10 Ways We Pretend War Is Not a Crime and How to Change Them

August 27, 2019, remarks, Chicago

By David Swanson

Happy Kellogg-Briand Pact Day! As you all know, but most people do not, the Peace Pact was signed 91 years ago today. And, as you all probably know, but most people do not, the inspiration and vision and endless labor behind it came from a mass movement begun and led, not by Mr. Kellogg or Monsieur Briand but by a lawyer from Chicago named Salmon Oliver Levinson. You could point that out to Minnesotans from Frank Kellogg’s Twin Cities if, of course, any of them had ever heard of Frank Kellogg.

A long time back I was asked for a title for this speech, which I hadn’t yet written, and I replied “10 Ways We Pretend War Is Not a Crime and How to Change Them.” More recently I sat down with the hope that I could think of 10 such ways. Unfortunately, far more than 10 items immediately occurred to me. So, the following are 10 greatest hits and broad categories of the ways in which we pretend that war is not a crime — plus how to change them. As a top 10 list, I will number the items in reverse order. I may also spend so much time on the first one that you forget it’s a list. Nonetheless . . .

Number 10. Laws like the Kellogg-Briand Pact are ignored. The pact, which bans all war, is a treaty to which the U.S. government is a party. That makes it the supreme law of the land under the U.S. Constitution. It is a treaty that has not been ended or abolished or withdrawn from. The U.S. State Department website lists it as in effect and lists 66 nations as parties to it. The Pact is silent on any means of ending or withdrawing from it. However, the United Nations Charter states that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” This creates the possibility to argue plausibly that the U.N. Charter replaced the Peace Pact. But it is an argument that has to be made. It does not exist as specific written law.

It is useful to ask what obligations under the U.N. Charter might conflict with obligations under the Peace Pact of Paris. They cannot possibly be obligations of peace. The Peace Pact requires that all disputes among parties be settled by peaceful means. They also cannot be obligations to uphold the banning of war through legal processes. The Peace Pact was the basis for the trials in Nuremberg and Tokyo following World War II, and it conflicts with no imaginable peaceful means of upholding peace, many of which were envisioned and advocated for by the people behind the Pact’s creation. The only conflict could be a U.N. Charter-based obligation to wage war. That would certainly conflict with the Kellogg-Briand Pact. But the U.N. Charter does not necessarily oblige any nations to wage war. It does permit them to wage war under certain limited circumstances, as so-called individual or collective self-defense after being attacked and until the United Nations takes action. It also stipulates that agreements will be negotiated with member states for the collective waging of war whenever decided on by the U.N. Security Council and to be overseen by the U.N. Security Council. Those agreements would certainly conflict with the Kellogg-Briand Pact, but this part of the U.N. Charter is not used and has next to nothing to do with anything we think of as wars. There have been wars approved by the United Nations in Korea and the Persian Gulf, but they have not been led by the United Nations, and the U.N. Charter has not obliged any government to take part in them. A more likely source of conflict is in the smaller operations that the U.N. calls “peacekeeping,” but that doesn’t get us to the elimination of the Kellogg-Briand Pact, which the wording of the U.N. Charter appears to leave in place except where a conflict arises on a case-by-case basis.

When the Kellogg-Briand Pact is dismissed as no longer in place or relevant it is typically not with any legal argument or any mention of the U.N. Charter, but rather through the claim that the Kellogg-Briand Pact “failed.” This is a truly bizarre understanding of how laws work. Murder exists, yet we don’t declare all laws against murder to have “failed” and proceed to completely ignore them. We have prisons full of people who violated laws against murder but empty of anyone who violated laws against war. The U.N. Charter also bans war, albeit with exceptions, and we do not declare it gone because “failed.”

I am not a lawyer, and I don’t want to focus only on a legal argument for the Pact still being in place. I readily admit that most lawyers believe or assume that it is not still in place. I further readily admit that it is routinely violated, as is the U.N. Charter, and that an argument over whether one routinely violated law supersedes another routinely violated law is of limited value. But the problem with ignoring the Kellogg-Briand Pact and the history of its creation and its successes is largely the same whether we need to create compliance with the existing Pact or we need to recreate and then compel compliance with a new pact. The value lies in the goal of such compliance and in the lessons to be learned from the movement that won over people like Frank Kellogg in the 1920s.

