Prosecuting war crimes is not the answer

Tolstoy's critique of humane war

war crimes

As Russia’s war against Ukraine continues, much of the focus has been on the apparent war crimes being committed. This line of thinking can be seen to suggest that the problem here is excessive violence, not the war itself. In his famous War and Peace, Leo Tolstoy put forward the argument that humane war is as absurd an idea as humane slavery, and that believing in it could distract us from what the real moral goals should be: the end of slavery and the end of war. But even if Tolstoy was wrong, we should also consider what the world would be like where the policing of war was a lot stricter. Who would be doing the policing, and could we be sure that the relationships of domination we find in local policing would not be replicated at the global scale, asks Samuel Moyn.

 

In my recent book Humane, I outline a modest and narrow argument that making objectionable practices less objectionable—especially in the name of reducing suffering—can possibly either legitimate or perpetuate the practices themselves (or do both). I hope the argument, framed for the sake of questioning activist and public priorities in America’s war on terror, is more broadly useful in an age debating the relationship of abolitionist politics to “harm reduction” across the political landscape.

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Tolstoy’s character in War and Peace, Prince Andrei, supposed that leaving war brutal would result in fewer cruel wars. 

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I begin Humane with a portrait of the moral reasoning of Russian aristocrat and novelist Leo Tolstoy, who was present at the creation of the first Geneva Convention of 1864 and sounded a warning from the start about the risk of the agenda of humanization. As I narrate, Tolstoy’s character in War and Peace, Prince Andrei, supposed that leaving war brutal would result in fewer cruel wars. His reasoning was that making war less cruel would increase overall cruelty in the world, because it would make war more regular and postpone peace. Others, like the Prussian theorist Carl von Clausewitz and the Prussian-American scribe of the rules for the U.S. Army in the Civil War and after, Francis Lieber, similarly believed cruelty would shorten wars.

To be clear, I don’t believe this is credible. More importantly, however, is that Tolstoy’s character adopted the same ethical standard—reducing cruelty—as the humanitarian-minded thinkers he opposed. Equally important is that he offered an empirical conjecture. Even if it is generally credible, an empirical conjecture will almost certainly admit of exceptions. In light of this possibility, Andrei should have stressed not the intensification of wartime atrocities, but the contingent risk of humanizing violent corporal practices like war.

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Tolstoy thought the contingent risk was not that wartime brutality would lessen cruelty, but that humanizing war might legitimate or perpetuate war itself.

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This is a view Tolstoy would consider later in his career, after a conversion experience inspired him to give up Andrei’s shortsighted, consequentialist outlook. (For anyone hewing to Jesus’s demand in the Sermon of the Mount to “resist not evil,” it is not just because it might make the world a better place.) However, Tolstoy still considered contingent risk through empirical conjectures. Now writing as a pacifist, Tolstoy thought the contingent risk was not that wartime brutality would lessen cruelty, but that humanizing war might legitimate or perpetuate war itself. By developing two fundamental comparisons between corporal practices, Tolstoy explored two causal pathways through which that contingent risk could be incurred in fact—pathways that in Humane I go on to argue have been followed in our time, as America’s “endless war” has ground on and on.

Tolstoy’s first pathway exploited the fact that, before abolition, chattel slavery had been made more humane. I called this pathway “the advocate’s compromise.” Tolstoy’s point was that reformers conceded the rights to slaveowners to hold property in human beings, in order to negotiate with masters to treat their property less cruelly. As the great historian Winthrop Jordan noted, the contingent risk materialized. “Victories over brutality left the real enemy more entrenched than ever. As slavery became less brutal there was less reason why it should be abolished.”

Perhaps Tolstoy was wrong in principle, but when it comes to the contingent risk of making war humane, we would have to check. The point is that the causal pathway is there to be followed.

I call the second pathway “the beneficiary’s bad faith.” In this case, Tolstoy compared one kind of animal slaughter with another that was more humane. Andrei had already made the comparison in War and Peace, but Tolstoy, who eventually became one of history’s most famous vegetarians, returned to it later in his career. The idea is that eating meat harvested after humanized slaughter frequently involved the (for the vegetarian) false moral belief that reducing the suffering of our prey excuses or justifies predation. We will, as Tolstoy worried, “devour these animals with full assurance that [we are] doing right.” If animal slaughter is a moral error, as Tolstoy assumed it was, it is wrong whether it is done humanely or not. But when done humanely, it could have the adverse effect of legitimating or perpetuating meat-eating itself. Those who celebrate the humanity of their violence help the contingent risk materialize.

As a contingent risk, whether either or both of these causal pathways are being followed depends on historical context. And there could also be other forms, like the consolation offered by political actors before they for the sake of humanizing their actions, to advocates who demand violence be ameliorated or who attempt to convince their audiences or beneficiaries that humanization makes them good people. But, as the rest of Humane tries to show, I think it is credible to suggest that the contingent risks Tolstoy worried about have been incurred in America’s war on terror in our time. When it comes to American war-making, the humanization agenda had not been substantially pushed until recently. In the decades before September 11, 2001, the causal pathways of the advocate’s compromise and the beneficiary’s bad faith were traveled for the first time. Now, however, endless and “humane” war is a signature moral and political phenomenon of our time, anticipated in the distant past of Tolstoy and a reality for an indefinite future.

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I think the most favorable way to interpret where Tolstoy ended up is as someone who was ultimately concerned with domination.

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I close Humane by suggesting that Tolstoy’s analogies themselves give the impression that—precisely by comparing war to violent corporal practices such as chattel slavery and animal slaughter—he still held on to Andrei’s view that the amount of cruelty in the world was the fundamental normative standard for assessing the contingent risk of legitimating and perpetuating such practices. As I have indicated, however, I think this is misleading. Not only did the mature Tolstoy abandon consequentialism in his overall ethics (after his conversion), but even in his empirical conjectures he pivoted to assessing the risks of humanization for peace. I think the most favorable way to interpret where Tolstoy ended up is as someone who was ultimately concerned with domination. And in ways he could never have imagined, the very humanization of war that Tolstoy condemned has begun to transform not merely cruelty but how we think about injury and death.

War remains unconscionably violent, of course, even when “humanized”. One could nonetheless say that it is trending non-violent, and advocates and beneficiaries of humanization sometimes dream not of an end to war but of a utopia of global policing: violent only when absolutely necessary. But if the wrong Tolstoy ended up caring about was not just physical cruelty but also political domination, this alternative would also be unconscionable—especially assuming it takes the form globally, as policing already does locally, of dominating certain kinds of people over others, across gradients of hierarchy established by things like faith, race, and class. It is for this reason that interpreting Tolstoy’s concern with contingent risk on legitimating or perpetuating domination may be useful for a new age of political reform.

Of course, abolitionism and “harm reduction” need not conflict, and many abolitionists facing down the carceral state or police killings today generally see no dilemma between them for their long-term ends in indicting the most atrocious features of systemic oppression. The point, rather, is to ensure that the long-term ends are always in sight, so that harm reduction is allied with “non-reformist reforms” that do not function to entrench and stabilize and thereby thwart ambitious transformation. Tolstoy’s arguments are current because they help us explore this risk and remind us that the necessary response to the violent policing of our fellow humans is not more humane policing, but less or none at all.

 

This post is part of a partnership between The Institute of Art and Ideas and
the Blog of the American Philosophical Association. The article was first published here.

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