Crimes Against Peace
By Allen Ferguson, JD, MFA
“To initiate a war of aggression,” the Nuremberg Tribunal said, “is not only an international crime; it is the supreme international crime,” for “it contains within itself the accumulated evil of the whole.” The four victorious nations whose judges issued the Final Judgment containing those words – the United States, the Soviet Union, the United Kingdom, and France – had established the Tribunal to put top Nazi leaders on trial for three broad types of crimes: war crimes, crimes against humanity, and crimes against peace. “Crimes against peace,” according to the London Agreement in which the four nations established the Tribunal, meant the “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.”
Supreme Court Justice Robert H. Jackson, serving as chief prosecutor for the U.S. at Nuremberg, in his opening statement to the Tribunal, described the proceeding as “the first trial in history for crimes against the peace of the world.” He told the court, “the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law” and warned that “while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”
While the terms “war crimes” and “crimes against humanity” have remained in our vocabulary since Nuremberg, the term “crimes against peace” has not, despite its central importance both to the United States and to the Nuremberg Tribunal immediately following World War II. Moreover, as we shall see, contrary to Justice Jackson’s admonition, the nations that sat in judgment at Nuremberg have not consistently refrained from aggressive war since that time. Why? Is it because the idea of “crimes against peace” and the included crime of aggression lacked any solid ethical or legal foundation and were nothing more than victor’s justice? Or has the core Nuremberg principle that war-making itself is illegal been sidelined for other reasons?
Ancient Roots of the Principle that War-making is Illegal
Unquestionably, when the Nuremberg Tribunal convicted German leaders for crimes against peace and the included crime of aggression, it took a large and bold step in the development of international law — a step soon followed by the Tokyo trials where Japanese leaders were convicted for committing the same crimes. Although the Nuremberg and Tokyo convictions for the crime of aggression, a crime against peace, constituted a new legal development, the core principle on which these convictions were based — that starting a war is a serious international offense — was neither new nor ephemeral, but built upon a solid ethical and legal foundation going back centuries. The same basic principle appears in widely accepted contemporary legal documents, notably the Kellogg-Briand Pact and the United Nations Charter.
Nearly 2,000 years ago, the Greek historian Plutarch wrote about the initiation of war in words that remain remarkably relevant today. “There is no war among men which does not originate in fault,” Plutarch wrote. ” One is kindled by an eager desire for pleasures, another by avarice, another by an overmastering passion for public office or supreme power.”
Hugo Grotius, the seventeenth century Dutch lawyer who is often referred to as the “father of international law” tapped a source 500 years before Plutarch’s time when he wrote, “Aristotle himself more than once condemns those nations which made warlike pursuits . . . their end and aim. Violence is characteristic of wild beasts and violence is most manifest in war; wherefore the more diligently effort should be put forth that it be tempered with humanity, lest by imitating wild beasts too much we forget to be human.”
The early Christians took the Sixth Commandment and the pacific teachings of the New Testament at face value and refused to participate in war. In the fifth century A.D, St. Augustine wrote, “Everyone . . . who with pain thinks on [the] evils [of war], so great, so terrible, so ruthless, must acknowledge that this is misery. If, again, anyone endures or reflects upon these things without anguish of soul, his plight is all the more wretched, because he considers himself happy, while in fact he has lost his feeling for humanity.”
The Qur’an, presaging the UN Charter by more than a millennium, teaches, “Fight for the sake of God those that fight against you, but do not attack them first. God does not love the aggressors.”
The just war doctrine, which became prominent in Europe in the late Middle Ages and Renaissance, had many proponents and variations, but always maintained a central focus on the justice or injustice, the legality or illegality, of going to war – jus ad bellum in Latin. One of the most probing and articulate just war scholars was Francisco de Vitoria, a Spanish cleric and professor who taught at Salamanca and Paris in the early sixteenth century. Vitoria analyzed the various justifications offered by the Spanish crown for its wars of conquest against the Native Americans. These included expansion of empire, the glory of the ruler, the inhabitants’ refusal to adopt the conquerors’ religion, their supposedly sinful ways, their lack of formal land ownership, and their alleged voluntary acquiescence to Spanish rule. Based on Greek, Roman, Biblical and other writings, Vitoria brilliantly refuted each of these grounds for going to war. His conclusion was that the only sufficient justification for going to war is serious injury received.
