Mak­ing war il­le­gal changed the world. But it’s be­com­ing too easy to break the law

The Guardian Australia - - World News / The Long Read - Oona A Hath­away and Scott J Shapiro

Last Thurs­day at 2.42am, four Is­raeli jets fired a vol­ley of mis­siles at a Syr­ian govern­ment fa­cil­ity, de­stroy­ing build­ings be­lieved to be as­so­ci­ated with the pro­duc­tion of chem­i­cal weapons, killing two Syr­i­ans on the ground in the process. A state­ment from Syria is­sued hours later warned of “dan­ger­ous reper­cus­sions of such hos­tile acts on the se­cu­rity and sta­bil­ity of the re­gion”.

This is not the first time Is­rael has used force to de­stroy fa­cil­i­ties ca­pa­ble of pro­duc­ing un­con­ven­tional weapons. In 1981, it launched an at­tack on the Osirak nu­clear re­ac­tor in Iraq, claim­ing the re­ac­tor had “less than a month go to” be­fore “it might have be­come crit­i­cal”. The United Na­tions se­cu­rity coun­cil quickly con­demned the at­tack as a “clear vi­o­la­tion of the char­ter of the United Na­tions and the norms of in­ter­na­tional con­duct”. Other rep­re­sen­ta­tives of pow­er­ful na­tions – in­clud­ing Mar­garet Thatcher – joined in the con­dem­na­tion. They pointed out that the UN char­ter pro­hibits the use of force by one state against an­other, with only two ex­plicit ex­cep­tions: when the se­cu­rity coun­cil has ap­proved the use of force (it hadn’t) or when state has a le­git­i­mate claim to self-de­fence (the con­sen­sus was that Is­rael didn’t).

By con­trast, Is­rael’s at­tack in Syria this month met with deafen­ing si­lence. One rea­son is ob­vi­ous: Bashar al-As­sad, the Syr­ian president, has launched hor­rific chem­i­cal weapons at­tacks on civil­ians, and many world lead­ers want to see him stopped. But many wanted to keep Iraq from ob­tain­ing nu­clear weapons in 1981 and yet crit­i­cised the Is­raeli at­tacks as “a grave breach of in­ter­na­tional law” (as Thatcher put it). What has changed is not the con­tent of the Is­raeli ac­tion – a clear vi­o­la­tion of the UN char­ter in both cases – but its con­text. To­day, per­haps more than at any time since 1945, the pro­hi­bi­tion on use of force that has been the back­bone of the in­ter­na­tional or­der for most of the last cen­tury is un­der at­tack. In­deed, it is in dan­ger of col­laps­ing – and tak­ing the or­der it up­holds down with it.

Af­ter all, Is­rael is not the only coun­try to use mil­i­tary force uni­lat­er­ally in re­cent years. In 2014, Rus­sia seized Crimea from Ukraine, the first con­quest of one state by an­other in Europe since the sec­ond world war. In April this year, the new US president, Don­ald Trump, launched his own at­tacks on the Syr­ian mil­i­tary in re­tal­i­a­tion for chem­i­cal weapons at­tacks. Mean­while, China has in­tim­i­dated its neigh­bours into pas­siv­ity while it trans­forms sub­merged reefs in the South China Sea into mod­ern mil­i­tary in­stal­la­tions over which it claims sov­er­eign con­trol. With th­ese de­vel­op­ments, only two mem­bers of the UN se­cu­rity coun­cil are not at present di­rectly im­pli­cated in il­le­gal uses of force: France and the UK. Yet both cheered Trump’s April strikes in Syria. The French president Em­manuel Macron de­clared that the use of chem­i­cal weapons would cross a red line, and sug­gested France would also re­spond with force. Th­ese breaks with the char­ter are not with­out prece­dent. Nato’s in­ter­ven­tion in Kosovo in 1999, the so-called “war on ter­ror” af­ter the 9/11 at­tacks, and the US-led in­va­sion of Iraq in 2003 had al­ready set the stage.

In­di­vid­u­ally, th­ese breaches of the in­ter­na­tional pro­hi­bi­tion on the use of force may seem mod­est. But in­ter­na­tional rules re­gard­ing the use of force are not a mi­nor fea­ture of the world we live in – and the fact that th­ese rules have of­ten been bro­ken should not ob­scure how im­por­tant they re­main.

