Criminalizing War and Those Who Make It

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(*Photo caption: Nuremberg Trials. Hermann Göring at the left edge on the first row of benches.)

Betty A. Reardon
Founding Director Emeritus, International Institute on Peace Education
(Originally posted: June 2013)

War is a Crime against Humanity and Global Civil Order

As members of global civil society committed to global community values; and as citizens of an emerging world-wide civic order, we are bound by our civil and community responsibility to denounce and seek to abolish the institution of war. This lethal institution threatens to abort the young civic order, destroying the global community and the societies that comprise it. This commentary – as does Dale Snauwaert’s essay – seeks to enlist peace educators and activists in the peace and justice movements in this abolitionist effort through establishing the right to peace and the abolition of armed conflict thorough criminalizing war and those who make it.

I join and hope to extend Snauwaert’s arguments that peace is the condition in which justice prevails as validated by international standards. And, as asserted in this piece, that the survival of our species requires that the abolition of war be actively pursued by members of global civil society who seek to expand the realms of justice in the present world system.  It should be recognized that violating the right peace and the standards that uphold it constitutes criminal injustices and those who commit them are criminals. These essays propose to open discussion on the criminalization and abolition of an institution that achieves its purposes in ways that are – in all circumstances other than a declared state of war – recognized and punished as crimes. Some of them so egregious as to have been designated “crimes against humanity.” So long as war exists, justice will be thwarted.

Our arguments are intended to persuade, scholars, educators and activists to embrace the assertion that war itself – in whatever circumstances it is waged and for whatever purposes – is the greatest injustice, a crime for which perpetrators should be held criminally accountable. In most circumstances the purposes pursued by warfare – indeed most armed conflict – could be achieved through alternative, non-violent means. Most those who initiate war or retaliate in like kind to “acts of war” are aware of the possible alternatives. In light of the Nuremberg Obligation as cited by Snauwaert, the fact of knowledge of such alternatives provides the moral choice that makes those who wage war criminally responsible for criminal acts of the unnecessary unleashing of lethal combat, the consequent loss of life and property, significant damage to our fragile natural environment, and the violation of virtually every right encoded in international human rights standards.
The global civic order, the international system that has emerged since the end of World War II, and indeed, most individual nation states, at a level of principle – though not of practice – acknowledge that it is the obligation of states to protect and implement the human rights of their citizens. It is, therefore, the obligation of states to fulfill the right to peace and protect the full range of human rights by undertaking: to dismantle the institution of war, the greatest single violator of the full range of human rights; to construct a demilitarized security system grounded in a full institutional commitment to universal human rights; and to hold criminally responsible all who violate the right to peace as they do (or should) those who violate other human rights. It is the obligation of citizens to persuade their governments to do so, and the responsibility of educators to prepare them to formulate the arguments and actions of persuasion.

Further, in that the realities of war comprise the widest range of violations of human rights, broader than any other constellation of factors that lead to the violation of any right or category of rights, the waging of war carries a triple load of criminal, moral and civic responsibility. Citizens need to be informed about human rights and aware of how war violates them.  Educators are responsible for communicating this information and facilitating critical inquiry into the criminal nature of warfare, and so must educate themselves about these issues. Such issues are the core substance of education for a just and sustainable global civic order. The germinal right within this order is peace as the condition for the realization of human rights.

Snauwaert has stipulated the philosophic foundations of the human right to peace. This piece builds upon these foundations with some comments on  the emerging normative order, international developments that validate the right, stand witness to the criminality of war calling for the accountability of those who undermine the right and continue to keep the human family hostage to the ever present waging and threats of war. The final section presents some concepts excerpted from documents produced by international civil society movements striving toward the abolition of war and suggests some queries for reflection toward action.

International Norms of the Global Civil Order Validate the Right to Peace and the Criminalization of War

“…peace…constitutes the moral threshold below which no one should fall.” (Snauwaert)

War will become a vestige of the past as have other humanly devised institutions, when the human family comes to believe and behave as if peace were the norm, that moral threshold that “value that everyone is justified in claiming” (Snauwaert). Claiming the value requires substituting law for war, beginning with the de-legitimization of war as has been called for over the years by the Canadian Voice of Women, a civil society organization long active in the UN NGO community. The claim here is that war is not “legitimate” in that it is not within the realms of either ethical or normative bounds that apply to most human institutions; and thus should be made illegitimate by international  law that would render it “illegal”.  Securing the right to peace through the abolition of war is a matter of applying and constructing the international legal structures that would end war and maintain peace. The task comprises essentially the same processes which have produced other legal systems intended to provide social and civic order, resolve disputes and conflicts, provide justice and protect civil rights and liberties. It is a task well within the human capacity to address and successfully complete, in the presence of the necessary will and the skills and capacities to do so. Civil society is moving toward developing the former and peace educators are undertaking the latter.

