Reviews — From the February 2018 issue

War No More

The surprising legacy of a ninety-year-old peace pact

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Discussed in this essay:

The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J. Shapiro. Simon & Schuster. 608 pages. $30.

How to Do Things with International Law, by Ian Hurd. Princeton University Press. 200 pages. $29.95.

A Foreign Policy for the Left, by Michael Walzer. Yale University Press. 216 pages. $30.

In 416 bc, midway through the Peloponnesian War, a powerful force landed on the island of Mílos. Though technically a Spartan colony, Mílos had stayed out of the decades-long war between Athens and Sparta. No longer willing to tolerate such neutrality, the Athenians delivered an ultimatum: surrender or be annihilated.

Sturmtruppe geht unter Gas vor (“Shock Troops Advance Under Gas”) from Der Krieg (“The War”), by Otto Dix © Artists Rights Society, New York City/VG Bild-Kunst, Bonn/The Museum of Modern Art/SCALA/Art Resource, New York City

The Melians were outraged. Refusing to submit to unprovoked aggression, and hopeful that the righteousness of their cause would provide a bulwark against the Athenians, the islanders dismissed the envoys. It would prove to be a costly decision. As Thucydides tells it, Athens promptly overran Mílos, put all the grown men to death, “and sold the women and children for slaves.” The Athenians provided a blunt explanation for their actions: “The strong do what they can, and the weak suffer what they must.”

For centuries, this brutal logic governed relations between the European nation-states: war was a perfectly legitimate way of redressing perceived wrongs. The system came to a crashing halt on August 27, 1928, when representatives from fifteen nations gathered in Paris to sign the Kellogg-Briand Pact, which in two neat sentences outlawed war and dramatically changed the world for the better. That, in any case, is the bold claim made by Oona A. Hathaway and Scott J. Shapiro, professors of law at Yale, in The Internationalists, a five-hundred-page attempt to portray Kellogg-Briand as “among the most transformative events in human history.”

At first glance, their argument seems absurd. In recent decades, those who have bothered with Kellogg-Briand have treated it as a naïve and irrelevant document. George F. Kennan, the brilliant Cold War statesman, dismissed it as “childish, just childish.” Ian Kershaw, a prominent historian of the Third Reich, described it as “singularly vacuous.” And J. L. Brierly, the British legal scholar whose Law of Nations instructed a generation of international-law students, makes virtually no mention of it at all.

The Internationalists begins the formidable task of pushing back against this consensus by taking us to early-seventeenth-century Holland, where Hugo Grotius, a prodigy who had entered university at the ripe age of eleven, penned On the Law of War and Peace, the first systematic treatise on the subject. Having witnessed “throughout the Christian world . . . a lack of restraint in relation to war, such as even barbarous nations should be ashamed of,” Grotius insisted that the natural law of nations places limits on that license. States, he argued, may go to war only in response to a threatened or actual wrong, and when no peaceful alternative exists. Wars waged to correct a wrong or to defend a right are just; those waged simply to seize territory or treasure are unjust.

For all his elaborate discussion of what makes war just, Grotius concluded that international law did not permit a third party to determine when a sovereign’s rights had been violated. In this respect, the just-war requirement was hollow — every sovereign could decide for himself the justness of his cause, and no other could question that decision.

Hathaway and Shapiro locate in Grotian theory the legal framework for Europe’s Old World Order, a system that tolerated and even rewarded aggression. Any sovereign who felt that a rival had wronged him was authorized to invade. That said, the Old World Order was not entirely bereft of rules. Because it barred third parties from weighing the justness of a belligerent’s cause, the Grotian system required the observance of strict neutrality by non-warring states. Condemning or punishing a belligerent was forbidden, as it would turn the third party into a belligerent itself. Similarly, to begin trading with one party to a conflict but not the other violated the terms of neutrality.

The system placed another constraint on sovereign behavior, namely on the level of public rhetoric. For several centuries, nations used “war manifestos” — part legal briefs, part PR documents — to lay out their reasons for resorting to force. Hathaway and Shapiro canvass some four hundred of these, and two things become clear: first, that nations were eager to avoid the ignominy of appearing to go to war without justification; and second, that almost anything could supply that justification. Protecting trade interests, defending missionaries, enforcing dynastic succession, all sufficed to justify war; in 1492, soon-to-be Emperor Maximilian I offered as the reason for war against France the fact that King Charles had stolen his wife. By the late nineteenth century, all wars had come to be seen as equally lawful.

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is the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. His most recent book is The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial (Princeton University Press).

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