War: Legal to Criminal and Back Again
War: Legal to Criminal and Back Again
By David Swanson
Remarks in Chicago on the 87th anniversary of the Kellogg-Briand Pact, August 27, 2015.
Thank you very much for inviting me here and thank you to Kathy Kelly for everything she does and thank you to Frank Goetz and everyone involved in creating this essay contest and keeping it going. This contest is far and away the best thing that has come out of my book When the World Outlawed War.
I proposed making August 27th a holiday everywhere, and that hasn't yet happened, but it's begun. The city of St. Paul, Minnesota, has done it. Frank Kellogg, for whom the Kellogg-Briand Pact is named, was from there. A group in Albuquerque is holding an event today, as are groups in other cities today and in recent years. A Congress member has recognized the occasion in the Congressional Record.
But the responses offered to some of the essays from various readers and included in the booklet are typical, and their failings should not reflect poorly on the essays. Virtually everyone has no idea that there is a law on the books banning all war. And when a person finds out, he or she typically takes no more than a few minutes to dismiss the fact as meaningless. Read the responses to the essays. None of the responders who were dismissive considered the essays carefully or read additional sources; clearly none of them read a word of my book.
Any old excuse works to dismiss the Kellogg-Briand Pact. Even combinations of contradictory excuses work fine. But some of them are readily available. The most common is that the ban on war didn't work because there have been more wars since 1928. And therefore, supposedly, a treaty banning war is a bad idea, worse in fact than nothing at all; the proper idea that should have been tried is diplomatic negotiations or disarmament or ... pick your alternative.
Can you imagine someone recognizing that torture has continued since numerous legal bans on torture were put in place, and declaring that the anti-torture statute should be thrown out and something else be used instead, perhaps body cameras or proper training or whatever? Can you imagine that? Can you imagine someone, anyone, recognizing that drunk driving has outlasted bans on it and declaring that the law failed and should be overturned in favor of trying television commercials or breathalyzers-to-access-keys or whatever? Sheer lunacy, right? So, why isn't it sheer lunacy to dismiss a law banning war?
This is not like a ban on alcohol or drugs that causes their use to go underground and expand there with added bad side effects. War is extremely difficult to do in private. Attempts are made to hide various aspects of war, to be sure, and they always were, but war is always fundamentally public, and the U.S. public is saturated with promotion of its acceptance. Try finding a U.S. movie theater that is not currently showing any movies glorifying war.
A law banning war is no more or less than what it was intended to be, part of a package of procedures aimed at reducing and eliminating warfare. The Kellogg-Briand Pact is not in competition with diplomatic negotiations. It makes no sense to say "I'm against a ban on war and in favor of using diplomacy instead." The Peace Pact itself mandates pacific, that is, diplomatic, means for the settlement of every conflict. The Pact is not in opposition to disarmament but aimed at facilitating it.
The war prosecutions at the end of World War II in Germany and Japan were one-sided victor's justice, but they were the first prosecutions of the crime of war ever and were based on the Kellogg-Briand Pact. Since then, the heavily armed nations have not yet fought each other again, waging war only on the poor nations that were never deemed worthy of fair treatment even by the hypocritical governments that signed the pact 87 years ago. That failure of World War III to arrive yet may not last, may be attributable to the creation of nuclear bombs, and/or may be a matter of sheer luck. But if nobody had ever driven drunk again after the very first arrest for that crime, tossing the law out as worse than useless would look even weirder than would tossing it out while the roads are full of drunks.
So why do people so eagerly dismiss the Peace Pact almost immediately upon learning about it? I used to suppose this was just a question of laziness and acceptance of bad memes in heavy circulation. Now I think it is more a matter of belief in the inevitability, necessity, or beneficiality of war. And in many cases I think it may be a matter of personal investment in war, or of reluctance to think that the primary project of our society might be entirely and tremendously evil and also blatantly illegal. I think it can be disturbing to some people to contemplate the idea that the central project of the U.S. government, taking in 54% of federal discretionary spending, and dominating our entertainment and self-image, is a criminal enterprise.
Look at how people go along with Congress supposedly banning torture every couple of years even though it was totally banned before the torture spree that began under George W. Bush, and the new bans actually purport to open up loopholes for torture, just as the U.N. Charter does for war. The Washington Post actually came out and said, just as its old friend Richard Nixon would have said, that because Bush tortured it must have been legal. This is a common and comforting habit of thought. Because the United States wages wars, war must be legal.