Grotius drew heavily on earlier teachings, including the Greek and Latin writings noted above. In his seminal work The Law of War and Peace, published in 1625, he drew a fundamental distinction between unjust aggressive war and just defensive war. He went further to warn that even just wars should not be undertaken rashly because of the inherent cruelty of war, which, he said, “drags in its train a mass of wrongs and insults.”
A traceable thread runs from the centuries-old just war doctrine directly into the courtroom at Nuremberg. Justice Jackson informed President Truman in a June, 1945 report that the Nuremberg proceeding was intended to revive and build upon the just war doctrine, particularly Grotius’ concept of a fundamental distinction between unjust aggressive war and just defensive war. This renewal of just war principles, following their rejection by nineteenth and early twentieth century authorities, was to begin by putting Nazi defendants on trial for planning and waging aggressive wars, crimes against peace.
The UN Charter
The Charter begins by proclaiming that the “Peoples of the United Nations” are “determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The first purpose of the organization stated in Article 1, is “to maintain international peace and security.” To accomplish that, Article 2(3) requires all members to settle their international disputes by peaceful means, while Article 2(4) requires all members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. . .” The Charter thus sets forth a sweeping prohibition of the use of force, as well as threats to use force, among nations.
The only exceptions that appear in the Charter to its broad prohibition of the threat or use of force are self-defense and participation in a UN Security Council action. Article 51 affirms “the inherent right of individual or collective self-defense if an armed attack occurs against a Member . . .” In addition, Chapter VII allows the Security Council (but not individual nations or coalitions of nations) to use force to maintain or restore international peace and security if the Council finds that other measures have been, or would be, inadequate. By making the use of armed force by a nation illegal except in true self-defense or as part of a Security Council action, the Charter aligns with the teachings of the ancient and Renaissance writers quoted above, the Qur’an and the Nuremberg Judgment.
Basis of Nuremberg Convictions for Aggression, a Crime Against Peace
As we have seen, the core Nuremberg principle that war-making is illegal rests on ancient and firm foundations and appears prominently in the UN Charter. In addition, other sources of the same principle were relied on by the Tribunal in its Final Judgment.
As a starting point, the Tribunal relied on its founding document, the 1945 London Agreement, which expressly gave it jurisdiction over crimes against peace, including aggression. But the judges also looked beyond the London Agreement, relying especially on the Kellogg-Briand Pact, a treaty entered into following World War I, in which France and the United States led the international community in condemning war as a way to settle international controversies; renouncing it as an instrument of national policy; and pledging to settle all disputes “of whatever nature or of whatever origin” solely by peaceful means. The Judgment noted that Germany was a party to the Kellogg-Briand Pact and held that “after the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact.” Further, any such war is “illegal in international law,” and “those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing.” The German invasion of Poland in September, 1939 was a prime example.
Has the Prohibition of Aggression Been Followed Since WWII?
As warfare continues to cause hundreds of thousands of civilian homicides, injuries and displacements, massive property destruction and serious environmental damage, it is painfully obvious that the Charter’s vision of putting an end to the scourge of war and its untold sorrow, and establishing world peace, has not come to pass. While recent wars have had a wide variety of causes and instigators, in assessing the state of the world with respect to the non-use of force principle, it is important to know whether two of the most powerful nations that sat in judgment at Nuremberg have or have not consistently obeyed it since. Specifically, since 1947, have the United States and Russia followed the Nuremberg principle prohibiting aggression and the parallel UN Charter principle of non-use of force? Or have they sometimes violated those principles? To answer this question, it would be helpful first to define “aggression” or “aggressor.”
The terms “aggression” and “aggressor” were not defined in the London Agreement, but Justice Jackson offered a definition to the Tribunal. An aggressor, he said, is a state that is the first to: (1) declare war; (2) invade the territory of another state with armed force; (3) attack the territory, vessels or aircraft of another state with armed force; or (4) provide support to armed bands in the territory of another state. He added that no political, military, economic, or other consideration can justify aggression. Genuine self-defense, which he defined as “resistance to an act of aggression,” is not aggression. A similar but more expansive definition can be found in General Assembly Resolution 3314, Definition of Aggression (1974), which adds that “a war of aggression is a crime against international peace.”
Instances of post-World War II military interventions in other states are far too numerous to describe and analyze here. However, a partial list of U.S. interventions in the past 65 years will at least give an idea of the frequency of the use of force in our time. What follows, therefore, is a partial list of countries the U.S. has attacked or invaded, or in which it has otherwise intervened with lethal force, over the past 65 years. Excluded from the list are cases in which the US has participated as part of a United Nations force approved by the Security Council, such as the Korean War.
