shows, the expansion of law to include such fighters required the replacement of such alternative codes with a renewed and extended range of formal legal criteria. As such, the expansion of international law to the realm outside the state has led to a reaffirmation of that law which is synonymous with the state.

…These requirements left many people outside the law – in particular, the ‘uncivilised’ and the ‘savage’. They were denied what legal protection existed; their struggles were not regarded as real wars or conflicts. In 1927, Colby listed an array of legal opinions that insisted that ‘the rules of International Law apply only to warfare between civilized nations, where both parties understand them and are prepared to carry them out.’3 Savage tribes were incapable of waging war in the sense of international law – ‘barbarous and loosely organized bands are incapable of attaining a status of belligerency.

The fact that so many people and incidents fell outside the law led, as has been rightly noted, to some horrific political and ethical consequences as well as an array of practical problems.5 As a result, there were repeated, if slow, attempts to fill the gaps in international law.

…Discipline, according to Weber, means that the obedience of a plurality of men is rationally uniform.17 Discipline is impersonal and neutral; it places itself at the disposal of every power that claims its service and knows how to promote it.18 In this way, the soldiers of the modern state do not fight for individual or group causes, nor do they follow personal motivations or values. They simply obey and represent the state. As Weber writes, ‘Discipline puts the drill for the sake of habitual routinized skill in place of heroic ecstasy, loyalty, spirited enthusiasm for a leader and personal devotion to him, the cult of honor, or the cultivation of personal fitness as an art’.19 The state’s monopoly on force requires, according to Weber, continuous administration, the control of the material goods needed for violence, and an associated administrative staff that is separated from the material means of violence.20 Alongside the creation of this bureaucratic state, societies develop a legal system with a formal, “rational” character.

Moreover, when violence belongs only to the state, this right to use violence, to dominate men, must rest on some form of legitimation.22 This distinguishes it from the violence of the warrior group, which required no legitimation or normativity.23 In the modern state, the most characteristic form of legitimation is domination ‘by virtue of “legality”, by virtue of the belief in the validity of legal statute and functional “competence” based on rationally created rules’.

Thus, there is a link between the modern state’s monopoly on violence, and the idea of a formal rule of law, also characteristic of the modern civilised state.

…The asceticism and self-control of Protestantism, Weber says, is aimed against one thing – the spontaneous enjoyment of life and all that it has to offer.

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Human rights – the key to all mythologies! (6-21-24)

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Narrative Contingency and International Humanitarian Law: Crimes against humanity in Cixin Liu’s post-humanist universe

Amanda Alexander writes:

International humanitarian law (IHL) is the term which names, and also conceptualises, the current regime of the laws of war. The name belongs to a particular narrative about the history and purposes of this regime. In the orthodox narrative that was built as this regime emerged in the 1990s, modern IHL was born when Dunant witnessed, with horror, the inhumanity of the Battle of Solferino. Dunant and the International Committee of the Red Cross went on to develop a humanitarian system of law, aimed at protecting the hors de combat and limiting the brutality of war.1 One of the archetypal offences of this contemporary regime is crimes against humanity— that is assaults on civilian populations, whether they occur in international conflict or not. This offence makes the protection of civilians and the value of humanity a more powerful concern than the traditional respect for sovereignty in international law.

The emergence of this humanitarian law of warfare and its shifting interpretation of crimes against humanity, from the Nuremberg Trials until the current day, has been dependent on the narratives that could be told about the law. These legal narratives are often informed by extra- legal discourses, such as strategic, moral, philosophical, or fictional narratives. As the narrative possibilities change, so too does the ethical and aesthetic framework of IHL and, consequently, the interpretation and implementation of the provisions of law. This can lead to dramatic, yet often invisible, changes to the laws of armed conflict.

Critical international lawyers have, overtly or obliquely, acknowledged the importance of narrative as a source of meaning that shapes the interpretation and practice of international law. In their genealogies of the discourses of international law, these lawyers have argued that, although the prevailing narratives make universal claims, they are predominantly Western— arising from Western interests and facilitating Western hegemony.4 Human rights and humanitarianism have not been exempted from this critique.5 They are described as a language which has been shaped by Western concerns and imposed on others,6 a language which legitimates some subjects of history and erases others,7 while justifying imperialist and neo- imperial projects.8 As a result, an important part of the critical approach to international law has involved challenging these dominant narratives with alternative accounts and interpretations of international law.9 Some critical lawyers have sought a form of emancipation in such work— but many are less hopeful.10 They have warned that attempts at counternarratives will always be undermined or co- opted by existing power arrangements.

Moreover, they have questioned whether it is even possible to shape new narratives within international law without adopting Western structures and liberal values. The difficulty of developing new forms of narratives is not just a problem for international law. It affects even the possibilities of the histories that underpin law and legal theory. In Hayden White’s narrative theory of history, the possibilities of historical narratives are limited; only certain humanist approaches will count as ‘History’.13 Thus, IHL may be contingent on narrative possibilities, but it is hard to see these narratives, hard to change them, and even harder to imagine a different range of aesthetic and ethical possibilities.

Cixin Liu’s science fiction epic, Remembrance of Earth’s Past,14 however, gives us an unusual opportunity to explore a vision of what such an alternative international law might look like if it were not based on Western narratives or humanist thinking. Science fiction provides an opportunity to create new worlds and, in Liu’s case, to present new aesthetic forms.

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Decoding Israel’s Coming War With Hezbollah (6-20-24)

01:00 Caitlin Clark Conundrum, https://www.takimag.com/article/34053/
08:00 Col Douglas Macgregor: Israel Prepares for All Out War in Lebanon, https://www.youtube.com/watch?v=iXD8t7gYpTo
17:30 Turkey invades Cyprus with Russia’s blessing if Israel attacks Hezbollah
28:00 Is Israel Committing Genocide? https://lukeford.net/blog/?p=155365
41:00 Revolutions in International Law: The Legacies of 1917, https://www.amazon.com/Revolutions-International-Law-Legacies-1917/dp/1108495036
44:00 A Short History of International Humanitarian Law, https://lukeford.net/blog/?p=155471
1:30:00 Hizballah’s historic drone footage sends warning to Israel, https://www.youtube.com/watch?v=b-C4rl9LoeU

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