They are at the heart of some of the most ben­e­fi­cial trans­for­ma­tions of the past 70 years, from the global de­cline in in­ter­state con­flict and com­bat deaths to the ris­ing wealth and health that peace has al­lowed. With th­ese rules at risk, the in­ter­na­tional com­mu­nity is fac­ing a cri­sis of ex­tra­or­di­nary pro­por­tions. Yet few peo­ple ap­pre­ci­ate how se­ri­ous and im­mi­nent the cri­sis is. Fewer still un­der­stand where th­ese rules came from: a now-al­most-for­got­ten agree­ment known as the Paris Peace Pact of 1928 that was even­tu­ally signed by all the na­tions of the world and had the im­mod­est goal of out­law­ing war. In or­der to ap­pre­ci­ate the mag­ni­tude of the threat, we must re­turn to a world very dif­fer­ent to our own, one in which the rules that we cur­rently take for granted did not ex­ist. The risk we face is re­vert­ing to this world, where might was right and war was le­gal.

The mod­ern at­ti­tude is to re­gard wars as moral catas­tro­phes to be avoided at al­most all costs. We recog­nise that some wars may be just – even nec­es­sary – but they are to be en­tered into only in a nar­row range of cases, such as re­pelling mil­i­tary ag­gres­sion. To start a war for any other rea­son is a breach of in­ter­na­tional law.

Not that long ago, how­ever, state lead­ers would have viewed war very dif­fer­ently. A cen­tury ago, war wasn’t con­sid­ered a moral catas­tro­phe; it was in­stead re­garded as a le­gal and le­git­i­mate in­stru­ment of state ac­tion. It wasn’t a de­par­ture from jus­tice; it was jus­tice. In this global sys­tem – call it the “old world or­der” – war wasn’t some­thing to be ar­dently avoided; it was the in­dis­pens­able means by which states car­ried out the busi­ness of state­craft.

The in­tel­lec­tual ar­chi­tect of the old world or­der was a Dutch thinker, Hugo Grotius, who wrote about and prac­tised law in the early 17th cen­tury. In Grotius’s in­flu­en­tial telling, war was a le­git­i­mate way – in­deed, of­ten the only way – in which states could en­force their rights. Since there was no world govern­ment to which states could ap­peal, ac­cord­ing to Grotius, they had no choice but to take the law into their own hands. He ex­pressed his idea as fol­lows: “Where ju­di­cial set­tle­ment ends, war be­gins.”

To­day, war is mainly seen as a means of de­fend­ing lives and ter­ri­tory. But Grotius saw war as morally valu­able and legally vi­able in every sphere touched by a state’s pow­ers, from fi­nance to crim­i­nal jus­tice. If loans were not re­paid, war was a morally per­mis­si­ble way to col­lect what was owed. If prop­erty was taken with­out per­mis­sion, resti­tu­tion could and should be ob­tained by force of arms. If some in­jury had been in­flicted, the mil­i­tary was free to col­lect repa­ra­tions. And if a crime had been com­mit­ted, war was use­ful for pun­ish­ing crim­i­nals who would oth­er­wise es­cape ret­ri­bu­tion.

In set­ting out this con­cep­tion of war, Grotius was draw­ing on a long tra­di­tion in western moral thought of­ten called “just-war the­ory” – ar­tic­u­lated in var­i­ous forms over the cen­turies by thinkers such as Cicero, Au­gus­tine of Hippo, and Thomas Aquinas. Th­ese thinkers dif­fered on many as­pects of the right of arms and con­duct in bat­tle, but they all agreed that war was a morally le­git­i­mate ac­tiv­ity and could be waged justly. But Grotius went be­yond th­ese thinkers. Just-war ar­gu­ments em­pha­sised that the ba­sic func­tion of war was to re­spond to threat­ened or ac­tual wrongs when no peace­ful op­tion re­mained. Un­pro­voked acts of ag­gres­sion, whether bat­tles for glory, riches or sheer an­i­mus, were not just wars; in­deed, they were in­dis­tin­guish­able from mass killing and rob­bery sprees.

Grotius ac­cepted this tra­di­tional con­cep­tion of war, but he drew a star­tling con­clu­sion from it: if states had the right to wage war to right le­gal wrongs, then they nec­es­sar­ily had the right of con­quest as well. Any state that claimed it had been wronged by an­other state, and whose de­mands for repa­ra­tions were ig­nored, could re­tal­i­ate with force and cap­ture ter­ri­tory as com­pen­sa­tion. The con­quer­ing state thereby be­came the new sov­er­eign of the cap­tured ter­ri­tory: it owned all the pub­lic prop­erty on it and pos­sessed the le­gal author­ity to rule over its sub­jects. Grotius wasn’t merely en­gaged in the­o­ret­i­cal re­flec­tion. He was de­scrib­ing state prac­tice. Af­ter all, nearly every bor­der in the world to­day bears wit­ness to some such past bat­tle. Nor was he a dis­in­ter­ested ob­server. As a lawyer for the Dutch East In­dia Com­pany, he de­vel­oped rules that favoured an ex­pand­ing global em­pire.