– Iran, 1953
– Guatemala, 1954
– Lebanon, 1958, 1982-83
– Vietnam, 1961 – 1973
– Cuba, 1962
– Dominican Republic, 1965
– Laos, 1960’s
– Cambodia, 1970
– Chile, 1970 – 73
– Grenada, 1983
– Nicaragua, 1982 – 84
– Libya, 1986
– Panama, 1989
– Haiti, 1994
– Sudan, 1998
– Yugoslavia (Serbia), 1999
– Iraq, 1990 and 2003-2011
– Afghanistan, 1998, 2001-present
– Yemen, present
– Pakistan, present
– Somalia, present
An evaluation of each of these interventions to determine whether the U.S. violated the non-aggression, non-use of force principle is beyond the scope of this article. The same is true of an evaluation of all instances of Russian intervention in the post-war period. However, because any violation of the non-aggression, non-use of force principle by either the U.S. or Russia would show that it has not consistently obeyed the principle, two cases of intervention by each are described briefly with a view to determining whether or not they involved aggression as Justice Jackson and the General Assembly defined it. The four cases are Russia’s invasion of Hungary in 1956; its invasion of Czechoslovakia in 1968; the U.S. intervention in Nicaragua starting in 1981; and the U.S.-led invasion of Iraq in 2003.
Soviet Russia’s Invasion of Hungary, 1956
Hungary fought on the side of Germany and the other Axis countries in World War II, and near the end of the war was defeated and occupied by Soviet forces. In the geopolitical deal-making among the Allies at the end of the war, Hungary was designated as falling within the Soviet sphere of influence.
A brief period of multi-party democracy in Hungary following the war ended when the Communist Party merged with another party and put up an unopposed slate of candidates in the elections of 1949. ?What followed was the implemented authoritarian, Soviet-style measures including nationalization of enterprise, forced collectivization of farms, forced relocation of tens of thousands, internment, use of the state security police to purge dissidents, and trials, imprisonment and, in some cases, execution, of dissidents.
After Stalin’s death in 1953 and the ascent of Nikita Khrushchev as Soviet leader, the rigidity of communist control in Hungary, as well as elsewhere in the Eastern Block, eased somewhat. A reformist became Prime Minister and promised to release political prisoners, end internment camps, and end forced collectivization, among other reforms. But in 1955, the reformist was removed, and the implementation of his reforms was blocked. The same year, the Soviet Union and the Eastern Block countries, including Hungary, entered into the Warsaw Pact, a mutual defense treaty that was their answer to NATO. The Warsaw Pact also promised “respect for the independence and sovereignty of states” and “noninterference in their internal affairs.”
Many Hungarians regarded the return to Stalin era policies as intolerable, and on October 23, 1956, approximately 200,000 protesters, including members of the Writers Union and students, gathered in front of the parliament in Budapest to press demands. The protesters tore down a 30-foot statue of Stalin. The communistic Hungarian leadership requested Soviet military intervention to put down the protests. The next day, Soviet tanks rolled into Budapest.
Clashes in which protesters, with assistance from sympathetic members of the military, became more violent, forced the collapse of the government and brought about the return of the reformist as Prime Minister. The party General Secretary fled to Russia. The reinstated reformist prime minister announced a set of immediate reforms, including a cease-fire, dissolution of the security police, amnesty for dissidents, immediate withdrawal of Soviet troops from Budapest and negotiations for their complete withdrawal from Hungary. His government freed political prisoners and allowed previously banned political parties to function. He also announced Hungary’s withdrawal from the Warsaw Pact.
The Soviet leadership feared that a successful rebellion in Hungary would weaken the Warsaw alliance and the defensive shield Hungary provided from a possible attack by the West. Khrushchev reportedly also believed that if Russia failed to intervene in Hungary while France, Britain and Israel were intervening militarily in Egypt, the Western nations would take it as a signal that only they could get away with military interventions in other states.
On November 4, 1956, while engaged in bad faith negotiations with Hungarian leaders on the withdrawal of Soviet troops from the country, Russia launched a second and much larger offensive — this time using air power, artillery and more than a thousand tanks to put down the rebellion. The brief war left about 6,200 dead, including approximately 3,000 civilians. The Soviets again deposed the reformist prime minister and installed a new puppet regime. A United Nations report later characterized the Soviet intervention in Hungary as not a civil war, but a case of “a well-equipped foreign army crushing by overwhelming force a national movement and eliminating the Government.”
