The Conundrum of the Prohibition of War (by CP)

The world changes ...

In the old days, political differences between countries were more often than not settled by war. That was only natural - under the ius ad bellum the right to go to war was an imperative of a monarch, which he was entitled to use as he saw fit and which was regarded as a normal tool of statecraft. And even then there were limits - possibly the first trial for waging aggressive war is that of Conradin von Hohenstaufen in 1268. One could do a lot of mischief, but not just as one pleased.

Over time the European practice of Cabinet Wars emerged - a type of war which affected Europe during the period of absolute monarchies, from the 1648 Peace of Westphalia to the 1789 French Revolution. These wars were characterised by small armies, noble officer corps, limited war goals, and frequently changing coalitions among the belligerents. There was a policy dispute over inheritance or a boundary, war was being declared (usually very politely), fought and settled. Wikipedia's entry sums it up rather well:

The Thirty Years' War, based on religious conflict, had been marked by wild plunders and marauding armies. Order was reestablished by the 1648 Treaty of Westphalia, which formulated the rules of international relations for the next centuries, in particular respective to the laws of war (jus ad bello and jus in bellum). During the Age of Enlightenment and under the direction of the "enlightened despots," wars became more regulated, although the civilian population was still a current victim of mercenaries. Such scenes as the 1572 St. Bartholomew's Day massacre became exceptional. Thus, Berlin was not plundered during the Seven Years' War of 1756-1762, despite having fallen into enemy hands not once but twice.

This state of affairs evolved during the era of the formation of nation states in the 19th century ito national wars with citizen particpation and conscript armies. The American Civil War and battles like Solferino (the carnage of which led to Henry Dunant initiating the Geneva Conventions and the Red Cross) offered glimpses into what technological advances in war were to bring in the next century.

Nobody ever parodied Europe in that regard better than the Marx Brothers in their classic performace in 'Duck Soup'.

  

In the early 20th century the First World War demonstrated just how destructive modern industrial war is, and what a terrible toll it takes. At the end, that war put three empires to ruin, and left millions dead.

The oft maligned League of Nations was an attempt to put some stability into the international system by obligating the members not to resort to war - right away. That is to say, the states still did have a right to resort to war - within the limits of the covenant. The Covenant of the League of Nations in Article 12 stated:

The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council.

At the same time, the signing parties were unwilling to give up sovereignty and had reserved themselves veto power in Article 5. For this and other reasons, the League of nations did not succeed.

It was World War II that finally suggested that there should no more be a right to declare war. The idea is best summed up in the judgementof the International Military Tribunal at Nuremberg, which stated that aggressive war is ...

"essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

The UN was to be what the Legue of Nations was supposed to be and this reasoning was put into international law by the UN Charter. Today aggressive war constitutes a  crime against peace.

At the basic level, the prohibition of aggressive war is a manifestation that directly follows from national sovereignty of every member state. Stronger states are prohibited from preying on weaker ones, as Germany and Japan had done during WW-II. Since pretty much every country on earth is a member state to the UN Charter it can be argued that this norm has by its broad accetance become customary international law.

The prohibition of war was reaffirmed in the the Rome Statute of the International Criminal Court, which refers to the crime of aggression as one of the “most serious crimes of concern to the international community”. The Rome statute and the ICC itself are very much in line with Europe's tradition of binding states into peaceful conduct through law and integration.^**

War as a tool to resolve international disputes by force is anathema to the contemporary international order. War is ever since only allowed for (collective) self defence or when sanctioned by the security council. Or is it?

... but do its actors?

I visited the Vienna Museum of Military History^* two months ago, and in the entry hall one could read: "War belongs into the museum ". A beautiful sentiment. Even so, as I write this in 2015 we are in a time that has seen promiscuous use of force of arms to settle international conflicts, by democracies no less.

Since 2001 the US alone went to war against Iraq, Libya, and attacked targets in countries like Yemen, Somalia, Syria and any more. The US and Israel support irredentist movements against enemies like Iran. Israel habitually violates Lebanese airspace just to let the Lebanese know that they are there and that the Lebanese cannot do anything about that. Georgia went to war against Russia (and got themselves a bloody nose). And there's more. How to explain all that mischief?

