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Monday, August 24, 2020

‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and Weiner

 

Seth Barrett Tillman, A Response to McKinney, Sagan, and Weiner’s ‘Hiroshima and the Myths of Military Targets and Unconditional Surrender’ (submitted to Lawfare on Aug. 24, 2020).

 

In their August 21, 2020 article on Lawfare, Hiroshima and the Myths of Military Targets and Unconditional Surrender, Katie McKinney, Scott D. Sagan, and Allen S. Weiner wrote:

Evaluating the military advantage of an attack under jus in bello [rules for conduct during war] principles must be assessed in light of a state’s overall war aims, which are themselves subject to legal and moral constraints. Admittedly, the principles governing the terms that states may impose as conditions for ending war—whether under the framework of jus ad bellum [rules regarding the resort to force] proportionality or jus post bellum [rules regarding justice after war]—make up one of the least well-developed areas of the law of armed conflict. But there are limits on the ends states may seek in terminating wars. As the Defense Department Law of War Manual notes, “the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce.” This principle applies at the end of a war as well. Because it would have entailed the awful human costs of an invasion, Truman’s demand for Japan’s unconditional surrender to end the war was indefensible. Seeking to avoid the larger losses that would flow from an unjust demand for unconditional surrender cannot justify the Hiroshima attack. (bold and underscore added.)

The passage marked in bold is used to support the prior proposition, which was “that there are limits on the ends states may seek in terminating wars.” But the specific quote extracted from the Law of War Manual, I suggest, means exactly the opposite of what the authors think it supports. As such, perhaps, some reconsideration may be in order?

For a view of the wider subject-matter different from the three authors, the careful reader might consider my 1-page 2015 article which appeared in the Claremont Review of Books.

Seth

Seth Barrett Tillman, ‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and WeinerNew Reform Club (Aug. 24, 2020, 8:53 PM), <https://reformclub.blogspot.com/2020/08/lawfare-does-not-post-corrections.html>; 

Seth Barrett Tillman, Advice to the Allies—1945, 15(2) Claremont Review of Books 13, Spring 2015, <http://ssrn.com/abstract=2478600>, <http://tinyurl.com/pbhmrox/>;


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