Soviet Russia’s Invasion of Czechoslovakia, 1968
Like Hungary, Czechoslovakia was liberated from the Nazis at the end of World War II by Russian forces and after the war, with the West’s consent, fell within the Soviet sphere of influence. Also as in Hungary, the post-war period saw the installation of a repressive communist regime loyal to the Soviet Union, which nationalized means of production, severely restricted freedom of speech, press and travel, violations of human rights, and communist party control of government. Members of the Writers’ Union spoke out against the repression – cautiously at first – suggesting, for example, that literature should not be controlled by party doctrine. In 1966 and 1967, students demanding reforms held demonstrations that sometimes turned violent.
In late 1967 at a meeting of the Czechoslovak Communist Party Central Committee, an open clash occurred between the old-line leaders and younger, opposition politicians such as Alexander Dubcek. In January, 1968, Dubcek was elected first secretary of the party and in April he presented an “Action Program” including freedom of speech, press, and travel, industrial and agricultural reform, limiting the power of the secret police, and exploring the possibility of a multi-party government. Dubcek and his supporters called their program “socialism with a human face,” and the brief period when their reforms began to be implemented was known as the “Prague spring.”
The Soviet leadership under General Secretary Leonid Brezhnev did not feel warmed by the Prague Spring. They took it as a threat to their ideology and to the strength and cohesiveness of the Warsaw alliance. On July 15, 1968 the Soviet Union and other Warsaw Pact countries sent Dubcek a letter saying Czechoslovakia was veering toward counter-revolution and they considered it their duty to protect it. The Soviet Union asserted a right to intervene, with force if necessary, in any country in its sphere of influence that departed from single-party, communist governance or veered toward capitalism, a policy that became known as the “Brezhnev doctrine.”
On August 20, 1968, 200,000 troops and 2,000 tanks from Warsaw Pact countries (ironically including Hungary) entered Czechoslovakia. Dubcek called upon his countrymen not to resist the invasion. Some citizens nevertheless took to the streets to resist while others confounded the invaders by removing directional road signs. Despite the sporadic resistance, the Warsaw Pact forces quickly occupied the entire country. Seventy-two Czechs and Slovaks were killed during the invasion.
The Soviets allowed Dubcek to retain his leadership position for most of a year after the invasion and implemented the repeal of reforms gradually. But in the end, as in Hungary, the return to repressive policies was harsh and firm.
U.S. Intervention in Nicaragua Beginning in 1981
In 1979, the leftist Sandinista National Liberation Front led a rebellion against the military dictatorship of General Anastasio Somoza Garcia, overthrew Somoza, and formed a new “democratic coalition government” in which the Sandinistas themselves played the dominant role. The United States’ reaction to the new government initially was favorable and included economic aid. However, in 1981, when Ronald Reagan succeeded Jimmy Carter, the policy changed. In January, the aid was suspended and later that year was terminated. Meanwhile, armed opposition groups consisting mainly of Samoza loyalists called “Contras,” carried out operations against the government. The United States provided funding, arms, training, logistical and other support to the Contras. A budget bill passed by Congress in 1983 included funds to be used by intelligence agencies to support “directly or indirectly, military or paramilitary operations in Nicaragua.”
U.S. operations against Nicaragua, in addition to supporting the Contras, included mining harbors and approaches to harbors, allegedly resulting in damage to or destruction of 12 vessels, injuries to 14 people and two deaths. The U.S. also attacked Nicaraguan ports and oil refineries, patrol boats, and a navy base. It was reported in the United States Senate that President Reagan had authorized the CIA to mine the harbors.
The United States-Led Invasion of Iraq, 2003
On March 20, 2003, after failing to obtain a Security Council resolution expressly authorizing military intervention, and in the face of massive anti-war demonstrations around the globe, the United States and the United Kingdom attacked, invaded and occupied Iraq with a force of nearly a quarter million U.S. troops and 45,00 British troops, with smaller numbers from other nations. Early on they launched aerial and marine bombardment. “Operation Iraqi Freedom” began with seizing oil fields and the cynically named “shock and awe” display of massive firepower in the bombardment of Baghdad. The war ended (at least for the U.S.-led coalition) nearly nine years later, after hundreds of thousands of Iraqi civilians, tens of thousands of Iraqi combatants, and nearly 5,000 coalition soldiers had been killed; untold tens of thousands physically and mentally injured and displaced; infrastructure devastated; and environment degraded.
