Why Is War Legal
I suspect that one of the reasons for the lack of pressure was a stubborn belief in American exceptionalism. If the president does it, to quote Richard Nixon, “it means it`s not illegal.” If our nation does it, it must be legal. Since the enemies in our wars are the bad guys, we must enforce the law, or at least maintain some sort of ad hoc justice. Levinson`s plan to ban war was unlike any other peace plan discussed at the time. All previous plans – disarmament proposals, League of Nations and countless variants – were based on the legality of war. They differed only in the way they tried to orient its use, their designers worked to design institutions and incentives to make the use of war as rare as possible. Those who had sought peace had not even thought to question the legality of the war. It took someone new to international law and politics to come up with an idea that was in direct contradiction with the international system. In the 1980s, Nicaragua appealed to the International Court of Justice (ICJ). The court ruled that the U.S.
organized the militant rebel group, the Contras, and mined Nicaraguan ports. He concluded that these acts constituted international aggression. The United States blocked the execution of the award by the United Nations, preventing Nicaragua from receiving compensation. The United States then withdrew from the binding jurisdiction of the ICJ, hoping to ensure that American actions would never again be subject to the decision of an impartial body that could objectively decide their legality or criminality. With the world order on the brink of the abyss, it is important to remember what is at stake. In a world of sovereign states, the choice between a limited number of legal systems. In one, represented by the old world order, all states agree that war is legal, a tool to correct injustice. In this world, conquest is allowed, aggression is not a crime, neutrals must remain impartial (so economic sanctions against aggressors are illegal), and agreements can be enforced by the threat of force. In the second – represented by the new world order – all states agree that war is illegal and refuse to recognize it as a source of legal claims, even if it has already righted wrongs.
In this world, conquest is illegal, aggression is a crime, economic sanctions are an essential instrument of the art of governing and agreements cannot be enforced. Moreover, trade plays an essential role in this world, not only as a useful source of cooperation, but also as an instrument for collectively combating illegal behaviour. Levinson`s first salvo, The Legal Status of War, appeared in the New Republic in 1918. “Let`s say the world is at peace,” the article began. “Suddenly, Germany declares war on the France and invades its territories without even hiding the intention of annexation.” Whatever the purpose of such a war, Levinson continued, it would be considered legal. And other nations had to recognize it as such. This “primal fact,” as he put it, was often ignored: “The civilized world, as soon as wars begin, places them on the same level of legality, whatever their origin and objectives.” The only real way to end the war was what Levinson called “forbidding war.” The old world order thus granted immunity to those who waged war – and thus allowed mass murder. If one ordinary person killed another outside the war, it was murderous.
When an army killed thousands of people during a war, it was wonderful. As a result, those who waged war were necessarily immune from prosecution. Thus, after World War I, the Treaty of Versailles promised to indict Kaiser Wilhelm II for his role in the war. But the legal inadequacy of the treaty was so glaring that the Netherlands, which had granted Wilhelm asylum after his abdication, did not want to extradite him. After all, Israel is not the only country that has unilaterally used military force in recent years. In 2014, Russia took Crimea from Ukraine, the first conquest of one state by another in Europe since World War II. In April this year, the new US President Donald Trump launched his own attacks against the Syrian army in retaliation for the chemical weapons attacks. Meanwhile, China has intimidated its neighbors to the point of passivity by turning sunken reefs in the South China Sea into modern military facilities over which it claims sovereign control. Given these developments, only two members of the UN Security Council are currently not directly involved in the unlawful use of force: the France and the United Kingdom. Yet both applauded Trump`s April attacks in Syria. French President Emmanuel Macron said the use of chemical weapons would cross a red line and suggested France would also respond with force.
These Charter breaches are not unprecedented. NATO`s intervention in Kosovo in 1999, the so-called “war on terror” after the 9/11 attacks, and the US invasion of Iraq in 2003 had already set the stage. Thus, the Charter of the United Nations contains the same traditional right and small loopholes that the U.S. Senate added to the Kellogg-Briand Pact. He also adds another. The Charter makes it clear that the United Nations Security Council may decide to authorize the use of force. This further weakens the understanding that war is illegal by making some wars legal. Other wars are then, predictably, justified by claims of legality.
The architects of the 2003 attack on Iraq claimed that it had been authorized by the United Nations, even though the United Nations disagreed. In a world where war was no longer legal, gunboat diplomacy also had to stop. For if war could no longer establish legal rights, then threats of war could not be allowed to establish legal rights. The Stimson Doctrine was the first step in building a new legal system in which war was illegal. Like a thread hanging from a sweater, the League pulled on the thread until the fabric of the old world order began to unravel.