Criminalizing War and Those Who Make It
Betty A. Reardon
Founding Director Emeritus, International Institute on Peace Education
War is a Crime against Humanity and Global Civil Order
As members of global civil society committed to global community values; and as citizens of an
emerging world-wide civic order, we are bound by our civil and community responsibility to
denounce and seek to abolish the institution of war. This lethal institution threatens to abort the
young civic order, destroying the global community and the societies that comprise it. This
commentary - as does Dale Snauwaert’s essay - seeks to enlist peace educators and activists in
the peace and justice movements in this abolitionist effort through establishing the right to peace
and the abolition of armed conflict thorough criminalizing war and those who make it.
I join and hope to extend Snauwaert’s arguments that peace is the condition in which justice
prevails as validated by international standards. And, as asserted in this piece, that the survival of
our species requires that the abolition of war be actively pursued by members of global civil
society who seek to expand the realms of justice in the present world system. It should be
recognized that violating the right peace and the standards that uphold it constitutes criminal
injustices and those who commit them are criminals. These essays propose to open discussion on
the criminalization and abolition of an institution that achieves its purposes in ways that are - in
all circumstances other than a declared state of war – recognized and punished as crimes. Some
of them so egregious as to have been designated “crimes against humanity.” So long as war
exists, justice will be thwarted.
Our arguments are intended to persuade, scholars, educators and activists to embrace the
assertion that war itself - in whatever circumstances it is waged and for whatever purposes – is
the greatest injustice, a crime for which perpetrators should be held criminally accountable. In
most circumstances the purposes pursued by warfare - indeed most armed conflict - could be
achieved through alternative, non-violent means. Most those who initiate war or retaliate in like
kind to “acts of war” are aware of the possible alternatives. In light of the Nuremberg Obligation
as cited by Snauwaert, the fact of knowledge of such alternatives provides the moral choice that
makes those who wage war criminally responsible for criminal acts of the unnecessary
unleashing of lethal combat, the consequent loss of life and property, significant damage to our
fragile natural environment, and the violation of virtually every right encoded in international
human rights standards.
The global civic order, the international system that has emerged since the end of World War II,
and indeed, most individual nation states, at a level of principle - though not of practice acknowledge that it is the obligation of states to protect and implement the human rights of their
citizens. It is, therefore, the obligation of states to fulfill the right to peace and protect the full
range of human rights by undertaking: to dismantle the institution of war, the greatest single
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violator of the full range of human rights; to construct a demilitarized security system grounded
in a full institutional commitment to universal human rights; and to hold criminally responsible
all who violate the right to peace as they do (or should) those who violate other human rights. It
is the obligation of citizens to persuade their governments to do so, and the responsibility of
educators to prepare them to formulate the arguments and actions of persuasion.
Further, in that the realities of war comprise the widest range of violations of human rights,
broader than any other constellation of factors that lead to the violation of any right or category
of rights, the waging of war carries a triple load of criminal, moral and civic responsibility.
Citizens need to be informed about human rights and aware of how war violates them.
Educators are responsible for communicating this information and facilitating critical inquiry
into the criminal nature of warfare, and so must educate themselves about these issues. Such
issues are the core substance of education for a just and sustainable global civic order. The
germinal right within this order is peace as the condition for the realization of human rights.
Snauwaert has stipulated the philosophic foundations of the human right to peace. This piece
builds upon these foundations with some comments on the emerging normative order,
international developments that validate the right, stand witness to the criminality of war calling
for the accountability of those who undermine the right and continue to keep the human family
hostage to the ever present waging and threats of war. The final section presents some concepts
excerpted from documents produced by international civil society movements striving toward the
abolition of war and suggests some queries for reflection toward action.