The way to war with Iraq was paved by the Bush administration and Congress offering up a variety of rationales. Chief among these were claims that Saddam Hussein possessed, or was on the verge of possessing, weapons of mass destruction including nuclear capability, and was likely to use WMD’s against the West or allow them to fall into the hands of terrorists. Expressions of official concern about Iraq WMD’s to justify armed intervention were framed in terms of preemptive self-defense, epitomized by then National Security Adviser Condoleezza Rice’s inflammatory statement that the U.S. could not allow the first proof of Saddam’s WMD’s to be a mushroom cloud. In fact, it is questionable whether she and other administration officials involved truly believed Iraq had weapons of mass destruction or was acquiring them. Rather, as a British official stated in the July, 2002 “Downing Street Memo” reporting on a meeting of top British officials including Prime Minister Tony Blair “the intelligence and facts were being fixed around the policy” by Washington. The WMD rationale for the war, flimsy from the start, proved entirely baseless after the invasion began, for no such weapons were found.
Other rationales for the war put forth by the U.S. included Iraq allegedly harboring and supporting terrorists; regime change; bringing liberty and democracy to an oppressed people; and enforcing Security Council resolutions. In addition, Congress, apparently unaware of the irony, in its joint resolution authorizing the use of force against Iraq condemned Iraq for its “war of aggression” against Kuwait in 1990. Finally, despite a dearth of evidence, there were insinuations of Iraqi involvement in the 9/11 attacks, a theory that President Bush himself apparently believed, at least immediately after 9/11, and that many Americans continued to believe long after the war began.
One rationale that the Bush Administration offered to justify the Iraq war deserves further explication. That is the supposed enforcement of UN Security Council resolutions, particularly Resolution 1441, “On the Decision to Set Up an Enhanced Inspection Regime to Ensure Iraq’s Compliance of its Disarmament Obligation” issued November 8, 2002, approximately four months before the war began. The administration claimed that Resolution 1441 authorized the U.S.-led invasion by warning Iraq of “serious consequences” of non-compliance with disarmament obligations. However, what the resolution actually did was to recite various ways in which Iraq had failed to comply with reporting and access requirements concerning its weapons programs, and it established an enhanced inspection regime to monitor Iraq’s compliance with its disarmament obligations. The resolution provided that any failure by Iraq to comply was to be reported to and assessed by the Security Council (not by the U.S. or any other member state). The resolution concluded that the Security Council in the past had repeatedly warned Iraq of “serious consequences” continued non-compliance with disarmament obligations. It did not state what those consequences might be and did not authorize any use of force. After Resolution 1441 was adopted, the U.S. and the U.K. tried but failed to obtain a further Security Council resolution expressly authorizing the use of force against Iraq. Despite that failure, the U.S. and the U.K. proceeded with the invasion – as if carrying out a predetermined plan.
The World Court’s View
The U.S. intervention in Nicaragua, though the least destructive to human life of the four cases discussed above, is the only one that has come before an international court for determination of the use of force issue under international law. In 1984, Nicaragua filed a case against the United States in the International Court of Justice (World Court) claiming, among other things, that the U.S. had violated the non-use of force principle and Nicaragua’s rights under international law by arming, training, financing and otherwise supporting the Contras, mining harbors, attacking oil installations, and using force in the other ways noted above.
Nicaragua also alleged that the Contras were guilty of indiscriminately killing civilians, killing prisoners, torture, rape and kidnapping, and contended that the United States should be held responsible for these acts due to its support and control of the Contras. On this point, the court found that despite the very substantial role the U.S. played in supporting the Contras, which it described as “crucial to the pursuit of their activities,” the evidence did not show total control of the Contras by the U.S. Therefore, the U.S. was not liable for these alleged heinous acts.
In the preliminary, jurisdictional, phase of the case, the U.S. acknowledged the primacy of the non-use of force principle in international law, but contended that the court lacked jurisdiction to decide that and other issues. The court, however, found that it had jurisdiction over the case, including the question of illegal use of force by the U.S.
On the fundamental question of the use of force, the court found against the United States. The court held that by mining harbors and attacking ports, oil refineries, patrol boats, and a naval base, as well as by acts in support of the Contras that amounted to the use of force, including arming and training them, the U.S. violated the fundamental customary international law principle of the non-use of force. It also held that by these and other acts, the U.S. violated both the customary international law principle of non-intervention and Nicaragua’s sovereignty.
