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A Nuclear Kellogg-Briand Pact Is An Even Better Idea Than Its Author Thinks

By David Swanson | War Is A Crime | February 3, 2017

A Georgetown Law professor named David Koplow has drafted what he calls a Nuclear Kellogg-Briand Pact. In an article proposing it, Koplow does something all too rare, he recognizes some of the merits of the Kellogg-Briand Pact. But he misses others of those merits, as I described them in my 2011 book When The World Outlawed War.

Koplow acknowledges the cultural shift that the pact was central to, that shifted common understanding of war from something that just happens like the weather to something that can be controlled, should be abolished, and would henceforth be illegal. He acknowledges the role of the pact in motivating trials (albeit one-sided trials) for the crime of war following World War II.

But Koplow also does something that I imagine any U.S. law professor must be expected to do. I have yet to find one who doesn’t. He declares that the pact “silently” includes language that it does not actually include, language opening up a loophole for defensive war. While Britain and France added reservations to the treaty, other nations ratified it as it is written. The United States Senate Foreign Relations Committee produced a statement interpreting the treaty, but not actually modifying the treaty. Japan did the same. That committee statement interprets the existence of a loophole for defensive war. The pact itself does not contain it and would not have been created, signed, or ratified had it done so.

The actual text of the treaty is superior to the United Nations Charter in not containing two loopholes, one for defensive wars and the other for UN-authorized wars. And contrary to what Koplow claims, but consistent with the facts of the matter that he relates, the Kellogg-Briand Pact is still law. That this makes numerous recent wars illegal is not so significant, as most — if not all — of those wars fail to fit into the UN Charter’s loopholes. But the existence of those loopholes allows endless claims to legality that muddy what would be clear waters if we looked to the peace pact instead of to the UN Charter.

Of course intent is often taken to override actual text. If the people who created the pact intended it to silently allow defensive war, then it allows defensive war, according to this theory. But did they? That all depends on who counts as being those people. Koplow only mentions one of them, Senator William Borah. In fact, Koplow drastically understates Borah’s role. Following the lead of the Outlawry movement and intense lobbying by its leaders, Borah had publicly promoted outlawing war for years before the pact came up for a vote, and he had been instrumental in making sure that it did. On November 26, 1927, Borah had written this in the New York Times :

“I do not think peace plans which turn upon the question of an ‘aggressor nation’ are workable. An aggressor nation is a delusive and wholly impracticable proposition as a factor in any peace plan.” Borah, agreeing with the widespread understanding of the Outlawrists, believed that in any war each side would label the other the aggressor, and that through ultimatums and provocations any side could make another into the aggressor. “I would not support a peace plan,” Borah wrote, “which recognized war as legitimate at any time or under any circumstances.” Having learned from the creators of outlawry, Borah tutored Kellogg and Coolidge, even overcoming the hurdle created by the latter’s belief that outlawing war would be unconstitutional.

But in what exactly did Borah tutor them? Surely not in what appears to every living U.S. law professor in 2017 utter nonsense or a suicide pact? Yes, in fact, in just that. And I’m not sure either Kellogg or Coolidge ever understood it to any greater extent than this: the public demand for it was a hurricane. But here’s what it was, and why those who come around to praising the Kellogg Briand Pact seem more intent on burying it. Outlawry was opposed to the entire institution of war on the model of opposition to dueling — which, outlawrists pointed out, had not been replaced by defensive dueling, but by abolition of the whole barbaric institution. Once you sanction some wars, you motivate preparation for wars, and that moves you toward wars of all kinds. The Outlawrists had grasped this even before Dwight Eisenhower had been part of a chemical weapons attack on World War I veterans in the streets of D.C., much less made any farewell addresses.

But if you ban all war, the Outlawrists grasped, you end up eliminating the need for any war. You organize nonviolent systems of conflict resolution. You create the rule of law. You mobilize a reverse arms race. Peace Studies Departments have largely grasped this just in recent years. Peace activists had it down in the 1920s. And they insisted on their vision in the treaty that they wrote, that they negotiated, that they lobbied for, and that they passed — against the very will of many of the Senators ratifying it. Si vis pacem, para pacem. Koplow quotes this inscription from the pen used to sign the treaty. If you want peace, prepare for peace. That people actually meant that in 1928 is beyond common understanding in 2017. Yet it is down in writing in both the text of the treaty and the many texts of the movement that created it. Banning all war was the intention and is the law.

