Erin Niemela's recent proposal that we amend the Constitution to ban war is provocative and persuasive. Count me in. But I have a related idea that I think should be tried first.
While banning war is just what the world ordered, it has about it something of the whole Bush-Cheney ordeal during which we spent years trying to persuade Congress to ban torture. By no means do I want to be counted among those opposed to banning torture. But it is relevant, I want to suggest, that torture had already been banned. Torture had been banned by treaty and been made a felony, under two different statutes, before George W. Bush was made president. In fact, the pre-existing ban on torture was stronger and more comprehensive than any of the loophole-ridden efforts to re-criminalize it. Had the debate over "banning torture" been entirely replaced with a stronger demand to prosecute torture, we might be better off today.
We are in that same situation with regard to war. War was banned 84 years ago, making talk of banning war problematic.
We were in that same situation, in fact, even before the U.N. Charter was drafted 68 years ago. By any reasonable interpretation of the U.N. Charter, most -- if not all -- U.S. wars are forbidden. The United Nations did not authorize the invasion of Afghanistan or Iraq, the overthrow of the Libyan government, or the drone wars in Pakistan or Yemen or Somalia. And by only the wildest stretch of the imagination are these wars defensive from the U.S. side. But the two loopholes created by the U.N. Charter (for defensive and U.N.-authorized wars) are severe weaknesses. There will always be those who claim that a current war is in compliance with the U.N. Charter or that a future war might be. So, when I say that war is illegal, I don't have the U.N. Charter in mind.
Nor am I thinking that every war inevitably violates the so-called laws of war, involving countless atrocities that don't stand up under a defense of "necessity" or "distinction" or "proportionality," although this is certainly true. Banning improper war, while useful as far as it goes, actually supports the barbaric notion that one can conduct a proper war. The situation in which a war would be a "just war" is as mythical as the much-imagined situation in which torture would be justified.
Nor do I mean that U.S. Constitutional war powers are violated or fraud is perpetrated in making the case for war, although these and other violations of law are frequent companions of U.S. wars.
I also do not want to dispute the advantages of banning war in the highest law, the Constitution. There is a common misconception that holds up lesser, statutory law as more serious than the Constitution or the treaties that it makes "supreme law of the land." This is a dangerous inversion. Edward Snowden is right to expose violations of the Fourth Amendment. Senator Dianne Feinstein is wrong to insist that those violations have been legalized by statutes. Amending the Constitution to ban war would (if the Constitution were complied with) prevent any lesser law from legalizing war. But a treaty would do that too. And we already have one.
THE 84-YEAR-OLD BAN ON WAR
It is little known and even less appreciated that the United States is party to a treaty that bans all war. This treaty, known as the Kellogg-Briand Pact, or the Peace Pact of Paris, or the Renunciation of War, is listed on the U.S. State Department's website (go here, open the document, scroll to page 454). The Pact reads:
"The High Contracting Parties solemly [sic] declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
"The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."
Pacific means only. No martial means. No war. No targeted murder. No surgical strikes.
The story of how this treaty, to which over 80 nations are party, came to be is inspiring. The peace movement of the 1920s is a model of dedication, patience, strategy, integrity, and struggle. Playing a leading role was the movement for "outlawry," for the outlawing of war, which had been legal until that point (just as people falsely imagine it to be today). Slavery had been outlawed. Blood feuds had been outlawed. Duelling had been outlawed. And outlawrists pointedly noted that not just "aggressive duelling" had been banned. Those who went before us didn't keep defensive duelling or humanitarian duelling around but set the whole barbaric practice behind them.
Eliminating war, the outlawrists believed, would not be easy. A first step would be to ban it, to stigmatize it, to render it unrespectable. A second step would be to establish accepted laws for international relations. A third would be to create courts with the power to settle international disputes. They took the first big step in 1928, with the treaty taking effect in 1929. We haven't followed through. In fact we've collectively buried what was probably the single biggest news story of 1928.
With the creation of the peace pact, wars were avoided and ended. But armament and hostility continued. The mentality that accepts war as an instrument of national policy would not vanish swiftly. World War II came. And, following World War II, President Franklin Roosevelt used the Kellogg-Briand Pact to prosecute the losers of the war, not just for "war crimes," but also for the brand new crime of war. Despite an endless plague of war on and among the poor nations of the world, the wealthy armed nations have yet to launch a third world war.
When not simply ignored or unknown, the Kellogg-Briand Pact is dismissed because World War II happened. But what other legal ban on undesired behavior have we ever tossed out following the very first violation and what appears to have been a quite effective prosecution? An argument can also be made that the U.N. Charter undoes the earlier pact simply by coming later in time. But this is by no means an easy argument, and it requires understanding the U.N. Charter as the re-legalization of war rather than the ban on war that most people imagine it to be.