How Outlawing War Changed the World in 1928

When I wrote a book about the Kellogg-Briand Pact my goals were to draw lessons from the movement that created it, and to call attention to its existence as a still-current law being routinely violated — in hopes of encouraging compliance. After all, it is a law that bans nations from engaging in war — the primary thing my nation’s government does, with a half-dozen U.S. wars going at any time now.

Now Oona Hathaway and Scott J. Shapiro have published The Internationalists: How a Radical Plan to Outlaw War Remade the World. Their goals seems to be to show us how different and worse the world was in certain ways before the Pact, and to claim for the pact enormous success and general compliance.

I have learned a great deal from this phenomenal book, easily the best book I’ve read in years. I could write an essay about each of its over 400 pages. While I agree with a great deal of it and strongly disagree with certain parts, the two are easily separable. The brilliant sections are no less valuable because of those sections that fall short.

This book constitutes the ultimate refutation of the childishly simplistic notion that because World War II followed the outlawing of war in 1928 that outlawing was a failure — a standard that as far as I know has never been applied to any other law. (Has no one driven drunk since the banning of drunk driving?) In fact, the very first prosecutions for violation of the law, 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.

As Hathaway and Shapiro show, the Peace Pact of Paris has so transformed the world that it is hard to recall what preceded it. 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 illegal otherwise.

Some of this may sound familiar. You may have heard Rosa Brooks tell Congress that drone murders are acceptable if part of a war and crimes otherwise, whereas torture is a crime either way. But the extent to which the label of “war” is understood to permit killing today is limited greatly in theory and significantly even in reality. And today war is understood to license mass murder alone, whereas it used to give free rein for participants to murder, trespass, break and enter, steal, assault, maim, kidnap, extort, destroy property, or commit arson. Today a soldier can return from a mass killing spree and be prosecuted for cheating on his taxes. He or she has been given a license to kill and only to kill, nothing more.

Demanding today that the U.S. Congress repeal the Authorization for the Use of Military Force of 2001 and revert to its old practice of declaring wars, rather than simply funding (and whining about) any wars a president wages, may or may not be an effective means of curtailing warmaking, but it does amount to demanding a return to a barbaric antiquity, a practice that when it was used constituted an announcement that all would henceforth be permitted as long as it victimized whichever people war was being declared against.

To the very limited extent that the pre-1928 world had laws against wars, they were only laws against particular atrocities. In other words, the world in which Amnesty International and Human Rights Watch try to live today, in which war is perfectly acceptable, but each inevitable atrocious component of the wars is a crime: that was the best the West had to offer from ancient times through 1928.

The world after 1928 was different. 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. And the Pact of course was central to the prosecution of (the losers) of World War II for the crime of war. 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.

All of these positive changes have indeed come about as a result of a treaty generally mocked when not ignored. But they don’t add up to the positive view of the world pushed by people like Steven Pinker as well as Hathaway and Shapiro. That positive view of a world ridding itself of war comes about through selective statistics, also known as lies, damn lies, and U.S. exceptionalism. In Pinker, deaths are radically undercounted, then compared to the entire population of the world rather than the relevant nation, or erased by re-categorizing them as “civil war” and therefore not war deaths at all.

Hathaway and Shapiro recognize one U.S. coup (Iran) and war (Iraq) as if none of the others have happened or are happening. The Nakba seems not to exist. That is, the crime and the suffering it entailed do not get mentioned, though the “Arab-Israeli conflict” does.

The authors refer to Iraq 2003-present as a war that in 2015 had “greater than ten thousand” people killed in “battle-related” killing. (I’m unclear which killings are excluded by “battle-related.”) Never do they mention that “greater than one million” have been killed in that war.

Since World War II, during what the authors call a “period of unprecedented peace,” the United States military has killed some 20 million people, overthrown at least 36 governments, interfered in at least 82 foreign elections, attempted to assassinate over 50 foreign leaders, and dropped bombs on people in over 30 countries. This extravaganza of criminal killing is documented here.