The Outlawry Movement, the effort to outlaw war, was a principled movement that embraced rather than hid from moral arguments, and that thought big, as big as a Green New Deal or healthcare or education or an end to mass incarceration — in fact much bigger than that. Those are all things that lots of other countries already have. It’s simply imagined to be a radical idea for the United States to have them too. Nobody had a global agreement to end war. Levinson saw such an agreement as one tool in the abolition of war, and he saw the abolition of war as one step in a chain of progress that had included ending such practices as duelling. The U.S. Senate ratified the Kellogg-Briand Pact and did not attach any reservations to it. However, the Senate Foreign Relations Committee separately declared that it believed the Pact allowed war as self-defense. Once again, I readily admit that a law only amounts to what people suppose it is and how they use it. However, there is a common understanding of law that says it should mean what it was supposed to mean by the people who created it. The reason for the separate interpretive statement by the committee was precisely to contradict the treaty itself, which had been drafted and lobbied for by people who wanted to ban all war, not just aggressive war, and who had successfully fended off every effort to limit the actual words of the treaty in that way. Levinson explained himself as follows:

“Suppose this same distinction had been urged when the institution of duelling [sic] was outlawed. . . . Suppose it had then been urged that only ‘aggressive duelling’ should be outlawed and that ‘defensive duelling’ be left intact. . . . Such a suggestion relative to duelling would have been silly, but the analogy is perfectly sound. What we did was to outlaw the institution of duelling, a method theretofore recognized by law for the settlement of disputes of so-called honor.”

The U.S. Senate Foreign Relations Committee of 1929 may have simply been stating the obvious and inevitable, as many people would say to this day. Outlawing defensive war is insanity and therefore sane people must point out that insanity isn’t intended. Against this line of thought, however, we must ask why anything obvious should need pointing out. And we must observe that, just as the Outlawrists like Levinson predicted, the concept of defensive war has been used to excuse numerous aggressive wars. Further, we can recognize that recent scholarship finds nonviolent responses to tyranny and occupation to be more successful than violent ones. Preparations for defensive war have proven to be as counterproductive as preparations for defensive duelling, whereas diplomacy, cooperation, aid, respect, the rule of law, and disarmament have reduced war making and, in some parts of the world, ended it.

The Outlawrists fail to measure up to the cartoon version of them in which they imagined the Kellogg Briand Pact would immediately end all war. Among the many additional steps they wanted taken, was outlawing advocacy for war. Levinson drafted legislation to make advocating war a felony. That we have such a law today is another matter of an ignored treaty. The International Covenant on Civil and Political Rights, signed and ratified by the United States, includes these words: “Any propaganda for war shall be prohibited by law.” You’ll be shocked to learn that war propaganda is not prohibited by domestic U.S. law. Such a law might conflict with the right to freedom of speech, but certainly for an even better reason than that for the prohibition on shouting “fire!” in a crowded theater. Such a law might conflict with the non-legal concept of too-big-to-fail since it would require major media outlets to radically reform or shut down. But, like the Kellogg-Briand Pact, the ban on war propaganda is a law written down in very clear language. When those in power favor something, like the Responsibility to Protect, or corporate personhood, or the right to torture, or the right to mass surveillance, or the executive order, or assassination, no law seems to be required at all. When something is not favored, like a ban on war or a ban on war propaganda, a law seems not to be sufficient. This is only to a degree, of course. Many worthwhile laws are upheld, which is why we bother trying to create and uphold laws.

I should add that the U.S. used to have a law banning propaganda for domestic media, meaning that the U.S. government could invent sheer fabrications for audiences outside the U.S. but not for audiences within. But it got rid of that law several years ago, and the nature of today’s media renders the distinction very weak or meaningless. But war propaganda understood as advocacy for war, which is always biased and misleading and dishonest, has long been central to both the U.S. government and supposedly independent U.S. media and has never been banned. Included in domestic propaganda, before and since the repealing of that law, have been such complete fabrications as Iraqi nuclear weapons, Iranian nuclear weapons, Iraq’s responsibility for 9/11, Iran’s responsibility for 9/11. The Pentagon is very environmental-minded; it recycles all of its propaganda.

Even laws that are mocked when not ignored have often done a great deal of good. War was legal in 1927. Both sides of a war were legal. Atrocities committed during wars were almost always legal. The conquest of territory was legal. Burning and looting and pillaging were legal. War was, in fact, not just legal; it was itself understood to be law enforcement. War could be used to attempt to right any perceived injustice. The seizing of other nations as colonies was legal. The motivation for colonies to try to free themselves was weak because they were likely to be seized by some other nation if they broke free from their current oppressor. Economic sanctions by neutral nations were not legal, though joining in a war could be. And making trade agreements under the threat of war was perfectly legal and acceptable, as was starting another war if such a coerced agreement was violated. Raping a woman in war could be illegal, but killing her could be in perfect compliance with the law. Killing was, in fact, legal whenever deemed part of a war, and generally illegal otherwise.