The World Court further held that U.S. intervention in Nicaragua could not be justified by ideological or humanitarian considerations. Referring to a finding by the U.S. Congress that Nicaragua had taken steps toward establishing a “totalitarian Communist dictatorship” the court said, “adherence by a state to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests . . . .”
On the related question of whether U.S. intervention could be justified by Nicaragua’s alleged human rights violations, the court held that “while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. . . . The protection of human rights . . . cannot be compatible with the mining of ports, the destruction of oil installations or . . . the training, arming and equipping of the contras.”
The United States also asserted that its activities in Nicaragua were justified as collective self-defense in aid of El Salvador against attacks by Salvadoran rebels allegedly sponsored by Nicaragua. The court rejected the self-defense argument finding that what assistance Nicaragua gave to Salvadoran rebels did not amount to an armed attack by Nicaragua against El Salvador, and therefore did not justify the use of force in self-defense.
How Do the Foregoing Cases of Armed Intervention Stand Up Under International Law?
In all four of the cases of armed intervention discussed above, the attacking nation, without Security Council authorization, used armed force in the territory and against the government of another state. Therefore, in each case, the attacker committed illegal aggression, using Justice Jackson’s definition noted above, and violated the non-use of force principle of the Charter – unless it acted in legitimate individual or collective self-defense. As we have seen, the World Court rejected the Unites States’ collective self-defense argument in the Nicaragua case. It also rejected the idea that one state’s use of lethal force against another can be justified as ideological or humanitarian intervention. What about the other three cases?
The Bush administration’s rationale for the Iraq war based on weapons of mass destruction is essentially a preventive self-defense argument: that the war was necessary to preclude a future attack by Iraq. As we have seen, Iraq had no WMD’s and it is doubtful that there was a good basis for believing it did. Even if Iraq had had WMD’s, it is established in international law that armed force may be used in self-defense only in the event of an actual attack or a truly imminent attack. The Nuremberg court held that the use of force in self-defense before being attacked can be justified only if there is “an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment of deliberation” (the Caroline Case test). Clearly, there was no such imminent threat from Iraq, or anything approaching it.
The Bush administration’s attempts to justify the Iraq war on the basis of democratic principles and human rights fare no better. As we have seen, the World Court held in the Nicaragua case that international law does not recognize an exception to the non-use of force principle based on ideological or humanitarian considerations and, in any event, respect for human rights cannot be furthered by the use of lethal violence. Because the most fundamental human right is the right to live — a right enshrined in the U.S. Declaration of Independence, the U.S. Constitution, the Universal Declaration of Human Rights among other essential legal documents — massive homicide, especially of civilians such as occurred in Iraq, cannot be reconciled with human rights. Nor can it be reconciled with democracy, since dead people don’t vote.
Likewise, the rationales that Soviet Russia offered for its interventions in Hungary and Czechoslovakia also cannot justify the interventions under international law. Russia’s desire to shore up its security by using nations within its sphere of influence as a buffer zone in case of attack from the West appears to be an attenuated preventive self-defense argument. Ir no attack from the West was imminent then, under international law, a self-defense justification for the Russian invasions fails. Further, the Soviet invasion of Hungary cannot be justified by the fact that the original Soviet incursion was requested by the Hungarian leader at the time, because Hungary’s request for military assistance clearly had been revoked by the time Russia launched the main offensive.
Soviet Russia’s desire to keep Hungary and Czechoslovakia in line with its own ideology, government structure and economic system also fails to provide justification for the invasions under international law. As the World Court pointed out in Nicaragua, there is no such ideological exception to the non-use of force principle, and to recognize such an exception would make a mockery of the fundamental concept of sovereignty.
From what has been said, it is clear that the United States and Russia, at least in the four cases discussed here, have violated the non-aggression, non-use of force principle, even though, immediately after World War II they had played a substantial role in establishing that legal principle. This failure to abide by the rule of law in the most critical area of international relations – war and peace – demonstrates the extent to which the brute force of realpolitik can overpower positive movement toward world peace. What circumstances have allowed this to happen?
Making the World Safe for Crimes Against Peace
The use of state violence rather than peaceful means to resolve international disputes has been made possible by weakening, obstructing and undermining the international judicial institutions that could hold nations and statesmen responsible to international law, specifically the International Court of Justice (World Court) and the International Criminal Court (ICC).