The United States killed some 5 million people in Southeast Asia in a war that Hathaway and Shapiro mention only as an act of conquest by the North of the South when the invaders finally fled. I arrive at that number using the Harvard study from 2008 on Vietnam (3.8 million) plus Nick Turse’s case in Kill Anything That Moves that this is a significant under-counting. Using 4 million for Vietnam, I add 1 million for the combined hundreds of thousands killed by the U.S. bombing campaigns in each of the two countries of Laos and Cambodia (both rough estimates). I do not add in the 1 to 2 million killed by the Khmer Rouge, though blame can be given to the United States (without taking it away from anyone else) for that horror. While the United States military did not kill all of the 4 million killed in Vietnam, there would not have been a war, or certainly not a war resembling what the Vietnamese call the American War without the United States.

For the past almost 16 years, the United States has been systematically destroying a region of the globe, bombing Afghanistan, Iraq, Pakistan, Libya, Somalia, Yemen, and Syria, not to mention the Philippines. The United States has “special forces” operating in two-thirds of the world’s countries and non-special forces stationed in three-quarters of them. This is the “period of unprecedented peace” that Hathaway and Shapiro describe as threatened by Russia, China, and ISIS. (“Even as [the Pact’s] bright promises have been fulfilled, other darker threats have rushed into the void.” Guess who those are!)

Quite obviously one cannot fit everything tangentially related to the topic of a book into a book. But to write about the problem of war without mentioning the U.S. dominance of the field is a bias. There is a reason that most countries polled in December 2013 by Gallup called the United States the greatest threat to peace in the world. But it is a reason that eludes that strain of U.S. academia that first defines war as something that nations and groups other than the United States do, and then concludes that war has nearly vanished from the earth, or is on its way out, and that the greatest threats of war come from China, Russia, and ISIS.

Ironically, a brilliant analysis giving the Kellogg-Briand Pact its due could probably only have been written by Americans — the rest of the world viewing U.S. actions on war and peace with too much cynicism and resentment. But anything written by Americans comes with American baggage.

The Lusitania was attacked by Germany without warning, we’re told, despite Germany literally having published warnings in New York newspapers and newspapers around the United States. These warnings were printed right next to ads for sailing on the Lusitania and were signed by the German embassy. Newspapers wrote articles about the warnings. The Cunard company was asked about the warnings. The former captain of the Lusitania had already quit — reportedly due to the stress of sailing through what Germany had publicly declared a war zone. Meanwhile Winston Churchill is quoted as having said “It is most important to attract neutral shipping to our shores in the hope especially of embroiling the United States with Germany.” It was under his command that the usual British military protection was not provided to the Lusitania, despite Cunard having stated that it was counting on that protection. Much of Hathaway and Shapiro’s book is devoted to the pre-1928 responsibilities of neutral nations to remain neutral. Secretary of State William Jennings Bryan resigned over the U.S. failure to remain neutral. That the Lusitania was carrying weapons and troops to aid the British in the war against Germany was asserted by Germany and by other observers, and was true. Of course sinking the Lusitania was a horrible act of mass-murder, as was loading it up with weapons and troops to ship to a war. Behavior on all sides was reprehensible. But the authors only provide one side, only slightly mitigated by a footnote.

Occupations are meant to be temporary we’re told, despite the unlikelihood that the authors would dare make such an assertion in Kabul. The U.S. military now has approximately 8,000 U.S. troops in Afghanistan, plus 6,000 other NATO troops, 1,000 mercenaries, and another 26,000 contractors (of whom about 8,000 are from the United States). That’s 41,000 people engaged in a foreign occupation of a country over 15 years after the accomplishment of their stated mission to overthrow the Taliban government. The Department of so-called Defense has informed the U.S. Congress that it will soon produce yet another new plan for “winning” in Afghanistan. No plans for ending the occupation have been forthcoming or even requested. When the U.S. occupation of Iraq “ended,” troops and mercenaries remained. That they were invited back by the Iraqi government hardly excuses their actions, including the destruction of Mosul this past summer.

