Doctor of Juridical Science (SJD) in International Law, Harvard University
War has such a powerful grip on our minds that no one seems to be able to dream of peace.
This was not always the case. At various times throughout history, men and women have dreamed of peace, and worked hard to achieve peace.
At the First Hague Peace Conference in 1899, delegates pursuing the goal of peace sought to establish a World court to settle differences between countries not by war but rather by international adjudication and arbitration, using international law. They failed to establish a world court then, but did succeed in creating the Permanent Court of Arbitration (PCA), where it was hoped countries would submit their disputes to international arbitration.
After its creation in 1899 and its strengthening at the Second Hague Peace Conference in 1907, with funding from Andrew Carnegie a Peace Palace was built between 1907 and 1913 to house the PCA. Today, it is the home of the PCA, the International Court of Justice (ICJ) , the Hague Academy of International Law, and the Peace Palace Library.
The Permanent Court of Arbitration has proven useful over the years in resolving disputes between states, though it has been largely eclipsed by the International Court of Justice and its jurisprudence (case law).
Nonetheless, the Permanent Court of Arbitration still exists, and sometimes oversees important arbitral decisions.
In 2016, for example, in The South China Sea Arbitration, in proceedings conducted pursuant to provisions of the 1982 Law of the Sea Convention, an arbitral panel appointed by and operating under the rules of the Permanent Court of Arbitration rejected all of China’s claims in the South China Sea, finding that none of them were supported by international law. China did not participate in the proceedings, but is bound by the decision under the terms of the Law of the Sea Convention, to which it is a party.
After the First World War, (known then as “The Great War” and also as “the war to end all wars”), the Covenant of the League of Nations was adopted at the Versailles Peace Conference in 1919. The Covenant had as its overriding goal international peace, and to that end established the Permanent Court of International Justice (PCIJ), or “World Court”.
As noted above, setting up a “world court” had been a chief goal of many at the Hague Peace Conferences of 1899 and 1907. Yet only after the horrendous devastation of World War I was it finally established. The PCIJ was the predecessor of the present International Court of Justice (ICJ), established by the U.N. Charter in 1945 after the horrors of World War II.
Actually it might be more accurate to speak of the “rededication” of the World Court, as with only minor changes the Statute of the ICJ repeats verbatim the language of the Statute of the PCIJ, and the ICJ has followed and built upon the jurisprudence of the PCIJ.
The goal of peace remained a priority for the principal nations of the world in the 1920’s. In 1928, they adopted a General Treaty for Renunciation of War as an Instrument of National Policy, popularly known as the Kellogg-Briand Pact or the Peace of Paris. Article I provides the following:
Article I
The High Contracting Parties solemnly declare in the names of their respective peoples that they 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.
In the 95 years since the Kellogg-Briand Pact, what has happened to the pursuit of peace which it embodied?
Adolf Hitler challenged international law and the international legal order based on the League of Nations Covenant and the Kellogg-Briand Pact by annexing Austria under the threat of invasion in March 1938, by securing the cession of the Sudetenland (German-speaking provinces) of Czechoslovakia through the infamous Munich Pact and direct military threats against Czechoslovakia in September 1938, by the invasion of the rest of Czechoslovakia in March 1939, and by the invasion of Poland on September 1, 1939, setting off the Second World War. In the ensuing months, Hitler invaded Denmark, Norway, The Netherlands, Belgium, France, and other countries.
After the war, the nations of the world met in San Francisco and adopted the United Nations Charter, which had as its principal and overriding goal the establishment and maintenance of international peace and security.
In 2008 Russia invaded Georgia, violating the Charter’s prohibition of the international use of force. In 2014 it invaded Ukraine, seizing and annexing the Crimea in February and March. The West reacted with minimal sanctions which amounted to a mere slap on the wrist. Beginning in April and throughout the summer, Russia invaded the provinces of Luhansk and Donetsk in an eastern industrial region known as the Donbas.
On February 24, 2022, Russia launched an all-out invasion against all of Ukraine, in a war which continues today and shows no sign of an early end.
To be sure, the United States violated the U.N. Charter when it invaded Iraq in 2003. We and others sharply criticized this action at the time. However misguided, the U.S. invasion was never meant to be permanent, and the U.S. never sought to annex Iraqi territory.
That said, we must resist “what about” arguments if we are to succeed in establishing and maintaining international peace and security. An analogy may drive home this essential point. Domestically, the fact that individuals may have committed murders in the past is no argument against establishing the rule of law and effective deterrence and punishment of murders going forward.
Today, where in our consciousness is the goal of peace?
Generals ask for more and newer and better weapons, both to assist Ukraine and to prepare for future wars. This is not unreasonable in view of the Russian aggression in Ukraine and Chinese threats to invade Taiwan. Nonetheless, their thinking and that of their civilian leaders seems to be constrained within a paradigm of war and fighting wars.
But what has happened to the overarching goal of peace?
Is it not possible to arm and fight aggression, both present and potential, while still taking concrete actions in pursuit of the goal of peace?
During World War II the West had extraordinary leaders in the persons of Franklin Roosevelt and Winston Churchill and their associates. They were clear in their minds that while they were fighting to defeat Germany and Japan, to be sure, they were at the same time fighting to establish peace and an international legal order with institutions that might act effectively to maintain the peace.
Today we see very little of the clarity of mind Roosevelt and Churchill had regarding the need to establish or strengthen institutions charged with the maintenance of international peace and security.
The dream of peace seems to have given way to resignation to the fact that the world will always be in or on the verge of a state of war.
This is a mind-boggling statement….