You’d hardly guess it from all the silent acceptance of war as a legal enterprise and all the chatter about ways to supposedly keep war legal through the reform of particular atrocities, but there are international treaties that make wars and even the threat of war illegal, national constitutions that make wars and various activities that facilitate wars illegal, and laws that make killing illegal with no exceptions for the use of missiles or the scale of the slaughter.
By David Swanson
Of course, what counts as legal is not just what’s written down, but also what gets treated as legal, what is never prosecuted as a crime. But that’s precisely the point of knowing and making more widely known the illegal status of war: to advance the cause of treating war as the crime that, according to written law, it is. Treating something as a crime means more than just prosecuting it. There may be better institutions in some cases than courts of law for achieving reconciliation or restitution, but such strategies are not assisted by maintaining the pretense of war’s legality, war’s acceptability.
TREATIES
Since 1899, all parties to the Convention for the Pacific Settlement of International Disputes have committed that they “agree to use their best efforts to insure the pacific settlement of international differences.” Violation of this treaty was Charge I in the 1945 Nuremberg Indictment of Nazis. Parties to the convention include enough nations to effectively eliminate war if it were complied with.
Since 1907, all parties to the Hague Convention of 1907 have been obliged to “use their best efforts to ensure the pacific settlement of international differences,” to appeal to other nations to mediate, to accept offers of mediation from other nations, to create if needed “an International Commission of Inquiry, to facilitate a solution of these disputes by elucidating the facts by means of an impartial and conscientious investigation” and to appeal if needed to the permanent court at the Hague for arbitration. Violation of this treaty was Charge II in the 1945 Nuremberg Indictment of Nazis. Parties to the convention include enough nations to effectively eliminate war if it were complied with.
Since 1928, all parties to the Kellogg-Briand Pact (KBP) have been legally required to “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,” and to “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.” Violation of this treaty was Charge XIII in the 1945 Nuremberg Indictment of Nazis. The same charge was not made against the victors. The indictment invented this previously unwritten crime: “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.” This invention strengthened the common misunderstanding of the Kellogg-Briand Pact as a ban on aggressive but not defensive war. However, the Kellogg-Briand pact clearly banned not only aggressive war but also defensive war – in other words, all war. Parties to the Pact include enough nations to effectively eliminate war by complying with it.
Since 1945, all parties to the UN Charter have been compelled to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” albeit with loopholes added for UN-authorized wars and wars of “self-defense,” (but never for the threatening of war) — loopholes that do not apply to any recent wars, but loopholes the existence of which create in many minds the vague idea that wars are legal. The requirement of peace and ban on war has been elaborated over the years in various UN resolutions, such as 2625 and 3314. The parties to the Charter would end war by complying with it.
Since 1949, all parties to NATO, have agreed to a restatement of the ban on threatening or using force found in the UN Charter, even while agreeing to prepare for wars and to join in the defensive wars waged by other members of NATO. The vast majority of the Earth’s weapons dealing and military spending, and a huge portion of its war making, is done by NATO members.
Since 1949, parties to the Fourth Geneva Convention have been forbidden to engage in any violence toward individuals not actively engaged in war, and banned from all use of “[c]ollective penalties and likewise all measures of intimidation or of terrorism,” while meanwhile the vast majority of those killed in wars have been non-combatants. All the big war makers are party to the Geneva Conventions.
Since 1970, the Treaty on the Non-Proliferation of Nuclear Weapons has required its parties to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” Parties to the treaty include the biggest 5 (but not the next 4) possessors of nuclear weapons.
Since 1976, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights have bound their parties to these opening words of Article I of both treaties: “All peoples have the right of self-determination.” The word “all” would seem to include not only Kosovo and the former parts of Yugoslavia, South Sudan, the Balkans, Czechia and Slovakia, but also Crimea, Okinawa, Scotland, Diego Garcia, Nagorno Karabagh, Western Sahara, Palestine, Southern Ossetia, Abkhazia, Kurdistan, etc. Parties to the Covenants include most of the world.
