Yet Another Thought Experiment

Now that thought experiments are in (or maybe not), perhaps this is in order:

WASHINGTON, August 9, 1862 — Bowing to international pressure, U.S. President Abraham Lincoln lifted the Federal Government’s naval blockade against southern rebels, who call themselves the “Confederate States of America.”

European sources, most particularly the British and French governments, have repeatedly condemned the blockade as “disproportionate.” British Chancellor of the Exchequer William E. Gladstone stated that the blockade “may attempt to harm the southern war effort, but it does not take into account the thousands of southern women and children, not to mention Negro slaves, who have suffered enormously because of it.” Reports have been emerging from the south of severe shortages of food and clothing, with thousands of southern children going hungry.

Gladstone continued that the blockade violated international law because it could not pinpoint its harm against Confederate military targets. It is “a method or means of combat which cannot be directed at a specific military objective“. Moreover, he stated, everyone knew that the blockade would cause great suffering and harm to civilians, and this was “excessive in relation to the concrete and direct military advantage anticipated.”

U.S. Minister to the Court of St. James Charles Francis Adams fought a losing rear-guard battle against the pressure, protesting that the southern states were fighting to maintain the slave system. Pro-Confederate Cabinet ministers dismissed this contention as completely irrelevant, arguing that Adams’ argument conflated jus ad bellum with jus in bello. Gladstone was particularly contemptuous of Lincoln, noting that the President’s war aims seemed to be constantly shifting, and could not even commit to emancipating the slaves. “If we were to take into account each side’s war aims,” he mocked, “then each side would simply shift its aims. Both sides claim to be fighting for justice, and we cannot possibly judge the matter.”

He also had little respect for the federal contention that the Confederates were taking food and clothes from children in order to garner sympathy in the European press. “Jus in bello is quite clear on this,” he noted. “The enemy’s failure to adhere to the laws of war does not excuse your own failure.”

“Let us do away with the monstrous device of the blockade,” said Gladstone. He warned that the Cabinet might take stronger measures against the United States, particularly if did not take action against such notorious Union commanders as General William T. Sherman, known for seizing civilian property and for commandeering southern civilians to work on military projects.

Confederate President Jefferson Davis was jubilant at the news. “Of course we are pleased that the Washington tyranny is following international law,” he said in a statement. “But now we will be able to feed our people and survive the onslaught from the Black Republican abolitionists.”

Update: Sigh. Maybe Matt is right. The point here is not to say that Israel is justified in launching the Gaza operation — I’m not sure either way. Rather, I am arguing that one cannot divorce the ends of a conflict from its means (and no, this doesn’t mean that the “good guys” can do anything they want). James thinks that injecting war aims into discussions of war means makes the entire framework so unstable that it loses its value. I think that it’s unavoidable, and also is morally justified. But that’s the level of the discussion at this stage.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.