The outlawing of war reduced the need for large nations, and smaller nations began to form by the dozens, exercising their right to self-determination. Colonies, likewise, sought their freedom. Conquests of territory after 1928 were undone. The year 1928 became the dividing line for determining which conquests were legal and which not. International trade has flourished in the absence of legal conquest. While it is not even true, much less a statement of causation, that nations with McDonalds do not attack each other, it may be true that a world with a reduced risk of attack, for better or worse, generates more McDonalds.

The very first prosecutions for the crime of war, at Nuremberg and Tokyo, have been followed by a reduction in wars that has most notably included the absence of any further wars waged directly between wealthy well-armed nations — at least so far. Sadly, the justice then and ever since has been one-sided. But war has been stigmatized and made understood as a crime in much of the world. Just as much of the world celebrates labor rights and a labor day in May with roots in Chicago, despite the United States’ active erasure of that knowledge, much of the world understands war to have been outlawed — and the movement that did that has its roots in Chicago whether anyone remembers it or not.

The consequences of ignoring the Kellogg-Briand Pact in the United States are to be seen across the world. If war were not understood to be legal, the commission of murder by the U.S. military on small and large scales in numerous nations would be understood as the crime of murder. Just as in the pre-Kellogg-Briand times, war is understood by lawyers such as Rosa Brooks as legalizing its constituent parts. She testified to Congress that murders committed with missiles from drones were murder if not part of a war or legal if part of a war, and that she had no idea which they were because President Obama had written a memo on the topic and kept it secret. In contrast to this view, and in line with the view of lawyers who are not invited to testify before Congress, the judgment at Nuremberg upholding the Kellogg-Briand Pact, while limiting it to wars of aggression, declared that “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.” In other words, a collection of murders and tortures and traumatizing horrors is not made legal by its size, but rather is rendered supremely illegal.

Without the notion that war is legal, and that lesser acts against so-called enemies are therefore also legal, crimes like sabotaging elections, and arming and training coup plotters would be understood as crimes under the laws of the countries where they take place.

With the world failing to uphold the Kellogg-Briand Pact, the government of Japan, under U.S. pressure, is able to advance its efforts to remove from its Constitution (or reinterpret to mean their opposite) words nearly identical to those of the Peace Pact, placed there by the United States, but kept there and upheld for many decades by the Japanese people against every U.S. demand to eliminate or violate them.

Number 9. Did you remember this is a list? Number 9. Laws like the U.N. Charter that are not ignored or forgotten are circumvented through the use of excuses, pretenses, and obfuscations. In common U.S. understanding, wars are legal if done properly, and properly means involving the United Nations in some vague way or involving NATO or rounding up a gang of co-conspirators, as well as being sure to only kill people, not torture them, only use cluster bombs and napalm and depleted uranium but not chemical weapons, declare all your killing to be precise and proportional, and so forth. But that’s not what the U.N. Charter says. The U.N. Charter echoes the Kellogg-Briand Pact in banning war, but opens up two small loopholes. Because those loopholes exist, people imagine that wars must be legal or might be legal or that it’s a matter for lawyers to debate and for everyone to simply choose their preferred opinion on whether a war should be deemed legal or not. In reality, however, what the words of the U.N. Charter say is, in part:

“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 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, or in any other manner inconsistent with the Purposes of the United Nations.”

The purposes of the United Nations are all in line with the first one that begins the Charter: “To save succeeding generations from the scourge of war.”

If the Kellogg-Briand Pact were completely erased from memory, the U.N. Charter would be the best thing left. None of the major wars of the past 75 years have been initiated in compliance with the self-defense loophole. None of them have been fought by the United Nations. And almost none have even been approved by the United Nations. When the U.N. refuses very clearly and publicly to approve of a war, such as Iraq 2003 (where it did not approve or attacking Iraq or of Iraq fighting back), the war is simply fought anyway, and the claims made, however implausibly, that attacking an unarmed nation halfway around the globe is self-defense, and/or that some U.N. resolution that didn’t authorize any war actually did authorize a war, whether the U.N. thinks so or not.

Sometimes when the U.N. does not authorize a war, such as Afghanistan 2001, it is given a subsidiary role in the endless occupation that follows, and the implausible arguments for meeting one or both of the loopholes hardly need to be offered. When the U.N. does not authorize a war on Libya, it is maneuvered into authorizing measures to prevent a supposedly looming massacre, and then the pretense is made that either that prevention inevitably led to massive bombing and government overthrow and the creation of violent chaos, or the pretense is made that in fact the resolution authorized what it did not. And so on for Syria, Pakistan, Yemen, Somalia, etc.

