Law as an Instrument of Peace: “War Criminals: War Victims”

Issues and Themes in 6 Decades of Peacelearning: Examples from the Work of Betty Reardon (Post #3)

Editor’s Introduction

Below is a second posting on world order secondary school curriculum materials, in the 90K for 90 Years / 6 Decades of Peacelearning series based on selections from Betty Reardon’s work in the development of peace education. War Criminals, War Victims, a world order study unit for senior secondary grades from the Crises in World Order Series follows the last posting, Peacekeeping, a unit for junior secondary grades from the Cases in World Order Series. An excerpt from this second unit, introducing students to questions of the standing of individuals in international law, and several more contemporary collateral materials that link the excerpted case to efforts to apply international law to the abolition of nuclear weapons, are provided as components of a learning packet on nuclear weapons, and legal approaches to and civil society efforts for nuclear disarmament. The case and the collateral materials used together could open inquiry into the role of law in and citizen responsibility for the disarmament and peace movements at upper secondary and lower tertiary levels.

We wish to acknowledge our gratitude to John Burroughs of the Lawyers Committee on Nuclear Policy for providing the key articles among the collateral materials. We urge all peace educators who undertake the introduction of the study of nuclear disarmament and/or law as a means to peace to consult LCNP’s website.

Law as an Instrument of Peace
“War Crimes, War Victims”

Commentary and Study Suggestions for Inquiring into Citizen Responsibility and Nuclear Disarmament

By Betty Reardon

Contemporary Commentary: Relevance of a 1974 curriculum material to study of present efforts toward nuclear disarmament as related to the uses of law and citizen responsibility to solve global problems.

A given of peace education is the central assertion of the preamble of the UNESCO charter that the foundations of peace must be constructed in the human mind. The tools with which to build the actual edifice of global peace, however, get far less attention, most especially in elementary and secondary schools. There, emphasis has been on the foundational attitudes, values and skills, largely neglecting the concepts that would comprise those structures and the tools for building upon the foundations, the motivating substantive concern of world order studies. An underlying assumption of that approach was that a primary tool for the actual construction of peace is law in multiple forms and functions. The international structures and procedures the consideration of which world order studies sought to introduce into school curricula would be established by law, mainly in the form of treaties and possibly in revisions of the UN charter, now a fundamental and central institution in the present body of international law.

Crises in World Order sought to introduce senior high school students to the role of law through inquiry into the ethical principles underlying “the laws of war.” It placed particular emphasis on individual rights and responsibilities under those laws, and highlighted personal agency in their observation and enforcement. Young people of 16 to 18 form the social and political beliefs and individual values that will guide their civic and personal lives in the coming years of young adulthood. For many American youth in the 1960s and 1970s that time of their lives might well have included direct involvement in the Vietnam War. Young people the world over today face similar possibilities of participation or being caught up in the many armed conflicts that rage in the second decade of the 21st century.

The title of the unit, War Criminals, War Victims reflects moral and legal issues raised by the role of the individual in the conduct of war, issues with which many students in the 1970s were struggling in anticipation of required military service. The unit and the inquiry evolved from the classroom teaching of Robert Low, a talented teacher committed to preparing students to deal with the existential and moral dilemmas that arose from the prospect of involvement in armed conflict and from the emerging opposition to the war many were coming to support. A core aspect of that preparation was imparting knowledge of the laws of war and humanitarian law such as the Geneva Conventions intended to impose ethical restraints on behaviors and the use of weaponry in armed conflict.

It is likely – even though military service is now voluntary in the US – that young American citizens and those in many countries face similar struggles today, whether the context is interstate warfare or the multiple armed conflicts and strategic acts of terror that plague human society the world over. Thus, the content of this unit still has relevance to this present decade. The issues of personal responsibility and the role of law in defining and guiding them are useful bases for the exploration of the ethical principles imbedded in international law and the potential of law as an alternative to war and other forms of violent force to solve global problems.

While the four cases in War Criminals, War Victims address questions of the responsibility of individuals and states in warfare of the 1970s, the pedagogy of inquiry into issues and principles integral to the cases is applicable to current curricula designed for study of individual responsibility as it intersects with military policy. The teaching approach called for reflection on the significance of personal morality and public ethics, emphasizing individual agency at critical points in the process of armed violence. The cases cited in the more recent collateral material call for similar reflection and attest to the power of individuals and civil society to affect the international order. Current movements to enforce and protect human rights, the women’s movement, the environmental movement, the gun control movement, the movement for an alternative to the war system and the movement to ban nuclear weapons (illustrated in an earlier post on the UN nuclear ban treaty, Teaching toward Nuclear Abolition: Disarmament Week 2018), are inspiring youth activism in many countries.