There have been times in the past in parts of this country when imagining that Native Americans had rights to land, or that enslaved people had the right to be free, or that women were as human as men, were unthinkable thoughts. If pressed, people would dismiss those ideas with any excuse that came to hand. We live in a society that invests more heavily in war than in anything else and does so as a matter of routine. A case brought by an Iraqi woman is now being appealed in the 9th Circuit seeking to hold U.S. officials responsible under the laws of Nuremberg for the war on Iraq that was launched in 2003. Legally the case is a sure win. Culturally it's unthinkable. Imagine the precedent that would be set for millions of victims in dozens of countries! Without a major change in our culture, the case doesn't stand a chance. The change needed in our culture is not a legal change, but a decision to abide by existing laws that are, in our current culture, literally unbelievable and unknowable, even if clearly and concisely written and publicly available and acknowledged.
Japan has a similar situation. The Prime Minister has reinterpreted these words based on the Kellogg-Briand Pact and found in the Japanese Constitution: "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes ... [L]and, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized." The Prime Minister has reinterpreted those words to mean "Japan shall maintain a military and wage wars anywhere on earth." Japan doesn't need to fix its Constitution but to abide by its clear language -- just as the United States could probably stop bestowing human rights on corporations by simply reading the word "people" in the U.S. Constitution to mean "people."
I don't think I would let the common dismissal of the Kellogg-Briand Pact as worthless by people who five minutes earlier never knew it existed bother me were so many people not dying of war or had I written a tweet instead of a book. If I had just written on Twitter in 140 characters or fewer that a treaty banning war is the law of the land, how could I protest when someone dismissed it on the basis of some factoid they'd picked up, such as that Monsieur Briand, for whom the treaty is named along with Kellogg, wanted a treaty with which to force the U.S. to join in French wars? Of course that's true, which is why the work of activists to persuade Kellogg to persuade Briand to expand the treaty to all nations, effectively eliminating its function as a commitment to France in particular, was a model of genius and dedication worth writing a book about instead of a tweet.
I wrote the book When the World Outlawed War not just to defend the importance of the Kellogg-Briand Pact, but primarily to celebrate the movement that brought it into being and to revive that movement, which understood that it then had, and which still has, a long way to go. This was a movement that envisioned the elimination of war as a step building on the elimination of blood feuds and dueling and slavery and torture and executions. It was going to require disarmament, and the creation of global institutions, and above all the development of new cultural norms. It was toward that latter end, toward the purpose of stigmatizing war as something illicit and undesirable, that the Outlawry movement sought to outlaw war.
The biggest news story of 1928, bigger at the time even than Charles Lindbergh's flight of 1927 which contributed to its success in a manner completely unrelated to Lindbergh's fascist beliefs, was the signing of the Peace Pact in Paris on August 27th. Was anyone naive enough to believe that the project of ending war was well on its way to success? How could they not have been? Some people are naive about everything that ever happens. Millions upon millions of Americans believe that each new war is going to finally be the one that brings peace, or that Donald Trump has all the answers, or that the Trans-Pacific Partnership will bring us freedom and prosperity. Michele Bachmann supports the Iran agreement because she says it will end the world and bring back Jesus. (That is no reason, by the way, for us not to support the Iran agreement.) The less that critical thinking is taught and developed, and the less that history is taught and understood, the wider a field of action naiveté has to work in, but naiveté is always present in every event, just as is obsessive pessimism. Moses or some of his observers may have thought he would end murder with a commandment, and how many thousands of years later is it that the United States has begun taking up the idea that police officers shouldn't kill black people? And yet nobody suggests tossing out laws against murder.
And the people who made Kellogg-Briand happen, who were not named Kellogg or Briand, were far from naive. They expected a generations-long struggle and would be amazed, bewildered, and heartbroken by our failure to continue the struggle and by our rejection of their work on the grounds that it hasn't succeeded yet.
There is also, by the way, a new and insidious rejection of peace work that pokes its way into the responses to the essays and into most events like this one these days, and I fear that it may be growing rapidly. This is the phenomenon that I call Pinkerism, the rejection of peace activism on the basis of the belief that war is going away on its own. There are two problems with this idea. One is that if war were going away, that would almost certainly be in large part because of the work of people opposing it and striving to replace it with peaceful institutions. Second, war isn't going away. U.S. academics make a case for war vanishing that rests on a foundation of fraud. They redefine U.S. wars as something other than wars. They measure casualties against global population, thus avoiding the fact that recent wars have been as bad for the populations involved as any wars of the past. They shift the topic to the decline of other types of violence.
Those declines of other types of violence, including the death penalty in U.S. states, should be celebrated and held up as models for what can be done with war. But it's not yet being done with war, and war is not going to do it by itself without a great deal of effort and sacrifice by us and by many other people.
I'm glad that people in St. Paul are remembering Frank Kellogg, but the story of late 1920s peace activism is a great model for activism precisely because Kellogg was opposed to the whole idea such a short time before he was enthusiastically working for it. He was brought around by a public campaign initiated by a Chicago lawyer and activist named Salmon Oliver Levinson, whose grave rests unnoticed in Oak Woods Cemetery, and whose 100,000 papers sit unread at the University of Chicago.
