Photo: flickr/Jayel Aheram

“All murderers are punished unless they kill in large numbers and to the sound of trumpets.” — Voltaire

War has always been destructive and tragic, ripping apart families, devastating communities, ruining farmers’ fields, killing, and maiming. But between 1914 and 1918 it got much worse — with industrial warfare. 

During the First World War, the power and efficiency of steel, mass production, the railway and airplanes created horrific battlegrounds characterized by heavy artillery, machine-gun nests, toxic gases and bombing. More than 16 million died.

Worse, this war was not fought to protect and promote democracy and freedom, as advertised. The shameful, post-war carve-up of the planet revealed its true goal — to protect and promote various empires and the corporations which benefitted from them. 

There was one potentially positive result: in response to the hideousness of the First World War, and over following decades, laws and treaties have been passed to make war illegal, under all but the rarest circumstances.

This might surprise most Canadians. We have been led into war several times by our democratically elected representatives. 

Right now, Canada has “boots on the ground” in Iraq. Also, the Harper Conservatives are using the 100th anniversary of the First World War not only to commemorate but to celebrate armed conflict.  

That is why citizens must be aware of existing war laws. 

In a democracy, governments should not be able or allowed to deceive us over such a fundamental issue.  

General Treaty for the Renunciation of War 1928 

The horrors of the First World War convinced the public and most politicians that such a conflict must never happen again. In 1928, the General Treaty for the Renunciation of War was signed and eventually ratified by 62 states, including the U.S., Britain, Canada, France, Germany, Japan and Italy. It was known as the Kellogg-Briand Pact after its main proponents, the U.S. Secretary of State Frank Kellogg and France’s Foreign Minister Aristide Briand.   

This binding treaty unconditionally condemned and renounced war as an instrument of national policy, with the exception of self-defence, and promised that in future all international disputes would be settled peacefully. 

Its main purpose was to outlaw warfare, as these articles show:   

ARTICLE I 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.

ARTICLE II 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.

Unfortunately, although the terms of the treaty were clear, it included no enforcement method or punishment for those who violated it.  

United Nations Charter 1945

The United Nations was founded in 1945 to eliminate warfare, promote human rights, uphold justice and international treaties, and advance the economic and social interests of humankind. The UN Charter clearly condemns and limits armed force:

2.3 All members shall settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered.

2.4 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 United Nations Charter provides only two justifications for the use of force:

(1) pursuant to a resolution of the UN Security Council that explicitly authorizes armed force in order to maintain or restore international peace and security; or

(2) under Article 51 which affirms states’ inherent right to individual or collective self-defence. Unfortunately, the latter has become a loophole that many states have exploited with impunity.  

Equally problematic, the UN’s international peace and security enforcement body is the Security Council, but its veto-wielding permanent members (China, France, Russia, the U.K. and the U.S.) will not police themselves and often disagree over what action to take when dealing with third parties, like Israel and Syria.

Nuremberg War Crimes Tribunal 1946   

After the Second World War, the General Treaty for the Renunciation of War together with an annex, usually referred to as the Nuremberg or London Charter, defined the laws and procedures for the trials of Nazi Germans at Nuremberg. The Charter stipulated that the Nazis’ crimes could be tried under three categories: crimes against peace, war crimes, and crimes against humanity. 

In 1946, Germany’s leaders were convicted after waging wars of aggression against 11 nation states in violation of the Kellogg-Briand Pact. The Nuremberg War Crimes judgment again highlighted the principles governing conflict between nations:

… After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such war is illegal in international law; and that those who plan and wage such a war with its inevitable and terrible consequences are committing a crime in so doing…

The Nuremberg War Crimes Tribunals were the first occasion in modern history when political and other leaders were held to account for their crimes in a court of law. They provided the first example of the rule of international war law in action. The essence of the trials was that individual political, civil, and military leaders and officials could not hide behind their duty to the state — when that state is in breach of international law.   

Equally important, not only leaders and officials could be indicted, tried, and convicted as war criminals, but also the many individuals who were responsible for planning, supporting, condoning, funding (paying taxes), or taking part in aggressive war.  

Nuremberg Principles 1950

One of the UN’s first actions was to set up an International Law Commission to draw up statute war laws based on the judgments of the Nuremberg and Tokyo War Crimes Tribunals. In 1950 the General Assembly accepted the Commission’s proposals and enacted seven new war laws to be known as the Nuremberg Principles.  

The main legal concept derived from Nuremberg is that every citizen has a duty to exercise a moral choice and take action to prevent his or her leaders and governments from violating the laws of war and waging a war of aggression. These principles democratized the laws of war:   

I. Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

II. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. 

III. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

V. Any person charged with a crime under international law has the right to a fair trial on the facts and law.

VI. The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes: Violations of the laws or customs of war which include, but are not 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, of 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.

(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

Rome Statute of the International Criminal Court (ICC) 2002

Seven decades after the idea was conceived, an inter-governmental treaty known as the Rome Statute set up the world’s first permanent international criminal court in The Hague. It also handed supreme jurisdiction over the crimes of “genocide, crimes against humanity and war crimes” to the court. This new system of international criminal law came into force in July 2002 when Australia became the 60th state to ratify the treaty.

The Statute was unambiguous regarding personal responsibility at all levels:

25.3  In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime [genocide, a crime against humanity and a war crime] within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose…

27.1 This Statute shall apply equally to all persons without any distinction based on official capacity.  In particular, official capacity as a Head of State, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself constitute a ground for reduction of sentence.  

The treaty was to have included a provision making it the ultimate war crime to start an illegal war, but the U.S. vetoed the provision — and then refused to ratify the treaty. In spite of this, it is the most important statute against warfare ever devised.   

As the ICC is the first attempt to set up a permanent system designed to hold world leaders to account for their war crimes, we should all actively support its efforts. Only when the leader of a major nation is convicted of war crimes will the world be in a credible position to eradicate armed conflict.

Kathleen O’Hara is a journalist who has worked in television, radio, and print. She is the author of Lost and Found in London.

Photo: flickr/Jayel Aheram

Kathleen O'Hara

Kathleen O’Hara has been a print, radio and television journalist for 15 years. She worked as a producer for national programs, including “As It Happens” on CBC radio and “The...