Pentagon Admits that War is Illegal

June 18, 2015

The Pentagon has just published 1,204 pages on how it thinks you can behave legally during a war. Looking through this "Law of War Manual" at various hot topics, one finds some atrocities excused as acceptable (cluster bombs, nuclear bombs) and others rejected as completely disallowed (torture) even when in reality they are routinely engaged in.

Beginning to wonder what the point is of writing out such a lengthy description of laws when someone could just read the laws themselves in less time, I notice that nowhere does this document strengthen any actual law, while in many places it weakens them. It picks and chooses which laws to mention and which to leave out or marginalize in footnotes. It stresses the supposed right to ignore any international law that a nation objected to while that law was being created. It incorporates into the whole scheme the idea of launching wars not only against nations, but against any other entities, and of launching wars in nations with those nations' approval. This paper is a sort of enormous signing statement appended retroactively to all existing laws, indicating which will be adhered to and which disregarded, while attempting to advertise a pattern of legal behavior by the U.S. military as a public relations correction to people's awareness of the actual pattern of lawlessness.

But I think the place to start is with the pretense that war itself is legal. This is what permits three-quarters of this document to exist, devoted as those sections are to proper legal conduct during a war. The Pentagon says that one must fight wars legally whether or not the wars are legal. That is, whether or not you have some legal justification for attacking a country, you must nonetheless meet completely vague standards of proportionality and so forth during the course of the attack -- or of the occupation. There's a large section on the legal conduct of occupations that breezes right past any question of the illegality of maintaining the occupation at all. Here's a typical passage about legal "proportionality": "Attacks using nuclear weapons must not be conducted when the expected incidental harm to civilians is excessive compared to the military advantage expected to be gained." How much "harm" to civilians from nuclear weapons would be "excessive"? The so-called law, once you accept war and then try to regulate its conduct, is in the eye of the sociopathic beholder; there's nothing empirical or enforceable about it.

The short section of this manual on what makes wars themselves legal is of particular interest, I think, because it -- in fact -- ends up admitting that they are not. It doesn't intend to make this point, however. In fact, it goes to every effort to suggest that legality is something murky, almost something aesthetic, laying out a number of "principles" to consider in deciding whether to begin a mass slaughter of human beings. Is a "competent authority" making the decision? Is the action "proportionate"? Have all peaceful alternatives been exhausted? That last one, actually, would ban every war the United States has ever launched, including all current ones, if the facts of each situation were dealt with honestly -- but when does that ever happen?

Eventually, the manual comes around to mentioning a law: the U.N. Charter. It gives this tiny part of its text the heading "Prohibition on Certain Uses of Force," but quotes the Charter: "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" in Chapter I of the Charter are focused on the need "to maintain international peace."

And the manual notes: "Numerous other treaties also reflect these prohibitions on the threat or use of force." There's a footnote that reads as follows:

"See, e.g. , Inter-American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 STAT.1681,1700 ('The High Contracting Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this Treaty.'); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928, 46 STAT.2343, 2345-46 ('The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.')."

This footnote is the key to unraveling the entire 1,204 pages. It fudges its contents by lumping together two treaties and including only half of the key language of the second one. The first treaty it cites has holes in it, just like the U.N. Charter, and by virtue of reference to the U.N. Charter. The second treaty, the "Treaty Providing for the Renunciation of War as an Instrument of National Policy" -- more commonly known as the Kellogg-Briand Pact -- does not. Article I of the Peace Pact of Paris, the Pact of Kellogg and Briand, is quoted above. But Article II reads: "The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."

This is a treaty, let us note, that remains in force, is listed as such on the U.S. State Department's website, and is acknowledged as such, as just noted, in the Pentagon's brand-new murder manual. It is a treaty that includes some very difficult-to-fudge words: "all" (disputes or conflicts), "whatever" (nature), "of whatever" (origin), "never" (be sought except by pacific means). "Pacific means" is not pacific ends. That is, one cannot claim to be pursuing peace through war and be in compliance with the Kellogg-Briand Pact. One is required to pursue whatever one is pursuing through peace. The Pentagon offers no justification for violating this treaty. None. It simply buries it in a footnote and omits half of its content. But that's an evasion, not a justification. The ban, it is worth repeating, is absolute. A war on Afghanistan is a non-pacific means. A murder by missile from a drone is a non-pacific means; one need not dive into obscurantist twaddle about how many drone strikes fit onto the head of a war.