A U.N. Special Rapporteur named Ben Emmerson, also a law partner of Tony Blair’s wife, wrote a big report some years back on drone murders in which he declared that they had simply made war the normal state of affairs instead of peace. Nothing criminal, mind you. Just a curious alteration in the state of affairs so that war is now the norm. Presumably the UN or some successor institution will have to establish the practice of authorizing peace in isolated locations.

Interestingly, Ben Emmerson is played by Ralph Fienne, known for Schindler’s List and Harry Potter and other movies, in the forthcoming film Official Secrets, in which Keira Knightly plays Katharine Gun. Gun was the employee of the British government who risked prison to make public the fact that the U.S. government had recruited the British government to help blackmail other governments into voting for the 2003 war on Iraq. Emmerson defended Gun with the argument that she had acted out of the necessity of preventing the crime of war. And the British government backed down on prosecuting her because it would have been forced to reveal documentation that its own opinion was that the war would be a crime, a revelation that might have led to prosecutions of Tony Blair and members of his government. Yet all of that information has since been made public and not a single person has been prosecuted.

The U.N. Charter not only makes war a crime, but it makes the threat of war, including the long-standing White House mantra “All options are on the table” a crime. It does something else, though. It gives the U.N. the power to impose economic sanctions. This often brutal tool has led to massive death and suffering and laid the groundwork for wars. However, the Fourth Geneva Convention — which, for whatever it’s worth, came after the U.N. Charter — bans the use of collective penalties. That law is apparently not hard to ignore, and the Geneva Conventions in general may be the most frequently ignored laws in the world.

Number 8. The U.S. Presidency has been given imperial powers. It is the opinion not only of the current president and Richard Nixon that anything a president does is legal. It is also the opinion of the U.S. Congress and of much of the U.S. public that a U.S. president is entitled to vastly more power than was ever held by King George III. This includes the power of nuclear holocaust. A couple of years ago, when Trump was threatening North Korea with “fire and fury” a Congressional committee held a hearing on the question of how Congress could prevent a president from launching a nuclear war. All members and witnesses were in agreement: they were utterly powerless to control the emperor. Of course, you and I might think, and some Congress Members might agree, that a president could be removed for incompetence under the Twenty Fifth Amendment, or might be impeached for numerous public and indisputable offenses including

  • Profiting from His Office
  • Incitement of Violence
  • Interference With Voting Rights
  • Discrimination Based On Religion
  • Illegal War
  • Illegal Threat of Nuclear War
  • Abuse of Pardon Power
  • Failure to Reasonably Prepare for or Respond to Hurricanes Harvey and Maria
  • Separating Children and Infants from Families
  • Refusal to Comply With Subpoenas
  • Declaration of Emergency Without Basis In Order to Violate the Will of Congress
  • Illegal Proliferation of Nuclear Technology
  • Illegally Removing the United States from the Intermediate-Range Nuclear Forces Treaty

We might think Congress perfectly capable of banning first use of nuclear weapons, or banning presidential use of nuclear weapons, or banning the possession of nuclear weapons. But that just proves we’re not qualified to testify before Congress.

One way you’re all very familiar with, I’m sure, to restrain presidential wars, is for Congress to ban particular wars or to insist that every particular war be authorized by Congress, as required by the U.S. Constitution. The House recently passed a ban on a war on Iran, an end to the U.S. role in the war on Yemen, and even an end to the Korean War. I’m in favor of all of those. I’m in favor of anything Congress or anybody else can do to prevent any war, including shouting “Presidents can’t start wars!”

But here’s what I’m not in favor of, and what amounts to a pretense that war is legal. It’s become very common for peace advocates to oppose “unauthorized wars” or “wars not authorized by Congress.” This is a little bit odd. Surely nobody is against the torture of kittens only if it’s unauthorized by Congress. Since when does Congress get to authorize crimes? And what would make those crimes any less horrific if Congress did authorize them? If the U.S. government were to launch a war against Illinois, forgetting that the Indigenous people and the British are gone now (which sounds crazy unless you recall that Trump believes the American Revolutionaries took over all the airports), if that were to happen, would you really care whether you were being bombed by the president or by Congress? I have yet to hear a single victim of U.S. wars anywhere on earth complain that the wars were not properly authorized by Congress.