So why should we, as Koplow proposes, create a brand new treaty, modeled on Kellogg-Briand, but banning only nuclear war? Well, first of all, doing so would not legally or otherwise cancel the existing Kellogg-Briand Pact, which is universally ignored by that tiny number of people who’ve ever heard of it. On the contrary, creating a nuclear KBP would bring attention to the existence of the total KBP. Ending all nuclear war would be a powerful step in the direction of ending all war, would quite possibly keep our species in existence long enough to do so, and would point our thinking in just the right direction.

The treaty as Koplow has drafted it would not be in any conflict with a treaty banning nuclear weapons, but might be a treaty that nuclear nations would sign and ratify, and it would be stronger than simply a commitment not to be the first to use nukes. As drafted, the Nuclear Kellogg-Briand Pact goes beyond mirroring the language of the KBP to finesse the defensive question and many others. It’s well thought out, and I recommend reading it. Buried toward the end of the draft treaty is a requirement to accelerate efforts toward total nuclear disarmament. I think passing such a ban on only nuclear war would actually accelerate the abolition of all war, and might just do so via creating awareness that all war has been illegal for 88 years.

February 7, 2017 Posted by | Militarism, Timeless or most popular, War Crimes | , , , | Leave a comment

Armistice Day 98 Years On and the Need for a Peace to End All Wars

By David Swanson | Let’s Try Democracy | November 11, 2016

November 11 is Armistice Day / Remembrance Day. Ninety-eight years ago, on the 11th hour of the 11th day of the 11th month of 1918, fighting ceased in the “war to end all wars.” People went on killing and dying right up until the pre-designated moment, impacting nothing other than our understanding of the stupidity of war.

Thirty million soldiers had been killed or wounded and another seven million had been taken captive during World War I. Never before had people witnessed such industrialized slaughter, with tens of thousands falling in a day to machine guns and poison gas. After the war, more and more truth began to overtake the lies, but whether people still believed or now resented the pro-war propaganda, virtually every person in the United States wanted to see no more of war ever again. Posters of Jesus shooting at Germans were left behind as the churches along with everyone else now said that war was wrong. Al Jolson wrote in 1920 to President Harding:

“The weary world is waiting for
Peace forevermore
So take away the gun
From every mother’s son
And put an end to war.”

Believe it or not, November 11th was not made a holiday in order to celebrate war, support troops, cheer the 16th year of occupying Afghanistan, thank anybody for a supposed “service,” or make America great again. This day was made a holiday in order to celebrate an armistice that ended what was up until that point, in 1918, one of the worst things our species had thus far done to itself, namely World War I.

World War I, then known simply as the world war or the great war, had been marketed as a war to end war. Celebrating its end was also understood as celebrating the end of all wars. A ten-year campaign was launched in 1918 that in 1928 created the Kellogg-Briand Pact, legally banning all wars. That treaty is still on the books, which is why war making is a criminal act and how Nazis came to be prosecuted for it.

“[O]n November 11, 1918, there ended the most unnecessary, the most financially exhausting, and the most terribly fatal of all the wars that the world has ever known. Twenty millions of men and women, in that war, were killed outright, or died later from wounds. The Spanish influenza, admittedly caused by the War and nothing else, killed, in various lands, one hundred million persons more.” — Thomas Hall Shastid, 1927.

According to pre-Bernie U.S. Socialist Victor Berger, all the United States had gained from participation in World War I was the flu and prohibition. It was not an uncommon view. Millions of Americans who had supported World War I came, during the years following its completion on November 11, 1918, to reject the idea that anything could ever be gained through warfare.

Sherwood Eddy, who coauthored “The Abolition of War” in 1924, wrote that he had been an early and enthusiastic supporter of U.S. entry into World War I and had abhorred pacifism. He had viewed the war as a religious crusade and had been reassured by the fact that the United States entered the war on a Good Friday. At the war front, as the battles raged, Eddy writes, “we told the soldiers that if they would win we would give them a new world.”