Regarding the World Court, the United States, after losing on the jurisdictional issues in the Nicaragua case, revoked its “Article 36” consent to the general compulsory jurisdiction of the World Court, which had been in effect since 1946. This action did not have the effect of terminating the Nicaragua case, but it did leave the World Court without jurisdiction over the U.S. in subsequent cases, unless the U.S. consents in a particular case or through a particular treaty. As a result, there is no longer any apparent way for a state that claims to be a target of unlawful American military intervention to sue the U.S. in the World Court the way Nicaragua did.
The International Criminal Court (ICC) was created in 2002 to prosecute individuals for committing the most serious crimes of international concern. The preamble to the Rome Statute, the treaty that created the ICC, begins, “Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,” the world community establishes the ICC “to put an end to impunity for the perpetrators” of “the most serious crimes of concern to the international community as a whole,” namely, genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC’s jurisdiction over the crime of aggression, however, cannot be exercised until the treaty is amended to add a definition and procedures.
The objective of combating the most serious crimes of international concern by prosecuting their perpetrators holds out hope of making the Nuremberg principles both effective and universal. Unfortunately, major roadblocks have been erected in the path of attaining this objective. The United States in particular has worked hard and effectively to weaken the ICC, particularly with respect to any prospective prosecution of Americans.
First, although President Clinton, at the end of his second term, signed the Rome Statute, he never submitted it to the Senate for ratification, and his successor, Bush, revoked the U.S. signature. Therefore, the U.S. is not a party to the Rome Statute or a member of the ICC, and under the Statute, this means the court’s potential jurisdiction over U.S. nationals is very limited. In addition, as noted, until the Statute is amended, it does not permit the ICC to exercise its jurisdiction over the crime of aggression. An amendment recently proposed by signatories to the Rome Statute would deny the ICC authority to prosecute crimes of aggression committed by nationals of states that have not ratified the treaty or that have opted out of the ICC’s aggression jurisdiction. Accordingly, contrary to one of the fundamental objectives of the Rome Statute – to end impunity for the most serious crimes of international concern – the treaty as it stands, and as proposed to be amended, goes a long way toward assuring impunity for perpetrators of the crime of aggression.
In addition, in 2002 Congress passed, and President Bush signed, a law designed to prohibit U.S. cooperation with the ICC and shield Americans and nationals of American allies from investigation or prosecution by the ICC. The American Servicemembers’ Protection Act of 2002 [22 USC 7421] forbids U.S. courts and state and local governments to cooperate with the ICC and directs the President to prevent the sharing of law enforcement information with the ICC. The Statute also forbids federal, state and local agencies to extradite anyone to the ICC. It prohibits members of the U.S. armed forces from participating in any United Nations peacekeeping operation unless binding assurances are given that they will not be subject to ICC prosecution. Most startling, it authorizes the President to “use all means necessary and appropriate” to secure the release of any American or citizen of an allied nation detained or imprisoned by the ICC. Congress, then, has authorized the President to use armed force against the Netherlands (where the ICC is located) or any other country if an American or national of an ally is held there for prosecution by the ICC, or to serve an ICC sentence – regardless of the seriousness of his or her internationally recognized crimes.
Russia and its leaders have obtained much the same immunity from being held responsible for the illegal use of armed force by also opting not to accept the general compulsory jurisdiction of the World Court and by failing to ratify the Rome Statute.
The combination of measures described above has left the world, for now, without an international court with power to pursue a case of unlawful use of force or aggression against Russia, the U.S. or their leaders, soldiers or other personnel, no matter how serious, heinous or pervasive their war crimes, crimes against humanity or crimes against peace might be. This is a giant step backward from Justice Jackson’s vision of bringing an end to a system of international lawlessness in which periodic wars are inevitable by holding statesmen responsible to law.
The Rule of Law or the Law of the Jungle?
Just over half a century ago, President Kennedy told the United Nations General Assembly, “Mankind must put an end to war – or war will put an end to mankind.” To put an end to war, he proposed worldwide “general and complete disarmament” applicable to both nuclear and conventional weapons, under effective international control, until all armies and all armaments have been eliminated, except those needed to maintain domestic order or to constitute a UN peace force. Undoubtedly, in making his dire warning and proposing his radical solution, Kennedy was influenced both by the pervasive fear that was an essential element of the Cold War and by the not distant memory of World War II.