The drive toward establishing the legal basis of a global regime of a just peace that would criminalize war has been motivating human thought and action for centuries. In the near historical period of this and the previous century, we might cite as the beginning of contemporary concepts of peace law the establishment of the International Court of Justice in 1946, as the structure of the United Nations took shape. Peace, avoiding “the scourge of war” as stated in the Preamble to the Charter was the central purpose of the organization. In recent years this concept is applied as the International Criminal Court (Statue entered into force 2002) has undertaken to prosecute war crimes and crimes against peace. Both institutions are indicators of an emergent world civic order and provide means to hold individuals accountable as intended in the adoption of the Nuremberg Obligation.

We have not, however, seen significant progress in building the popular political will to abolish war.  In the wake of World War I, the “war to end all wars” the Kellogg – Briand pact (1928) was concluded, renouncing war as an instrument of national policy. Up through the 1930’s hundreds of university students took the Oxford Pledge to refuse to go to war. But these and other movements toward establishing citizen support to end war were aborted as World War II absorbed the public in the “will to win” in this, “the good war” fought for the preservation of justice and freedom, values that informed post-war developments in international society.

The claim that these values in the form of human rights are the foundation of peace was a key assertion of the Universal Declaration of Human Rights (UDHR 1948 see below). “…the equal and inalienable rights of all members of the human family [are] the foundation of…peace in the world.” That assertion could be interpreted so as to construe violations of any of those rights as acts that violate peace, as well as violating the specific right and thus, are crimes to be prosecuted. Such is the interpretation that can be given to Article 28 of the UDHR which asserts the “moral threshold” in proclaiming universal entitlement to “…a social and international order in which the rights and freedoms set forth in this declaration can be fully realized.” In short peace itself, as argued by Snauwaert, is a human right with a basis in international human rights law.

The human rights framework that emerged with the foundation of the United Nations and the Universal Declaration of Human Rights provides one base for the assertion we make here that war is a crime against humanity. The Nuremberg Obligation – which criminalizes an illegal action when there is a moral choice in the form of alternative actions – offers a base for claiming that those who intentionally initiate and wage war when other paths might be taken are criminals. We contend that peace would be most effectively pursued if those who do so were held criminally responsible for violating the multiple rights trampled in warfare and the human right to peace itself. It is becoming normal to prosecute heads of state who have committed gross violations of human rights. Should it not also be normal that those who initiate and wage wars are criminally indictable? Steps toward such indictments have been advocated in the cases of those have waged “preventive” or “pre-emptive” i.e. unnecessary wars. But given the evolving development of legal alternatives is it not also possible to contemplate the outlawing of all war? Such would be the likely consequence of the initiatives of human rights activists pursuing the formulation and legal adoption of the Human Right to Peace.

In recent years international lawyers and peace activists, joining an initiative launched by the Spanish Society of International Human Rights Law (see below) have sought to persuade the United Nations to specify and officially proclaim this right.  Several civil society declarations promulgated from conferences in cities throughout Europe have been produced by this movement in an effort to persuade the General Assembly to put forth such a declaration. The result is the UN working group on the right to peace (see below.)  Educators have an important role to play in this movement. One way to play that role is through human rights education that focuses on the various international standards that serve as precedents to declaring and encoding the right to peace. So, too the developments that strengthen and extend the reach of international law should be the subject of peace and human rights education. The International Criminal Court and various special tribunals, such as those on Bosnia and Rwanda, the application in national courts (viz. Chile and Honduras) of international standards, such as those on genocide, could also be the subject of study in all learning settings preparing people to function as constructive citizens of a global civic order. Through guiding learners in such study educators could develop in their students and themselves understanding of the practical significance of human rights as a primary basis of peace and the constructive role of law in providing justice, resolving conflicts and preventing the use of armed force as a political tool.

Civil Society Proposals as Conceptual Tools for Educating to End War

In launching the movement for the establishment of the Human Right to Peace, the SSIHL reflected recent trends among organizations active in international civil society to educate and gain public support for both specific and general objectives aimed at abolishing war. Many of these campaigns have been waged within and with the United Nations as the agent most likely to bring about the advancements in international treaty law that could end war and establish the right to peace.

Among the abolition actions most relevant to the legal route to ending war are the previously mentioned efforts of the Voice of Women Canada who year after year have brought the issue to the annual meeting of the UN Commission on the Status of Women (see below); the provisions of The Hague Agenda for Peace and Justice in the 21st Century that outlines a 50 step strategy to realize a broad vision of world peace (see below); The United Nations Declaration and Programme of Action on a Culture of Peace; and the Global Article 9 Campaign. (see below).

What strikes us as we review the recommended actions is a consistency in the general strategies of all these action campaigns.  All call for such steps as reducing military expenditures to allocate them to social purposes, steps toward demilitarization and disarmament and the renunciation of nuclear weapons, increasing the use of nonviolent conflict resolution, restoring the environment, protecting human rights and brining about gender equality.  What also seems evident is that these steps that could lead toward the end of war would in themselves be more likely of greater fulfillment in conditions of peace. There is reciprocity between peace and positive social actions that reinforces and strengthens both.