The demand that Congress vote on each war has to some extent replaced the demand that each war be ended. Congress Members and some of their constituents prefer to demand a proper vote than to express an opinion on which way that vote should go. The implication is that either way would be legal and acceptable. I once questioned Senator Tim Kaine on this point. He was going on about how Trump shouldn’t bomb Syria without Congress, and I asked him how Congress could possibly make bombing Syria legal given the existence of the U.N. Charter. His response, which you can watch on my Youtube, was that Congress could do nothing to make some wars legal. But 30 seconds later, and ever since, he just went back to talking as he had before, denouncing Trump for not coming to Congress to legalize those wars.

Some in Britain want to require that the Parliament support any new war. The upside would be any successful prevention of a war by Parliament. The trouble, of course, is that the Parliament might then assume it has the legal right to commit the crime of war.

The U.S. Congress in 1973 created something called the War Powers Resolution which violates or weakens the Constitution by allowing presidents to launch wars for up to 60 days in the event of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Of course, that’s not good enough for emperors. Harold Koh, lawyer for Obama, informed Congress that bombing Libya would not be a war or even hostilities, and so even the War Powers Resolution would not apply. I certainly hope that if I’m bombed it is with non-hostile bombs.

Number 7. Just War Theory. When Christianity became the religion of an empire instead of the religion persecuted by an empire, people like Ambrose and Augustine had to explain to everyone why Jesus would have wanted them to join in organized mass killing. Some sects of Christianity have never accepted violence to this day. But the theories of the ancient saints as to how war could be just have saturated western culture and made their way into the minds of us all. We’re talking about the theories of people who in some cases believed that killing non-Christians was no concern at all, while killing Christians was a service because you were sending them to a better place. The theories concocted to justify war come out of assumptions and worldviews that most of us don’t share. They also make no sense on their own terms. The criteria that a war must meet to be deemed just are either amoral, impossible, or immeasurable. No war victim cares whether a war was launched by a proper authority. No war has ever been launched as a last resort, as “last resort” simply means that one has stopped thinking or trying ideas. No claim of proportionality has ever been measured on any scale to determine whether it is correct or not, because every such claim is simply invented out of thin air. If you say that it’s OK to bomb a location if no more than 49 civilians will die, and I say no more than 3, and somebody else says no more than 2,000,016, there is no way to determine who is right. But there is also no way to get governments and lawyers to stop claiming that murders should be “proportional.” There is no way in a modern war to keep noncombatants immune from attack as required by just war theory; noncombatants are the majority of the victims in modern wars. There is no way to respect enemy soldiers while killing them, not in my worldview; I’m happy to be respected in many ways, but none coexist with killing me. No war can ever meet the criteria of these ancient theories, but any war that could would still fail dramatically to justify maintaining the institution of war which generates the risk of nuclear disaster (including complete apocalypse), imposes huge destruction on the natural environment, fuels hatred and bad government, and kills first and foremost through the diversion of resources away from human and environmental needs.

Yet, we have human rights groups like Amnesty International and Human Rights Watch that as a matter of principle refuse to recognize laws against war and embrace the distinction between ad bellum and in bello, between why a war is begun and how it is conducted. The former is ignored as a matter of principle, while the latter is scrutinized. One of the most embarrassing sophistries of just war theory is the use of the concept of intentionality, and it survives to this day. If a military expects an action to kill a large number of civilians but also to accomplish some other purpose, it can choose to think of the action as intending the other purpose. In this way, the killings become unintended, or simply collateral damage. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques forbids major environmental damage, as could be expected from bombing fossil fuel or nuclear facilities, but if the intention is said to be some military purpose then the predictable environmental damage becomes legal because supposedly unintended.

Despite all these tricks, many people recognize most wars as unjust, yet hold out the possibility of some future war being just and of one particular past war about which they are badly misinformed (you all know which one) having been just. Just war thinking in our culture, in fact, focuses around a belief in the eventual second-coming of Hitler, who is of course not on his way.

Number 6. Treaties are not just ignored and violated but also torn up and rejected, generating enemies and avoiding disarmament. I mentioned the acceptance of presidential nuclear powers and what might be done about it, including the radical idea of getting rid of nukes. But that radical idea is a legal requirement. By joining the Nuclear Non-Proliferation Treaty in 1970, the then-nuclear-armed nations committed to not transferring nuclear weapons to other nations or in any way encouraging other nations to acquire nuclear weapons. The United States keeps nuclear weapons in other nations and has given nuclear technology to other nations. Also by joining that treaty, every member committed to undertaking “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

How are those good-faith efforts to accomplish that at an early date looking a half-century later? The world has 14,000 nuclear bombs, some of them thousands of times the size of what destroyed Hiroshima and Nagasaki. The United States and Russia have 13,000 of those 14,000.