Not only did states have the le­gal right to wage war to re­dress per­ceived wrongs. They could also threaten to wage war for the same pur­pose. It would be ab­surd to re­quire states to ac­tu­ally wage war if they could ob­tain jus­tice by merely threat­en­ing it. Thus, King Stanisław Au­gust Po­ni­a­towski and the Pol­ish leg­is­la­ture (known as the Sejm) agreed in 1773 to cede 30% of Pol­ish ter­ri­tory and half of its pop­u­la­tion to Aus­tria, Prus­sia and Rus­sia when th­ese states threat­ened war. As the his­to­rian of Poland Nor­man Davies de­scribed this macabre act of self­mu­ti­la­tion, “The vic­tim not only gave his as­sent for the op­er­a­tion; he was per­suaded to wield the knife him­self.”

In the old world or­der, then, war was a tool for re­spond­ing to threat­ened or ac­tual wrongs where no peace­ful op­tion re­mained – a le­gal means of re­dress; in many cases, the only such means. To wage war, there­fore, was not a crim­i­nal act. It was what states did to up­hold the law.

The old world or­der thus granted im­mu­ni­ties to those who waged war – in ef­fect, au­tho­ris­ing mass homi­cide. If an or­di­nary per­son killed an­other out­side of war, it was mur­der­ous. If an army killed thou­sands dur­ing a war, it was glo­ri­ous. As a con­se­quence, those who waged war were nec­es­sar­ily im­mune from crim­i­nal pros­e­cu­tion. Thus, af­ter the first world war, the Treaty of Ver­sailles promised to ar­raign Kaiser Wil­helm II for his role in the war. But the le­gal im­pro­pri­ety of the treaty was so glar­ing that the Nether­lands, which had granted Wil­helm asy­lum af­ter he ab­di­cated, would not turn him over.

Le­gal­is­ing war didn’t only le­git­imise vi­o­lence. It also blocked routes to peace. Be­cause wag­ing war was le­gal, eco­nomic sanc­tions by neu­trals against bel­liger­ents were pro­hib­ited. A state that favoured one side over an­other in an on­go­ing war was deemed to be join­ing in that war and could be pun­ished – even if it never fired a shot. Thus, if a neu­tral state traded with a bel­liger­ent but re­fused to trade with its op­po­nent (or traded, but on less favourable terms), it vi­o­lated its duty of neu­tral­ity and could be at­tacked in re­tal­i­a­tion. Had the US traded with the UK but re­fused to trade with Ger­many when the first world war be­gan, it would have vi­o­lated its duty of neu­tral­ity and Ger­many would have been en­ti­tled to at­tack. It was for this rea­son that President Woodrow Wil­son, who ran for re­elec­tion in 1916 on the slo­gan, “He kept us out of war”, called on Amer­i­cans to re­main “im­par­tial in thought as well as in ac­tion”.

The the­ory that Grotius con­structed was a work of for­mi­da­ble in­tel­lec­tual power. It was also the le­gal frame­work that sanc­tioned a morally ab­surd world­wide war. The first world war was the ter­ri­ble cul­mi­na­tion of the old world or­der. It left mil­lions dead, mil­lions dis­placed and the world’s lead­ers in de­spair. And it prompted an­other lawyer, cen­turies apart from Grotius, to re­think the the­ory that had jus­ti­fied so much suf­fer­ing and re­build a very dif­fer­ent world or­der – one in which war was not only ab­surd, but also il­le­gal.

Sal­mon Levin­son was an un­likely rev­o­lu­tion­ary. A suc­cess­ful cor­po­rate lawyer in Chicago, he showed lit­tle in­ter­est in in­ter­na­tional af­fairs for most of his ca­reer. But when the first world war broke out in 1914, the sense­less­ness of it an­gered him. He be­gan to de­velop a sim­ple but pro­found idea: the way to end war was to make it il­le­gal. “The real dis­ease of the world is the le­gal­ity and avail­abil­ity of war,” he wrote in Au­gust 1917. “We should have, not as now, laws of war, but laws against war; just as there are no laws of mur­der or of poi­son­ing, but laws against them.”