Jeane Kirkpatrick quipped once that "we have war when at least one of the parties to a conflict wants something more than it wants peace." That statement is IMO as witty as it is realistic.

When Madeleine Albright famously asked Colin Powell what use that splendid military of his was when one couldn't use it, she hinted towards the dilemma that the prohibition of war puts before powerful countries, hegemons even more so, that want to shape the world according to their preferences, using force if need be. That brings us straight to the heart of the problem: They cannot just declare war anymore. Leaving aside national law, it is prohibited unless in self defence or when sanctioned by the UNSC.

 

To a powerful country, it is naturally very tempting to use that power, to go for 'coercive diplomacy'. After all, it saves all these messy compromises and give and take that give one so much less than one can get by force. For the same reason bank robbery - dictating terms to the bank for a change - is eminently more profitable than negotiating a loan with the bank. That alone should explain the appeal of coercive diplomacy - you get things you wouldn't possibly get in honest bargaining.

 

The point becomes all the more salient, when it comes to matters of regime change. As far as the US is concerned, they want Assad gone, like Milosevich, Saddam and Ghaddafi before. The problem is: Saddam's Iraq, Assad's Syria and Ghaddafi's Libya or Milosevich's Serbia are/were sovereign countries. Sovereingty protects them from aggressive war. Or meddling in internal affairs for that matter.

 

What to do? Well, if one cannot just delare war, one can still create conditions that  allow invocation of self defence or have other countries mandate your war at the UNSC.

 

The US armtwisting minor and larger nations at the UNSC to give them a UN war mandate^*** to attack Iraq is an example for the second variant. An example for the first variant woud be the classic case of the Mukden Incident, where Japan staged an attack to have a pretext to invade Manchuria ("defending" itself). Another would be, naturally, the Gleiwitz Incident. But that was aggressive war, waged by evil people(s).

 

But what about a just, kind, swift and surgical war? In pursuit of human rights? Of good causes? In alliance with other righteous nations?^****

 

In light of that a reason has to be found, or created, to overcome the obstacle of national sovereignty of the targeted nation. The idea of R2P is one attempt at a solution to that dilemma. Essentially,  it is about finding a justification to break national sovereignty of another country to do what one wants to do at the time.

 

Assad must not to go because he is the weak link between Hezbollah and Iran and the country, is ripe for unrest in light of its economic and ecological conditions (a draught) so that the opportunity presents itself. Such words cannot be spoken in polite company. Thus he has to go because of his horrible human rights record (tortured people for the US!) and general villainy, from which to protect his innocent, pro-western population, that is united in opposing him, the West and its autocratic gulf allies have the solemn responsibility!

 

And if the facts cannot be reconciled with the narrative and legal requirements, they thus are being fixed around the policy to weave a justifying narrative.

 

I think that's largely why we see this unprecedented wave of propagada today on Syria and Ukraine, as we have seen it before on Libya and Iraq. It is that bad because we have democracies waging wars like the monarchs of old (at times allied with the monarchs of today), but they cannot legally admit it to themselves or their electorates. In doing so they are not only lying to themselves, but to their electorates.

 

The pernicious aspect is that by doing so, they undermine democracy at home - one cannot formulate rational policy on the basis of a narrative built of phantasies.

by confusedponderer

^* PS: Amusingly, the only thing you didn't find in that museum - dedicated to Austro-Hungarian military history and placed in an old barracks complex that can be described as a cathedral to militarism - was the words 'defeat' and 'Ultimatum to Serbia'. The exhibit on Przemyśl focused on the terrible time the soldiers who were besieged there had. Terrible it sure was, but that's just half the story - it was also one of the worst defeats Austria ever suffered. You could see the car where Franz Ferdinand ... fell victim to assassination ... Asking an Austrian about that Hitler person, he'd probably tell you he read that that man was a German Chancellor who happened to be born in Vienna. I do exaggerate, but not by much.

^** For more on Europe and the ICC,  see my post here.

^*** or, failing that, be content with lesser cover in form of granting themselves a NATO mandate.

^**** multilaterally, dispelling suggestions of selfish great power interest.

Comments

[Babak Makkinejad]

CP:

This is fine except that everywhere "US" is mentioned, ought to be replaced by NATO.