The single biggest threat to the peace on earth that was established in 1928 turns out to have been, according to Hathaway and Shapiro, the 2014 vote by the people of Crimea to re-join Russia — an action that of course involved zero casualties and has never been repeated because poll after poll shows the people happy with their vote. The authors produce no written or oral statement from Russia threatening war or violence. If the threat was implicit, there remains the problem of being unable to find Crimeans who say they felt threatened. (Although I have seen reports of discrimination against Tartars during the past 3 years.) If the vote was influenced by the implicit threat, there remains the problem that polls consistently get the same result. Of course one of the many U.S.-backed coups unnoticed by this book had just occurred in Kiev, meaning that Crimea was voting to secede from a coup government. The United States had supported the secession of Kosovo from Serbia in the 1990s despite Serbian opposition. When Slovakia seceded from Czechoslovakia, the U.S. did not urge any opposition. The U.S. (and Hathaway and Shapiro) support the right of South Sudan to have seceded from Sudan, although violence and chaos reigned. U.S. politicians like Joe Biden and Jane Harman even proposed breaking Iraq up into pieces, as others have proposed for Syria. But let’s grant for the sake of argument that the Crimean vote was problematic, even horrendous, even criminal. Its depiction in this book as the single biggest threat to peace on earth would still be ludicrous. Compare it to a trillion dollars a year in U.S. military spending, new missiles in Romania and Poland, massive bombing of Iraq and Syria, the destruction of Iraq and Libya, the endless war on Afghanistan and Pakistan, the U.S.-Saudi devastation of Yemen and the creation of famine and disease epidemics, or the explicit threats to attack Iran. I’m sure your average American would rather visit “liberated Mosul” than “annexed Crimea,” but should we deal with facts or slogans?

Hathaway and Shapiro give S. O. Levinson and the outlawrists of the 1920s their due for what they accomplished, but the authors view the world as 2017 CNN consumers. They favor “defensive” wars. They fault Trump for suggesting that NATO be scrapped. They maintain silence on NATO’s aggressive expansion, as well as on U.S. military bases ringing the globe. In fact they make this blatantly false statement: “The United States, United Kingdom, and France . . . took no new territory after the war.”

During World War II the U.S. Navy seized the small Hawaiian island of Koho’alawe for a weapons testing range and ordered its inhabitants to leave. The island has been devastated. In 1942, the U.S. Navy displaced Aleutian Islanders. Those practices did not end in 1928 or in 1945. President Harry Truman made up his mind that the 170 native inhabitants of Bikini Atoll had no right to their island in 1946. He had them evicted in February and March of 1946, and dumped as refugees on other islands without means of support or a social structure in place. In the coming years, the United States would remove 147 people from Enewetak Atoll and all the people on Lib Island. U.S. atomic and hydrogen bomb testing rendered various depopulated and still-populated islands uninhabitable, leading to further displacements. Up through the 1960s, the U.S. military displaced hundreds of people from Kwajalein Atoll. A super-densely populated ghetto was created on Ebeye.

On Vieques, off Puerto Rico, the U.S. Navy displaced thousands of inhabitants between 1941 and 1947, announced plans to evict the remaining 8,000 in 1961, but was forced to back off and — in 2003 — to stop bombing the island. On nearby Culebra, the Navy displaced thousands between 1948 and 1950 and attempted to remove those remaining up through the 1970s. The Navy is right now looking at the island of Pagan as a possible replacement for Vieques, the population already having been removed by a volcanic eruption. Of course, any possibility of return would be greatly diminished.

Beginning during World War II but continuing right through the 1950s, the U.S. military displaced a quarter million Okinawans, or half the population, from their land, forcing people into refugee camps and shipping thousands of them off to Bolivia — where land and money were promised but not delivered.

In 1953, the United States made a deal with Denmark to remove 150 Inughuit people from Thule, Greenland, giving them four days to get out or face bulldozers. They are being denied the right to return.

Between 1968 and 1973, the United States and Great Britain exiled all 1,500 to 2,000 inhabitants of Diego Garcia, rounding people up and forcing them onto boats while killing their dogs in a gas chamber and seizing possession of their entire homeland for the use of the U.S. military.

The South Korean government, which evicted people for U.S. base expansion on the mainland in 2006, has, at the behest of the U.S. Navy, in recent years been devastating a village, its coast, and 130 acres of farmland on Jeju Island in order to provide the United States with another massive military base.

None of this is mentioned in Hathaway and Shapiro’s book, or of course in the database called Correlates of War that they drew data from. The U.S. role as dominant military force on earth is simply missing. The arms trade in which the U.S. leads the way and a half dozen nations dominate the arming of the globe makes no appearance. But China’s efforts to claim islands in the South China Sea are as threatening to the authors as to Hillary Clinton at a Goldman Sachs event, if not more so.