Levin­son’s open­ing salvo, The Le­gal Sta­tus of War, ap­peared in the New Repub­lic in 1918. “Sup­pose the world at peace,” the ar­ti­cle be­gan. “Abruptly Ger­many de­clares war upon France and in­vades her ter­ri­to­ries with­out even dis­guis­ing the in­ten­tion of an­nex­a­tion.” Re­gard­less of the pur­pose of such a war, Levin­son con­tin­ued,it would be con­sid­ered le­gal. And other na­tions had to recog­nise it as such. This “pri­mary fact”, as he put it, was of­ten ig­nored: “The civilised world puts all wars, as soon as they are ini­ti­ated, upon the same plane of le­gal­ity, with­out any re­gard to their ori­gin and ob­jec­tives.” The only real way to bring an end to war was what Levin­son called “the out­law­ing of war”.

Levin­son’s plan to out­law war was un­like any other peace plan then un­der dis­cus­sion. All the plans to date – pro­pos­als for dis­ar­ma­ment, the League of Na­tions and count­less vari­a­tions – as­sumed the le­gal­ity of war. They var­ied only in the ways in which they sought to di­rect its use, their de­sign­ers work­ing to shape in­sti­tu­tions and in­cen­tives to make re­course to war as rare as pos­si­ble. Those who had en­deav­oured to se­cure peace had not even thought to ques­tion the le­gal­ity of war. It took some­one new to in­ter­na­tional law and pol­i­tics to pro­pose an idea di­rectly at odds with the in­ter­na­tional sys­tem.

Levin­son ex­plained his op­po­si­tion to the League by liken­ing it to an­ti­quated prac­tices of me­dieval hy­giene:

Re­cently I heard a man cite a state­ment from a book on san­i­ta­tion in the mid­dle ages to the ef­fect that in the days be­fore bath tubs had been in­vented per­fumes were used

very pro­fusely, and that when bath tubs came in, per­fumes very largely went out. Now, our in­ter­na­tional ex­perts are sold on per­fumes, so to speak. They think to get rid of war’s men­ace by sti­fling its stench some­what. No mat­ter how poor a per­fume is put on the mar­ket, they never fail to em­brace it ea­gerly nor to give it the most flat­ter­ing ad­vance no­tices, es­pe­cially if it has been bot­tled in a cer­tain town in Switzer­land.

Be­gin­ning in 1918, Levin­son or­gan­ised a global so­cial move­ment around the idea of “out­lawry”. The Out­lawry of War move­ment, as it was called, cul­mi­nated on 27 Au­gust 1928 when the Great Pow­ers as­sem­bled in Paris. In the Clock Room of the French for­eign min­istry on the Quai D’Or­say, the for­eign min­is­ter, Aris­tide Briand, de­clared be­fore the as­sem­bled dig­ni­taries that that day would “mark a new date in the his­tory of mankind” and “the end of self­ish and wil­ful war­fare”. By sign­ing the treaty, soon to be known as the Kel­logg-Briand Pact or sim­ply the Peace Pact, the na­tions of the world would no longer treat war as a law­ful means to re­solve dis­putes. Echo­ing Levin­son’s rev­o­lu­tion­ary “out­lawry” idea, Briand went on, the treaty would at­tack “the evil at its very root” by de­priv­ing war of “its le­git­i­macy”.

Fif­teen na­tions signed the Peace Pact on that day and within a year nearly every state in the world fol­lowed suit. For the first time in the his­tory of the world, war was il­le­gal.

By out­law­ing war, the Peace Pact over­turned the fun­da­men­tal prin­ci­ple of the old world or­der. But Levin­son and the emis­saries who signed the treaty in 1928 had no inkling of the chaos that would soon be un­leashed.

The del­e­gates who signed the pact had made one mis­take: they had re­jected a world in which war was the tool for re­solv­ing dis­putes and right­ing wrongs, but they had not yet con­sid­ered what would take its place. War may have been ter­ri­ble, but it served an es­sen­tial func­tion in a world of sov­er­eign states. War was, af­ter all, the way that states re­solved their dis­putes with one an­other. How could a sys­tem of sov­er­eign states ex­ist with­out it?