These proposals provide educators with conceptual tools for facilitating inquiry into the possibilities for criminalizing war; for legally realizing the ethical foundations of the human right to peace; for fully enacting the human rights framework that provides the norms of a peaceful order.  A few such tools are found in some the specific actions proposed in the documents noted above.  Excerpted quotations that could be set before students and citizens for their review and questions to initiate their assessment follow here.

In May 1999, The Hague Agenda, within its vision of “…a world without violence through a new code of international conduct, which restricts military power and embraces nonviolence and adherence to international law,” called for some changes in the present international system as follows below:

 “…a Security Council that can serve human security rather than the Great Power interest…”

In reflecting on such a possible change in the world organization, we might ask what differences might emerge in the criteria and goals invoked by the Security Council in debating and issuing its resolutions?  Taking as a basis for speculation any current crisis that is before the Council or might be brought before it, what proposals might members put forth in which human security and the avoidance of armed force constitute the primary deciding factors? How would the thinking of the Council members, their governments and citizens have to change so as to effectively apply such peace principles as those in this proposed change?

“… the indictment and arrest of war criminals…”

What political resistance might emerge were leaders of more powerful nations to be indicted?  Are there any living leaders or former powerful leaders who might possibly be so charged? What effects might such indictments have on the readiness to deploy force and the willingness to turn a blind eye to the violation of the humanitarian and human rights law in the pursuit of a military objective?

“…constitutional or legislative action requiring parliamentary approval to initiate armed conflict…”

What criteria might parliaments bring to decisions to use armed force that might be different form those used by chiefs of state? How might the two differ on the determination of what is “in the national interest” what should be “defended” and from what or whom? Who should determine the objectives to be sought in the use of armed conflict? What limits should be placed on the use of force?  Are such limits used today?

In September of that same year, the United Nations General Assembly in a Declaration and Progamme of Action on a Culture of Peace proposed, among specific steps, some similar to those advocated in the Hague Agenda such as :

“Actions to promote respect for all human rights:”

Focus on some current situations of human rights violations.  What actions should and could be taken to end the violations?  Who should take the actions? Under whose  authority?  What kind of actions might also contribute to the reduction and elimination of armed force as a means to assure promotion of respect for human rights?  Toward ending war?

Another step advocated in the programme is “Actions to foster democratic participation:”

What contributions to achieving a viable and just peace might more democratic peace and security policy making achieve?  Do you think such participation would lead to fewer wars?  What alternative ways of political thinking might be necessary for the proposed democratic participation to contribute to lasting peace? Who should be included in the pool of participants?

The most significant institutional action the programme proposed was to:

“Promote general and complete disarmament under strict and effective international control…”

Many argue that without general disarmament, the abolition of war is not possible?  Beyond the reduction of weapons and armed forces what other changes would be required to sustain general disarmament? What institutional changes might be required? What economic, social and cultural change should be planned?

Nearly a decade later in 2008 the Global Article 9 Conference to Abolish War issued a declaration the opening paragraph of which states:

“Article 9 of the Japanese Constitution renounces war and the threat of the use of force as a means of settling international disputes. Further it prohibits the maintenance of armed forces and other war potential.  Article 9 is not just a provision of the Japanese law; it also acts as an international peace mechanism that can be adopted by other states to maintain peace throughout the world.”

How can it be said that Article 9 “acts as an international mechanism…to maintain peace…”? What restraints might be put on other nations when they may be in dispute with a nation that has renounced force?  What advantages might there be in not maintaining a military force? What arguments might be advanced to convince other nations to disband or convert their militaries to peaceful purposes?  What socially constructive purposes might present militaries be trained to pursue?

“Indeed, the spirit of the Article 9 demands that all wars be outlawed and promotes the inherent human right for all to live in peace, free from fear and free from want.”

How might Article 9 be seen as a contribution to achieving the human right to peace?  How many nations do you think would need to renounce war before it could be in practical terms abolished?  How might people be persuaded that it is necessary and possible to criminalize war and bring about its abolition?

We know that those nations who have done so have not had all “smooth sailing.” For instance the Article 9 declaration does not neglect to point out how far Japan has come from that spirit, maintaining a Self-Defense Force that is in fact “one of the largest armies in the world;” The US bases in the country, military cooperation between the two countries and the pressure of the right to become a “normal” i.e. highly militarized nation make possible the abrogation of article 9, even while other nations contemplate disbanding their militaries.  Oscar Arias, a Nobel laureate and former President of Costa Rica, a country that abolished its own army in 1948, has undertaken to persuade other nations to do so also.  What campaign actions and guidelines could we suggest to spread this persuasion?

It is hoped that educators will look into other proposals and actions for abolishing war and design for sharing on this website learning experiences that will prepare students and members of civil society to become active in the movement to criminalize and thus end “the scourge of war.” 

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