Eddy seems, in a typical manner, to have come to believe his own propaganda and to have resolved to make good on the promise. “But I can remember,” he writes, “that even during the war I began to be troubled by grave doubts and misgivings of conscience.” It took him 10 years to arrive at the position of complete Outlawry, that is to say, of wanting to legally outlaw all war. By 1924 Eddy believed that the campaign for Outlawry amounted, for him, to a noble and glorious cause worthy of sacrifice, or what U.S. philosopher William James had called “the moral equivalent of war.” Eddy now argued that war was “unchristian.” Many came to share that view who a decade earlier had believed Christianity required war. A major factor in this shift was direct experience with the hell of modern warfare, an experience captured for us by the British poet Wilfred Owen in these famous lines:

If in some smothering dreams you too could pace
Behind the wagon that we flung him in,
And watch the white eyes writhing in his face,
His hanging face, like a devil’s sick of sin;
If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues,
My friend, you would not tell with such high zest
To children ardent for some desperate glory,
The old Lie; Dulce et Decorum est
Pro patria mori.

The propaganda machinery invented by President Woodrow Wilson and his Committee on Public Information had drawn Americans into the war with exaggerated and fictional tales of German atrocities in Belgium, posters depicting Jesus Christ in khaki sighting down a gun barrel, and promises of selfless devotion to making the world safe for democracy. The extent of the casualties was hidden from the public as much as possible during the course of the war, but by the time it was over many had learned something of war’s reality. And many had come to resent the manipulation of noble emotions that had pulled an independent nation into overseas barbarity.

However, the propaganda that motivated the fighting was not immediately erased from people’s minds. A war to end wars and make the world safe for democracy cannot end without some lingering demand for peace and justice, or at least for something more valuable than the flu and prohibition. Even those rejecting the idea that the war could in any way help advance the cause of peace aligned with all those wanting to avoid all future wars — a group that probably encompassed most of the U.S. population.

As Wilson had talked up peace as the official reason for going to war, countless souls had taken him extremely seriously. “It is no exaggeration to say that where there had been relatively few peace schemes before the World War,” writes Robert Ferrell, “there now were hundreds and even thousands” in Europe and the United States. The decade following the war was a decade of searching for peace: “Peace echoed through so many sermons, speeches, and state papers that it drove itself into the consciousness of everyone. Never in world history was peace so great a desideratum, so much talked about, looked toward, and planned for, as in the decade after the 1918 Armistice.”

Congress passed an Armistice Day resolution calling for “exercises designed to perpetuate peace through good will and mutual understanding … inviting the people of the United States to observe the day in schools and churches with appropriate ceremonies of friendly relations with all other peoples.” Later, Congress added that November 11th was to be “a day dedicated to the cause of world peace.”

While the ending of warfare was celebrated every November 11th, veterans were treated no better than they are today. When 17,000 veterans plus their families and friends marched on Washington in 1932 to demand their bonuses, Douglas MacArthur, George Patton, Dwight Eisenhower, and other heroes of the next big war to come attacked the veterans, including by engaging in that greatest of evils with which Saddam Hussein would be endlessly charged: “using chemical weapons on their own people.” The weapons they used, just like Hussein’s, originated in the U.S. of A.

It was only after another world war, an even worse world war, a world war that has in many ways never ended to this day, that Congress, following still another now forgotten war — this one on Korea — changed the name of Armistice Day to Veterans Day on June 1, 1954. And it was six-and-a-half years later that Eisenhower warned us that the military industrial complex would completely corrupt our society. Veterans Day is no longer, for most people, a day to cheer the elimination of war or even to aspire to its abolition. Veterans Day is not even a day on which to mourn or to question why suicide is the top killer of U.S. troops or why so many veterans have no houses at all in a nation in which one high-tech robber baron monopolist is hoarding $66 billion, and 400 of his closest friends have more money than half the country.

It’s not even a day to honestly, if sadistically, celebrate the fact that virtually all the victims of U.S. wars are non-Americans, that our so-called wars have become one-sided slaughters. Instead, it is a day on which to believe that war is beautiful and good. Towns and cities and corporations and sports leagues call it “military appreciation day” or “troop appreciation week” or “genocide glorification month.” OK, I made up that last one. Just checking if you’re paying attention.