The same ICCPR requires that “Any propaganda for war shall be prohibited by law.” (Yet the prisons are not emptied out to make room for the media executives. In fact, whistleblowers are imprisoned for revealing war lies.)
Since 1976 (or the time of joining for each party) the Treaty of Amity and Cooperation in Southeast Asia (to which China and various nations outside of Southeast Asia, such as the United States, Russia, and Iran, are party) has required that:
“In their relations with one another, the High Contracting Parties shall be guided by the following fundamental principles:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
b. The right of every State to lead its national existence free from external interference, subversion or coercion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves. . . .
“Each High Contracting Party shall not in any manner or form participate in any activity which shall constitute a threat to the political and economic stability, sovereignty, or territorial integrity of another High Contracting Party. . . .“The High Contracting Parties shall have the determination and good faith to prevent disputes from arising. In case disputes on matters directly affecting them should arise, especially disputes likely to disturb regional peace and-harmony, they shall refrain from the threat or use of force and shall at all times settle such disputes among themselves through friendly negotiations. . . .
“To settle disputes through regional processes, the High Contracting Parties shall constitute, as a continuing body, a High Council comprising a Representative at ministerial level from each of the High Contracting Parties to take cognizance of the existence of disputes or situations likely to disturb regional peace and harmony. . . .
“In the event no solution is reached through direct negotiations, the High Council shall take cognizance of the dispute or the situation and shall recommend to the parties in dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation. The High Council may however offer its good offices, or upon agreement of the parties in dispute, constitute itself into a committee of mediation, inquiry or conciliation. When deemed necessary, the High Council shall recommend appropriate measures for the prevention of a deterioration of the dispute or the situation. . . .”
Since 2014, the Arms Trade Treaty has required that its parties “not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” Over half the world’s countries are parties.
Since 2014, the over 30 member states of the Community of Latin American and Caribbean States (CELAC) have been bound by this Declaration of a Zone of Peace:
“1. Latin America and the Caribbean as a Zone of Peace based on respect for the principles and rules of International Law, including the international instruments to which Member States are a party to, the Principles and Purposes of the United Nations Charter;
“2. Our permanent commitment to solve disputes through peaceful means with the aim of uprooting forever threat or use of force in our region;
“3. The commitment of the States of the region with their strict obligation not to intervene, directly or indirectly, in the internal affairs of any other State and observe the principles of national sovereignty, equal rights and self-determination of peoples;
“4. The commitment of the peoples of Latin American and Caribbean to foster cooperation and friendly relations among themselves and with other nations irrespective of differences in their political, economic, and social systems or development levels; to practice tolerance and live together in peace with one another as good neighbors;
“5. The commitment of the Latin American and Caribbean States to fully respect for the inalienable right of every State to choose its political, economic, social, and cultural system, as an essential conditions to ensure peaceful coexistence among nations;
“6. The promotion in the region of a culture of peace based, inter alia, on the principles of the United Nations Declaration on a Culture of Peace;
“7. The commitment of the States in the region to guide themselves by this Declaration in their International behavior;
“8. The commitment of the States of the region to continue promoting nuclear disarmament as a priority objective and to contribute with general and complete disarmament, to foster the strengthening of confidence among nations.”
Since 2017, where it has jurisdiction, the International Criminal Court (ICC) has had the ability to prosecute the crime of aggression, a descendant of the Nuremberg transformation of the KBP. Over half the world’s countries are parties.
Since 2021, parties to the Treaty on the Prohibition of Nuclear Weapons have agreed that
“Each State Party undertakes never under any circumstances to:
“(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
“(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;
“(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;
“(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;
“(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;
“(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;
“(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.”
Parties to the Treaty are being added rapidly.
CONSTITUTIONS
Most of the national constitutions in existence can be read in full at https://constituteproject.org
Most of them explicitly state their support for treaties to which the nations are parties. Many explicitly support the UN Charter, even if they also contradict it. Several European constitutions explicitly limit national power in deference to the international rule of law. Several take further steps for peace and against war.
