By David Gallup
War is state-sponsored terrorism. Or if not "terrorism," then legally condoned killing. War-time killing is not considered to be a crime of "murder" because states claim a power (currently considered legal) to wage war. Under humanitarian law, war is meant to be used for self-defense. More often than not, however, governments initiate internal and international wars as a tool of aggression – to maintain power and control over people, land, resources and ideology.
Is humanitarian law meant to stop war?
Why do national governments allow the carnage and barbarism to continue in Syria and elsewhere? Because international humanitarian law (the “Laws of War”) allows tanks, war planes, battleships, and missiles to be built, and to be bought and sold as if they are fruits and vegetables in the produce section of a grocery.
Humanitarian law starts with the premise that war can be controlled and have a useful purpose. Humanitarian law posits that killing in war is okay as long as the killing distinguishes between civilians and combatants, the killing is limited in scope and time, and the war is winnable. The nation-state system’s attempt to apply rules to war, rather than outlawing war entirely, is morally bankrupt, especially in the nuclear age.
Nation-states want to maintain their exclusive identity, usually at the expense of others outside their putative borders. Because they must then protect those borders, they will not give up their power – at least under the current international law system – to build weapons for themselves and to sell weapons to their allies or to various governments for strategic advantage.
Has there ever been any international law attempt to stop war?
The 1928 Kellogg-Briand Pact (“General Treaty for Renunciation of War as an Instrument of National Policy”) attempted to outlaw wars of aggression between nations. Sixty-two of the seventy-three independent nations at the time had signed the treaty. However, the treaty did not address the issue of nations engaging in warfare as a measure of self-defense.
The treaty failed because it did not limit the tools of warfare, and it did not create an enforcement mechanism to ensure that all disputes would be resolved peacefully. The nations continued to expand their weapons arsenals, and they did not cede power to an external governing authority to handle disputes. A treaty between equally sovereign states, such as the Kellogg-Briand Pact, does not prevent those states from choosing to wage wars, rather than go to court, as a final resolution to conflict. The governments did not establish common world law.
Can existing international law or current treaties prevent war?
The purpose of the United Nations as outlined in Article 1 of the Charter is to “maintain international peace and security,” to prevent and remove threats to peace by peaceful means, affirm equal rights and self-determination, and to achieve international cooperation to solve international problems.
The problem with the UN Charter is that it encourages countries to interact peacefully but cannot require them to do so. The first President of the UN General Assembly, Dr. Herbert Evatt, elaborated, “The United Nations was not set up to make peace,” he wrote in a letter to Garry Davis in 1948, “but only to maintain it once it was made by the Great Powers...”
Furthermore, the Charter upholds the “sovereign quality” of each of its members, barring intervention in “domestic” matters. Because we have separated ourselves into exclusive nations, we do not act as a unified whole to resolve conflict.
Articles 28 and 30 of the Universal Declaration of Human Rights (UDHR) affirm that a war-free world requires the protection of fundamental rights. Article 28 states that a “social and international order,” i.e., peaceful human interactions, is necessary for the rights in the Declaration to be realized. Article 30 states that no state, group or individual has a right to participate in any activity (e.g., aggression) “aimed at the destruction of any of the rights” affirmed by the Declaration.
The problem with the UDHR is that its customary law status means that governments have not agreed unequivocally to be bound by it. The will to enforce it has been ineffective. Even with the ICCPR and the ICESCR, which are binding treaties, governments are still able to violate rights with impunity – the breeding ground for war.
The 1949 Geneva Conventions and subsequent Protocols were created to limit the barbarity of war by restricting conflict to military combatants, protecting the injured and prisoners of war, ensuring the safe passage of medical and aid workers, and prohibiting torture, rape and other war tactics that impose severe suffering. As previously mentioned, these laws do not attempt to eliminate war, only to reduce its impact on certain combatants and upon the civilian population.
The principles recognized in the 1950 Charter and Judgment of the Nuremberg Tribunal affirm that individuals can be held responsible under international law for war crimes, crimes against the peace and crimes against humanity even if acting upon orders of a superior. These principles have become the basis for ad hoc tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Lebanon, Cambodia, East Timor and for the permanent war crimes tribunal that now exists as the International Criminal Court in the Hague. Although these principles attempt to hold individuals accountable, because of political stalemates and an unwillingness to pierce the veil of national sovereignty, individuals and governments are able to continue the war game. More than 200 armed conflicts have been waged around the world since 1950.
Can international courts intervene to stop war?
Why do we have international courts if not to help us to resolve our differences peacefully, with and by law?
In 2010, Garry Davis submitted a petition to the International Criminal Court (ICC) on the threat and use of nuclear weapons, because a nuclear war would be the actual war to end all wars, the ultimate crime against humanity.
Although the petition was received, the court neither acknowledged the petition nor rejected it. They simply ignored it. The ICC is beholden for its existence to the very states that perpetuate war and maintain the threat of nuclear weapons. Because the ICC depends upon acceptance by states and upon the states’ financial support, the ICC does not have autonomy.
If the court had rejected Davis’s petition, then they would be violating the principle of their own existence to adjudicate crimes against humanity of which nuclear war is the utmost crime. If they had accepted the petition and adjudged the case, then they would have had to reject the use of nuclear weapons in all circumstances. The ICC was unwilling to set a new precedent because, in 1996, the International Court of Justice (ICJ) established that nations could use nuclear weapons for self-defense.
