The US is fighting Nazi Germany. It knows that Hitler and his best commanders are in a building with 20 civilians. If it levels the building, it cripples the German war effort. Concrete? Check. Definite? Check. Military? Check.
Nazi Germany, then, knows that FDR, George Marshall, Ike, Patton, etc. are in a building with 20 civilians. It decides to level the building in order to cripple the US war effort. Concrete? Check. Definite? Check. Military? Check.
The same thing? No way. And if international lawyers want to say it’s the same thing, then that says more about them than those who criticize them. In the immortal words of Mr. Bumble: “if the law supposes that then the law is a ass — a idiot.”
As people interested in human decency, we would very much have like Hitler blown up, and we are very glad FDR wasn’t. But would it have been any more of a war crime to have blown up the US military leadership than to have blown up the Axis one? Blowing up opposing leadership staffs is what you do in a war.
The argument Zasloff seems to be making is that because the ends of the Axis in WW2 (World domination, and not in a nice way) were evil, the mlitary justifiability of their soldiers’ acts is overshadowed by the political unjustifiability of the cause they advanced. And conversely, because the aims of the allies in WW2 (world domination, but nicely) were good, our military justifiability is helped along by the political desirability of the cause they advanced.
And that’s a tidy argument, but it’s stupid. Leaders almost never take their countries to war believing that the cause they advance is unjust. Maybe some omniscient observer can decide whose cause is just and therefore who was morally in the wrong by going to war in the first place, but if we had widely-believed access to such an oracle we wouldn’t be in this fix in the first place. And the purpose of laws of war (as other laws) is to decide what actions are beyond the pale even for someone absolutely convinced of the rightness of their cause.
So yeah, once you’ve decided which side is right and which side is wrong, then your subsequent analysis of the rightness of individual actions will be determined by that decision. Not useful.
(Interestingly enough, when I first read the piece, I thought “political goals” didn’t mean things like lasting peace or territorial integrity or suchlike, but rather “gains in the next election” or “increases in the number of mobilizable supporters. Talking about military activities in that context is even more egregious.)