Book Review – The Internationalists: How a Radical Plan to Outlaw War Remade the World

The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J. Shapiro, New York, New York: Simon and Schuster, 2017, 578 pages, $30

In short, the Peace Pact formed the background of rules and assumptions against which the rest of the new system operated. As states adapted to the transformed legal order, their adaptations helped reinforce those new rules and become reasons of their own for playing by them. The Pact did not bring about the end of conquest and interstate war on its own; no treaty, no law could have. But it was a necessary start, the beginning of the end of the Old World Order.

The Internationalists, p. 335

Tensions around the world seemed to have heightened with the election of U.S. President Donald J. Trump. Maybe it has nothing to do with him; maybe it is just his in-your-face style that tends to make us more aware of how dangerous and volatile the world has become. It is hard to point to a region on the global map and not find a conflict that has just ended, is raging on, or about to start. The most eye-popping conflict started as a civil war in Syria in 2011. The end is not in sight despite the use of an inordinate amount of hard and soft power by regional state players and their proxies, permanent members of the United Nations Security Council, the United Nations (UN), the European Union, and so on. Red lines have been drawn and crossed, chemical weapons used against combatants and non-combatants, indiscriminate bombings of civilian-populated areas, acts of terror committed with an aim to make life so unbearable so as to bring about death or forced dislocation. All of this and much more in the name of sovereign rights, self-defense, security (national, regional, international), reprisals, deterrence (sending messages), and, of course, peace.

Syria may be the most talked-about conflict, but there are other conflicts that are just as repulsive, such as the one in Yemen. And much like the Syrian conflict, the Yemeni conflict is fueled by states big and small, in and outside the region, with and without security interests or risks (save for having access to or a dominance over the government and/or the state for strategic or geopolitical reasons). Meanwhile, the ordinary, simple, law-abiding civilians suffer the consequences. Then you have conflicts such as the one in Ukraine, which, by many accounts, is attributed to Russia’s (President Vladimir Putin’s) belief in its inherent entitlement to lord-over neighboring states (its sphere of influence), and, as is the case of Crimea, to self-help by “annexing” territory it believes rightly belongs to it – historically or otherwise.

Professor Oona A. Hathaway

Considering the state of the world affairs, Yale Law School Professors Oona A. Hathaway and Scott J. Shapiro in The Internationalists: How a Radical Plan to Outlaw War Remade the World (The Internationalists) offer an accessible legal history and how a few individuals effectively set out to outlaw war. While it provides no answers on how to stop or solve the ongoing conflicts, it gives us greater understanding of

Professor Scott J. Shapiro

how far we have come from when wars were waged as supposedly just, when there were no global institutions such as the UN, no recognized human rights and humanitarian conventions, no acceptable accountability mechanisms for atrocities committed during wars. Some answers are provided in Seeking Accountability for the Unlawful Use of Force (edited by Leila Nadya Sadat), which I will review in my next post as a continuum of the theme in The Internationalists – just wars, aggression, and accountability.

 

The overarching thesis of The Internationalists is that the General Treaty of Renunciation of War as an Instrument of National Policy (referred to as the Paris Peace Pact of 1928 or Kellogg-Briand Pact of 1928) heralded the beginning of a New World Order, bringing an end to the Old World Order represented by the just war theories catalogued and synthesized by Hugo Grotius (1583-1645) some 40 years before the treaties of Westphalia (p. xix).

The First World War epitomized the Old World Order, though as we will see, as early as 1914, one individual, Salmon Levinson, a U.S. commercial lawyer from Chicago, in thinking of how to stop the war, would conceive the idea of branding war a crime and with “the force of the world organized to deal with the criminal.”1   Salmon O. Levinson, The Legal Status of War, Middle Works 11: 388-392 (1918).  With the League of Nations failing to live up to its promise, the Peace Pact of 1928 emerged as the treaty to end war between states. Of course, history proved otherwise as some of the signatories would go on to initiate the Second World War.

Notwithstanding the obvious failure of the Peace Pact to prevent wars leading up to the Second World War and thereafter, The Internationalists makes a compelling argument of the lasting efforts of a few visionaries, namely Levinson, Philander C. Knox, James T. Shortwell, Frank Kellogg, and Henry Stimson, to outlaw war by conceptualizing a new set of rules that cut against much of the just war rules chronicled by Grotius (and others who followed). Contrary to the conventional (realists’) wisdom that the Peace Pact was “as irresistible as it was meaningless” (Henry Kissinger), “childish” (George Kennan), “singularly vacuous” (Ian Kershaw), “a laughingstock” (Kenneth Adelman) (p. xii) – the authors persuasively show how the Peace Pact has yielded sustained results from which the international community can continue to build on.