Out­law­ing war worked – but it had con­se­quences the lead­ers of the world failed to an­tic­i­pate. To out­law war was to re­move the linch­pin of the in­ter­na­tional sys­tem – with­out re­plac­ing it. It did not take long for the en­tire in­ter­na­tional le­gal or­der to fall to pieces.

The first chal­lenge to the pact was quick to arise. In 1931, Ja­pan – which had signed and rat­i­fied the pact – in­vaded Manchuria. The League of Na­tions was paral­ysed. Cre­ated af­ter the first world war to keep the peace, the League had been built on old­world-or­der prin­ci­ples. It re­lied on war and the threat of war to en­force the rules. Its covenant stip­u­lated, for ex­am­ple, that dis­putes had to be sub­mit­ted to an in­ter­na­tional court and that states could not to go to war for a pe­riod of three months af­ter the res­o­lu­tion of the dis­pute. But there was no limit on the right to go to war af­ter three months.

The pact, how­ever, pulled out th­ese foun­da­tions. The League re­mained, but the pact pro­hib­ited all re­sorts to force ex­cept for self-de­fence – in­clud­ing those made to en­force the League’s rules. By the time Ja­pan in­vaded Manchuria, nearly all the League’s mem­bers had joined the pact. They sud­denly found them­selves mired in con­tra­dic­tion. They had just re­nounced war. And this pro­hi­bi­tion on war could not be en­forced with war. But what other al­ter­na­tives did they have? Eco­nomic sanc­tions had been il­le­gal un­der the old world or­der; only war was le­gal. Could sanc­tions take the place of war as a le­gal tool for pun­ish­ing states? As the world hur­tled to­ward dis­as­ter in the 1930s, philoso­phers, lawyers, and states­men strug­gled to fig­ure out what would fill the vac­uum left by the out­lawry of war.

With the League paral­ysed, Amer­i­can lead­ers de­bated how to re­spond to Ja­pan’s fla­grant vi­o­la­tion of a treaty that bore an Amer­i­can states­man’s name. The US sec­re­tary of state, Henry Stim­son, was be­gin­ning to re­gard sanc­tions as a pos­si­ble road to peace. He had not come to the idea on his own. Two years ear­lier, he had read an ar­ti­cle by Levin­son, who had been one of his class­mates at Yale. In that ar­ti­cle, Levin­son ad­dressed a vex­ing ques­tion: how could a peace pact be en­forced? The so­lu­tion he pro­posed was to re­place the “sanc­tions of force” with the “sanc­tions of peace”. The key, ac­cord­ing to Levin­son, was to deny an il­le­gal con­quest any le­gal ef­fect: “If it is un­law­ful to wage war, con­quests by war should fur­nish no le­gal ti­tle.”

On 8 Jan­uary 1932, Stim­son de­liv­ered si­mul­ta­ne­ous diplo­matic notes to the gov­ern­ments of China and Ja­pan. The notes pro­claimed a pol­icy of non-recog­ni­tion – what would later come to be called the Stim­son doc­trine. Stim­son wrote: “[T]he Amer­i­can govern­ment … does not in­tend to recog­nise any sit­u­a­tion, treaty or agree­ment which may be brought about by means con­trary to the covenants and obli­ga­tions of the pact of Paris.” The League quickly adopted the same ap­proach. Ja­pan could take Manchuria, but Manchuria would not be­long to Ja­pan.

The Stim­son doc­trine was the first step in con­struct­ing a new sys­tem of law in which war was il­le­gal. Like a thread that hangs from a sweater, the League tugged on the strand un­til the fab­ric of the old world or­der be­gan to un­ravel.And though the un­rav­el­ling would not hap­pen all at once, there would be no way to stop it once it be­gan.

The thread led first to the le­gal­i­tyof con­quest, then to the law of neu­tral­ity. In the old world or­der, neu­tral states were un­der a strict duty of im­par­tial­ity – no out­sider to the con­flict could treat com­bat­ants­d­if­fer­ently. Eco­nomic sanc­tions were thus il­le­gal, and a cause for war. But now, the US at­tor­ney gen­eral, Robert Jack­son, de­clared in 1941, the Peace Pact au­tho­rised the Lend-Lease Act, through which the United States sup­plied war ma­te­rial on favourable terms to the Al­lies. As a re­sult of the pact, he ex­plained, when a state has il­le­gally re­sorted to armed force, “the tra­di­tional rules of neu­tral­ity need not be ap­plied”. In other words, eco­nomic sanc­tions, once il­le­gal, were now le­gal.