The United States has gone out of its way to avoid disarmament or any sort of cooperation with Russia. Russia — I wish it were needless to say — commits its own war crimes, not to mention other outrages. But it is the United States that has led the opposition to compliance with the Non-Proliferation Treaty.

When Gorbachev wanted to give up all nuclear weapons, Reagan refused to give up his Star Wars program. When Germany reunited, the United States and allies lied to the Russians that NATO would not expand. Then NATO quickly began expanding eastward. Meanwhile the United States openly bragged about imposing Boris Yeltsin and corrupt crony capitalism on Russia by interfering in a Russian election in collusion with Yeltsin. NATO developed into an aggressive global war maker and expanded right up to Russia’s borders, where the United States began installing missiles. Russian requests to join NATO or Europe were dismissed out of hand. Russia was to remain a designated enemy, even without communism, and even without constituting any threat or engaging in any hostility. After Clinton bombed Kosovo, despite Russia’s veto at the U.N., he refused Putin’s offer to reduce each nation’s arsenal to 1,000 bombs. George W. Bush withdrew (and Congress let him) from the Anti-Ballistic Missile Treaty. Obama put new missile bases in Romania and Poland (Trump is completing the one in Poland). Bush and Obama and Trump rejected Russian and Chinese proposals to ban weapons in space. Obama rejected Russia’s proposal to ban cyber attacks. The U.S. Congress has refused to join Russia and most of the world’s governments in ratifying the Comprehensive Test Ban Treaty.

When Russia gave the United States a memorial in sorrow for the victims of 9/11, the United States practically hid it, and reported on it so little that most people don’t know it exists or believe it’s a false story. Obama and Trump expelled Russian diplomats and Congress sanctioned them. Obama helped facilitate a coup in Ukraine, and Trump began shipping weapons to the coup government. Obama tried to overthrow the government of Syria, and Trump escalated the bombings, even hitting Russian troops. Russia is accused, and found guilty prior to convincing evidence, of shooting down an airplane, of “aggressively” flying near U.S. planes on Russia’s borders, of “conquering” Crimea through a popular vote, of poisoning people in England, of torturing and murdering a man in prison, and of course of “hacking” an election — an accusation which, if evidence is ever produced for it, will amount to far less than Israel does in the United States or than the United States does in dozens of countries. Through all of these accusations it is not uncommon for the Russians to be referred to as “the commies,” despite the demise of communism.

And now Trump has abandoned the INF Treaty — Intermediate-Range Nuclear Forces Treaty. The INF Treaty was signed by President Reagan on December 8, 1987, and ratified by consent of the U.S. Senate on May 27, 1988, thereby becoming the supreme law of the land under Article VI, paragraph 2 of the U.S. Constitution. The INF Treaty allows withdrawal only if “extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests.” The INF Treaty provides for intrusive on-site inspections, backed up by mutual verification by satellite and other monitoring mechanisms, and a Special Verification Commission to resolve any disputes about whether violations have occurred. Whether or not Russian development and deployment of its new 9M729 missile constitutes a “material breach” of the treaty is a matter to be dealt with by the provisions of the treaty itself and cannot satisfy the legal requirement for withdrawal. Trump has violated the treaty and the Constitution by withdrawing.

Two years ago, the majority of the world’s nations supported the creation of a new treaty to ban all nuclear weapons. Seventy have signed and 25 ratified. The good faith efforts are being imposed on the nuclear nations from outside them. And not a moment too soon with the U.S. president reportedly wanting to use nuclear weapons against hurricanes.

