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10 Ways We Pretend War Is Not a Crime and How to Change Them

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August 27, 2019, remarks, Chicago

By David Swanson

Happy Kellogg-Briand Pact Day! As you all know, but most people do not, the Peace Pact was signed 91 years ago today. And, as you all probably know, but most people do not, the inspiration and vision and endless labor behind it came from a mass movement begun and led, not by Mr. Kellogg or Monsieur Briand but by a lawyer from Chicago named Salmon Oliver Levinson. You could point that out to Minnesotans from Frank Kellogg's Twin Cities if, of course, any of them had ever heard of Frank Kellogg.

A long time back I was asked for a title for this speech, which I hadn't yet written, and I replied "10 Ways We Pretend War Is Not a Crime and How to Change Them." More recently I sat down with the hope that I could think of 10 such ways. Unfortunately, far more than 10 items immediately occurred to me. So, the following are 10 greatest hits and broad categories of the ways in which we pretend that war is not a crime plus how to change them. As a top 10 list, I will number the items in reverse order. I may also spend so much time on the first one that you forget it's a list. Nonetheless . . .

Number 10. Laws like the Kellogg-Briand Pact are ignored. The pact, which bans all war, is a treaty to which the U.S. government is a party. That makes it the supreme law of the land under the U.S. Constitution. It is a treaty that has not been ended or abolished or withdrawn from. The U.S. State Department website lists it as in effect and lists 66 nations as parties to it. The Pact is silent on any means of ending or withdrawing from it. However, the United Nations Charter states that "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." This creates the possibility to argue plausibly that the U.N. Charter replaced the Peace Pact. But it is an argument that has to be made. It does not exist as specific written law.

It is useful to ask what obligations under the U.N. Charter might conflict with obligations under the Peace Pact of Paris. They cannot possibly be obligations of peace. The Peace Pact requires that all disputes among parties be settled by peaceful means. They also cannot be obligations to uphold the banning of war through legal processes. The Peace Pact was the basis for the trials in Nuremberg and Tokyo following World War II, and it conflicts with no imaginable peaceful means of upholding peace, many of which were envisioned and advocated for by the people behind the Pact's creation. The only conflict could be a U.N. Charter-based obligation to wage war. That would certainly conflict with the Kellogg-Briand Pact. But the U.N. Charter does not necessarily oblige any nations to wage war. It does permit them to wage war under certain limited circumstances, as so-called individual or collective self-defense after being attacked and until the United Nations takes action. It also stipulates that agreements will be negotiated with member states for the collective waging of war whenever decided on by the U.N. Security Council and to be overseen by the U.N. Security Council. Those agreements would certainly conflict with the Kellogg-Briand Pact, but this part of the U.N. Charter is not used and has next to nothing to do with anything we think of as wars. There have been wars approved by the United Nations in Korea and the Persian Gulf, but they have not been led by the United Nations, and the U.N. Charter has not obliged any government to take part in them. A more likely source of conflict is in the smaller operations that the U.N. calls "peacekeeping," but that doesn't get us to the elimination of the Kellogg-Briand Pact, which the wording of the U.N. Charter appears to leave in place except where a conflict arises on a case-by-case basis.

When the Kellogg-Briand Pact is dismissed as no longer in place or relevant it is typically not with any legal argument or any mention of the U.N. Charter, but rather through the claim that the Kellogg-Briand Pact "failed." This is a truly bizarre understanding of how laws work. Murder exists, yet we don't declare all laws against murder to have "failed" and proceed to completely ignore them. We have prisons full of people who violated laws against murder but empty of anyone who violated laws against war. The U.N. Charter also bans war, albeit with exceptions, and we do not declare it gone because "failed."

I am not a lawyer, and I don't want to focus only on a legal argument for the Pact still being in place. I readily admit that most lawyers believe or assume that it is not still in place. I further readily admit that it is routinely violated, as is the U.N. Charter, and that an argument over whether one routinely violated law supersedes another routinely violated law is of limited value. But the problem with ignoring the Kellogg-Briand Pact and the history of its creation and its successes is largely the same whether we need to create compliance with the existing Pact or we need to recreate and then compel compliance with a new pact. The value lies in the goal of such compliance and in the lessons to be learned from the movement that won over people like Frank Kellogg in the 1920s.

The Outlawry Movement, the effort to outlaw war, was a principled movement that embraced rather than hid from moral arguments, and that thought big, as big as a Green New Deal or healthcare or education or an end to mass incarceration in fact much bigger than that. Those are all things that lots of other countries already have. It's simply imagined to be a radical idea for the United States to have them too. Nobody had a global agreement to end war. Levinson saw such an agreement as one tool in the abolition of war, and he saw the abolition of war as one step in a chain of progress that had included ending such practices as duelling. The U.S. Senate ratified the Kellogg-Briand Pact and did not attach any reservations to it. However, the Senate Foreign Relations Committee separately declared that it believed the Pact allowed war as self-defense. Once again, I readily admit that a law only amounts to what people suppose it is and how they use it. However, there is a common understanding of law that says it should mean what it was supposed to mean by the people who created it. The reason for the separate interpretive statement by the committee was precisely to contradict the treaty itself, which had been drafted and lobbied for by people who wanted to ban all war, not just aggressive war, and who had successfully fended off every effort to limit the actual words of the treaty in that way. Levinson explained himself as follows:

"Suppose this same distinction had been urged when the institution of duelling [sic] was outlawed. . . . Suppose it had then been urged that only 'aggressive duelling' should be outlawed and that 'defensive duelling' be left intact. . . . Such a suggestion relative to duelling would have been silly, but the analogy is perfectly sound. What we did was to outlaw the institution of duelling, a method theretofore recognized by law for the settlement of disputes of so-called honor."

