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War: Legal to Criminal and Back Again

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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.

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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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