I sent an op-ed on Levinson to the Tribune which declined to print it, as did the Sun. The Daily Herald ended up printing it. The Tribune did find room a couple of weeks ago to print a column wishing that a hurricane like Katrina would hit Chicago, creating enough chaos and devastation to allow the swift destruction of Chicago's public school system. An easier method of wrecking the school system might be just to force all the students to read the Chicago Tribune.
This is part of what I wrote: S.O. Levinson was a lawyer who believed that courts handled interpersonal disputes better than dueling had done before it was banned. He wanted to outlaw war as a means of handling international disputes. Until 1928, launching a war had always been perfectly legal. Levinson wanted to outlaw all war. "Suppose," he wrote, "it had then been urged that only 'aggressive dueling' should be outlawed and that 'defensive dueling' be left intact."
I should add that the analogy may be imperfect in an important way. National governments banned dueling and handed out punishments for it. There's no global government punishing nations that make war. But dueling didn't die out until the culture rejected it. The law was not enough. And part of the cultural shift against war certainly needs to include the creation and reformation of global institutions that reward peacemaking and punish war-making, as in fact such institutions already do punish war-making by poor nations acting against the agenda of the West.
Levinson and the movement of Outlawrists whom he gathered around him, including well-known Chicagoan Jane Addams, believed that making war a crime would begin to stigmatize it and facilitate demilitarization. They pursued as well the creation of international laws and systems of arbitration and alternative means of handling conflicts. Outlawing war was to be the first step in a lengthy process of actually ending that peculiar institution.
The Outlawry movement was launched with Levinson's article proposing it in The New Republicmagazine on March 7, 1918, and took a decade to achieve the Kellogg-Briand Pact. The task of ending war is ongoing, and the Pact is a tool that might still help. This treaty commits nations to resolving their disputes through peaceful means alone. The U.S. State Department's website lists it as still in effect, as does the Department of Defense Law of War Manual published in June 2015.
The frenzy of organizing and activism that created the peace pact was massive. Find me an organization that's been around since the 1920s and I'll find you an organization on record in support of abolishing war. That includes the American Legion, the National League of Women Voters, and the National Association of Parents and Teachers. By 1928 the demand to outlaw war was irresistible, and Kellogg who had recently mocked and cursed peace activists, began following their lead and telling his wife he might be in for a Nobel Peace Prize.
On August 27, 1928, in Paris, the flags of Germany and the Soviet Union newly flew along many others, as the scene played out that is described in the song "Last Night I Had the Strangest Dream." The papers the men were signing really did say they would never fight again. The Outlawrists persuaded the U.S. Senate to ratify the treaty without any formal reservations.
The U.N. Charter was ratified on October 24, 1945, so its 70th anniversary is approaching. Its potential is still unfulfilled. It has been used to advance and to impede the cause of peace. We need a rededication to its goal of saving succeeding generations from the scourge of war. But we should be clear about how much weaker the U.N. Charter is than the Kellogg-Briand Pact.
Whereas the Kellogg-Briand Pact forbids all war, the U.N. Charter opens up the possibility of a legal war. While most wars do not meet the narrow qualifications of being defensive or U.N.-authorized, many wars are marketed as if they meet those qualifications, and many people are fooled. After 70 years isn't it time for the United Nations to cease authorizing wars and to make clear to the world that attacks on distant nations are not defensive?
The U.N. Charter echoes the Kellogg-Briand Pact with these words: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." But the Charter also creates those loopholes for war, and we are supposed to imagine that because the Charter authorizes the use of war to prevent war it is better than a total ban on war, it is more serious, it is enforceable, it has -- in a revealing phrase -- teeth. The fact that the U.N. Charter has been failing to eliminate war for 70 years isn't held up as grounds for rejecting the U.N. Charter. Rather, the U.N. project of opposing bad wars with good wars is imagined as an eternal on-going project that only the naive would suppose might be completed some day. As long as the grass grows or water runs, as long as the Israeli Palestinian peace process holds conferences, as long as the Non-proliferation Treaty is pushed in the faces of non-nuclear nations by permanent nuclear powers that violate it, the United Nations will go on authorizing the protection of Libyans or others by the world's dominant war makers who will go on immediately creating hell on earth in Libya or elsewhere. This is how people think of the United Nations.
There are two relatively recent twists on this on-going disaster, I think. One is the looming catastrophe of climate change that sets a time limit that we may have already surpassed but that certainly isn't lengthy on our on-going waste of resources on war and its intense environmental destruction. Eliminating war has to have an end date and it has to be fairly soon, or war and the earth on which we wage it will eliminate us. We cannot go into the climate-induced crisis we are headed into with war on the shelf as an avialable option. We'll never survive it.