Given this interest and involvement, educators might well consider introducing issues of legal responsibility, personal agency and civil society efficacy into their courses in: government, current issues, modern history and/or social studies. Law and the civic responsibilities of individual citizens are essential to the study of all these areas. Knowledge thereof as well as familiarity with those international standards and legal agreements relevant to the conduct of war, arms reduction, war prevention, protecting the planet, and to citizen’s rights and responsibilities in the global order should be standard content in peace education. Such content was the basis for curricula designed to teach about the peace proposals put forth in The Hague Agenda for Peace and Justice in 21st Century from which excerpts are included in the collateral materials for the study outlined in this post in which the primary problematic is the legal abolition of nuclear weapons.

To fully understand the potential of law as an instrument for the abolition of nuclear weapons and as a tool for building the structures of a peaceful and just global security system, students should be given opportunities to consider the fundamental functions of law. They should be led through an inquiry into how these functions operate on the global level and how they might be strengthened to assure the sustainability of institutional structures designed to achieve and maintain world peace, protect the environment and human rights and assure individual political agency. Study of the Shimoda case is an excellent teaching device through which to open that inquiry.

From the table of contents of War Criminals, War Victims you see that the cases included, with the exception of Shimoda, deal with individual responsibilities of the kind that might well be faced in any armed conflict. Most the cases that comprise the unit are fairly well known to anyone familiar with American history or cases related to the laws of war i.e. Andersonville, Nuremberg, and My Lai. One case, however, is little known, but still highly relevant to a primary issue of human survival. That issue is nuclear weapons and their standing in international law. The “Shimoda case,” largely unnoted in peace education, was a significant event in the movement toward the legal abolition of nuclear weapons.

[icon name=”download” class=”” unprefixed_class=””] [icon name=”file-pdf-o” class=”” unprefixed_class=””] Download the Shimoda Case from War Criminals, War Victims.

The case turns on the standing of individuals in international law and their rights to claim damages for harms inflicted by governments. At the time the case was heard in the Tokyo District Court and when the curriculum series was published individuals did not have actual and practical standing in international law that entitled them to legal recourse in matters that involved the actions of their governments. As is now readily evident, this lack of standing was an impediment to the defense of human rights as they came to be articulated in international covenants and conventions. And even to this day, in times of war governments have suspended many civil and political rights in the name of state security. However, in regard to this issue as well as the legality of nuclear weapons, the Shimoda opinion was a door opener, as the judges stated that “… in theory” international law could “recognize individual rights…”

Specifically relevant to the banning of nuclear weapons, the court found them to be illegal, agreeing with the plaintiffs that the atom bomb violated international laws extant at the time of the atom bombing of Japan, laws that prohibited such forms of bombing and the use of such cruel weapons. None the less the court found in favor of the Japanese government that the plaintiffs sued because Japan had waived the right to such claims against the US in the terms of surrender, arguing in its defense that accordingly, Japanese citizens did not have the right to claim damages. Perhaps, it was this apparent “loss of the case” that accounts for Shimoda being unknown except to lawyers and scholars who have taken up the cause of outlawing nuclear weapons.

Neither was it much considered in study of the role of the individual in the international system, nor cited as a precedent for institutional reform to assure individual standing in international law, again, with the exception of scholars of the subject. Other than those few teachers who used the unit, peace educators were less aware of it than the other cases in War Criminals, War Victims. This case was selected for these posts on 1970s curricula with the intention of overcoming this obscurity and bringing attention to the efforts individual and civil society organizations have undertaken since the beginning of the nuclear age to outlaw these weapons. It is offered in this series because is should be included in peace education and because the narrative, including the descriptions of the human suffering of bombing victims is designed to engage young learners in the essential inquiry and to instigate interest in the collateral materials written in an accessible style suitable to non-specialist adult audiences.

Until the establishment of the International Criminal Court in 2000, individual victims of violations of international law had little recourse to justice. Those deemed responsible for crimes committed in the course of armed conflicts were tried in military courts, i.e. Andersonville, Nuremberg, My Lai, and Tokyo. Later cases such as Bosnia, Democratic Republic of Congo and Liberia were heard in specially constituted international courts. (All these latter cases may be researched online.)

In cases where there was no governmentally constituted court to try grievous violations of the laws of war or of international human rights standards, civil society groups set up people’s courts or “tribunals”. One such tribunal was convened in Tokyo in 2000, asserting in its charter that it was an extension of the Tokyo Tribunal convened in 1946 to try Japanese military accused of crimes committed in the conduct of World War 11. The Women’s International War Crimes Tribunal brought indictments of those responsible, civilian as well as military, for the sexual enslavement of hundreds of thousands of women during the conduct of the war in Asia and the Pacific (known as the “Comfort Women” tribunal, it can also be researched on the web).

