Inter-temporal International Law? Or How Would Modern International Law Have Treated “Unconditional Surrender”?

by Julian Ku

Seth Tillman of Maynooth University has a clever “parody” letter (scroll to the bottom) in the most recent Claremont Review of Books.  I can’t really do it justice here, but it is an amusing take on how modern international law might have critiqued the relentless Allied demands for unconditional surrender by Germany and Japan in 1945.  Also, I particulalry appreciate his efforts to reproduce mid-20th century typography.

http://opiniojuris.org/2015/06/02/inter-temporal-international-law-or-how-would-modern-international-law-have-treated-unconditional-surrender/

2 Responses

  1. It can be hazardous to attribute any particular motive or design to the author of a parody, so I offer the following with some trepidation:

    I’m not especially amused. The first half of the letter, in any event, appears to be an effort to show that the principles of precaution and proportionality must be absurd–ridiculous. After all, the allies didn’t abide by them; and since God was on their side, mustn’t it be the case that such principles are wrongheaded, or, at a minimum, not genuinely customary law?

    One sees this a lot these days: In response to an assertion that X is prohibited under customary law: “But how can that be? After all, the U.S. and its allies did it in WWII!”

    Of course, the fact that Nation X did something–perhaps even something quite understandable under the circumstances, against evil enemies, and that we are inclined to praise because of its undoubted (or at least arguable) benefits (such as ending the war more quickly)–hardly means that international law does not, or should not, prohibit that very conduct.

    In any event, this strikes me as a particularly inapt example of the supposed absurdity of modern humanitarian and human rights law that (I presume) Seth wishes to expose and to subject to ridicule. My understanding (and I apologize in advance if I have this wrong) is that the rules of precaution (and even distinction) and proportionality were *not* well-established custom during the Second World War, which is one big reason why parties on both sides were so indiscriminate in their bombing in urban areas, where they were quick to discount the risk of civilian casualties. After the War, the world looked upon those devastating civilian losses in horror, and that was the very impetus for the development of modern humanitarian law–especially the principles of distinction, precaution and proportionality–promoted and led by the United States.

    Again, I might be misreading it, but Seth’s parody certainly seems to be, in effect, a paean to the good ol’ days when great states did not worry themselves about such things as the widespread death of civilians–not, in any event, when there were genuinely evil enemies to be vanquished. Me, I’m not so nostalgic.

  2. “but Seth’s parody certainly seems to be, in effect, a paean to the good ol’ days when great states did not worry themselves about such things as the widespread death of civilians–not, in any event, when there were genuinely evil enemies to be vanquished.”

    I don’t know Seth Tillman, but based only on my read of his “parody” piece, I suspect his response to the criticism above would be a wry “Yes, and?”

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.