The U.S. Senate Foreign Relations Committee of 1929 may have simply been stating the obvious and inevitable, as many people would say to this day. Outlawing defensive war is insanity and therefore sane people must point out that insanity isn't intended. Against this line of thought, however, we must ask why anything obvious should need pointing out. And we must observe that, just as the Outlawrists like Levinson predicted, the concept of defensive war has been used to excuse numerous aggressive wars. Further, we can recognize that recent scholarship finds nonviolent responses to tyranny and occupation to be more successful than violent ones. Preparations for defensive war have proven to be as counterproductive as preparations for defensive duelling, whereas diplomacy, cooperation, aid, respect, the rule of law, and disarmament have reduced war making and, in some parts of the world, ended it.

The Outlawrists fail to measure up to the cartoon version of them in which they imagined the Kellogg Briand Pact would immediately end all war. Among the many additional steps they wanted taken, was outlawing advocacy for war. Levinson drafted legislation to make advocating war a felony. That we have such a law today is another matter of an ignored treaty. The International Covenant on Civil and Political Rights, signed and ratified by the United States, includes these words: "Any propaganda for war shall be prohibited by law." You'll be shocked to learn that war propaganda is not prohibited by domestic U.S. law. Such a law might conflict with the right to freedom of speech, but certainly for an even better reason than that for the prohibition on shouting "fire!" in a crowded theater. Such a law might conflict with the non-legal concept of too-big-to-fail since it would require major media outlets to radically reform or shut down. But, like the Kellogg-Briand Pact, the ban on war propaganda is a law written down in very clear language. When those in power favor something, like the Responsibility to Protect, or corporate personhood, or the right to torture, or the right to mass surveillance, or the executive order, or assassination, no law seems to be required at all. When something is not favored, like a ban on war or a ban on war propaganda, a law seems not to be sufficient. This is only to a degree, of course. Many worthwhile laws are upheld, which is why we bother trying to create and uphold laws.

I should add that the U.S. used to have a law banning propaganda for domestic media, meaning that the U.S. government could invent sheer fabrications for audiences outside the U.S. but not for audiences within. But it got rid of that law several years ago, and the nature of today's media renders the distinction very weak or meaningless. But war propaganda understood as advocacy for war, which is always biased and misleading and dishonest, has long been central to both the U.S. government and supposedly independent U.S. media and has never been banned. Included in domestic propaganda, before and since the repealing of that law, have been such complete fabrications as Iraqi nuclear weapons, Iranian nuclear weapons, Iraq's responsibility for 9/11, Iran's responsibility for 9/11. The Pentagon is very environmental-minded; it recycles all of its propaganda.

Even laws that are mocked when not ignored have often done a great deal of good. War was legal in 1927. Both sides of a war were legal. Atrocities committed during wars were almost always legal. The conquest of territory was legal. Burning and looting and pillaging were legal. War was, in fact, not just legal; it was itself understood to be law enforcement. War could be used to attempt to right any perceived injustice. The seizing of other nations as colonies was legal. The motivation for colonies to try to free themselves was weak because they were likely to be seized by some other nation if they broke free from their current oppressor. Economic sanctions by neutral nations were not legal, though joining in a war could be. And making trade agreements under the threat of war was perfectly legal and acceptable, as was starting another war if such a coerced agreement was violated. Raping a woman in war could be illegal, but killing her could be in perfect compliance with the law. Killing was, in fact, legal whenever deemed part of a war, and generally illegal otherwise.

The outlawing of war reduced the need for large nations, and smaller nations began to form by the dozens, exercising their right to self-determination. Colonies, likewise, sought their freedom. Conquests of territory after 1928 were undone. The year 1928 became the dividing line for determining which conquests were legal and which not. International trade has flourished in the absence of legal conquest. While it is not even true, much less a statement of causation, that nations with McDonalds do not attack each other, it may be true that a world with a reduced risk of attack, for better or worse, generates more McDonalds.

The very first prosecutions for the crime of war, at Nuremberg and Tokyo, have been followed by a reduction in wars that has most notably included the absence of any further wars waged directly between wealthy well-armed nations at least so far. Sadly, the justice then and ever since has been one-sided. But war has been stigmatized and made understood as a crime in much of the world. Just as much of the world celebrates labor rights and a labor day in May with roots in Chicago, despite the United States' active erasure of that knowledge, much of the world understands war to have been outlawed and the movement that did that has its roots in Chicago whether anyone remembers it or not.

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David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)
 
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