A truly desperate debater could claim that a drone murder in Yemen is not a dispute between the United States and Yemen but between the two aligned governments and another group or individual. But this line of justification runs up against the most common line of argument produced in the White House and Justice Department, namely that drone murders are not murder because they are war. Once you claim that Kellogg-Briand allows wars on non-nations, you not only violate the entire purpose, intent, and past use of Kellogg-Briand (including at Nuremberg; it's not as if the Jews were a nation), but you legalize murder by any nation or non-nation (or local police department) that declares its murdering to be warmaking. It's worth remembering that the people of Yemen never approved U.S. drone murders in their country, and in fact were lied to for a long time by their own government that it was in fact their own government and not the U.S. doing it. The Yemeni government, in the person of a dictator, later fled to Saudi Arabia and asked Saudi Arabia to attack the people of Yemen with more U.S.-made weaponry. Can a dictator who has fled a country still legalize a war just by uttering the word "war"? I contend that an interpretation of a law that eliminates the very possibility of lawfulness is no interpretation at all.

So, understanding Kellogg-Briand as it was written, what good is it? Well, elsewhere, this same manual says, "[T]he fact that a State's domestic law does not provide for a penalty with respect to a violation of international law does not relieve a person from responsibility for that act under international law." In other words, the fact that violation of the Kellogg-Briand Pact has not been made punishable under U.S. domestic law does nothing to exonerate an American who violates it, any American, that is, who launches or participates in a war. This was the clear intent of those who created this law. Yes, some, but not all, of the U.S. senators who ratified it, expressed their belief that self-defense would still justify warfare, but they did not add that or anything else as an official reservation to the treaty upon ratification -- false rumors to that effect notwithstanding.

Having skipped past the heart of the matter -- the complete ban on war -- in footnote #208, the Pentagon's manual hurries on in this manner:

"The resort to force must have a legal basis in order not to violate these prohibitions. The legality of the use of force must be assessed in light of the particular facts and circumstances at issue."

But something that is banned cannot have a legal basis that allows it to not violate the ban. A further footnote (#209) adds that in the most egregious cases of aggressive wars, one should ignore legal standards in light of the uniqueness of the situation:

"See, e.g., William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviser for Political-Military Affairs, Department of State, Preemption, Iraq, and International Law, 97 AJIL 557 (2003) ('In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it.'); Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER,THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 105 (1848)('It is admitted that a just right of self-defense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case;')."

The manual goes on to list lots of rationales for launching wars. But the fact that legally there can be none has already been acknowledged. What we're dealing with here is a matter of culture, not of written law. The U.S. public has been so propagandized that the very idea of abolishing war is unthinkable, and so the fact that it has legally been done cannot be thought. And so it does not have to be refuted.

But what if we were to take the radical step of obeying the law as written? What, then, should be done? Well, according to this same manual,

"Each member of the armed services has a duty to: (1) comply with the law of war in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of war."

The manual quickly muddies up that legal clarity with this:

"[T]he obligation of individual service members to comply with the law of war in good faith is met when service members: (1) perform their duties as they have been trained and directed; and (2) apply the training on the law of war that they have received."

In other words, you can refuse to comply with unlawful orders by complying with whatever you are ordered. But the clarity of the actual law, once stated, can't really be undone. Nor can this, also from the new manual:

"State responsibility for violations of the law of war results in obligations to compensate other States for violations. . . . A State that is responsible for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act."

Compensating Iraq, Afghanistan, Libya, Pakistan, Yemen, Somalia, etc., will not be cheap, but it is required by law and it will cost less than continuing the crime of war-making and preparations for more of the same.

Reading further in the manual, we find that, in fact, the Pentagon believes people like George W. Bush and Barack Obama, and all of their subordinates, can be prosecuted for the wars they've launched under U.S. domestic law:

"The War Crimes Act authorizes the prosecution of individuals for certain war crimes if the victim or the perpetrator is either a U.S. national or a member of the U.S. Armed Forces, whether inside or outside the United States. Under this statute, an individual may be prosecuted for conduct: . . . prohibited by Article . . . 25 . . . of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907 . . . "

Here's Article 25:

"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."

How many of the houses that U.S. missiles and bombs (from drones and otherwise) have been hitting have been defended? Not all, certainly. Not most, I suspect.

But this is a silly way to go after a part of the overarching crime of war, even if it is the largest part of that crime. When the U.S. prosecuted Nazis at the end of World War II, it did so on the basis of the Kellogg-Briand Pact and an understanding that each smaller component action was criminal because the whole of the war (on the losing side) was criminal. Robert Jackson and others expressed the hypocritical sentiment at the time that the U.S. should fall under the same standard in future years.

What more prevalent tradition is there in the United States than striving to live up to past hypocritical but eloquent statements on justice and equality? Perhaps we should try that in the case of the greatest evil there is.

David Swanson serves as Secretary of Peace at the Green Shadow Cabinet