Number 5. We allow secret agencies to plan and fight wars, and media outlets to ignore them. We don’t see horrors that we would immediately denounce as crimes. Every government on earth, beginning with the United States, should shut down and be done with secret agencies, spy agencies, agencies used for murder, torture, bribery, election-manipulation, and coups. While these agencies prevent the public from knowing what is being done in its name, they do not acquire any knowledge that benefits the public and that couldn’t have been acquired openly, lawfully, through simple research, diplomacy, and law-enforcement actions that respect human rights. While these agencies occasionally succeed in their criminal enterprises on their own terms, those successes always create blowback that does far more damage that the good — if any — accomplished. The CIA and all of its relatives in the U.S. government and around the world have normalized lying, spying, murdering, torturing, government secrecy, government lawlessness, distrust of foreign governments, distrust of one’s own government, distrust of one’s own qualifications to participate in self-government, and acceptance of perma-war. Labeling terrorism “counter-terrorism” doesn’t make it something other than terrorism and doesn’t change the fact that it increases rather than decreases terrorism by others. We should do something that Woodrow Wilson never did, and take seriously the first of his 14 points: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.” This is as critical a democratic reform as public financing of elections or public counting of paper ballots. Annie Jacobsen’s latest book is called Surprise, Kill, Vanish: The Secret History of CIA Paramilitary Armies, Operators, and Assassins. It’s based on interviews with former top members of the CIA who simply adore the CIA. The book simply adores the CIA. Yet it remains a chronicle of endless disastrous failure after failure after failure. This is a collection of pro-CIA voices leaking super-top-extra-special-secret information, much of it over 50 years old. And yet there’s not a speck of justification for the CIA’s existence to be found. We need to abolish the idea that secret government serves some useful purpose and is acceptable.

Number 4. The good war problem. The United States has a good war problem, a problem called “the good war.” We don’t believe in good slavery or good rape or humanitarian child abuse. There are some things that we believe must be ended, not mended. But we have not only a faith in the possibility of the good war, of bombing for peace and justice, but a requirement, a strong requirement to believe in the existence of good wars. When the war on Vietnam became very unpopular, it became necessary to find a way to oppose that particular war without opposing the institution of war. So, World War II was held up as the good war. When the war on Iraq became very unpopular, a man here in Chicago named Barack Obama declared that he was against it as a dumb war. He and many others quickly settled on their chosen candidate for smart and good war, namely the war on Afghanistan. While peace activists had denounced the war on Afghanistan from before it began, now it became common to hear that Afghanistan was in every way unlike Iraq. Wonderful heroic dedicated peace activists maintained that the United Nations had authorized the attack on Afghanistan, apparently based purely on the grounds that the United Nations had not authorized the attack on Iraq. If it didn’t authorize the Iraq war it simply must have authorized the Afghanistan war. So, there is a novel way in which to legalize a war in the United States, and it is this: Start another war that’s worse.

Number 3. The near total absence of consequences. While occasionally low-ranking members of the military are punished for particular atrocities, there is no accountability for those who launch wars or commit crimes within wars, unless they are African. The International Criminal Court has now said that it will prosecute the crime of aggressive war. Heretofore it has only prosecuted what are called “war crimes.” The very concept of “war crimes” serves to falsely suggest the legality of war itself. We don’t have lynching crimes for those occasions when some element of a lynching is carried out improperly. We don’t have mass-shooting crimes for those moments when a mass-shooter somewhere within The Country That Matters conducts some part of his mass shooting incorrectly. Yet we have war crimes for the bits of wars that are done wrong. Yet even those are only prosecuted by the ICC when the accused is from Africa. Attempts in countries like Spain and Belgium to prosecute U.S. war crimes under universal jurisdiction have been quashed by pressure from the U.S. government. Attempts by the International Court of Justice to hold the United States responsible for war crimes in places like Nicaragua have simply been ignored by the U.S. government. The war crimes of recent decades, the spying without warrant, the imprisoning without trial, the torture, etc., are ceasing to be crimes. U.S. citizens are just as spied on as they once thought it would be OK to spy on so-called enemies. Imprisoning without trial has transitioned from Guantanamo to the main land, being proposed now for immigrants. Torture was always here. Just ask the Chicago police. But it’s spread around the world and throughout our culture. In 2009 Michael Haas wrote a book with a foreword by Ben Ferencz, the only prosecutor at Nuremberg alive now, that listed 296 war crimes by George W. Bush. The first was the crime of aggressive war. Of the other 295 crimes, 253 of them were related to the treatment of prisoners and the treatment of an occupied population. This is why I said the Geneva Conventions may be the most ignored laws around. Of course what happens when crimes are not prosecuted or accounted for through truth and reconciliation or any such process, is that they continue, and they are continued with minor variations by emperors from both political parties, thereby rendering them acceptable to loyal members of those parties. Crimes become normalized. They’re too big and widespread and even glorified and celebrated for us to see them as crimes and their architects as unindicted criminals.

Number 2. Exceptionalism. Who gets a license to violate laws that nobody else gets to violate? The police do. If you convince yourself that you are the police, then you can violate more laws, remain outside more treaties, invest in more war making, engage in more bombings and invasions than anybody else in the name of restraining and punishing rogue regimes. You have a government but they have regimes. They engage in aggression but you in preemption. Their crimes justify yours, but yours aren’t crimes at all.

