Legal War

States do not only have the legal right to wage war to redress alleged wrongs. They could also threaten to wage war for the same purpose. It would be absurd to demand that states actually wage war when they could obtain justice by threatening it. Thus, in 1773, King Stanisław August Poniatowski and the Polish legislature (known as the Sejm) agreed to cede 30% of Polish territory and half of its population to Austria, Prussia and Russia when these states threatened war. As Polish historian Norman Davies described this macabre act of self-harm: “The victim not only consented to the operation; He was persuaded to swing the knife himself. When the League of Nations was paralyzed, U.S. leaders debated how to respond to Japan`s flagrant violation of a treaty named after an American statesman. U.S. Secretary of State Henry Stimson began to see sanctions as a possible path to peace.

He hadn`t had the idea alone. Two years earlier, he had read an article by Levinson, who had been one of his classmates at Yale. In this article, Levinson addressed a boring question: How could a peace pact be implemented? The solution he proposed was to replace the “sanctions of violence” with the “sanctions of peace”. The key, according to Levinson, was to deny any legal effect to illegal conquest: “If it is illegal to wage war, conquest by war should not provide a legal title.” Fifteen nations signed the peace pact that day, and within a year, almost every state in the world followed suit. For the first time in world history, war was illegal. Today, war is seen first and foremost as a means of defending life and territory. But Grotius saw war as morally valid and legally viable in all areas affected by state powers, from finance to criminal justice. If loans were not repaid, war was a morally permissible way to recover what was owed. If property is confiscated without authorization, restitution can and must be obtained by force of arms. If injuries were inflicted, soldiers were free to receive reparations. And when a crime has been committed, war is useful in punishing criminals who would otherwise escape retaliation.

Hays Park`s critical point in its 1989 premonitory memo is that “assassination” is a legal art term that takes on different meanings depending on whether it is used in the context of peace or war. As no one has understood better than Hays, this point is unfortunately too often overlooked in contemporary commentary and analysis. Levinson`s plan to ban war was unlike any other peace plan discussed at the time. All previous plans – disarmament proposals, League of Nations and countless variants – were based on the legality of war. They differed only in the way they tried to orient its use, their designers worked to design institutions and incentives to make the use of war as rare as possible. Those who had sought peace had not even thought to question the legality of the war. It took someone new to international law and politics to come up with an idea that was in direct contradiction with the international system. The third option – represented by the period between the peace pact and the end of World War II – is a configuration between these two opposing poles.

But this third option is in many ways the worst of all. Inherently unstable, it will create chaos and disorder until a new stable equilibrium emerges. International law is a system, and its rules go up or down together. It is not possible to choose the rules individually, as so many world leaders would like to see today. The key rules of the system have and must have a necessary logical connection to each other. It is also not possible to sometimes follow one set of rules and another. The world cannot juggle two contradictory legal systems for long. Sooner or later, they will collide and collapse. In a world where war was no longer legal, gunboat diplomacy also had to stop. For if war could no longer establish legal rights, then threats of war could not be allowed to establish legal rights.

Martial law is considered distinct from other legal entities – such as the domestic law of a particular belligerent in a conflict – which may provide additional legal limits to the conduct or justification of war. Military necessity, along with distinction, proportionality, humanity (sometimes called unnecessary suffering) and honour (sometimes called chivalry) are the five most cited principles of international humanitarian law governing the lawful use of force in armed conflict. The Stimson Doctrine was the first step in building a new legal system in which war was illegal. Like a thread hanging from a sweater, the League pulled on the thread until the fabric of the old world order began to unravel. And while dissolution doesn`t happen all at once, there would be no way to stop it once it began. Salmon Levinson was an unlikely revolutionary. A successful business lawyer in Chicago, he showed little interest in international affairs for most of his career. But when World War I broke out in 1914, he was furious at the futility. He began to have a simple but profound idea: the way to end the war was to make it illegal. “The real disease of the world is the legality and availability of war,” he wrote in August 1917. Just as there are no laws on murder or poisoning, but laws against them. The distinction is a principle of international humanitarian law that governs the lawful use of force in armed conflict, according to which warring parties must distinguish between combatants and civilians.

[a] [20] The legalization of war has not only legitimized violence.