International Norms of the Global Civil Order Validate the Right to Peace and the
Criminalization of War
“…peace…constitutes the moral threshold below which no one should fall.” (Snauwaert)
War will become a vestige of the past as have other humanly devised institutions, when the
human family comes to believe and behave as if peace were the norm, that moral threshold that
“value that everyone is justified in claiming” (Snauwaert). Claiming the value requires
substituting law for war, beginning with the de-legitimization of war as has been called for over
the years by the Canadian Voice of Women, a civil society organization long active in the UN
NGO community. The claim here is that war is not “legitimate” in that it is not within the realms
of either ethical or normative bounds that apply to most human institutions; and thus should be
made illegitimate by international law that would render it “illegal”. Securing the right to peace
through the abolition of war is a matter of applying and constructing the international legal
structures that would end war and maintain peace. The task comprises essentially the same
processes which have produced other legal systems intended to provide social and civic order,
resolve disputes and conflicts, provide justice and protect civil rights and liberties. It is a task
well within the human capacity to address and successfully complete, in the presence of the
necessary will and the skills and capacities to do so. Civil society is moving toward developing
the former and peace educators are undertaking the latter.
The drive toward establishing the legal basis of a global regime of a just peace that would
criminalize war has been motivating human thought and action for centuries. In the near
historical period of this and the previous century, we might cite as the beginning of
contemporary concepts of peace law the establishment of the International Court of Justice in
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1946, as the structure of the United Nations took shape. Peace, avoiding “the scourge of war” as
stated in the Preamble to the Charter was the central purpose of the organization. In recent years
this concept is applied as the International Criminal Court (Statue entered into force 2002) has
undertaken to prosecute war crimes and crimes against peace. Both institutions are indicators of
an emergent world civic order and provide means to hold individuals accountable as intended in
the adoption of the Nuremberg Obligation.
We have not, however, seen significant progress in building the popular political will to abolish
war. In the wake of World War I, the “war to end all wars” the Kellogg - Briand pact (1928) was
concluded, renouncing war as an instrument of national policy. Up through the 1930’s hundreds
of university students took the Oxford Pledge to refuse to go to war. But these and other
movements toward establishing citizen support to end war were aborted as World War II
absorbed the public in the “will to win” in this, “the good war” fought for the preservation of
justice and freedom, values that informed post-war developments in international society.
The claim that these values in the form of human rights are the foundation of peace was a key
assertion of the Universal Declaration of Human Rights (UDHR 1948 see below). “…the equal
and inalienable rights of all members of the human family [are] the foundation of…peace in the
world.” That assertion could be interpreted so as to construe violations of any of those rights as
acts that violate peace, as well as violating the specific right and thus, are crimes to be
prosecuted. Such is the interpretation that can be given to Article 28 of the UDHR which asserts
the “moral threshold” in proclaiming universal entitlement to “…a social and international order
in which the rights and freedoms set forth in this declaration can be fully realized.” In short
peace itself, as argued by Snauwaert, is a human right with a basis in international human rights
law.
The human rights framework that emerged with the foundation of the United Nations and the
Universal Declaration of Human Rights provides one base for the assertion we make here that
war is a crime against humanity. The Nuremberg Obligation - which criminalizes an illegal
action when there is a moral choice in the form of alternative actions - offers a base for claiming
that those who intentionally initiate and wage war when other paths might be taken are criminals.
We contend that peace would be most effectively pursued if those who do so were held
criminally responsible for violating the multiple rights trampled in warfare and the human right
to peace itself. It is becoming normal to prosecute heads of state who have committed gross
violations of human rights. Should it not also be normal that those who initiate and wage wars
are criminally indictable? Steps toward such indictments have been advocated in the cases of
those have waged “preventive” or “pre-emptive” i.e. unnecessary wars. But given the evolving
development of legal alternatives is it not also possible to contemplate the outlawing of all war?
Such would be the likely consequence of the initiatives of human rights activists pursuing the
formulation and legal adoption of the Human Right to Peace.