Today, the Cold War is over and memory of World War II has faded. But warfare and credible threats of far greater warfare continue. Civilization remains more-or-less intact, but it also remains imperiled by thousands of nuclear weapons, other weapons of mass destruction, rapidly mounting numbers of conventional weapons, and new weapons such as drones. The United States is by far the largest manufacturer and exporter of weapons in the world, with foreign weapons sales topping $66 billion in 2011. The U.S. is arming nations of the Middle East to the teeth, by providing billions of dollars worth of arms to Saudi Arabia, Egypt, Israel and other nations in the region. Meanwhile, the U.S. stalled the attempt at the United Nations in July, 2012 to forge broad international agreement on an arms trade treaty aimed at making sure weapons traded internationally are not used for terror, organized crime, or the suppression of human rights. President Obama later signed a version of that treaty, but the Senate is unlikely to ratify it. Meanwhile, shooting wars go on in Afghanistan, Pakistan, Syria, Yemen, Somalia, Congo, Israel-Palestine, Mali and elsewhere. Alarmingly high levels of homicidal violence continues in Iraq two years after the theoretical end of the war. Israel and the U.S. have threatened Iran with armed attack.
Yet in politicians’ speeches and major media coverage, we hear almost nothing about the legality of all this organized violence and threats of organized violence. Leaders of nations involved give little sign of recognizing that the actions and threats – an attack on Iran, for example, or on Syria – could violate international law, despite the broad non-use of force language of the UN Charter. Nor do they appear concerned that they could be held personally responsible, despite the precedents set by the Nuremberg, Tokyo, Yugoslav, Rwanda and other war crimes tribunals, now including the ICC.
Immediately after World War II, the United States and Russia, with other nations, led the world in taking legal action and establishing institutions with the ultimate goal of transforming a bloody and belligerent world into a peaceful and just one. Prominent among these great accomplishments were the Nuremberg prosecutions and the founding of the United Nations. Yet since that time, the United States and Russia have led the world in a multi-faceted retreat from the rule of law and the peaceful settlement of international disputes, characterized by launching armed interventions in other nations not in genuine self-defense and undermining the World Court and the International Criminal Court.
What Needs to be Done?
To help assure the survival of civilization, it is essential for the United States especially, as a world leader and the one remaining superpower, to stop its embrace of a system of international lawlessness in which crimes against peace are allowed to go undeterred, unpunished, and sometimes even unnoticed. American citizens and leaders must acknowledge that war, with its inevitable death, terror and destruction is the most primitive, beast-like way for people to relate each other, and that its initiation is an international wrong of the most serious kind, as the Nuremberg Tribunal held. We must restore the rule of law in the international arena in a way that begins by assuring to the full extent possible the most fundamental right, the right to live.
This requires major changes in U.S. military and foreign policy. Such changes necessarily include cutting the defense budget and reforming the military to return it to its original and constitutionally assigned role of assuring the common defense. The U.S. should promote rather than undermine the rule of law in the international arena by once again submitting to the general compulsory jurisdiction of the World Court and by ratifying the Rome Statute to become a member of the International Criminal Court. It should work for an amendment to allow the ICC to exercise its jurisdiction over the crime of aggression in an immediate and universal way. Congress must repeal the reactionary American Servicemembers’ Protection Act, which outlaws cooperation with the ICC and authorizes invasion of the Netherlands. The United States Senate should ratify the rather weak Arms Trade Treaty and should initiate measures to make it stronger in in its restrictions on arms trade. We should invite other nations to commence negotiations aimed at the kind of worldwide general and complete disarmament that President Kennedy called for half a century ago.
In compliance with the Constitution’s designation of Congress as the branch of government that has the authority to declare war — or to refuse to declare war — we need legislation that goes beyond the 1973 War Powers Resolution. New legislation should require all decisions authorizing the use of force outside our borders, except in a case of self-defense in the face of an actual or truly imminent attack, to be made only after due consideration and approval by Congress. Such legislation should require Congress to determine whether or not a proposed use of force complies with international law as well as domestic law before authorizing it. Such legislation should also require Congress to weigh the likely destructive effects of using force, including “collateral” deaths of civilians, PTSD, brain injuries, dislocation, and environmental destruction, against the positive effects realistically anticipated, so as to assure that the destructive effects do not outweigh the constructive ones.
Such drastic changes in American public policy may be essential to the survival of civilization. Even so, they seem like pie in the sky given the quality and tone of discourse in America today about war and peace. These changes also seem unrealistic given the power of the corporations, government agencies, and individuals who depend upon and profit from the vast and deeply entrenched military-industrial complex. In fact, such changes are pie in the sky, and will remain so until enough of the American people and their elected representatives and public servants become aware of and act on the fundamental Nuremberg principle that starting a war is unethical and illegal – that is, a crime against peace.