According to U.S. media outlets, the U.S. has not only a right to kill people anywhere, as “needed,” but can suffer as the victim of “aggression” and respond with “defense” anywhere, so that Syrian attacks on U.S. troops in Syria have been generally referred to as Syrian aggression, as have interactions between U.S. and Russian planes near the border of Russia been referred to as Russian aggression. In 2015, a CNN presidential primary debate moderator asked this question: “We’re talking about ruthless things tonight—carpet bombing, toughness, war. And people wonder, could you do that? Could you order air strikes that would kill innocent children by not the scores, but the hundreds and the thousands? Could you wage war as a commander-in-chief?”

If a recording were obtained of a North Korean or Venezuelan or Iranian leader declaring his willingness to kill thousands of children, that would be not only cause for great outrage, but also grounds for bombing the offending nation, thereby in fact killing thousands of children — which is not a crime when a U.S. president does it. In fact, it is a basic duty of every president according to CNN. Exceptionalism, of course, is a close sibling of racism and xenophobia and fuels and is fueled by them.

U.S. exceptionalism is adopted by other nations that become complicit in U.S. crimes. Ireland is a neutral nation. Under Hague Convention V in force since 1910, “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.” But the United States sends troops and weapons through Shannon Airport by the millions. I asked Ireland’s ambassador to the United States how that could be legal, and she replied that she’d asked the U.S. government, and they’d told her it was.

And the Number 1 way in which we pretend that war is not a crime is . . . normalization. Our entertainment, our education, our mass media, and our politics treat violence, often extreme and sadistic violence, as normal and unremarkable, and participation in war as an admirable and praiseworthy “service” completely regardless of whether the war participated in is an evil murderous catastrophe. It’s gotten so bad that many people can’t imagine a world beyond war.

What do we do about this? One thing we can do is normalize a culture of peace. Once upon a time the Kellogg-Briand Pact was displayed in post offices and classrooms. Once upon a time Veterans Day was Armistice Day. At World BEYOND War we’ve just published a Peace Almanac with an important peace event for each day of the year. We need to celebrate the work of peace activists, including those who’ve written essays being honored here today, and including the Outlawrists of the 1920s. We need to see examples of principled, non-partisan, moral, fearless, strategic, and successful activism, like what created the Peace Pact.

We also need to educate people about the possibility and necessity of ending war. We need to work on projects that weaken the institution of war and strengthen structures of peace. At World BEYOND War we’re successfully moving local governments to divest from weapons industries. And we’re supporting campaigns to prevent and close military bases. We’re also spreading the message of ending war and envisioning a world beyond it with books, videos, and events. Some of the best events that I recommend doing are friendly debates between supporters and opponents of war.

We need more people to use the books, articles, courses, and videos on worldbeyondwar.org and to sign the declaration of peace there.

We need to cure exceptionalism through changing our thinking, learning about and respecting the other 96 percent of humanity, where the other 50 percent of the guns and prisons are. We need to create standards of holding criminals accountable even when they are guilty of the supreme international crime. This may require democratizing the United Nations or empowering national governments to hold the United States to basic standards, but we can begin small. When Dick Cheney planned to come to my town I asked the local police to arrest him for torture. He never came.

We need to make open and public government and foreign relations a basic demand in our platform of reforms alongside clean elections and fair taxes and sustainable energy. We need to learn enough about war to reject the notion of a good one. We need to learn enough about the history of abolishing war so that the Kellogg-Briand Pact is known by everyone, this day is a global holiday, and we dedicate ourselves to completing the project that was advanced by the Outlawrists.

4 Replies to “10 Ways We Pretend War Is Not a Crime and How to Change Them”

  1. A superb thesis, David. You give us hope that the conscience of the world may be awakened to end wars forever. You are able to persuade through logic, reason, moral principles, not through hate-mongering and emotionalism. Someday the world will owe you a debt of gratitude of historical proportions. Thank you for caring and for masterful expositions.

  2. A very thorough and well-argued case by David Swanson. I agree with the pacifists’ positions on war, as all conflicts are fought over power, manifested as interest. Power has been present in every conflict of the past – no exception. It is the underlying motivation for war. Other cultural factors might change, but not power. Interest cuts across all apparently unifying principles: family, kin, nation, religion, ideology, politics – everything. We unite with the enemies of our principles, because that is what serves our interest. It is power, not any of the above concepts, that is the cause of war. Power, despite all the arguments and warnings of history, is propelling towards a third world war.
    https://www.ghostsofhistory.wordpress.com/

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