In recent years international lawyers and peace activists, joining an initiative launched by the
Spanish Society of International Human Rights Law (see below) have sought to persuade the
United Nations to specify and officially proclaim this right. Several civil society declarations
promulgated from conferences in cities throughout Europe have been produced by this
movement in an effort to persuade the General Assembly to put forth such a declaration. The
result is the UN working group on the right to peace (see below.) Educators have an important
role to play in this movement. One way to play that role is through human rights education that
focuses on the various international standards that serve as precedents to declaring and encoding
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the right to peace. So, too the developments that strengthen and extend the reach of international
law should be the subject of peace and human rights education. The International Criminal Court
and various special tribunals, such as those on Bosnia and Rwanda, the application in national
courts (viz. Chile and Honduras) of international standards, such as those on genocide, could also
be the subject of study in all learning settings preparing people to function as constructive
citizens of a global civic order. Through guiding learners in such study educators could develop
in their students and themselves understanding of the practical significance of human rights as a
primary basis of peace and the constructive role of law in providing justice, resolving conflicts
and preventing the use of armed force as a political tool.
Civil Society Proposals as Conceptual Tools for Educating to End War
In launching the movement for the establishment of the Human Right to Peace, the SSIHL
reflected recent trends among organizations active in international civil society to educate and
gain public support for both specific and general objectives aimed at abolishing war. Many of
these campaigns have been waged within and with the United Nations as the agent most likely to
bring about the advancements in international treaty law that could end war and establish the
right to peace.
Among the abolition actions most relevant to the legal route to ending war are the previously
mentioned efforts of the Voice of Women Canada who year after year have brought the issue to
the annual meeting of the UN Commission on the Status of Women (see below); the provisions
of The Hague Agenda for Peace and Justice in the 21st Century that outlines a 50 step strategy to
realize a broad vision of world peace (see below); The United Nations Declaration and
Programme of Action on a Culture of Peace; and the Global Article 9 Campaign. (see below).
What strikes us as we review the recommended actions is a consistency in the general strategies
of all these action campaigns. All call for such steps as reducing military expenditures to
allocate them to social purposes, steps toward demilitarization and disarmament and the
renunciation of nuclear weapons, increasing the use of nonviolent conflict resolution, restoring
the environment, protecting human rights and brining about gender equality. What also seems
evident is that these steps that could lead toward the end of war would in themselves be more
likely of greater fulfillment in conditions of peace. There is reciprocity between peace and
positive social actions that reinforces and strengthens both.
These proposals provide educators with conceptual tools for facilitating inquiry into the
possibilities for criminalizing war; for legally realizing the ethical foundations of the human right
to peace; for fully enacting the human rights framework that provides the norms of a peaceful
order. A few such tools are found in some the specific actions proposed in the documents noted
above. Excerpted quotations that could be set before students and citizens for their review and
questions to initiate their assessment follow here.
In May 1999, The Hague Agenda, within its vision of “…a world without violence through a
new code of international conduct, which restricts military power and embraces nonviolence and
adherence to international law,” called for some changes in the present international system as
follows below:
“…a Security Council that can serve human security rather than the Great Power interest…”
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In reflecting on such a possible change in the world organization, we might ask what differences
might emerge in the criteria and goals invoked by the Security Council in debating and issuing
its resolutions? Taking as a basis for speculation any current crisis that is before the Council or
might be brought before it, what proposals might members put forth in which human security
and the avoidance of armed force constitute the primary deciding factors? How would the
thinking of the Council members, their governments and citizens have to change so as to
effectively apply such peace principles as those in this proposed change?
“... the indictment and arrest of war criminals…”
What political resistance might emerge were leaders of more powerful nations to be indicted?
Are there any living leaders or former powerful leaders who might possibly be so charged? What
effects might such indictments have on the readiness to deploy force and the willingness to turn a
blind eye to the violation of the humanitarian and human rights law in the pursuit of a military
objective?
