War -- Part I

It's the oldest trick in the book: when troubles proliferate, pick a fight. Fights compel us to put aside our differences and join the common cause, so they are catnip for politicians. Senator Arthur Vandenberg famously endorsed this phenomenon during the Cold War when announcing that all politics must stop at the water's edge. The forays into Iraq and Afghanistan have not sufficed to squelch dissent, so Washington is looking to double down in Iran, Syria, or anyplace else where blood might be shed. A stumbling block is the very system of law that the United States helped create after the Second World War, which condemns the aggressive use of force. Not many people understand this system or how it came about, so here's a thumbnail sketch. I wrote this three years ago during the Bush administration, but things have not changed very much.

AMERICA LETS SLIP THE DOGS OF WAR

In recent decades the United States has claimed unfettered discretion to initiate war against mere potential threats to national security, as well as to topple governments that the United States deems oppressive to their own citizens. This attitude represents a grave breach of treaty and customary obligations that the United States itself was instrumental in creating, a tragic irony that projects to the rest of the world a spectacle of unlawful government that has become all too familiar here at home. Enabling this belligerence is a pagan philosophy that equates power with righteousness, as summed up by one of George W. Bush’s spokesmen:

We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out.

By refusing to be bound by the law or even by the concept of objective truth, and by drawing the sword according to nothing but its own whims, the United States government has joined the company of history’s worst offenders. The purportedly noble goals of this arrogance do nothing to make it righteous or unique.

The Struggle To Define The Lawful Initiation of Force

For centuries man has attempted to frame principles governing when the resort to war becomes justifiable, a largely futile effort that has generated a great deal of literature and that only recently has become standardized into a uniform set of rules.*

From the days of ancient Greece up through the nineteenth century, scholars propounded the theory of “just war” as determining when force becomes proper. As outlined by secular thinkers such as Hugo Grotius and ecclesiastics such as St. Thomas Aquinas, the initiation of military force had to fulfill an array of standards such as approval by a legitimate authority, an intention to advance good and/or avoid evil, force as a last resort only, proportionality between the costs of war and the goals to be attained thereby, a reasonable hope of success, and a formal declaration of war. But these criteria proved highly subjective and open to misinterpretation, so they did little to restrain nation-states once they emerged as autonomous entities at the end of the Middle Ages. National rulers predictably began throwing the mantle of justice over every one of their sordid military ventures, diminishing the “just war” doctrine from a precondition to a pretext.

Only towards the end of the nineteenth century did nations begin making an earnest effort to place an objective boundary on what had become wanton warfare in the service of cynical politics. Early steps were taken at the Hague Conferences of 1899 and 1907, where many of the smaller nations enjoyed their first taste of sovereign equality with the great powers. Although the nations participating in the Hague conferences did not propose any radical changes to the nation-state system, they nevertheless created an arbitration mechanism for resolving international disputes, and they called attention to the barbarities of war, committing themselves to meet regularly to make any further progress possible.

World War I broke out in 1914 and dimmed the hopes of the Hague system, but the war nevertheless produced a far more serious effort to curtail the use of force, namely the League of Nations. This international bureaucracy – the brainchild of President Woodrow Wilson, and forerunner of the modern United Nations – sought to guarantee peace through “collective security”: League members would rush to the aid of any other member victimized by aggression. Under League rules, feuding nations could not legally resort to war unless and until they submitted their disputes to adjudication. But the League suffered major problems, not least of which was the refusal of the United States to join it. Moreover, there remained the stark possibility that a member of the League would resort to war even after a peaceful adjudication, especially if the outcome were disfavorable.

Several nations attempted to cure this defect by entering the much-maligned Kellogg-Briand Pact of 1928, which “outlawed” war as a means for resolving international disputes. Contrary to the guffaws of its detractors, the Pact did not attempt to accomplish the ridiculous objective of eliminating all war; rather, the Pact and its preparatory materials renounced offensive wars, while simultaneously permitting defensive wars. So a new litmus test for the lawful use of force had just emerged, one that turned on the distinction between aggression (impermissible) versus defense (permissible). Henceforth, all aggressive uses of force were deemed illegal, regardless of the “justice” of the underlying cause. Whether a cause might be “just” ceased entirely as the relevant inquiry – after all, war always appears justified to the people perpetrating it, so something more concrete than amorphous “justice” had to serve as the standard.

