Prof. Richard Falk APF & Peace and Conflict Studies 7 Nov 2014
The following excerpt is taken from Dr Falk’s lecture in Ponsonby, Auckland.
This idea that there was a moral and legal dimension to warfare that must be factored into post-war arrangements surfaced in the war crimes trials held in Germany and Japan after the Second World War, most spectacularly in the prosecution of the surviving leaders of the two countries in the much studied Nuremberg and Tokyo trials. The Nuremberg approach was generally vindicated by the consensus view that the Nazi experience was such an unprecedented assault on European values, first by so overtly launching a major aggressive war and then by the commission of numerous atrocities in its course, especially genocide against Jews and other minorities. The Tokyo trials were far more controversial as the onset of the Pacific theater of warfare was as much prompted by the deliberate encirclement and squeezing of the Japanese economy as it was by the surprise attack in 1941 on Pearl Harbor.
This moral and political ambiguity is heightened as soon as one takes into consideration the failure to impose any accountability on the victors for the use of atomic bombs on Hiroshima and Nagasaki or for the fire-bombing of Tokyo. The cry of ‘victors’ justice,’ the title of a book by the historian Richard Minear, seemed understandable, if not justifiable. In the German case the American prosecutor, Robert Jackson, tried to soften the one-sided approach toward individual criminal responsibility taken after World War II by declaring a Nuremberg Promise, namely that in all future wars those governments sitting in judgment in relation to the Germans would submit themselves to the same discipline of international criminal law.
This Nuremberg Promise was broken by each of the victors, none of whom have ever accepted the application of a procedure of criminal accountability being applied to themselves, and have opted out to the extent possible from the activities of the International Criminal Court. The United States and Europe continue to make a political use of international criminal law by staging prosecutions of their recent enemies, including Slobadan Milosevic, Saddam Hussein, and Muamar Qadaffi, and finance the ICC in its focus upon the criminal wrongdoing of sub-Saharan African leaders while granting de facto impunity to the West.
In effect, the idea of criminality associated with war could have taken either of two forms, as an emergent branch of the rule of law that would apply the same standard of accountability and judgment to the victors as to the vanquished or it could accept the double standards of imposing accountability on the defeated and granting impunity to the victor. Robert Frost’s poem, “The Road Not Taken,” expresses such a choice in more personal and universalistic language:
“Two roads diverged in a wood,
And I took the one less travelled by,
And that has made all the difference.”
Unlike the poet, the statesmen of the world have chosen the more traveled road of political realism and geopolitics, which had long been accustomed to the amoral dualism of one law for the strong, another for the weak. This realist was concisely set forth long ago by Thucydides in the Melian Dialogue in his History of the Peloponesian Wars: “The strong do what they will, the weak what they must.” What World War I initiated was a moral/legal translation of this political tendency that liberals viewed as a step forward, conservatives generally regarded as a risky departure from realism, and progressives viewed as a hypocritical and misleading effort to seize the high moral and legal ground.
The impulse was renewed after World War II, but individualized by way of war crimes trials thus abandoning the war-provoking practice of World War I that consisted of imposing onerous burdens on a defeated country at the very time when its population was struggling with the urgencies of survival in the ravaged conditions of postwar realities. It is regrettable that this idea of a punitive peace was revived in dealing with Iraq after the Gulf War of 1991 as if the lesson of World War I’s misbegotten breach of comity was irrelevant when dealing with the global South that never had enjoyed the benefits of comity.
Walid Khalidi, the noted Arabist, recently called the Balfour Declaration “...the single most destructive document in the twentieth century.” This may be hyperbole, but there is no doubt that the unresolved Palestinian quest for selfdetermination has caused frequent wars, as well as inflicted on the Palestinian people both the catastrophic dispossession of 1948, the nakba, and a brutal occupation that has continued since 1967, increasingly assuming an apartheid structure of military administration. The United States has assumed the role earlier played by Britain in protecting Israel’s interests in what has been a hostile environment regardless of Israel’s frequent violation of international law and elemental morality, above all, its unwillingness to cooperate in reaching agreement with Palestinians based on equality of rights as the foundation for a sustainable and just peace.
For several reasons it seems correct to view World War I as the biggest rupture in global history since the French Revolution, and more revolutionary in its impact than subsequent major wars. Perhaps, most notable is the degree to which World War I exhibited interconnections between mobilizing the resources and enthusiasm of national societies for engaging in war and the decline of the capacity to rely on diplomatic compromises to bring wars to an end in a manner that minimizes the suffering experienced and the dislocation caused. As Raymond Aron expresses this idea, “...it was peculiarly difficult to end by negotiation in the traditional way a war that had become a war of peoples and of ideas.” [The Century of Total War, 27] The public had to believe in the war, which fed the claims that the issues in contention were of fundamental importance and that the enemy was pursuing evil ends, and this is what Arendt meant by the end of European comity.
In line with this observation are the elaborate commentary of Gabriel Kolko set forth in his important study, Century of War. Kolko insisted that the World War I initiated a process of war making in which the leaders and citizens anticipate and plan for a short war, and instead experience a long and far more destructive, alienating, and costly war that brings vast human suffering, creating serious societal dislocations. Kolko writes of both the specific deforming impacts of the conflict and its patterning of the successive major wars that have subsequently taken. He writes, “...it is so desperately imperative that we escape from the present uneven yet steady descent along the path of war on which the mankind has been locked since 1914.”
He indicts political leaders for their “ignorance that has cost humanity a price in suffering beyond any measure.” In effect, World War I initiated a modern tendency for what Kolko calls “the consummate irresponsibility” of leaders who are “playing with the lives of anonymous people...who are sent off to die” without any appreciation of or concern about the societal costs that will be incurred.
We in America remember the anger aroused caused by the Bush presidency promising that the Iraq War would be a cakewalk in which the American occupiers would be welcomed as liberators. It was an arduous decade long campaign that ended in failure and there was no welcome in Iraq despite widespread opposition in the country to the autocratic regime of Saddam Hussein.
In effect, the kind of war making that occurred in World War I and took new technological forms in World War II is a virus that continues to lie dormant in the body politic. It is exhibited by the refusal to seek the abolition of nuclear weaponry or the globalizing of the rule of law, and by the insistence that our side in every war is essentially innocent and good and our adversary is evil, even barbaric.
The current global war on terror is inscribed in public consciousness in accordance with the kind of moralizing self-assurance that guided the peacemakers at Versailles almost a century ago. Unfortunately, the imperative lesson involving the dysfunctionality of war has not yet been learned by either the leaders of the most important sovereign states or their publics. The only useful thing that has been learned about war is the importance of exercising caution in the nuclear age whenever a crisis in international relations occurs. We must pause and ask ourselves what seems to be a decisive moral and political question, which may also be an ultimate survival question: ‘is caution enough?’ And if not, ‘What must be done?’ We certainly do not want people coming together one hundred years hence to lament the persistence of war as the defining feature of world history.
Dr Falk’s area of expertise is international law.