Costa Rica’s constitution does not forbid war, but does ban the maintenance of a standing military: “The Army as a permanent institution is abolished.” The U.S. and some other constitutions are written as if, or at least consistent with the idea that, a military will be temporarily created once there is a war, just like Costa Rica’s but without the explicit abolition of a standing military. Typically, these constitutions limit the period of time (to one year or two years) for which a military can be funded. Typically, these governments have simply made it routine to go on funding their militaries anew each year.
The constitution of the Philippines echoes the Kellogg-Briand Pact by renouncing “war as an instrument of national policy.”
The same language can be found in the Constitution of Japan. The preamble says, “We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government.” And Article 9 reads: “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”
At the end of World War II, long-time Japanese diplomat and peace activist and new prime minister Kijuro Shidehara asked U.S. General Douglas MacArthur to outlaw war in a new Japanese constitution. In 1950, the U.S. government asked Japan to violate Article 9 and join a new war against North Korea. Japan refused. The same request and refusal was repeated for the war on Vietnam. Japan did, however, allow the U.S. to use bases in Japan, despite huge protest by the Japanese people. The erosion of Article 9 had begun. Japan refused to join in the First Gulf War, but provided token support, refueling ships, for the war on Afghanistan (which the Japanese prime minister openly said was a matter of conditioning the people of Japan for future war-making). Japan repaired U.S. ships and planes in Japan during the 2003 war on Iraq, although why a ship or plane that could make it from Iraq to Japan and back needed repairs was never explained. More recently, Japanese Prime Minister Shinzo Abe led the “reinterpretation” of Article 9 to mean the opposite of what it says. Despite such reinterpretation, there is a move afoot in Japan to actually change the words of the Constitution to permit war.
The constitutions of Germany and Italy date to the same post-WWII period as Japan’s. Germany’s includes this:
“(1) Activities tending to disturb or undertaken with the intention of disturbing the peaceful relations between nations, and especially preparing for aggressive war, shall be unconstitutional. They shall be made subject to punishment.
“(2) Weapons designed for warfare may be manufactured, transported or marketed only with the permission of the Federal Government. Details shall be regulated by a federal law.”
And, in addition:
“(1) The Federation may, by legislation, transfer sovereign powers to international institutions.
“(2 ) In order to preserve peace, the Federation may join a system of mutual collective security ; in doing so it will consent to those limitations of its sovereign powers which will bring about and se cure a peaceful and lasting order in Europe and among the nations of the world .
“(3) For the settlement of international disputes, the Federation will join a general, comprehensive, obligatory system of international arbitration.”
Conscientious objection is in the German Constitution:
“No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.”
Italy’s constitution includes familiar language: “Italy rejects war as an instrument of aggression against the freedom of other peoples and as a means for the settlement of international disputes. Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organisations furthering such ends.”
This seems particularly strong, but is apparently intended to be just about meaningless, because the very same constitution also says, “Parliament has the authority to declare a state of war and vest the necessary powers into the Government. . . . The President is the commander-in-chief of the armed forces, shall preside over the Supreme Council of Defence established by law, and shall make declarations of war as have been agreed by Parliament. . . . Military tribunals in times of war have the jurisdiction established by law. In times of peace they have jurisdiction only for military crimes committed by members of the armed forces.” We’re all familiar with politicians who meaninglessly “reject” or “oppose” something that they work hard to accept and support. Constitutions can do the same thing.
The language in both the Italian and German constitutions on ceding power to the (unnamed) United Nations is scandalous to U.S. ears, but not unique. Similar language is found in the constitutions of Denmark, Norway, France, and several other European constitutions.
Leaving Europe for Turkmenistan, we find a constitution committed to peace through peaceful means: “Turkmenistan, being a full subject of the global community, shall adhere in its foreign policy to the principles of permanent neutrality, non-interference in the internal affairs of other countries, refrain from the use of force and participation in military blocs and alliances, promote peaceful, friendly and mutually beneficial relations with countries in the region and all states of the world.”
