As the U.S. government simultaneously threatens the International Criminal Court for even acting as if it might prosecute the United States for crimes in Afghanistan (a topic "investigated" for years now, while the ICC has yet to actually prosecute any non-African for anything) and (with little apparent cognitive dissonance) uses the implausible claim that the Syrian government might violate a law as an excuse to threaten to violate the supreme international law (that against war) by escalating the killing in Syria, the choice between war and law could not be more stark or critical.
This question will be taken up by many talented speakers and workshop facilitators at #NoWar2018 later this month in Toronto. The conference will focus on replacing mass killing with nonviolent prevention and resolution of disputes. Participants can be expected to agree on that much and little else.
Has law been used more for war or peace thus far? Has it done more harm or good? Should it be a significant focus of a peace movement? Should it focus on local laws, laws on the national level, on tweaking existing international institutions, on democratizing such institutions, on creating a new global federation or government, or on advancing particular disarmament and human rights treaties? No universal consensus, or anything even close to it, exists on any of these points.
But consensus can and will be found, I believe, on particular projects (whether or not there is agreement as to their prioritization) and might be found -- and would be very beneficial if found -- on broader principles if thoroughly and openly discussed and considered.
I've just read James' Ranney's book, World Peace Through Law. I find myself in as much disagreement as agreement with the details of it, but in far more agreement with it than with the status quo of Western common sense. I think it's important that we think through some of the details, and press forward together as we're able, whether or not we agree on everything.
Ranney proposes a "moderate" vision that stays far short of the utopia of world federalism. Citing the recommendations, now centuries old, of Jeremy Bentham, Ranney writes that "the prospects of adoption of Bentham's 'world peace through law' proposal are almost literally infinitely greater than world federalism being adopted any time soon."
But wasn't arbitration, as proposed by Bentham, put into law over 100 years ago? Well, sort of. Here's how Ranney addresses that in a list of past laws: "Second Hague Convention (outlaws war to collect debt; accepts 'principle' of compulsory arbitration, but without operative machinery)." In fact, the primary problem with the Second Hague Convention is not a lack of "machinery" but a lack of actually requiring anything. If one were to go through the text of this law and delete "use their best efforts to" and "as far as circumstances allow" and similar phrases, you'd have a law requiring that nations settle disputes nonviolently -- a law that includes a fairly elaborate description of a resolution process.
Ranney similarly, but with less basis, dismisses a law that was put in place 21 years later: "Kellogg-Briand Pact (normative principle outlawing war, but no enforcement mechanism)." However, the Kellogg-Briand Pact doesn't include any of the hedge words found in the Second Hague Convention, or anything whatsoever about normative principles. It requires nonviolent dispute resolution, full stop. In fact the "normative principle outlawing war" -- on an actual reading of the text of this law -- is exactly the outlawing of war and nothing else. Nothing accurate is communicated by tacking on the words "normative principle." The need for "machinery," if not "enforcement" (a troubled term, as we'll see in a minute) is a real need. But institutions of dispute resolution can be added to the ban on war that exists in the Kellogg-Briand Pact without imagining that the ban does not exist (whether or not one accepts the loopholes purportedly opened up by the UN Charter).
Here are the three steps Ranney proposes to replace war with law:
"(1) arms reductions--primarily the abolition of nuclear weapons, with necessarily concomitant reductions in conventional forces;"
"(2) a four-stage system of global alternative dispute resolution (ADR), utilizing both law and equity;" ("compulsory negotiation, compulsory mediation, compulsory arbitration, and compulsory adjudication by the World Court")
"(3) adequate enforcement mechanisms, including a UN Peace Force." ("not pacifism")
Here lies a major disagreement. A UN Peace Force, albeit not appropriately commanded by General George Orwell, exists and has been failing spectacularly since the launch of the war on Korea. Ranney quotes, apparently favorably, another author proposing that this global cop be armed with nuclear weapons. So, that insane idea is new. Ranney also favors the so-called "responsibility to protect" (R2P) the world from genocide through war (without, as is typical, ever clarifying what distinguishes one from the other). And despite the traditional lack of respect for a clear law like the Kellogg-Briand Pact, Ranney offers the traditional respect for R2P despite it not being any law at all: "great caution must be exercised to define very carefully when the new 'responsibility to protect' norm mandates intervention." It mandates nothing whatsoever.