In Europe, half the people think that they are morally superior to the rest of the world; thus any war will have a moral character of beating benighted fools who do not have nuclear weapons in Iran and elsewhere into line.

[BabelFish]

Excellent post, CP.

[anna-marina]

The Minsk-2 agreement:
http://vineyardsaker.blogspot.com/2015/02/full-text-of-minsk-2-agreement.html

[Ulenspiegel]

CP wrote: "Amusingly, the only thing you didn't find in that museum - dedicated to Austro-Hungarian military history and placed in an old barracks complex that can be described as a cathedral to militarism - was the words 'defeat' and 'Ultimatum to Serbia'."

But one has to admit that in the WWI section -a little bit hidden- there are some critical remarks on Austrian pre WWI politics. :-)

In 2011, I visited the Zeughaus in Berlin and a few days later the Austrian Military Museum, for me the most surprising aspect was how the SYW was handled in both instititions.

[confusedponderer]

In Vienna they had the rudder of a Bf 109 on display. The inscription read: "Rudder of a Me 109 (with the kill markings of the Austrian fighter Pilot Gordon Golob who served in the German Luftwaffe)"

Indeed. He just happened to serve there. Probably by accident. It isn't as if he was an ardent Nazi (he was) and was happy to serve on after the Anschluss (he was).

https://en.wikipedia.org/wiki/Gordon_Gollob

[William R. Cumming]

CP! Thanks for this excellent post!

Perhaps a footnote on the proposed AUMF. The draft language proposes repeal of the 2002 AUMF involving Iraq. It can be repealed of course because WE "won"! But the proposed language does not discuss the 2001 AUMF that discussed all necessary force against the perps of the attacks on 9/11/01 against the WTC and Pentagon.

The real reason is that of course that WE have failed to eliminate those assisting in the attacks.

What your post informs US by implication is that violence against non-state actors really a huge gap in International Law from Hugo Grotius to the present.

Oddly I find no links to the LAW OF WAR and its coverage/non-coverage of non-state actors.

[VietnamVet]

CP,

This is an excellent article.

I would add some points that have also aided the metastasizing of war today. Sovereign states have been mostly superseded by supranational corporations and institutions like the Eurozone. The only real power left to the State is custody of hydrogen bombs. War profits the connected. Standing armies are gone and a healthy population is no longer necessary to provide soldiers. Thus, the imposition of austerity on the periphery of Europe or the crazy risk taking in the Middle East or Ukraine that invites blowback on the homeland.

http://www.theamericanconservative.com/articles/a-blackwater-world-order/

[confusedponderer]

There is no gap. Non state actors are covered under Geneva III and IV. The two conventions regulate the matter conclusively. To summarise:

A person is either a combatant or a civilian.

When someone takes up arms and fights in uniform or something close enough that identifies him as a fighter, that person is privileged as a combattant (he may fight and kill) and is to be treated as a POW.

When you don't do that you're a civilian.

If a person dresses as civilian and fights cowardly, that person is then has none of the privileges under the law of war that a combattant enjoys and is a simple criminal civilian.

If the combat takes place in occupied country, the law of that country applies, to the extent that the US can in good conscience apply it (occupying powers are to act in a way as stewards). Iraqi or Afghan criminal law ought to be harsh enough to satisfy even refined American tastes.

And that is it.

http://en.wikipedia.org/wiki/Third_Geneva_Convention

http://en.wikipedia.org/wiki/Fourth_Geneva_Convention

There certainly is not a mysterious third class like the enemy combattant, which the US pretended into a messy reality. The US has so much trouble with that category because of its fictitious character and because it is thus irreconcilable with international law.

The idea behind the new category was obviously to find an excuse for saying that for these guys Geneva doesn't apply - after all, they don't mention the enemy combattant.

Well, being conclusive, they don't need to. For the same reason they also don't need to mention the category of "people that Dick Cheney really wants to waterboard".

The obvious conclusion is that the US wanted to violate Geneva protections, and inventing that new category gave them, at least domestically, a superficially plausible excuse to do so. American media bought it hook, line and sinker and there you go.

