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War: Legal to Criminal and Back Again

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From flickr.com/photos/8325150@N04/2283584007/: There is a law on the books banning all war.
There is a law on the books banning all war.
(Image by ~ Paige ~)
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Remarks in Chicago on the 87th anniversary of the Kellogg-Briand Pact, August 27, 2015.

Thank you very much for inviting me here and thank you to Kathy Kelly for everything she does and thank you to Frank Goetz and everyone involved in creating this essay contest and keeping it going. This contest is far and away the best thing that has come out of my book When the World Outlawed War.

I proposed making August 27th a holiday everywhere, and that hasn't yet happened, but it's begun. The city of St. Paul, Minnesota, has done it. Frank Kellogg, for whom the Kellogg-Briand Pact is named, was from there. A group in Albuquerque is holding an event today, as are groups in other cities today and in recent years. A Congress member has recognized the occasion in the Congressional Record.

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But the responses offered to some of the essays from various readers and included in the booklet are typical, and their failings should not reflect poorly on the essays. Virtually everyone has no idea that there is a law on the books banning all war. And when a person finds out, he or she typically takes no more than a few minutes to dismiss the fact as meaningless. Read the responses to the essays. None of the responders who were dismissive considered the essays carefully or read additional sources; clearly none of them read a word of my book.

Any old excuse works to dismiss the Kellogg-Briand Pact. Even combinations of contradictory excuses work fine. But some of them are readily available. The most common is that the ban on war didn't work because there have been more wars since 1928. And therefore, supposedly, a treaty banning war is a bad idea, worse in fact than nothing at all; the proper idea that should have been tried is diplomatic negotiations or disarmament or ... pick your alternative.

Can you imagine someone recognizing that torture has continued since numerous legal bans on torture were put in place, and declaring that the anti-torture statute should be thrown out and something else be used instead, perhaps body cameras or proper training or whatever? Can you imagine that? Can you imagine someone, anyone, recognizing that drunk driving has outlasted bans on it and declaring that the law failed and should be overturned in favor of trying television commercials or breathalyzers-to-access-keys or whatever? Sheer lunacy, right? So, why isn't it sheer lunacy to dismiss a law banning war?

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This is not like a ban on alcohol or drugs that causes their use to go underground and expand there with added bad side effects. War is extremely difficult to do in private. Attempts are made to hide various aspects of war, to be sure, and they always were, but war is always fundamentally public, and the U.S. public is saturated with promotion of its acceptance. Try finding a U.S. movie theater that is not currently showing any movies glorifying war.

A law banning war is no more or less than what it was intended to be, part of a package of procedures aimed at reducing and eliminating warfare. The Kellogg-Briand Pact is not in competition with diplomatic negotiations. It makes no sense to say "I'm against a ban on war and in favor of using diplomacy instead." The Peace Pact itself mandates pacific, that is, diplomatic, means for the settlement of every conflict. The Pact is not in opposition to disarmament but aimed at facilitating it.

The war prosecutions at the end of World War II in Germany and Japan were one-sided victor's justice, but they were the first prosecutions of the crime of war ever and were based on the Kellogg-Briand Pact. Since then, the heavily armed nations have not yet fought each other again, waging war only on the poor nations that were never deemed worthy of fair treatment even by the hypocritical governments that signed the pact 87 years ago. That failure of World War III to arrive yet may not last, may be attributable to the creation of nuclear bombs, and/or may be a matter of sheer luck. But if nobody had ever driven drunk again after the very first arrest for that crime, tossing the law out as worse than useless would look even weirder than would tossing it out while the roads are full of drunks.

So why do people so eagerly dismiss the Peace Pact almost immediately upon learning about it? I used to suppose this was just a question of laziness and acceptance of bad memes in heavy circulation. Now I think it is more a matter of belief in the inevitability, necessity, or beneficiality of war. And in many cases I think it may be a matter of personal investment in war, or of reluctance to think that the primary project of our society might be entirely and tremendously evil and also blatantly illegal. I think it can be disturbing to some people to contemplate the idea that the central project of the U.S. government, taking in 54% of federal discretionary spending, and dominating our entertainment and self-image, is a criminal enterprise.