These tribunals illustrate the agency of civil society and the potential of law for the transformation of the global order. They also raise awareness of the fact that as any humanly designed instrument, established law is not perfect. We are ever learning of those whose interests and injuries have been and are left out in drafting law, and how unjust laws i.e. Nuremberg Laws leading to the Holocaust, Apartheid that oppressed the Black citizens of South Africa, US state laws of segregation that perpetuated the injustices of slavery and other forms of colonial law that have served to violate rather than protect human rights. When studying the positive potential of law, such pitfalls should be considered, especially when engaging students in consideration of institutional reform and transitions to a preferred global order. Even in drafting constitutions for “mock trials” or simulations, inclusiveness and fairness are required for an authentic pursuit of justice, rather than for the “revenge,” that has tended to lead some to dismiss “victors” justice.

The UN has since its inception looked to the changing of unjust laws that uphold racist and sexist violations of human rights. It also adopted the Nuremberg principle of individual responsibility to resist contributing to the imposition of orders or policies that violate legal and ethical standards. Most recently, the UN Human Rights Committee has made the link between human rights and nuclear weapons, issuing General Comment 36 asserting that the threat or use of nuclear weapons violates the right to life as put forth in the International Covenant on Civil and Political Rights.

These developments within the UN system are, as with the nuclear ban treaty, in no small measure due to civil society activism of the type that produced people’s tribunals. In various instances, particularly with regard to racism, sexism and illegal wars, people’s tribunals have been convened. Study of these tribunals is a productive heuristic device in guiding learning on the functions and potential of law in striving for an alternative to the war system, the system that frames all the cases included in War Criminals, War Victims. They have been effective in exposing international crimes where established courts have failed. Tribunal simulations are especially productive in learning about the functions, problems and possibilities of law as a tool of peace. One of the materials referenced here as a suggestion for the extension of study of the Shimoda case is a simulation outline inspired by the Tokyo International Women’s Tribunal of 2000. The basic procedures could be adapted to more recent cases such as the use of torture and the scandal of Abu Graib American military prison, the humanitarian disasters of the war in Yemen, US military action against asylum seekers at US-Mexico border crossings and various contemporary forms of human trafficking. Simulation of a case holding leaders of the nuclear powers responsible for endangering the future of the planet, using the findings of Shimoda and the subsequent cases described in the collateral materials together with UN comments, statements and treaties might be especially useful to understanding the relevant legal standards, opinions and commentaries and their possible use in pushing forward for permanently and universally establishing the illegality of nuclear weapons. s

Collateral Materials

The materials listed here are primarily focused on the problem of nuclear weapons, the issue that forms the core of the Shimoda Case. They describe citizen actions to raise public awareness of the nuclear weapons and historical instances of attempts to establish the illegality of nuclear weapons through court rulings and opinions. Shimoda is the first of several such cases brought before courts in two countries and before the International Court of Justice. For the inclusion of these cases we are especially indebted to John Burroughs of the Lawyers Committee on Nuclear Policy who made them available and to Peter Weiss the author of articles on two of these cases.

Perhaps the most significant of all the cases is the Advisory Opinion of the International Criminal Court that while it did not establish illegality, exhorted states to urgently pursue disarmament measures toward the elimination of nuclear weapons (see “Notes on a Misunderstood Decision: The World Court’s Near Perfect Advisory Opinion in the Nuclear Weapons Case” by Peter Weiss).

Two women in Scotland committed an act of civil disobedience in 1999 with the intention of having the ICJ advisory opinion recognized in Scottish law. Although later overturned by a higher court, the Scots Law case of 1999 had exonerated the women on the grounds that their actions were taken to prevent the humanitarian consequences of the use of the weapons – the evidence of which was the basis of Shimoda and proved a significant influence in the adoption of the ban treaty. Among other cases that might be researched in this inquiry is “the Ploughshares Now Oak Ridge” case (see, for example: 83 year old nun, Meghan Rice, found guilty of sabotage; How a Nun, a Vet, and a Housepainter Stood Up to the Threat of Nuclear Weapons; Sister Megan Rice, Freed From Prison, Looks Ahead to More Anti-Nuclear Activism). Sister Meghan Rice, an American nun who participated in the action served two years in prison. The indictment of the US nuclear modernization program drafted by Plowshares might well make a good beginning for a simulation of the tribunal suggested above to bring leaders of nuclear powers to trial. The outline is from Learning to Abolish War, a curriculum published in 2002 (Learning to Abolish War, Book 2, Unit 11, starting on p.62).

