Back to First Principles: War and Human Rights

“Even a victory is a funeral.”

                                                       — Lao Tzu, Tao Te Ching

BACK TO FIRST PRINCIPLES: WAR AND HUMAN RIGHTS

      The most basic human right is the right to live.  War invariably takes away that right, usually on a massive scale.  Without the right to live, a person’s other rights (free speech, equal protection, freedom of religion, voting rights, and so forth) don’t matter because they don’t exist. With life, on the other hand, all other human rights, including the right to pursue happiness, are possible.  The idea that a person has a right to his or her own life is fundamental — a first principle.  It is enshrined, in one form or another, in the United Nations Charter, the Geneva Conventions, the Universal Declaration of Human Rights, the U.S. Declaration of Independence, the U.S. Constitution, and many other important legal documents.  It is enshrined in the Old Testament, the New Testament, the Tao Te Ching and many other religious texts. It is implicit, at least, in the Hippocratic Oath.  It is inherent in the basic idea, hardwired in our nervous systems, that human life has value, is worth saving, and destroying it is wrong.

Whatever political, religious and other differences people may have, few would dispute the idea that a person’s right to his or her own life is fundamental.  And yet, many of us live in cultures infused with, accepting of, and promoting violence, particularly the massive homicidal violence that is inevitably involved in  war.  Indeed, the violence that war involves often is glorified — in movies, books, magazines, on television, recruiting posters, videogames, etc. — even when similar violence on a smaller scale is recognized as illegal and wrong.  This is not a new phenomenon.  Two thousand years ago, the Roman statesman and philosopher Seneca wrote:

We try to restrain murders and the killing of individuals.  Why are wars and the crime of slaughtering nations full of glory?  Avarice and cruelty know no bounds.  In accordance with decrees of the Senate and orders of the people atrocities are committed and actions forbidden to private citizens are commanded in the name of the state.

The forces that promote and profit from militarism, the arms trade, world dominance and warfare often try to hide war’s true nature by covering it with such labels as “anticipatory self-defense,” “humanitarian intervention,” “collateral damage,” “muscular response,” and “protecting our national interests.”  Peeling away these euphemistic labels, war remains, as Supreme Court Justice Robert Jackson, chief prosecutor for the United States, described it to the Nuremberg Tribunal:  “Any resort to war– to any kind of war – is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property.”

Moreover, while warfare waged in genuine self-defense is regarded as legal, even a war that is purely defensive on the part of the country that has been attacked is, at the same time, aggressive on the part of the country or group doing the attacking.  Therefore, as the ancient Greek historian Plutarch wrote, “There is no war among men which does not originate in fault.  One is kindled by an eager desire for pleasures, another by avarice, another by an overmastering passion for public office or supreme power.”  Plutarch’s words ring true down the centuries.

If life is the most fundamental human right, and war inevitably destroys it on a massive scale, why isn’t starting a war, like committing a murder, an extremely serious crime?  The answer is that it is an extremely serious crime.  In the words of the Nuremberg Tribunal, “To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”   The London Agreement, in which the United States, Soviet Russia, Britain and France established the Nuremberg Tribunal, stated that preparing for or waging a war of aggression was a “Crime Against Peace.”  Other key international law documents including the Kellogg-Briand Pact of 1928 and the UN Charter also establish that starting a war is illegal.  Thus the UN Charter provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”  The Charter makes an exception for the use of force in self-defense, but only in the event of an armed attack, and under some circumstances a use of force approved by the Security Council.

If starting a war has been illegal under international law since 1928, or 1946 at the latest, and numerous wars have been fought since, why haven’t the individuals and nations responsible for initiating the wars been subjected to legal proceedings for doing so?  The short answer is that some of them have been, but not very many and not very often.  Immediately after World War II, Nazi leaders at Nuremberg and Japanese leaders at Tokyo were prosecuted, convicted and sentenced to long prison terms or to death for committing the crime of waging aggressive war, a Crime Against Peace.

In addition, the International Court of Justice (“World Court”) has ruled in a number of cases involving the use of armed force by one country against another, and has strongly affirmed the illegality of doing so.  In one such case, Nicaragua v. United States, the World Court specifically addressed the relationship between war and human rights. The court found that the U.S. had violated the non-use of force principle of international law by mining Nicaragua’s harbors, attacking oil facilities, attacking a navy base, and arming and training the “Contras,” a rebel group fighting to overthrow the Nicaraguan government.  The court addressed the question whether Nicaragua’s alleged human rights violations could justify the U.S. attacking that country.  The court found 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, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or . . . with the training, arming and equipping of the contras.”

It is important for the people and policymakers of nations to recognize that the initiation of war, with its inevitable deprivation of fundamental human rights, is illegal and wrong.  It is also important, when considering any international use of force — even force used in self-defense or approved by the Security Council — to carefully weigh the destruction of human rights, particularly the right to life, that will result, against the benefits reasonably expected to be achieved.  Is there such a thing as “humanitarian intervention?” Can killing ever stop killing?  Will it in a particular case?  How can we know?

Allen Ferguson, JD, MFA