Heading over to the Americas, we find in Ecuador a constitution committed to peaceful behavior by Ecuador and a ban on militarism by anyone else in Ecuador: “Ecuador is a territory of peace. The establishment of foreign military bases or foreign facilities for military purposes shall not be allowed. It is forbidden to transfer national military bases to foreign armed or security forces. . . . It promotes peace and universal disarmament; it condemns the development and use of weapons of mass destruction and the imposition of bases or facilities for military purposes by certain States on the territory of others.”
Other constitutions that ban foreign military bases, along with Ecuador’s, include those of Angola, Bolivia, Cape Verde, Lithuania, Malta, Nicaragua, Rwanda, Ukraine, and Venezuela.
A number of constitutions around the world use the term “neutrality” to indicate a commitment to staying out of wars. For example, in Belarus, a section of the constitution presently in danger of being changed to accommodate Russian nuclear weapons reads, “The Republic of Belarus aims at making its territory a nuclear-free zone, and the state neutral.”
In Cambodia, the constitution says, “The Kingdom of Cambodia adopts [a] policy of permanent neutrality and non-alignment. The Kingdom of Cambodia follows a policy of peaceful co-existence with its neighbors and with all other countries throughout the world. . . . The Kingdom of Cambodia shall not join in any military alliance or military pact that is incompatible with its policy of neutrality. . . . Any treaty and agreement incompatible with the independence, sovereignty, territorial integrity, neutrality and national unity of the Kingdom of Cambodia, shall be annulled. . . . The Kingdom of Cambodia shall be an independent, sovereign, peaceful, permanently neutral and non-aligned country.”
Malta: “Malta is a neutral state actively pursuing peace, security and social progress among all nations by adhering to a policy of non-alignment and refusing to participate in any military alliance.”
Moldova: “The Republic of Moldova proclaims its permanent neutrality.”
Switzerland: Switzerland “takes measures to safeguard external security, independence and neutrality of Switzerland.”
Turkmenistan: “The United Nations through the General Assembly Resolutions ‘Permanent Neutrality of Turkmenistan’ dated 12 December 1995 and 3 June 2015: Recognizes and supports the proclaimed status of permanent neutrality of Turkmenistan; Calls upon the member states of the United Nations to respect and support this status of Turkmenistan and also to respect its independence, sovereignty and territorial integrity. . . . The permanent neutrality of Turkmenistan, shall be the basis of its national and foreign policy. . . .”
Other countries, such as Ireland, have traditions of claimed and imperfect neutrality, and citizen campaigns to add neutrality to the constitutions.
A number of nations’ constitutions purport to allow war, despite professing to uphold treaties ratified by their governments, but require that any war be in response to “aggression” or “actual or imminent aggression.” In some cases, these constitutions allow only “defensive war,” or they ban “aggressive wars” or “wars of conquest.” These include the constitutions of Algeria, Bahrain, Brazil, France, South Korea, Kuwait, Latvia, Lithuania, Qatar, and UAE.
Constitutions that ban aggressive war by colonial powers but commit their nation to supporting wars of “national liberation” include those of Bangladesh and Cuba.
Other constitutions require that a war be a response to “aggression” or “actual or imminent aggression” or a “common defense obligation” (such as the obligation of NATO members to join in wars with other NATO members). These constitutions include those of Albania, China, Czechia, Poland, and Uzbekistan.
The Constitution of Haiti requires for a war that “all the attempts at conciliation have failed.”
Some constitutions of nations with no standing militaries or virtually none, and no recent wars, make no mention of war or peace whatsoever: Iceland, Monaco, Nauru. The constitution of Andorra simply mentions a desire for peace, not unlike what can be found in the constitutions of some of the biggest warmongers.
While many of the world’s governments are parties to treaties banning nuclear weapons, some also ban nuclear weapons in their constitutions: Belarus, Bolivia, Cambodia, Colombia, Cuba, Dominican Republic, Ecuador, Iraq, Lithuania, Nicaragua, Palau, Paraguay, Philippines, and Venezuela. Mozambique’s constitution supports creating a nuclear-free zone.