World War One’s environmental destruction is ongoing today. The development of new weapons for World War I, including chemical weapons, still kills today. World War I saw huge leaps forward in the art of propaganda still plagiarized today, huge setbacks in the struggle for economic justice, and a culture more militarized, more focused on stupid ideas like banning alcohol, and more ready to restrict civil liberties in the name of nationalism, and all for the bargain price, as one author calculated it at the time, of enough money to have given a $2,500 home with $1,000 worth of furniture and five acres of land to every family in Russia, most of the European nations, Canada, the United States, and Australia, plus enough to give every city of over 20,000 a $2 million library, a $3 million hospital, a $20 million college, and still enough left over to buy every piece of property in Germany and Belgium. And it was all legal. Incredibly stupid, but totally legal. Particular atrocities violated laws, but war was not criminal. It never had been, but it soon would be.

We shouldn’t excuse World War I on the grounds that nobody knew. It’s not as if wars have to be fought in order to learn each time that war is hell. It’s not as if each new type of weaponry suddenly makes war evil. It’s not as if war wasn’t already the worst thing every created. It’s not as if people didn’t say so, didn’t resist, didn’t propose alternatives, didn’t go to prison for their convictions.

In 1915, Jane Addams met with President Wilson and urged him to offer mediation to Europe. Wilson praised the peace terms drafted by a conference of women for peace held in the Hague. He received 10,000 telegrams from women asking him to act. Historians believe that had he acted in 1915 or early in 1916 he might very well have helped bring the Great War to an end under circumstances that would have furthered a far more durable peace than the one made eventually at Versailles. Wilson did act on the advice of Addams, and of his Secretary of State William Jennings Bryan, but not until it was too late. By the time he acted, the Germans did not trust a mediator who had been aiding the British war effort. Wilson was left to campaign for reelection on a platform of peace and then quickly propagandize and plunge the United States into Europe’s war. And the number of progressives Wilson brought, at least briefly, to the side of loving war makes Obama look like an amateur.

The Outlawry Movement of the 1920s—the movement to outlaw war—sought to replace war with arbitration, by first banning war and then developing a code of international law and a court with the authority to settle disputes. The first step was taken in 1928 with the Kellogg-Briand Pact, which banned all war. Today 81 nations are party to that treaty, including the United States, and many of them comply with it. I’d like to see additional nations, poorer nations that were left out of the treaty, join it (which they can do simply by stating that intention to the U.S. State Department) and then urge the greatest purveyor of violence in the world to comply.

I wrote a book about the movement that created that treaty, not just because we need to continue its work, but also because we can learn from its methods. Here was a movement that united people across the political spectrum, those for and against alcohol, those for and against the League of Nations, with a proposal to criminalize war. It was an uncomfortably large coalition. There were negotiations and peace pacts between rival factions of the peace movement. There was a moral case made that expected the best of people. War wasn’t opposed merely on economic grounds or because it might kill people from our own country. It was opposed as mass murder, as no less barbaric than duelling as a means of settling individuals’ disputes. Here was a movement with a long-term vision based on educating and organizing. There was an endless hurricane of lobbying, but no endorsing of politicians, no aligning of a movement behind a party. On the contrary, all four — yes, four — major parties were compelled to line up behind the movement. Instead of Clint Eastwood talking to a chair, the Republican National Convention of 1924 saw President Coolidge promising to outlaw war if reelected.

And on August 27, 1928, in Paris, France, that scene happened that made it into a 1950s folk song as a mighty room filled with men, and the papers they were signing said they’d never fight again. And it was men, women were outside protesting. And it was a pact among wealthy nations that nonetheless would continue making war on and colonizing the poor. But it was a pact for peace that ended wars and ended the acceptance of territorial gains made through wars, except in Palestine. It was a treaty that still required a body of law and an international court that we still do not have. But it was a treaty that in 88 years those wealthy nations would, in relation to each other, violate only once. Following World War II, the Kellogg-Briand Pact was used to prosecute victor’s justice. And the big armed nations never went to war with each other again, yet. And so, the pact is generally considered to have failed. Imagine if we banned bribery, and the next year threw Sheldon Adelson in prison, and nobody ever bribed again. Would we declare the law a failure, throw it out, and declare bribery henceforth legal as a matter of natural inevitability? Why should war be different? We can and must be rid of war, and therefore incidentally we can and must be rid of bribery, or — excuse me — campaign contributions.

November 11, 2016 Posted by | Militarism, Timeless or most popular | , | Leave a comment