In flagrant disregard for this new standard, Japan, Italy, and Germany launched aggressive attacks on their neighbors during the 1930s in the name of “justice” and “national security,” but certainly not in self-defense. Japan invaded the Chinese province of Manchuria in 1931 and erected a puppet regime under the former Chinese emperor. From the very beginning, Japanese leaders portrayed this invasion as a noble mission to bring liberty and prosperity to the Manchurian people, who were suffering at the hands of rapacious warlords. Similarly, in 1935 Italy flexed its newfound muscle by unleashing tanks, planes, and poison gas on the people of Ethiopia, a massacre supposedly justified by Ethiopia’s persistence of archaic and evil practices such as slavery. As Italian head-of-state Mussolini phrased it:

The war which we have begun on African soil is a war of civilisation and liberation. It is a war of the people. The Italian people feels it as its own. It is the war of the poor, of the disinherited, of the proletariat. Against us are ranged the forces of conservatism, of selfishness, and of hypocrisy. We have taken on a hard fight against these forces. We shall continue this fight to the end.

And of course it cannot be forgotten that in 1938 Hitler used the language of justice to threaten war against Czechoslovakia on behalf of “oppressed” Germans living there, such threats causing the notorious appeasement by British Prime Minister Neville Chamberlain. In 1939, Hitler directed the same sanctimonious rhetoric at Poland in order to “protect” Germans in Danzig, only this time he confronted an uncompromising foe. In response, Hitler justified launching an aggressive war, just as Japan and Italy had recently done, thereby breaking the back of the League of Nations and ushering in the bloodiest war ever.

At the end the war in 1945, the United States resolved to play a more active role on the world stage and condemned such aggressive uses of force for all time. Towards this end, the United States spearheaded the war crimes tribunals in Nuremberg and Tokyo to punish the Axis powers for the incalculable harm that their aggression had wrought, thereby helping to frame the famous Nuremberg Principles that forbade and censured any such “Crimes Against The Peace” and their accompanying “War Crimes” and “Crimes Against Humanity.”** While serving as a prosecutor at Nuremberg, Supreme Court Justice Robert Jackson made it clear that modern nation-states would no longer tolerate aggressive warfare, no matter what justification was offered for it:

Repeatedly, nations have united in abstract declarations that the launching of aggressive war is illegal. They have condemned it by treaty. But now we have the concrete application of these abstractions in a way which ought to make clear to the world that those who lead their nations into aggressive war face individual accountability for such acts. . . .

We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy. [italics added]

In addition to holding these tribunals, the United States demonstrated its commitment to international peace and security by inviting the Allies to San Francisco in order to establish the United Nations, whose founding Charter (a binding treaty) states in the preamble that its purpose is “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” To secure this purpose, Article 2(4) of the Charter places a blanket prohibition against the use of force:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

So the United States, in unison with the vast majority of the other nations of the world, declared that the international use of force would thenceforth be presumptively illegal. Non-use of force was the rule; use of force was the exception. Nations could resort to force only in those few circumstances provided by the U.N. Charter and customary international law, as demonstrated below:*


Individual nations therefore retained the inherent right to use force in their own defense or in the defense of others against armed attack, without the need for external approval. But in order to make the grave decision to initiate war, nations agreed that they would first seek a broad-based consensus among the fifteen member nations of the U.N. Security Council, five of whom are permanent members whose great-power status makes their unanimous consent absolutely necessary: the United States, the United Kingdom, France, China, and the Soviet Union (now Russia, who inherited this permanent-member status).***

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* Principles governing the initiation of warfare fall under the generic heading of jus ad bellum, which differ from the principles governing the conduct of warfare once initiated (jus in bello). Strangely, while the rules for initiating warfare have grown more refined, the actual conduct of warfare has grown more barbarous. Ever since the French Revolution, war has ceased functioning as a limited dispute between governments and now functions as an unrestrained, cathartic bloodletting between entire peoples.

** It is crucial to note that under the Nuremberg Principles adopted by the International Military Tribunal, these three crimes hinged on international wrongdoing – there was no liability for purely domestic activities unconnected to illegal warfare, a limitation that has since evaporated.

*** Proving that even the most straightforward legal text buckles under the weight of power politics, the U.N. Security Council swiftly disregarded the requirement that all five permanent members give an affirmative vote for the use of force. When the Truman administration sought the Security Council’s approval (but not Congress’s) for the “police action” in Korea, the administration treated the Soviet Union’s abstention from voting as a silent approval (the Soviet Union had absented itself in a fit of anger over the fact that Taiwan rather than Communist China was on the Council at that time). This illicit practice has never died, and the Council now requires an affirmative veto to derail any such resolution.