Chile is in the process of rewriting its constitution, and some Chileans are seeking to have a ban on war included.
Many constitutions include vague references to peace, but explicit acceptance of war. Some, such as Ukraine’s, even ban political parties that promote war (a ban that is clearly not upheld).
In the constitution of Bangladesh, we can read both this:
“The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter, and on the basis of those principles shall — a. strive for the renunciation of the use of force in international relations and for general and complete disarmament.”
And this: “War shall not be declared and the Republic shall not participate in any war except with the assent of Parliament.”
Numerous constitutions claim to allow war even without the limitations mentioned above (that it be defensive or the result of a treaty obligation [albeit also a treaty violation]). Each of them does specify what office or body must launch the war. Some thereby make wars a little harder to launch than others. None requires a public vote. Australia used to forbid sending any member of the military overseas “unless they voluntarily agree to do so.” As far as I know not even the nations that crow most loudly about fighting for democracy do that now. Some of the nations that allow even aggressive wars, restrict their permission to defensive wars if a particular party (such as a president rather than a parliament) launches the war. War-sanctioning constitutions belong to these countries: Afghanistan, Angola, Argentina, Armenia, Austria, Azerbaijan, Belgium, Benin, Bulgaria, Burkina Faso, Burundi, Cambodia, Cape Verde, Central African Republic, Chad, Chile, Colombia, DRC, Congo, Costa Rica, Cote d’Ivoire, Croatia, Cyprus, Denmark, Djibouti, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Finland, Gabon, Gambia, Greece, Guatemala, Guinea-Bissau, Honduras, Hungary, Indonesia, Iran, Iraq, Ireland, Israel, Italy, Jordan, Kazakhstan, Kenya, North Korea, Kyrgyzstan, Laos, Lebanon, Liberia, Luxembourg, Madagascar, Malawi, Malawi, Mauritania, Mexico, Moldova, Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Netherlands, Niger, Nigeria, North Macedonia, Oman, Panama, Papua New Guinea, Peru, Philippines, Portugal, Romania, Rwanda, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Sierra Leone, Slovakia, Slovenia, Somalia, South Sudan, Spain, Sri Lanka, Sudan, Suriname, Sweden, Syria, Taiwan, Tanzania, Thailand, Timor-Leste, Togo, Tonga, Tunisia, Turkey, Uganda, Ukraine, United States, Uruguay, Venezuela, Viet Nam, Zambia, and Zimbabwe.
LAWS
As required by many treaties, nations have incorporated many of the treaties they are party to into national laws. But there are other, non-treaty-based laws that may be relevant to war, in particular laws against murder.
A law professor once told the U.S. Congress that blowing someone up with a missile in a foreign country was a criminal act of murder unless it was part of a war, in which case it was perfectly legal. No one asked what would make the war legal. The professor then admitted that she did not know whether such acts were murder or perfectly acceptable, because the answer to the question of whether they were part of a war had been hidden in a secret memo by then-President Barack Obama. No one asked why something being part of a war or not was significant if nobody observing the action could possibly determine whether it was or wasn’t warfare. But let’s assume, for the sake of argument, that someone has defined what a war is and made it perfectly obvious and indisputable which actions are and are not part of wars. Doesn’t the question still remain of why murder should not go on being the crime of murder? There is general agreement that torture continues to be the crime of torture when it is part of a war, and that countless other parts of wars maintain their criminal status. The Geneva Conventions create dozens of crimes out of routine occurrences in wars. All kinds of abuse of persons, property, and the natural world at least sometimes stay crimes even when deemed constituent parts of wars. Some actions that are permitted outside of wars, such as the use of tear gas, become crimes by being parts of wars. Wars do not provide a general license to commit crimes. Why must we accept that murder is an exception? Laws against murder in nations around the world do not provide an exception for war. Victims in Pakistan have sought to prosecute U.S. drone murders as murders. No good legal argument has been offered for why they shouldn’t.
Laws can also provide alternatives to war. Lithuania has created a plan for mass civil resistance against possible foreign occupation. That’s an idea that could be developed and spread.