The Core Inquiry

The pedagogy of War Criminals, War Victims was based on facilitating student reflection and discussion of issues and principles, intended to enable learners to distinguish between these two essential aspects of deliberation on public matters and to provide practice in reasoned dialogue on issues of substance and controversy. This process could be adapted to any of the materials referenced here. In addition to this process, an extended inquiry of two more elements for more analytic reflection is offered here to deepen and extend that process, proposing queries on underlying motivations to facilitate reflection on personal values and public norms; and transitional outcomes to assess possibilities for precedents and strategies that might contribute to the goal of outlawing nuclear weapons. These and similar cases researched by teachers developing their own units might be used to teach toward the purposes set forth for the inquiry proposed here: raising awareness of the devastation nuclear weapons are designed to produce; providing knowledge of landmarks in the movement to outlaw the weapons; presenting possibilities for citizen action toward achieving that goal; and capacitating students to participate in such action.

Underlying Motivations: Why were these cases brought?

In all the cases in the unit and those in the collateral materials, the governments, individuals and civil society groups who initiated the proceedings did so with particular intent and purposes. Among them were not only the affixing of responsibility and the exacting of recompense and punishment, but also of clarifying law and establishing legal precedent. The central queries for reflective analysis should open exploration of these motivations and purposes, the legal purposes and principles involved and the public ethical standards that underlay the motivation. The queries may also be the basis for student reflection on their own respective motivations and intentions in regard to their personal stances on nuclear weapons.

Inquiry into motivations in Shimoda is outlined here as an example of the line of queries that might be posed. While the issues in this case deal more with what we might consider crimes by states, including the violation of international agreements banning cruel and unnecessarily destructive weapons, and with individuals more as victims than agents, it none-the-less provides the grounds for speculations on the motivations of Shimoda et al in bringing their suit to the Tokyo District Court. Was the motivation primarily to recover damages for injury? Might it have been to put testimony on the effects of the bomb on individual human beings on record? Might it have been primarily to get a ruling on the legality of nuclear weapons? Might the plaintiffs have hoped to establish the standing of individuals in international law?

Transitional Outcomes: How might the opinions and findings in each of the cases being studied contribute to the final and complete banning and abolition of nuclear weapons?

Here the examples involve various of the developments referenced in this study unit. How does the reasoning of the Tokyo Court compare to that in the Advisory Opinion of the International Court of Justice? How were the facts of law cited by the Tokyo Court echoed in the rationale for banning the weapons articulated by the delegates to the 2007 UN conference that produced the Treaty on the Prohibition of Nuclear Weapons?

How does the Rome Statute establishing the International Criminal Court provide for individuals to sue for their rights under international law? Do you believe the provisions to be adequate to the needs? Should all citizens be held responsible under international law?

Make a timeline of cases based on those referenced here from Shimoda to the Treaty on the Prohibition of Nuclear Weapons. What might each case have contributed to the learning that led the delegates to draft and adopt the treaty? Do you see a relationship to the UN Human Rights Committee General Comment 36? What might be next steps to be taken respectively by individual citizens, civil society organizations and governments to ban and abolish nuclear weapons and to hold all citizens responsible for violation of international laws?

A general inquiry of this kind might be developed and applied to the study of the cases provided here or any other cases that might be included in a study of law as an instrument for the abolition of nuclear weapons, the construction of peace and protection of human rights and the planetary environment.

Suggested Teaching Procedures

All of the materials cited in this curriculum commentary comprise a complete study program of multiple class sessions of inquiry into law as a tool for the achievement of justice and peace; legal and civil society initiatives to eliminate the threat of nuclear weapons and citizen responsibility and possibilities to take action toward enacting and enforcing a permanent and universal ban of the weapons. It is recommended that all involved in the study read the Shimoda case excerpt, and that the instructor read as much as possible of the collateral materials.

The collateral readings could be assigned to cooperative learning groups, one reading per group. Each group on completion of their exploration of the case should report to the full class on the story of the case, the issues and principles involved. General class discussion should try to come to a general consensus on the significance of the issues and the present relevance of the principles.

After this report, return to groups to explore the possible motivations and outcomes. Again seek consensus, this time on the ethics of the motivations and the efficacy of the outcomes as a step toward nuclear disarmament.

Summary learning exercises might be, among others:

  1. a simulation of a tribunal as suggested above;
  2. drafting a model General Comment on the relationship between the erosion of the environment and nuclear weapons to be issued by the UN Environment Program (UNEP);
  3. planning a general strategy of education and action to achieve nuclear disarmament in the students’ lifetimes. The strategy should give attention to all the relevant factors, including human rights, economic justice, planetary survival and the ethical norms of a preferred global order, speculating on the efficacy of particular strategies to achieve the most sustainable and viable results.

A Request from the Global Campaign for Peace Education

The Global Campaign for Peace Education would appreciate hearing from teachers undertaking units and courses on nuclear disarmament, individual responsibility as encoded in the Nuremberg Principles, international human rights standards or the Geneva Conventions and the laws of war. We would be pleased to share your curriculum and your experience in teaching it with our readers.  Contact us here.

-Betty Reardon. 12/10/2018

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