The Internationalists is divided into three parts with 17 chapters. Though dense with facts and highly sourced, it makes for a pleasant and effortless read (save for sections of Part III; more below).

In Part I, Old World Order, the authors set the stage with Grotius, reputed as the father of modern international law. Here we delve into his background and his efforts (and purpose) for defining the then-norms of just wars and cataloging acceptable practices. During the Old World Order, just war theory mirrored Carl von Clausewitz’s famous maxim in his seminal book On War: “War is merely the continuation of policy by other means.”2   Carl von Clausewitz, On War, (M. Howard and P. Paret eds., Princeton 1989), Book One, Chapter One, #24, p. 87. Any state could claim that it was wronged by another state; failure of the offending state to make the reparations claimed to be owed to the aggrieved state could rightly trigger retaliatory action: capturing territory and ruling over the residing subjects as compensation. War was a means of asserting legal rights much like a legal cause of action; the casus belli (the justified causes of war) – expressing a wrong (not always clear or correct) – permitted war to be waged, and fittingly, any property seized was considered prize or booty belonging to the victor. The authors call Grotius’ solution the Might is Right principle, which, incidentally, also applied to private wars, allowing traders to take possession of goods and control over the territory as legal ownership (p. 23). The vanquished, even if wrongly attacked, could do nothing but accept the outcome. Broken, or seemingly broken treaty obligations were viewed as broken contracts. “Violations of international law were not merely a cause for complaint. They were a just cause for war.” (p. 44)

Interestingly, though three kinds of war crimes were recognized (the use of poison, treacherous assassination, and rape), Grotius – being the man of his time – was fine with enslavement, torture, execution of prisoners, pillage, and plunder. Effectively, senseless killings of unarmed women and children while technically illegal, were not prosecutable if conducted while fighting; only rape was considered a war crime (pp. 71-72). It was not until the eighteenth century that European armies recognized the Principle of Distinction, eventually followed by other efforts to get rid of repugnant practices such as reprisal killings. It was during this period that a host of rules were adopted to regulate certain conduct, including the behavior of states that wished to remain neutral by being impartial. This meant that discrimination in trade amounted to an act of war, permitting the other side to respond. Neutral states could not impose trade sanctions.  

It is against this backdrop that the authors take us to Part II, Transformation. It is in the next eight chapters that the authors develop their theme, albeit not straightforwardly. Though I found some of the asides distracting, the details provided are interesting and informative. Considering that the authors are weaving a tapestry from a host of events and personalities, these distractions are outweighed by the contextual information imparted. Their narrative is, after all, a composite of legal history, international law, diplomatic history, and international relations.

Transformation picks up with the First World War; despite some progress having been made in establishing some international norms, the Might is Right theory prevailed. With the establishment of the League of Nations peace was to be secured through compulsory dispute resolution either through the Permanent Court of International Justice or an enquiry by the League Council. States were to wait until a judgment could be reached by either body. The irony of it was that if a state lost, it could still go to war provided it waited three months before doing so. These modalities were hardly a means for enforcing peace, let alone preventing aggression.

In Transformation we are introduced to the protagonists that will lead the charge to outlaw war – or to put it more accurately, break from the just war norms of the Old World Order. While Levinson wanted to make waging war a crime for which individuals would be held to account, Shortwell, a Columbia University Professor, thought that defining a workable definition of waging an aggressive and unjustified war would be impracticable. He opted instead for a procedural mechanism: states should be required to bring their disputes to a court and to accept its decision; those refusing would be deemed aggressors. This would come to be known as The American Plan; the irony being that the U.S., having conceived the League of Nations, had walked away from it. Under this plan, aggression would be forbidden by international law, and the Permanent Court of International Justice would have jurisdiction with the power to impose severe financial sanctions. Kellogg, the U.S. Secretary of State would go on to sign the Peace Pact in Paris on August 27, 1928, marvelously described in the Introduction (pp. ix-xi).

The Peace Pact would prove to be a game-changer. Somewhat. Japan, a signatory of the Peace Pact, invaded Manchuria in September 1931 to only find out that applying what had been accepted practice under the Old World Order would not be countenanced; new territorial claims through gunboat diplomacy or outright aggression would not be recognized. Japan’s action would give rise to the Stimson Doctrine, when the then-U.S. Secretary of State Stimson declared: “[T]he American Government does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928.”