In a world where war was no longer le­gal, gun­boat diplo­macy had to end, too. Af­ter all, if war could no longer es­tab­lish le­gal rights, then threats to wage war could not be al­lowed to es­tab­lish le­gal rights ei­ther.

But not ev­ery­one agreed with th­ese new rules. Ger­many, Ja­pan and Italy re­jected the pact (even though each had rat­i­fied it) along with its new rules. This may have been be­cause the Axis pow­ers had largely missed out on the colo­nial land grab. Ja­pan only be­gan to par­tic­i­pate in in­ter­na­tional af­fairs in the 1860s, and it took more than a gen­er­a­tion be­fore it was pre­pared to project mil­i­tary force out­side its own bor­ders, too late to suc­cess­fully par­tic­i­pate in the em­pire-build­ing scram­ble. Both Ger­many and Italy fi­nally achieved uni­fi­ca­tion in the same year – 1871. They joined the race to con­quer ter­ri­to­ries soon af­ter, but were never as suc­cess­ful as France, Spain, Por­tu­gal, the UK and the Nether­lands, which built ex­ten­sive em­pires un­der the rules of the old world or­der.

With­out that same abil­ity to wage war and con­quer new ter­ri­tory, the Axis pow­ers saw lit­tle pos­si­bil­ity of achiev­ing par­ity with their im­pe­rial ri­vals. As a re­sult, the world de­scended back into war.

The sec­ond world war was a war of mil­i­tary might. But it also be­came a war of ideas. It was a war be­tween two vi­sions of the world. The Axis pow­ers fought for the re­ten­tion of the old world or­der, in which war was a le­git­i­mate means for re­solv­ing dis­putes. The Al­lies (and the in­ter­na­tion­al­ists who had cre­ated the Peace Pact) aimed to build a new le­gal struc­ture grounded in the re­nun­ci­a­tion of war.

From the start, the Al­lies made clear that they were fight­ing for more than their own safety, more than the rights of those con­quered, more than the de­feat of Hitler and his al­lies and their vile ideas. They fought, as the US and UK put it in the 1941 At­lantic Char­ter, for the prin­ci­ple that “all the na­tions of the world … must come to the aban­don­ment of the use of force”. When the Al­lies won, they did more than de­feat Ger­many, Ja­pan and Italy. They de­feated the old world or­der.

The new United Na­tions that they cre­ated to keep the peace was built around the com­mit­ment of the pact to out­law­ing war. In­deed, the first draft of the char­ter, drafted by a com­mit­tee in the bow­els of the US State De­part­ment, in­cluded the pact ver­ba­tim. Later drafts re­vised it to its cur­rent form: “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 ex­cep­tions were lim­ited: the se­cu­rity coun­cil, on which the US, UK, Soviet Union, China and France would hold a veto, could au­tho­rise force to keep the peace. And states re­tained the right to de­fend them­selves from “armed at­tack”.

Keep­ing the peace re­quired more, how­ever, than reit­er­at­ing the pro­hi­bi­tion on war, and more than cre­at­ing a global in­sti­tu­tion that could col­lec­tively re­spond to threats to in­ter­na­tional peace and se­cu­rity. If wag­ing ag­gres­sive war had in­deed been il­le­gal since 1928, then it had to be pos­si­ble to hold those who had waged it re­spon­si­ble. The im­mu­nity en­joyed by heads of state un­der the old world or­der could not con­tinue – which is why the trial of ma­jor Nazi war lead­ers at Nurem­berg rep­re­sented some­thing more than sim­ply vic­tor’s jus­tice. It was a pros­e­cu­tion for the gravest of­fense of the new world or­der – what Robert Jack­son, the chief prose­cu­tor for the United States, called “the worst crime of all” – ag­gres­sive war.

The world or­der that re­sulted from the pact has brought seven decades of un­prece­dented peace. In­ter-state war has, by most mea­sures, fallen pre­cip­i­tously – and as a re­sult, ter­ri­to­rial con­quest has nearly dis­ap­peared. Be­fore 1928, the av­er­age state could ex­pect to be con­quered about once every hu­man life­time; now, the av­er­age coun­try will be sub­ject to con­quest roughly once or twice in a mil­len­nium. With this trans­for­ma­tion has come a vast im­prove­ment in the hu­man con­di­tion. In­ter-state con­flict has de­clined. Gun­boat diplo­macy has dis­ap­peared. Free trade has thrived.

But de­spite th­ese achieve­ments, the new world or­der is at greater risk to­day than ever be­fore.

