Act of peace

“childish, just childish.”

The Yale law professors Oona A Hathaway and Scott J Shapiro contend in their provocative new book, The Internationalists: How a Radical Plan to Outlaw War Remade the World, that the naysayers are wrong. They claim that while “it did not end war between states,” the Kellogg-Briand Pact did mark “the beginning of the end.” More than that, “it reshaped the world map, catalysed the human rights revolution, enabled the use of economic sanctions as a tool of law enforcement, and ignited the explosion in the number of international organisations that regulate so many aspects of our daily lives.” Oh, and it led to “the replacement of one international order with another.”

That is a lot of credit to give to a treaty that, until now, pretty universally has been dismissed as inconsequential. Ms Hathaway and Mr Shapiro deserve medals of intellectual valour for even daring to make a case that is so at odds with what almost every other expert in the field of international relations believes. But, sadly, their thesis, while backed up by many erudite, carefully footnoted pages, is not persuasive. “There are some ideas so absurd only an intellectual could believe them,” George Orwell wrote. The notion that the Kellogg-Briand Pact was a raging success is one of them.

Ms Hathaway and Mr Shapiro claim that the 1928 Kellogg-Briand Pact was the pivotal factor in catalysing this complex change in international relations, but their own narrative suggests otherwise. While they contend that 1928 was the dividing line between the Old World Order, in which wars of conquest were acceptable, and a New World Order, in which they are not, their book shows that there was a more gradual trend over the centuries to impose humanitarian restrictions on warfare.

The Internationalists ably charts this transformation in the legal arena, beginning with the publication in 1625 of the Dutch legal theorist Hugo Grotius’s landmark study The Law of War and Peace in Three Books. Grotius held that war was only permissible as a “response to the violation of rights,” and he listed war crimes — “poison, treacherous assassination and rape” — that were never allowed. Thus was born the modern laws of war. In the 18th century, one of Grotius’s successors, the Swiss philosopher Emer de Vattel, propounded a Principle of Distinction, which made it a crime for armies to deliberately target civilians who did not take up arms.

As Ms Hathaway and Mr Shapiro note, subsequent “international treaties protected the wounded and medical personnel (First Geneva Convention, 1864); prohibited the use of fragmenting, explosive and incendiary small arms ammunition (St Petersburg Declaration, 1874); banned explosives from balloons, asphyxiating gas and dum-dum bullets (First Hague Convention, 1899); and proscribed pillage, the execution of surrendering soldiers and prisoners of war and forcing civilians to swear an allegiance to a foreign power (Second Hague Convention, 1907).”

While all of these treaties were aimed at limiting the severity of conflict, they suffered from a lack of enforcement and did little to make wars themselves less frequent. That only changed after World War II, when the United Nations Security Council was created to uphold international law, and a Cold War between nuclear-armed states imposed some stability on international politics.

What does any of this have to do with the Kellogg-Briand Pact? The authors make much of the fact that the Nuremberg prosecutors tried to convict the Nazi defendants of violating the 1928 treaty by waging a war of aggression. They are evidently saddened that the Nuremberg judges embraced another theory — namely, that “it is permissible to punish evil acts even if they were not crimes when committed.” No defendant received “the death penalty simply for waging aggressive war,” they note. “Only those who committed war crimes or crimes against humanity would be hanged.”

In short, Ms Hathaway and Mr Shapiro are forced to acknowledge that the KelloggBriand Pact was not nearly as important as they claimed in the beginning. Considering “the frequency of conquest,” they call it a “speed bump” on the road toward making war less legitimate, with World War II being “the stop sign.”

More accurate, but less sexy, would be to assert that revulsion against war, building for centuries, spiked after World War I. That pacifism blinded the West to the growing Axis threat and made World War II more likely.

Only after 1945 did the West acknowledge that it would take more than lofty promises to keep the peace — it would take security arrangements like positioning American troops in Europe and Asia and creating alliances like NATO and the United States-Japan security treaty. Those developments go unmentioned by Ms Hathaway and Mr Shapiro, but Harry Truman, Dean Acheson and George Marshall deserve far more credit for keeping the peace than do the justly forgotten Aristide Briand and Frank Kellogg. How a Radical Plan to Outlaw War Remade the World Oona A Hathaway and Scott J Shapiro Simon & Schuster 581 pages; $30