Unsurprisingly, nothing much resulted from the nonrecognition of Japan’s claims to Manchuria, and when Italy invaded Ethiopia in 1934, the League of Nations demurred from taking any actions even though Italy was declared an aggressor. Noteworthy, the Peace Pact de facto legitimized all previous conquests, subjugations, and claims by the European colonizers in Africa and Asia that had occurred prior to the Pact (p. 151) – something they continued to advocate as their legitimate right to control and economically exploit even after the Second World War.

Notwithstanding the meek response to Japan’s acts of aggression in Manchuria, the authors see the League of Nations’ nonrecognition of Japan’s territorial gains as the advent of the New World Order. As the narrative progresses, they link this bold move to the events that follow, the Second World War, when a host of other visionaries, namely, Hersch Lauterpacht, Hans Kesler, Robert H. Jackson, and others, creatively interpret international law to justify charging high ranking Nazis at Nuremberg with aggression as a crime against peace, along with war crimes and crimes against humanity. The Peace Pact played its role.

Part III, New World Order, brings the narrative to present. Based on empirical data from Correlates of War (which examines such things as militarized interest disputes, world religion data, bilateral trade and territorial trade), other academic studies (mainly referenced in the footnotes) and their own study of 254 cases, the authors conclude that “[c]onquest, once common, has nearly disappeared (pp. 312-13). They credit this, in no small part, to the Peace Pact, which “suddenly caused all nations to play by a new set of rules,” though it would take years for this new legal order to replace the old one (p. 330). They credit mercantilism for fueling the Old World Order by “encourag[ing] states to make war to expand territorial control and market size, while war, by expanding the markets under unified sovereign control, helped sustained mercantilism.” (p. 340) But with the New World Order no longer rewarding the seizing, holding, and exploiting captured territory (as the European colonial powers had indulged with abandon under the Old World Order), they opine, perhaps rightly, that it no longer makes economic sense. They argue that free trade and international competition play a major role, as do countermeasures (such as trade sanctions, in this new legal order).

Perhaps the authors are correct, though I find their empirical proof and arguments deficient. They could have, for instance, elaborated on their own empirical study, comparing it with other similar studies which they cite. Granted, this would have expanded what is already a lengthy book with statistical data and charts, which, save for those who enjoy poring over such political science tools (I am not one of them) would find tedious and distracting. But even without this added information, I am still not entirely persuaded. One need only look at what is happening around the globe to conclude that their thesis is tenuous. Russia’s annexation of Crimea, or its adventurism in Eastern Ukraine and other former Soviet republics, or China’s aggressive claims of various remote islands thousands of miles off its cost line in the South China Sea, or what is happening in the Middle East, makes it hard to reconcile their conclusions. States no longer need to outright conquer territory; there are other ways of reaping illicit economic (mercantile) benefits, as can be seen in parts of East Africa. So, while invading and conquering territory by state actors may have diminished, acts of aggression in its various forms persist.

Whether the Peace Pact is wholly or primarily responsible for ushering the New World Order, as claimed by the authors, is arguable. It certainly served as a catalyst for trying the Nazi leaders for crimes against peace, and, to some degree, contributing to the debate on defining and adopting the crime of aggression as an international crime. Credit can also be given to the League of Nations; lessons learned helped shape the UN – though when considering the powers accorded to the five permanent members of the UN Security Council, elements of Might is Right persist. Statistics and data may tell us that there are fewer conquests of territory, but this does not seem to be borne out by what is heard in the news daily. And what of cyberwar?

In The Internationalists, Professors Hathaway and Shapiro deliver an insightful legal history on aggression, contextualizing the development and purpose of international law in world affairs. Anyone involved in international criminal law or interested in a historical perspective on the international efforts to outlaw aggression (contextually essential to understating the drafting history in adopting a definition for the crime of aggression and the ongoing reluctance of State Parties to the International Criminal Court to opt in to the statutory provisions to the Rome Statute negotiated during the Kampala Conference in 2010), would assuredly find this book worth reading. Those interested in diplomatic history, international affairs, and the behind-the-scenes machinations in conceptualizing, negotiating, and drafting the Peace Pact will also find many of the details provided by the authors illuminating.

With all the ongoing conflicts, threats of whose nuclear button is bigger, U.S.’s bellicose behavior and attitude towards many of the international institutions that it helped establish to foster the New World Order, and I could go on, The Internationalists is a timely and rewarding.

The example of the Internationalists offers a hopeful message: If law shapes real power, and ideas shape the law, then we control our fate. We can choose to recognize certain actions and not others. We can cooperate with those who follow the rules and outcast those who do not. And when the rules no longer work, we can change them. (p. 423)

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Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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