And just for the sake of being heretical on non state actors:

As far as non state actors go, there IMO is ample precedent. How was that again with Pancho Villa? What again is new about a punitive expedition against a non state force that murders civilians and violates and crosses established borders?

http://en.wikipedia.org/wiki/Pancho_Villa_Expedition

[Imagine]

Peace is cheaper than war. However, not so recognized. Real world peace requires (1) better accounting, including for blowback; also, (2) a next-generation game theory, not designed for paranoid schizophrenic frat-boys, that sees exponential cooperative creation (construction) as being more profitable than destruction. Grow the pie, exponentially, instead of stealing your neighbor's slice.

[Babak Makkinejad]

Multinationals do not have their own navies and armies. The few businessmen that I have known are more interested in Peace than in War.

"Eat small, eat steady" is their motto.

Carnegie and Du Pont did not initiate any wars, or the Rothschilds or the "New York Bankers" prior to the US Civil War.

It is like Rhett said: "Men like war..."

[Garry]

Off topic but, would Putin or could Putin consider finalizing and surrounding Kiev to preclude any chance of US trainers and arms arriving, thereby not holding to our time table for escalation while recognizing our ceasefire stalling tactics. If so, what are US options to re-enforce (personal bias alert) the neo-Nazi Kiev government we have installed?

[VietnamVet]

Yes, Lockeed Martin or Chevron would recoil at being called Warmongers. In fact, I am sure that they deny to themselves that the money made from selling weapons to the USA that are shipped off to a civil war or leases to frack Ukraine’s natural gas are in any way tainted by the blood of the dead. But, war always attracts amoral outlaws. More so now, when ethnic and religious fault lines are exploited not ameliorated.

[anna-marina]

A minor correction. During the so-called "Schiff era," an influential NY banker Jakob Schiff had provided about half of the finds needed for Russo-Japanese War (1904/1905). He also financed Lev Bronshtein (Trotsky) travel from Bronx to Russia and Vladimir Ulyanov (Lenin) safe passage through Germany to Russia; both men were highly instrumental in destroying the Old Russia. http://www.ihr.org/jhr/v06/v06p389_John.html

[CTuttle]

Mahalo, CP, for the excellent post...! David Swanson covers much of the history of Kellogg-Briand and the Peace movement that led up to it in his excellent book: When The World Outlawed War...!

http://www.amazon.com/World-Outlawed-Christopher-Naylor-Swanson/dp/0983083096/ref=asap_bc?ie=UTF8

[Babak Makkinejad]

You are going too far.

Opel cars are very popular in Russia because they are considered relatively straightforward to repair. GM could sell lots of them there, which they cannot now.

US could sell lots of diesel-electric locomotives to Iran, as well as nuclear reactors, Boeing jets, Caterpillar construction equipment as well as turbines.

This is not about hunting.

[confusedponderer]

re: "Geneva doesn't apply - after all, they don't mention the enemy combattant."

Just to meake it somewhat clearer yet - let's assume you have a legal norm that says 'all men are created equal' and then have the Cheney/Bush laywers come along say:

'Yes, ok, so all men are created equal, but what about them Negroes and them Jews or them Islamics? It doesn't mention them. There is a huge gap! The founders never regulated them subhumans!'

We're speaking precisely about that sort of lawyering.

[Ulenspiegel]

Correction:In 2011, I visited the Zeughaus in Berlin and a few days later the Austrian Military Museum, for me the most surprising aspect was how the TYW (1618-48) was handled in both instititions.

[confusedponderer]

I didn't spend as much time as I wanted to in the Vienna museum, so I don't remember much about their presentation of the thirty year war and I have yet to go to the Zeughaus. When I do I will give the point a closer look.
best,
CP

[confusedponderer]

I edited a part of the post, marked in red, for clarity.

[William R. Cumming]

Thanks CP!

[William R. Cumming]

CP! John Yoo in his "unitary" arguments forgot that the President is Commander-In Chief of the Armed Forces lawfully constituted and "Chief Executive" of the Civil Government and people. But largely ignorant Presidents have used the CIA and other federal components to unlawfully avoid the military chain of command [which still has some integrity, morality, and judgment at to the purposes for which it is employed] whereas the CIA
largely exists to lead the DEEP STATE into eternal darkness. IMO of course.

[William R. Cumming]

YUP!YUP!

[William R. Cumming]

YUP! Someone once stated that "the absence of war is not peace" with which I agree.