Linch's Shortform

Linch

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Thinking of drafting a post on war crimes, trying to answer the following puzzles:

Why do we have a notion of war crimes at all, given how bad war itself is?
Why are some things war crimes and not others?
Why do precursor notions to war crimes appear, independently, in essentially every culture that has fought wars at scale?
Given that essentially every culture has also broken these norms, sometimes spectacularly, why does the norm always come back, and often come back stronger?

Common answers to these questions seem profoundly misguided. The naive answer, that war crimes are simply the most horrible things that we all agree is collectively wrong, does not survive even five minutes of scrutiny. More sophisticated versions of that argument also do not survive scrutiny: Just War theory is similarly flawed and question-begging on the descriptivist front, and the Schelling point - shaped argument that war crimes can’t limit all of war’s badness, but are aimed at curbing the worst excesses, does not explain why mass bombings and medieval sieges are/were considered acceptable, but false surrender is not.

The “cynical” answers are (differently) flawed. eg some people think war crimes are completely fake and anything other than total war is just modern virtue signaling, ignoring the thousands of years of documented history we have on precursors to war crime (Xerxes in 400s BC: “The Spartans, when they do such things overthrow all law and justice among men.“). If anything, the modern version of “total war” is much newer than the idea of war crimes. Similarly, a naive “power analysis” that war crimes are simply defined by the powerful to limit the options of the powerless ignores that powerful people are often themselves constrained by these norms, sometimes hugely.

Instead, my core answer here is surprisingly simple: A “war crime” is, in its oldest and clearest form, the category of acts that destroy the means by which wars can be ended early. The prohibitions track not the moral worst things people do in war, but the acts that, if generalized, would turn every future war into a total war.

I don't think my theory here is very novel. Indeed, as I’ll discuss, this theory is literally thousands of years old and likely arose independently in many places. I will try, however, to make my post the best modern articulation of these ancient ideas.

There are actions of war that are not done because there's a need to do them. You don't rape a city after you conquered it because you have a need for it. A lot of the more modern law of war is about preventing unneeded collateral damage.

2Linch6mo

This makes sense. A subset of "my" theory[1] is that this is the oldest/original theory of taboo actions during war and arose independently in many places (which explains why the norms keep coming back even after violations; divine punishment alone can't explain it, the Gods are famously fickle). A challenge to this hypothesis is that in some ways its own rarity in discussions is self-refuting. The fact that military professionals talk about stuff in this way comforts me. 1. ^ again, obviously the core is not original to me, and probably not the constituent parts either. Just want to lay it together well.

6Linch6mo

Just to spell out the obvious, I think the two biggest things to consider for norms-shaping include a. the costs of this norm. In this case, lack of military necessity means the direct costs of the norm can't be very high, at least if we think of states as rational-ish actors. There are also coordination costs to consider, as you say. b. the benefits of this norm. Where abstract notions of just war is one answer, what the Gods want is another similar answer, to curb the worst excesses of war is a third answer, and the answer I favor in terms of both explanatory power and normative force is to allow wars to end earlier, which the literature calls the "duration-multiplier argument". I believe my answer might actually be the oldest.

Linch's Shortform

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Linch's Shortform

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