Shapiro and Hathaway might argue that “forced expulsions” are a product of hard borders, which are a product of outlawing war. Tony Judt wrote: “At the conclusion of the first world war it was borders that were invented and adjusted, while people were on the whole left in place. After 1945 what happened was rather the opposite: with one major exception, boundaries stay broadly intact and people were moved instead.” But niether this nor anything else I’ve seen constitutes a serious claim or evidence that forced expulsions were fewer or nonexistent prior to 1928. What of the forced expulsion of so many Native Americans? But, increased or decreased or continuing at a steady pace, these crimes, these acts of war, these conquerings of territory, do not make it into the book. Instead we’re falsely told that the United States takes no new territory. Tell that to the residents of Vicenza, Italy, or any of dozens of towns around the world where U.S. military bases are forcibly expanded against the will of the people living there.

As a result of the authors’ exceptionalist view of the world, and perhaps a focus on written law, Hathaway and Shapiro find shortcomings in the Kellogg-Briand Pact by looking at its words rather than looking at our failure to comply with them. They believe the Pact leaves open (does not provide permission but simply fails to address) the option to wage war over territorial disputes, as well as the option for non-state actors to wage war. The former depends on the idea that the Pact only banned aggressive war, rather than all war — decidedly not what the Outlawrists intended. They — the originators of outlawry — intended to ban war entirely, with no exception for the common excuse of territorial disputes. The latter, the ability of non-state actors to wage war, depends on irrational fear mongering around enemies, such as ISIS, generated by the counterproductive, blowback-producing, routine violation of the Pact by S.O. Levinson’s own nation, the greatest purveyor of violence on earth.

In Hathaway and Shapiro’s view, I am simply wrong about what the Outlawrists meant, and defensive wars were not being renounced. But my point is not to comment on how some senators interpreted what they were ratifying, but rather to recall the better-developed thinking of the originators of and promoters of the idea of outlawing war. I quoted Levinson in When the World Outlawed War:

“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.”

By failing to focus on what the Outlawrists wanted, rather than on what governments made of their creation, the authors conclude that in 1928 nobody had really considered what to replace war with, how to resolve disputes without wars. They also conclude that the U.N. Charter made the Pact a “reality,” rather than weakening it. But many knew full well the need for new types of nonviolent sanction, for global courts, for moral and economic tools, for disarmament, and for cultural changes still eluding us. Levinson drafted implementing legislation to make advocacy for war a felony. The U.N. Charter’s loopholes for “defensive” and “authorized” wars have made the U.N. — which has the second-largest imperial army now deployed on earth — a tool of warmaking, rather than peacemaking.

The authors fault the Pact for protecting weak states from invasion, allowing them to become failed states, creating warfare. But it takes more than protection from attack to damage a country. It often requires weapons dealing, the propping up of dictators, and the foreign exploitation of people and resources. Surely eliminating these further evils would be preferable to reinstating the evil of conquest.

Where Hathaway and Shapiro’s book shines, despite all the red, white, and bluism, is in its analysis of the replacement of war with alternative systems of security, something I’ve also looked into. They propose, in particular, recognition of and expansion of what they call outcasting. The name is derived from the ancient practice on Iceland of punishing a law violator by making them an outcast from society. “The law was effective,” Hathaway and Shapiro write, “even though there were no public institutions of law enforcement, because outlawry turned all Icelanders into law enforcers.” Based on this model, the authors describe the manner in which institutions like those handling international mail or trade create compliance with standards through the threat of banishment.

Of course extending the powers of corporate trade organizations to allow their lawyers to rewrite nations’ domestic laws is not desirable or necessary. And outcasting is only one tool in the tool chest of a non-war system. But what if the United Nations were replaced with or evolved into a democratized nonviolent club of peacemakers, using unarmed peaceworkers, and maintaining the threat of banishment from its ranks? What if the world had an independent court in place of the ICC, which the authors say can prosecute “aggression,” but which in reality cannot do so without the approval of the U.N. Security Council?

More importantly, what if we had a global culture that allowed us to confront the evil of war without nationalized biases? What if we took the accomplishments of the Kellogg-Briand Pact as motivation to see the vision of its creators through to the end: the abolition of all wars and militaries?