Look at how people go along with Congress supposedly banning torture every couple of years even though it was totally banned before the torture spree that began under George W. Bush, and the new bans actually purport to open up loopholes for torture, just as the U.N. Charter does for war. The Washington Post actually came out and said, just as its old friend Richard Nixon would have said, that because Bush tortured it must have been legal. This is a common and comforting habit of thought. Because the United States wages wars, war must be legal.

There have been times in the past in parts of this country when imagining that Native Americans had rights to land, or that enslaved people had the right to be free, or that women were as human as men, were unthinkable thoughts. If pressed, people would dismiss those ideas with any excuse that came to hand. We live in a society that invests more heavily in war than in anything else and does so as a matter of routine. A case brought by an Iraqi woman is now being appealed in the 9th Circuit seeking to hold U.S. officials responsible under the laws of Nuremberg for the war on Iraq that was launched in 2003. Legally the case is a sure win. Culturally it's unthinkable. Imagine the precedent that would be set for millions of victims in dozens of countries! Without a major change in our culture, the case doesn't stand a chance. The change needed in our culture is not a legal change, but a decision to abide by existing laws that are, in our current culture, literally unbelievable and unknowable, even if clearly and concisely written and publicly available and acknowledged.

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Japan has a similar situation. The Prime Minister has reinterpreted these words based on the Kellogg-Briand Pact and found in the Japanese Constitution: "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes ... [L]and, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized." The Prime Minister has reinterpreted those words to mean "Japan shall maintain a military and wage wars anywhere on earth." Japan doesn't need to fix its Constitution but to abide by its clear language -- just as the United States could probably stop bestowing human rights on corporations by simply reading the word "people" in the U.S. Constitution to mean "people."

I don't think I would let the common dismissal of the Kellogg-Briand Pact as worthless by people who five minutes earlier never knew it existed bother me were so many people not dying of war or had I written a tweet instead of a book. If I had just written on Twitter in 140 characters or fewer that a treaty banning war is the law of the land, how could I protest when someone dismissed it on the basis of some factoid they'd picked up, such as that Monsieur Briand, for whom the treaty is named along with Kellogg, wanted a treaty with which to force the U.S. to join in French wars? Of course that's true, which is why the work of activists to persuade Kellogg to persuade Briand to expand the treaty to all nations, effectively eliminating its function as a commitment to France in particular, was a model of genius and dedication worth writing a book about instead of a tweet.

I wrote the book When the World Outlawed War not just to defend the importance of the Kellogg-Briand Pact, but primarily to celebrate the movement that brought it into being and to revive that movement, which understood that it then had, and which still has, a long way to go. This was a movement that envisioned the elimination of war as a step building on the elimination of blood feuds and dueling and slavery and torture and executions. It was going to require disarmament, and the creation of global institutions, and above all the development of new cultural norms. It was toward that latter end, toward the purpose of stigmatizing war as something illicit and undesirable, that the Outlawry movement sought to outlaw war.

The biggest news story of 1928, bigger at the time even than Charles Lindbergh's flight of 1927 which contributed to its success in a manner completely unrelated to Lindbergh's fascist beliefs, was the signing of the Peace Pact in Paris on August 27th. Was anyone naive enough to believe that the project of ending war was well on its way to success? How could they not have been? Some people are naive about everything that ever happens. Millions upon millions of Americans believe that each new war is going to finally be the one that brings peace, or that Donald Trump has all the answers, or that the Trans-Pacific Partnership will bring us freedom and prosperity. Michele Bachmann supports the Iran agreement because she says it will end the world and bring back Jesus. (That is no reason, by the way, for us not to support the Iran agreement.) The less that critical thinking is taught and developed, and the less that history is taught and understood, the wider a field of action naivete has to work in, but naivete is always present in every event, just as is obsessive pessimism. Moses or some of his observers may have thought he would end murder with a commandment, and how many thousands of years later is it that the United States has begun taking up the idea that police officers shouldn't kill black people? And yet nobody suggests tossing out laws against murder.

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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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