One source of risk comes from the rise of wars within states, which gen­er­ate threats that spill out­side their bor­ders, and fre­quently pro­voke armed in­ter­ven­tion in re­sponse. For even as in­ter-state wars have fallen, in­tra-state wars have risen. The wars in­side Syria, Afghanistan, Iraq, Ye­men, Libya and Su­dan are tes­ta­ment to this new re­al­ity. And when so­ci­eties break down, ter­ror­ist threats of­ten take root. The rise of Is­lamic State in Iraq, and its spread through­out the Mid­dle East, is just the lat­est ex­am­ple.

Yet the risk posed by Is­lamic State pales in com­par­i­son with the dan­gers posed by the pow­er­ful coun­tries that gave rise to the new world or­der. For the sys­tem re­lies on them to main­tain and po­lice the sys­tem they helped cre­ate. When their com­mit­ment fal­ters, the sys­tem is dan­ger of ero­sion and even col­lapse. It is even worse when they not only fail to sup­port the sys­tem, but act to un­der­mine it – when Rus­sia an­nexes Crimea, China il­le­gally oc­cu­pies is­lands in the South China Sea, and the US and Is­rael en­gage in mil­i­tary strikes against Syria in re­tal­i­a­tion for the use of chem­i­cal weapons with­out first ob­tain­ing se­cu­rity coun­cil ap­proval.

Vi­o­la­tions of the pro­hi­bi­tion on the use of force are, of course, not en­tirely new. States have been test­ing its lim­its for decades. When Nato in­ter­vened in Kosovo in 1999 with­out se­cu­rity coun­cil au­tho­ri­sa­tion, it did so in clear vi­o­la­tion of the char­ter. When the US in­vaded Iraq in 2003, again with­out se­cu­rity coun­cil au­tho­ri­sa­tion, it struck an­other blow. In each case, there were plau­si­ble ar­gu­ments for us­ing force. In each case, the pro­tag­o­nists could de­scribe their in­ter­ven­tions as a spe­cial case – as nec­es­sary “just this once” – rather than an out­right vi­o­la­tion of the rules. But like suc­ces­sive waves crash­ing against a crum­bling shore, each new in­ter­ven­tion threat­ened to erode the lim­its on the use of force a lit­tle more than the one be­fore.

Now, “just this once” is be­com­ing the new nor­mal.

If not de­fended and re­built, a sys­tem that was vul­ner­a­ble and at risk could well col­lapse. For decades, even as the US of­ten pushed the bound­aries of the law, it also worked to po­lice them – not al­ways con­sis­tently and not al­ways ef­fec­tively, but of­ten enough and ef­fec­tively enough that the sys­tem con­tin­ued to hold. Amer­ica’s lead­ers recog­nised that their coun­try ben­e­fited from the world or­der it had helped cre­ate.

The com­mit­ment to main­tain the in­ter­na­tional or­der is one rea­son why the US went to war in 1991 to evict Sad­dam Hus­sein’s Iraq from Kuwait af­ter its il­le­gal in­va­sion. More re­cently, the Obama ad­min­is­tra­tion pushed back against Rus­sia’s an­nex­a­tion of Crimea by work­ing to­gether with the Euro­pean Union to put in place an ar­ray of fi­nan­cial sanc­tions that, to­gether with fall­ing oil prices, dealt a painful blow to the Rus­sian econ­omy. And the US pushed back against Chi­nese en­croach­ment in the South China Sea by send­ing its planes and de­stroy­ers into ter­ri­tory that China un­law­fully oc­cu­pied.

More­over, the US and other western pow­ers have be­come ex­pert at us­ing an ar­ray of fi­nan­cial tools to pun­ish states that vi­o­late in­ter­na­tional law– tools that, for ex­am­ple, brought the Ira­ni­ans to the ne­go­ti­at­ing ta­ble ready to give up their hunt for a nu­clear weapon. Be­sides the US, the great­est pres­sure to main­tain the new world or­der has come from Europe, the cru­cible of con­flict that forged the Peace Pact. For decades, more and more states came to see their own self-in­ter­est as tied to the main­te­nance of a world or­der based on the out­lawry of war. Now, with the wan­ing com­mit­ment of that or­der’s most pow­er­ful de­fend­ers, all that progress is at risk.