“…constitutional or legislative action requiring parliamentary approval to initiate armed
conflict…”
What criteria might parliaments bring to decisions to use armed force that might be different
form those used by chiefs of state? How might the two differ on the determination of what is “in
the national interest” what should be “defended” and from what or whom? Who should
determine the objectives to be sought in the use of armed conflict? What limits should be placed
on the use of force? Are such limits used today?
In September of that same year, the United Nations General Assembly in a Declaration and
Progamme of Action on a Culture of Peace proposed, among specific steps, some similar to
those advocated in the Hague Agenda such as :
“Actions to promote respect for all human rights:”
Focus on some current situations of human rights violations. What actions should and could be
taken to end the violations? Who should take the actions? Under whose authority? What kind
of actions might also contribute to the reduction and elimination of armed force as a means to
assure promotion of respect for human rights? Toward ending war?
Another step advocated in the programme is “Actions to foster democratic participation:”
What contributions to achieving a viable and just peace might more democratic peace and
security policy making achieve? Do you think such participation would lead to fewer wars?
What alternative ways of political thinking might be necessary for the proposed democratic
participation to contribute to lasting peace? Who should be included in the pool of participants?
The most significant institutional action the programme proposed was to:
“Promote general and complete disarmament under strict and effective international control…”
Many argue that without general disarmament, the abolition of war is not possible? Beyond the
reduction of weapons and armed forces what other changes would be required to sustain general
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disarmament? What institutional changes might be required? What economic, social and cultural
change should be planned?
Nearly a decade later in 2008 the Global Article 9 Conference to Abolish War issued a
declaration the opening paragraph of which states:
“Article 9 of the Japanese Constitution renounces war and the threat of the use of force as a
means of settling international disputes. Further it prohibits the maintenance of armed forces
and other war potential. Article 9 is not just a provision of the Japanese law; it also acts as an
international peace mechanism that can be adopted by other states to maintain peace throughout
the world.”
How can it be said that Article 9 “acts as an international mechanism…to maintain peace…”?
What restraints might be put on other nations when they may be in dispute with a nation that has
renounced force? What advantages might there be in not maintaining a military force? What
arguments might be advanced to convince other nations to disband or convert their militaries to
peaceful purposes? What socially constructive purposes might present militaries be trained to
pursue?
“Indeed, the spirit of the Article 9 demands that all wars be outlawed and promotes the inherent
human right for all to live in peace, free from fear and free from want.”
How might Article 9 be seen as a contribution to achieving the human right to peace? How
many nations do you think would need to renounce war before it could be in practical terms
abolished? How might people be persuaded that it is necessary and possible to criminalize war
and bring about its abolition?
We know that those nations who have done so have not had all “smooth sailing.” For instance
the Article 9 declaration does not neglect to point out how far Japan has come from that spirit,
maintaining a Self-Defense Force that is in fact “one of the largest armies in the world;” The US
bases in the country, military cooperation between the two countries and the pressure of the right
to become a “normal” i.e. highly militarized nation make possible the abrogation of article 9,
even while other nations contemplate disbanding their militaries. Oscar Arias, a Nobel laureate
and former President of Costa Rica, a country that abolished its own army in 1948, has
undertaken to persuade other nations to do so also. What campaign actions and guidelines could
we suggest to spread this persuasion?
It is hoped that educators will look into other proposals and actions for abolishing war and design
for sharing on this website learning experiences that will prepare students and members of civil
society to become active in the movement to criminalize and thus end “the scourge of war.”
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References and Resources:
 International Court of Justice
 Universal Declaration of Human Rights
 UN Working Group on the Right to Peace
 The Human Right to Peace Declarations
 The International Criminal Court
 The Spanish Society of International Human Rights Law
 Global Article 9 Conference to Abolish War Declaration
 United Nations Declaration and Programme of Action on a Culture of Peace
 Voice of Women Canada
 The Hague Agenda for Peace and Justice in the 21st Century
6/8/13
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