It seems that the ICJ and the ICC can only attempt to adjudicate conflicts between states or crimes of war after the fact, once a dispute or aggression has started and oftentimes after it has ended. As courts, unlike a parliament or congress, they cannot make law. They have no independent Marshal’s Service to arrest suspects, having to rely upon the nations to conduct this policing.
Existing international law and tribunals have only been mildly successful in limiting the impact of wars; they have not been successful in preventing or outlawing war.
So, how do we stop war?
Because nations have waged war with increasing frequency over the past hundred years, it seems impossible to stop war. Governments can easily wage wars because the production, sale, distribution, and use of weapons is legal.
We now need to outlaw weaponization. We need to make the production of weapons not only illegal, but unprofitable. We need to prevent governments and corporations from profiting off of death and destruction. We need to make it economically, socially, and politically untenable. Politics and government must be ethicized.
World laws against war would establish financial and criminal penalties against individuals, companies and governments that make weapons. This would require not simply an embargo on arms, but a halt to the production of all new weapons and the dismantling of current weapons. We can repurpose the weapons manufacturing industry to provide tools of construction, instead of tools of destruction – to provide machines and products that help people live safer, healthier, happier and more productively. We can recalibrate the global economy to produce goods, services and infrastructures that help, not hurt, people. Countries should be exporting life, not death.
The principle, ideology, strategy and tactics of governments must be humanized and earth-ized.
So if governments won’t or can’t outlaw war, itself, what about outlawing the tools that make mass aggression possible?
We have compliance programs to stop terrorist funding. Why don't we have compliance programs to stop the sale of guns, tanks, warplanes, bombs, etc.? Why don’t we illegalize the manufacture, sale, transfer and use of all forms of weaponry – conventional, bio, chemical, psychological and cyber?
Cut off access to weaponry, cut off its supply, and governments no longer have the capacity to engage in warfare.
Aggression among people who carry a knife or a bat or a broom may still occur. But that kind of aggression would be much easier to stop with a peace or police force than aggression that involves using weapons of mass killing and destruction. Machine guns, tanks and bombs can only kill; they have no benevolent purpose. Although we can cut up our dinner salad with a knife, we cannot prepare our dinner with a nuclear bomb.
Where do we go from here?
The national governments themselves cause the atrocities of war. Under existing international law, national government leaders can continue to prepare for and wage wars, especially internal conflicts. The veil of national sovereignty and the weakness of international enforcement allow them to act aggressively.
National governments could outlaw war and its preparations in their national constitutions, like Japan (in Article 9) and Costa Rica (in Article 12) have done. In those two countries, governmental leaders cannot weaponize the state and commandeer armed forces. It’s unlikely, however, that many other nations, and certainly not the permanent members of the United Nations “Security Council,” would voluntarily reject war as a tool of national policy.
Nations cannot or will not stop war. As Garry Davis once shouted from the public balcony at the United Nations, “If the nation-states won't stop war, then they should step aside and let us, the people, create the institutions that will.” War becomes perpetual only if we choose it as the principal mode of interaction during conflict.
We the people must create new governmental institutions beyond the nation.
If we want to have an effective compliance program to prevent the sale, transfer and use of arms, some independent body or institution outside the nation-states is going to have to take charge. In other words, we need a system in place that will maintain the restrictions of illegality on the war preparation process.
A World Congress would create common world law that outlaws violent force everywhere as well as the sale, distribution and use of weapons. Aggression of war and violent conflict must be made illegal. Just like shooting someone or fighting with someone in a local setting can be considered assault and battery or murder, fighting or using weapons between groups of people in different places around the world must also be considered illegal. So no matter one’s location or whether one is wearing a uniform, killing would be outlawed. Killing anywhere would be considered murder everywhere.
A World Court of Human Rights (WCHR) would adjudicate violations of the law, with a World Marshals Service to apprehend violators. A WCHR will shed light on violations by governments that oppress the many and maintain benefits for only a select few, affirming that governments must be transparent and act in service to the people. A WCHR will provide a legal and peaceful forum for victims to air their grievances and to obtain justice against the sponsors of war. Everyone should be able to sue for the violence they have faced.
Even if lawmakers and courts establish the illegality of war, how will we protect ourselves from rogue actors?
This is what a volunteer peace or police force is for. A World Peace/Police Guards Force would implement and enforce the law – acting as roving ombudspeople to prevent conflicts and intervene in conflicts before they become violent. World Peace Guards would provide mediation and collaborative strategies and processes.
War is the biggest waster of human and natural resources.
People in the green movement must unite with people in the peace and collaborative development movements to stop war and its preparations for the sake of humanity and the earth. We need to work together to dismantle the structural violence that has been built into the nation-state system. We need to alleviate the economic, political, technological, and social factors of humiliation – the underlying inequalities and oppression – that cause people to seek vengeance against and to hate, oppress, and control others. As citizens of one world, we must fulfill human and environmental needs, rights and duties. We need to eliminate the anarchy, the lack of unified law, between nation-states that is the breeding ground of war. World peace, as well as human and environmental sustainability, will depend upon the advancement of common world law.