As the world or­der stands on the brink, it is im­por­tant to re­mem­ber what is at stake. In a world of sov­er­eign states, there are a lim­ited set of le­gal sys­tems to choose from. In one – rep­re­sented by the old world or­der – all states agree that war is le­gal, a tool to right wrongs. In that world, con­quest is per­mis­si­ble, ag­gres­sion is not a crime, neu­trals must stay im­par­tial (thus eco­nomic sanc­tions against ag­gres­sors are il­le­gal) and agree­ments may be co­erced by the threat of vi­o­lence. In the sec­ond – rep­re­sented by the new world or­der – all states agree that war is il­le­gal, and refuse to recog­nise it as a source of le­gal en­ti­tle­ments, even when it used to right wrongs. In that world, con­quest is il­le­gal, ag­gres­sion a crime, eco­nomic sanc­tions are an es­sen­tial tool of state­craft, and agree­ments can­not be co­erced. In that world, more­over, trade plays an es­sen­tial role not only as a source of ben­e­fi­cial col­lab­o­ra­tion but also as a tool for col­lec­tively con­strain­ing il­le­gal be­haviour.

The third op­tion – rep­re­sented by the pe­riod be­tween the Peace Pact and the close of the sec­ond world war – is a con­fig­u­ra­tion be­tween th­ese two po­lar op­po­sites. But this third op­tion is in many ways the worst of all. In­her­ently un­sta­ble, it will gen­er­ate chaos and dis­or­der un­til a new, sta­ble equi­lib­rium arises. In­ter­na­tional law is a sys­tem, and its rules rise or fall to­gether. It is not pos­si­ble to pick and choose the rules one at a time, as so many world lead­ers wish to­day. The key rules of the sys­tem have, and must have, a nec­es­sary log­i­cal con­nec­tion to one an­other. Nor is it pos­si­ble to fol­low one set of rules some­times, and an­other set at oth­ers. The world can­not jug­gle two in­con­sis­tent le­gal or­ders for very long. Sooner or later they will clash and come crash­ing down.

For the world or­der built af­ter 1928 to con­tinue, the US, the UK and their al­lies must re­dou­ble their com­mit­ment to the rules and in­sti­tu­tions that un­der­lie it. The states that cre­ated the world or­der must reaf­firm their com­mit­ment to the core prin­ci­ple of that le­gal or­der – the re­jec­tion of war as a way to re­solve dis­putes and right wrongs

To pro­tect this cen­tral prin­ci­ple does not re­quire ac­cept­ing every fea­ture of the present or­der. The op­er­a­tion of in­ter­na­tional in­sti­tu­tions can and should be im­proved. We can im­prove how sanc­tions are used to en­cour­age states to fol­low the rules with­out ex­ces­sively harm­ing cit­i­zens who are, in many cases, vic­tims of those states as well. We can de­velop bet­ter treaties and bet­ter means of en­forc­ing them.

But we should not let the real prob­lems with the new world or­der blind us to all the ways in which it is bet­ter than the old. It is bet­ter to live in a world where con­quest is not recog­nised than in one where it is. It is bet­ter to live in a world where treaties made un­der threat can be torn up than in one where they are bind­ing. It is bet­ter to live in a world where those who wage ag­gres­sive war can be con­victed in a court of law than in one where they can­not. It is bet­ter to live in a world where states can use eco­nomic sanc­tions to pun­ish ag­gres­sors with­out fear of be­ing drawn into a war as a con­se­quence. In short, it is bet­ter to live in a world where war is not a per­mis­si­ble mech­a­nism for right­ing wrongs, even if that means some wrongs re­main un­ad­dressed.

It is tempt­ing to re­sort to force to solve any given prob­lem. It is tempt­ing to see one’s own cause as suf­fi­cient jus­ti­fi­ca­tion for sac­ri­fic­ing a broader set of ob­jec­tives. In­deed, it was pre­cisely this logic that gave rise to the old world or­der and the hor­rors it un­leashed. The fur­ther we get from that bloody sys­tem, the eas­ier it is to for­get that the world once looked very dif­fer­ent – and much less pleas­ant. But when war is a tool of jus­tice, only force de­ter­mines what is just.

Main pic­ture: Ethan Miller/Getty Im­ages

This es­say is adapted from The In­ter­na­tion­al­ists: And Their Plan to Out­law War by Oona A Hath­away and Scott J Shapiro, pub­lished this week by Allen Lane.

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Pho­to­graph: Ethan Miller/ Getty Im­ages

Bombs away ... a B-52 drops its pay­load over Ne­vada.

Pho­to­graph: Lef­teris Pi­tarakis/AP

An airstrike in Kobani, Syria.

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