The second is that the logic of the United Nations as permanent maker of war to end all war has been stretched far beyond the norm by both the evolution of the doctrine of "responsibility to protect" and by the creation of the so-called global war on terror and the commission of drone wars by President Obama.
The United Nations, created to protect the world from war, is now widely thought of as having a responsibility to wage wars under the pretence that doing so protects someone from something worse. Governments, or at least the U.S. government, can now wage war by either declaring that they are protecting someone or (and numerous governments have now done this) by declaring that the group they are attacking is terrorist. A U.N. report on drone wars mentions rather casually that drones are making war the norm.
We are supposed to talk about so-called "war crimes" as a particular type, even a particularly bad type, of crimes. But they are thought of as the smaller elements of wars, not the crime of war itself. This is a pre-Kellogg-Briand mentality. War itself is widely seen as perfectly legal, but certain atrocities that typically constitute the bulk of the war are understood as illegal. In fact, war's legality is such that the worst crime possible can be legalized by declaring it to be part of a war. We've seen liberal professors testify before Congress that a drone killing is murder if it's not part of a war and just fine if it is part of a war, with the determination of whether it's part of the war being left up to the president ordering the murders. The small and personal scale of drone murders should be helping us recognize the wider killing of all wars as mass murder, not legalizing murder by associating it with war. To see where that leads, look no further than the militarized police on the streets of the United States who are far more likely to kill you than ISIS is.
I've seen a progressive activist express outrage that a judge would declare that the United States is at war in Afghanistan. Doing so apparently allows the United States to keep Afghans locked up in Guantanamo. And of course it's also a mar on the myth of Barack Obama ending wars. But the U.S. military is in Afghanistan killing people. Would we want a judge to declare that under those circumstances the U.S. is not at war in Afghanistan because the President says the war is officially over? Do we want someone who wages war to have the legal power to recategorize a war as an Overseas Contingency Genocide or whatever it's called? The United States is at war, but the war is not legal. Being illegal, it cannot legalize the additional crimes of kidnapping, imprisonment without charge, or torture. If it were legal it couldn't legalize those things either, but it's illegal, and we've been reduced to the point of wanting to pretend it isn't happening so that we can treat the so-called "war crimes" as crimes without coming up against the legal shield created by their being part of a wider operation of mass-murder.
What we need to revive from the 1920s is a moral movement against mass-murder. The illegality of the offense is a key part of the movement. But so is its immorality. Demanding equal participation in mass-murder for trans-gendered people misses the point. Insisting on a military in which female soldiers are not raped misses the point. Canceling particular fraudulent weapons contracts misses the point. We need to insist on an end to mass-state-murder. If diplomacy can be used with Iran why not with every other nation?
Instead war is now a protection for all lesser evils, an ongoing rolling shock doctrine. On September 11, 2001, I was working on trying to restore value to the minimum wage and was immediately told that nothing good could be done anymore because it was war time. When the CIA went after whistleblower Jeffrey Sterling for supposedly being the one to reveal that the CIA had given nuclear bomb plans to Iran, he appealed to civil rights groups for help. He was an African American who had accused the CIA of discrimination and now believed he was facing retaliation. None of the civil rights groups would go near. The civil liberties groups that address some of the lesser crimes of war will not oppose war itself, drone or otherwise. Environmental organizations that know the military is our single biggest polluter, will not mention its existence. A certain socialist candidate for president can't bring himself to say that the wars are wrong, rather he proposes that the benevolent democracy in Saudi Arabia take the lead in waging and footing the bill for the wars.
The Pentagon's new Law of War Manual which replaces its 1956 version, admits in a footnote that the Kellogg-Briand Pact is the law of the land, but proceeds to claim legality for war, for targeting civilians or journalists, for using nuclear weapons and napalm and herbicides and depleted uranium and cluster bombs and exploding hollow-point bullets, and of course for drone murders. A professor from not far from here, Francis Boyle, remarked that the document could have been written by Nazis.
The Joint Chiefs of Staff's new National Military Strategy is worth reading as well. It gives as its justification for militarism lies about four countries, beginning with Russia, which it accuses of "using force to achieve its goals," something the Pentagon would never do! Next it lies that Iran is "pursuing" nukes. Next it claims that North Korea's nukes will someday "threaten the U.S. homeland." Finally, it asserts that China is "adding tension to the Asia-Pacific region." The document admits that none of the four nations wants war with the United States. "Nonetheless," it says, "they each pose serious security concerns."
And serious security concerns, as we all know, are far worse than war, and spending $1 trillion a year on war is a small price to pay to handle those concerns. Eighty-seven years ago this would have seemed insanity. Luckily we have ways of bringing back the thinking of years gone by, because typically someone suffering from insanity doesn't have a way to enter into the mind of someone else who's viewing his insanity from the outside. We have that. We can go back to an era that imagined the ending of war and then carry that work forward with the goal of completing it.