Relevance

Let no one say that academics are ineffectual. Take the Centre for Applied Philosophy and Public Ethics (CAPPE) , a joint project of Australian National University, Charles Sturt University and the University of Melbourne. While one branch of contemporary philosophy sniffs that il n’y a pas de hors-texte, its more practical cousin wants to ”connect rigorous philosophical thinking with policy input, community discussion, and professional aims.” In return for one million dollars of annual government funding, CAPPE offers “advice and guidance” that will “assist members of the community to make more ethically informed choices”.

Its advice for today’s decision-makers? Repudiation of hundreds of years of international law: Grotius, Kant, the Treaty of Westphalia; and, specifically, disavowal of the prohibition of aggression and crimes against peace. And what a triumph of knowledge transfer this has been!

The Kellogg-Briand Pact of 1928, signed by all the major powers, renounced “war as an instrument of national policy”, and forbade “recourse to war for the solution of international controversies…disputes or conflicts of whatever nature or of whatever origin”.  This meant that “any signatory Power which [sought thereafter] to promote its national interests by resort to war” was acting outside established principles. The crime of aggression was subsequently included in the Nuremberg Principles, which named three basic offences:

1. CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
2. WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
3. CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Indeed, the Nuremberg judgement emphasised that to “initiate a war of aggression, therefore, 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.”

But what do our philosophers at CAPPE say? According to Larry May, in his book Aggression and Crimes Against Peace:

the mere crossing of borders is not a sufficient normative rationale for prosecuting State leaders for the international crime of aggression. At Nuremberg, charges of crimes against humanity were pursued only if the defendant also engaged in the crime of aggression. I now argue for a reversal of this position, contending that aggression charges should only be pursued if the defendant’s acts involved serious human rights violations… [Crimes] against peace do not harm humanity the way that crimes against humanity, such as ethnic cleansing campaigns, do. Crimes against peace also are not like war crimes in assaulting humaneness, since all wars, not merely aggressive wars, are inhumane, and aggressive wars are not necessarily more inhumane than defensive wars. 

It’s difficult to exaggerate the legal and moral regression involved in this flippant, light-minded dismissal. The idea of state sovereignty as territorial jurisdiction goes back to 1648 and the Treaty of Westphalia, and is codified in Article 2 (4) of the UN Charter. It’s one thing for a state to falsely portray its military aggression as self-defence, which for example Israel, Britain and France did during the Suez crisis of 1956. It’s quite another thing, and historically original, to say that aggression doesn’t matter, or matters only under certain conditions, and that crimes against peace - ”the supreme international crime” - are not crimes at all, except where other crimes occur.

May’s trite argument nonetheless stands on the shoulders of giants, heaved up and borne along by the US state leadership. From core executives (Anthony Lake in “From Containment to Enlargement“ and Zbigniew Brzezinski in The Grand Chessboard) to policy intellectuals (e.g. Robert Kagan in “The Benevolent Empire”), corporate-endowed thinktanks and “sound” journalists, the US ruling elite is as one. Decline must be arrested by imperial expansion and power projection throughout the Eurasian heartland, from the eastern Mediterranean, through West and Central Asia, up to China’s western borders.

As part of this project, national sovereignty has been re-defined as a revocable licence, granted by the “international community” and enjoyed only at the latter’s pleasure. Thus, in 1994, Bill Clinton introduced the concept of “rogue states”: outlaws that deserved none of the traditional privileges of international law. “Humanitarian intervention”, a European notion by birth, was soon hitched to this ideological wagon, and employed for NATO’s illegal 1999 war on Yugoslavia. (Coincidentally one of the great promoters of “the responsibility to protect”, Australian Gareth Evans – co-founder of the International Commission on Intervention and State Sovereignty - is now ANU chancellor and an advisor to CAPPE.) The G.W. Bush Administration, and its favoured policy intellectuals, extended this to include “regime change” of “hostile states”, in order to “secure and expand zones of democratic peace”, “deter the rise of a new great-power competitors” and “preserve American preeminence”. The 2002 National Security Strategy spoke of pre-emptive self-defence and “anticipatory actions”, in open defiance of established legal norms:

“Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat…We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”

The emergence of blatant illegality at the heart of US state leadership wasn’t fortuitous, historically accidental, or contingent upon either Republican party allegiance or the personality of Bush, Cheney, Rumsfeld or the neocons. The bid for strategic “primacy”, come what may, was instead the natural response of US state managers to gradual economic decline. Thus the Obama presidency hasn’t produced the reversal of these arguments in favour of aggressive war, but their extension. Obama’s Nobel Prize lecture, delivered in November 2009 in Oslo, argued deliberately against the terms of Kellogg-Briand, the Nuremberg principles, and for the right to wage war as a tool of national policy:

[The] instruments of war do have a role to play in preserving the peace…[Contemporary challenges] require us to think in new ways about the notions of just war and the imperatives of a just peace…There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified…To say that force may sometimes be necessary is not a call to cynicism – it is a recognition of history; the imperfections of man and the limits of reason…

[Sometimes] the purpose of military action extends beyond self-defense or the defense of one nation against an aggressor. More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region. I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later. That’s why all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace…Yes, there will be engagement; yes, there will be diplomacy – but there must be consequences when those things fail.

So forget the stereotype of practiced irrelevance: our philosophers are right in the thick of things, slipping the velvet glove of “ethical guidance” over the mailed fist of the US elite’s open gangsterism. CAPPE already ”addresses” the “morality of torture”; perhaps soon it will “engage” with Obama’s hit list allowing assassination of US citizens without due process.

Which ancient right will these brave thinkers seek next to conquer? Into what thickets of debasement and apologetics will their intrepid scholarly inquiries now lead?

Tags: Academia, crimes against peace, imperialism, international law, NATO, United States, war in Afghanistan, war on terror